TERMS AND CONDITIONS FOR DIGIPAY

FSG Technology Ventures, INC.

Effective as of 05 October 2020

DEFINITIONS

DIGIPAY - refers to FSG TECHNOLOGY VENTURES, INC., a corporation duly organized and existing under the laws of the Philippines, with office address at 6/F G Business Hub, 728 Shaw Blvd., Brgy. Wack-wack Greenhills East, Mandaluyong City.

AGENT - refers to a duly registered individual or establishment set up by the Applicant and authorized by DIGIPAY to provide any or all of the Services, as defined under these Terms and Conditions.

DIGIPAY PLATFORM – is a digital payments and financial services application with a biller/merchant ecosystem and interoperable back-end that may be accessed and used by the AGENT through web or mobile formats.

PARTY or PARTIES – refers to either DIGIPAY or AGENT, or both DIGIPAY and AGENT, respectively.

I. SERVICES TO BE OFFERED

DIGIPAY hereby authorizes the AGENT to offer the services enumerated below to AGENT’s customers, as and when available in the Digipay Platform (hereinafter, “Services”):

1. Mobile Money – Smart Money, PayMaya and GCash;
2. Tuition Fee Collection – tuition fee payment collection of partner schools, universities and other learning institutions;
3. Airtime Top-up – top-up or reload for prepaid telecommunication services and other prepaid services in the form of electronic load credits and pins;
4. Bills Payment – payment of utility bills (i.e. electric, water, telecommunications, cable, etc.), credit card bills, loan amortizations, insurance premiums, school fees, government fees (e.g. SSS, Pag-Ibig, etc.) and other similar payments;
5. Microinsurance – purchase of microinsurance products;
6. Travel booking services – over-the-counter purchase of airline tickets and payment of hotel bookings; and
7. Other related services (e.g. marketing services, communication services, etc.)

DIGIPAY shall provide the AGENT access to the Digipay Platform through an individual log-in account, which shall include a virtual wallet or settlement account (“Digipay Account”), to enable the delivery of the Services.

II. AGENT’S COMMITMENTS AND RESPONSIBILITIES

The AGENT must adhere to the following requirements set by DIGIPAY:

A. Digipay Account Setup and Loading

1. AGENT shall pre-fund its Digipay Account to allow the AGENT to perform the Services.
2. AGENT shall always maintain a Digipay Account balance that is enough to support the requirements of its establishment. Any transaction of the AGENT will not be processed if its Digipay Account balance is insufficient to cover the amount of the transaction.
3. AGENT shall reload or top-up its Digipay Account through authorized reloading channels. When applicable, the AGENT shall pay for the convenience fees incurred when opting to use alternative payment channels.
4. Should it desire to provide the Services at multiple branches/locations, the AGENT must have a Digipay Account for each branch/location.

B. Pricing

DIGIPAY reserves the right to mandate the rates, including but not limited to service fees, of all Services. The AGENT shall strictly implement the mandated pricing.

C. Monitoring

Agent must perform the following for every transaction:

1. Know-Your-Customer (“KYC”) – For each transaction, the AGENT shall be responsible for the verification of its customers’ identity and documentation and conduct the necessary KYC processes, in compliance with Republic Act No. 9160 or the Anti-Money Laundering Act of 2001 (“AMLA”), as amended and its Implementing Rules and Regulations, and shall enter accurate and complete data pertaining to the customers in the Digipay Platform.
2. At the minimum, and in addition to the required information to process the transaction, the AGENT shall obtain the following information from its customers: (i) complete name, (ii) address, and (iii) mobile number. Such information shall be entered in the Digipay Platform to process the transaction.
3. AGENT shall keep record of its transactions in the system for at least five (5) years (or such longer period as applicable law may require) from the date of transaction, including electronic cash transacted and the identity of the persons involved in the transaction.
4. AGENT shall ensure compliance with the data privacy laws in the Philippines and secure the personal information of the customers with utmost diligence.
5. AGENT shall perform any other acts as may be required under Philippine laws.

D. Reportorial Duties

AGENT is required to report in writing to DIGIPAY transactions that are considered suspicious/fraudulent under the AMLA within two (2) calendar days from the date of the relevant transaction.

E. Materials

AGENT is responsible for providing the necessary equipment, such as a computer, tablet or smartphone, with a data plan or Internet connectivity, to be used for the Services, as well as dedicated personnel to process its transactions using the Digipay Platform; provided that, the materials to be used by the AGENT and its branches/locations must be compliant with the minimum standards required by DIGIPAY.

