Terms of Service - Audiences

Instant Checkout Pty Ltd

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Last Updated

November 28, 2023

IMPORTANT INFORMATION ABOUT INDEMNITY CLAUSES: Please note the indemnity in our favour at clause 11.4 of this Service Schedule.

IMPORTANT INFORMATION ABOUT INDEMNITY CLAUSES: Please note the indemnity in our favour at clause 11.4 of this Service Schedule.

IMPORTANT INFORMATION ABOUT NEGOTIATING AN AGREEMENT WITH US: Please note that we are willing to consider in good faith any reasonable amendments that you may wish to propose to the documents that comprise an Agreement, before we enter into an Agreement with you. If you wish to propose any such amendments, please contact us.

IMPORTANT INFORMATION ABOUT NEGOTIATING AN AGREEMENT WITH US: Please note that we are willing to consider in good faith any reasonable amendments that you may wish to propose to the documents that comprise an Agreement, before we enter into an Agreement with you. If you wish to propose any such amendments, please contact us.

1. About this Service Schedule

1.1 This Service Schedule only applies in respect of a Quotation that expressly provides for our supply of the Instant Audiences Service.

1.2 This Service Schedule must be read in conjunction with our Terms of Service and the other documents that comprise an Agreement.

1.3 In this Service Schedule, a reference to a clause is a reference to a clause in this Service Schedule, words in bold font in parentheses have the meanings given to them therein and words starting with a capital letter in this Service Schedule that are not otherwise defined in this Service Schedule have the meanings given to them in the Terms of Service, unless the context indicates otherwise.

2. The Instant Audience Service

2.1 The Instant Audiences Service is comprised of: the Instant Audiences Service pixel described in the Documentation that is installed on each Merchant website (Instant Audiences Pixel);the Instant JavaScript Library that is installed on each Merchant Website;the Instant Audiences API; and the Instant Audiences Cloud Engine.

3. Implementation Services

3.1 We will provide you with a short implementation plan for the implementation of the Instant Audiences Service (Implementation Plan) which includes: 

  1. a date by which you or we will install the Instant Audiences Pixel and Instant JavaScript Library on each Merchant Website;

  2. a date by which you or we will integrate your Approved Marketing Platform Account with the Instant Audiences Cloud Engine and configure the Instant Audiences Cloud Engine to enable each Merchant Website to make calls to the Instant Audiences Cloud Engine via the Instant Audiences API (Instant Platform Configuration).

  3. a date by which we will aim for the Instant Audiences Service to be Ready for Service; and

  4. any other particulars of the implementation that we wish to include in the Implementation Plan.

3.2 You will also be responsible for ensuring that all Customer Software is installed, set up, configured, fit for purpose, in working order and available to us, and that all internet connections and network connections are complete and operational, no later than the relevant date(s) specified in the Implementation Plan.

3.3 Each party must use reasonable endeavours to comply with the Implementation Plan.

3.4 There will be an extension of time for completion of any one or more of the stages in the Implementation Plan if one of more of the following events occur:

  1. we agree to a change to the Implementation Plan or any part of the Instant Audiences Service;

  2. a Force Majeure Event occurs that prevents a party from completing one or more stages of the Implementation Plan by any date specified in the Implementation Plan; 

  3. one or more delays are caused in whole or in part by any of your acts or omissions, of those of your Personnel;

  4. an extension is required because either party was unable to complete any part of the Implementation Plan despite using its reasonable endeavours to do so.

3.5 For any extension of time the subject of clause 3.4: 

  1. we may amend the Implementation Plan; and

  2. we will provide you with a copy of the amended Implementation Plan.

4. Implementation management 

4.1 You will notify us of the name and qualifications of the person appointed as your Project Coordinator upon request by us.

4.2 You must ensure that your Project Coordinator co-operates with our Implementation Coordinator and attends meetings scheduled by the Implementation Coordinator to advise and assist on all matters relating to the implementation of the Instant Audiences Service as requested by the Implementation Coordinator.

