END USER LICENSE AGREEMENT
This End User License Agreement (the “Agreement”) is a legal agreement between the licensee (“you” and “your”) and the licensor, namely OpenPayment Ltd, a company based in Seoul, Republic of Korea (“we”, “our”, and “us”).
This Agreement governs your use of our software called OpenPayment which is both:
(i) a client software meaning a software which resides on your computer and/or mobile device (“Client Software”), and
(ii) a server software meaning a software which resides on a server offering services to multiple users on a network (“Server Software”).
Client Software and Server Software shall be hereinafter collectively referred to as the “Software” the purpose of which is the tap-based phone to phone payment and authentication.
1. ACCEPTANCE OF TERMS
This Agreement applies to all our software products licensed to you. Before installing, downloading and/or using the Software, please carefully read the terms and conditions of this Agreement. By installing, downloading and/or using the Software you acknowledge that you have read, understood and agree to be bound by the terms and conditions of this Agreement including without limitation the terms of other documents and/or policies that are incorporated herein by reference. If you are accepting this Agreement on behalf of another person or company or other legal entity, you represent and warrant that you have full authority to bind that person, company or legal entity under this Agreement.
If you do not agree to the terms and conditions of this Agreement, or you do not have the necessary authority you are not authorized to install, download and/or use the Software for any purpose whatsoever. You are to promptly return the Software to the party whom it was obtained from and/or destroy all copies of the Software if it was downloaded.
2.SOFTWARE LICENSE GRANT
Subject to the terms and conditions of this Agreement, you are granted a limited, non-transferable, non-exclusive, non-sublicenseable, as-is right to install and use the Software for the term and applicable licensing fee that is associated with the particular Software product (“Software Product(s)” namely ‘OpenPayment SDK ‘, ‘OpenPayment Platform’ or ‘OpenTerminal‘, the respective features of which are further described below) you choose to purchase. Your Software license will be activated in accordance with the features of the Software Product you have elected to use. The following available Software Products have been created to provide the the tap-based phone to phone payment and authentication to a fintech service provider:
(i) OpenPayment SDK
OpenPayment SDK is designed for the tap-based phone to phone payment and authentication of a fintech service provider.
OpenPayment SDK is composed of both the Client Software Product and the Server Software Product.
Based upon the number of annual or perpetual site licenses that may be granted by the Company, the Client Software Product and the Server Software Product may be installed on several computers simultaneously, such as at a particular site or across a corporation or on the end-user’s mobile device. (“Site License”).
Alternatively, the Client Software Product and the Server Software Product may be offered on a subscription basis under a monthly or annual license being granted based on the number of users and the number of servers (“Cloud License”).
Updates, upgrades and/or Maintenance Licenses are only provided to a perpetual license holder, at an additional cost.
(ii) OpenPayment Platform
OpenPayment Platform is designed for the tap-based phone to phone payment and authentication interoperable with the Openterminal and 3rd party payment service.
OpenPayment Platform is composed of both the Client Software Product and the Server Software Product.
Based upon the number of annual or perpetual site licenses that may be granted by the Company, the Client Software Product and the Server Software Product may be installed on several computers simultaneously, such as at a particular site or across a corporation or on the end-user’s computer. (“Site License”).
Alternatively, the Client Software Product and the Server Software Product may be offered on a subscription basis under a monthly or annual license being granted based on the number of users and the number of servers (“Cloud License”).
Updates, upgrades and/or Maintenance Licenses for a perpetual license holder are provided, at an additional cost.
3. SOFTWARE UPDATES, SUPPORT AND MAINTENANCE LICENSES
3.1 At the time of purchasing a perpetual license, you will be required to purchase a maintenance license (“Maintenance License(s)”) separately, for the license term applicable to the Software Product.
3.2 The Maintenance License for the Software Product shall begin on the date of delivery of the applicable Software license.
3.3 During the term of the Maintenance License, we will make updates to the Software Product as covered by the plan available to you. An “update” shall mean a release of the Software for the specific Software Product, which becomes available from time to time. Deliveries of any updates shall be performed electronically.
3.4 The Maintenance License shall include the provision of binary (non-text) files only. Unless otherwise authorized by us in writing, the Maintenance Licenses shall be provided for the latest version of the relevant Software Product. In our sole discretion, we are not obliged to continue supporting previous or discontinued Software Product versions.
