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Terms and Conditions

Pay Express Merchant Service Agreement (Web Version) WELCOME TO PAYEXPRESS, A PAYMENT SERVICE OPERATED BY PAYNAMICS TECHNOLOGIES INC (REFERRED TO AS “PAYEXPRESS”). BELOW ARE OUR TERMS OF SERVICE. PLEASE READ THEM CAREFULLY. BY CLICKING THE AGREE BUTTON OF THE WEBSITE, YOU (REFERRED TO AS THE "MERCHANT"), HAVE AGREED TO THE FOLLOWING: A. TO FOLLOW ALL OF THE TERMS AS PRESCRIBED IN THIS AGREEMENT. B. TO STRICTLY COMPLY WITH ALL THE AGREED RULES AND REGULATION THAT MAY AND WILL BE MANDATED BY PAYNAMICS AND ITS ASSOCIATED BRANDS AND PAYMENT PARTNERS THAT IT CARRY (I.E. BANCNET, GCASH, DRAGONPAY, ECPAY ETC). C. YOU REPRESENT YOURSELF AS A BONIFIDE MERCHANT, CAPABLE OF DOING BUSINESS AND HAVE ACQUIRED ALL PROPER DOCUMENTATION AND BUSINESS LICENSE TO SELL OR TRADE IN ORDER TO USE THIS PAYMENT SERVICE. D. YOU AGREE TO FOLLOW ALL PHILIPPINE RULES AND REGULATION WITH REGARD TO CODUCTING E-COMMERCE TRANSACTIONS SUBJECT BUT NOT LIMITED TO DTI'S CONSUMER ACT OR THE LATEST BIR ECOMMERCE IMPLEMENTING RULES AND REGULATIONS. BY CONTINUING TO ACCESS THIS WEBSITE AND PAYMENT SERVICE YOU ARE VALIDATING THAT YOU ARE “ACCEPTING” THIS TERMS OF SERVICE INCLUDING ALL UPDATES OR AS REVISIONS THAT MAY BE IMPOSED. IF YOU DO NOT AGREE TO FOLLOW THIS AGREEMENT, KINDLY DO NOT ACCESS THIS WEBSITE AND PAYMENT SERVICE. All Merchants must accept the TERMS OF USE of this Agreement without change, in order to access and use the payment services. WHEREAS, PAYEXPRESS is an Internet Payment Solution Provider which is operated and controlled by Paynamics Technologies Inc and offers alternative forms of payment, Fraud Scrubbing services, Bancnet Processing, Gcash Processing to the MERCHANT in strict reliance upon the truthfulness and accuracy of the Information provided by MERCHANT; WHEREAS, MERCHANT is engaged in the business of online retail shopping store and intends to use the services of PAYEXPRESS for its Internet Payment transactions with its third party on-line user clients. NOW THEREFORE, for and in consideration of the foregoing premises and the terms and conditions contained in this Agreement, the parties hereto agree and bind themselves as follows: 1. Term This Agreement will take effect upon signing of this Agreement and shall continue to take effect for as long as the MERCHANT is transacting utilizing PAYEXPRESS’ System, or until such time the Parties mutually agree to terminate this Agreement. A mutually agreed date to terminate this Agreement shall be embodied in a separate document duly executed and signed by both parties. 2. Service 2.1. PAYEXPRESS then enables potential internet based buyers of goods and services (“BUYERS”) to purchase these goods and/or services through the use of Bancnet ATM Cards, Gcash, and Alternative Forms of Payment (i.e. Dragonpay, ECPay). 2.2. PAYEXPRESS will process MERCHANT’s transactions through the use of its secure SSL encryption network and any other processes made available through its contracted processing. 2.3. PAYEXPRESS shall agree to process payment transactions for the merchant as long as it is in accordance with PAYEXPRESS accepted business model as disclosed by MERCHANT during initial registration / signup. Any deviation from the current business model of the MERCHANT, the latter shall undertake to immediately notify PAYEXPRESS. The MERCHANT shall expressly indicate in its website that PAYEXPRESS is its Payment Processing Partner. 2.4. PAYEXPRESS shall operate an ESCROW SERVICE facility that allows buyers to purchase from MERCHANTS in a secure manner. MERCHANTS shall accept all orders originating from BUYERS that utilizes this service unequivocally. 2.5. PAYEXPRESS may offer access to MERCHANTS additional value added services. These value added service may include Bills Payment Facility, Mobile Airtime Topup, and Remittance Facility. 2.6. PAYEXPRESS shall provide MERCHANT with reporting and monitoring with respect to all types of payment transaction including but not limited to refunds or returns, chargeback pending and chargeback processed, and electronic summaries regarding the status of all payment transactions which may be given in a real time manner, including the total number and monetary value of all any payment transactions. 2.7. PAYEXPRESS may stop or cease to provide processing services, in its discretion, if PAYEXPRESS has a concern with regard to either the nature or volume of the activity of the MERCHANT’s internet sales, or any other valid reason subject to the discretion of PAYEXPRESS 3. Liability from the Services 3.1. In no way shall PAYEXPRESS be held liable to the MERCHANT or to any third-party client of the MERCHANT for any loss or damage, including consequential loss or damage, suffered by MERCHANT whether arising directly or indirectly from its business model under or pursuant to this Agreement. 3.2. The Parties understand that any marketing, operational, and other expenses which may be incurred as a result of the establishment and continuous distribution of the PRODUCT and/or SERVICE offered by the MERCHANT shall be the sole responsibility of the MERCHANT. 