4.3 You agree that your Project Coordinator will not be replaced before the Target Implementation Completion Date without notice to us, unless:

  1. the individual to be replaced is prevented by ill-health from carrying out his or her duties in connection with the Agreement for a significant period;

  2. the individual resigns from your employment;

  3. the contract of employment or engagement of the individual is terminated; or

  4. we make a reasonable, written request to you to replace the individual because he or she has in our opinion performed unsatisfactorily or has caused a breach of any of your obligations under the Agreement howsoever arising

4.4 In the event that your Project Coordinator is replaced in accordance with clause 4.3, you hereby agree that you will consult with the Implementation Coordinator regarding the suitability of any replacement and ensure that the replacement person is suitably appraised of the progress of the implementation and where required by us, undergoes any “catch-up” training required by us at our hourly rates then in effect to ensure that the replacement does not result in any delay in the Implementation Work.

5. Change control 

5.1 You may, by giving written notice to us at any time during the Term, request a change to the Instant Audiences Service.

5.2 We may (but are not obliged to):

  1. prepare a fee estimate for the implementation of the change at our standard rates then in force (if we offer to implement the changes on a time and materials basis); or

  2. prepare a written quote for the implementation of the change (if we offer to implement the change at a fixed price); 

  3. prepare a quote for any increase or decrease in the Price; and

  4. notify you of any effect that the requested change may have on the Implementation Plan.

5.3 You must inform us in writing of whether or not you wish the requested change to be made. No change will be implemented or deemed to have been agreed unless it is agreed by you and us in writing.

5.4 We specifically deny any implied or express representation that the Instant Audiences Service will be fit to operate in conjunction with any hardware items or software products other than with those hardware items and software products that are identified in the Documentation as being compatible with the Instant Audiences Service.

6. Software Licence (for on-website components of the Instant Checkout Service)

6.1 Clauses 6 and 7 only apply in respect of the Instant Audiences Pixel and the Instant JavaScript Library installed on each Merchant Website (On-Website Software).

6.2 We hereby grant you, subject to the terms and conditions of the Agreement, a non-exclusive, non-transferable licence as required for you to install and use the On-Website Software installed on each Merchant Website, in accordance with the Implementation Plan and the Documentation for the Permitted Purpose in accordance with the Agreement (On-Website Software Licence).

7. Transfer or reproduction of the On-Website Software

7.1 You may make one copy of the On-Website Software for the purposes of backup and security. You have no right to make, or authorise the making of, any other copies of the On-Website Software without our prior written consent.

7.2 We will at all times own all copies of all or any part of the On-Website Software. For copies recorded on a tangible medium, you will place on each copy of all or any part of the On-Website Software a clearly visible label indicating that the copy is our property and reproducing our proprietary rights notice. For electronic copies, you will ensure that all proprietary notices contained in the On-Website Software will be maintained in such copies and will display when the software is run, in the same way as in the case of the On-Website Software as supplied by us. You will keep all copies of the On-Website Software in a secure place when not in use and will, at all times, keep all such copies in your possession or control. 

7.3 Nothing in the Agreement gives you any rights to access any Source Code in the On-Website Software.

7.1 You may make one copy of the On-Website Software for the purposes of backup and security. You have no right to make, or authorise the making of, any other copies of the On-Website Software without our prior written consent.

7.2 We will at all times own all copies of all or any part of the On-Website Software. For copies recorded on a tangible medium, you will place on each copy of all or any part of the On-Website Software a clearly visible label indicating that the copy is our property and reproducing our proprietary rights notice. For electronic copies, you will ensure that all proprietary notices contained in the On-Website Software will be maintained in such copies and will display when the software is run, in the same way as in the case of the On-Website Software as supplied by us. You will keep all copies of the On-Website Software in a secure place when not in use and will, at all times, keep all such copies in your possession or control. 

7.3 Nothing in the Agreement gives you any rights to access any Source Code in the On-Website Software.
8. SaaS Software (for the cloud components of the Instant Audiences Service)

8.1 This clause 8 only applies in respect of the Instant Audiences API and the Instant Audiences Cloud Engine that is hosted by us or our Third Party Provider on our behalf (SaaS Software).

8.2 We hereby grant to you, subject to the terms and conditions of the Agreement, a non-exclusive, non-transferable right for each of your End Users to access and use the SaaS Software, in accordance with the Agreement, Implementation Plan and the Documentation, as required to use the Instant Audiences Service for the Permitted Purpose in accordance with the Agreement (SaaS Software Licence).

8.3 On and from Instant Platform Configuration, we undertake to host or procure the hosting of the SaaS Software in accordance with the SLA.

8.4 Notwithstanding any other provisions of the Agreement, you have no right or licence to download or install the SaaS Software on any computer or device.

