Updated: 16 December 2022
Terms and Conditions
Thank you for using Shopboxo! To be eligible to register for a Shopboxo account and use the Platform (as defined below), you must review and accept these Shopboxo Terms of Service (this “Agreement” or these “Terms” ).
1.1 In this Agreement, “You,” “Your” and “User” will refer to you. If you are registering for a Shopboxo account or using the Platform on behalf of an entity or other organization, you are agreeing to these Terms for that entity or organization and representing to Shopboxo that you have the authority to bind that entity or organization to these Terms (and, in which case, the terms “You”, “Your” and “User” will refer to that entity or organization).
1.2 Unless the context otherwise requires, “Appboxo”, “Shopboxo”, “We”, “Us”, “Our” or “Company” shall mean Appboxo Pte. Ltd. or any of its licensees, whether now or in the future.
1.3 Shopboxo enables transactions on its Platform between participating sellers and buyers, dealing in products or services available for sale and published by the merchant on the Platform (“Goods”). The buyers (“Buyers”) can choose and place orders (“Orders”) from a variety of Goods listed by various merchants including but not limited to the restaurants, eateries, grocery stores, other service providers (“Sellers”), on the Platform.
1.5 You understand, agree and acknowledge that these Terms constitute a legally binding agreement between You and Shopboxo and that your use of the Platform will indicate your conclusive acceptance of these Terms.
1.6 If you do not agree to these Terms, you must stop accessing or using the Platform. You agree and promise to deactivate or delete your account from the Platform if you do not agree to these Terms.
2.1 The following terms, when used in this Agreement will have the following meanings:
“Platform” includes the Shopboxo mobile application, this website and any other technology or software that Shopboxo may develop from time to time.
“Content” means any information, data, graphics, content and other materials provided that you upload, post on or through the Platform.
“Delivery Service Provider” means any third party logistics service provider that partners with Shopboxo for the delivery of Goods purchased through the Platform.
“Payment Service Provider” means any third party payment service provider that partners with Shopboxo to process, transmit, facilitate and remit payment methods on the Platform, including Xendit Philippines Inc. for payment gateway services and/or other Payment Service Providers who may partner with Shopboxo in the future. For the avoidance of doubt, Shopboxo reserves the right to switch Payment Service Providers from time to time.
“Third Party Service Providers” are Delivery Service Providers, Payment Service Provider and any other third party service providers that may be made available through the Platform.
3. Account Registration
- Use of manual or automated software or other means to (i) access, “scrape,” “crawl” or “spider” any pages contained in the Platform, (ii) automate activities in transactions, promotions and others, (iii) collect or store personal data about other Platform Users in connection with prohibited behaviour set out in this Terms, and (iv) or any other activities that can be considered manipulative against the Platform
- attempts to engage in or engage in, any potentially harmful acts that are directed against the Platform, including but not limited to violating or attempting to violate any security features the Platform by introducing viruses, worms, or similar harmful code, or interfering or attempting to interfere with use of the Platform by any other user, host or network, including by means of overloading, “flooding,” “spamming,” or “crashing” the Platform.
- impersonate another person or entity
- gain unauthorized access or exceeds the scope of authorized access to the Platform
- display, upload, download, modify, publish, transmit, update or share any information that is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, slanderous, criminally inciting or invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatsoever.
3.2 You understand that in the case of violation of these Terms and/or any applicable laws, suspicion of your participation in fraudulent or misleading transactions, any misuse of your account or Third Party Service Providers (if utilised), inability to verify or authenticate any information provided by You, and/or the lack approvals to sell the Goods offered on our platform, Shopboxo reserves the right in our sole discretion and without notice to:
- Delete or suspend your account on the Platform
- Delete or modify any Content or Goods listed on your online store
- Limit your access to specific features in our Platform
- Ban you from accessing the Platform in the future
- Take any and all necessary actions
4. User Information & Account Security
4.1 You agree to provide true, accurate, up to date and complete information while signing up on the Platform or for any other purpose when prompted or requested to do so on the Platform. If You provide any information that is untrue, inaccurate, misleading, not current or incomplete or Shopboxo has reasonable grounds to believe that such information is untrue, inaccurate, misleading, not current or incomplete, or not in accordance with the User Agreement, the Company reserves the right to indefinitely suspend or terminate or block Your use or access to the Platform in any manner whatsoever. You are solely responsible for any errors in the information you provide on your account.
4.2 You are personally responsible for maintaining the security and confidentiality of the information you store for your account (including your account name, payment details and the relevant telephone/mobile number registered or associated with your account). You are fully responsible for any activity that occurs on your account, including for any loss suffered by Shopboxo or other Users resulting from any activity that occurs with your account, including the use of your account by others, or as a result of your failure to do so in keeping your account information safe and confidential. Shopboxo will not be liable for any loss or damage arising from your failure to maintain the security and confidentiality of your account.
4.3 You understand that your use of Third Party Service Providers, including but not limited to Payment Service Providers and Delivery Service Providers, may require you to provide or upload personal documents on the Platform such as but not limited to on the National Identity Card and/or a selfie with your National Identify Card and/or other personal information required for the verification process. This verification is required by the Bangko Sentral ng Philipinas and will be used solely for the purpose of know your customer (KYC) carried out by the Payment Service Providers according to applicable laws and regulations around anti-money laundering and prevention of terrorism financing.
5. Payment Terms
5.1 Buyers will make payments for the Goods that they want to buy or receive from the Seller, either by (i) payment with cash at the time of delivery (“Cash on Delivery”), (ii) use of payment methods including transfer to electronic wallet made available by the Payment Service Provider in the Platform, or (iii) any other means outside the Platform as agreed between Buyer and Seller.
5.2 You understand that payment transactions made using (i) Cash on Delivery, and (iii) any means outside of the Platform, require You to manually change payment status inside the Platform and will not be automatically logged on the Platform.
5.3 You understand and acknowledge that Shopboxo is not a party to any transaction between Buyers and Sellers.As the Platform does not operate with an escrow account feature, Shopboxo is not responsible for payment claims or refunds requested by Buyers or Sellers in connection with any transactions of Goods either through the Platform or outside the Platform. For avoidance of doubt, Buyer hereby agrees not to make any claim against Shopboxo for the failure to deliver Goods that have been paid for by the Buyer. Buyer further agrees that Shopboxo will not be responsible for refunding the amount paid for Goods purchased from any Seller. Seller hereby agrees not to make any claim against Shopboxo for payments not made by Buyer.
