Last Updated: 10 November 2022
PART 1: INTRODUCTION AND APPLICATION
1. This Agreement constitutes a legal agreement between Spenmo (as defined under the Service Terms) and you (“Customer”).
2. By using all or any portion of the Service(s), the Customer accepts and agrees to abide by the Service Terms as set out in this Payment System Service Agreement, Documentation and any other applicable policies and terms which may be published on the Platform. In the event of any conflict or inconsistency, the documents shall prevail in the above order. Where the Customer is a corporate entity, the signing party below represents and warrants that he is an authorised representative who has the authority to legally bind the Customer to this Agreement.
3. The Customer acknowledges and agrees that the Service(s) will be provided by Spenmo in connection with third-party Payment Partners. The Payment Partner Terms are set out in the Documentation (as may be amended from time to time), and to the extent that the Service(s) include any Payment Partner Services, such Payment Partner Terms are hereby incorporated by reference into this Agreement. The Customer further agrees to be bound by such Payment Partner Terms as though the Payment Partner were a party hereto, and acknowledges that the Payment Partner Terms may be enforced by the Payment Partner against the Customer directly.
4. Spenmo reserves the right, in its sole discretion, to update the Service Terms and Documentation from time to time. The latest version of the Service Terms and Documentation may be found on the Platform, and will be effective immediately upon posting. The Customer's continued use of the Service(s) after amendments to the Service Terms and/or Documentation become effective shall constitute the Customer’s binding acceptance of such amendments.
PART 2: SERVICE TERMS
1.1 In this Agreement, except where the context otherwise requires:
“Account” means the account created by or on behalf of the Customer within the Service(s);
“Affiliates” means any of Spenmo’s corporate affiliate or partner entities, including the Payment Partners;
"Agreement" means this Payment System Service Agreement, the Documentation, and any other policies, documents or terms published on the Platform or otherwise provided by Spenmo;
“BSP” means Bangko Sentral ng Pilipinas;
"Business Day" means a day (other than a Saturday, Sunday or gazetted public holiday) on which commercial banks are open for business in the Philippines;
“Customer Data” means any electronic data and information submitted by or for the Customer to Spenmo and/or Payment Partners in connection with the Service(s), including the information;
“Documentation” means any applicable terms and conditions, policies, documents, usage manuals, and guides relating to the Service(s), as generally made available to the Customer and updated by Spenmo from time to time;
“Payment Partner” means any of the licensed third-party payment service providers which Spenmo may partner with for provision of the Payment Partner Services, at its sole discretion;
“Payment Partner Services” means the payment and settlement services provided by Payment Partners in connection with the Service(s) provided by Spenmo;
“Payment Partner Terms” means any terms from the Payment Partner arising from provision of the Payment Partner Services, as set out or incorporated in this Agreement;
“Platform” means the software and/or platform through which the Customer may access the Service(s), including the website https://spenmo.ph, the Spenmo mobile applications, the system and server software used in the ordinary course of business, the computer hardware on which that application, database, system and server software is stored, and any other properties that Spenmo may use in its ordinary course of business;
“Service(s)” means the services to be offered by Spenmo to the Customer through the Platform, including the Payment Partner Services that are provided by Spenmo’s Payment Partners;
“Spenmo” means Spenmo Financial Technology Corporation (formerly Polkadot Incorporated), a corporation duly organized and existing under and by virtue of the laws of the Republic of the Philippines with Securities and Exchange Commission (“SEC”) CS201819616 with secondary license granted by the Bangko Sentral ng Pilipinas (“BSP”) to conduct business as an Operator of Payment System (“OPS”) under OPS Registration No. OPSCOR-2021-0022, having its registered office at 16th Floor, Unit 16G, Avenir Bldg., Archbishop Reyes, Brgy. Lahug, Cebu City, Philippines 6000, and/or its corporate affiliates, as applicable; and
“User” means an individual who is authorised by the Customer to use the Service(s) on its behalf, which may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.
