FlexM Terms of Service

 

The Terms of Service stated herein (collectively, the “Terms of Service” to the “Agreement”) constitute a legal agreement between you (the “Partner”) and FLEXM PHILIPPINES INC.. (the “provider”). By using FlexBank and services, you hereby agree to be bound by the Agreement and the following stated terms and conditions set out by FlexM Philippines Inc. 

 

GLOSSARY

Except to the extent expressly provided otherwise, in this Agreement:


Acceptance Criteria” the Specified Services conforming in all material respects as set out in Schedule 1


Acceptance Period” a period of ten (10) Business Days following the Specified Services being made available to the Partner for the purpose of testing or such other periods as the parties may agree in writing


User Acceptance Tests (UAT)” a set of tests designed to establish whether the Specified Services meet the Acceptance Criteria, provided that the exact form of the tests shall be determined agreed and documented by the parties acting reasonably in advance of the first Acceptance Period


Account” an account enabling a User to access and use the Specified Services


Affiliate” an entity that controls, is controlled by, or is under common control with the relevant entity


Agreement” this agreement including any schedules, and any amendments thereof as agreed by the parties in writing from time to time


“API” abbreviation for application programming interface, refers to a set of functions and procedures that allow the creation of applications which access the features or data of an operating system, application, or other service.


App” abbreviation for application and referring to a mobile application software designed to run on a mobile device, such as a smartphone or tablet.


Base Specifications” an independent document detailing the system and programme parameters to be established for the Setup Services


Business Day(s)” any weekday other than a bank or public holiday in Philippines

Business Hours” the hours between 9:00 am to 5:00 pm on a business day

Change” any change to the scope, any modifications or improvements to the Specified Services and/or any change to this Agreement and as agreed by the parties


Charges” the amounts specified in Schedule 2 and the amounts as may be agreed in writing by the parties from time to time

Control(s)” the legal authority to control directly or indirectly the management of an entity “Confidential Information” means:

  1. Any information disclosed by one party to the other during the Term (whether

disclosed in writing, orally or otherwise) that at the time of disclosure:

  1. Was marked or described as “confidential”; or

  2. Should have been reasonably understood by the other to be confidential.

  3. The Partner Data and Provider Data;

  4. The terms of this Agreement


Customisation” a customisation of the FlexBank/ Services, whether made through the development, configuration or integration of software, or otherwise for the Specified Services


“Data Privacy Act of 2012” as defined by the National Privacy Commission and can be accessed here https://www.privacy.gov.ph/data-privacy-act/


Defect” a defect, error or bug in the Specified Services having a material adverse effect on operation, functionality, or performance of the Specified Services, but excluding any defect, error or bug caused by or arising as a result of:

  1. Any act or omission of the Partner or any person authorised by the Partner to use the

Specified Services;

  1. Any use of the Specified Services contrary to the documentation, whether by the Partner

or by any person authorised by the Partner;

  1. A failure of the Partner to perform or observe any of its obligations in this Agreement; and/or

  2. An incompatibility between the Specified Services and any other system, Network, application, programme, hardware or software not specified as compatible in the Documentation


Documentation” the documentation for the Specified Services made available by the Provider

to the Partner


Effective Date” the date of execution of this Agreement


Force Majeure Event” an event, or a series of related events, that is outside the reasonable control of the party affected including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, epidemics, pandemics, riots, government enforced lockdown, terrorist attacks, wars and major currency devaluation


iBoard” the backend administration platform/ portal, including URL and login information, supporting the reporting, reconciliation and dashboard, for the FlexBank/ Services


“Go-live date” the earlier of the following dates a) when the solution is launched live for the Partner’s users or b) within 3 months of contract signing date in case of API based solution or c) within 1 month of UAT sign off for App based solution.


Intellectual Property” all intellectual property rights, whether registrable or un-registrable, registered or unregistered, including any application or right of application for such rights and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, utility models, and rights in designs



Maintenance Services” the general maintenance of the Specified Services, and the updates and upgrades thereof


Minimum Term” in respect of this Agreement, the period of three (3) years beginning the

Go-live Date.