F. Merchandising

1. The merchandising/marketing materials supplied by DIGIPAY to the AGENT shall be prominently displayed by the AGENT in each of its branches/locations in a storefront space dedicated for DIGIPAY.
2. The AGENT and its branches/locations must display the most updated/latest merchandising/marketing materials issued by DIGIPAY.
3. AGENT shall be responsible for the installation of the merchandising/marketing materials supplied by DIGIPAY, including any costs or additional materials/equipment necessary for such installation.

G. Promotional Cooperation

1. AGENT shall participate in all applicable promotional efforts conducted by DIGIPAY.
2. AGENT must seek approval from DIGIPAY before implementing any non-DIGIPAY-initiated promotional or marketing activities related to the Services.

H. Liquidity and Regulatory Compliance

To ensure that the AGENT complies with the proper KYC verification, policies and procedures prescribed by DIGIPAY and relevant government authorities, and is always able to accept transactions, the AGENT must pass the mystery shopper/audit to be conducted by and in accordance with the standards of DIGIPAY. In the event that the AGENT fails the audit, the Agent shall be penalized as follows:

• First Violation: DIGIPAY shall notify the AGENT through a formal Memorandum;
• Second Violation: DIGIPAY shall provide the AGENT a Second Warning through a formal Memorandum; and
• Third Violation: DIGIPAY shall have the option to block AGENT from accessing the Digipay Platform or to terminate this Agreement.

I. Customer Complaints

1. AGENT’s front liners must be able to handle basic customer queries in a manner satisfactory to DIGIPAY; and
2. More complex issues must be elevated by AGENT to DIGIPAY immediately for DIGIPAY’s escalation to its service provider.

J. No Exclusivity, Partnership or Agency

1. DIGIPAY has the option to, at any time, enter into similar arrangement with other persons and entities as channel partners.
2. The AGENT may enter into similar arrangement with other service aggregators or persons and entities in the same or related industry or business, with the prior written consent of DIGIPAY; provided that, similar arrangements with other service aggregators shall not cause any disadvantage to DIGIPAY, other than the competition in the ordinary course of DIGIPAY’s business and other service providers’ businesses.
3. Nothing herein shall be construed as (i) constituting the AGENT as a partner, joint-venturer, agent, employee or representative of DIGIPAY for any transaction of whatever nature, it being that AGENT and DIGIPAY are separate and distinct entities, and the relation of AGENT and DIGIPAY to each other is as independent contractors to the other; or (ii) giving AGENT any right or authority to act for, or represent, or otherwise incur or assume any obligation or liability in behalf of or in the name of DIGIPAY.
4. AGENT hereby recognizes that DIGIPAY has no employer-employee relationship with AGENT. AGENT is not subject to the control and supervision of DIGIPAY in so far as the means and methods to be employed, and is free to use any means and methods not contrary to law, regulations, and the provisions and spirit of this Agreement which AGENT believes will best enable promote the Services.
5. The AGENT shall indemnify and hold DIGIPAY free and harmless from, and defend DIGIPAY against, any and all claims arising from the employee-employer relationship between the AGENT and its employees.

K. Taxes

All national and local taxes of whatever nature incidental to or arising in connection with provision by the AGENT of the Services shall be for its sole account.

L. Personal Data and Privacy

1. The AGENT confirms that the personal data it has provided to DIGIPAY shall at all times be true, correct and up to date. AGENT and/or its front liners further agree that the submitted personal information and/or sensitive personal information may be used and/or processed by DIGIPAY to such extent and for such time periods as DIGIPAY may deem necessary or convenient to provide or promote the Services, and for all other purposes necessary to continue the business growth of DIGIPAY.
2. The Parties shall ensure that an obligation of confidentiality is imposed on persons authorized to process the personal data as that term is defined under Republic Act No. 10173, also known as the Data Privacy Act of 2012, its Implementing Rules and Regulations, and other relevant laws and issuances by the National Privacy Commission, and take reasonable steps to ensure the reliability and integrity of any its personnel who have access thereto. Further, the Parties shall disclose personal data or permit access to such personal data only to those authorized personnel with a need to know basis, and shall only provide such personal data to enable its authorized personnel to provide the services set forth in these Terms and Conditions.
3. The AGENT confirms that it has read and understood, and accepts DIGIPAY’s Privacy Consent, which shall govern the processing and sharing of AGENT’s personal and sensitive personal information by DIGIPAY and its partners/affiliates, and that it shall strictly comply and abide by its terms and conditions, and any future amendments thereof.

