End User Licence Agreement
1. Acceptance of EULA & amendments to EULA.
1.1 The terms of this End User Licence Agreement (EULA) govern the relationship between the licensee (you) and Openpay Pty Ltd ACN 159 699 126 (Openpay) in respect of your use of the Software and the Services.
1.2 The Software and Services are offered for your use on the condition that you read and accept this document and agree to be bound by its terms.
1.3 By installing, using or accessing the Software or Services, you are considered to have accepted the terms set out in this EULA. If you do not agree with or otherwise do not wish to accept the terms set out in this EULA, do not install, use or access the Software and/or the Services.
1.4 Your use of the Software and the Services in relation to an Openpay Credit Product is subject to the applicable Openpay Credit Contract terms. To the extent of any inconsistency between the Openpay Credit Contract terms and this EULA, the terms of the Openpay Credit Contract will prevail to the extent of the inconsistency.
1.5 Openpay reserves the right to amend this EULA from time to time. Openpay will notify you of the amendments through the Software, publication at www.opy.com.au/eula or via email to you. The amendments will be effective 14 days after notification (effective date), unless Openpay is required to make the amendments effective earlier to comply with any law (in which case the effective date will be date of notification). If you do not agree to the terms of any amendments to the EULA, you may terminate the EULA in accordance with clause 11(c). Your continued access and use of the Software or Services after the effective date represents your agreement to be bound by the amended EULA on and from the effective date.
In this EULA:
Apple: means Apple Inc. of 1 Infinite Loop, Cupertino, California, USA
Business Day: means a day on which banks are open for business in Melbourne excluding a Saturday, Sunday or public holiday in that city.
Device: means a single device owned or controlled by you.
Generated content: means content generated, created, made or otherwise brought about as a result of using the Software and/or the Services.
Government agency: means any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world and includes any self-regulatory organisation established under statute or any stock exchange.
Intellectual property: means any and all present and future intellectual and industrial property rights anywhere in the world including copyright, know-how, designs, patents and trade marks, and any application or right to apply for registration of those rights
iOS app store: means the App Store operated by Apple in respect of its devices running the iOS operating system.
Openpay credit contract: means the credit contract between Openpay and you as defined in the “Openpay Customer Terms and Conditions” available at the following link: https://www.opy.com/australian-terms-conditions/
Openpay credit product: means any finance product provided by Openpay under an Openpay Credit Contract.
Provider: means a third party provider that provides you with access to the Software. Examples of potential Providers include Apple and Google Inc.
Services: means services offered by Openpay by means of the Software from time to time.
Software: means the ‘Openpay’ software application licensed by Openpay for use on compatible Devices.
Update: means an update supplied by Openpay that replaces or supplements the original Software.
3.1 Software licence.
Subject to the terms of this document, Openpay grants you a non-exclusive, non-transferable licence to:
a) use the Software on a single Device as permitted by the Usage Rules set forth in the iOS App Store Terms of Service (which can be viewed at http://www.apple.com/legal/itunes/au/terms), or such greater number of Devices as is provided for in Apple’s Usage Rules, if the Software was acquired from the iOS App Store; or
b) use the Software on a single Device, in all other cases.
Subject to clause 11, the licence granted to you in clauses 3.1 is granted for the duration you have the Software installed on the relevant Device.
a) You must not rent, lease, lend, sell, transfer, redistribute or sublicense the Software, or make the Software available over a network where it could be used by multiple Devices at the same time. If you sell or otherwise dispose of, transfer or assign any Devices containing the Software, any copies of the Software must be removed before doing so.
b) Other than as expressly provided in this document or otherwise permitted by law, you must not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Software, or any part thereof.
3.4 Intellectual Property
Openpay retains all right, title and interest to all Intellectual Property rights subsisting in the Software, any Updates, and any part thereof.
You acknowledge and agree that Openpay:
(a) is under no obligation to provide any Updates;
(b) can offer optional paid Updates;
(c) can use Updates to add, remove, modify or otherwise alter features of the Software at its sole discretion, and that such changes will not be a breach of this document;
(d) can require you to install Updates to the Software in order to continue using the Services; and
(e) can provide Updates in such a manner that the Software is unable to be reverted to its previous state.