Network” a payment card network that switches transactions between merchants and users according to its own standards and protocols


Partner Data” all data, works and materials, including the personal data of a Partner’s User: uploaded to or stored by the Partner; supplied by the Partner to the Provider for uploading, processing, transmission or storage purposes in relation to this Agreement


Partner App” the app that is developed by the Partner or commissioned by the Partner either from the Provider or from a third-party developer, and is made available for general distribution by the Partner through the Google Play Store and/or the Apple App Store


Partner Systems” the hardware and software systems of the Partner that interact with, or may reasonably be expected to interact with, the Specified Services


Penetration Testing” is an authorised, simulated cyberattack on the security infrastructure of a system to uncover vulnerabilities, threats, risks in a software application, network or web application that an attacker could exploit


Personal Dataunder Republic Act 10173 – Data Privacy Act of 2012 as defined by the National Privacy Commission and can be accessed here https://www.privacy.gov.ph/data-privacy-act/


“Project Roadmap” an independent document to constitute the timeline and project milestones for implementation and delivery of all Specified Services as outlined in Schedule 1


“Provider Data” is any data, materials, works pertaining to the Provider that may be shared with the Partner in relation to this Agreement


Remedy Period” a period of fourteen (14) Business Days following any date on which the Partner may give to the Provider a notice that the Specified Services have failed the UAT, or such other period as the parties may agree in writing


Schedule” any schedule attached to this Agreement


Set-up Services” the provision of base specifications including configuration, implementation and integration support in accordance with Schedule 1


Specified Services” all or part of the FlexBank/ Services, which will be made available by the

Provider to the Partner via secure digital API connections including the application and database

software, the system and server software, the technical documentation and support, and the reporting tools for business management in accordance with this Agreement and as specified in Schedule 1


Software Code” including object code, intermediate code and source code


Support Services” support in relation to the use of, and the identification and resolution of errors in, the Specified Services, but shall not include the provision of training


Term” the term of this Agreement, commencing and ending in accordance with clause 1 “Territory” refers to Philippines

Test App” the App provided by the Provider to the Partner for demonstration and UAT testing “Update” a hotfix, patch or similar update to the Specified Services

Upgrade” a version upgrade of the Specified Services


User” the registered user of the Partner including both administrator accounts and user accounts


Vulnerability Testingidentifying potential vulnerabilities in Network devices such as firewalls, routers, switches, servers and applications


Whitelisting” In this Agreement, it refers to IP whitelisting, a security feature used for limiting and controlling access only to trusted users



  1. TERM

    1. This Agreement shall remain in force from the Effective Date to the end of 3 years from Go-live date.

    2. Unless terminated earlier as provided in clause 17 or parties mutually agree for extension or new agreement in place, the Agreement shall be automatically renewed for successive period of twelve (12) months, unless either party gives written notice to the other party not to renew with 90 days’ notice.


  1. SET-UP PROCEDURE

    1. The Provider shall provide Set-up Services to the Partner as per Schedule 1, using all reasonable endeavours to ensure that the Set-up Services are provided accordingly.

    2. The Partner acknowledges that a delay in the Partner performing its obligations in this Agreement may result in a delay in the performance of the Set-up Services; and subject to clause 17.1 the Provider will not be liable to the Partner in respect of any failure to meet the Project Roadmap to the extent that the failure arises out of a delay in the Partner performing its obligations under this Agreement or delay related to regulatory approvals which is beyond the control of the Provider.


  1. ACCEPTANCE PROCEDURE

    1. During each Acceptance Period, the Partner shall carry out the UAT in accordance with the Acceptance Criteria.

    2. The Provider shall provide to the Partner with such assistance in relation to the carrying out of the acceptance tests as the Partner may reasonably request.

    3. Before the end of each Acceptance Period, the Partner shall give to the Provider a written notice specifying whether the Specified Services have passed or failed the UAT.

    4. If the Partner fails to give to the Provider a written notice in accordance with clause 3.3, then the Specified Services shall be deemed to have passed the UAT.

    5. If the Partner notifies the Provider that any Specified Services have failed the UAT, then the Partner must at the same time provide full written details of the results of the identified failure with reference to the Acceptance Criteria as agreed in Schedule 3 of this Agreement.

    6. In case of a UAT failure notification:

      1. If the Provider agrees with the Partner that the Specified Services do not comply with the Acceptance Criteria, then the Provider must rectify the issue before the end of the Remedy Period for a further round of UATs; or

      2. If the Provider does not agree with the Partner that the Specified Services do not comply with the Acceptance Criteria, then the parties must convene before the expiry of the Remedy Period and use their best endeavours to reach an agreement whether the UAT has failed, and if so, appropriate a plan of action reasonably satisfactory to both parties, and they must record any agreement reached in writing.


  1. SPECIFIED SERVICES

    1. The Provider hereby grants to the Partner a non-exclusive licence to use the Specified Services in accordance with this Agreement during the Term in the Territory.