3.3. In no event will PAYEXPRESS be liable to MERCHANT or any third party client of the MERCHANT, customer or any person for any remote, indirect, consequential, special or incidental damages including damages resulting from or as a result of the loss of Data, loss of any profits or any losses as a result of business interruption. This provision applies even if PAYEXPRESS have been advised of the possibility of such damages. 4. Provision of Consumer Notices 4.1 MERCHANT agrees to clearly, accurately, and concisely notify any potential Buyers of the terms required by this Agreement. Such notification shall include, but is not limited to, the inclusion of required documentation on the PAYEXPRESS’s website homepage. 4.2 MERCHANT shall inform Buyers that the cost of goods or services, shipping and taxes, that they purchase and which are supplied in this Agreement will be immediately be billed on the checkout process and be paid using Bancnet, Gcash or Alternative Forms of Payment at the moment of checkout (for tangible goods) or otherwise provided (for digital goods or services). 5. Disclaimer of Merchant Warranties MERCHANT agrees to disclaim any implied warranties to Buyers, including, but not limited to, merchantability, fitness for a particular purpose, and non-infringement any violation of any implied or express warranties shall be the sole and absolute responsibility of the MERCHANT. 6. Disclaimer of Warranties MERCHANT accepts that PAYEXPRESS will provide services to the MERCHANT on an “as is” basis. PAYEXPRESS disclaims any and all warranties including, but not limited to, the implied warranty of the merchantability and fitness for a particular purpose, MERCHANT will assume all liability for its utilization of PAYEXPRESS services 7. Limitations of Service 7.1 MERCHANT agrees that PAYEXPRESS at anytime reserves the right to prohibit any product that it may see and deem unfit to its business and prevent the same from being sold through the PAYEXPRESS system. 7.2 PAYEXPRESS has a “Prohibited Products and Services List” which at all times the MERCHANT must fully comply with. MERCHANT further understands and agrees that PAYEXPRESS may amend or change the Prohibited Products List, from time to time, in its sole discretion. MERCHANT understands and agrees that any amendments will be effective upon posting by PAYEXPRESS on its website. Should PAYEXPRESS find out that the MERCHANT is distributing products or services that it did not readily declare in this MERCHANT Agreement (by matter of Investigation and other means that PAYEXPRESS deem fit to implement) this contract shall be immediately rescinded. 7.3 PAYEXPRESS reserves the right to obtain from MERCHANT their respective Supplier Agreements and determine if the MERCHANT is fit to provide such product and service to the general public. PAYEXPRESS’ Risk Team in its sole discretion may suspend or terminate the service in the following events: a) Price being offered by the Supplier is unrealistic to market acceptable standards. b) If the entity that is party to the Supplier Agreement with the MERCHANT is not in good standing (i.e. bankruptcy). c) If the entity that is party to the Supplier Agreement with the MERCHANT is not engaged in a bonifide business. d) If the entity that is party to the Supplier Agreement with the MERCHANT has common ownership with another MERCHANT company. e) If PAYEXPRESS’ Risk Team has reason or suspicion to believe that MERCHANT is engaged in business activity that is part of the Prohibited Products and Services List. 8. Limitations of Transactions 8.1 MERCHANT understands and agrees that PAYEXPRESS reserves the right to impose limits on sales of products or services and to refuse to process transactions to/for specific Buyers for any reason, in its sole discretion. 8.2 MERCHANT understands and agrees that PAYEXPRESS may: a) Limit or restrict sales to a minimum or maximum product/service price; b) Limit merchant transaction volume (i.e. Php 100,000 per month) for new but undocumented MERCHANT. c) Impose limits on the amount or number of purchases which may be charged to an individual credit card account during any time period; d) Request additional validation information from Buyers, such as signed contracts and/or delivery receipts; or e) Refuse to process transactions from Buyers with a prior history of questionable charges or dispute with other MERCHANT under PAYEXPRESS System. 8.3 MERCHANT agrees that PAYEXPRESS may impose Transaction Limits or Reserve Amounts (as defined in the Terms and Conditions) on MERCHANT accounts that are more restrictive than those placed upon other MERCHANT accounts, either temporarily or permanently, if the PAYEXPRESS deems itself insecure. 8.4 MERCHANT understands and agrees that it will not hold PAYEXPRESS liable for any losses, expenses, or damages it sustains, including claims for lost profits, on account of PAYEXPRESS imposition of Transaction Limits or Reserve Amounts for any reason. 9. MERCHANT’s Declarations 9.1 Legal Capacity: By completing the Merchant Registration Process and agreeing to the terms and conditions of this Agreement, MERCHANT affirms that it has full legal capacity and can lawfully enter into and form contracts under applicable law. 9.2 Truthful Information: MERCHANT affirms that all information and data it provides, or has any party provide, to PAYEXPRESS on the registration form and via any other means is truthful, accurate, valid, the lawful property of MERCHANT, and that it has the legal right to communicate such information. 