9. Software Maintenance Releases and New Versions

9.1 We will provide you with access to all Maintenance Releases in respect of the Instant Audiences Service. 

9.2 Any failure to promptly implement such Maintenance Releases may result in your Merchant Websites becoming incompatible with the Instant Audiences Service.

9.3 You agree and acknowledge that you are not entitled to receive, and that we are not obligated to supply, any New Versions of the Instant Audiences Service pursuant to this Agreement.

9.4 Any Maintenance Release and New Version of the Instant Audiences Service supplied by us to you shall constitute the Instant Audiences Service for the purposes of this Agreement.

10. Our Obligations

10.1 On and from Instant Platform Configuration, we will transmit to your Approved Marketing Platform Account the Customer Data specified in the Documentation in respect of each Customer that attends at each Merchant Website, materially in accordance with the Specifications and the Documentation.

11. Merchant Obligations

11.1 In order to be able to use the Instant Audiences Service, you must apply for and maintain during the Term an approved account held with an Approved Marketing Platform Provider (Approved Marketing Platform Account); 

11.2 You acknowledge and agree that: 

  1. we are not responsible for your Approved Marketing Platform Account or any act or omission undertaken via your Approved Marketing Platform Account; and

  2. notwithstanding any review or approval that we undertake or provide in respect of Your Privacy Policy, you are responsible for Your Privacy Policy. 

11.3 You warrant and represent that during the Term:

  1. the Approved Marketing Platform Provider authorises us to integrate the Instant Audiences Cloud Engine with your Approved Marketing Platform Account in order to administer and provide the Instant Audiences Service to you and to enable you to accept Customer Data from us in your Approved Marketing Platform Account

  2. all use of your Approved Marketing Platform Account, and all marketing materials sent to any person via your Approved Marketing Platform Account or otherwise, will at all times comply with all applicable laws, including all applicable Data Protection Laws and the Spam Act 2003 (Cth).

  3. you will during the Term, including via your privacy policy prominently displayed on each Merchant Website (Your Privacy Policy):

    1. comply with the requirements of APP 1;

    2. make all necessary notifications required by APP 5, on behalf of you, us, our Third Party Providers and other merchants to which we provide Instant Audiences pursuant to an agreement in place with us; 

    3. obtain all necessary consents required by APP 6; and

    4. obtain consent as required by APP 8.2(b), any other applicable APP, on behalf of you, us, our Third Party Providers, and other merchants to which we provide Instant Audiences pursuant to an agreement in place with us, as required for us and our Third Party Providers to provide the Instant Audiences Service to you in accordance with an Agreement and our Privacy Policy. 

11.4 You must indemnify us, our Personnel and Third Party Providers from and against all and any loss or damage that we may suffer or incur as a result of any breach of clause 11.3, except to the extent caused by our negligence, breach of an Agreement or failure to comply with Applicable Law. 

11.5 You will, during the Term:

  1. operate and maintain the Merchant Website;

  2. be responsible for providing maintenance and support in respect of any Merchant Website and for providing customer support for all issues relating to the products and services purchased on each Merchant Website. This includes support for customer deliveries and returns, refunds, account and personal details, fraud and security, and data protection;

  3. designate one of your Personnel to serve as your primary contact with respect to this Agreement and to act as your authorised representative with respect to matters pertaining to this Agreement (the “Merchant Representative”), with such designation to remain in force unless and until a successor Merchant Representative is appointed;

  4. require that the Merchant Representative respond promptly to any reasonable requests from us for instructions, information, or approvals required by us to provide the Instant Audiences Service;

  5. cooperate with us in our performance of this Agreement and provide access to your Personnel and Your Equipment as required to enable us to provide the Instant Audiences Service;

  6. not make or permit to be made any representations or warranties, including false or misleading representations, with respect to the specifications, features, or functionality of the Instant Audiences Service;

  7. notify us giving reasonable advance notice of any planned updates or unavailability of any Merchant Website; and

  8. not impose or collect any fee of any kind, including any fee from any of your customers for use of the Instant Audiences Service.

12. Customer Data Licence

11.1 We hereby grant you, your End Users and your Personnel a non-exclusive, non-transferable licence to access and use the Customer Data made available to you by us via your Approved Marketing Platform Account for the Permitted Purpose in accordance with Your Privacy Policy, the Agreement and all Applicable Laws, including the Data Protection Laws and the Spam Act 2003 (Cth).

