Merchant Platform Agreement
This Merchant Platform Agreement is made and entered into and effective on the date your registration is approved (in respect of the Basic, Pro and Business plans and as a default will be when we receive your Merchant sign up forms) and the Effective Date in respect of Enterprise Merchants (together, the plans for Basic, Pro, Business and Enterprise shall be the Optty Plan(s)).
Optty is a platform that provides a single integration to allow Merchants to access multiple forms of payment and finance.
Under the terms of this Agreement Optty agrees to provide, and the Merchant will access and use the Optty Platform available via an API or as otherwise directed by Optty (including through dedicated URLs). Optty is willing to permit the Merchant access to and use of the Optty Platform, all on the terms and conditions of this Agreement (including the applicable Optty Plans and the BC Policy and Data Policy).
The specific terms of access to the Optty Platform for the Merchant are as set out in these Terms and Conditions which include linked Support and Business Continuity (BC Policy) and Data Policies (Data Policy) (together, the Agreement).
This Agreement contains terms incorporated by reference under certain policies which will apply and be binding on the Merchant so these should be read carefully and Merchants should be aware that these may periodically change.
Capitalised terms used in this Agreement have the meanings given to them in the relevant Section unless otherwise defined.
You (the Merchant) are entering into this Agreement electronically with Optty Pte Ltd (UEN: 202007460W) with its registered office address at 160 Robinson Road, #14-04, Singapore 068914 (Optty) by accepting the application of this Agreement and registering for an Optty Plan. The relevant terms applying to any Optty Plan shall be determined by the number of Transactions and your initial selection of Optty Plan may therefore fluctuate depending on your end-customer use.
Fees will be determined by the Optty Plan a Merchant has subscribed for and the number of Transactions applicable to any Merchant. Payment will be made by direct debit directly from the Merchant’s bank account or within 7 days of receipt of an invoice from Optty. By entering this Agreement the Merchant authorizes Optty and its bank(s) to automatically debit the relevant Fees from the Merchant’s account.
Optty’s account for the purposes of this Agreement will be notified to the Merchant.
The term of the Agreement shall be subject to agreement in writing in the case of the Optty Enterprise Plan but by default shall be for an initial period of 24 months subject to the termination provisions in this Agreement. The term of this Agreement in respect of the other Optty Plans shall be for an initial period of 12 months subject to the termination provisions in this Agreement.
In the absence of any written agreement to the contrary the territory of this Agreement shall be worldwide and it shall be non-exclusive.
“Account” is defined as the end-customer’s account with the Optty Platform and/or with the Merchant. A single account is linked to a user name and password or an ID. An end-customer may have multiple accounts across a variety of the Merchant’s e-commerce offerings and website URLs. An account is linked to a single country.
“Activation Date” has the meaning given above.
"Affiliate” means, in relation to a Party, any other entity which directly or indirectly Controls, is directly or indirectly Controlled by or is under direct or indirect common Control with that Party from time to time.
"Business Day" as used in this Agreement means Monday to Friday, excluding gazetted public holidays in Singapore.
"Control" means, in relation to a person, the direct or indirect ownership of more than 50% of the voting capital or similar right of ownership of that person or the legal power to direct or cause the direction of the general management and policies of that person, whether through the ownership of voting capital, by contract or otherwise, and "Controls" and "Controlled" are to be interpreted accordingly.
“Merchant Data” is information required from the Merchant in order to deliver the Optty services. This includes Merchant and company information, payment and BNPL selections, product pricing and all other relevant information required for the use of the service derived from the Merchant’s use of the Optty Platform and the Optty Retail Control Centre or inputted directly or otherwise provided to Optty by the Merchant or any of its Users.
“Documentation” means any and all documents, data, specifications, statistics, reports, manuals, diagrams or other materials provided or otherwise made available by Optty to Merchant or its Users in connection with the Optty Platform.
“end-customer” means the end-customer of the Merchant that engages with the Merchant online commerce offerings and to whom the Optty Platform enables the choice of Merchant payment and BNPL provider and about whom Optty captures the end-customer data.
“end-customer data” means Personal Information relating to the end-customer and all other information collected from an end-customer during their engagement with the Optty Platform.
“Fees” has the meaning set forth in Section 8.1 and as elaborated on above.
"Intellectual Property Right" means: (a) copyright, patents, database rights and rights in trademarks, designs, know-how and confidential information (whether registered or unregistered); (b) applications for registration, and the right to apply for registration, for any of these rights; and (c) all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world.
"Optty Platform" means Optty’s cloud-based platform that allows a Merchant to aggregate its payment and BNPL offerings for its end-customers, efficiently allowing those end-customers to select and be verified by their chosen payment and BNPL to enable their payment to the Merchant.
“Optty Retail Control Centre” means the Merchant-interface and dashboard relating to transactional activity happening through the Optty Platform.
“Personal Information” information that may be used to readily identify or contact you as an individual person, such as: name, address, email address, or phone number, payment account and other financial details. Personal Information does not include information that has been anonymised such that it does not allow for the ready identification of specific individuals.
“Services” means collectively, the Services available via the Optty Platform, Optty Retail Control Centre and and associated API access modules.
“Source Data” means the platform, website, system or files where Optty obtains the end-customer data.