4.2 Other software
In order to obtain, install, update, access, use, or continue to access or use the Software and/or Services, you may also be required to update third party software (such as the operating system) on your Device.
You acknowledge and agree that:
(a) Openpay is not responsible for such third party updates;
(b) such third party updates may be subject to their own terms and conditions, which Openpay strongly recommends you review prior to implementing the third party update; and
(c) if you are unable or unwilling to obtain or install such third party updates, you may be unable to obtain, install, update, access, use, or continue to access or use the Software and/or Services
5.1 Services offered via the Software
a) Subject to availability, Services provided through the Software may include:
(i) applying for an Openpay Credit Product;
(ii) making a purchase on an existing Openpay Credit Product;
(iii) marketing and information about Openpay Credit Products;
(iv) managing Openpay Credit Products; and
(v) arranging payments on Openpay Credit Products.
b) You authorise us to allow transactions and to act on any instructions received regarding any Openpay Credit Products via the Software that are made via your account.
c) Openpay can modify or cease to offer the Services, or any part thereof, at any time without prior notice to you.
d) You acknowledge that information regarding the status of your Openpay Credit Products when accessed via the Software may not always be current and up to date.
a) You acknowledge and agree that you use the Services at its own risk.
b) To the extent permitted by applicable law, Openpay does not accept liability for any claims or losses arising directly or indirectly from:
(i) a failure to provide any Software or Service, or any part thereof;
(ii) corruptions to or loss of data, errors or interruptions occurring in the course of using, or as part of, any Service or Software;
(iii) any suspension or discontinuance of any Service, or any part thereof; or
(iv) any use of the Services by other users, including any use of the Services by other users in manner which contravenes this document.
6. User Account.
a) In order to use the Software and/or the Services, or parts thereof, you will be required to create a user account.
b) Openpay may require additional personal information (including but not limited to your email address, mobile phone number and credit card details) to verify your identity, to facilitate your use and access to the Software and Services and your account and to approve certain transactions relating to Openpay Credit Products.
c) Openpay may obtain certain details about you which are held by the Provider in order to provide the information we require to create your user account.
You must ensure that:
a) no more than one user account is registered per licensed copy of the Software;
b) you do not register multiple user accounts, as an individual is only permitted to have a single user account; and
c) you do not allow multiple people to use the same user account.
a) You are responsible for protecting the confidentiality of your password.
b) You acknowledge and agree that you will be responsible for any activities engaged in using your account (including any transactions in relation to Openpay Credit Products), whether or not access is authorised by you.
c) Openpay may require that you change your password if Openpay suspects the security of your account has been breached.
6.4 Disabling of features and functionality
In the event that you fail to pay any amounts under an OpenPay Credit Contract by the due date for payment, without limiting Openpay’s other rights and remedies, Openpay may disable features and/or functionality of the Software and/or Services until such amount has been paid.
You must promptly update your account details if any of your contact details (including email address or mobile phone number) change. You will be liable for any unauthorised access or use of your account (including unauthorised transactions) which results from your failure or delay to notify us of changes to your contact details.
You acknowledge and agree that:
a) the Software and/or the Services may feature advertisements from Openpay and/or third parties;
b) Openpay may at its sole discretion introduce advertising into any Software or Services that do not presently contain advertising;
c) Openpay is not responsible for the content of any third party advertisements, nor the content of any website or other materials that may be linked to by third party advertisements, and you view such third party websites and materials at its sole risk; and
8. Your obligations.
8.1 Restricted parties
You warrant and represent that the following statements are true and correct:
a) you are not located in a country that is subject to an embargo by the governments of the United States of America or the Commonwealth of Australia; and
b) you are not included on any list of prohibited or restricted parties by the governments of the United States of America or the Commonwealth of Australia.
