Instant Merchant Account Agreement

Last Updated 24 February 2023

Introduction: Instant Merchant Account Agreement

Welcome and thank you for using Instant Checkout.

This Instant Merchant Account Agreement states the terms and conditions that apply to your use of the Instant Checkout Service.

Recitals:

Instant Checkout owns and operates the Instant Checkout Service.
The Merchant wishes to integrate the Instant Checkout Service to its e-commerce platform to allow its Customers to transact with the Merchant using the Instant Checkout Service.
The parties have agreed that Instant Checkout shall provide the Services to the Merchant for it to integrate the Instant Checkout Service to its e-commerce platform, and for the Merchant to receive an agreed fee for each transaction completed using the Instant Checkout Service on its e-commerce platform, in accordance with the terms and conditions of this Agreement.

The Merchant may not access or use any Services unless the Merchant agrees to abide by all of the terms and conditions in this Agreement.

Interpretation
1. Interpretation
  In this Agreement headings and words in bold are inserted for convenience and do not affect the interpretation of this Agreement, and, unless the contrary intention appears:
  1. a reference to this Agreement or another instrument includes any variation or replacement of any of them;
  2. a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
  3. the singular includes the plural and vice versa;
  4. the word ‘person’ includes a firm, a body corporate, an unincorporated association or an authority;
  5. a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, persons taking by novation) and assigns;
  6. if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;
  7. a reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later;
  8. if an act prescribed under this Agreement to be done by a party on or by a given day is done after 5.00pm on that day, it is taken to be done on the next day;
  9. if an event must occur on a stipulated day that is not a Business Day then the stipulated day will be taken to be the next Business Day;
  10. a reference to time is a reference to Sydney, Australian Eastern Daylight time;
  11. a reference to any thing (including, any amount) is a reference to the whole and each part of it and a reference to a group of persons is a reference to any one or more of them;
  12. a reference to a part, clause, party, attachment, exhibit or schedule is a reference to a part and clause of, and a party, attachment, exhibit and schedule to, this Agreement and a reference to this Agreement includes any attachment, exhibit and schedule; and
  13. a document in the ‘agreed form’ means a document in the form approved by the parties and initialled by a representative of each of them for the purposes of identification.
2. Currency
  A reference to $ is a reference to Australian currency unless specifically stated otherwise.
3. Inclusive Expressions
  Specifying anything in this Agreement after the words ‘including’, ‘includes’ or ‘for example’ or similar expressions does not limit what else is included unless there is express wording to the contrary.
Term
This Agreement commences on the Commencement Date and continues until it is terminated under clause 16 (Term).
Instant Checkout Service
1. The Instant Checkout Service allows Customers to make online purchases instantly on the Merchant Platform.
2. The Instant Checkout Service does not process Customer payments for Transactions but enables the processing of such payment by providing the Customer’s payment details to a Payment Gateway Provider who is responsible for the transport, receipt and management of such payments.
3. To use the Instant Checkout Service, the Merchant must apply for and have an approved account created with the Payment Gateway Provider. The Merchant must also agree and authorise the Payment Gateway Provider to permit Instant Checkout to connect their platform account to the Merchant’s account in order to administer and provide the Instant Checkout Service and enable the Merchant to accept Customer Payments for their goods and services.
4. The Merchant acknowledges and agrees that:
  1. the processing of the payment for Transactions is solely between the Merchant and the Customer;
  2. the Merchant may only use the services for legitimate Transactions with the Customer;
  3. the Merchant is solely responsible for any losses it incurs due to erroneous or fraudulent Transactions in connection with their use of the Instant Checkout Service;
  4. the Merchant is responsible for any penalties or fines imposed by any bank, payment network, Payment Gateway Provider, or other Financial Services Provider resulting from the Merchant’s use of the Instant Checkout Service in a manner not permitted by this Agreement or the other Financial Services Provider’s rules and regulations; and
  5. Instant Checkout is not:
    1. a party to Transactions;
    2. responsible or liable to any third party including the Customer and the Merchant for the products or services sold by the Merchant to the Customer, including the provision of support to Customers in respect of the Merchant Platform;
    3. responsible for the acts or omissions of Customers, including in respect of whether a Customers completes a Transaction; or
    4. responsible or liable for any Payment Gateway Provider charges with respect to Transaction Disputes and Chargebacks, Refunds, Reversals, Returns and any penalties and fines that arise from the Merchant’s use of the Instant Checkout Service. Any charges related to these charges that are applied by the Payment Gateway Provider will be passed on directly to the Merchant at the point of time they occur.