3.5 Should you require the re-installation, patching, and/or updating the Software including bug fixes, hot fixes, any latest version of the Software, checking the status of servers, or other services which require our assistance in some form, you shall remain solely responsible for this action and implementation unless you have entered into a manpower service contract (“Manpower Service Contract”) with us.
3.6 The provision of the Maintenance Licenses is based upon the following responsibilities being fulfilled by you:
(i) you agree to perform reasonable problem solving activities as we have recommended to you;
(ii) you are responsible for implementing the necessary procedures to safeguard the integrity and security of the Software and data from unauthorized access;
(iii) you are responsible for procuring, installing, and maintaining all equipment, telephone lines, communications interfaces, and any other hardware at your site and providing us with the necessary access to operate the Software Product;
(iv) you are required to implement all available and applicable software hotfixes, hotfix rollup packs, and service packs or their equivalent for the Software in a timely manner.
3.7 We cannot guarantee that the Maintenance Licenses and the Manpower Service Contracts will be provided to you under the following circumstances
(i) any alterations or additions you have performed to the Software or by a third party;
(ii) any alterations we have provided to you under another existing contract and/or order
(iii) any Software that is no longer in use or which Software licenses have expired;
3.8 By using the Software, the Maintenance License, the Manpower Service Contract or any of the services we offer (the “Services”), you agree to our collection and use of all technical information about the devices you use the Software on and any and all related software, hardware and peripherals, with the aim of assisting us in improving the Services we offer.
3.9 The Services provided to you does not include implementing or applying back ups of your data. You shall be solely responsible for maintaining the latter.
3.10 You acknowledge and agree that the Services that are provided pursuant to this Agreement can be provided from countries other than the country in which you are based. Should you prefer that the Services be provided from the country in which you reside, we confirm that we can deliver the Services to you by using our local partners and affiliates in your country. Please note that such Services are provided at an additional cost to you.
4. LIMITATIONS AND OBLIGATIONS
4.1 Except as expressly set forth in this Agreement, you are not permitted to:
(i) unbundle, transfer, sublicense, or assign your rights under this Agreement and the applicable Software Product to any other person or entity;
(ii) retain copies of any lost license keys to the Software;
(iii) modify, adapt, copy or create derivative works of the Software;
(iv) reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code for the Software;
(v) use the Software in violation of the terms of this Agreement;
(vi) infringe upon our Intellectual Property Rights;
(vii) remove any proprietary notices, labels, or marks on the Software, notwithstanding the foregoing, this Agreement shall not prevent or restrict you from exercising additional or different rights to any portions of the Software that are Open Source Software; and/or
(viii) work around any technical or security limitations of the Software.
4.2 The Software may be installed on many devices with numerous licenses, with the users utilizing one shared identity and password. However, the Software license can only be used by one user on one device. Therefore, you are permitted to install one copy of the Software on one device at a time, but you are not permitted to share the license between the devices.
4.3 To the extent permitted by applicable law, you agree to allow us to conduct audits to determine your compliance with the terms of this Agreement upon providing you with prior written notice and during normal business hours, but no more than once per year. Any audit shall not unreasonably interfere with your business activities and you accept to reasonably cooperate with us throughout the audit process. Should an audit disclose an underpayment of ten percent (10%) or more of the licensing fees owed for the period audited or other material breach of this Agreement, you agree to also reimburse us for the reasonable audit expenses.
5. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP
5.1 This Agreement confers a limited license to the Software only and does not constitute a transfer of title to, or sale of, all or a portion of the Software or the underlying intellectual property. You acknowledge that we own all right, title, and interest in and to the Software and all associated materials and services, including without limitation, the structure, organization, source code, all copyrights, patents, trade secrets, and other intellectual property rights throughout the world, in and to the original and all copies, portions, extracts, selections, arrangements, adaptations, compilations, and any derivatives of the Software, or software or content provided through or in conjunction with the Software, and all features, updates, releases, enhancements, bug fixes, workarounds, patches, updates, and all associated documentation and product packaging. Except for the license granted in this Agreement, all rights in and to the Software are reserved, and we grant no implied licenses. We retain sole ownership of all copyrights, patents, trade secrets, and other intellectual property rights throughout the world in and to the original and all copies and portions of the Software (including any features and associated services) and all associated documentation and product packaging. This Agreement governs all updates, upgrades, releases, or enhancements to the Software that may be provided to you.