Shopboxo is not responsible for any loss, damage, or claim that may arise from transactions that are between Buyers and Sellers, including but not limited to fraud or malicious behavior of Seller or Buyer in a transaction. Shopboxo has no control over the quality or accuracy of the Goods provided by Sellers who contract with Buyers through the Platform.
5.4 For all the transactions between the Seller and the Buyer processed via the Payment Service Provider, the Seller agrees to pay an amount equal to 2.9% of the transaction value (“Transaction Fees”) to the Company. The Seller agrees that the Transaction Fees are subject to change and such change shall be published on the Platform from time to time.
5.5 You understand that Shopboxo operates on a weekly withdrawal schedule for all transaction processed via the Payment Service Provider. Shopboxo shall transfer the total accumulated amount paid by the Buyer(s) against Order(s) (after deducting Transaction Fees, delivery fees and any other fees that may apply) to the Seller’s bank account or electronic wallet once each week on Tuesday at 4pm PHT.
- Payment by Buyers processed via Payment Service Provider will only be eligible for withdrawal within 12-72 hours from the Buyer being in receipt of the Goods pursuant to such an order being delivered
- Payments by Buyers processed via both Payment Service Provider and Delivery Service Provider will only be eligible for withdrawal within 12-72 hours after confirmation of the delivery of the Goods by the Delivery Service Provider. The amount paid by Buyer for each Order to the Seller will be forwarded after deducting the shipping costs paid to the Delivery Service Provider (if any).
5.6 Shopboxo has partnered with Payment Service Provider(s) to facilitate payments and remittances made on the Platform. Shopboxo is not a party that processes payments made by Users, so, in the event that technical problems related to payments occur, it will be the responsibility of the Payment Service Provider. You acknowledge that by submitting your information on the Platform, you authorize Shopboxo to provide such information to our Payment Service Providers to facilitate payments. On a case by case basis, You may be required to submit additional information if You are subject to additional terms and conditions applicable to the relevant Payment Service Provider.
5.7 You acknowledge and understand that Payment Service Providers may experience unintended technical or infrastructural failures in forwarding, processing or transmitting payments made by Buyers to your bank account or electronic wallet account. In such circumstances, you agree and undertake not to make any claim against Shopboxo for any and all damages and losses that may arise directly or indirectly due to late payment disbursement process or payments made by Buyers to your bank account or e-wallet account. However, Shopboxo will use its best efforts to resolve the dispute with the Payment Service Provider if User submits a complaint through the reporting procedure in Clause 8 of this Terms.
5.8 By using Xendit as your Payment Service Provider, you are agreeing to be bound by the Xendit service agreement in Appendix A, as they may be amended by Xendit from time to time. Your continued use of Xendit as your Payment Service Provider on your store after the amended Xendit service agreement are posted constitutes your agreement to, and acceptance of, the amended Xendit service agreement. If you do not agree to any changes to the Xendit service agreement, de-activate Xendit as your Payment Service Provider and do not continue to use Xendit on your store.
6. Delivery and Delivery Fees
6.1 Delivery of Goods from the Platform will be carried out by (i) the relevant Seller through delivery options outside of the Platform, or (ii) by third party Delivery Service Provider(s) available in the Platform that Shopboxo has partnered with. Buyers are responsible for selecting available shipping options specified by the Seller and paying the specified shipping costs for that delivery option.
6.2 The Seller hereby guarantees that all Goods sold to the Buyer and delivered by the Seller through delivery options outside of the Platform will be delivered properly based on his promise to the Buyer.
6.3 If a Seller is using a Delivery Service Provider, Sellers are required to categorize each Goods according to their size and weight. Shopboxo has made its best efforts in providing Buyers with correct and complete information about shipping costs for each Delivery Service Provider, reliant on the accuracy of the size/weight and delivery location you specify.
6.4 You agree and understand that Shopboxo is not responsible, and you will not make any claims or demands against Shopboxo if there is a discrepancy between the shipping costs displayed on the Platform and the shipping costs charged by the relevant Delivery Service Provider. Shopboxo cannot always guarantee the accuracy of the location data received by the Delivery Service Provider. It is recommended that you check for any differences in cost, and your only recourse will be to cancel the delivery of Goods at your sole discretion.
6.5 Use of Delivery Service Provider is subject to the policies and authorities of the relevant Delivery Service Provider. This includes the specific criteria and conditions for delivery of Goods set by each respective Delivery Service Provider that You choose to use. You understand that the Delivery Service Provider may reject your delivery if you do not adhere to these criteria and conditions. You further agree that any problems arising from usage of the delivery services of the Delivery Service Provider are only between the Seller and the relevant Delivery Service Provider and You agree not to hold Shopboxo liable. It is recommended that you read the applicable criteria and conditions of delivery of Goods available on the Delivery Service Provider’s website.
6.6 If there are Goods that have been sold and sent by the Seller to the Buyer using a Delivery Service Provider that the Buyer wants to return, then the Seller and the Buyer concerned are obliged to deal directly with each other to process the return of the Goods. Shopboxo does not, under any circumstances, accept the return or delivery of Goods transacted between Users.
6.7 If Goods delivered using any of the Delivery Service Provider(s) are lost, damaged or failed to be delivered to the Buyer, either Seller and/or Buyer shall report the problem to Shopboxo using the reporting format in Clause 8 of these Terms within 72 hours from the date of delivery of the Goods. Shopboxo will assist in investigating this matter. For avoidance of doubt, Shopboxo will not be liable for the matter. We will only help to resolve the issue which is between the Seller and Delivery Service Provider.
7. Restricted Goods
7.1 The Seller may list and provide the details of the Goods offered for sale to the Buyers as a registered user of the Platform, however the Seller shall not be permitted to sell any Goods that fall are under the list of banned items identified by the Company from time to time, or are otherwise prohibited for sale under applicable laws.