“Support Services” means the maintenance and support services set forth in the BC Policy.
“Term” has the meaning set forth above depending on the applicable Optty Plan.
“Transaction” any engagement between an end-customer and the Merchant enabled by the Optty Platform which results in a payment being made.
“Transaction Data” is the data that is transferred between the end-customer, payment and BNPL provider and Merchant via the Optty Platform surrounding each Transaction. This includes but is not restricted to: payment and BNPL selection, terms of payment and BNPL offering, payment and BNPL identity, payment details, log-in, other end-customer data, transaction value, product type and other Merchant Data. “User” means Merchant’s directors, officers, employees, contractors and any other Merchant users who are authorised for access and use of the Optty Platform.
“User Acceptance Testing” means the test integration process to create a functioning Optty Platform offering by reference to the Merchants online commerce offering(s)
“Warranty Period” means the period of 14 days commencing on the Activation Date or such other period agreed in writing by Optty and Merchant.
2. ACCESS AND RESTRICTIONS.
2.1 Access. Subject to the terms and conditions of this Agreement, Optty hereby grants to Merchant during the Term a limited, non-exclusive, non-transferable Licence, without the right to sub-Licence, to access and use the Optty Platform solely in the manner permitted hereunder and solely for Merchant’s business purposes, and not for the benefit of any other person or entity. The provision of access shall not involve any express of implied transfer or licence or grant of Intellectual Property Rights
2.2 Restrictions. Merchant shall not, directly or indirectly, and Merchant shall not permit any User or third Party to, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Optty Platform; (ii) modify, translate, or create derivative works based on any element of the Optty Platform or any related documentation; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to access and/or use the Optty Platform; (iv) access and/or use the Optty Platform for time sharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Merchant in accordance with Section 2.1 (Access); (v) remove any proprietary notices from the Documentation; (vi) publish or disclose to third parties any evaluation of the Optty Platform without Optty's prior written consent; or (vii) access and/or use the Optty Platform for any purpose other than its intended purpose.
3. ACCESS; ACTIVATION DATE.
Subject to the terms and conditions of this Agreement, Optty agrees to provide Merchant with continuous access to the Optty Platform and the Optty Retail Control Centre via the Internet commencing on the “Activation Date”.
4. DATA; SECURITY.
4.1 Passwords. Optty will issue to Merchant and/or authorise a Merchant account manager to create and issue to each User, a user login and password for access and use of the Optty Platform. Merchant and its Users are responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the User to which it was issued. Merchant is solely responsible for any and all access and use of the Optty Platform and Optty Retail Control Centre that occurs under Merchant’s account. Merchant shall restrict its Users from sharing passwords. Merchant agrees to immediately notify Optty of any unauthorised use of Merchant’s or any User’s account and/or login and password, or any other breach of security known to Merchant. Optty shall have no liability for any loss or damage arising from Merchant’s failure to comply with the terms set forth in this Section.
4.2 Merchant Data. Merchant, not Optty, shall be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and right to use all data and information that is derived from, or provided by, the Merchant and its Users engagement with the Optty Platform or that is otherwise gathered by the Optty Platform from Merchant’s computer hardware, software, modems, routers and other communications equipment in the course of Merchant and its Users use of the Optty Platform (Merchant Data as defined above). Optty shall have the right to use Merchant Data (other than Personal Information in individual or aggregate form) (a) to the extent and in the manner required by applicable law or regulation, and (b) for purposes of data gathering for analysis and support services (c) product and service enhancement and (d) marketing; provided that Optty shall not advertise, market or otherwise disclose to any third parties information that may be business sensitive to the Merchant (such as the Fees, Transaction Data or Transaction volumes), without the prior written approval of Merchant.
4.3 end-customer data. Optty undertakes to anonymise all end-customer data and to keep such information secure in line with best industry practice. Optty also undertakes to only collect and store end-customer data as permitted by law. The Merchant understands that Optty will only share such end-customer data with the Merchant as permitted by law and in accordance with global best practice, including but not limited to GDPR and applicable US legislation in respect of US-domiciled Merchants and end-customers. Any such end-customer data that is to be shared is liable to be subject to tokenisation and aggregation to reduce the risks of sharing Personal Information. Optty accepts no liability for any action of omission taken by the Merchant in regard of any shared end-customer data.
4.4 Transaction Data. To the extent that Transaction Data comprises end-customer data or Merchant Data the preceding provisions shall apply and in any event, Optty shall keep secure Transaction Data and only share such data in line with applicable law and industry best practice and to enable the Merchant to understand the relative performance of its payment and BNPL providers.
4.5 Security. Optty will deploy reasonable security precautions intended to protect against unauthorised access to any Merchant Data, Transaction Data and end-customer data stored by Optty in connection with Merchant or its end-customers interaction with the Optty Platform. Optty will exercise reasonable efforts to deploy corrections within the Optty Platform for security breaches made known to Optty.
4.6 No Circumvention of Security. Neither Merchant nor any User or end-customer introduced by the Merchant may circumvent or otherwise interfere with any user authentication or security of the Optty Platform. Merchant will immediately notify Optty of any breach, or attempted breach, of security known to Merchant.