Licenses and restrictions
1. Subject to the terms and conditions of the Agreement, Instant Checkout grants the Merchant a limited, revocable, non-exclusive, non-transferable license to access and use the Services during the Term in the Territory for the purpose of allowing Customers to make Transactions.
2. The Merchant is solely responsible for:
  1. the Merchant’s activities in connection with the Services;
  2. ensuring that only authorised Merchant Personnel have access to the Services; and
  3. use of the Services by any person to whom the Merchant has given access to the Services, even if the Merchant did not authorise such use.
3. The Merchant shall not and shall not attempt, and shall procure that a third party shall not and shall not attempt to:
  1. reverse engineer, decompile, disassemble, or otherwise attempt to discover or derive the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent such restrictions are prohibited by Law);
  2. create derivative works based on the Services;
  3. interfere with, modify or disable any features, functionality or security controls of the Services;
  4. defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for the Services;
  5. copy, rent, lease, loan, sell, sublicense, distribute, pledge, assign, or otherwise transfer or encumber any rights in or to the Services;
  6. use the Services for the benefit of a third party unless otherwise agreed to in writing by the parties;
  7. modify or remove any proprietary notices, disclosures, disclaimers, or Instant Checkout Trademarks from the Services; or
  8. use the Services in any manner or for any purpose other than for which the Services have been provided under this Agreement.
4. In addition, the Merchant shall not access or use the Services (and shall not permit a third party to access or use the Services) for any inappropriate purpose, including:
  1. in connection with any Instant Checkout prohibited businesses;
  2. to transmit, access or download defamatory, offensive, obscene or pornographic material;
  3. to reveal or publish proprietary, classified or confidential information;
  4. to generate or send unsolicited communications, advertising, chain letters, or spam;
  5. in connection with the breach or attempted breach of any law;
  6. in connection with any infringement of a third party’s intellectual property rights;
  7. to attempt to penetrate the computer or network security of any company or any other information technology, data or telecommunications system, equipment or network;
  8. to introduce any computer virus, Trojan horse, worm or other code which is intended to or would have the effect of intercepting, accessing, copying, disrupting, impairing, denying or otherwise adversely affecting security, performance, integrity, reliability, access to or use of any information technology, data or telecommunications system, equipment or network; or
  9. to obtain any unauthorised access (or attempted access) to any other person’s computer, email account or equipment.
Parties and obligations
1. Merchant Obligations
  1. Immediately following the date of this Agreement, subject to the licence rights and restrictions in this Agreement, the Merchant and/or Instant Checkout (as applicable) shall undertake all work required to integrate the Instant Checkout one-time payment button on the Merchant Platform using the Instant Checkout API. The Merchant agrees to integrate the Instant Checkout button on the Merchant Platform on (1) the product detail page; (2) the mini cart (where applicable); and (3) the final checkout page. Instant Checkout’s obligations hereunder are contingent upon the proper installation and use of the Instant Checkout API by Partner on each checkout page on the Merchant Platform.