    2. Except to the extent expressly permitted in this Agreement or required by law on a non- excludable basis, the licence granted to the Partner under clause 4.1 is subject to the following prohibitions:


  1. The Partner must not sub-license, directly or indirectly, its right to access and use the Specified Services;

  2. The Partner must not permit any unauthorised person(s) to access and/or use the Software Services;

  1. The Partner must ensure that all authorised persons using the Specified Services with the authority of the Partner or by means of a User account comply with schedule 3.

  2. The Partner must ensure that its use of the Specified Services does not cause damage or impairment to the availability or accessibility of the same in any way.

  3. The Partner must not use the Specified Services:

    1. In any way that is illegal, fraudulent or harmful; or

    2. In connection with any illegal, fraudulent or harmful purpose or activity.

  4. The Partner has no right to access the Software Code of the Specified Services, either during or after the Term.

  5. Vulnerability Testing on the hosting server to be conducted by third party service provider including certification.



  1. CUSTOMISATIONS

    1. The Provider and the Partner may agree during the Term that the Provider shall design, develop and implement Customisations agreed in writing by the parties.

    2. All Intellectual Property in the Customisations shall be the exclusive property of the

Provider.

  1. The Customisation shall be subsumed into the Specified Services from the time and date it is made available to the Partner, and accordingly from that period the Partner’s rights to use the Customisation shall be governed by clause 4.


  1. MAINTENNANCE

    1. The Provider shall provide Maintenance Services to the Partner during the Term of this Agreement as per the SLA provided in schedule 4.

    2. The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Partner to the Provider under this Agreement is overdue, and the Provider has given to the Partner at least thirty (30) days’ written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.


  1. AVAILABILITY & SUPPORT

    1. The Provider shall use all commercially reasonable endeavors to ensure that the Specified Services are available as per the industry standards in the Provider’s industry.

    2. While the Provider shall endeavor to make available the Specified Services, the Partner acknowledges and agrees that the following exceptions may disrupt the availability of the Specified Services, and as such indemnifies the Provider against such exceptions:

  1. A Force Majeure Event;

  2. A fault or failure of the internet or any public telecommunications network or third- party system or Network;

  3. A fault or failure of the Partner’s computer systems or networks;

  4. Any breach by the Partner of this Agreement;

  5. Scheduled Maintenance Services carried out in accordance with this Agreement;

  6. Unauthorized and malicious internet attacks by unknown third parties;

  7. Unverifiable/Untraceable negative end-user feedback or experience.

  1. The Provider shall provide the Support Services to the Partner during the Term with best endeavour to align with the standards of skill reasonably expected from a service provider in the Provider’s industry.

  2. The Provider may suspend the provision of the Support Services if any amount due to be paid by the Partner to the Provider under this Agreement is overdue, and the Provider has given to the Partner at least thirty (30) days written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

 

Provider’s technical support team will address the issues based on the severity as per the response and rectify time provided below.

 

Issue Severity 

Description

Response time 

Rectify time 

Outrage

Server Down

Immediate

2 hrs.

Critical 

High risk & end user impact

1 hrs. 

4 hrs. 

High 

Potential System impact

4 working hrs. 

24 working hrs.  

Medium 

Functionality impact

24 working hrs. 

96 working hrs. 

Low 

Improvement and additional requirements

24 hrs. 

Next version release normally 2 weeks 

 

All our servers and services are hosted in Google Cloud Platform and the monthly server uptime percentage is 99.95%.


  1. APPS

    1. The Provider acknowledges and agrees that the Partner may integrate the Specified Services into an existing or new Partner App to be developed either:

      1. By the Partner or;

      2. At the Partner’s cost by a Partner appointed third-party developer or;

      3. At the Partner’s cost and developed by the Provider, excluding the sharing of the

Software Code

  1. The parties acknowledge and agree that in the case of 9.1 (a) and (b):

  1. the Partner will submit to the Provider the test version of the Partner App to be reviewed and approved by the Provider, and the final version of the Partner App will only be released subject the incorporation of the modifications/ additions required by the Provider;

  2. The Partner must submit its App, including Upgrades, for Vulnerability Testing and Penetration Testing prior to release either by Provider as per the third party service cost in Schedule 2 or by an approved third party vendor;

  3. the parties’ respective rights and obligations in relation to the Partner App and any liabilities of the Provider arising out of the use of the Partner App shall be subject to agreed terms and conditions, and accordingly this Agreement shall not govern any such use, rights, obligations or liabilities of the Partner App on the Provider. The Partner must however ensure that the development and usage of the Partner App is at all times subject to the terms of this Agreement.