8.2 Third party services
a) You may be required to use certain third party services (for example, a Provider’s software marketplace) in order to obtain, install, update, access, use, or continue to access or use the Software and/or Services.
b) Access to the Software and/or Services, or parts thereof, may require your Device to be connected to the internet or require other third party services.
c) Your use of third party services may be subject to fees and separate terms and conditions, and you acknowledge that Openpay is not liable for the activities of any such third parties.
d) You must comply with any applicable third party terms of agreement when using the Software and/or Services. You are responsible for ensuring that your installation and use of the Software and/or Services does not cause you to exceed any data usage quotas or other limitations that may apply to your internet service or other services acquired from third parties.
e) The Software and Services may contain links (including via advertisements) to third party websites or other third party content or services. Those links are provided for convenience only and may not remain current or be maintained. You acknowledge that such links should not be construed as an endorsement, approval or recommendation by us of the third parties, or of any content or services provided by them, and that your use of any third party content or services may be subject to separate terms and conditions.
You agree that you will not:
a) attempt to disrupt the normal operation of the Software or Services, or any infrastructure operated by Openpay or other business activities of Openpay;
b) attempt to gain unauthorised access to the Software and/or the Services;
c) make any automated use of the Software and/or the Services;
d) impersonate any other person in using of the Software and/or Services; or
e) use the Software and/or the Services in connection with the actual or attempted contravention of any applicable laws.
9. iOS app store.
If you obtained the Software from the iOS App Store, you and Openpay acknowledge and agree that (to the full extent permitted by applicable law):
a) this document is concluded between you and Openpay only, and not with Apple, and Openpay, not Apple, is solely responsible for the Software and the content thereof;
b) Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Software, either under this document or applicable law;
c) Openpay, not Apple, is responsible for addressing any claims of you or any third party relating to the Software or your possession and/or use of the Software, including but not limited to:
(i) product liability claims;
(ii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; or
(iii) claims arising under consumer protection or similar legislation;
d) in the event of any third party claim that the Software or possession and/or use of the Software by you infringes that third party’s Intellectual Property rights, Openpay, not Apple, will be solely responsible for the investigation, defence, settlement and discharge of any such claim;
e) Apple, and Apple’s subsidiaries, are third party beneficiaries of this document; and
f) upon your acceptance of this document, Apple will have the right (and will be deemed to have accepted the right) to enforce this document against you as a third party beneficiary thereof.
Unless otherwise specified in this document or agreed pursuant to a separate written agreement between you and Openpay, Openpay will not be obliged to support the Software or the Service, whether by providing advice, training, error-correction, modifications, updates (including Updates), new releases or enhancements or otherwise, or to provide any hosting, telecommunication, internet or other services in relation to the use of the Software or the Service by you.
11. Termination and suspension.
a) The EULA can be immediately terminated by Openpay in the following circumstances:
(i) you are in breach of any term of this document;
(ii) you are in default of your Openpay Credit Contract or you elect to terminate your Openpay Credit Contract; or
(iii) you become bankrupt, are wound up or become subject to administration or receivership or any similar thing under any law.
b) Openpay may terminate the EULA if it decides to withdraw the Software from the market (in which case Openpay will endeavour to give you at least 14 days notice before doing so).
c) You may terminate this EULA at any time by deleting the Software from your Device.
d) Upon termination, you must delete the Software from your Device and any remaining copies of the Software and any associated documentation or otherwise return or dispose of such material in the manner directed by Openpay.
e) Termination pursuant to this clause will not affect any rights or remedies which a party may have otherwise under this document or at law.
f) Openpay may suspend your access to the Software or Services without notice to you where Openpay reasonably believes your access should be suspended, including where:
(i) Openpay believes that there is a risk of fraud or security breach; or
(ii) you have not accessed the Software for a period of 6 months or more.
g) If Openpay has the right to terminate the EULA pursuant to clause 11(a), it may instead of terminating the EULA:
(i) immediately suspend your access to the Software and Services;
(ii) notify you of the breach giving rise to the right to terminate and request that you rectify the breach within the period specified in that notice. If you fail to rectify the breach within this period, Openpay may terminate the EULA.
h) Nothing in this clause limits any right Openpay may have pursuant to this document to modify the Software by way of Update, including by removing or amending any features or functionality from the Software, or to modify or cease offering the Services or any part thereof.