  2. The Merchant shall, during the Term:
    1. operate and maintain the integration (including adopting any new features and updates as required) between the Instant Checkout Service and the Merchant Platform;
    2. be responsible for providing maintenance and support for the Merchant Platform and Customer support for all issues relating to the products and services purchased on the Merchant Platform. This includes support for Customer deliveries and returns, refunds, account and personal details, fraud and security and data protection;
    3. designate one of its employees to serve as its primary contact with respect to this Agreement and to act as its 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 Instant Checkout for instructions, information, or approvals required by Instant Checkout to provide the Services;
    5. cooperate with Instant Checkout in its performance of the Services and provide access to Customer's employees, contractors, and systems as required to enable Instant Checkout to provide the Services;
    6. not make any representations or warranties, including false or misleading representations, with respect to the specifications, features, or functionality of the Instant Checkout Service;
    7. notify Instant Checkout giving reasonable advance notice of any planned updates or unavailability of the Merchant Platform; and
    8. not impose or collect any fee of any kind, including any fee from any Customer for the Customer’s use of the Instant Checkout Service.
2. Instant Checkout Obligations
  1. Immediately following the date of this Agreement, Instant Checkout shall give the Merchant access to the Instant Checkout API.
  2. Instant Checkout shall, during the Term:
    1. provide the Services in accordance with this Agreement;
    2. provide the Merchant with all changes and upgrades to the Instant Checkout API;
    3. be responsible for providing maintenance and support for the Instant Checkout Service;
    4. designate one of its employees to serve as its primary contact with respect to this Agreement and to act as its authorised representative with respect to matters pertaining to this Agreement (the "Instant Checkout Representative"), with such designation to remain in force unless and until a successor Instant Checkout Representative is appointed; and
    5. require that the Instant Checkout Representative respond promptly to any reasonable requests from the Merchant in respect of the proper use of the Instant Checkout Service.
Promotion
The Merchant shall, during the Term, display the Instant Checkout Button at the point of sale on each checkout page on the Merchant Platform. This shall include integrating the Instant Checkout button on the Merchant Platform on (1) the product detail page; (2) the mini cart (where applicable); and (3) the final checkout page.
Transaction Fee
1. Transaction Fee
  1. For each Instant Checkout Transaction, Instant Checkout shall be entitled to a fee (ex GST) that is calculated in accordance with clause 7.1(c) (the Transaction Fee).
  2. The Merchant acknowledges and agrees that Payment Gateway Provider shall automatically deduct the Transaction Fee from the amount of each Instant Checkout Transaction and remit the Transaction Fee to Instant Checkout.
  3. The Transaction Fee shall be calculated and agreed to as set out in the Instant Checkout Fee Schedule agreed between the Merchant and Instant Checkout.
  4. The Merchant acknowledges and agrees that the Payment Gateway Provider may charge additional Fees for cross-border transactions or foreign exchange services and for other events (such as handling a disputed charge) connected with their use of the Instant Checkout Services.
  5. The Merchant acknowledges and agrees that they are responsible and liable for any Taxes that apply to the sale of their products and services to the Customer.
2. Set Off
  Instant Checkout may reduce the Transaction Amount(s) by any outstanding fee, credit, rebate or other amount which is due and payable to by the Merchant to Instant Checkout under this Agreement or otherwise.
GST
1. Any reference in this clause to a term defined or used in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) is, unless the context indicates otherwise, a reference to that term as defined or used in that Act.
2. Unless expressly included, the consideration for any supply made under or in connection with this Agreement does not include an amount on account of GST in respect of the supply (GST Exclusive Consideration) except as provided under this clause 8.
3. Any amount referred to in this Agreement (other than an amount referred to in clause 8(h)) which is relevant in determining a payment to be made by one party to the other party is, unless indicated otherwise, a reference to that amount expressed on a GST exclusive basis.
4. To the extent that GST is payable in respect of any supply made by a party (Supplier) under or in connection with this Agreement, the consideration to be provided under this Agreement for that supply (unless it is expressly stated to include GST) is increased by an amount equal to the GST Exclusive Consideration (or its GST exclusive market value if applicable) multiplied by the rate at which GST is imposed in respect of the supply.
5. The recipient shall pay the additional amount payable under clause 8(d) to the Supplier at the same time as the GST Exclusive Consideration is otherwise required to be provided.
6. The Supplier shall issue a valid tax invoice to the recipient of the taxable supply at or before the time of payment or provision of the consideration for the supply as increased on account of GST under clause 8(d) or at such other time as the parties agree.