  1. The parties acknowledge and agree that in the case of a Partner App developed by the Provider as per 8.1 (c):

    1. Compulsory Vulnerability Testing and Penetration Testing prior to release will be provided by the Provider as per Schedule 2;

    2. the parties’ respective rights and obligations in relation to the Partner App and any liabilities of the Provider arising out of the use of the Specified Services by the Partner App shall be subject to the terms and conditions of this Agreement and any further Changes will be mutually agreed in writing.

  2. The Partner App shall contain the terms and conditions as provided by the Provider in relation to the use of FlexBank/ Services. The Partner App shall also contain the

terms and conditions as provided by the license holder in relation to the use of the

Provider’s partner products.

  1. Where mandatory, for regulatory compliance reasons, the Partner App and marketing collateral shall contain the Provider branding as “Powered by FlexM” and the Provider’s partner product’s branding for the Provider’s partner products, where applicable, and as communicated by the Provider to the Partner, from time to time.


  1. INTELLECTUAL PROPERTY

    1. The Partner acknowledges and agrees that the Provider owns all the Intellectual Property of the Specified Services. Except as expressly stated herein, this Agreement does not grant the Partner any rights to, or in, patents, copyrights database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Specified Services.

    2. To the extent that any Changes are carried out under or in connection with this Agreement by the Provider, all Intellectual Property rights to such underlying ideas and in any resulting improvements or modifications shall be assigned to and shall vest with and be solely owned by the Provider, unless agreed in writing by both parties.

    3. Nothing in this Agreement shall operate to assign or transfer any Intellectual Property

from the Provider to the Partner, or vice versa.


  1. CHANGE CONTROL

    1. Either party may request a Change at any time via a written notice of a Change request

    2. A party in receipt of a Change request may:

      1. Accept the Change with or without additional cost;

      2. Reject the Change;

      3. Propose an amendment or alternative.

    3. A Change will not take effect until it has been mutually agreed and signed by each party.


  1. PAYMENTS & TAXES

    1. The Partner will make payments to the Provider as per the Charges in Schedule 2.

    2. All payments shall be made in PHP or USD currency to the designated bank account indicated in the invoice within seven (7) Business Days by electronic funds transfer.

    3. All payments other than set up fees will be billed to the partner effective the Go-live date.

    4. Except as specifically prescribed in this Agreement, each party is individually responsible for their own taxes payable in connection with this Agreement

    5. All payments shall be paid in full, free of all deductions and withholdings of any kind except where any deduction or withholding is required by law.

    6. In case of termination of this Agreement by the Partner before the completion of the Minimum Term, and notwithstanding clause 18, the Partner must continue to make the minimum transaction fee payment to the Provider as per Schedule 2, for the remainder of the Minimum Term


  1. CONFIDENTIALITY OBLIGATIONS

    1. Each party undertakes that it shall use all reasonable endeavors to keep confidential the other party’s Confidential Information and shall not:

  1. use such Confidential Information except for the purpose of exercising or performing its rights and obligations under this Agreement; or

  2. disclose such Confidential Information in whole or in part to any third party, except as expressly permitted in this Agreement

  1. The Provider will be allowed to disclose such Confidential information to its service providers, license holders and Affiliates as required for the purpose of facilitating the Specified Services

  2. The receiving party shall not disclose any Confidential Information to any person, except for information that is;

  1. part of the public domain;

  2. becomes part of the public domain other than through the fault of the party

receiving the information;

  1. already known by the receiving party at the time of disclosure;

  2. required to be disclosed to third parties according to any applicable law; and/or

  3. independently developed by the receiving party provided that the receiving party can reasonably demonstrate its development of such information did not make use of information provided by the disclosing party.

  1. Except as expressly stated in this Agreement, neither party makes any express or implied warranty or representation concerning its Confidential Information.

  2. The parties shall fully and effectively indemnify, keep indemnified and hold harmless each party and its Affiliates from and against, and agrees to pay on demand, any and all losses, liabilities, damages, costs, fines, penalties, claims and expenses (including legal fees on a full indemnity basis and other professional advisors’ fees, and disbursements and costs of investigation, litigation, settlement, judgment, interest, penalties and remedial actions) incurred by or awarded against or imposed on the Provider as a result of or in connection with any breach of this clause 12.

  3. The restrictions in this clause 12 do not apply to the extent that either party’s Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to a stock listing on a recognised stock exchange.

  4. Upon the termination of this Agreement, each party must immediately cease to use the other party’s Confidential Information.