4.7 No Guarantee of Security. Merchant acknowledges that, notwithstanding the security precautions deployed by Optty, the use of, or connection to, the Internet and cloud-based systems located on service provider infrastructure and in data centres provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Optty Platform and Merchant Data, Transaction Data and end-customer data. Whilst Optty cannot and does not guarantee the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet, Optty will exercise reasonable commercial efforts to ensure data integrity and compliance with relevant security and privacy regulations (such as GDPR) where appropriate.
5. MERCHANT OBLIGATIONS.
5.1 Technology and Integration. Merchant is responsible for (i) obtaining, deploying and maintaining all computer hardware, software, e-commerce portals and websites, modems, routers and other communications equipment necessary for Merchant and its Users and end-customers to access and use the Optty Platform and Optty Retail Control Centre via the Internet; (ii) maintaining its integration with the Optty Platform through its e-commerce portals and websites by maintaining the “click-through” functionality allowing end-customers to redirect to the Optty Platform as parfait of the checkout flow; and (iii) paying all third Party fees and access charges incurred in connection with the foregoing.
5.2 Conduct. All use of the Optty Platform shall be in accordance with, and subject to, Optty’s terms of service as set out in this Agreement and the Appendices which are also accessible at www.Optty.com. The provisions set out in the relevant policy appendices may be updated, revised or supplemented from time to time in Optty’s sole discretion.
5.3 General Obligations of Merchant. Merchant will make reasonable efforts to ensure its online commerce offerings and websites that are integrated into the Optty Platform are not changed so as to affect the performance and availability of the Optty Platform. Any proposed changes shall be notified to Optty not less than 30 days in advance of any such change taking effect, and the Merchant shall undertake to adhere to Optty recommendations to ensure the continued optimised functionality of the Optty Platform integration.
Merchant acknowledges their obligation to ensure that, as far as possible, any data (Transaction Data or end-customer data) that it receives from Optty remains in the form provided and Personal Information is not derived from such data, and that any such data is kept secure to a standard as required by law and in line with industry best practice.
Upon making any material change to any information, detail or process that Merchant has disclosed to Optty which will or might affect the Optty Platform or the terms of this Agreement (for example requiring further technology work by Optty) Merchant will notify Optty of all and any such changes not less than 30 days in advance of any such change taking effect.
Merchant is solely responsible for the goods and services that they offer for sale to end-customers, including ensuring they have the right to sell all goods and/or services and for complying with its obligations to end-customers in accordance with legal obligations in the Territory (including all end-customer payment and e-commerce support), and the accounting and payment of all applicable taxes, levies and duties in connection with the sale, import, export and delivery of the products and services that it sells.
Merchant will not (and will procure that its Users will not) use any knowledge of the Optty Platform and Optty's business for their own benefit, or the benefit of any other person or entity, or divulge to others such knowledge, or disparage Optty or the Optty Platform.
In connection with its obligations under this Agreement, Merchant will comply with applicable laws, including those governing the sale of goods and services, and those relating to anti-bribery and corruption (including the UK Bribery Act, the US Foreign Corrupt Practices Act and the Singapore Prevention of Corruption Act), and will have in place all policies and procedures needed to ensure compliance with such applicable laws.
Merchant will cooperate with Optty in all matters relating to the integration of the Optty Platform, including as reasonably required signing all documents and doing all other acts which may be necessary to give full effect to this Agreement, and will punctually pay all Fees due and payable to Optty under this Agreement.
To the extent that the Merchant has already integrated payment and BNPL provider(s) directly into its website or other online channels, it will cooperate with Optty to efficiently and in compliance with the terms of its agreements with such payment and BNPL provider(s), or seek to amend such agreements as may be reasonably deemed necessary, allow the offering of such payment and BNPL provider through the Optty Platform. The Merchant will take sole responsibility for any such interaction with the payment and BNPL provider(s) and will remain liable to such provider(s).
5.4 Payment and BNPL Providers, Marketplaces and Data Sources:
(a) Merchant hereby authorises Optty on the Merchant’s behalf to collect end-user data in accordance with the terms of this Agreement (including the Data Policy).
(b) Merchant acknowledges that The Merchant is solely responsible for opening and maintaining in good standing all necessary accounts with payment and BNPL providers, even where such access is provided directly through opt-ins or selections made through the Optty Platform, including by paying all associated fees and expenses or allowing such deductions from amounts incurred in Transactions facilitated by any payment and BNPL provider(s) and agreeing to and complying with all applicable requirements of and obligations imposed by such payment and BNPL provider(s). Such Merchant responsibility shall apply regardless of whether Optty has been provided with a limited agency power to agree to the terms (including any standard percentage fees in line with published rate cards) on Merchant’s behalf, as may be granted for the purposes of integrating such payment and BNPL provider only, by the Merchant’s selection of that or those payment and BNPL provider(s) through the Optty Platform.The Merchant will remain liable for all fees and expenses payable to the payment and BNPL provider(s).
(d) The availability of any payment and BNPL provider through the Optty Platform will or may depend on the Merchant complying with such payment and BNPL provider’s terms and conditions. Should the Merchant not meet the requirements of any such payment and BNPL provider then it may not be possible for end-customers to access such payment and BNPL provider through the Optty Platform. In all cases Optty is not liable for ensuring that the Merchant meets the requirements of any payment and BNPL provider, save that it will use reasonable efforts to assist and inform the Merchant to enable the availability of such payment and BNPL provider.
