Last Updated 18 September 2021
"Acceptable Use Policy" means Instant’s acceptable use policy set out in https://www.instant.sale/aup (or such other URL that Instant may provide from time to time);
"Account Balance" means amounts showing in the Supplier Account at any given time;
"Additional Services" means the services referred to in clause 5;
"Balance Currency" means the currency which you select for your Supplier Account, typically in USD, EUR or GBP;
"Buyers" means Invoiced Buyers and Checkout Buyers;
"Card" means any form of credit card, debit card or pre-paid card issued by an Issuer under a Card Scheme;
"Card Scheme" means Visa Inc, MasterCard Worldwide, Cartes Bancaires, JCB, American Express, Union Pay International, Diners Club International/Discover Network or comparable bodies which provide Cards and regulate Card acceptance and includes alternative payment methods and schemes such as PayPal;
"Chargeback" means a transaction which is successfully charged back or reversed, in whole or part on the request of a Buyer or a payment method provider pursuant to the relevant Payment Scheme Rules;
"Checkout Buyer" means an end customer who purchases the Product using the Instant Checkout;
"Buyer Terms" means the terms set out in https://www.instant.sale/terms-buyer (or such other URL that Instant may provide from time to time) which apply to both all Buyers;
"Confidential Information" means information, whether written or oral, in any form, including without limitation, information relating to the development, products, trade secrets, business plans, suppliers, customers, finances, personnel data, and other material or information considered proprietary by the disclosing party;
"Data Controller" means "Verantwortlicher" in the Bundesdatenschutzgesetz and "controller" in accordance with the General Data Protection Regulation (EU) 2016/679;
"Data Protection Legislation" means all applicable laws and regulations, as amended or updated from time to time, in Germany relating to data protection, the processing of personal data and privacy including without limitation, the Bundesdatenschutzgesetz; the General Data Protection Regulation (EU) 2016/679; and any legislation that replaces or converts into German Law the General Data Protection Regulation (EU) 2016/679;
"Intellectual Property Rights" means patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
"Invoiced Buyer" means an end customer who purchases the Product using Instant Invoicing;
"Instant" means 3D Ninjas GmbH;
"Instant Checkout" means the online checkout that Checkout Buyers use to purchase the Product, and includes payment methods such as credit card, PayPal, alternative payment methods and bank transfer;
"Instant Discount" means the margin payable to Instant for Services;
"Instant Invoicing" means Instant invoicing Invoiced Buyers for the Product and collecting payment by bank transfer or other agreed payment method;
"Payment Scheme Rules" means the collective set of by-laws, rules, regulations, operating regulations, procedures and/or waivers issued by the Card Schemes, as amended and/or supplemented from time to time;
"Product" means the Supplier's software product(s) and/or digital content agreed to be resold and distributed, and any subsequent updates and upgrades thereto and includes any associated integration or implementation costs and / or service fees;
"Sales Tax" means any indirect tax chargeable on the Product globally, including but not limited to VAT, GST, Sales Tax and Sales & Use Tax;
"Seller Agreement" means the Seller’s terms and conditions of sale in force from time to time in respect of the relevant Product;
"Services" means the services provided by Instant in terms of Clause 3;
"SRP" means the Supplier's recommended price for the Product;
"Supplier Account" means the account you will set up on the Instant platform in order to be able to use the Services;
"Supplier Dashboard" means the dashboard found at https://www.instant.sale/ (or such other URL that Instant may provide from time to time) where you are able to access your Supplier Account, view confirmed sales, amend account settings and access all reports;
"Trademarks" means your trademarks, service marks, trade names and logotypes whether registered or otherwise;
"Transaction Currency" means the currency in which the Product is sold to the Buyers; and
"URL(s)" means the address or any websites and/or mobile applications owned and operated by the Supplier where the Product will be sold using the Services, the initial URL(s0 being those which have been listed in the application form (and approved by Instant) together with any future URL(s) approved by Instant, in each case as recorded in the Supplier Dashboard from time to time.
(ii) a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
(iii) a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
(iv) a reference to a ’company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
(v) a reference to a gender includes each other gender;
(vi) words in the singular include the plural and vice versa;
(vii) any words that follow 'include', 'includes', 'including', ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
(viii) a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email);
(ix) a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time;
(x) a reference to legislation is a reference to such legislation as amended or re-enacted includes all subordinate legislation made from time to time under that legislation as amended or re-enacted.
You appoint Instant as your non-exclusive reseller of the Product across all territories and will ensure that Instant’s status as reseller is reflected on your website in a form agreed with Instant.