1.2 Clause headings are for ease of reference only.
1.3 In this Agreement, unless the context otherwise requires:
1.3.1 words importing the singular shall include the plural and vice versa, and words importing the masculine gender shall include the feminine and neuter genders and vice versa;
1.3.2 the expression "this Agreement" or any similar expression shall mean this present and any supplemental written deed thereto as may be in force from time to time or any time;
1.3.3 the words "hereof", "herein", "hereon", and "hereunder" and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement;
1.3.4 references to "Clauses" are, unless otherwise stated, to Clauses to this Agreement;
1.3.5 the term "directly or indirectly" means directly or indirectly through one or more intermediary persons or through contractual or other legal arrangements, and "direct or indirect" shall have correlative meanings;
1.3.6 reference to any legislation or law or to any provision thereof shall include references to any such legislation or law as it may, from time to time, be amended, supplemented or re-enacted;
1.3.7 reference to the word "include" or "including" shall be construed without limitation;
1.3.8 terms defined in this Agreement shall include their correlative terms;
1.3.9 time is of the essence in the performance of the parties' respective obligations and if any time period specified herein is extended, such extended time shall also be of essence;
1.3.10 references to the knowledge, information, belief or awareness of any person shall be deemed to include the knowledge, information, belief or awareness of such person after examining all information and making all due diligence inquiries and investigations which would reasonably be expected or required from a person of ordinary prudence;
1.3.11 the parties acknowledge that they and their respective counsel have read and understood the terms of this Agreement and have participated equally in the negotiation and drafting. Accordingly, no court or arbitrator construing this Agreement shall construe it more stringently against one party than against the other;
1.3.12 if any clause in Clause 1 is a substantive provision conferring rights or imposing obligations on any party, effect shall be given to it as if it were a substantive provision in the body of this Agreement; and
1.3.13 any reference to "satisfactory" and phrases of similar import mean the occurrence of the relevant event or circumstance or fulfilment of the relevant condition to the reasonable satisfaction of the relevant party.
2. ACCOUNT AND SERVICES
2.1 In accessing the Platform and Service(s), the Customer will be required to create an Account through which Users may submit Customer Data, which contains information such as complete name, present and/or permanent address, date of birth, nationality, source of funds, user’s photo and specimen signature in accordance with the requirements of Know-Your-Customer requirements of the BSP, for processing by Spenmo and/or the Payment Partner in connection with the use of the Service(s).
2.2 Spenmo grants the Customer a limited, revocable, non-exclusive, non-transferable and non-assignable licence to access the Service(s) and Platform in accordance with this Agreement.
2.3 The Spenmo Account is a cash-in or top-up basis account via third party Payment Partners.
The Spenmo Account is an expense management intermediary and an expense disbursement account and not a depository account. Therefore, it is neither covered by the Philippine Deposit Insurance Corporation (“PDIC”) nor does it earn any interest. However, it is subjected to the rules and regulations of the BSP and the Anti-Money Laundering Act (“AMLA”). Functionalities include, but are not limited to, transfer of funds, payments of goods and services, and balance inquiry via third party Payment Partners.
2.4 Spenmo partners with Payment Partners that are duly licensed by the BSP to operate as an Electronic Money Issuer (“EMI”) and/or as an Operator of Payment System (“OPS”) under Republic Act No. 11127 or the National Payment Systems Act (“NPSA”) to provide the Payment Partner Services. The Service(s) provided by Spenmo serve only to support the Payment Partners’ provision of the Payment Partner Services, which are provided solely by Payment Partners. Nothing in this Agreement or any marketing documents or information conveyed to the Customer or otherwise made available by Spenmo constitutes a representation or warranty that Spenmo provides any payment service activities as defined under the NPSA.
2.5 Spenmo, may thus, introduce the Customers to third-party Payment Partners for the purpose of cashing-in funds into their Spenmo account. While Spenmo tries to verify each Payment Partner cash-in transaction, Spenmo will not assess the suitability, legality or ability of any third-party cash-in providers and the Customer expressly waives and releases the company and/or its directors, officers, and employees from any and all liability, claims or damages arising from or in any way related to the third-party cash-in service provider.
The Customer is solely responsible for the decision it makes regarding the services availed and offered via the software or service provided by third party Payment Partners.
Spenmo will not assess the suitability, legality or ability of any such third parties and the Customer expressly waives and releases the company and/or its directors, officers and employees from any and all liability, claims, causes of action, or damages arising from the Customer’s use of the software or service, or in any way related to the third parties introduced to the Customer by the software or service.