III. DIGIPAY’S COMMITMENTS AND RESPONSIBILITIES

A. Transaction Revenues

1. The AGENT will earn fees for successful transactions.
2. Compensation for other services, such as marketing services and other related services, will be determined and communicated by DIGIPAY to the Agent prior to implementation.
3. All service fees shall be credited to the AGENT’s Digipay Account on a real-time basis, except for service fees, which shall be credited within five (5) days after the end of the month of the transaction; and
4. DIGIPAY reserves the right to change its service fee structure. Any change shall take effect on the date specified by DIGIPAY in the notice to the AGENT.

B. Marketing Support

DIGIPAY shall provide merchandising and marketing support to AGENT. The AGENT shall not reproduce, alter, modify or create derivatives of the merchandising/marketing materials without the consent of DIGIPAY.

C. Service Levels

1. DIGIPAY shall aim to make the system available to the AGENT at all times.
2. In case of scheduled service downtime, such as system maintenance or system upgrade, the AGENT shall be notified in advance. As far as practicable, DIGIPAY shall schedule such system downtimes during off-peak hours to minimize the impact on AGENT’s business.
3. In case of transaction errors or system malfunctions, DIGIPAY shall respond within one (1) business day from the time the problem is reported by the AGENT. DIGIPAY shall diagnose the problem, and implement the solution to address the problem or escalate the problem to appropriate third-party service provider to achieve final solution, as applicable.

D. Customer Support

DIGIPAY shall provide a customer support hotline which shall be available to the AGENT on Mondays to Fridays from 8:00am to 7:00pm, and on Saturdays from 8:00am to 6:00pm, excluding legal holidays and days on which the proper government authorities have mandated a stoppage of operations or a decrease in employees’ working hours, such as but not limited to due to community quarantine or other similar emergency situations.

IV. DISPUTES AND ERRONEOUS TRANSACTIONS

A. The details in the system confirmation message after every transaction by the AGENT and/or the entries in the system transaction logs for the AGENT’s Digipay Account are presumed true and correct, unless the AGENT notifies DIGIPAY in writing of any disputes thereon within three (3) business days from the date of transaction. If no dispute is reported within the said period, all transactions and the entries in the system transaction log will be considered conclusively true and correct.

B. There shall be no reversals for transactions made through the Digipay Platform and erroneous transactions made by the AGENT. Disputed transactions shall only be credited back to the AGENT’s Digipay Account once the claim/dispute has been properly processed, investigated, and proven to be in favor of the AGENT, as determined by DIGIPAY. Only DIGIPAY can effect transaction reversals or credit back of transaction value to the AGENT’s Digipay Account.

C. DIGIPAY shall have the right, within thirty (30) calendar days from the conclusion of each transaction by the AGENT, to review and/or make the necessary correction or reconciliation to AGENT's Digipay Account in case of any error in debiting, crediting, or mis-posting of any amount (any and all of which shall be referred to as “Amounts Due”) for whatever cause such as but not limited to system, facility, employee, third-party, or communication error. AGENT hereby agrees and undertakes to immediately return to DIGIPAY the Amounts Due without need of notice or demand. For this purpose, AGENT irrevocably authorizes DIGIPAY to effect the reconciliation and necessary debiting of funds from the AGENT's Digipay Account to the extent of the Amounts Due, without need of further act and deed, and without DIGIPAY incurring any liability as a consequence thereof. The authority granted herein is coupled with interest and may not be revoked by the AGENT without the prior written consent of DIGIPAY. DIGIPAY shall notify the AGENT of any correction or reconciliation done, as well as the justifications therefor.

D. This Section is without prejudice to the exercise by DIGIPAY of the legal remedies to which it may entitled to under the law and this Agreement, including but not limited to immediate cancellation or suspension of the AGENT's DIGIPAY Account. Pending full recovery or collection by DIGIPAY of the Amounts Due, the AGENT shall hold the said amount in trust for DIGIPAY.