9.3 Validation: PAYEXPRESS require that all email, domain, URL or telephone information provided by MERCHANT must be validated either through an actual site visit or phone interview of MERCHANT’s beneficial owner. If any of the information provided by MERCHANT is incorrect or cannot be validated, MERCHANT agrees that PAYEXPRESS may suspend or terminate this payment service, at PAYEXPRESS’ discretion. 9.4 Intellectual Property Rights/Ownership: The MERCHANT is fully responsible and solely liable for the content of its website and for the advertising and promotion of all products. The MERCHANT certifies and represents to PAYEXPRESS that it is the owner or that it has full right and authority to use and disseminate all information, data, images, graphics, text, video, music, or other intellectual property which either forms part of its website, which it provides to PAYEXPRESS, or which is provided by the MERCHANT to potential Buyers, or which is used by MERCHANT in its advertising and promotion to sell and deliver products to Buyers, which were obtained from MERCHANT. Furthermore, PAYEXPRESS may reserve the right to get the registry ownership of the domain website it is using. Should it be found that the MERCHANT does not have full right or authority to regulate information on the website disclosed; PAYEXPRESS would immediately execute its right to terminate this Agreement, 9.5 Legal Authorization: MERCHANT represents and warrants to PAYEXPRESS that MERCHANT is legally authorized to sell any product/service it offers and that MERCHANT has obtained all necessary regulatory approvals, certificates (hereafter, “Certificates”) and distribution agreement. MERCHANT agrees it will provide PAYEXPRESS any copies of Certificates immediately upon MERCHANT ‘s receipt of a request by PAYEXPRESS for such Certificates. In case MERCHANT is not the direct manufacturer or source of the products/service, the Certificate should specify and allow Internet sales as a mode of distribution from the manufacturer or source of the service, or otherwise indirectly implied (this applies to contracts where the distribution does not prohibit the MERCHANT to engage on Internet Sales). MERCHANT further represents that it will conform to any and all laws, rules, regulations (i.e Consumer Act of the Philippines), requirements and/or other standards established by Department of Trade and Industry, local consumer protection agencies, and credit card governing agencies regarding the sale of products over the Internet or in situations where the credit card is not present, whether now in effect or placed into effect after the effective date of this Agreement. 10. Taxes 10.1 MERCHANT understands and agrees that MERCHANT is responsible for the payment of all taxes applicable to its operations, and authorizes PAYEXPRESS to deduct amounts for taxes from payments received from Buyers for the purpose of remitting such amounts to the appropriate taxing authority. MERCHANT agrees that if PAYEXPRESS pays any taxes owed by MERCHANT, MERCHANT will immediately pay PAYEXPRESS of the amount of such taxes and all related interest, fines, and/or penalties. Furthermore, the parties agree that if additional taxes in the nature of an excise, sales, withholding or use tax are imposed in connection with PAYEXPRESS’ services on behalf of the MERCHANT, MERCHANT shall pay such tax amount to PAYEXPRESS. PAYEXPRESS shall have the right to collect and pay over taxes in the nature of an excise, sales, value added tax, withholding or use tax on behalf of the MERCHANT or on account of its own sales of products if reasonably required to do so by any jurisdiction’s taxing authority and shall further have the right to recover from the MERCHANT the amount of any such taxes and related penalties and interest which are paid by PAYEXPRESS with its own funds. MERCHANT shall also pay PAYEXPRESS for any expenses incurred by the PAYEXPRESS, including reasonable attorney’s fees, in its collection of any amounts due from MERCHANT. 10.2 All taxes, fees and charges collected or levied, however designated, which may be imposed by the local or national government, due or incurred as an incident to or as a consequence in the execution and performance of this Agreement and payment of Net Deposit to MERCHANT hereunder shall be solely for the account of the MERCHANT. 11. Fees and Other Charges 11.1. In consideration of the processing services provided to MERCHANT by PAYEXPRESS pursuant to this Agreement, MERCHANT irrevocably agrees to pay PAYEXPRESS the following non-refundable fees: 11.1.1. Upon execution of this Agreement, PAYEXPRESS signup and registration is free. 11.1.2. A Discount Rate, in the amount specified in the Schedule of Fees and Rates mentioned in the Annex A shall be imposed upon the MERCHANT based each transaction it processes. The said charge shall be deducted by PAYEXPRESS from each transaction processed and owing to the MERCHANT arising from the payment transactions of the MERCHANT utilizing the services of PAYEXPRESS. The said charge shall be subject to any modification and changes to be determined solely by PAYEXPRESS, without need of approval from MERCHANT. 11.1.3. A withdrawal/remittance fee will be charge once a MERCHANT request withdrawal from their PAYEXPRESS account to their preferred settlement bank account. 