- Acts penalized under Secs. 4, 5, 6, 8, 9, 10, 11, 12,13, 14, 15 and 16 of Republic Act No. 9165, otherwise known as the “Comprehensive Dangerous Drugs Act of 2002”, as amended by Republic Act No. 10640;
- Acts penalized Section 3 paragraphs b, c, e, g, h and i of Republic Act No. 3019, as amended, otherwise known as the “Anti-Graft and Corrupt Practices Act”;
- “Plunder” under Republic Act No. 7080, as amended;
- “Robbery” and “Extortion” under Articles 294, 295, 296, 299, 300, 301 and 302 of the Revised Penal Code, as amended;
- “Jueteng” and “Masiao” punished as illegal gambling under Presidential Decree No. 1602;
- “Piracy on the High Seas” under the Revised Penal Code, as amended, and Presidential Decree No. 532:
- “Qualified Theft” under Article 310 of the Revised Penal Code, as amended;
- “Swindling” under Article 315 and “Other Forms of Swindling” under Article 316 of the Revised Penal Code, as amended;
- “Smuggling” under Republic Act No. 455, and Republic Act No. 1937, as amended, otherwise known as the “Tariff and Customs Code of the Philippines”;
- Violations under Republic Act No. 8792, otherwise known as the “Electronic Commerce Act of 2000”;
- “Hijacking” and other violations under Republic Act No. 6235, otherwise known as the “Anti-Hijacking Law”; “Destructive Arson”; and “Murder”, as defined under the Revised Penal Code, as amended;
- “Terrorism” and “Conspiracy to Commit Terrorism” as defined and penalized under Sections 3 and 4 of Republic Act No. 9372;
- “Financing of Terrorism” under Section 4 and offenses punishable under Sections 5, 6, 7 and 8 of Republic Act No. 10168, otherwise known as the “Terrorism Financing Prevention and Suppression Act of 2012”;
- “Bribery” under Articles 210, 211 and 211-A of the Revised Penal Code, as amended, and “Corruption of Public Officers” under Article 212 of the Revised Penal Code, as amended;
- “Frauds and Illegal Exactions and Transactions” under Articles 213, 214, 215 and 216 of the Revised Penal Code, as amended;
- “Malversation of Public Funds and Property” under Articles 217 and 222 of the Revised Penal Code, as amended;
- “Forgeries” and “Counterfeiting” under Articles 163, 166, 167, 168, 169 and 176 of the Revised Penal Code, as amended;
- Violations of Sections 4 to 6 of Republic Act No. 9208, otherwise known as the “Anti-Trafficking in Persons Act of 2003, as amended”;
- Violations of Sections 78 to 79 of Chapter IV of Presidential Decree No. 705, otherwise known as the “Revised Forestry Code of the Philippines, as amended”;
- Violations of Sections 86 to 106 of Chapter IV of Republic Act No. 8550, otherwise known as the “Philippine Fisheries Code of 1998”;
- Violations of Sections 101 to 107, and 110 of Republic Act No. 7942, otherwise known as the “Philippine Mining Act of 1995”;
- Violations of Section 27(c), (e), (f), (g) and (i) of Republic Act No. 9147, otherwise known as the “Wildlife Resources Conservation and Protection Act”;
- Violations of Section 7(b) of Republic Act No. 9072, otherwise known as the “National Caves and Cave Resources Management Protection Act”;
- Violation of Republic Act No. 6539, otherwise known as the “Anti-Carnapping Act of 2002, as amended”;
- Violation of Sections 1, 3, and 5 of Presidential Decree No. 1866, as amended, otherwise known as the decree “Codifying the Laws on Illegal/Unlawful Possession, Manufacture, Dealing In, Acquisition or Disposition of Firearms, Ammunition or Explosives”;
- Violation of Presidential Decree No. 1612, otherwise known as the “Anti-Fencing Law”;
- Violation of Section 6 of Republic Act No. 8042, otherwise known as the “Migrant Workers and Overseas Filipinos Act of 1995, as amended”;
- Violation of Republic Act No. 8293, otherwise known as the “Intellectual Property Code of the Philippines, as amended”;
- Violation of Section 4 of Republic Act No. 9995, otherwise known as the “Anti-Photo and Video Voyeurism Act of 2009”;
- Violation of Section 4 of Republic Act No. 9775, otherwise known as the “Anti-Child Pornography Act of 2009”;
- Violations of Sections 5, 7, 8, 9, 10 (c), (d) and (e), 11, 12 and 14 of Republic Act No. 7610, otherwise known as the “Special Protection of Children Against Abuse, Exploitation and Discrimination”;
- Fraudulent practices and other violations under Republic Act No. 8799, otherwise known as the “Securities Regulation Code of 2000”;
- Felonies or offenses of a nature similar to the aforementioned unlawful activities that are punishable under the laws of other countries.
7.2 The Seller hereby agrees and undertakes that descriptions, images, and other content pertaining to the Goods are complete and accurate, and corresponds directly with the appearance, nature, quality, purpose and other features of such Goods.
8. Reporting Procedures
8.1 Any User may file a report or complaint to Shopboxo through the following reporting procedure:
Shopboxo User Complaint Service:
Email : firstname.lastname@example.org
Our CS can be contacted Monday – Sunday from 07.00 – 22.00
9. Intellectual Property
9.1 Shopboxo is either the owner of intellectual property rights or we have the non-exclusive, worldwide, perpetual, irrevocable, royalty free, sub-licensable right to exercise the intellectual property in the Platform along with material published on it, and any data and information collected, extracted, compiled, synthesized, or generated by Shopboxo or the use of any Shopboxo services, features or devices available on the Platform.
9.2 Shopboxo authorizes you to view and make one copy of any portion of the content reasonable for offline, personal, non-commercial use.
9.3 No content may be reproduced, republished, transmitted, displayed, posted or distributed in any form or by any means without our prior written permission.
9.4 Except as expressly provided otherwise, nothing in these Terms shall apply, or be construed, as a transfer or transfer of the intellectual property rights of Shopboxo or any third party to You.
10. Warranties and Limitation of Liability
10.1 In no event shall Shopboxo (including but not limited to its parent companies, affiliates, subsidiaries, shareholders, directors, commissioners and employees) be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses arising (in any manner whatsoever) out of or in connection with the Platform.
10.2 You expressly understand and agree that to the extent permitted by applicable law, your use of Shopboxo Platform is at your sole risk, and the Platform is provided on an “as is” and “as available” basis, with all faults. Shopboxo expressly disclaim all warranties, representations, and conditions of any kind, whether express or implied, including, but not limited to, the implied warranties or conditions of merchantability, fitness for a particular purpose and non-infringement arising from use of the services or the Platform.
11.1 If you have a dispute with other Users or other third parties, including Third Party Service Providers, you hereby agree to release, hold harmless and indemnify Shopboxo (including but not limited to parent companies, affiliates, subsidiaries, shareholders, directors, commissioners and their employees) against any and all claims or demands for damages, expenses and losses (actual or contingent) of any kind and nature, arising out of or in any way related to the dispute.
11.2 Furthermore, the User hereby also agrees to indemnify, hold harmless, and indemnify Shopboxo (including but not limited to its parent company, affiliates, subsidiaries, shareholders, directors, commissioners and employees) against any and all claims or demands from third parties. anything, including reasonable legal fees incurred by Shopboxo due to your violation of these Terms, any misuse of our Platform or our services and/or your violation of laws and regulations or third party rights.