7. Whenever an adjustment event occurs in relation to any supply made under or in connection with this Agreement the Supplier shall determine the net GST in relation to the supply (taking into account any adjustment) and if the net GST differs from the amount previously paid under clause 8(d), the amount of the difference shall be paid by, refunded to or credited to the recipient, within 21 days after the end of the tax period in which the adjustment is attributable; and the supplier, if obligated to do so under the GST law, shall issue an adjustment note within 21 days after the end of the tax period in which the adjustment is attributable.
8. If one of the parties to this Agreement is entitled to be reimbursed or indemnified for a Loss, cost, expense or outgoing incurred in connection with this Agreement, then the amount of the reimbursement or indemnity payment shall first be reduced by an amount equal to any input tax credit to which the party being reimbursed or indemnified (or its representative member) is entitled in relation to that Loss, cost, expense or outgoing and then, if the amount of the payment is consideration or part consideration for a taxable supply, it shall be increased on account of GST in accordance with clause 8(d).
Intellectual Property Rights
1. Instant Checkout
  1. The parties acknowledge and agree that:
    1. all Intellectual Property Rights in the Instant Checkout Service, the Instant Checkout API, the Documentation and any other Instant Checkout Material, is owned by and remains vested solely in Instant Checkout or its licensor; and
    2. Instant Checkout shall own all Intellectual Property Rights subsisting in any and all adaptations of, modifications and enhancements to and works derived from the Instant Checkout Service, the Instant Checkout API, the Documentation or other Instant Checkout Material (Developed Material).
  2. The Merchant assigns on creation any right, title or interest of the Merchant in and to, including any Intellectual Property Rights subsisting in, any Developed Material to Instant Checkout. The Merchant shall, upon request by Instant Checkout, do such things and execute such documents as Instant Checkout may reasonably be required to confirm or give effect to such assignment.
2. Instant Checkout Marks
  1. During the Term and subject to this Agreement, Instant Checkout grants to the Merchant a limited, non-exclusive, non-transferable, revocable licence to use the Instant Checkout Marks solely:
    1. for the purpose of using the Services in accordance with the terms of this Agreement;
    2. for the purpose of performing the Promotional Activities; and
    3. strictly in accordance with Instant Checkout’s brand usage guidelines or other restrictions or directions as advised to the Merchant from time to time.
  2. The Merchant acknowledges and agrees that:
    1. other than as expressly permitted under this Agreement, it shall not use any Instant Checkout Marks, including use in any advertising or promotional materials, without prior written consent from Instant Checkout;
    2. the Merchant shall not in any way represent that it is the owner of the Instant Checkout Marks, and all benefits and goodwill associated with the use of the Instant Checkout Marks accrues to Instant Checkout’s benefit exclusively; and
    3. it may not apply to register any Instant Checkout Mark or any trade mark similar to or including any part of any Instant Checkout Mark, and it may not challenge, question or in any way impair any interest Instant Checkout has in the Instant Checkout Marks or any application by Instant Checkout to register any Instant Checkout Marks.
3. Merchant License
  Subject to the terms and conditions of the Agreement, the Merchant grants Instant Checkout a limited, revocable, non-exclusive, non-transferable license to access and use the Merchant Material during the Term and in the Territory for the purpose of Instant Checkout providing the Services. Intellectual Property Rights in the Merchant Material shall remain vested in the Merchant or its licensors.
Limitation of liability
1. Limitation of Liability
  Subject to clause 10.2, 10.3 and 11, the liability of each party under this Agreement for Loss sustained by the other party in connection with this Agreement is limited to the aggregate amount of the Transaction Fees.
2. No Consequential Loss
  Subject always to clause 10.3 and 11, neither party will have any liability to the other party for any Consequential Loss sustained or incurred by the other party arising out of or in connection with this Agreement under any theory including but not limited to breach of contract, breach of warranty, or negligence.