(e) The provisions set out at section 5.4 (b)-(d) shall apply in connection with any third Party marketplace integrations facilitated or available through the Optty Platform (eg Shopify, Magento2, Big Commerce etc) as if references to payment and BNPL providers in such sub-sections were replaced with references to the relevant third Party marketplace(s).
6.1 Performance. Optty is a technology platform and as such is an enabler of commercial offerings between a Merchant and its end-customers. It does not provide qualitative or consultancy services. However, to maximise the offering and the Merchant's benefits of integrating the Optty Platform, Optty shall pursuant to the terms and conditions of this Agreement use commercially reasonable efforts to assist the Merchant and end-customers in their experience of the Services. Should additional services be required or asked for by the Merchant Optty reserves the right to provide such services either for additional payment or by way of an increase in the Transaction Fees payable by the Merchant as may be agreed in writing between them. The Merchant shall not be liable for increased payments, nor Optty for the provision of additional Services until such time as they are agreed in writing.
7. SUPPORT SERVICES.
7.1 Performance. Following the Activation Date, Optty will use commercially reasonable efforts to provide the Support Services as set out in BC Policy.
8. FEES AND PAYMENT.
8.1 Fees. Merchant shall pay to Optty the subscription fees and charges applicable to the Optty Plan or use of the Optty Platform and access to the Optty Retail Control Centre.
Changes in Fees. Optty reserves the right to change the fees on each 12 month anniversary of the Effective Date during the Term. Any change to the Fees shall be effective on the provision of 30 days’ notice in writing. Such changes may be as a consequence of the amendment of the applicable rate card or because of the unique circumstances attaching to a particular Merchant. And such Merchant’s Transaction volumes may means the Fees payable change more frequently as the applicable Optty Plan might vary.
8.2 Payment Terms. Merchant shall make payment to Optty for the Fees on the terms set forth in this Agreement.
8.3 Taxes. All Fees payable hereunder are exclusive of any and all taxes, duties and other fiscal charges arising out of the performance of the Services or under this Agreement, including but not limited to sales tax, use tax, withholding tax, goods and services tax (GST), value-added or similar tax, and property taxes wherever such taxes or equivalent fees and charges may arise or be imposed by law (collectively, “Taxes”). The Merchant shall not deduct or withhold any Taxes from payments due Optty. Merchant agrees to indemnify and hold Optty harmless from any Taxes assessed or levied in any jurisdiction except for taxes based upon or determined by reference to Optty’s income or level of business activity.
9.1 Optty Materials. Optty has and shall retain ownership of all right, title and interest in and to the Optty Platform, the Optty Retail Control Centre the Documentation and all Intellectual Property Rights embodied in the Optty Platform, Optty Retail Control Centre and Documentation, including any modifications thereof, whether or not made at Merchant’s request, and all know-how, concepts, methods, programming tools, inventions, and computer source code developed by Optty in connection with the foregoing.
9.2 Merchant Materials. Merchant retains all right, title and interest in and to any materials which Merchant provides to Optty in the performance of this Agreement, and any aspects of its technology with which the Optty Platform is integrated (including but not limited to its websites or other e-commerce platforms, measurement systems and any access code required to deploy the Optty Platform or map end-customer Transactions) and all Intellectual Property Rights therein (the “Merchant Materials”).
10.1 Merchant Materials Warranty. Merchant represents and warrants that Merchant has the right (including in respect of all relevant Intellectual Property Rights) to provide Optty with the Merchant Materials, including for use in performing the Services and making the Optty Platform and any payment and BNPL provider available to the Merchant hereunder.
10.2 Optty Platform Merchant Acceptance. The Optty Platform shall be considered delivered and accepted on the Activation Date. After the expiry of the Warranty Period the Support Services agreed in the BC Policy shall apply.
10.3 Services and Access. Optty warrants that the Optty Platform integration will be performed in a good and workmanlike manner and will meet the specifications agreed in the context of the applicable Optty Plan. Optty further warrants that the Optty Platform access shall be provided in a manner which complies with all applicable laws so far as they apply to Optty. If problems arise during User Acceptance Testing or in the Warranty Period, Optty shall correct such problems or terminate this Agreement at no additional cost to Merchant.
10.4 Exclusions. The warranties set forth in Section 10.2 and 10.3 do not cover defects or non-conformities arising from modifications to or misuse of the Optty Platform or any changes made to the Merchant-side technology., Correction for difficulties or defects traceable to changes in the Merchant’s set up shall be payable by the Merchant as an additional payment or by way of an increase in the Transaction Fees payable by the Merchant as may be agreed in writing between them.