12. Warranties, liability & indemnity.
a) You acknowledge that the Software and Services cannot be guaranteed to be error free and further acknowledge that the existence of any such errors will not constitute a breach of this document.
b) Except as expressly provided to the contrary in this document, and to the full extent permitted by applicable law, Openpay will not be liable to you for any loss, including special, indirect or consequential damages (such as loss of profits), or claim, arising out of breach of this document or arising out of the supply of defective Software or Services.
c) To the full extent permitted by applicable law, Openpay’s liability for breach of any term, condition, guarantee or warranty that is implied by law and cannot lawfully be excluded by Openpay, including the consumer guarantees set out in the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and all similar or equivalent legislation, rules and regulations, is limited to (at Openpay’s option):
(i) in the case of goods, including the Software (to the extent the Software is considered a good under applicable law) – repairing, replacing or supplying equivalent goods, or paying the cost of any of those remedies to you; or
(ii) in the case of services, including the Services – supplying the services again or paying the cost of having the services supplied again.
d) Without limiting or affecting any other provision of this document, to the full extent permitted by applicable law, Openpay’s maximum aggregate liability to you for any loss, damage, liability or expense you incur or claims you make against us in connection with this document is limited to the sum of AUD$10.
e) You acknowledge that you have exercised your independent judgment in acquiring the Software and the Services and have not relied on any representation made by Openpay which has not been stated expressly in this document or upon descriptions or illustrations or specifications contained in any document including catalogues or publicity material produced by Openpay.
f) You will indemnify Openpay against all liabilities, costs, losses, expenses which Openpay may suffer or incur in connection with any third party claims or allegations against Openpay that are caused by your breach of this document.
g) If you purchased the Software from the iOS App Store, in the event of any failure of the Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price to you. You acknowledge that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Software, and any other claims, losses, damages, costs or expenses attributable to any failure to conform to any warranty will be dealt with by Openpay in accordance with this document.
13. Intellectual property.
13.1 No transfer
This document does not constitute a transfer or conveyance of any Intellectual Property owned by Openpay as at the date of this document, including but not limited to all Intellectual Property associated with the Software and the Services, and its functionality, features and content, or operate as a future transfer of any Intellectual Property owned by Openpay any time thereafter.
You acknowledge that the Software and materials provided in the course of the Services are protected by copyright and may also be protected as other forms of Intellectual Property owned by Openpay. You will not during or at any time after the termination of this document undertake or permit any act which infringes or attempts to infringe those Intellectual Property rights and, without limiting the generality of the foregoing, you specifically acknowledge that you must not copy the Software except as otherwise expressly authorised by this document.
13.3 Reverse engineering
You must not reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile the whole or any part of the Software or the Services, or any output from the Software or any files related to the Software or the Services.
13.4 Generated Content
The Software and/or the Services may allow you to create Generated Content. To the extent that any Generated Content created by you gives rise to any Intellectual Property rights, you will retain ownership of these, and you hereby automatically grant to Openpay a worldwide, perpetual, irrevocable, royalty-free, fee-free, fully transferable and sub-licensable licence to use, exploit and modify this Generated Content in any way and for any purpose, without compensation to you. You further consent to Openpay and its successors, assigns and licensees doing anything in respect of the Generated Content which would, but for this consent, infringe your moral rights.
a) Unfortunately, no data transmission over the internet can be guaranteed as totally secure. Whilst Openpay strives to protect such information and keep your personal information confidential, it does not warrant and cannot ensure the security of any information transmitted to it by you. Accordingly, any information transmitted to Openpay is transmitted at the risk of the sender. Nevertheless, once Openpay receives transmissions from you, it will take reasonable steps to preserve the security and confidentiality of your personal information.
b) Users must take their own precautions to ensure that the process which they employ for accessing the Software and/or the Services does not expose them to the risk of viruses, malicious computer code or other forms of interference which may damage their Devices. For the removal of doubt, Openpay does not accept responsibility for any interference or damage to Devices which arises in connection with use of the Software and/or the Services.
c) You must take all reasonable steps to protect the security of your Device, including by ensuring you don’t have any viruses or other mechanisms capable of recording your passwords or access codes to the Software.
d) If you suspect that there has been unauthorised access to your account or there is any other security breach or issue relating to the Software, Services or your account, you must notify Openpay immediately (see clause 17 for contact details) and change your account password.