5.2 You acknowledge that the Software includes features and functionalities that, replicate, store, manage, manipulate, and/or transfer electronic data and that these processes require the copying of such data, which may include digital files, software programs, and other data subject to third-party intellectual property rights, such as license agreements and/or copyrights. The requirements of license agreements vary, as do the laws and regulations governing the use and copying of data. You understand and agree that we have no knowledge concerning the data you store, replicate, manage, manipulate, or transfer through the Software and that we have no knowledge of the third-party intellectual property rights and obligations applicable to that data. You also understand and agree that this Agreement does not grant you authority or license to copy or transfer the data you store, manage, manipulate, or transfer using the Software. You acknowledge and agree that it is solely your obligation to understand and comply with legal requirements associated with such data. You represent and warrant that your use of the Software violates neither applicable third-party license agreements or intellectual property rights nor applicable international, national, state, regional, or local laws or regulations, and you shall indemnify and hold us harmless against claims, actions, costs, expenses, and liabilities arising from any claim that your use of the Software violates applicable law or third-party intellectual property rights.
6. PRIVACY AND DATA PROTECTION
6.1 We assume no responsibility for the deletion of data, loss of data, or the failure to store data. Neither do we have any obligation to monitor the use of the data transmitted or stored through the Software. We reserve the right, consistent with data privacy and other user data protection requirements applicable to the jurisdiction where data is stored, and if mandated by applicable law, regulation, legal process, or governmental order, disclose user data or other information, but only to the extent required to satisfy those laws, regulations, or orders. Unless prohibited by law or other order, we will provide reasonable notice of any such required or requested disclosure to you and reasonably cooperate to limit such disclosure to the extent allowed by law.
6.2 Personal information, usernames, passwords and prompts exchanged through the Software are protected by advanced encryption techniques. However, these security measures still require your responsible behavior in protecting your data. You shall assume the entire responsibility at all times for the supervision, management, control and confidentiality of your data and assume the entire risk for the fraudulent or unauthorized use of your data. you understand that failure to protect your data may allow an unauthorized person or entity to access the Software.
6.3 Should you believe an unauthorized disclosure and/or access has occurred, it is your responsibility to immediately notify each and every person that is affected by such unauthorized access.
7. LIMITATION OF LIABILITY
7.1 You agree that your use of the Software is at your own risk. To the maximum extent permitted by applicable law, in no event shall we or any of our third-party suppliers be liable to you for, or to those claiming through you for, any indirect, consequential, incidental or special damage or loss of any kind including, but not limited to, loss of profits, loss of contracts, business interruptions, cost of substitute goods or services, loss of or corruption of data however caused and whether arising under contract or tort (including without limitation negligence), and including without limitation any loss or damage related to any third party software even if we had been advised of the possibility of such damages. The limitations in this clause shall apply notwithstanding the failure of the essential purpose of any remedy.
7.2 If any limitation, exclusion, disclaimer or other provision contained in this Agreement is held to be invalid for any reason by a court of competent jurisdiction and we become liable thereby for loss or damage that may lawfully be limited, such liability whether in contract, tort (including without limitation negligence) or otherwise, will not exceed the following limits:
(i) for a monthly license: the limit of one (1) month’s licensing fee; and
(ii) for an annual license: the limit of one (1) year’s licensing fee; and
(iii) for a perpetual license: the limit of the licensing fees paid in the first twelve (12) months to us for the Software Product (excluding any Maintenance Licenses).
7.3 In no event shall our aggregate liability to you arising out of or in connection with this Agreement, from all causes of action and theories of liability (including without limitation negligence), exceed the following limits: (i) for a monthly license: a limit of one (1) month’s licensing fee; and(ii) for an annual license: a limit of one (1) year’s licensing fee; and(iii) for a perpetual license: a limit of the licensing fees paid in the first twelve (12) months to us for the Software Product (excluding any Maintenance Licenses).
7.4 We do not limit or exclude our liability for (i) death or personal injury caused by negligence, (ii) fraudulent misrepresentation, or (iii) any other liability to the extent that such liability cannot be excluded or limited by applicable law.