12.1 Publicity. Shopboxo may use User’s name and logo on Shopboxo website and marketing materials to identify User’s relationship with Shopboxo, and Shopboxo may publicize that User utilizes the Platform.
12.2 Governing Law. This Agreement shall be governed by and construed in all respects in accordance with the laws of Singapore and any dispute shall be subject to the exclusive jurisdiction of the Singapore courts.
12.3 Entire Agreement. This Agreement comprises the entire agreement between User and Shopboxo with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Shopboxo, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement. There shall be no force or effect to any different terms of any pre-printed purchase order or similar forms of User, even if signed by the parties after the date hereof.
THIS SERVICES AGREEMENT (this “Agreement”) is made and electronically signed on the Effective Date, by and between:
Xendit Philippines Inc., a corporation duly organized and existing in accordance with the laws of the Republic of the Philippines, with principal place of business at Ignition Venture Studio, North Penthouse Unit, Marajo Tower, 312 26th St. cor. 4th Ave., Brgy. Fort Bonifacio, Taguig City 1634, Philippines, represented herein by its President and Managing Director, Yang Yang Zhang (the “First Party”);
The Second Party, an individual/partnership/corporation/cooperative/legally- organized business organization organized and existing under the laws of the Republic of the Philippines, and whose details are set out in the Audit Trail in the acceptance of Use of the Services (“Acceptance”).
The First Party and Second Party are herein collectively referred to as the “Parties”, and individually as a “Party”.
- The First Party is an Operator of Payment System registered with the Bangko Sentral ng Pilipinas, which supports the provision of, inter alia, disbursement and batch disbursement payment services, invoicing services, debit and credit card processing services, payment collection services and direct debit services;
- The Second Party, his/her/its business specified in the Account Activation Form, (i) has entered into an agreement with Shopboxo (“Shopboxo”) whereby the Second Party has engaged the services of Shopboxo; and (ii) intends to engage the Services of the First Party, subject to the clauses of this Agreement which shall supplement the existing agreement between the Second Party and Shopboxo.
NOW IT IS HEREBY AGREED as follows:
1.1 “Account” means a gateway identifier issued by the First Party for the use of the relevant Services of the First Party.
“Account Activation Form” means the online form the Second Party or his/her/its authorized representative accomplishes at the First Party’s account dashboard for the purpose of acquiring the Services hereunder. The Activation Form accomplished by the Second Party forms part of this Agreement.
“Affiliate”, in relation to a Party, means: (a) any other person that directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with the Party; (b) any company which the Party (directly or indirectly) controls; and/or (c) such other entity, arrangement or person that the Parties may agree in writing and in good faith to be an Affiliate. For such purposes, the term “control” (including the terms “controlling”, “controlled by” and “under common control with”) shall mean possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise.
“Audit Trail” means the system-generated summary of the information relating to and establishing the fact of the execution of the Acceptance via electronic signature, and includes, among others, the name of the person signing the Acceptance, the e-mail address and the IP address used in signing the Acceptance. The Audit Trail is included in the copy of the Agreement sent to the Second Party following his/her/its electronic execution.
“Banks” shall mean the banks with whom the First Party has entered into agreements in respect of the provision of account and payment authorization services and such other banks which may enter into such agreements with First Party from time to time, and their transferees.
“Conditions” means the terms and conditions that apply to the Second Party’s use of the Services, as set out in the First Party’s Terms and Conditions webpage (https://www.xendit.co/en-ph/terms-and-conditions/) , and any reference to a particularly numbered Condition shall be construed accordingly.
“Dashboard” means a web-based platform provided and maintained by the First Party to the relevant Platform Account holder and Partner Account holders, as applicable, through which the Second Party or the Partner Account holder manage their use of the Services .
“Documentation” means the technical and other information regarding each of the Services, which information can be accessed on the First Party webpage (https://docs.xendit.co/).
“Effective Date” means the date when the Second Party receives an electronic mail (e-mail_ confirming the Second Party’s online registration application to use the Services and the electronic execution of the Acceptance.
“End User” means any person or entity that uses the services or products of the Second Party.
“Instant Messaging Service” means the instant messaging service application like WhatsApp and Viber, or such other instant messaging service through which the either Party may send such notifications specified in this Agreement.
“Intellectual Property” means all (i) copyrights (including, without limitation, the right to reproduce, distribute copies of, display and perform the copyrighted work and to prepare derivative works), copyright registrations and applications, trademark rights (including, without limitation, registrations and applications), patent rights, trade names, mask-work rights, trade secrets, moral rights, author’s rights, privacy rights, publicity rights, algorithms, rights in packaging, goodwill and other proprietary rights, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of any state, country or jurisdiction; (ii) intangible legal rights or interests evidenced by or embodied in any idea, design, concept, technique, invention, discovery, enhancement or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; and (iii) all derivatives of any of the foregoing.
“Losses” means any losses, damages, liability, costs and expenses (including reasonable fees and expenses of legal and other advisers, court costs and other dispute resolution costs) suffered or incurred by a Party.
“Payment Gateway Services” shall mean the disbursement and batch disbursement payment services, invoicing services, debit and credit card processing services, payment collection services and direct debit services, as explained in further details in the Documentation, or otherwise in this Agreement and the Conditions.
“Partner Account” means an Account created by the First Party for the Second Party which is connected to the Platform Account, which may be accessed, controlled and monitored by the Platform Account holder and may have limited features in comparison to the Platform Account. For purposes of this Agreement, Partner Account herein shall refer to the account of the Second Party which shall be linked to the Platform Account of Shopboxo.
“Platform Account” means an Account issued by the First Party to Shopboxo to which the Second Party’s Partner account shall be linked to enable the Second Party’s use of the Services hereunder.
“Restricted Business” means a list of business activities that are restricted based on applicable Philippine laws and regulations and/or as required by the First Party’s payment channel partners, and for which transactions cannot be processed or accommodated by the First Party.
“Schedules” shall mean the annexures to this Agreement the Parties shall execute following the electronic execution of the Acceptance, and specify, among others, terms of the use of the Services not otherwise stipulated in the Acceptance, Agreement and the Conditions.
“Services” shall mean the Payment Gateway Services and, if enabled, the xenPlatform Feature.