10.5 Disclaimer of Other Warranties. The express warranties stated in section 10 above are the sole and exclusive warranties made by Optty under this Agreement or relating to the Optty Platform, the Optty Retail Control Centre, deliverables, Documentation, and Services. There are no other warranties with respect to the Optty Platform, the Optty Retail Control Centre, deliverables, Documentation, and Services or any other services provided under this agreement, whether express, implied, or statutory, including but not limited to all warranties of merchantability, fitness for a particular purpose, satisfactory quality, compliance with description, title, accuracy, reliability, non infringement, or whether arising from course of dealing, usage, trade practice or any other manner. No agent of Optty is authorised to alter or expand the warranties of Optty as set forth herein. Optty does not warrant that the Optty Platform, the Optty Retail Control Centre, deliverables, Documentation, and Services are or will be uninterrupted or error free. Merchant acknowledges and agrees that the Optty Platform and deliverables (as with technology generally), may have errors (or “bugs”) and may encounter unexpected technical problems. Accordingly, from time-to-time, Merchant may experience downtime and errors in the operation, functionality or performance of the Optty Platform and deliverables. Accordingly, Merchant shall put in place reasonable internal procedures and processes to enable it to minimize any inconvenience and any adverse impact of any such downtime or error. Details of the Optty processes in regards to business continuity are set out in the BC Plan.
10.6 Data Loss. Merchant acknowledges that due to the complexity of the Optty Platform and the nature of the data being monitored by Optty as between the Merchant, end-customers and the payment and BNPL providers and the nature of the Optty Retail Control Centre, it is possible that unintentional loss or corruption of data is a consequence. Merchant assumes all risks of such data loss or corruption. The warranties provided in this Agreement do not cover any damages or losses resulting from data loss or corruption.
10.7 Financial Regulation. Merchant acknowledges that Optty is not and will not be regulated as a financial intermediary or in any other context relating to the provision of financial services or technology related to the provision of consumer facing payment option and any compliance with applicable legislation relating to the provisions on payment and BNPL options in the context of end-customer Transactions sits with the payment and BNPL providers and/or the Merchant themselves.
11. LIMITATION OF LIABILITY.
11.1 No Consequential Damages. Optty shall not be liable for any indirect, incidental, special, consequential or punitive damages, or any damages for lost data, business interruption, lost profits, lost revenue or lost business, arising out of or in connection with this agreement, even if optty has been advised of the possibility of such damages, including without limitation any such damages arising out of the access, provision or use of the Optty Platform, the Optty Retail Control Centre, deliverables, Documentation, and Services. Optty will not be liable for the cost of procurement of substitute goods or services.
11.2 Limits on Liability. Optty shall not be liable for cumulative, aggregate damages greater than (1) the sum of the amounts having then actually been paid by Merchant to Optty under this Agreement in respect of the quarter preceding the date the claim arose, minus, in all circumstances, any amounts previously paid (as of the date of satisfaction of such liability) by Optty to Merchant in satisfaction of any liability for damages under this Agreement. Merchant releases Optty from all obligations, liability, claims, or demands relating to the Optty Platform, the Optty Retail Control Centre, deliverables, Documentation, and Services and this Agreement in excess of the limitation provided for in this section 11.2.
11.3 Applicability. The Parties acknowledge that the limitations set forth in Section 10 (Warranties) and this Section 11 (Limitation of Liability) are integral to the amount of Fees charged by Optty in connection with the Optty Platform, the Optty Retail Control Centre, deliverables, Documentation, and Services rendered hereunder and that, were Optty to assume any further liability other than as set forth herein, such Fees would of necessity be set substantially higher. The limitations set forth in Section 10 (Warranties) and this Section 11 (i) shall apply to the maximum extent permitted by applicable law, (ii) shall apply even if an exclusive or limited remedy stated herein fails of its essential purpose, and (iii) are an essential element of the basis of the bargain between the Parties.
12.1 Definition. “Confidential Information” means: any and all information, data and material provided by one Party (the “Discloser”) to the other Party (the “Recipient”) under this Agreement that is (1) end-customer data, Merchant Data, Transaction Data or relates to Intellectual Property Rights of either Optty or Merchant or which is otherwise marked as ‘confidential’ or with a similar designation or is otherwise reasonably understood to be confidential or proprietary at the time of disclosure, or (2) is created, developed or generated by the Recipient through inspection or use of the foregoing. Notwithstanding the foregoing, Confidential Information of a Party shall not include information that the other Party can establish by written documentation (a) to have been publicly known prior to disclosure of such information by the Discloser to the Recipient; (b) to have become publicly known, without the fault of the Recipient, subsequent to disclosure of such information by the Discloser to the Recipient; (c) to have been received by the Recipient at any time from a source, other than the Discloser, rightfully having possession of and the right to disclose such information; (d) to have been otherwise known by the Recipient prior to disclosure of such information by the Discloser to the Recipient; or (e) to have been independently developed by employees or agents on behalf of the Recipient without access to or use of any Confidential Information of the Discloser.
12.2 Obligations. During the term of this Agreement, and for a period of five (5) years following the expiration or earlier termination hereof, each Recipient shall maintain in confidence all Confidential Information of the Discloser and shall not use, grant the use of or disclose to any third Party such Confidential Information other than for the purpose of exercising its rights under this Agreement or as otherwise expressly approved in writing by the Discloser. The Recipient may disclose Confidential Information of the Discloser only to its directors, officers, employees and contractors on a need to know basis in connection with the Recipient’s performance under this Agreement, provided that such personnel have agreed in writing to obligations of confidentiality and non-use with respect to such Confidential Information no less restrictive than those set forth herein. Without limiting the foregoing, each Recipient shall use at least the same degree of care in protecting the Confidential Information of the Discloser that it uses to prevent the disclosure of its own confidential information of like importance, which care shall be no less than reasonable care. Each Recipient shall notify the Discloser promptly upon discovery of any unauthorized use or disclosure of the Discloser’s Confidential Information.