11.2. In consideration of the services provided to MERCHANT by PAYEXPRESS pursuant to this Agreement, MERCHANT irrevocably agrees to reimburse PAYEXPRESS the for and in respect of all and any credit or refund issued by PAYEXPRESS on behalf of MERCHANT, including, but not limited to, all interests, fees and penalties. 11.3. In further consideration of the services, MERCHANT hereby irrevocably authorizes PAYEXPRESS to deduct from the remittances all and any amounts that are due and owing to PAYEXPRESS under and pursuant to the provisions of Annex A on Fees and Other Charges. 11.4. In the event that the remittances due and owing to MERCHANT are insufficient to pay all and any amounts due and owing to PAYEXPRESS pursuant to the provisions of this section, MERCHANT shall pay the balance thereof within seven (7) calendar days of the receipt of written invoice or statement of account by means of wire transfer. 11.5. Remittances and settlement to MERCHANT will be made available in this manner: 11.5.1. All successful customer payments made using direct checkout / or escrow will immediately be reflected on MERCHANT’s Escrow Balance (MEB). 11.5.2 In case of direct checkout transaction, payments that are credited in MEB will automatically be transferred to MERCHANT’s Available Balance (MAB) after 10 working days. 11.5.3. For escrow payments, payments that are initially credited in MAB will be transferred immediately to MEB upon inputting the correct escrow code in the MERCHANT’s PAYEPRESS back office account. 11.5.4. MERCHANT may initiate a withdrawal request from their MEB to their preferred settlement account (i.e. Bank Account or Gcash) at any given time. 11.6. Notwithstanding Section 11.5, PAYEXPRESS shall not in any way be responsible for any delay in the ultimate receipt by MERCHANT of the remittances due MERCHANT as a result of any delay caused, beyond the control of PAYEXPRESS, by its Clearing Bank or any financial institution in charge of processing the release of the remittances. 12. Disputed Transactions / Chargeback / Fraud 12.1. It shall be recognized that PAYEXPRESS maintains strict monitoring in the number and volume of refunds/chargebacks. Acceptable Thresholds (i.e. chargeback ratios, refund ratios, fraud ratios) will be issued to MERCHANT in a separate annex. Should the MERCHANT be founded to have exceeded the appropriate threshold, the following things may happen: a. Payment of fines and penalties as deemed imposed by PAYEXPRESS’s Acquiring Banks and Processing Partners. b. Settlement and reserve due may be withheld as determined by PAYEXPRESS’s Risk Team. c. Suspension or Termination of MERCHANT account as determined by PAYEXPRESS’s Risk Team. 12.2. PAYEXPRESS shall refer all disputed transaction/s to the MERCHANT and the latter shall undertake to resolve the issue with the Customer within a period of 5 banking days from receipt of advice from PAYEXPRESS or the Customer dispute or request for a chargeback as the case may be. 12.3. Together and simultaneously with the MERCHANT’s resolution with Customer regarding a particular dispute, the MERCHANT shall furnish PAYEXPRESS copies of its communications with the Customer and such other pertinent documents, i.e. order forms, to enable PAYEXPRESS to properly document its case file on the Customer with respect to the disputed transaction/s. 12.4. MERCHANT agrees that PAYEXPRESS shall have the right to Chargeback in case of MERCHANT’s failure to comply with any of its obligations under this Agreement or in case of any Customer dispute with respect to the sales transaction. PAYEXPRESS shall issue the corresponding Chargeback advice to MERCHANT. 12.5. The disputed Customer transaction/s which is not resolved within the 5 day period referred shall automatically be charged back in the amount originally paid by PAYEXPRESS to the MERCHANT. MERCHANT agrees to receive said Chargeback which PAYEXPRESS shall deduct against future payments of billings, if any, or otherwise billed to MERCHANT in accordance with the paragraph below. 12.6. Upon issuance of the Chargeback advice, PAYEXPRESS will deduct the Chargeback amount from its next payment to the MERCHANT. If none is due, MERCHANT irrevocably authorizes PAYEXPRESS to deduct/offset the Chargeback amount due without need of demand or any further act or deed, against any account, money, securities and things of value which are now or may hereafter be in the hands of PAYEXPRESS or any of its subsidiaries or affiliates or parent company, without prejudice to PAYEXPRESS’s right to pursue collection of the Chargeback amount from MERCHANT by other legal means in case deductions/offsetting is not possible. 12.7. If MERCHANT fails to make timely payment of the Chargeback, thereby resulting in Customer’s billing dispute, inquiry or imposition of finance charge and/or late payment charge which would not have been imposed otherwise, MERCHANT shall reimburse PAYEXPRESS for any expense and charges thereby incurred, including but not limited to the amount of any such refund. 12.8. MERCHANT agrees that PAYEXPRESS shall process all transactions covered under this Agreement with full recourse to MERCHANT. The MERCHANT shall adhere to all terms and conditions which are herein set forth, including such guidelines, policies and conditions as may be implemented by PAYEXPRESS during the term of this contract. 