  5. Within ten (10) Business Days following the date of termination of this Agreement, each party must destroy or return to the other Party (at the other Party’s option) all media containing Confidential Information and must irrevocably delete the other’s Confidential Information from its systems and records (physical and electronic), unless otherwise required by regulators or local laws.

  6. The provisions of this clause 12 shall continue in force for a period of three (3) years following the termination of this Agreement.


  1. DATA PROTECTION

    1. The Partner warrants to the Provider that it has the legal right to disclose all Partner Data that it does in fact disclose to the Provider under or in connection with this Agreement.

    2. The Provider warrants to the Partner that:

      1. It will act only on instructions from the Partner in relation to the processing of

Partner Data;



  1. It will only process the Partner Data for the purposes of performing its obligations and exercising its rights under this Agreement;

  2. It will collect, process, store and transmit the Partner Data as per generally acceptable industry practices and standards

  1. The Partner hereby grants to the Provider a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Partner Data to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under this Agreement.

  2. The Partner warrants to the Provider that the Partner Data when used by the Provider in accordance with this Agreement will not infringe the Intellectual Property rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.

  3. The Provider shall ensure that access to the Partner Data is limited to those personnel who have a reasonable need to access in order to enable the Provider to perform its duties under this Agreement; any access to the Partner Data must be limited to such part(s) of the Partner Data as is strictly necessary.

  4. Any Provider Data shared with the Partner, shall only be stored, processed and transmitted by the Partner for the purposes of performing its obligations under this Agreement and in compliance with the Data Privacy Act of 2012..


  1. WARRANTIES

    1. Each party warrants that:

      1. The party has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;

      2. The party will comply with all applicable legal and regulatory requirements applying to the exercise of the party’s rights and the fulfilment of the party’s obligations under this Agreement;

      3. The party has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.

    2. Each party warrants to the other party that the Specified Services, when used in accordance with this Agreement, will not breach any laws, statutes or regulations applicable under local law in the Territory.

    3. The Provider warrants to the Partner that:

      1. The Specified Services will conform in all material respects with the Schedule 1;

      2. The Specified Services will incorporate security features reflecting the requirements of good industry practice.

    4. The Partner shall make reasonable security arrangements to protect Partner Data in its possession or under its control, to prevent unauthorised access, collection, use, disclosure, copying, modification, deletion or similar risks.

    5. The parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out herein. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.


  1. ACKNOWLEDGEMENTS AND WARRANTY LIMITATIONS

    1. The Partner acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider



gives no warranty or representation that the Specified Services will always be wholly free from Defects.

  1. The Partner acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Software Services will always be entirely secure.

  2. The Partner acknowledges that the Specified Services are designed to be compatible only with the software and systems specified in Schedule 1; and the Provider does not warrant or represent that the Specified Services will be compatible with any other software or systems.

  3. The Partner acknowledges that the Provider doesn’t claim to understand the regulations regarding any of the services provided under this agreement. It is the sole responsibility of the Partner to make Provider aware of this understanding and request the system to be suitably modified, if required, from time to time to maintain accordance with guidelines that would be in force from time to time. Provider, would at no time be held liable for incorrect implementation of any of the prescribed regulatory guidelines in relation to the Specified Services due to a lack of understanding and interpretation of said rules/ guidelines.


  1. LIMITATIONS AND EXCLUSIONS OF LIABILITY


THE PARTIES ACKNOWLEDGE AND AGREE THAT THE COMMERCIAL PERFORMANCE OF PROPOSED PRODUCTS USING FlexBank/ SERVICES DEPENDS ON NUMEROUS FACTORS BEYOND THE PARTIES CONTROL. PARTIES DO NOT MAKE ANY, AND EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES AS TO THE PROFITS, REVENUES, ROYALTIES, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT OR POTENTIAL SUCCESS OF THE SOFTWARE AND NO LIABILITY SHALL BE IMPOSED UPON THE OTHER PARTY BASED ON ANY CLAIM THAT (I) MORE SALES OR REVENUE COULD HAVE BEEN MADE OR EARNED AND/OR (II) BETTER PRICES, RATES, COMMISSIONS OR TRANSACTIONS COULD HAVE BEEN OBTAINED. EXCEPT AS MAY OTHERWISE BE EXPRESSLY DESCRIBED HEREIN, EITHER PARTY IS NOT OBLIGATED TO COMMENCE OR CONTINUE THE EXHIBITION, DISTRIBUTION, MARKETING, ADVERTISING, PROMOTION, SALE. PARTIES EXPRESSLY WAIVE AND RELINQUISH ANY AND ALL CLAIMS AND LIABILITIES OF ANY KIND AGAINST THE OTHER PARTY ARISING FROM THIS AGREEMENT, EXCEPT CLAIMS AGAINST OTHER PARTY ARISING FROM ITS WILFUL AND INCURRED BREACH OF THIS AGREEMENT.