3. Exceptions
  The limitations and exclusions in clauses 10.1 and 10.2 do not apply in relation to Loss (including to extent such Loss is covered by any indemnity):
  1. arising out of any repudiation of this Agreement;
  2. arising out of any fraudulent or otherwise wrongful act or omission of a party;
  3. arising out of any personal injury (including sickness or death) caused by negligence of a party;
  4. arising out of any loss of, or damage to, tangible property; or
  5. arising out of any breach of obligations relating to confidentiality or privacy.
Indemnification
1. Instant Checkout indemnifies the Merchant in respect of any Loss it suffers or incurs resulting from any Claim brought against the Merchant by a third party alleging that the Services infringe the Intellectual Property Rights of that third party except where the infringement is caused or contributed to by:
  1. modification of the Services without Instant Checkout’s prior written consent;
  2. a combination of the Instant Checkout Services with other products, services, processes, or materials not provided by Instant Checkout;
  3. the Merchant continuing the alleged infringing conduct after being notified of the infringing conduct or after being informed of modifications that would have avoided the alleged infringement; or
  4. any use of the Services in a manner that is not permitted by this Agreement.
2. The Merchant indemnifies Instant Checkout in respect of any Loss or Claim which Instant Checkout suffers or incurs arising from:
  1. any Claim brought against Instant Checkout by a third party alleging that any Material provided by the Merchant under this Agreement infringes the Intellectual Property Rights of that third party;
  2. the Merchant’s use of the Services or any Instant Checkout Material in a manner that is not permitted by this Agreement;
  3. the Merchant’s breach of clause 4; or
  4. the Merchant’s breach of clause 13.
3. If a Claim the subject of an indemnity in this clause 11 (an Infringement Claim) is made by a third party against the Merchant or Instant Checkout as applicable, the party claiming the indemnity shall:
  1. notify the other party (the Indemnifying Party) in writing of the Infringement Claim as soon as practicable;
  2. provide the Indemnifying Party with all assistance as it reasonably requires in conducting the defence of the Infringement Claim, at the Indemnifying Party’s expense; and
  3. give the Indemnifying Party the option to conduct the defence of the Infringement Claim.
4. If the Indemnifying Party assumes the defence of an Infringement Claim as contemplated by clause 11(c)(3), it shall:
  1. have regard for the other party’s interests and reputation;
  2. consult with the other party and keep the other party informed in relation to any negotiations or litigation; and
  3. not enter into any settlement or compromise of an Infringement Claim without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
5. Failure by a party claiming an indemnity to comply with the procedures in this clause 11 does not relieve the Indemnifying Party of any obligation to indemnify the first party under this Agreement in respect of the subject matter of the relevant Infringement Claim, except to the limited extent that such failure prejudices the Indemnifying Party’s ability to defend that Infringement Claim in accordance with this Agreement.
Warranties
1. Each party represents and warrants to the other party that:
  1. it shall comply with all Laws in performing its obligations under this Agreement;
  2. it is entitled to enter into this Agreement and perform its obligations under this Agreement;
  3. this Agreement has been duly executed by that party and is a legal and binding agreement, enforceable against it in accordance with the terms of this Agreement; and
  4. to its knowledge there are no actions, claims, proceedings or investigations pending or threatened against it or by it which may have a material effect on the subject matter of this Agreement.
2. The Merchant represents and warrants to Instant Checkout that it:
  1. will fulfill all of the Merchant obligations to Customers and will resolve all Disputes with them;
  2. is an Australian-based merchant;
  3. has an Australian-facing website; and
  4. transacts in Australian dollars (AUD).
3. To the extent permitted by law, neither party offers any warranty under this Agreement, both parties disclaim to the extent allowed by applicable law all express or implied conditions, representations, and warranties including, without limitation, any implied warranties or conditions of merchantability, fitness for a particular purpose, satisfactory quality, or arising from a course of dealing, usage, or trade practice. Neither party makes any representations or warranties that its services will be accurate or available.