12.9. In cases of third party or fraud complaints, the MERCHANT shall assume sole and full liability in the event the complaining party files the appropriate complaint. No liability whatsoever shall attach to PAYEXPRESS arising from the transactions above mentioned, unless the fraud can be solely and directly be attributable to PAYEXPRESS or its Payment Supplier’s fault or gross negligence. 12.10 In the event a third party or fraud complaint arose after the settlement of such account by PAYEXPRESS with the MERCHANT, the latter shall reimburse PAYEXPRESS for such amount not less than 3 days upon demand by PAYEXPRESS. 12.11 In case of disputes regarding the payment records between the MERCHANT AND PAYEXPRESS, the records of PAYEXPRESS shall prevail. 12.12 In case of faulty escrow codes brought about by technical error, or escrow codes which may have been erroneously redeemed, the MERCHANT shall immediately escalate such matter to PAYEXPRESS by sending an escalation email at cs@paynamics.net. Contents of the escalation email should include the details of the disputed escrow code together with proof that such escrow code is faulty (i.e. screenshot of the error). In no case shall PAYEXPRESS be held liable for any amount represented by an escrow code which may have been redeemed through the fault of negligence of any third party individual or the MERCHANT. Issues regarding an escrow code as above mentioned shall be resolved by PAYEXPRESS within 48 hours from the time it was escalated to the latter. 12.13 An escrow code may be deactivated by PAYEXPRESS RISK MANAGEMENT when the same is done in order to protect the interest of any third-party individual or clients of the MERCHANT or for any reason which in the discretion of the above mentioned is done in order to avoid any losses or prevent any liability which PAYEXPRESS may incur by virtue of such escrow code. 13. Credit Report and Compliance Report MERCHANT agrees that PAYEXPRESS may obtain 3rd party credit report(s) (“Reports”) through a credible credit reporting agency chosen by the PAYEXPRESS. MERCHANT hereby authorizes PAYEXPRESS to obtain and use such Reports in PAYEXPRESS evaluation of MERCHANT. If the MERCHANT is in a country where no structured credit report agency that is available, PAYEXPRESS compliance department will further check on the MERCHANT’s business and operations. 14. Indemnity and Insurance 14.1 Both parties agrees to indemnify each other, its employees, officers, agents, and directors from any and all fines, penalties, losses, damages, claims, costs, expenses (including attorney’s fees) or other liabilities resulting from or in connection with this Agreement or incurred as a result of violation of any law, regardless of whether such damages are actual, direct, indirect, special, incidental, consequential, or punitive (“Damages”) or service; or the PARTY’S reckless or willful conduct. Further, both parties agrees to indemnify each other for any Damages arising out of, or related to a PARTY’s breach of any warranty or representation, violation of any law, rule, or regulation, intellectual property infringement claims related to the MERCHANT’s site. 15. Warranty, Representations and Covenants: 15.1. MERCHANT hereby irrevocable covenants with and warrants to PAYEXPRESS that: 15.1.1. It will offer for sale through its Website only products and/or services that are available for prompt and timely delivery in the normal course of business of MERCHANT based upon the type of product and/or service being offered as prescribed in the PAYEXPRESS Merchant Registration of Product(s) and/or Service(s) to Consumers attached hereto and forming an integral part of this Agreement. 15.1.2. It will offer products and/or services for sale only if MERCHANT has full and proper lawful rights to market and sell such product and/or services. 15.1.3. It will fully comply with all and any of the rules existing or which may from time to time be prescribed or imposed by any Regulatory Authority. 15.1.4. It will submit to PAYEXPRESS in writing, for the express purpose of seeking and obtaining the prior written consent of PAYEXPRESS, the particulars of all and any desired changes and modifications to the products and/or services offered to customers or third party on-line clients before acting upon and giving effect to any change or modification. 15.1.5. It will not conduct its business in any manner that harms or damages the goodwill and the reputation of PAYEXPRESS and other financial institutions. 15.1.6. The MERCHANT shall, as soon as practicable after the latter has become aware of them, advise PAYEXPRESS in writing of any alleged material errors in their SERVICES and/or PRODUCTS in general. 15.1.7. At all times, it will conduct its business affairs in a completely ethical manner and in complete accordance and compliance with all the terms of this Agreement and all and any applicable laws, governmental rules and regulations, ordinances in any jurisdiction in which MERCHANT, its parent company, affiliates or subsidiaries conduct its business during the term of this Agreement. 15.1.8. It will manage its business in such a way as to ensure that both the volume and value of its charge backs and credit do not exceed a fair and reasonable percentage of the total value of the business of MERCHANT. 