“xenPlatform Feature” means a software service provided by the First Party , the availability of which and use by the Second Party , is always subject to the absolute discretion of the First Party, and which allows the Second Party to utilize the Platform Account and create/manage Partner Account and as explained in further details in the Documentation.
1.2 Interpretation. References to Clauses and Schedules are to be construed as references to the Clauses of, and Schedules to, this Agreement, unless otherwise indicated, and terms such as “hereof,” “herein,” “hereunder” and other similar compounds of the word “here” shall mean and refer to this entire Agreement rather than any particular part of the same.
2.1 The First Party shall provide to the Second Party the Payment Gateway Services for such fees set forth in the agreement between the Second Party and Shopboxo. It is understood that each of the Payment Gateway Services shall be made available to the Second Party only upon approval by the First Party and/or the relevant bank and payment channel partners. Further, it is understood that the Second Party shall be liable to pay the fees only for the Payment Gateway Services the First Party has approved the Second Party to use, and are actually used by the Second Party.
2.2 Unless the Parties agree otherwise in writing, the Second Party may use other Services and/or Payment Channels (“Additional Services”), subject to the pricing stipulated in the agreement between the Second Party and Shopboxo. To be able to use Additional Services and/or Payment Channels provided or supported by the First Party, the Second Party shall notify the First Party, at the minimum by e-mail notification, of its desire to avail of the same. The First Party shall activate the Additional Services desired to be availed of by the Second Party upon finding that the Second Party is eligible for the Additional Services so requested. The First Party shall notify the Second Party of such activation, and the terms of such activation, including the pricing therefor as appropriate. The First Party shall charge the relevant service fees upon such activation.
2.3 If the Second Party wishes to terminate any of the Services and/or Payment Channels it has availed of from the First Party, the Second Party shall serve a written notification thereof to the First Party by e-mail. Within seven (7) business days from receipt of such notification, the First Party shall deactivate such services and stop charging the Second Party of the relevant fees for the terminated Service and/or Channel For the avoidance of doubt, the termination of a Service or Payment Channel does not extinguish any of rights of a Party that may have accrued prior to the termination, as well as such rights under this Agreement and the Conditions which, by their nature, shall survive the termination of the Service or Payment Channel, or the Agreement.
2.4 From time to time, the Parties agree to review the Agreement, implementation of the Second Party’s technical integration, onboarding process, customer support allowed under this Agreement. For the avoidance of doubt, the first review shall be twelve (12) months after the Effective Date.
3. FEES AND OTHER PAYMENTS
3.1 In consideration of the First Party providing the Services to the Second Party, the Second Party agrees to pay such fees, costs, charges, expenses, liabilities, reimbursements and other payments as set out and maybe adjusted in accordance with the terms set out in the agreement between the Second Party and Shopboxo, and the Conditions.
3.2 The fees are exclusive of any value-added or goods or services taxes. The Parties further agree that each of them is responsible for taxes arising from this Agreement. Accordingly, payment of fees under the Services Agreement and these Conditions shall be made in full and paid in Philippine currency, free and clear of any deductions and set-offs in respect of any such present or future value-added or goods or services taxes now or hereafter assessed by any governmental authority. If any taxes are withheld from any amounts payable to the First Party or are so assessed, the Second Party acknowledges, agrees and covenants that it shall pay such taxes to the taxing authority and deliver to the First Party an official receipt for any such taxes.
3.3 The Second Party shall pay the First Party fees through any one of the following payment methods to be designated by the First Party:
- Direct Deduction, where the fees shall be automatically deducted from the balance of the Second Party by the First Party upon each executed Collection or Disbursement, as these terms are defined in the Conditions;
- Monthly Billing, where at the beginning of each month, the First Party shall deliver in writing an invoice setting forth the total service fees due and payable by the Second Party to the First Party for the preceding month. Save for any manifest errors or mistakes, such invoice shall be deemed final and conclusive. The Second Party shall make full settlement of such invoice within thirty (30) calendar days of the date of such invoice; or
- Monthly Direct Deduction, where are the beginning of each month, the First Party shall automatically deduct the total service fees due and payable by the Second Party for the Services provided by the First Party for the preceding month from the balance of the Second Party.
The payment of fees by direct deduction under Item (a) above is the default payment method. The Parties, however, may agree in writing the election of another payment method.
3.4 All payments collected, and the funds aggregated and held, by the First Party under this Agreement shall be settled to the Second Party’s nominated bank account listed in the Account Activation Form. The availability of funds for settlement and the periods when the settlements can be implemented are specified in the Conditions.
5. TERM, SUSPENSION AND TERMINATION
5.1 This Agreement shall commence on the Effective Date for the initial term of one (1) year (the “Initial Term”).
5.2 This Agreement will renew automatically upon the expiry of the Initial Term for additional terms of one (1) year each (each a “Renewal Term”) unless either Party provides written notice to the other Party on its intention to not renew the Agreement, at least thirty (30) calendar days prior to the commencement of any Renewal Term.
5.3 In the event that the First Party has reasonable suspicion that the Second Party is:
(i) in violation of this Agreement or the Conditions, as applicable, or
(ii) that the conduct of the Second Party, (including, without limitation, transmitting inaccurate and/or incomplete data to the First Party), poses a threat to the First Party’s systems, equipment, processes, or
(iii) that the products sold or the services rendered by the Second Party violate applicable laws, or are otherwise prohibited by any governmental authority, or negatively affect the society in general; or
(iv) upon determination by the First Party constitute violation of its policies on money laundering and terrorist financing prevention, consumer protection and data protection
(each, the “Threatening Condition”), the First Party shall have the right to suspend the provision of the Services (including, but not limited to, the deactivation of the relevant Account) at any time with written notice to the Second Party containing details of the applicable Threatening Condition and timeline for the Second Party to rectify or remedy the Threatening Condition.
5.4 Within the period specified in the notice described in Clause 5.3 above, the Second Party shall be entitled to address the Threatening Condition and provide supporting evidence(s) on measures it has taken to rectify or remedy the Threatening Condition as basis for the First Party to consider lifting the suspension and resume the provision of Services. For the avoidance of doubt, the First Party shall not be liable for any Losses incurred (whether directly or indirectly, materially and non-immaterially) by the Second Party following the suspension of its Services to the Second Party pursuant to Clause 5.3.
5.5 In case the Second Party has not exercised his/her/its rights to address the suspension or should the First Party find the proof submitted insufficient to address the Threatening Condition, the First Party shall be entitled to terminate this Agreement immediately upon written notice to the Second Party. For avoidance of doubt, the Second Party shall remain liable for all sums due and unpaid to the First Party before the termination of this Agreement. Conversely, the First Party shall be entitled with full authorization, to receive payment thereof and to set-off any outstanding payments owed to it including third party, with the Second Party’s account balance (if applicable).