Privacy
1. Merchant’s use of Personal Information
  The Merchant:
  1. shall comply with Privacy Laws in receiving and using the Services;
  2. shall obtain all consents, and provide any notices, and approvals necessary under Privacy Laws, including:
    1. for it to hold, receive, collect, use, disclose and otherwise process the Personal Information in connection with a Customer’s use of the Merchant Platform; and
    2. to permit Instant Checkout to:
      1. operate, improve, test, debug, and otherwise run the Instant Checkout Service;
      2. provide any support services to Merchant;
      3. customise or improve Customer experiences in relation to use of the Instant Checkout Service; and
      4. de-identify Personal Information and create Anonymised Data to use and make available for its business purposes, including without limitation sales, promotion, and marketing;
  3. shall, if Instant Checkout is required by an individual to comply with their rights under Privacy Laws in respect of Personal Information obtained while providing Services to the Merchant, pay any additional costs for dealing with such obligation;
  4. may freely use Personal Information which it has collected in connection with a Customer’s use of the Merchant Platform, subject to compliance with Privacy Laws and its privacy policy; and
  5. acknowledges and agrees that Instant Checkout shall have no liability to the Merchant in respect of the Merchant’s responsibilities under Privacy Laws.
2. Instant Checkout’s use of Personal Information
  Instant Checkout:
  1. shall comply with Privacy Laws in providing the Services;
  2. obtain all consents, and provide any notices, and approvals necessary under Privacy Laws for it to hold, receive, collect, use, disclose and otherwise process the Personal Information in connection with a Customer’s use of the Instant Checkout Service; and
  3. may freely use Personal Information which it has collected in connection with a Customer’s use of the Instant Checkout Service, subject to compliance with Privacy Laws and its privacy policy.
Confidentiality
1. Confidentiality Obligation
  Each party agrees to keep confidential, and not to use or disclose, other than as expressly permitted by this Agreement, any Confidential Information of the other party.
2. Exclusions
  The obligations of confidence in clause 14.1 do not apply to Confidential Information:
  1. that is required to be disclosed under compulsion of Law by a court or government agency, provided that, prior to disclosing any information, the recipient has promptly notified the discloser in writing and the recipient has exhausted all reasonable steps (whether required by the discloser or not) to maintain such Confidential Information in confidence;
  2. that is required to be disclosed in accordance with the rules of any stock exchange upon which the recipient’s securities are listed;
  3. that is in the public domain otherwise than as a result of a breach of this Agreement or other obligation of confidence; or
  4. that is already known, or rightfully received, or independently developed, by the recipient, free of any obligation of confidence.
3. Permitted disclosure
  1. Each party may use and disclose Confidential Information of the other only on a ‘need-to-know’ and confidential basis:
    1. with the prior written consent of the other party;
    2. to its directors, agents, professional advisers, employees, contractors and sub-contractors solely for the exercise of rights or the performance of obligations under this Agreement; and
    3. to its Related Bodies Corporate and their directors, agents, professional advisers, employees, contractors, and sub-contractors solely for the exercise of rights or the performance of obligations under this Agreement.
  2. A party who discloses Confidential Information of the other pursuant to clause 14.3(a) shall ensure that such information is kept confidential by the recipients.
4. Unauthorised acts in relation to Confidential Information
  1. An unauthorised act in relation to Confidential Information occurs if there is any unauthorised disclosure, use, or access, attempted unauthorised disclosure, use or access, or loss of such Confidential Information.
  2. If a party becomes aware of any unauthorised act in relation to the other party’s Confidential Information, it shall:
    1. notify the other party as soon as it becomes aware of such unauthorised act;
    2. promptly provide the other party with full details of, and assist the other party in investigating, such unauthorised act;
    3. co-operate with the other party in any investigation or litigation against third parties deemed necessary by the other party to protect its rights in its Confidential Information; and
    4. use its reasonable endeavours to prevent a recurrence of such unauthorised act.
5. Remedies
  Each party acknowledges that:
  1. the other party, or its Related Bodies Corporate, may suffer financial and other Loss if any unauthorised act occurs in relation to Confidential Information, and that monetary damages would be an insufficient remedy; and
  2. in addition to any other remedy available at law or in equity, the other party or its Related Bodies Corporate are entitled to injunctive relief to prevent a breach of, and to compel specific performance of, this clause 14.