12.3 Confidentiality of Agreement. This Agreement and any amendments to any Optty Plan or the BC Policy or Data Policy, as well as any and all correspondence between the parties relating to the existence or substance of this Agreement shall be considered and treated as “Confidential Information”. Neither Party shall disclose the contents of this Agreement to third parties unless permitted to do so pursuant to Section 12.4 (Permitted Disclosures) below or otherwise approved in writing by the non-disclosing Party.
12.4 Permitted Disclosures. The Recipient may use or disclose Confidential Information of the Discloser to the extent the Recipient is legally compelled to disclose such Confidential Information by applicable law, regulation or court order, provided, however, that prior to any such compelled disclosure, the Recipient shall give the Discloser reasonable advance notice of any such disclosure and shall cooperate with the Discloser in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Discloser’s Confidential Information.
13.1 Indemnification by Optty.
(a) Defense and Indemnity. Optty shall, subject to the terms and conditions set forth in this Agreement, (i) defend Merchant from and against any and all third Party claims, actions, suits, demands or proceeding brought against Merchant (a “Claim”) alleging that the Optty Platform infringes any patent as of the Effective Date or any copyright, or misappropriates any trade secret of a third Party, and (ii) indemnify and hold harmless Merchant against any damages awarded to the third Party bringing the Claim or any settlement amount approved by Optty in writing and paid to the third Party bringing the Claim in order to settle the Claim. Optty’s obligations under this Section are conditioned upon (1) Optty being promptly notified in writing of such Claim, (2) Optty having the exclusive right to control the defense and/or settlement of the Claim, and (3) Merchant providing all reasonable assistance (at Optty’s expense and reasonable request) in the defense of the Claim. In no event shall Merchant settle any Claim without Optty’s prior written approval. Merchant may, at its own expense, engage separate counsel to advise Merchant regarding a Claim and to participate in the defense of the Claim, subject to Optty’s right to control the defense and settlement.
(b) Mitigation. In the event of any such third Party Claim or threat thereof, Optty, at its sole option and expense, may (i) procure for Merchant the right to continue to use the allegedly infringing Optty Platform, or (ii) replace or modify the Optty Platform with functionally equivalent software. If neither subpart (i) nor (ii) of this paragraph is commercially reasonable or practical in the reasonable opinion of Optty, Optty may terminate this Agreement with respect to the Optty Platform, and the Licence thereto granted hereunder, upon fifteen (15) days written notice to Merchant. In the event of such termination, Optty shall refund to Merchant any Fees paid to Optty by Merchant for use of the Optty Platform following the date of such termination.
(c) Exclusions. Notwithstanding anything to the contrary in this Agreement, Optty shall have no obligations to Merchant pursuant to this Section 13.1 (Indemnification by Optty) with respect to any infringement or alleged infringement resulting or arising from (1) any modifications to the Optty Platform made by any person or entity other than Optty that is not previously approved by Optty, (2) any use of the Optty Platform by Merchant or its Users beyond the scope of the express access granted in this Agreement, (3) any use of the Optty Platform in combination with other software, hardware or data, or (4) Optty’s compliance with Merchant’s request for changes to the Optty Platform or with Merchant’s designs, specifications or instructions, or (5) any claims against the Merchant for breach of contract by any pre-existing payment and BNPL provider(s).
(d) Sole Remedy. the foregoing states the entire liability of Optty with respect to the infringement of any Intellectual Property Rights by the Optty Platform or otherwise, and Merchant hereby expressly waives any other liabilities or obligations of Optty with respect thereto.
13.2 Indemnification by Merchant. Merchant shall indemnify, defend, and hold harmless Optty and its directors, officers, employees, agents and contractors from any and all claims, losses and liabilities (i) accruing or resulting to any person, firm or corporation for personal injury or tangible property damage by reason of Merchant’s or Merchant’s employees’ or contractors’ negligence, gross negligence or willful misconduct in performance of this Agreement, (ii) accruing or resulting from Merchant’s breach of any representations, warranties or covenants under this Agreement, or (iii) accruing or resulting from the provision or use by the Merchants of any Merchant Data, Transaction Data or end-customer data while using or accessing the Optty Platform or derived from the Optty Retail Control Centre, or (iv) attaching to Optty as a consequence of any breach by the Merchant or any of its payment and BNPL providers of the legislation or required regulation referred to in section 10.7.
14. TERM AND TERMINATION.
14.1 Term. This Agreement shall commence on the Effective Date and unless earlier terminated as set forth below, shall continue for the initial term described above by reference to the applicable Optty Plan (the “Initial Term”). Following the Initial Term, this Agreement shall automatically renew for consecutive terms equal in duration to the Initial Term (each a “Renewal Term”), unless earlier terminated as set forth below. The Initial Term and all such Renewal Terms are collectively referred to herein as the “Term”. Either Party may terminate this Agreement by providing the other Party at least ninety (90) days prior written notice of termination.