EXCEPT TO THE EXTENT OF EACH PARTY’S OBLIGATIONS TO PROTECT THE CONFIDENTIAL INFORMATION OF THE OTHER PARTY UNDER THIS AGREEMENT AND TO COMPLY WITH THE SCOPE OF THE LICENCES GRANTED HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, OR ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR RELIANCE DAMAGES (OR ANY LOSS OF ACTUAL OR ANTICIPATED REVENUE, PROFITS, INFORMATION OR DATA) ARISING OUT OF THIS AGREEMENT OR ITS TERMINATION, WHETHER FOR BREACH OF WARRANTY OR ANY OBLIGATION ARISING THEREFROM OR OTHERWISE, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY), AND IRRESPECTIVE OF WHETHER THE PARTIES HAVE ADVISED OR BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. PARTIES ACKNOWLEDGE AND AGREES THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THE CONTRACT BETWEEN THE PARTIES AND IN THEIR ABSENCE THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.



  1. Nothing in this Agreement will:


  1. Limit or exclude any liability for death or personal injury resulting from negligence;

  2. Limit or exclude any liability for fraud or fraudulent misrepresentation;

  3. Limit any liabilities in any way that is not permitted under applicable law; or

  4. Exclude any liabilities that may not be excluded under applicable law.

  1. The limitations and exclusions of liability set out in this clause 16 and elsewhere in this Agreement govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.

  2. Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event, or any loss of profits or anticipated savings, or any loss of revenue or income, or any loss of use or production, or any loss of business, contracts or opportunities or any special, indirect or consequential loss or damage.

  3. The liability of each party to the other party under this Agreement in respect of any event or series of related events shall not exceed the greater of:

    1. The total amount paid and payable by the Partner to the Provider under this Agreement in the Twelve (12) month period preceding the commencement of the event or events.

  4. However, subject to the limitation under clause 16.4, in the event of dispute reaching to the court or arbitration, as the case may be, it is agreed that the aggregate liability of each party to the other party under this Agreement shall not exceed the greater of:

    1. The total amount paid and payable by the Partner to the Provider up to the date that those liabilities are confirmed by court/arbitration centre.

    2. The total amount paid and payable by the Provider to the Partner up to the date that those liabilities are confirmed by court/arbitration centre.


  1. TERMINATION

    1. (a) Either party may terminate this Agreement by giving to the other party of not less than Ninety (90) days’ written notice of termination after the end of the Minimum Term;

(b) During the Setup and Acceptance/ UAT stages, either party may terminate this Agreement, subject to clause 16, with a 60-day written notice in the event of repeated non-performance by the other party.

  1. Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:

    1. The other party commits any material breach of this Agreement and the breach is not remediable;

    2. The other party:

      1. Is dissolved;

      2. Ceases to conduct all (or substantially all) of its business;

      3. Is or becomes unable to pay its debts as they fall due;

      4. Is or becomes insolvent or is declared insolvent;

    3. An administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party.

  2. The Provider may terminate this Agreement immediately by giving written notice to the Partner if any amount due to be paid by the Partner to the Provider under this Agreement is unpaid by the due date and remains unpaid upon the date that written notice of termination is given.

  3. Either Party may terminate this Agreement with immediate effect if the other party or its employees, agents or affiliates defames, abuses, harasses or threatens or otherwise compromises the dignity of the staff of the other party.

  4. Either Party may terminate this Agreement or amend its contractual obligations upon thirty (30) days written notice to the other party upon the issuance or recognition of any law, order, rule, or regulation by any regulatory authority that is controlling or binding on the notifying party prohibiting any or all of the use of the FlexBank/ Services or the continued provision of Specified Services becomes unprofitable, undesirable, and/or unduly restrictive to the business of the Provider.


  1. EFFECTS OF TERMINATION

    1. Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Glossary; clauses 4, 12, 14, 16, 19 – 29.

    2. Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.

    3. Within thirty (30) days following the termination of this Agreement for any reason: (a)The Partner must pay to the Provider any Charges in respect of the Specified

Services provided to the Partner before the termination of this Agreement;

(b)The Provider must refund to the Partner any Charges paid by the Partner to the Provider in respect of Specified Services that were to be provided to the Partner after the termination of this Agreement, without prejudice to the parties’ other legal rights.