6. Other
  1. The rights arising under this clause 14 do not exclude any other rights of either party.
  2. Each party shall ensure that its Personnel who may have access to Confidential Information to which this clause applies understand that party’s obligations under this clause 14 and handle Confidential Information consistently with those obligations.
  3. Each party shall bear its own costs of complying with this clause 14.
Records and audit
1. For a period of two years after each Transaction Fee is paid to the Partner under this Agreement, the Merchant agrees to make and maintain such books, records and accounts as are reasonably necessary for Instant Checkout to verify the Transaction Fees.
2. No more than once each year during the Term or within one year thereafter, upon at least 30 days prior written notice to the Merchant, Instant Checkout shall have the right, at its own cost and expense, to authorise an accounting firm to audit the Merchant’s books, records, and accounts for the purposes of verifying the Transaction Fees.
3. The Merchant shall co-operate with any audit carried out under clause 15(b).
4. If an audit carried out under clause 15(b) reveals an overpayment of the Transaction Fees, then the Merchant will within seven days pay the full amount of any such overpayment to Instant Checkout.
5. Instant Checkout will bear its own costs and expenses in carrying out an audit under clause 15(b) unless the audit reveals that Instant Checkout has overpaid the Transaction Fees or otherwise failed to comply with this Agreement in any material respect, in which case the Merchant shall be liable to reimburse Instant Checkout for, all reasonable costs and expenses incurred by Instant Checkout in connection with the audit.
Termination
1. Termination of this Agreement
  1. Either party may terminate this Agreement at any time on 30 days’ prior written notice to the other party.
  2. Either party (the Terminating Party) may immediately terminate this Agreement (in whole or in part) by notice in writing to the other party (the Defaulting Party) if:
    1. the Defaulting Party commits a material breach of this Agreement; and:
      1. such breach is incapable of remedy; or
      2. such breach is capable of remedy but the Defaulting Party fails to remedy that breach within 30 days of written notice to do so;
    2. an Insolvency Event occurs in relation to the Defaulting Party;
2. Consequences of termination or expiry of this Agreement
  1. Where this Agreement is terminated or expires:
    1. the Merchant shall immediately discontinue any use of the Services, the Instant Checkout Trademarks and any Instant Checkout Material;
    2. the licences in clauses 4 and 9 terminate immediately;
    3. Merchant shall immediately pay any outstanding Transaction Fees which have accrued under this Agreement up to the date of termination;
    4. both parties shall immediately discontinue all representations or statements from which it might be inferred that any relationship exists between the two parties under the terms of this Agreement; and
    5. both parties shall promptly cease all use of, and return to the other party, all materials and Confidential Information of the other party (except where such materials and Confidential Information are reasonably required for the performance of remaining obligations under this Agreement).
    6. the Merchant is still liable for any penalties or fines incurred through the use of the Instant Checkout Service prior to termination.
  2. Termination or expiry of this Agreement does not prejudice any right of action or remedy of either party which accrued prior to termination or expiry.
Force Majeure
1. Force Majeure Event
  If a party (Affected Party) is unable to perform any of its obligations (other than an obligation to pay money) under this Agreement (Affected Obligations) as a result of a Force Majeure Event, the Affected Party:
  1. shall promptly notify the other party of the Force Majeure Event, specifying the Affected Obligations;
  2. shall diligently attempt to recommence performance of the Affected Obligations as soon as possible and use its best endeavours to mitigate the effect of the Force Majeure Event; and
  3. shall be excused from performance of the Affected Obligations until it is able to recommence performance.
2. Consequences of delay
  1. If the Affected Party is unable to perform the Affected Obligations in accordance with this Agreement for more than 60 days either the Provider or the Recipient may give the other party a notice of termination for this Agreement to the extent it relates to the Affected Obligations.