5.6 In addition to the provisions stated in this Agreement, from time to time, the First Party is entitled to terminate this Agreement effective immediately by way of delivery of a written notice to the Second Party, if (i) the First Party determines in its sole discretion that the Second Party is no longer eligible for the Service upon reasonable suspicion of fraud or significant fraud or credit risk, or any other risks associated with the relevant Account; (ii) the Second Party uses the Services in a prohibited manner or otherwise does not comply with any of the provisions of this Agreement or the Conditions; (iii) any law, rule, regulation, order of competent authority, or when the relevant payment channel partner or financial services provider, requires the First Party to do so; or (iv) if it is reasonably suspected that the Second Party is in breach of Conditions 9.2(e), (f), and/or (g).
5.7 This Agreement may be terminated by either Party effective immediately with written notice in the event that (i) the other Party files a petition, in bankruptcy, seeking any reorganization, arrangement, composition, or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors; (ii) a receiver, trustee, or similar officer is appointed for the business or property of such party; (iii) any involuntary petition or proceeding, under bankruptcy or insolvency laws, is instituted against such party and not stayed, enjoined, or discharged within sixty (60) calendar days; or (iv) the other party adopts a resolution for discontinuance of its business or for dissolution.
5.8 This Agreement may be terminated by the Second Party at any time in the event of a material breach by the First Party of any of the Conditions or the terms of this Agreement (including, but not limited to, any breach of the representations and warranties by the First Party in the Conditions) that remains uncured after seven (7) calendar days’ written notice thereof.
5.9 Notwithstanding any provision in this Agreement to the contrary, either Party may terminate this Agreement, without cause, with at least sixty (60) calendar days’ prior written notice.
5.10.No termination shall, in any event, affect any rights or obligations accrued or incurred as at the effective date of termination or which accrue thereafter in relation to any act or omission which occurred prior to such termination. Without prejudice to the generality of the foregoing, the Second Party will, notwithstanding termination of this Agreement for any reason, remain responsible for the expenses to be paid or reimbursed by it pursuant to Clause 3 and the Conditions and all obligations of the Second Party under Conditions 8 and 12 shall remain in effect.
5.11 The Second Party must provide written notification to the First Party if the Second Party changes the type of business and / or type of goods or services offered by the Second Party no later than five (5) working days after the change occurs. In the event that the Second Party does not fulfill its obligations under this Clause 5.11 all consequences arising therefrom shall be the responsibility of the Second Party entirely.
6. FORCE MAJEURE
6.1 Each Party shall not be in breach of this Agreement if there is any total or partial failure of performance by it of his/her/its duties and obligations under this Agreement occasioned by any existing or future act of God, fire, act of government or state, war, epidemic, pandemic, civil commotion, insurrection, embargo, labour disputes of whatever nature, act of terrorism, strike, lockout, other industrial action, general failure of electricity or other supply, aircraft collision, technical failure, accidental or mechanical or electrical breakdown, computer failure, failure of any money transmission system, or any other reason which is beyond the control of such Party (each circumstance, a “Force Majeure EventF”).
6.2 If either Party is unable to perform his/her/its duties and obligations under this Agreement as a direct result of the effect of one (1) or more Force Majeure Event(s), such Party shall immediately notify the other Party in writing of such inability. The operation of the Agreement shall be suspended during the period (and only during the period) in which the Force Majeure Event(s) continues. If the Force Majeure Event(s) continues for a period of: (a) more than two (2) consecutive months from the date on which the affected Party notifies the other Party of such Force Majeure Event(s); or (b) such other extended period as may be agreed between the Parties in writing, either Party may issue a written notice to the other Party to terminate this Agreement with immediate effect from the date of such termination notice.
6.3 Each Party shall not be liable for any Losses incurred in relation to any Force Majeure Event by the other Party.
7. DISPUTE RESOLUTION
7.1 This Agreement is governed by and made in accordance with the laws of the Republic of the Philippines and the Parties hereby commit to be subject to the applicable laws and regulations of the Republic of the Philippines.
7.2 Any dispute, controversy or difference between the Parties arising out of, or in relation to, this Agreement (including any dispute as to the validity, existence or termination of this Agreement) or for any breach thereof (a “Dispute”) shall be settled amicably by the Parties within thirty (30) calendar days following the notification by one Party to the other Party of any such Dispute.
- However, if such Dispute cannot be settled amicably within such time period, such Dispute shall be exclusively referred to and finally resolved by arbitration in accordance with the rules of Philippine Dispute Resolution Center (PDRCI).
- The seat of arbitration shall be in Taguig City, Philippines. The Tribunal shall consist of one (1) arbitrator to be appointed by the First Party. The language of the arbitration shall be English. The award rendered by the arbitrator under this Clause 6.2(b) shall be final and binding on the Parties and shall be enforceable in any court of competent jurisdiction. Each of the Parties hereby renounces any right it may otherwise have to appeal or duly be relieved from the award or any decision of the arbitrator contained therein and agrees that neither Party shall appeal to any court from the award or decision of the arbitrators contained therein.
7.3 The Parties agree that none of the Parties will be allowed to commence or maintain any action in any court of law with respect to any Dispute, except for the enforcement of arbitral award granted pursuant to proceedings commenced pursuant to this Clause 6.2.
8.1 Each notice required to be given by a Party to the other Party shall be in writing, signed by or on behalf of the Party giving it, and served through any one or combination of two (2) or more of the following means:
- via hand delivery, by ordinary mail or courier service:
i. To the First party at the business address specified in the Recitals of this Agreement
ii. To the Second Party at the business address specified in the Activation Form
- via electronic mail:
i. To the First Party, at email@example.com
ii. To the Second Party, at the email address listed in the Activation Form
Any change in any of the listed addresses of a Party shall be binding upon the other Party only if the former has notified the latter of such change in writing.
8.2 The Parties agree and consent to the sending of the following notice or communication via Instant Messaging Service at such number specified in Schedule 2 below:
(a) Account Activation;
(b) Change in Account Information;
(c) Service Advisories; and
(d) Marketing advertisements.
8.3 Unless there is evidence that a notice or communication was received earlier, any such notice or communication shall be deemed to have been served:
- if sent by Instant Messaging (including, but not limited to, Whatsapp), at the time of delivery;
- if delivered by hand, at the time of the delivery;
- if posted by ordinary mail, at the expiration of six (6) days after the envelope containing the same shall have been put into the post;
- if sent by courier, at the expiration of three (3) days after the package containing the same shall have been received by the relevant courier company; or
- if sent by e-mail transmission, on the day of dispatch, provided that if a notice or communication is received after business hours it shall be deemed to have been received and to have effect on the next business day.