14.2 Events of Default. This Agreement may be terminated by either Party if any of the following events of default (“Events of Default”) occur: (1) if the other Party materially breaches any provision of this Agreement which shall explicitly included any non payment of Fees; (2) if the other Party fails to strictly comply with the provisions of Section 12 (Confidentiality) or Merchant makes an assignment in violation of Section 17.12 (Assignment); (3) if either Party becomes insolvent or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; (4) if a petition under the bankruptcy laws or regulations of any applicable country or jurisdiction, as they now exist or as they may be amended, is filed by either Party; or (5) if such a petition is filed by any third Party, or an application for a receiver is made by anyone, and such petition or application is not resolved favorably within ninety (90) days. For the avoidance of doubt, upon termination of this Agreement upon an Event of Default, each Party shall be entitled to all remedies available to such Party at law or in equity, subject to the terms in this Agreement.
14.3 Effective Date of Termination. Termination due to failure to strictly comply with the provisions of Section 12 (Confidentiality) or for non payment of Fees shall be effective immediately upon written notice to the breaching Party. Unless otherwise provided herein, in the event of any other type of Event of Default, termination shall be effective upon written notice to the breaching Party after such Party has received prior written notice describing the Event of Default that has occurred, and such Event of Default continues and remains uncured for a period of (i) thirty (30) days following written notice.
14.4 Obligations upon Termination. Upon notice of termination of this Agreement, (i) Merchant shall pay to Optty any Fees through the date of termination on account of Fees estimated as being payable for such notice period; and (ii) each Recipient shall (a) return to the Discloser, or at the Discloser’s option, Recipient shall destroy, all items of Confidential Information (including with respect to Optty’s Confidential Information, all Documentation) then in the Recipient’s possession or control, including any copies, extracts or portions thereof, and (b) upon request shall certify in writing to Discloser that it has complied with the foregoing in paragraph (ii) of this section.
14.5 Survival. This Section and Sections 2.2 (Restrictions), 4.3 (end-customer data), 4.7 (Security), 8 (Fees and Payment) (to the extent of any outstanding Fees owing as of the date of notice of termination), 9 (Ownership), 10.5 (Disclaimer of Other Warranties), 10.6 (Data), 10.7 (Regulation), 11 (Limitation of Liability), 12 (Confidentiality), 13 (Indemnification), 14.4 (Obligations Upon Termination), 15 (Dispute Resolution) and 17 (General) shall survive the termination of this Agreement for any reason.
15. DISPUTE RESOLUTION.
15.1 Except as provided in Section 16 (Injunctive Relief) below and unless otherwise required in order to comply with deadlines under the law, if any dispute, controversy or claim arises out of or relates to this Agreement (a “Dispute”), the following shall apply:
(a) either Party may give notice to the other of that Dispute and the parties shall within seven (7) days convene a joint meeting of their respective nominated representative to attempt in good faith to resolve the Dispute; and
(b) in the event that the Dispute has not been settled within fourteen (14) days following the meeting of the Parties’ representatives, the Parties hereby agree to submit such Dispute to be finally resolved by binding arbitration in accordance with, and subject to the Arbitration Rules of the Singapore International Arbitration Centre (SIAC) by one (1) arbitrator experienced in the subject matter of this Agreement and appointed in accordance with such rules. Any such arbitration shall be held in Singapore. The arbitrator shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration in such equitable manner as he or she determines. Judgment upon the award so rendered may be entered in any court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. In no event shall a demand for arbitration be made after the date when institution of a legal or equitable proceeding based upon such Dispute in question would be barred by the applicable statute of limitations.
16. INJUNCTIVE RELIEF.
Notwithstanding the provisions of Section 15 (Dispute Resolution) above, or anything contained in this Agreement or any agreement to the contrary between the Parties,, Optty and Merchant hereby acknowledge and agree that damages at law may be an inadequate remedy for the breach of any of the covenants and promises contained in Section 2.2 (Restrictions) , Section 4.4 (No Circumvention of Security) , Section 5.2 (Conduct) , Section 9 (Ownership) and Section 12 (Confidentiality). Accordingly, Optty and Merchant hereby agree that either Party shall be entitled to seek temporary and permanent injunctive relief with respect to any such breach without the necessity of proving actual damages, including specific performance of such covenants and promises or any order enjoining Optty or Merchant from any threatened, or from the continuation of any actual, breach of such covenants or promises. The rights set forth in this Section shall be in addition to any other rights which the parties may have at law or in equity, subject to the terms and conditions in this Agreement.
17.1 Notices. All communications (including notices, consents, approvals, requests and demands) between the Parties in connection with this Agreement must be via email to finance@Optty.com or addressed to the respective Party’s email as nominated and as set forth in the signature block below in the case of the Merchant. Each Party may update its contact details from time to time during the Term by providing email notice to the other Party in accordance with this Section. For the avoidance of doubt, reference to agreement in writing shall include email.
17.2 No Solicitation of Employees. Each Party agrees that, during the term of this Agreement, and for a period of one (1) year following the termination of this Agreement, it will not directly solicit for employment the employees of the other Party without such other Party’s prior written consent.