2.6 Spenmo therefore recommends that the Customer always exercise due diligence and care when deciding whether to trust a Payment Partner to accept a cash-in request. Any funds forwarded to Spenmo through the third-party Payment Partners shall be held in trust by Spenmo and shall be subject to the Customer’s withdrawal at any time at the Customer’s demand.
2.7 Depending on the Service(s) that the Customer is acquiring hereunder, additional terms specific to each Service (including any applicable Payment Partner Terms) may apply. Such additional terms can be found in the Documentation available on the Platform (as may be updated from time to time), and are hereby incorporated by reference into this Agreement.
2.8 In accepting this Agreement and using the Service(s), the Customer:
2.8.1 shall be taken to have entered into a direct customer relationship with the respective Payment Partners providing applicable Payment Partner Services;
2.8.2 acknowledges that it shall be their responsibility to review all applicable Documentation, including applicable Payment Partner Terms;
2.8.3 shall undertake to provide a list of regular payees, attached to this Agreement as Annex “1”, which shall be updated monthly by the Customer;
2.8.4 agrees to accept the Payment Partner Terms, which shall be enforceable against the Customer by the respective Payment Partner; and
2.8.5 shall be responsible for its Users’ compliance with the provisions of this Agreement and the applicable Payment Partner Terms, including ensuring that the Users’ use of the Service(s) to store, access, and/or transmit data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations.
2.9 For payment transfers flagged as “unusual transfers” by third-party Payment Partners, the Customer shall immediately notify Spenmo, and provide and endorse the necessary documentation to support such transfer as a regular business transaction which does not fall under the prohibited businesses and uses provided in Clauses 4.4 and 4.5 of this Agreement.
In the said notification, the Customer shall further authorize Spenmo to disburse the payment on its behalf by filling-out the form attached to this Agreement as Annex “2”. Should the Customer fail to provide the necessary documentation to support the flagged transactions, the payment made shall be reverted back to the Customer’s account by the third-party Payment Partners.
2.10 Spenmo may, from time to time, run limited promotions relating to its Service(s). Any additional terms applicable to such promotions may be determined by Spenmo in its absolute discretion, and will be published on the Platform or otherwise communicated to the Customer.
2.11 If the Customer wishes to cash in or cash out through Spenmo, the Customer authorizes Spenmo, directly or through third parties, to make any inquiries Spenmo considers necessary to validate the Customer’s identity.
Furthermore, Spenmo may delay an order or the processing of any transaction if a Customer has not provided personal identifying information, if it reasonably suspects that a Customer is in violation of the Agreement, or if further personal identifying information is necessary to establish the identity of the Customer (“KYC”). Until completion of such verification procedures, Customers may experience delayed processing of transactions. Spenmo will designate any such delayed transaction as “pending,” and funds will not be available until the pending transaction is completed. Spenmo reserves the right to refuse to process, cancel, or to reverse any Customer transaction (i) as required by law, (ii) in response to a facially valid subpoena, court order, or other government order, or (iii) if Spenmo reasonably suspects that the transaction is erroneous, or is in violation of the Agreement.
3. INTEREST, FEES AND PAYMENT
3.1 No interest shall accrue or be payable to the Customer in relation to the amounts standing to the credit of the Account.
3.2 The applicable fees for the use of the Service(s) and Platform are as set out on the Platform or as otherwise communicated to the Customer by Spenmo (the "Fees").
3.3 Spenmo reserves the right, in its sole discretion, to revise the applicable Fees in respect of the Service(s) from time to time. In the event of any Fee revisions, the Customer shall be informed of any upcoming Fee revisions in its monthly invoice, or as otherwise communicated to the Customer by Spenmo and the Customer's continued use of the Service(s) thereafter shall constitute a binding acceptance of the Fee revisions.
3.4 Unless otherwise specified, all amounts paid or payable to Spenmo shall be paid in the base currency stated in the Customer’s monthly invoice. Should the Customer elect to use any other currency as a means of payment, the Customer shall bear all bank charges, currency conversion fees and other applicable charges. Spenmo shall be entitled to, at its option, deduct the Fees from the Account or from any amount held by the Payment Partner on behalf of the Customer from time to time.
