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Last updated: 10 October 2024
Subject to the terms of this Agreement, Service Provider will provide Customer the Services as described in Exhibit A – Standard Services.
Customer agrees to provide all identification and onboarding documents as required by Service Provider. As part of the registration process, Customer will also provide Settlement Account details for Customer’s Service Provider account. Service Provider reserves the right to refuse registration of Customer if Customer does not complete the identification and onboarding requirements of Service Provider.
Optional Services specified in the Service Order or its annexes, if any, shall be provided subject to the terms hereof. ,
Customer shall respect the Service Provider’s intellectual property rights to its software, platforms, and systems. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Service Provider or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Service Provider hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
Customer shall exercise due diligence in protecting any software, systems, links and connections provided by Service Provider to Customer as part of the Service. Customer shall not send any harmful electronic transmissions across any connections to or links provided as part of the Service, including but not limited to malware, viruses, ransomware, or the like. Neither shall Customer use or permit others to use the Services or any facilities or links provided by Service Provider to hack, cyber-hijack the software, systems, websites, or network communications, launch denial of service, spoofing, phishing or similar attacks. Customer shall not, shall not attempt, nor permit others to disrupt the Services in any way. Service Provider reserves the right to disconnect and temporarily suspend Services to the Customer without prior notice in the event Service Provider detects any of the foregoing, or irregular or suspicious transaction traffic emanating from the Customer’s site or links. The service may be reconnected only if the Customer is able to provide an explanation satisfactory to Service Provider.
Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Service Provider’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. [Customer hereby agrees to indemnify and hold harmless Service Provider against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services, including without limitation any third party claims.
Customer is expected to use the software/platform issued to it in accordance with the use that it is intended for. Any damage, corruption, alteration or distortion of the software/platform, which may entail its repair or reinstallation shall be for the account of the Customer.The Customer shall not do on its own or allow unauthorized persons to conduct repairs or system maintenance over the software/platform issued to it for the Services. Any repairs or system maintenance shall only be provided by the Service Provider to the Customer.
Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Service Provider shall not be responsible for any system malfunction arising out of capacity or compatibility issues between the Customer’s systems and those of the Service Provider.
Customer acknowledges and agrees that the Service Provider’s compliance with the Service Level Agreement (Exhibit B) is conditioned upon Customer’s compliance with the system specifications required by the Service Provider for the Customer’s systems, hardware and software. Customer shall promptly report any changes that Customer makes in its hardware, systems, software, and network connections that may impact the Services in any way.
The Customer shall only utilize the Services for lawful or legal purposes or for products or services to which it is authorized or licensed to offer, provide or sell. The Customer and/or its authorized User/s are strictly prohibited from using the Services to receive payments from unauthorized, illegal, or prohibited items like narcotics or illegal drugs, unauthorized or illegal gambling or gaming, pornography, products infringing on any third party’s copyright, patent, trademark, trade secret or other property rights or rights of publicity or privacy, or any other products or services prohibited by rules, regulations or the law. The Customer agrees that any damage or liability incurred by the Customer as a result of these activities, including fines, penalties or other related legal expenses, will be for the account of the Customer. The prohibition includes possible fraudulent activities or potential breach of the Anti-Money Laundering Laws in compliance with the Anti-Money Laundering Act (RA No. 9160, as amended) and the Data Privacy Law (RA 10173). Upon knowledge or discovery by Service Provider of the Customer’s potential, suspected or actual violation of this provision,the Service Provider may, at its sole option or discretion, deny, restrict, suspend or cancel the Customer’s and/or its authorized User/s’ access to the Services or any of the Service Provider’s Platforms at any time, temporarily or permanently, without prior notice to the Customer. This is without prejudice to other remedies that are available to the Service Provider as provided in these Terms and Conditions or under applicable laws.
Customer shall allow only the Authorized Users in listed in Exhibit D to use the Service. Customer shall promptly notify Service Provider in the event of any changes in authorized users.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Service Provider includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Service Provider to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services] Service Provider shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
Notwithstanding anything to the contrary, Service Provider shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Service Provider will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Service Provider offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business No rights or licenses are granted except as expressly set forth herein.
Customer will pay Service Provider the then applicable Service Fees under Sec. IV of the Order Form(the “Fees”). Fees are subject to change as stipulated in the Order Form. Service Provider also reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Service Provider has billed Customer incorrectly, Customer must contact Service Provider no later than 30 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Service Provider’s Finance Department.