17.3 Compliance with Laws. Each Party agrees to comply with all applicable laws and regulations of Singapore and any other applicable countries or jurisdictions in the exercise of its rights and performance of its obligations under this Agreement.
17.4 Relationship of the Parties. The relationship of Optty and Merchant established by this Agreement is that of independent contractors, and nothing in this Agreement is intended, nor shall it be construed, to constitute either Party as a principal, agent, fiduciary, employer, employee, partner, co-owner or joint venturer of or with the other Party for any purpose whatsoever. Neither Party has any authority to incur obligations, liability or debt, or make representations, on behalf of the other Party in any manner whatsoever.
17.5 Force Majeure. Notwithstanding anything to the contrary in this Agreement, no default, delay or failure to perform on the part of either Party (other than a payment obligation) shall constitute a breach of this Agreement if (or to the extent that) such default, delay or failure to perform is due to a cause, event, act or omission beyond the reasonable control of the Party charged with such default, delay or failure. The unavailability of Optty personnel to perform the Services for health or other bona fide reasons shall be deemed to fall within this Section.
17.6 Amendments and Waiver. No change in, addition to, or waiver of any of the provisions of this Agreement shall be binding upon either Party unless in writing signed by an authorized representative of such Party. No waiver by either Party of any breach by the other Party of any of the provisions of this Agreement shall be construed as a waiver of that or any other provision on any other occasion.
17.7 Severability. In the event any one or more of the provisions (or portions of a provision) of this Agreement shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the remaining provisions (or part of the provision) of this Agreement shall remain in effect and the Agreement shall be read as though the offending provision had not been written or as the provision shall be determined by such court to be read so as to achieve the same economic effect as the original provision.
17.8 Interpretation. For the purposes of this Agreement: (a) headings are for convenience only and do not affect interpretation of the Agreement terms; (b) a reference to a Party includes that Party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation; (c) a reference to a document (including this Agreement or an Optty Plan or a Policy) is to that document as varied, novated, ratified or replaced from time to time; (d) the singular includes the plural (and vice versa), and a word indicating a gender includes the other gender; (f) a reference to a Party or Section is a reference to a Party or Section to or of this Agreement, and a reference to this Agreement includes all incorporated terms of Optty Plans or Policies referred to herein; (g) if a word or phrase is given a defined meaning, any singular, plural or other grammatical form of that word or phrase has a corresponding meaning; and (h) a reference to any document, material, information or data includes that document, material, information and data howsoever stored, recorded or embodied, including in any electronic or digital media or otherwise.
17.9 Postponement. Dates or times by which Optty is required to make performance under this Agreement shall be postponed automatically for so long as Optty is prevented from meeting them by Merchant’s failure to timely perform its obligations hereunder, or any other causes that are Merchant’s responsibility.
17.10 Governing Law and Venue. This Agreement is governed by and shall be construed and interpreted according to the laws of Singapore. Each Party irrevocably submits to the non-exclusive jurisdiction of the courts of Singapore with respect to any proceedings which may be brought at any time relating to this Agreement for the purposes of obtaining injunctive relief under Section 16, or where otherwise required in order to comply with deadlines under the law; and waives any objection it may now or in the future have to the venue of any proceedings, and any claim it may now or in the future have that any proceedings have been brought in an inconvenient forum, if that venue falls within the jurisdiction set forth in this paragraph.
17.11 Assignment. Merchant shall not assign, novate, or otherwise transfer this Agreement or any of its rights or obligations without the prior written consent of Optty, and any such attempted assignment, novation or other transfer shall be null and void. For the purposes of the foregoing, a change in control of Merchant shall be deemed an assignment. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties’ respective successors and permitted assigns.
17.12 Entire Agreement. This Agreement, including all referenced Policies and the terms applicable to any Optty Plan, constitute the complete and exclusive statement of the agreement between the parties as it relates to the subject matter and supersedes all proposals, oral or written, and all other representations, statements, agreements, understandings, negotiations and undertakings relating to the subject matter.
17.13 Rights of Third Parties. A person or entity who is not a Party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act (Cap. 53B) to enforce any term of this Agreement, regardless of whether such person or entity has been identified by name, as a member of a class or as answering a particular description. For the avoidance of doubt, nothing in this Section shall affect the rights of any permitted assignee or transferee of this Agreement.
17.14 Counterparts. This Agreement may be executed in multiple counterparts and by way of an exchange of facsimile or other electronic copies (e.g., PDF), each of which counterparts shall be considered an original and which counterparts together shall constitute one and the same Agreement.
SUPPORT AND BUSINESS CONTINUITY: BC PLAN
Subject to Merchant’s payment of the Fees in accordance with this Agreement, Optty will provide Basic Support for the Optty Platform, and use commercially reasonable efforts to make the Optty Platform available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Optty shall give at least 8 hours notice to Merchant and which Optty shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday Pacific Time), and (b) any unavailability pursuant to Section 17.5 (Force Majeure) of this Agreement and (c) subject to any other service levels set out in the Optty Business Continuity Service Level Agreement. Optty seeks to provide best in class continuity support to its partners with uptime, downtime, planned downtime and incident response time and escalation procedures documented in the Optty Business Continuity Service Level Agreement.
See here for the Optty Business Continuity Service Level Agreement
Can be found here: Optty Data Policy