8.4. In providing such service, it shall be sufficient to prove that delivery by hand was made or that the envelope containing such notice or document was properly addressed and posted as a prepaid ordinary mail letter or, as the case may be, the package containing such notice or document was properly addressed and sent to the relevant courier company.
8.5. Each notice or communication shall be irrevocable save in respect of any manifest error.
9. REPRESENTATION AND WARRANTY
9.1 The Second Party warrants and represents that it has the legal capacity, power, authority and right to execute and deliver this Agreement, and to perform his/her/its obligations hereunder, and that the person who accomplished the Account Activation Form and electronically accepted and signed this Agreement and the Acceptance has been duly authorized by the Second Party and, when directed by the First Party, it can present and submit the evidence of the authority of the person accomplishing the mentioned form, and signing the Agreement and the Acceptance. This Agreement has been duly and validly executed and delivered by the Second Party and, assuming due authorization, execution and delivery by the First Party, constitutes a legal, valid and binding obligation of the Second Party, enforceable against it in accordance with its terms.
9.2 The execution, delivery and performance of this Agreement and the consummation of the transaction contemplated hereby will not (i) violate any law, regulation, order, writ, judgment, injunction, award or decree of any court, arbitrator or governmental or regulatory body against, or binding upon, the Second Party or upon any of his/her/its assets, or (ii) require any consent of any third party, in each case which violation or failure to obtain consent would have a material adverse effect on the Second Party ability to consummate the transaction contemplated by this Agreement.
9.3 The Second Party acknowledges that it is and will continue to be in compliance with all relevant laws, regulations, circulars, guidelines, and directives howsoever issued by any court or governmental, regulatory or professional agency, authority, or body, with respect to the provision of the Services.
9.4 The Second Party has received and will continue to receive all requisite consents, approvals, clearances, licenses, exemptions, and authorisations from any applicable governmental, regulatory or professional agency, authority or body, or any authorised person therefrom, necessary for the legal and valid conduct of its business and operations.
9.5 The Second Party warrants that it owns the settlement account (i.e. the bank account where the payments aggregated by the First Party under this Agreement will be deposited or otherwise credited) it is registering in the Account Activation Form. Further, the Second Party confirms that the details of, and the information on, the settlement account it is providing in the Account Activation Form are correct. The Second Party assumes any and all liability that may arise out of, or result from: (a) the Second Party providing a settlement account it does not own; or (b) the Second Party supplying incorrect details of, and information on, the settlement account.
9.6 Should the Second Party be a minor, the Second Party represents and warrants that he or she is at least 16 years of age and that the Second Party has secured a written parental consent from his or her parent/s to engage the services of the First Party and enter into this Agreement. The written and signed parental consent shall be submitted to the First Party prior to the execution of this Agreement.
10.1.To the extent permitted under law, the breaching Party agrees to indemnify, defend, and hold harmless the non-breaching Party against, and to reimburse any one or more of the non-breaching Party or its affiliates in respect of all claims, causes of action, costs, expenses, losses, liabilities, damages, and obligations incurred arising from or relating to the breaching Party’s obligations pursuant to this Agreement, including without limitation any claims by third parties.
10.2.In the event that any of the First Party’s bank or channel partners has flagged any of the transactions of the Second Party as (i) suspected fraudulent transactions; and/or 2) fraudulent transactions (collectively herein referred to as “Flagged Transactions”), such transactions shall be deemed as Chargebacks, as such term is defined in the Conditions, for which the First Party shall be entitled to immediately deduct the relevant amount of such transactions from the Second Party’s balances or amounts held by the First Party pursuant to this Agreement and the Conditions.
11. DATA PRIVACY
Whenever applicable, in performing its obligations under this Agreement, each Party shall, at all times, comply with the provisions of Republic Act No. 10173 or the Data Privacy Act of 2012, its Implementing Rules and Regulations, and all other laws and government issuances which are now or in the future will be promulgated relating to data privacy and the protection of personal information (“Data Privacy Law”). Each Party, its officers, employees, agents, and representatives, shall, among others:
- Process personal data only to such extent as may be required and necessary for each Party to perform its obligations under this Agreement and as may be required by the Data Privacy Law. For this Agreement, the processing by each Party of the personal data shall include:
- transfer and sharing of the personal data to each Party’s subsidiaries, affiliates and third parties to enable either Party to perform its obligations under this Agreement;
- analysis and storage, and sharing to subsidiaries, affiliates and third-party vendors, of the personal data, in conjunction with the other information (e.g. transaction or payment history, or information from third-parties), to allow each Party to improve its products and services, and create, implement, or otherwise improve the existing security features and components of its existing and future products and services;
- analysis and storage, and sharing to subsidiaries, affiliates and third-party vendors, of the personal data, in conjunction with the other information (e.g. transaction or payment history) to allow each Party to generate or create financial and allied information about the End Users or customers for their benefit, which shall be made available to either Party and the End Users or customers upon their written request to the other Party;
In all instances under sub-paragraphs (i), (ii), and (iii) above, each Party shall execute with its affiliate, subsidiary or third parties, appropriate agreements and contracts, when applicable, setting forth at the minimum the extent of the processing and the obligations of the subsidiaries, affiliates and third parties over the personal data shared or disclosed for processing pursuant to this Agreement.
- use of personal data such as contact information (e.g. telephone and mobile numbers, email addresses) of each Party’s customers or End Users to allow either Party to provide them with consumer protection benefits and privileges, including service updates, retention premiums, as well as promotions of Second Party and his/her/its subsidiaries and affiliates; and
- such other processing of personal data allowed under Data Privacy Law.