15.1.9. It will not use the services in connection with any business activities that are illegal, unethical or fraudulent in any jurisdiction in which MERCHANT conducts its business during the term of this Agreement. 15.1.10. It will not allow any person or entity to use the services either during the term of this Agreement or subsequent to the termination of this Agreement for any reason. 15.1.11. It will not in any way change or modify the services in general without the prior original written consent of PAYEXPRESS, which such consent may be refused by PAYEXPRESS without necessity of giving any reason for such refusal. 15.1.12. It will respond promptly to all inquiries of and resolve all and any disputes with on-line cardholder clients. 15.2. MERCHANT hereby irrevocably acknowledges and both covenants with and warrants to PAYEXPRESS that It has no power, entitlement or authority to enter into an agreement for or on behalf of PAYEXPRESS, or incur any obligation or liability on behalf of PAYEXPRESS. 15.3. If at any time during the Term of this Agreement the MERCHANT or its Customers perceives on reasonable grounds that there is a defect in, amongst other things, the Payment Services in general or the Payment Transaction software in particular such that the Payment Services or the Payment Transaction software are not of merchantable quality and are not fit for the purpose for which they are intended; MERCHANT will notify PAYEXPRESS of such perceived defect as soon as is practicable after the alleged defect is perceived. 15.4. PAYEXPRESS will not be liable to MERCHANT under or pursuant to this Agreement to the extent that a defect is caused by or as a result of either the action(s) or omission(s) of either MERCHANT or a non-party to this Agreement, including, without limiting the generality of the foregoing, any failure(s) by or on behalf of MERCHANT or a non-party to this Agreement to establish or maintain the operating environment prescribed by PAYEXPRESS from time to time; or use the in accordance with specifications issued and mandated by PAYEXPRESS from time to time, whether in all and any documentation provided by PAYEXPRESS to MERCHANT. 15.5. MERCHANT hereby irrevocably acknowledges and warrants to PAYEXPRESS that: 15.5.1. It has exercised and solely relied upon its own assessment, skill and judgment in determining whether the services provided under this Agreement satisfy the particular requirements of MERCHANT. 15.5.2. It has not relied on any statement or representation made by or on behalf of PAYEXPRESS. 15.5.3. PAYEXPRESS will not in any way be liable to MERCHANT for any loss or damage that MERCHANT may suffer if a computer terminal or telephone line is not working or functional for any reason. 15.5.4 Its representative whose signature appears on this Agreement is duly authorized by the MERCHANT to enter and bind the MERCHANT with the provisions established under this agreement. MERCHANT shall submit to PAYEXPRESS the corresponding board resolution and secretary certificate authorizing the latter’s representative to enter into this agreement. In the event the MERCHANT is a sole proprietor or partnership, the latter shall execute an affidavit of warranty attesting to the fact that he has the corresponding authority and power to enter into this agreement. 15.6. PAYEXPRESS does not warrant that: 15.6.1. The provision by it of the service will be continuous or uninterrupted or provide MERCHANT with a secure or confidential means of communication. 15.6.2. The Data that is either transmitted or received by MERCHANT through or as a result of the use by MERCHANT of the service will be accurate or virus free; 15.6.3. The service is free of and from defects or will operate without interruption or errors. 15.7. Both PARTIES represents and warrants to the other that its signatory/ies has/have all the necessary power and corporate authority to execute, deliver and perform this Agreement and other related documents, and that such execution, delivery and performance will not and shall not contravene any provision of its Articles of Incorporation and By-Laws, any agreement or instrument to which it is a party, any law, rule or regulation of any government authority. MERCHANT shall, at all times comply with laws and regulations applicable to its business. 16. Confidentiality and Non-Disclosure Provisions MERCHANT acknowledges and accepts the confidential nature of the information it will receive from PAYEXPRESS under this Agreement, and agrees to keep such information confidential and not to divulge the same to third parties, or use any such information for any other purpose than the faithful performance of this Agreement. Likewise, PAYEXPRESS acknowledges and accepts the confidential nature of the information it will receive from MERCHANT under this Agreement, and agrees to keep such information confidential and not to divulge the same to third parties, or use any such information for any other purpose than the faithful performance of this Agreement. Provided that the term “Confidential Information” shall not include any information which: (i) at the time of its disclosure, or thereafter, is or becomes generally available to the public other than as a direct result of a disclosure by the Receiving Party or the Receiving Party’s Representatives; (ii) is shown by written record, or any other documentary media, to have been independently acquired or developed by