Full payment for invoices issued in any given month must be received by Service Provider thirty (30) days after the mailing date/e-mailing date of the invoice.Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance. In the event the Service Provider is constrained to refer the Customer’s account for collection, the Customer shall be liable to pay, in addition to the principal amount and interest subject of the unpaid invoice, all expenses of collection, attorney’s fees and costs of suit .
Service Provider reserves the right to temporarily disconnect the Services without prior notice in the event of non-payment of invoices on their due date. Service shall be restored upon payment, or temporary disconnection may become permanent in the event the unpaid invoice remains unpaid for 30 days from the date of temporary disconnection.
Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”) TheService may not be Pre-Terminated during the Initial Term, and may only be pre-terminated in accordance with Section VII Additional Terms and Conditions.
Termination or pre-termination shall not affect any rights accrued prior to the effective date of such termination or pre-termination. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
Service Provider shall use reasonable commercial efforts to comply with the Service Levels (Exhibit B). Where no specific standards or service levels are provided in Exhibit B, Service Provider shall provide the Services consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner.. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Service Provider or by third-party providers, or because of other causes beyond Service Provider’s reasonable control. Service Provider shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
HOWEVER, Service Provider DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND Service Provider DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Service Provider’s Liability The rebates provided for in the Service Level Agreement (Exhibit “A”) are the Customer’s sole remedy for any service interruptions, delays, outages and failure of service levels.
Other Claims In the event a party makes a claim under this Agreement for a matter not covered by the Service Level Agreement (Exhibit B), the parties agree that they shall be liable for any claims or liability arising from this Agreement only to the extent of the payment they have received or the amount of transaction to which such claims or liability pertains to. This limit shall not apply to the transaction fees or revenue collected due to either or both Parties that remain due and demandable.
Customer’s Liability The Customer shall hold free and harmless, and agrees to indemnify Service Provider, its stockholders, directors, officers, employees, representatives or assigns, from any and all losses, expenses, damages, related legal fees or any liability whatsoever which Service provider may suffer arising from or related to the use of the Service, including any pertinent suit, claim or action which may be brought against Service Provider, its stockholders, directors, officers, employees, representatives, assigns or its group of companies, except if such losses, expenses, damages, related to legal fees or liability resulting from the gross negligence or intentional misconduct of Service Provider and which are not covered in the Service Level Agreement.
Exclusions Except as otherwise provided in the Service Level Agreement, a party’s liability in all instances shall be limited to actual damages attributable to the acts or omissions of the indemnifying party, and shall not include any other type of damages, including consequential damages, moral, nominal, or exemplary damages, loss of profit or loss of opportunity, all of which are hereby excluded, even if such damages were foreseeable.
Third Party Claims Service Provider shall in no instance be involved with any claim between the Customer and Customer’s Customers. Should there be any claims made by third parties against the Service Provider UBX PH in relation to such claim between the Merchant and its Customers, the Customer shall fully indemnify the Service Provider. The Merchant agrees to hold UBX PH free and harmless from, any claim, losses, damages, costs and/or expenses between the Customer or any of the Customer’s Customers in the Services or any regulatory authority relating to any provision of this Agreement. The Merchant likewise hereby expressly indemnifies and holds UBX PH harmless where such claim, loss, damage, cost or expense arose due to the fault or negligence of UBX PH’s third party provider or payment channel partner.
Force Majeure Service Provider shall not be liable for its failure to comply with its obligations due to force majeure including, but not limited to, natural disasters and calamities, pandemics or events or circumstances beyond the control of Service Provider such as typhoons, earthquakes, fires, strikes, government orders, war, rebellion, and electrical, technical, and/or mechanical failure or other similar causes.
The Customer shall be responsible and shall bear the financial risk of the fraud, error or negligence committed by its officers, employees, authorized representatives or User/s in using the Services. Service Provider shall not be liable for reimbursements, payments, off-sets or deductions for amounts arising from such fraud, error or negligence committed by the the Customer’s officers, employees, authorized representatives or User/s or by the Customer’s Customers. Service Provider shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any patent or any copyright or misappropriation of any trade secret, provided Service Provider is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Service Provider will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Service Provider, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Service Provider, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Service Provider to be infringing, Service Provider may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Service Provider’s prior written consent. Service Provider may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Service Provider in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
The Agreement is governed by the laws of Singapore. Any action or proceeding related to this Agreement must be brought in the courts located in Singapore and irrevocably submit to the jurisdiction and venue of such courts.