15. Privacy, data and geographical information.
15.1 Privacy statement
b) Openpay may collect your personal information (including through its contractors or agents) or disclose your personal information to its related companies, agents, merchants, contractors (including credit reporting bodies such as Dun & Bradstreet (Australia) Pty Ltd and Veda Advantage Ltd, organisations which provide identity verification services such as Green ID, and other intermediaries to confirm your identity using government and other databases) and debt collection agents to:
(i) provide and allow you to access and have the benefit of the Services and the Software;
(ii) allow you to apply for credit with Openpay and to access and use your Openpay account and to associate it with your Openpay Credit Products;
(iii) verify your identity (including where Openpay is required to identify you in accordance with the Anti-Money Laundering and Counter-Terrorism Financing Act 2006(Cth));
(iv) manage our Openpay Credit Products; and
(v) communicate with you.
(i) how you can seek access to the personal information Openpay holds about you (including any credit eligibility information) and seek the correction of such information; and
(ii) how you can complain about a privacy breach or a credit reporting complaint and how Openpay will deal with such complaints.
d) By entering into this EULA, you consent to Openpay collecting, using and disclosing your personal information in accordance with clause 15.
15.2 Credit reporting bodies
You have a right to request that credit reporting bodies do not use or disclose credit reporting information for the purposes of pre-screening or direct marketing by credit providers. If you have been or are likely to be a victim of fraud, you can ask a credit reporting body not to disclose credit reporting information about you.
We may seek to verify personal information about you by giving information about your identity to a credit reporting body to provide an assessment on whether that information matches personal information held by the credit reporting body. The report prepared and provided by the credit reporting body may be used for preparing such assessment. The credit reporting body may use the personal information about you, and the names, residential addresses and dates of birth of individuals on its databases, to prepare its assessment. By entering into this EULA, you indicate your agreement for us to disclose your personal information to a credit reporting body for the purposes of verifying your identity as described above.
By entering into this EULA, and unless you have previously instructed us otherwise, you consent to your personal information being used to contact you with special offers, news and information about Openpay’s and our merchant’s products, services and promotional offers, including contacting you via electronic messaging. You can opt out of receiving direct marketing communications by contacting Openpay at email@example.com.
15.4 Geographical information
If you have provided Openpay with permission to access your Device location, you consent to receiving push notifications and other electronic communications (including SMS) from Openpay if you are located near one of Openpay’s merchants, including notifications regarding promotional and special offers from Openpay and those merchants near your geographical location.
15.5 Other data
a) You cannot assign, novate or otherwise transfer any of your rights or obligations under this document without the prior written consent of Openpay which consent can be granted or withheld in the absolute discretion of Openpay. An assignment in breach of clause 16.1(a) is intended by the parties to be void and of no force and effect.
b) Openpay can assign, novate or otherwise transfer any of its rights or obligations under this document at its sole discretion, on written notice to you. Openpay may subcontract the performance of its obligations under this document to any person and without notice to you, but will remain liable to you for the performance of its obligations notwithstanding any such sub-contracting.
a) A waiver of a right, remedy or power by Openpay must be in writing and signed by Openpay.
b) Openpay does not waive a right, remedy or power if it delays in exercising, fails to exercise or only partially exercises that right, remedy or power.
c) A waiver given by Openpay in accordance with clause 16.2(a):
(i) is only effective in relation to the particular obligation or breach in respect of which it is given and is not to be construed as a waiver of that obligation or breach on any other occasion; and
(ii) does not preclude Openpay from enforcing or exercising any other right, remedy or power under this EULA nor is it to be construed as a waiver of any other obligation or breach.
If a provision in this document is wholly or partly void, illegal or unenforceable in any relevant jurisdiction, that provision or part must, to that extent, be treated as deleted from this document for the purposes of that jurisdiction. This does not affect the validity or enforceability of the remainder of the provision or any other provision of this document.
16.4 Governing law and jurisdiction
This EULA is governed by and is to be construed under the laws in force in Victoria, Australia. Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in Victoria and courts of appeal from them in respect of any proceedings arising out of or in connection with this EULA. Each party irrevocably waives any objection to the venue of any legal process in these courts on the basis that the process has been brought in an inconvenient forum.