3.5 If any amount owed to Spenmo is not received by Spenmo before the due date (the “Outstanding Fees”), then without limiting Spenmo’s rights or remedies:
3.5.1 those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower; and
3.5.2 Spenmo would be entitled to suspend provision of the Service(s) until such amounts are paid in full.
3.6 The Fees are payable in full to Spenmo without reduction for taxes (including any withholding tax). In addition, Customer shall be responsible for any and all taxes (including, without limitation to, Final Withholding Tax (FWT) on income and Withholding Value-Added Tax (WVAT), Documentary Stamp Tax (DST) and similar taxes) paid or payable, however designated, levied, or based on the amounts payable.
3.7 It is the responsibility of the Customer to determine what, if any, taxes apply to the payments it makes or receives, and it is its responsibility to collect, report and remit the correct tax to the appropriate tax authority. Spenmo is not responsible for determining whether taxes apply to your transaction, or for collecting, reporting or remitting any taxes arising from any transaction.
4. INTELLECTUAL PROPERTY RIGHTS, GENERAL RESTRICTIONS, PROHIBITED BUSINESS, AND PROHIBITED USE
4.1 All intellectual property rights in the Service(s) and the Platform (including copyright, trademarks, service marks, trade secrets, registered and unregistered design rights) are the property rights of Spenmo and its respective third-party Payment Partners or licensors. Subject to the limited rights expressly granted hereunder, Spenmo, the Payment Partners and its licensors (as the case may be) reserve all of their right, title and interest in and to the Service(s), including all of their related intellectual property rights. No rights are granted to the Customer hereunder other than as expressly set forth herein.
4.2 In using the Service(s) and Platform, the Customer shall grant to Spenmo and the Payment Partners a worldwide, non-exclusive right to use, copy, store, transmit, display, modify and create derivative works of Customer Data to the extent required by Spenmo to provide, manage and improve the Service(s) and related services, as well as to provide support to the Customer.
4.3 The Customer agrees that it shall:
4.3.1 comply with all applicable laws, regulations, guidelines, directions, instructions and limitations concerning the use of the Service(s), as may be issued by Spenmo or its Affiliates from time to time;
4.3.2 be responsible for:
(a) Users' compliance with this Agreement, including the Documentation; and
(b) the accuracy, quality and legality of any Customer Data and the means by which it acquires the Customer Data;
4.3.3 use commercially reasonable efforts to prevent unauthorised access to and/or use of the Service(s) or Platform, and shall notify Spenmo promptly of any such unauthorised access or use;
(a) make the Service(s) or Platform available to, or use the Service(s) or Platform for the benefit of anyone other than the Customer or its Users, unless expressly stated otherwise;
(b) use the Service(s) or Platform in any way to carry out or facilitate any activity which may be objectionable, illegal or prohibited by applicable law, or which may result in economic or reputational harm to Spenmo or its Affiliates;
(c) interfere with or disrupt the integrity or performance of the Service(s) or Platform;
(d) attempt to gain unauthorised access to the Platform or its related systems or networks;
(e) reverse engineer, modify, decrypt, disassemble, copy or decompile any part of the Platform or permit anyone else to do so (to the extent such restriction is permitted by law); or
(f) take any action in relation to the Service(s) or Platform in any way that may prejudice the commercial exploitation or legitimate interests of Spenmo and its Affiliates in the Service(s) or Platform;
4.3.5 maintain all necessary rights, approvals, licences and consents as may be required to grant Spenmo the rights to Customer Data, and to the extent that Customer Data contains the personal data of any individuals, Customer represents and warrants that such Customer Data is being collected, used, processed, disclosed or transferred by Customer to Spenmo and its Affiliates in compliance with applicable laws;
4.3.6 upon reasonable request by Spenmo or its Affiliates, provide all necessary information, cooperation and assistance as may be necessary to address any technical issues arising from its use of the Service(s); and
4.3.7 grant to Spenmo and its Affiliates a worldwide, perpetual, royalty-free licence to use and incorporate into their respective service(s) any suggestion, enhancement request, recommendation or other feedback provided by the Customer or Users relating to the operation of the Service(s) or Platform, as the case may be.