- Secure all the requisite consent of the End Users to the processing of their personal data, where applicable;
- Implement measures and systems such as clear written guidelines and training modules for its personnel, agents, and representatives, that will enable data subjects to exercise any and all of their rights under Data Privacy Law;
- Implement such measures and systems that will allow data subjects to exercise their right to object or withhold consent to further processing as provided under the Data Privacy Law;
- Implement such measures and systems that will allow data subjects to exercise their rights to access under the Data Privacy Law;
- Maintain proper records, and provide to either Party access to such records, as will allow the other Party to allow the exercise by data subjects of their right to access their personal data under the Data Privacy Law;
- Ensure that data subjects will be able to exercise their right to rectification, modification, or blocking of their personal data under the Data Privacy Law;
- Determine the appropriate level of security measures, subject to, and in conjunction with, that of each Party, taking into account the nature of the personal information to be protected, the risks represented by the processing, the size of the organization and complexity of its operations, current data privacy best practices, and cost of security implementation;
- Implement security measures for data protection (i.e., generally, the physical, organization, and technical security measures prescribed by Data Privacy Law and its implementing rules and regulations), including policies for evaluation, monitoring, and review of operations and security risks. These measures may include clear written guidelines, training modules for its personnel, agents, and representatives, and audit measures in relation to the (1) collection, processing, maintenance, and deletion/disposal of personal data and records; and (2) the sharing of these information, especially on the specific persons to whom the information may be given access. Such measures shall aim to maintain the availability, integrity, and confidentiality of personal data, and prevent negligent, unlawful, or fraudulent processing, access, and other interference, use, disclosure, alteration, loss, and destruction of personal data;
- Implement reasonable and appropriate organizational, physical, and technical measures intended for the protection of personal information against any accidental or unlawful destruction, alteration, and disclosure, as well as against any other unlawful processing, or for such other purposes as may be required under the Data Privacy Law;
- Implement reasonable and appropriate measures to protect personal information against natural dangers such as accidental loss or destruction, and human dangers such as unlawful access, fraudulent misuse, unlawful destruction, alteration, and contamination;
- Ensure that its personnel, agents, and representatives who are involved in the processing of personal information operate and hold personal information under strict confidentiality. This obligation shall continue even after their transfer to another position or upon termination of their employment or contractual relations;
- Not to engage another processor without prior instruction from the other Party: provided, that any such arrangement shall ensure that the same obligations for data protection under this document are implemented, taking into account the nature of the processing;
- In case of data breach, promptly notify the other Party from the time of discovery, to enable the other Party to notify the National Privacy Commission, or appropriate supervisory authority, and the affected data subjects within the period prescribed under the Data Privacy Act of 2012, when sensitive personal information that may, under the circumstances, be used to enable identity fraud are reasonably believed to have been acquired by an unauthorized person, and the First Party, the Second Party, or the National Privacy Commission believes that such unauthorized acquisition is likely to give rise to a real risk of serious harm to any affected data subject or subscriber;
- Promptly inform the either Party if, in its opinion, any instruction of the other Party violates, or may be construed to violate, any provision of the Data Privacy Law;
- Assist either Party in ensuring compliance with the Data Privacy Law, taking into account the nature of processing and the information available to the Second Party;
- Upon request by the either Party, the other Party shall delete, destroy, or return all personal data to the former after the end of the provision of services relating to the Agreement, subject to the other Party’s authority under existing laws to retain copies of the personal data; and
- Make available to each Party all information necessary to demonstrate compliance with the obligations laid down in the Data Privacy Law, and allow for and contribute to audits, including inspections, conducted by the Second Party or another auditor mandated by the latter.
12. CLOSING PROVISIONS
12. 1 Neither Party may disclose the existence or any terms of this Agreement or the transactions contemplated by it, except to their respective affiliates, employees, partners, advisors, directors and, in each case, only on a similarly confidential basis, except where disclosure is otherwise required by applicable law, rules and regulations.
12.2 Each Party and each of his/her/its employees, agents and representatives are required to comply with all applicable laws, regulations, rules, orders, directives, requirements, standards, guidelines and applicable industry practice codes, which bind each party in connection with the activities relating to this Agreement.
12.3 All the terms and conditions of this Agreement, including the Schedules, if any, are applicable and shall fully bind the Parties.
12.4 No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the parties to this Agreement. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance.
12.5 The provisions of any clauses of this Agreement that, by their nature, may reasonably be presumed to survive any termination or expiration of the Agreement, shall survive any termination or expiration hereof.
12.6 No failure or delay on the part of any Party hereto in exercising any power or right hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any right or power preclude any other or further exercise of any right or power hereunder.
12.7 This Agreement (including the Conditions as amended, modified or supplemented from time to time) embody and set forth the entire agreement and understanding of the Parties and supersede all prior oral and written agreements, understandings and arrangements relating to the subject matter of this Agreement (including the Conditions as amended, modified or supplemented from time to time).
12.8 If one or more provisions of this Agreement or arrangements referred to in this Agreement shall be declared invalid, illegal or unenforceable in any respect under any applicable law or ruling by competent authority, the validity, legality and enforceability of the remaining provisions and agreements contained or referred to in this Agreement shall not be affected or impaired in any way. In connection with the foregoing, upon the occurrence of such event, the Parties shall use their best efforts to amend such invalid, illegal or unenforceable provision(s) only to the extent necessary to be valid, legal and enforceable, as nearly as possible and consistent with the Parties’ original intention.
12.9 This Agreement shall not be assigned by any party without the prior written consent of the other party. Any assignment in violation of this Section shall be null and void ab initio.
12.10 For the avoidance of doubt, except for the rights expressly granted herein, this Agreement does not transfer to any party, and neither party shall obtain from another, any rights in and to the Intellectual Property of a party. All rights, titles and interests, including without limitation to intellectual property rights, shall remain with the owner of such Intellectual Property.
12.11 The Parties acknowledge that this Agreement is executed electronically. The Second Party’s consent to be bound by the terms of the Agreement, and the Conditions expressed in the Acceptance.
12.12 Audit Provisions – During the term of this Agreement and not more than once per year (unless circumstances warrant additional audits as described below), during reasonable business hours, each Party may request to any audit or examination of the other Party’s policies, procedures and records that relate to the performance of the Services under this Agreement to ensure compliance with this Agreement upon at least fifteen (15) business days’ notice. Notwithstanding the foregoing, the Parties agree that the other party may conduct an audit at any time, in the event of (i) audit is required by the Parties’ governmental or regulatory authorities, (ii) investigations of claims of business irregularities of a potentially criminal nature, or (iii) the requesting Party reasonably believes that an audit is necessary to address a material operational problem or issue that poses a threat to requesting party’s business. Each Party shall also reasonably cooperate and provide to the other any information which may be required in connection with their audit or review of either Party or the Services outlined in the Agreement.
12.13 Non-Exclusivity- Unless otherwise agreed upon in writing by the Managing Director, or any of its authorized officers the Second Party is aware that the First Party may have provided, is providing, or shall hereinafter, provide similar services to other persons and/or entities in the Philippines, and the Second Party hereby acknowledges and confirms that it consents to the First Party’s provision of such services.