  2. No party shall be liable for any Loss of the other party caused by the termination under clause 17.2(a).
Dispute Resolution
1. General
  Subject to clause 18.4, a party shall not commence or maintain any action or proceeding regarding a dispute arising out of or relating to this Agreement (including in relation to any alleged breach, termination, validity or subject matter issues thereof), or any related claim in restitution, at law, in equity or pursuant to any domestic or international statute or law (Dispute) without complying with this clause.
2. Negotiation
  1. When either Instant Checkout or the Merchant considers that a Dispute has arisen, it may give a notice to the other party that sets out reasonable particulars of the Dispute (Dispute Notice).
  2. Upon a Dispute Notice being given under clause 18.1 the parties shall promptly refer the Dispute to their respective senior executive representatives, who shall seek in good faith to resolve the Dispute and shall confer at least twice (if required) to attempt to resolve the dispute in good faith.
3. Mediation
  1. If the Dispute is not resolved within 15 days of the Dispute Notice, either party may submit the Dispute to mediation administered by the Resolution Institute of Australia in accordance with, and subject to, the Resolution Institute Mediation Rules.
  2. Any mediation meetings and proceedings under this clause shall be held in Sydney..
  3. If the parties are unable in good faith to settle the Dispute through mediation within 30 Business Days of the mediator being appointed, either party may commence court proceedings.
4. Interlocutory relief
  Notwithstanding anything in this clause, a party at any time may commence court proceedings in relation to any Dispute arising under or in connection with this Agreement where that party seeks declaratory or urgent interlocutory relief.
General
1. Notices
  Each party may provide notice to the other by emailing or posting the notice to the email or street address listed for that other party in this Agreement. Such notice which is sent by email shall be deemed to be received on production of a successful transmission report by the machine from which email was sent (provided however that if time of deemed receipt of a notice is not on a Business Day in the receiving location, or is after 5.00 pm in the receiving location, it shall be taken to have been received at the commencement of the next Business Day in the receiving location). If the notice is sent by mail, the notice shall be deemed to have been received 3 Business Days after it is sent.
2. Governing law and jurisdiction
  1. This Agreement is governed by the law in force in New South Wales, Australia.
  2. Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum
3. Assignment and novation
  Neither party may assign or novate any of its rights or obligations under this Agreement, or attempt or purport to do so, without the prior written consent of the other party. Any purported assignment or novation by a party without the other party’s prior written consent shall be void.
4. Severability of provisions
  Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.
5. Entire agreement
  This Agreement contains the entire agreement between the parties with respect to the subject matter and sets out the only conduct relied on by the parties and supersedes all earlier conduct and prior agreements and understandings between the parties in connection with the subject matter.
6. Agreement binds successors
  Each party acknowledges and agrees that this Agreement, and each of the obligations imposed on it under this Agreement, are binding upon its successors and assigns.
7. Waiver
  No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
8. Further assurances
  Each party shall do anything necessary or desirable (including executing agreements and documents) to give full effect to this Agreement and the transactions contemplated by it.
9. Costs
  Each party shall bear its own costs arising out of the negotiation, preparation and execution of this Agreement.
10. No reliance
  Neither party has relied on any statement by the other party not expressly included in this Agreement.
11. Counterparts
  This Agreement may be executed in any number of counterparts. All counterparts together shall be taken to constitute one instrument.
12. Relationship of parties
13. This Agreement does not:
  1. constitute a partnership or a joint venture between the Merchant and Instant Checkout;
  2. authorise a party to assume or create any obligations on behalf of the other party;
  3. constitute the relationship between the Merchant and Instant Checkout as that of principal and agent; or
  4. constitute the relationship between the Merchant and Instant Checkout as that of employer and employee.
14. The Merchant shall not represent that the Merchant, or any of Merchant’s Personnel, is an agent or employee of Instant Checkout and shall ensure that its employees and representatives shall not hold themselves out as being agents or employees of Instant Checkout.
15. Survival
  Any indemnity and any obligation of confidence under this Agreement is independent and survives termination or expiry of this Agreement. Any other term by its nature intended to survive termination or expiry of this Agreement survives that termination or expiry, including clauses 1, 9, 13, 14 and 19.
Definitions and interpretation