In terms of the appointment Instant will provide the following Services:
3.1 setting you up as a supplier of the Product on Instant's platform and establishing a Supplier Account which provides you with access to the Supplier Dashboard and allows you to view all sales made by Instant and the monies which are due to the Supplier;
3.3 product fulfilment, order support and being responsible for all aspects of Sales Tax as the reseller of the Product.
4.1 For each completed sale of the Product (excluding reversals, refunds and other Chargebacks), Instant shall pay the Supplier the SRP less:
(i) any Sales Tax due;
(ii) any payment provider fees;
(iii) the Instant Discount;
(iv) charges for any Additional Services; and
4.2 The Instant Discount shall be calculated as follows:
(i) Instant Checkout: 2% of SRP;
For the avoidance of doubt, the Instant Discount applicable to Instant Checkout set out in clause 4.2 (i) above shall be applied where the Invoiced Buyer is redirected back to the Instant Checkout (credit card, PayPal or an alternative payment method).
4.3 As Merchant of Record, Instant reserves the right to set the price or licence fee at which the Product is offered for sale to Buyers.
5.1 Charges for optional add ons are as follows (such charges being added to and forming part of the Instant Discount):
(i) Checkout Recovery: 10% of each checkout successfully recovered;
(ii) Instant Discovery: 10% success fee on initial sale from a new customer who has come via our marketing campaign or sales channel;
(iii) Managed Affiliate: any affiliate fee you agreed to pay to a third party for a successful lead;
5.2 These services are optional and can be activated via the Vendor Dashboard.
Instant is the reseller of the Product. This structure allows Instant to handle all Sales Tax collection, reporting and remittance. If required to by law Instant will withhold any and all required taxes, fees and other such amounts from sales proceeds of the Product.
(i) to market, promote, advertise, sell and facilitate access to the Product directly to Buyers; and
(ii) to access the Product to provide demonstrations to prospective Buyers, so long as such means of access is at all times under Instant's control and not left with the prospective Buyer.
7.2 Instant agrees not to:
(i) modify the Product or create derivative works thereof;
(ii) merge the products with other software or services;
(iii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code (if applicable) for the Product;
(iv) disclose to third parties the results of any bench tests performed on the Product without your prior written consent (if applicable); or
(v) otherwise use, copy or distribute the Product except as expressly allowed hereunder.
8.1 Instant agrees to provide first tier after-sales support to Buyers, this includes invoicing, handling requests for refunds, payment, reconciliation and initial order related support.
8.2 You warrant that you will provide any additional ongoing customer service support in respect of the Product including but not limited to technical and/or delivery level (e.g. Service Level Agreements).
9.1 Instant will report to you in the Balance Currency, however you will be able to access data on individual transactions in the payment currency. If a sale requires currency conversion into your Balance Currency, Instant will convert the amount at the mid-market rate provided by Open Exchange Rates at the time the payment is received from the Buyer plus a foreign exchange margin of 2% for major currencies (USD / EUR / GBP), 2.5% for CZK and DKK and 3% for all other currencies.
9.4 Where possible, Instant will make international transfers through our local ACH network and there will be no charge to you for such transfers. We are not responsible for any charges associated with the making of transfers via international bank transfer or through PayPal. A charge of $15 will be made for each international bank transfer (€15 if your Balance Currency is EUR or £15 if your Balance Currency is GBP). If you opt to receive payment in a currency different to the Balance Currency, then we reserve the right to charge a conversion margin of up to 1.5%, for the avoidance of doubt this will not be reflected in the Instant Margin which is presented in your Balance Currency. We will go to all reasonable efforts to ensure no additional fees are charged during withdrawal, but are not responsible for any charges that do occur.
9.5 If Instant is required to refund a Buyer (including through Chargebacks), Instant is entitled to receive from you the amount of the refund or Chargeback as well as any charges and fees incurred as a result of a Chargeback up to 20 GBP, USD or EUR depending on the Transaction Currency (If the Transaction Currency is any other currency, this will be based on the Supplier's Balance Currency)
9.6 Where any credit requires to be provided to a Invoiced Buyer due to service level or similar failures in the provision of the Product by you, no credit will be given to you for any previously applied Instant Discount and the Instant Discount will be applied to the gross amount of any amounts invoiced prior to deduction of any service level or similar credit.
(i) liability for refunds and Chargebacks;
(ii) any fines issued for non compliance with the Payment Scheme Rules;
(iii) breach of our Acceptable Use Policy; or
(iv) fraudulent or illegal use of our Services.
10.2 The Supplier agrees that we may exercise the right of set-off in clause 10.1 at any time without notice to the Supplier whether such liability is present or future, liquidated or unliquidated, actual or contingent. If the liability to be set off is expressed in different currencies, we may convert such liability at a market rate of exchange for the purpose of set-off. In the event such set-off does not fully reimburse us for the liability owed, the Supplier shall immediately pay us a sum equal to any shortfall.