the Receiving Party without violating this Agreement, (iii) was lawfully known to the Receiving Party on a non-confidential basis prior to its disclosure to the Receiving Party by the Disclosing Party, or (iv) becomes available to the Receiving Party on a non-confidential basis from a source (other than the Disclosing Party) which is entitled to disclose the same; 17. Termination This Agreement shall take effect on the date of its execution and shall continue to remain enforce unless otherwise repealed/amended by the parties or terminated by either party in subject to the terms and conditions herein set forth or by mutual consent of the Parties in writing. a) TERMINATION WITHOUT CAUSE In the event a party desires to terminate this agreement without cause the same shall only be effective upon written notice ninety (90) days prior to the intended date of termination. b) TERMINATION FOR CAUSE PAYEXPRESS may terminate this Agreement effective immediately upon written notice to MERCHANT, in the event that MERCHANT: (i) Has entered into a merger, consolidation with another entity and MERCHANT has been absorbed, or its interest has been substantially reduced or when it is not the surviving entity. (ii) Becomes insolvent or bankrupt, discontinues business or adopts a resolution providing for dissolution or liquidation or undergoes corporate rehabilitation or when placed under receivership. (iii) In the event that PAYEXPRESS risk team has determined during its Periodic Review Assessment that the MERCHANT is qualified to be setup under a Direct Merchant Agreement as required by its Acquiring Bank Processors and Card Network Rules. (iii) PAYEXPRESS may terminate this Agreement effective immediately without need for prior written notice to MERCHANT, in case PAYEXPRESS's determination, there exists other reasonable ground/s to do so which warrants the immediate termination of the Agreement such as, but not limited to: • Excessive chargebacks, or have exceed the fraud, refund and chargeback ratios and thresholds determined in PAYEXPRESS Risk Team • Disputed Cardholder transactions, fraud or counterfeit Card transactions, • Non-compliance by MERCHANT with card brands and Payment Card Industry’s Data Security Standards (PCI DSS); • When mandated by the Acquiring Bank, Other Alternative Forms of Payment Network; or • Breach of this Agreement by MERCHANT. 18. Effects of Termination Immediately upon termination or expiration of this Agreement:  All obligations incurred or existing including but not limited to all fees, fines and penalties that may be imposed by PAYEXPRESS against the MERCHANT as the case may be, and all rights vested or accrued under this Agreement shall survive the termination of this Agreement.  MERCHANT agrees that the outstanding settlements, deposit retention reserves will be used to cover for all obligations incurred or existing including but not limited to all fees, chargebacks, fines and other financial fees that PAYEXPRESS may have incurred during the period it has executed its service to the MERCHANT.  All settlements in transit, deposit retention reserves (as applicable) that are being withheld by PAYEXPRESS shall be extended for another twelve-month period from the time of termination or expiration of this Agreement.  In case PAYEXPRESS is compelled to engage the services of counsel for the protection of its interests or enforcement of its rights under this Agreement, MERCHANT shall compensate the former attorney's fees equivalent to twenty five percent (25%) of the amount involved or claimed, aside from costs of collection and, in the proper case, costs of suit. The payment of Attorney's fees shall be in addition to the recovery of actual and other damages suffered by PAYEXPRESS. 19. Compliance with regulations; Verifications and Illegal Activity 19.1 MERCHANT will do its best to comply with PAYEXPRESS policies pertaining to ethics and standards of conduct. MERCHANT will not cause or permit to be undertaken any activity which is illegal under any laws or regulations in effect, or which would have the effect of causing PAYEXPRESS to be in violation of any laws, rules or regulations in effect. Each party agrees to make its records pertaining to this Agreement reasonably available to the other for verification and/or auditing purposes no more frequently than quarterly. 19.2 The website and Services of PAYEXPRESS may be used only for lawful purposes and in a lawful manner. MERCHANT agrees to comply with all applicable laws, statutes, and regulations. MERCHANT may not register under a false name or use an invalid or unauthorized credit card. MERCHANT may not impersonate any participant or use another participant's information. Such fraudulent conduct is a violation of local laws. Fraudulent conduct may be reported to law enforcement, and PAYEXPRESS will cooperate to ensure that violators are prosecuted to the fullest extent of the law. 19.3 PAYEXPRESS have the right, but not the obligation, to monitor any activity and content associated with its website and Services. This includes utilizations of third party crawlers or utilization of PAYEXPRESS’s email notification technology to further verify if email transaction receipts are sent MERCHANT’s Customers. PAYEXPRESS may investigate any reported violation of its policies or complaints and take any action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension or termination of service, denying access, and/or removal of any materials on the Site. PAYEXPRESS reserves the right and has absolute discretion to remove, screen, or edit any content that violates these provisions or is otherwise objectionable. 