  1. NON-SOLICITATION OF PERSONNEL

    1. Either party must not, without the prior written consent of the party, either during the Term or within the period of six (6) months following the end of the Term, engage, employ or solicit for engagement or employment any employee or subcontractor of the other who has been involved in any way in the negotiation or performance of this Agreement.


  1. NOTICES

    1. Any notice given under this Agreement may be sent by email and/or with a printed copy sent by courier and a party receiving from the other party a notice by email must acknowledge receipt by email promptly, and in any event within two (2) Business Days following receipt of the notice.


  1. ASSIGNMENT

22.1 Either party must not assign, transfer or otherwise deal with the contractual rights and/or obligations under this Agreement without the prior written consent of other party, such consent not to be unreasonably withheld or delayed, provided that each party may assign the entirety of its rights and obligations under this Agreement to any Affiliate of said party or to any successor to all or a substantial part of the business of the said party from time to time.


  1. NO WAIVERS


  1. No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.

  2. No waiver of any breach of any provision of this Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of this Agreement.


  1. SEVERABILITY

    1. If a provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect. The parties shall use reasonable endeavours and good faith to agree upon a new provision that shall as nearly as possible have the same commercial effect as the void, invalid, illegal or unenforceable provision.

    2. If any unlawful and/or unenforceable provision of this Agreement would be lawful or enforceable if part of it were deleted, that part will be deemed deleted, and the rest of the provisions will continue in effect.


  1. THIRD PARTY RIGHTS

    1. This Agreement is for the benefit of the parties and is not intended to benefit or be enforceable by any third party.

    2. The exercise of the parties’ rights under this Agreement is not subject to the consent of any third party.


  1. VARIATION

    1. This Agreement may not be varied except by means of a written document signed by each party, without prejudice to the requirements of clause 10.


  1. ENTIRE AGREEMENT

    1. The main body of this Agreement and the schedules shall constitute the entire contract between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

    2. This Agreement may be executed in several counterparts, each of which shall be an original but all of which shall together constitute one and the same Agreement.

    3. Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into this Agreement.


  1. LAW AND DISPUTE RESOLUTION

    1. This Agreement and any and all amendments thereto shall be governed exclusively by and construed in accordance with the substantive laws of the Philippines.

    2. If there is any dispute in connection with this Agreement, the parties will resolve the dispute through negotiation and conciliation within fifteen (15) Business Days. In case the negotiation and conciliation are not successful, the dispute shall be referred by either party and finally settled by the court of the Philippines in accordance with the Philippine Law


  1. Any disputes relating to this Agreement shall be subject to arbitration.



  1. INTERPRETATION

    1. In this Agreement, a reference to a statute or statutory provision includes references to:

      1. that statute or statutory provision as modified, consolidated and/or re-enacted from time to time;

      2. any subordinate legislation made under that statute or statutory provision.

    2. The clause headings do not affect the interpretation of this Agreement.

    3. In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

Schedule 3: ACCEPTABLE USE POLICY


1. Introduction


  1. This acceptable use policy sets out the rules governing:


  1. The use of FlexBank including white label eWallets, mobile apps, digitalised money transfer software, APIs and back office platform; any successor thereof;

  2. The use of the FLEXM Services including QR code based payments, online shopping using payment cards, domestic money transfers/ P2P, cross border money transfer software, mobile airtime load, rewards, multiple top-up channels and other partner products, and other products added as and when by the Provider;

  3. The transmission, storage and processing of content or data, apps or other services developed by the Partner, or by any person/entity on their behalf, pertaining to the use of the FlexBank/ Services;


  1. General Usage Rules


  1. The Partner must not use the FlexBank/ Services in any way that causes, or may cause, damage or impairment of their availability or accessibility.

  2. The Partner must not use the FlexBank/ Services:

    1. In any way that is unlawful, illegal, fraudulent or harmful; or

    2. In connection with any unlawful, illegal, fraudulent or harmful purpose or activity;


  1. Unlawful Content


  1. The Partner content must not be illegal or unlawful, must not infringe any person’s legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).

  2. Content, and the use of Content by the Provider in any manner licensed or otherwise authorised by the Partner, must not:

    1. Infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;

    2. Infringe any right of confidence, right of privacy or right under applicable data protection legislation;

    3. Constitute negligent advice or contain any negligent statement;

    4. Constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;

    5. Be in contempt of any court, or in breach of any court order;

    6. Constitute a breach of racial or religious hatred or discrimination legislation;

    7. Be blasphemous;

    8. Constitute a breach of official secrets legislation; or

    9. Constitute a breach of any contractual obligation owed to any person

  3. The Partner must ensure that content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.


  1. Graphic/ Inappropriate Material



4.1 Content must be appropriate for all persons who have access to or are likely to access the content in question. Content must not be violent, pornographic or sexually explicit, obscene or indecent in nature.