7.5 In no event will we be liable for any failure of performance due to circumstance beyond our control, including but not limited to a power outage, computer virus, malware, spyware, key logger application, system failure, fire, flood, earthquake, terrorism, act of war, or extreme weather conditions.
The Software contains trade secrets (as defined by applicable law) and are proprietary to us. You shall maintain the Software in confidence and prevent disclosure of the Software using at least the same degree of care you use for your own most critical proprietary information, but in no event less than a reasonable degree of care. You shall not disclose or provide access to the Software or any part thereof to anyone for any purpose, other than to employees or other parties authorized under this Agreement for the purpose of exercising the rights expressly granted under this Agreement.
We warrant that the Software will not be defective under normal use for a period of thirty (30) days (“Warranty Period”) from the date of delivery excluding the list of defects and limitations provided to you previously by written notice and which shall be addressed by us at our sole discretion. We will replace any defective Software returned to us within the warranty period at no charge to you. We further warrant that the Software, as delivered by us and when used in accordance with the software documentation (includes both the user and administration manual) provided by us, will substantially conform to the software documentation provided with the Software for a period of thirty (30) days from the date of delivery. If the Software does not comply with this warranty and you report such non-compliance to us within the Warranty Period, we will either repair the Software or replace the Software with software that has substantially the same functionality at our sole discretion:
This warranty excludes defects resulting from accidents, abuse, unauthorized repair or modification, enhancements or misapplication of the Software. The foregoing warranty set forth in this section is your sole and exclusive remedy for any breach of this warranty by us.
10. DISCLAIMER OF WARRANTIES
Except for the warranties described in section 9 above, the Software is provided and licensed “as is”, with all faults, and there are no warranties, representations, or conditions, express or implied, written or oral, arising by statute, operation of law, or otherwise, regarding the Software provided under or in connection with this Agreement. Unless otherwise stated in this Agreement, and to the maximum extent permitted by applicable law, our company, corporate affiliates, subsidiaries, agents, licensors, and authorized representatives disclaim all warranties and conditions, whether express, implied, or statutory, including without limitation any (if any) warranties or conditions of or related to: merchantability, durability, fitness for a particular purpose, lack of viruses, non-infringement, workmanlike effort, and lack of negligence. The Software contains technology that is not fault tolerant and is not designed, manufactured, or intended for use in environments or applications in which the failure of the Software could lead to death, personal injury, or severe physical, property, or environmental damage. This is an arm’s length transaction, you have engaged in appropriate due diligence concerning our Software, and unless this Agreement expressly provides otherwise, the entire risk arising out of use or performance of the Software remains with you. If any implied warranty is not disclaimed under applicable law, then such implied warranty is limited to thirty (30) days from the date you acquired the Software, subject to the exclusive remedy provision set forth in this Agreement. Some jurisdictions do not permit limitations on certain warranties, so the foregoing thirty (30) day time limitation on implied warranties may not apply to you. The limited warranty herein, if any, gives you specific legal rights and you may also have other legal rights which vary by jurisdiction.
This Agreement may terminate through (i) the expiration of a subscription of the Software, or (ii) a termination for convenience, or (iii) a termination for cause. Either Party may terminate this Agreement for convenience at any time by providing notice to the other Party.
If we terminate this Agreement for convenience, where you have a perpetual license of the Software, we shall refund you the licensing fee you paid on a pro-rata basis calculated over a thirty-six (36) month period from the date the licensing fee was paid. If a Maintenance License is in effect for the Software, the portion of the maintenance fee corresponding to the unused maintenance subscription shall also be refunded. If we terminate this Agreement for convenience where you are paying a subscription for the Software, we shall refund a portion of the fee on a pro-rata basis in an amount corresponding to any remaining unused period of the subscription. The foregoing refunds are subject to satisfactory proof of purchase and deactivation of the Software.
We may terminate this Agreement if you materially breach it or any other agreement you have entered into with us. A material breach shall include but not be limited to your failure to timely pay our fees when they have become due and owing to us, our authorized agent or representative, or our authorized reseller, distributor. Should we terminate this Agreement for cause, we will provide you with ten (10) days’ written notice, after which period the Agreement will automatically terminate. Upon termination of this Agreement, you shall cease all use of the Software and you shall reasonably cooperate in: (a) removing or deactivating all copies of the Software from computers on which it is installed; (b) returning or destroying all media containing the Software; and (c) satisfying all financial obligations you may have to us or our authorized reseller, or distributor.