4.4 The following categories of businesses, business practices, and sale items are barred from the Service(s) (“Prohibited Businesses”). By opening a Spenmo account, the Customer confirms that it shall not use the Service(s) in connection with the following businesses, activities, practices, or items:
4.4.1 operating as an unlicensed money transmitter, money service, payment service provider, e-money, or any other financial services business which requires licensure, including but not limited to exchanges of virtual currencies, sales of money orders or traveler’s checks, and escrow services;
4.4.2 counterfeit products or any product or service that infringes upon the copyright, trademark, or trade secrets of any third party;
4.4.3 stolen goods;
4.4.4 narcotics, controlled substances, prescription and pharmaceutical services, drug paraphernalia, or any substances designed to mimic illegal drugs;
4.4.5 gambling, except where permitted by Philippine Amusement and Gaming Corporation (PAGCOR) and allowed by Spenmo;
4.4.6 sports forecasting or odds making;
4.4.7 prostitution or illegal escort services;
4.4.8 violent acts towards self or others, or activities or items that encourage, promote, facilitate or instruct others regarding the same;
4.4.9 funding any of the items included on this Prohibited Businesses list;
4.4.10 extortion, blackmail, or efforts to induce unearned payments;
4.4.11 unlicensed sale of firearms and certain weapons;
4.4.12 engaging in deceptive marketing practices; or
4.4.13 any business that violates any law, statute, ordinance or regulation.
4.5 The Customer shall not use Spenmo to engage in the following categories of activity (“Prohibited Use”). By opening a Spenmo Account operated by Spenmo, the Customer confirms that it will not use the Account to do any of the following:
4.5.1 violate or assist any party in violating any law, statute, ordinance, regulation or any rule of any self-regulatory or similar organization of which the Customer is or is required to be a member of (for example, those laws, rules, or regulations governing financial services, controlled substances, or consumer protections);
4.5.2 partake in a transaction which involves the proceeds of any unlawful activity;
4.5.3 partake in any transaction involving online gambling except where permitted by Philippine Amusement and Gaming Corporation (PAGCOR) and allowed by Spenmo;
4.5.4 defraud or attempt to defraud Spenmo or other Spenmo users;
4.5.5 infringe upon Spenmo’s or any third party’s copyright, patent, trademark, or intellectual property rights;
4.5.6 provide false, inaccurate or misleading information;
4.5.7 take any action that imposes an unreasonable or disproportionately large load on our infrastructure, or detrimentally interfere with, intercept, or expropriate any system, data, or information;
4.5.8 interfere with another individual’s or entity’s access to or use of any of the Spenmo’s Service(s);
4.5.9 defame, abuse, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as, but not limited to, rights of privacy, publicity and intellectual property) of others;
4.5.10 publish, distribute or disseminate any unlawful material or information;
4.5.11 transmit or upload any material to the Platform that contains viruses, Trojan horses, worms, or any other harmful or deleterious programs;
4.5.12 harvest or otherwise collect information from the Platform about others, including without limitation email addresses, without proper consent;
4.5.13 act as a payment intermediary or aggregator or otherwise resell any of Spenmo’s Service(s), unless expressly authorized by Spenmo in writing;
4.5.14 transfer any rights granted to the Customer under this Agreement;
4.5.15 use the Spenmo Account information of another party to access or use the Platform, except in the case of specific Merchants and/or applications which are specifically authorized by a user to access such user’s Spenmo Account and information;
4.5.16 otherwise attempt to gain unauthorized access to the Platform, other Spenmo Accounts, computer systems or networks connected to the Platform, through password mining or any other means;
4.5.17 engage in transactions involving items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the law; or
4.5.18 take any action that Spenmo deems as circumventing Spenmo controls, including, but not limited to, opening multiple Spenmo Accounts or abusing promotions which Spenmo may offer from time to time.
4.6 The Customer agrees that any violation of its obligations under Clauses 4.3, 4.4, and 4.5 above, or any use of the Service(s) in breach of this Agreement (including the Payment Partner Terms) by Customer or Users that in the judgement of Spenmo or its Affiliates imminently threatens the security, integrity or availability of the Service(s) or any other products or services offered by Spenmo and/or its Affiliates, may result in removal or modification of Customer Data, or immediate suspension or termination of the Service(s) without any liability owed by Spenmo to the Customer. Spenmo will use commercially reasonable efforts under the circumstances to provide the Customer with an opportunity to remedy such violation or threat prior to any such removal, modification, suspension or termination.