  1. Factual Accuracy


  1. Content must not be untrue, false, in accurate, misleading, libellous, or maliciously false.

  2. Statements of fact contained in Content and relating to persons (legal or natural) must be true; and statements of opinion contained in Content and relating to persons (legal or natural) must be reasonable, must be honestly held and must indicate the basis of the opinion.


  1. Negligent Advice


  1. Unless specifically allowable in Territory, content must not consist of or contain any legal, financial, investment, taxation, accountancy, medical or other professional advice.

  2. Content must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.


  1. Etiquette


  1. Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the Internet.

  2. Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.

  3. The Partner must ensure that content does not duplicate other content available through the Services unless you have permission to do so.


  1. Marketing and Spam


  1. The Partner must not without the Provider’s written permission use the FlexBank/ Services for any purpose relating to the marketing, advertising, promotion, sale or supply of any product, service or commercial offering or which are not in accordance with this Agreement.

  2. Content must not constitute or contain spam, and the Partner must not use the FlexBank/ Services to store or transmit spam- which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.

  3. The Partner must not use the FlexBank/ Services to promote or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programmes, or similar schemes.


  1. Gambling


9.1 The Partner must not use the Services for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity unless explicitly authorised to do so in the Territory and agreed in writing.


  1. Monitoring


10.1The Partner must acknowledge that they may be actively monitored for the content and the use of the FlexBank/ Services for purposes of meeting the obligations under the Agreement.


  1. Data Mining


11.1The Partner must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the FlexBank/ Services.


  1. Hyperlinks


12.1The Partner must not link to any material using or by means of the FlexBank/ Services FaaS that would breach the provisions of this policy and the Agreement.


  1. Harmful Software


13.1The content must neither contain, nor promote or distribute any viruses, malware, spyware, adware or other harmful or malicious software, programmes, routines, applications or technologies that may have a material negative effect upon the performance of a computer or introduce material security risks to a computer/device


SCHEDULE 4: MAINTENANCE SLA


  1. Introduction

    1. This schedule 4 sets out the service levels agreement for the Maintenance Services.


  1. Scheduled Maintenance Services

    1. The Provider shall where practicable give to the Partner at least five (5) Business Days prior communication of scheduled Maintenance Services that are likely to affect the availability of the Specified Services or are likely to have a material performance impact upon the Specified Services, without prejudice to the Provider’s other notice obligations under this schedule 4.

    2. The Provider shall provide all scheduled Maintenance Services outside Business Hours where practical


  1. Updates

    1. The Provider shall give to the Partner written notice of the application of any security Update to the Specified Services and at least five (5) Business Days prior written notice of the application of any non-security Update.

    2. The Provider shall apply Updates as follows:

      1. Third party security Updates shall be applied promptly following release by the relevant third party, providing that the Provider may acting reasonably decide not to apply any particular third-party security Update;

      2. The Provider’s security Updates shall be applied promptly following the identification of the relevant security risk and the completion of the testing of the relevant Update;

      3. Other Updates shall be applied in accordance with any timetable notified by the

Provider to the Partner or agreed by the parties from time to time.


  1. Upgrades

    1. The Provider may produce Upgrades in the form of various releases during the Term.

    2. The Provider shall give to the Partner at least five (5) Business Days prior notice of the application of an Upgrade to the Specified Services.

    3. The Provider shall apply each Upgrade within any period notified by the Provider to the

Partner or as agreed by the parties.

  1. Maintenance Releases: The Provider may provide periodic maintenance releases. Maintenance releases are generally available release of software that only provides error corrections. Such a release shall be denoted by a change in the digit to the right of the second decimal point – for example, 3.0.0 to 3.0.1.

  2. Minor Releases: Provider may provide periodic minor releases. A minor release is a generally available release of the software that provides enhancements designated minor by the Provider, as well as bug fixes (error corrections). Such a release shall be denoted by a change in the digit to the right of the first decimal point – for example, 3.0 to 3.1.

  3. Major Releases: Provider may provide periodic major releases. Major releases are generally available releases of the software that provides enhancements designated major by Provider, as well as minor new enhancements and error corrections. Such a release is denoted by a change in the digit to the left of the first decimal point – for example, 3.0 to 4.0.