V. WARRANTIES AND LIMITATION OF LIABILITIES

The Parties warrant that: (i) the persons signing in behalf of each Party has full power and authority to bind the Party it represents, (ii) all appropriate and necessary corporate and legal actions have been taken to authorize the execution, delivery and performance of these Terms and Conditions; (iii) these Terms and Conditions constitutes their legal, valid and binding obligations, enforceable in accordance with its terms, and (iv) there is no provision in each Party’s Articles of Incorporation and By-Laws or any statute, rule or regulation, or any judgment, decree or order of any court or agency applicable to either Party which would be contravened by the execution and delivery of these Terms and Conditions or by the performance of any provision, condition, covenant or other term thereof.

B. Disclaimer of Warranties

1. DIGIPAY makes no warranty, express or implied, regarding its performance of or the Services offered hereunder.
2. The Services are offered by DIGIPAY on an “AS IS” and “AS AVAILABLE” basis without warranties of any kind. DIGIPAY makes no warranty, among others: (i) as to the content, quality or accuracy of data or information provided by DIGIPAY hereunder or received or transmitted using the system; (ii) as to any service or product obtained using the system; (iii) that the systems (or services) will be uninterrupted or error-free; or (iv) that any particular result or information will be obtained.
3. DIGIPAY does not provide any service level guarantees in so far as third-party proprietary platforms are concerned. It will, however, exert reasonable effort to forward AGENT’s concerns to the appropriate third-party for resolution.

C. Indemnification

1. The AGENT agrees to indemnify, defend and hold harmless DIGIPAY, its subsidiaries and affiliates, and their directors, officers, employees and agents,from and against any loss, damage, liability, costs and expenses, including reasonable attorney’s fees, arising out of or based on: (i) breach of, or failure to perform, any obligation of AGENT contained in these Terms and Conditions; or (ii) the negligence or misconduct of AGENT.
   If, for any reason, DIGIPAY is made to pay such damages, losses, liabilities, obligations, and claims, AGENT shall reimburse DIGIPAY for any and all payments that it may take, as well as all expenses and costs, including but not limited to litigation expenses and legal fees that may be incurred by DIGIPAY in connection therewith.
2. In no event shall DIGIPAY be liable for any indirect, special, incidental or consequential damages under these Terms and Conditions, including, without limitation, loss of profits, revenue, data or use, even if DIGIPAY has been advised of the possibility of such damages. DIGIPAY’s liability for damages under these Terms and Conditions shall not exceed the amount of the service fees generated by DIGIPAY from the AGENT during the last twelve (12) months from the occurrence of the event that caused the damage.

VI. EFFECTIVITY AND TERMINATION

A. These Terms and Conditions shall become effective on the date hereof and will remain to be effective for a period of three (3) years from such date, unless earlier terminated by either Party as provided for under these Terms and Conditions, or by mutual consent of the Parties in writing.

B. Either Party may terminate these Terms and Conditions in case of a breach by the other Party (“the Defaulting Party”) of any of the provisions of these Terms and Conditions, provided that such Defaulting Party has failed to remedy such breach within thirty (30) days from written notice thereof, in which case, the termination will become effective upon the lapse of such thirty (30)- day period.

For purposes of this Section, a Party shall be not be considered in breach of or in default under these Terms and Conditions on account of, and shall not be liable to the other Party for, any delay or failure to perform its obligations hereunder by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar event beyond that Party’s reasonable control (each a “Force Majeure Event”); provided, however, if a Force Majeure Event occurs, the affected Party shall, as soon as practicable:

1. Notify the other Party of the Force Majeure Event and its impact on performance under this Agreement; and
2. Use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations hereunder.

Notwithstanding the foregoing, either Party may terminate these Terms and Conditions if a Force Majeure Event adversely affects the other Party’s performance of its obligations hereunder, and continues for more than thirty (30) days. Termination shall be without prejudice to any right of any Party which may have accrued prior to the date of termination.

C. Either Party may terminate these Terms and Conditions without cause by giving the other Party written notice of at least thirty (30) days prior to intended date of termination (“Notice Period”).

D. Upon the expiration of the Notice Period, (i) AGENT shall return to DIGIPAY all related merchandising/marketing materials, unused supplies, and equipment provided by DIGIPAY pursuant to these Terms and Conditions; (ii) DIGIPAY shall return to AGENT the balance of the AGENT’s Digipay Account within thirty (30) business days from receipt by DIGIPAY of all such merchandising/marketing materials, unused supplies, and equipment provided by DIGIPAY pursuant to these Terms aND Conditions. DIGIPAY shall have the sole option to deduct from the balance of the AGENT’s Digipay Account anY amount to cover any unreturned or damaged materials, supplies or equipment.