16.5 Further assurances
You agree that you will, at your own expense, do all things and execute all further documents necessary to give full effect to this EULA and the transactions contemplated by it.
16.6 No reliance
You acknowledge and agree that you have not relied on any statement by Openpay which has not been expressly included in this document.
16.7 Entire agreement
a) This EULA constitutes the entire agreement between you and Openpay regarding access and use of the Software and Services, and subject to sub-clause (b), supersedes all prior discussions, negotiations, understandings and agreements in respect of its subject matter.
b) This EULA does not supersede any Openpay Credit Contract in respect of any Openpay Credit Product.
c) Your use of other products, Devices, software or services may be subject to further terms.
16.8 Exercise of rights
a) Unless expressly required by the terms of this document, Openpay is not required to act reasonably in giving or withholding any consent or approval or exercising any other right, power, authority, discretion or remedy, under or in connection with this document.
b) Openpay may (without any requirement to act reasonably) impose conditions on the grant by it of any consent or approval, or any waiver of any right, power, authority, discretion or remedy, under or in connection with this document. You must comply with any such conditions when relying on the consent, approval or waiver.
16.9 Clauses that survive termination
a) Without limiting or impacting upon the continued operation of any clause which as a matter of construction is intended to survive the termination of this document, clauses 3.3, 3.4, 5.2, 6.3(b), 8.3, 12, 13, 14, 15, 16.4 and this clause 16.9 survive the termination of this EULA.
b) Each indemnity offered by you in this EULA is a continuing obligation, independent from the other obligations of the parties and survives the termination of this EULA. It is not necessary for Openpay to incur expense or make payment before enforcing a right of indemnity against you under this EULA.
In this EULA unless a contrary intention is expressed:
a) headings and italicised, highlighted or bold type do not affect the interpretation of this EULA;
b) the singular includes the plural and the plural includes the singular;
c) other parts of speech and grammatical forms of a word or phrase defined in this EULA have a corresponding meaning;
d) a reference to a ‘person’ includes any individual, firm, company, partnership, joint venture, an unincorporated body or association, trust, corporation or other body corporate and any Government Agency (whether or not having a separate legal personality);
e) a reference to a document (including this EULA) includes all amendments or supplements to, or replacements or novations of, that document;
f) a reference to a party to any document includes that party’s successors and permitted assigns;
g) a reference to an agreement other than this EULA includes an undertaking, deed, agreement or legally enforceable arrangement or understanding whether or not in writing;
h) a reference to a document includes any agreement or contract in writing, or any certificate, notice, deed, instrument or other document of any kind;
i) a provision of this EULA may not be construed adversely to a party solely on the ground that the party (or that party’s representative) was responsible for the preparation of this EULA or the preparation or proposal of that provision;
j) a reference to a body, other than a party to this EULA (including an institute, association or authority), whether statutory or not, which ceases to exist or whose powers or functions are transferred to another body, is a reference to the body which replaces it or which substantially succeeds to its powers or functions;
k) the words ‘include’, ‘including’, ‘for example’, ‘such as’ or any form of those words or similar expressions in this EULA do not limit what else is included and must be construed as if they are followed by the words ‘without limitation’, unless there is express wording to the contrary;
l) a reference to ‘$’, ‘A$’, ‘AUD’, ‘dollars’ or ‘Dollars’ is a reference to the lawful currency of the Commonwealth of Australia;
m) a reference to time is to time in Melbourne, Victoria, Australia;
n) if a period of time is specified and dates from a day or the day of an act, event or circumstance, that period is to be determined exclusive of that day;
o) if an act or event must occur or be performed on or by a specified day and occurs or is performed after 5.00 pm on that day, it is taken to have occurred or been done on the next day; and
p) if anything under this EULA is required to be done by or on a day that is not a Business Day that thing must be done by or on the next Business Day
In the event that you need to contact Openpay regarding this EULA, the Software and/or the Services, please use the following details.
Openpay Pty Ltd
Level 40, 120 Collins Street, Melbourne VIC 3000, Australia
Telephone: +61 (0)3 9009 7211