10.3 For the avoidance of doubt, Instant is not obliged to pay any revenues associated with activities or Products which it considers in its discretion to be fraudulent or illegal under any relevant law or regulation.
11.2 If the Supplier fails to provide the Supplier Information requested in accordance with clause 11.1, we reserve the right to suspend the provision of our Services until such Supplier Information is provided.
11.3 The Supplier shall provide correct and complete URL(s) to us. The Supplier may, subject to our prior written approval, amend its existing URL(s) or add new URL(s) from time to time, in which case the same obligations as apply to existing URLs shall apply to such amended or additional URL(s).
11.4 The Supplier is responsible for correctly entering all information into the Supplier Dashboard.
12.1 You represent and warrant to Instant that:
(i) the information you have provided on the Supplier Dashboard is correct and up to date;
(iii) the Product complies with our Acceptable Use Policy and the sale of the Product is in compliance with all Payment Scheme Rules and applicable laws in the countries where the Buyers are based;
(iv) you own and operate the URL(s) listed in your application for a Supplier Account and/or as otherwise approved by Instant from time to time;
(v) you will not use the Services to facilitate the sale of Products on websites or applications other than the URL(s);
(vi) the Product is free from defect and fit for purpose;
(ix) you have complied and will continue to comply with all applicable laws, statutes, ordinances and regulations (including, without limitation, the Data Protection Legislation in respect of any Buyer data passed to you by Instant); and
(x) you will at all times comply with all applicable Instant policies.
12.2 You agree to indemnify, defend and hold harmless Instant, its employees, officers and directors, or users from and against any and all claims, liabilities, penalties, settlements, judgments, fees (including reasonable legal fees) arising from:
(i) any information that you or anyone using your account may submit or access in the course of using the Services;
(iii) any violation or failure by you to comply with all laws and regulations in connection with your use of the Services, whether or not described herein; and
(iv) any disputes in respect of the Product.
13.1 Instant disclaims any and all warranties, express, implied or statutory regarding the services to the full extent permitted by law. Without limiting the generality of the foregoing, the services are provided "as-is" and without warranties of any kind, including, without limitation, any warranties of performance or implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Further, Instant does not make, and has not made, any representation or warranty that the services are accurate, complete, reliable, current, error-free, or virus-free or that the operation of the services will be uninterrupted. Some jurisdictions do not allow exclusion of an implied warranty, so this disclaimer may not apply to you.
15.1 each party shall exercise the same degree of care to avoid the publication or dissemination of the confidential information of the other party as it affords to its own confidential information of a similar nature which it desires not to be published or disseminated, which in any event shall not be less than reasonable care.
(i) is rightfully received by the receiving party from another party without confidential obligation to such party, or
(ii) is known to or developed by the receiving party independently without use of the confidential information, or
(iii) is, or becomes generally known to the public by other than a breach of duty hereunder by the receiving party; and
(iv) furthermore, a receiving party may disclose confidential information that is required to be disclosed pursuant to a requirement of a government agency or law so long as the receiving party provides prompt notice to the disclosing party of such requirement prior to disclosure.
16.2 Each party shall comply with Data Protection Legislation. To the extent that any data or information provided by one party to the other party contains personal data within the meaning of Data Protection Legislation, the party deemed to be the Data Processor will (i) process such data and information only in accordance with the Data Controller's instructions; (ii) not transmit such data and information to a country or territory outside of the European Economic Area without the Data Controller's prior written consent unless at least one of the permitted derogations set out in the GDPR; and (iii) take such technical and operational measures against unauthorised or unlawful processing of such data and information and against accidental loss or destruction of, or damage to, such data and information as are appropriate.
Where you have no sales for a period of six (6) consecutive months (the "Dormancy Period") and there is a positive Account Balance, Instant reserves the right to charge you an account dormancy charge ("Dormancy Charge") and.or deactivate your Supplier Account. Dormant Supplier Accounts with a negative balance and no sales activity in the preceding 15 days will be deactivated immediately.
(iv) the other if the other stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so, or is unable to pay its debts (within the meaning of section 17 of the Insolvenzordnung) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction.
(i) it is required to do so by any of its payment method providers;
(ii) there is any suspected fraudulent/ criminal activity or non compliance by the Supplier of applicable laws or Payment Scheme Rules;
(iii) where the Product has a chargeback rate which is in excess of the upper limit set by the Card Schemes from time to time.
20.5 Unless otherwise expressly agreed, no delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
20.9 The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.