11.1 We hereby grant you, your End Users and your Personnel a non-exclusive, non-transferable licence to access and use the Customer Data made available to you by us via your Approved Marketing Platform Account for the Permitted Purpose in accordance with Your Privacy Policy, the Agreement and all Applicable Laws, including the Data Protection Laws and the Spam Act 2003 (Cth).
13. Support and Maintenance

13.1 During the Term, we will provide support and maintenance services in respect of the Instant Audiences Service in accordance with the SLA.

13.1 During the Term, we will provide support and maintenance services in respect of the Instant Audiences Service in accordance with the SLA.
14. Training Services

14.1 If “Training Services” is specified in a Quotation, we will train your Personnel specified in the Quotation on the allocated number of days set out in the Quotation, at mutually agreed times (Initial Training Services). The Initial Training Services shall be delivered online unless otherwise agreed.

14.2 Any additional training in the Instant Audiences Service required by you that we agree to provide will be provided by us at our standard rates then in force.

14.3 If the Training Services or any additional training is carried out in person at your premises, you will be responsible for all costs and expenses of our Personnel in connection with travel to and attendance at the training (Training Expenses). You must reimburse us for all Training Expenses that we incur within 28 days of the date of any invoice that we issue to you for the Training Expenses.

14.1 If “Training Services” is specified in a Quotation, we will train your Personnel specified in the Quotation on the allocated number of days set out in the Quotation, at mutually agreed times (Initial Training Services). The Initial Training Services shall be delivered online unless otherwise agreed.

14.2 Any additional training in the Instant Audiences Service required by you that we agree to provide will be provided by us at our standard rates then in force.

14.3 If the Training Services or any additional training is carried out in person at your premises, you will be responsible for all costs and expenses of our Personnel in connection with travel to and attendance at the training (Training Expenses). You must reimburse us for all Training Expenses that we incur within 28 days of the date of any invoice that we issue to you for the Training Expenses.
15. Professional Services

16.1 If “Professional Services” is specified in a Quotation (Professional Services), we will provide the Professional Services in accordance with any requirements set out in the Quotation.

16.1 If “Professional Services” is specified in a Quotation (Professional Services), we will provide the Professional Services in accordance with any requirements set out in the Quotation.
16. Interpretation

16.1 In this Service Schedule, the following terms have the following meanings:

APP means an Australian Privacy Principle as defined in the Privacy Act.

Approved Marketing Platform Provider means, unless expressly specified otherwise in a relevant Quotation,  Klaviyo, Inc.

Customer means a person that we then hold sufficient Customer Data about, in order for us to be able to provide you with the Instant Audiences Service in respect of that person.   

Customer Software means any software identified in the Implementation Plan that is not the Instant Audiences Service.

Implementation Coordinator means the person who we nominate as our implementation coordinator for the purposes of the implementation of the Instant Audiences Service 

Implementation Work means the work and services listed in the Implementation Plan.

Instant Audiences means the functionality contained in the Instant Audiences Service and any updates and/or upgrades thereto. 

Instant Audiences API means our application programming interface (API) and any accompanying or related documentation, source code, executable applications and materials.

Instant Audiences Cloud Engine means the Instant cloud engine specified in the Documentation.

Instant Audiences Service means the Instant audiences service provided by us to you under this Agreement and any updates and/or upgrades to the Instant Audiences Service.

Instant JavaScript Library means either a generic script or a script specific to the e-commerce platform you are using to host a Merchant Website, which is installed on each Merchant Website and which enables us to operate the Instant Audiences Service

Maintenance Release means a release of the Instant Audiences Service that corrects faults, adds functionality or otherwise upgrades the Instant Audiences Service, but which does not constitute a New Version.

New Version means any version of the Instant Audiences Service which from time to time is marketed by us as a new version of the Instant Audiences Service.

Price means the price for the provision of the Instant Audiences Service and any Implementation Work, set out in a relevant Quotation.

Project Coordinator means the person who you nominate as your project coordinator for the purposes of the implementation of the Instant Audiences Service.

Ready for Service means that we determine that the Instant Audiences Service is ready for use in a live environment.

SLA means any service level agreement provided with this Service Schedule.

Target Implementation Completion Date means the target date(s) for completion of all of the Implementation Work, as set out in the Implementation Plan.