E. The termination of these Terms and Conditions shall be without prejudice to any rights that may accrue to the Parties prior to such termination. Neither shall such termination prejudice the Parties’ rights under certain provisions of these Terms and Conditions, which are intended to survive such termination.

VII. CONFIDENTIALITY

Technical and commercial information, including all personal information of the clients, and other information which DIGIPAY may disclose to AGENT shall be considered confidential, and AGENT shall:

A. Hold the information in confidence and restrict disclosure of the information solely to its employees or representatives on a need to know basis under terms of confidentiality equivalent to those contained herein and shall not disclose it to any other parties; and

B. Advise its employees of their obligations with respect to the confidential information.

VIII. ASSIGNMENT

AGENT shall not assign or transfer its rights and obligations under these Terms and Conditions to a third party or its subsidiary without the prior written consent of DIGIPAY. The AGENT should also notify DIGIPAY in writing in case of a change in ownership. AGENT shall not lease out, lend or deliver possession over the materials or items provided by DIGIPAY under these Terms and Conditions to third parties without the prior written consent of DIGIPAY.

DIGIPAY may assign or transfer its rights and obligations under these Terms and Conditions to a third party or its subsidiary without prior written consent from the Agent; provided DIGIPAY notifies AGENT, in writing, of the assignment or transfer.

IX. AMENDMENT; WAIVERS

DIGIPAY reserves the right to amend revise, or modify any provision of these Terms and Conditions at any time and for whatever reason as it may deem proper, without need to provide prior notice to the AGENT. It is the AGENT’s responsibility to regularly check any changes to these Terms and Conditions at the following website: https://www.digipay.ph/terms. The AGENT’s continued use of the Digital Platform after any such changes constitutes acceptance of the new Terms and Conditions. Failure to notify DIGIPAY of AGENT’s intention to terminate its account shall be construed as acceptance by AGENT of the amendments to these Terms and Conditions.

No failure to exercise nor any delay in exercising any right or remedy under these Terms and Conditions on either Party’s part shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof of any other rights or remedies. The rights and remedies herein provided are cumulative and not exclusive of any provided by law. Any waiver of any Party’s rights, powers, privileges or remedies must be in writing and signed by that Party, and any such waiver given by a Party shall only relate to the particular event for which it is given.

X. NOTICES

Any notice required to be served under these Terms and Conditions by DIGIPAY to the AGENT shall be sufficiently served if forwarded by email, registered mail or by personal delivery at the addresses indicated in the application form submitted by the AGENT.

Any notice required to be served under these Terms and Conditions by the AGENT to DIGIPAY shall be sufficiently served if forwarded by email, registered mail or by personal delivery or left at the addresses below:

FSG Technology Ventures, Inc.

6/F G Business Hub
728 Shaw Blvd., Brgy. Wack-wack Greenhills East
Mandaluyong City, Philippines 1552
Philippines 1634

Email: info@digipay.ph

All notices shall be deemed duly given on the date of receipt, if personally delivered; the date fifteen (15) days after posting, if mailed; or receipt of transmission, if by facsimile or e-mail. Either Party may change its address for purposes hereof by giving notice to the other Party.

XI. AGREEMENT

The AGENT agrees to be bound by these Terms and Conditions.

XII. GOVERNING LAW; EXCLUSIVE VENUE

This Agreement shall be governed by the laws of the Republic of the Philippines. In the event that litigation results from or arises out of these Terms and Conditions or the performance of the provisions thereof, the prevailing Party shall be entitled to reimbursement from the other Party of reasonable attorneys’ fees, court costs, and all other expenses, whether or not imposed by the court as costs, in addition to any other relief to which the prevailing Party may be entitled.

Any dispute arising between the Parties hereto in respect of the interpretation of these Terms and Conditions as well as the performance of obligations hereunder shall be settled amicably by mutual consultations as far as practicable. In the event of any suit arising from these Terms and Conditions, the same shall be brought exclusively in the appropriate courts of Mandaluyong City, Philippines, to the exclusion of other courts.

XIII. SEVERABILITY

Should any portion of this Agreement be declared by any court of law as illegal, invalid or ineffective, the portions not so declared shall remain effective and valid and binding on the parties. The parties agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect if the invalid provision.