If you terminate this Agreement for convenience or if we terminate this Agreement for cause, you shall not be entitled to return or refund of any portion of fees you paid.
12. OPEN SOURCE SOFTWARE
The Software may include components including but not limited to programs, applications, tools, utilities, libraries, and other programming codes that are made available from third parties under a free or open source software licensing model. Therefore, your use of the open source components of the Software shall be exclusively governed by the applicable open source license as indicated at https://openpayment.com/legal/open-source.
13. SYSTEM REQUIREMENTS
You acknowledge and confirm that you meet the following minimum system requirements for installing, downloading and/or using the Software:
- The minimum requirement in order to run the Client Software include: Memory 8G; CPU 2 Core; HDD 10G and an ADSL level high-speed network.
- The minimum requirements in order to use the Server Software include: Memory 8G; CPU 2 Core; HDD 10G and a Giga bit-level high-speed network
These system requirements may vary from time to time at our sole discretion.
14. GENERAL PROVISIONS
14.1 Relationship of the Parties:
The parties are independent contractors under this Agreement and expressly disclaim any partnership, franchise, joint venture, agency, employer/employee, fiduciary or other special relationship. Neither party intends this Agreement to benefit, or create any right or cause of action in or on behalf of, any person or entity other than the parties and listed Affiliates. This Agreement is not intended to create a third-party beneficiary of any kind. You must not represent to any third party that it has any right to bind us in any manner and you will not to make any representations or warranties on behalf of us.
If a court holds that any provision of this Agreement is invalid or unenforceable under applicable law, the court will modify the provision to the minimum extent necessary to make it valid and enforceable or, if it cannot be made valid and enforceable, the court will sever and delete the provision from this Agreement. The change will affect neither the validity of the amended provision nor the validity of any other provision of this Agreement, which will continue in full force and effect.
14.3 No Waiver:
A party’s failure or delay in enforcing any provision of this Agreement will not operate as a waiver of the right to enforce that provision or any other provision of this Agreement at any time. A waiver of any provision of this Agreement must be in writing, specify the provision to be waived and signed by the party agreeing to the waiver.
14.4 Force Majeure:
A Force Majeure eventmeans any event beyond a Party’s reasonable control that, by its nature, could not have been foreseen or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), acts of God, war, riot, embargoes, acts of civil or military authorities, acts of terrorism or sabotage, shortage of supply or delay in delivery by our vendors, fire, flood, earthquake, accident, radiation, inability to secure transportation, failure of communications or energy sources, malicious damage, breakdown of plant or machinery, or default of suppliers or sub-contractors.
Neither party is liable for delays or failures to perform any of its obligations under this Agreement to the extent caused by a Force Majeure Event.
Any notice given under or in relation to this Agreement must be in writing, signed by or on behalf of the party giving it, and addressed to us at the contact information provided when purchasing the Software. Notices will be considered delivered when received if delivered by hand with receipt; the next Business Day after sending it by pre-paid, nationally-recognized, overnight air courier with tracking capabilities; or five (5) Business Days after being sent by registered or certified airmail, return receipt required, postage prepaid, to the address mentioned above.
You may not sublicense, assign or transfer any rights under this Agreement without our prior written consent. Any attempt by you to sublicense, assign or transfer any of your rights, duties or obligations under this Agreement, whether directly, or indirectly by merger, acquisition or change of control, will be null and void.
14.7 Governing law:
This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the Republic of Korea law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of Seoul, Republic of Korea.
14.8 Entire Agreement:
This Agreement constitutes the entire understanding between you and us relating to the Software and supersedes all oral or written proposals, and all communications between the Parties relating to its subject-matter. We reserve the right to amend any terms of this Agreement at any time. Any amendment will be effective on the posting of an updated version at https://www.openpayment.com/legal/eula
15. CONTACT INFORMATION
Should you have any questions concerning this Agreement, you may contact us at:
Phone: +82 2 6925 0290
Address: Namsung Plaza 13F GeumChen-Gu, Seoul, Republic of Korea.