4.7 The Customer agrees that it will immediately notify Spenmo in the event that it becomes aware of any breach of Clauses 4.3, 4.4, or 4.5, or any misuse of the Service(s), and will provide Spenmo with reasonable assistance to remedy such breach or misuse.
4.8 Spenmo may also report any activity that it suspects to be in violation of any applicable law to relevant law enforcement or governmental authorities or third parties. Such reports may include the disclosure of appropriate customer information and Customer Data. Spenmo may also cooperate with relevant law enforcement or governmental authorities to assist with their investigation and prosecution of illegal conduct in relation to the Service(s).
5. INDEMNITIES, DISCLAIMERS, AND LIMITATION OF LIABILITY
5.1 Mutual indemnities
5.1.1 Spenmo agrees that it shall defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Spenmo in writing of, a Claim Against Customer, provided Customer (a) promptly gives Spenmo written notice of the Claim Against Customer, (b) gives Spenmo sole control of the defence and settlement of the Claim Against Customer (except that Spenmo may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives Spenmo all reasonable assistance, at Spenmo’s expense. If Spenmo or its Affiliates receives information about an infringement or misappropriation claim related to a Service, Spenmo may in its discretion and at no cost to Customer (i) modify the Service(s) so that they are no longer claimed to infringe or misappropriate, without breaching any of its obligations, representations or warranties under this Agreement, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid Fees covering the remainder of the term of the terminated subscriptions. The above defence and indemnification obligations do not apply to the extent a Claim Against Customer arises from any action by Customer, use of Customer Data or Customer’s breach of this Agreement.
5.1.2 The Customer agrees that it shall defend Spenmo and its Affiliates against any claim, demand, suit or proceeding made or brought against Spenmo or its Affiliates by a third party alleging that any Customer Data infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s use of the Service(s) in breach of this Agreement or applicable law (each a “Claim”), and will indemnify Spenmo and its Affiliates from any damages, attorney fees and costs finally awarded against Spenmo and its Affiliates as a result of, or for any amounts paid by Spenmo and/or its Affiliates under a settlement approved by Customer in writing of, a Claim.
5.1.3 The indemnities set out under this Clause 5.1 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this clause.
5.2 Except as expressly provided herein, neither Party makes any warranty of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law. Each Party disclaims all liability and indemnification obligations for any harm or damages caused by any third-party hosting providers.
5.3 Subject to Clause 5.5 below, in no event shall the aggregate liability of Spenmo and its Affiliates arising out of or related to this Agreement exceed the total amount of Fees actually paid by Customer to Spenmo hereunder for the Service(s) giving rise to the liability in the one (1) year preceding the first incident out of which the liability arose. The foregoing limitation will apply whether an action is in contract or tort and regardless of the theory of liability, but will not limit Customer's and its affiliates’ payment obligations under Clause 3 (Interest, Fees and Payment) above.
5.4 Subject to Clause 5.5 below, in no event will either Party (or Spenmo’s Affiliates) have any liability arising out of or related to this Agreement for any lost profits, revenues, goodwill, or indirect, special, incidental, consequential, cover, business interruption or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if such Party (or Affiliates thereof) has been advised of the possibility of such damages or if such remedy otherwise fails of its essential purpose.
5.5 The limits described in Clauses 5.3 and 5.4 shall not apply to any breach of the Customer's obligations under Clauses 3, 4 and 5.1.
6. TERM, SUSPENSION, AND TERMINATION
6.1 This Agreement and the provision of Service(s) to the Customer shall remain valid and continue until terminated by either Party in accordance with this Agreement.
6.2 Spenmo may at any time and without liability to the Customer terminate this Agreement including the provision of the Service(s). In such cases, Spenmo will endeavour to provide the Customer with not less than fourteen (14) days’ written notice. However, in certain cases, Spenmo may terminate the Account, the Service(s) or this Agreement by providing shorter notice or providing notice with immediate effect.