19.4 PAYEXPRESS reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties. In order to cooperate with governmental requests, to protect PAYEXPRESS systems, MERCHANT, and Customers, or to ensure the integrity and operation of the PAYEXPRESS business and systems, PAYEXPRESS may access and disclose any information it considers necessary or appropriate, including but not limited to user contact details, IP addressing and traffic information, usage history, and posted content. 20. Buyer’s Information Unless otherwise authorized by PAYEXPRESS in writing, MERCHANT agrees not to use or disclose personal information about any Buyer except to enter into and complete transactions with a Buyer. MERCHANT agree not to use any Buyer information for purposes of solicitation, advertising, unsolicited e-mail or spamming, harassment, invasion of privacy, or otherwise objectionable conduct. 21. Governing Law; Jurisdiction The Parties agree that this Agreement shall be interpreted under the laws of the Philippines. In the event of any dispute related to the subject matter of this Agreement, the Parties irrevocably agree to submit such dispute to the courts of the Philippines with venue in Makati to the exclusion of all other courts. 22. Default, Amendments, Modifications In the event that MERCHANT fails to perform any duty, obligation, or provision contained in this Agreement or fails to otherwise perform pursuant to this Agreement (“Default”), MERCHANT agrees to pay to PAYEXPRESS any damages, expenses, and costs, whether directly or indirectly caused, including reasonable attorney’s fees incurred by PAYEXPRESS due to MERCHANT’s Default. MERCHANT understands and agrees that PAYEXPRESS may amend or modify this Agreement and that any such amendment or modification will be binding upon its placement on PAYEXPRESS website or when sent to you by e-mail. Continued use of the PAYEXPRESS services will be considered acceptance of all terms in the amended/modified Agreement. 23. Notices Notices to PAYEXPRESS when required by this Agreement shall be deemed duly received by the latter if personally delivered, or sent by pre-paid first-class mail, or by courier service, to the following addresses: RISK HEAD Paynamics Technologies Inc. Address: 1108 Cityland 10 Tower 2 HV Dela Costa St. Salcedo Village Makati City, Philippines Notices to the MERCHANT shall be deemed duly received by the MERCHANT when done through personal service, pre-paid first class mail, registered mail, courier service and electronic messages (i.e. SMS) or electronic mail. , Annex A – Fees and Other Charges Payment Method Charges Payment Method Description Fee Amount ECPAY (7 Eleven) Over the Counter payments via 7-eleven and other ECPAY branches 4.5%* (minimum fee Php 25.00) Bancnet, Gcash, Dragonpay Bancnet ATM: Over 30M+ Members Gcash: 2M+ Members Dragonpay: Over 2000+ supported payment centers 2.5%* (minimum fee Php 25.00*) Withdrawal Fee When Merchant request for Withdrawal to Bank Account. Php 100.00* per withdrawal request Value Added Services Service Description Fee Amount Airtime Loading Smart, Globe and Sun Cellular. Merchant may purchase airtime load using their Available Balance on their Pay Express Account. No Fee. Bills Payment Over 50 Billers Supported. Merchant may pay their bills using their Available Balance on their Pay Express Account. Php 10.00* per biller, per transaction. Value Added Services (Incentive Service Description Details Airtime Loading Smart, Globe and Sun Cellular. Merchant may purchase airtime load using their Available Balance on their Pay Express Account. 2% Rebate. (For example if merchant purchases Globe 100, they only pay PHP 98.00 *Fees quoted are VAT Exclusive Annex B MERCHANT RESTRICTION – Prohibitive Products List for Credit Card Processing 1. Pornographic or illicit material or activity of any type 2. Escort Services 3. Fake Goods or Product Knock-offs. 4. Gambling operations , including virtual casinos 5. Firearms, Ammunitions and explosives 6. Affiliate Processing. 7. MERCHANT engages in “receipt of payment in advance” operation module 8. Pyramid Selling, Multi-Level Marketing and Commissions (except if approved by the bank or Paynamics Risk Team) 9. Pharmacy products and Prescription Drugs (i.e. Viagra) 10. Nutraceutical Products. (i.e. Grapeseed Oil, Glutathione) without certification of BFAD and other governing agencies. 11. FX Club or FX Services. 12. Goods, products and Services or distributions of any class or type whether or not similar to those specified above which are designated from time to time by PAYEXPRESS or its Acquiring Bank (in its sole discretion) as being subject to this definition and notice thereof being given to the MERCHANT, provided that no such designation or notice is required for any particular Sales to be subject to this definition THRESHOLDS Threshold Description Alternative Forms of Payment (Bancnet, Gcash) Refund request / Dispute request threshold should not exceed 3% of total captured debits of a given month.

   
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