6.3 The Customer may terminate this Agreement or the Account at any time by providing Spenmo with no less than thirty (30) days’ written notice in the manner as may be specified on the Platform. However, no such termination will affect any instructions given by the Customer which is properly received by Spenmo before the receipt of such notice or any action Spenmo may take in relation to the Account before the receipt of such notice.
6.4 Notwithstanding any other provision in this Agreement, Spenmo reserves the right to restrict, temporarily or permanently suspend or terminate the Account, the provision of any Service(s), or this Agreement, at any time and with immediate effect, without incurring liability of any kind to the Customer if:
6.4.1 the Customer has committed a material breach of the terms of this Agreement, and such breach is not cured within fourteen (14) days after written notice of such breach is given by Spenmo;
6.4.2 the Customer has at any time provided any false or incomplete information to Spenmo;
6.4.3 the Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors;
6.4.4 the Customer is in breach of any applicable laws and/or is required by any government or authority to cease operations;
6.4.5 the Customer fails to make timely payment of any undisputed Fees due to Spenmo under this Agreement; or
6.4.6 Spenmo reasonably concludes that the Customer, or a Customer’s use of the Service(s) is causing immediate and ongoing harm to Spenmo and/or other Customers.
6.5 Any suspension of the Service(s) in accordance with Clause 6.4 shall not release the Customer of any of its other obligations under this Agreement. Customer acknowledges and agrees that neither Spenmo nor the Payment Partners shall be liable to Customer or any third party for any liabilities, claims or expenses arising from or relating to suspension of the Service(s).
6.6 Upon termination of this Agreement:
6.6.1 Customer shall settle all Outstanding Fees and invoices in full;
6.6.2 Customer shall destroy or return to Spenmo all copies of Spenmo's Confidential Information (as defined in Clause 7.1 below); and
6.6.3 Customer shall not be entitled to any refund of any Fees paid in advance to Spenmo for the Services.
7.1 The Parties acknowledge that in the course of dealings, each party may acquire information about the other party, its business activities and operations, its technical information and trade secrets, its business activities, customer lists, sales techniques, data and title files and formats, all of which are highly confidential and proprietary to the other party (the "Confidential Information"). Confidential Information will not include information generally available or known to the public, or information independently developed outside the scope of this Agreement. Each party will hold all such Confidential Information in strict confidence and will not use or reveal the same except pursuant to a court order (after giving notice to the other party and an opportunity to challenge or respond to such order) as permitted under this Agreement or upon request of the other party. The Confidential Information will be safeguarded with at least the same degree of care as a party uses to safeguard its own most confidential materials or data relating to its own business, but in no event less than a reasonable degree of care.
7.2 Clause 7.1 shall not prohibit disclosure of any Confidential Information if and to the extent:
7.2.1 required by applicable laws, regulation, reportorial and information submission requirements, legal process, or government request;
7.2.2 the information is properly disclosed to the professional advisors, auditors or bankers of the disclosing party, provided that the recipient is under a binding obligation not to disclose the information;
7.2.3 the information is in the public domain, other than through a breach of Clause 7.1;
7.2.4 the Party to which the information relates has consented to the announcement or disclosure; or
7.2.5 the disclosure is required for the purpose of any legal proceedings arising out of this Agreement.
8. DATA PROTECTION
8.1 Spenmo shall keep all its Users’ files in strictest confidence. By providing his/her information for purposes of using Spenmo’s Services, Customer expressly consents to the processing of his/her supplied Customer Data, as may be applicable. Customer may submit Customer Data to Spenmo via the Platform in the form of text files or documents or other representations of data. The Customer acknowledges that as part of the Service(s), Spenmo may process and transfer any part of the Customer Data to its Payment Partners, and any and all information, content, data, graphics, product names, company names, trademarks, logos, tradenames and any other intellectual property that may be contained in the Customer Data are the property of their respective owners.
8.2 Spenmo’s processing (including collection, use, storage and transfer) of Customer Data is subject to the Documentation. By accepting this Agreement and the use of the Service(s), Customer represents and warrants that they have read to and agree to the provisions thereof.
9. FORCE MAJEURE
Neither Spenmo nor any Payment Partner shall be liable to Customer for any failure or delay in performance caused by reasons beyond its reasonable control, including without limitation, acts of government, war, riot, civil disturbance, strike, industrial dispute, accident, pandemic, breakdown of computers, plant or machinery.
Notices required to be sent to either party under this Agreement will be sent via the Customer’s Account on the Platform, or by any other means determined between Spenmo and the Customer.
11. AMENDMENT, WAIVER OR VARIATION
11.1 Except as otherwise provided in this Agreement, no amendment, waiver or variation of this Agreement shall be valid or effective unless it is in writing, refers to the Agreement and is duly signed or executed by, or on behalf of, Spenmo.
11.2 No failure, delay or omission by Spenmo in exercising any right, power or remedy provided by law or under the Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
11.3 No single or partial exercise of any right, power or remedy provided by law or under the Agreement by Spenmo shall prevent any future exercise of it or the exercise of any other right, power or remedy by Spenmo.
11.4 A waiver of any term, provision, condition or breach of the Agreement by Spenmo shall only be effective if given in writing and signed by Spenmo, and then only in the instance and for the purpose for which it is given.
11.5 Any amendment or termination effected in accordance with this Clause 11 shall be binding on each party to the Agreement and all of such party’s successors and assigns, regardless of whether or not any such party, successor or assignee entered into or approved such amendment, termination or waiver.
12.1 The Agreement is personal to the Customer and the rights and obligations under it cannot be transferred or assigned, in whole or in part, without Spenmo's prior written consent.
12.2 The Customer acknowledges and agrees that all rights given to Spenmo or its Affiliates under this Agreement may be assigned to and/or exercised by any third party, including Spenmo's licensors and authorised resellers.
If any Clause or part thereof of this Agreement shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable in any way, such invalidity or unenforceability shall in no way impair or affect any other Clause or part thereof all of which shall remain in full force and effect.
14. THIRD PARTY RIGHTS
14.1 Subject to Clause 14.2, for the purposes of the Obligations and Contracts (Civil Code of the Philippines), this Agreement is not intended to and does not give any person who is not a party to it any right to enforce any of its provisions.
14.2 Notwithstanding Clause 14.1, Spenmo and its Affiliates shall be entitled under the Obligations and Contracts (Civil Code of the Philippines) to enforce any of the provisions of this Agreement (including the Payment Partner Terms) (to the extent that they are to be construed as third parties under such documents). Apart from any provisions directly relating to the Payment Partner Services, the consent of any such Affiliate is not required in order for Spenmo to rescind or vary this Agreement or any provision thereof.
15.1 If any Clause or part thereof of this Agreement shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable in any way, such invalidity or unenforceability shall in no way impair or affect any other Clause or part thereof all of which shall remain in full force and effect.
15.2 The rights and remedies provided in the Agreement for the parties are cumulative and not exclusive of any rights and remedies provided by law.
15.3 The Customer shall at the request of Spenmo, and at the Customer's own cost, do all acts and execute all documents which are necessary to give full effect to the Agreement.
15.4 The Agreement and any documents entered into pursuant to it constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
15.5 Spenmo shall be entitled to set-off under this Agreement any liability which it has or any sums which it owes to the Customer under the Agreement or under any other contract which Spenmo has with the Customer.
15.6 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it will be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the parties will negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision. Any modification to or deletion of a provision or part-provision under this clause will not affect the validity and enforceability of the rest of this Agreement.
15.7 This Agreement may be signed in any number of counterparts and by the parties on separate counterparts, each of which when signed and dated shall be an original, and such counterparts taken together shall constitute one and the same agreement. This Agreement shall not be effective until each party has signed one counterpart.
15.8 This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of the Philippines.
15.9 Any dispute arising from or in connection with this Agreement shall be first resolved through mediation. The mediation shall take place at the City of Cebu in accordance with the mediation procedures.
15.10 Should the mediation process detailed in Clause 15.9 fail to resolve the dispute, the dispute shall be referred to arbitration in accordance with the Republic Act No. 9285 or the Alternative Dispute Resolution Act of 2004 for the time being in force, and the language of the arbitration shall be in English. The seat of any arbitration proceeding will be in the City of Cebu, Philippines. The arbitral award shall be final and binding upon Parties.