NextPay Platform Use Agreement

Last Updated May 2020

Overview

This Services Agreement (“Agreement”) is a binding legal agreement by and between NEXTENTERPRISES INC., (“Corporation”)and the entity or individual who agrees to or enters this Agreement (“Client”). This Agreement sets out the terms and conditions which will govern Customer’s use of Corporation’s Services, as defined below.

The Agreement is effective and legally binding on the date when the Client accepts the Agreement in writing or electronically, or otherwise uses Corporation’s Services (“Effective Date”).

WHEREAS, the Corporation is engaged in the business of development, research, manufacture, marketing and distribution of technology and all technology-derived products, tools and/or services for application primarily in financial services but also in planning, project management, supervision, maintenance, operation, and other technical business processes;

WHEREAS, the Corporation has developed, owns and operates a proprietary platform that enables businesses to manage their payrolls and electronically disburse salaries to their employees (the “Platform”)

WHEREAS, the Client is in need of a means to electronically disburse payments to employees or merchant partners and the Corporation is willing to allow the use of the Platform for such purpose subject to the terms and conditions in this Agreement;

NOW, THEREFORE, for and in consideration of the foregoing premises, the Parties hereby agree as follows:

  1. RIGHT TO USE

    1. The Corporation shall allow the use of the Platform by the Client solely for the purpose indicated in this Agreement.
    2. The Corporation shall allow the use of the Platform by the Client solely and exclusively to manage its payroll and electronically disburse salaries to its employees, Provided that, for the avoidance of doubt, “use” shall be interpreted as accessing the Platform thru its interphase as provided by the Corporation, uploading data into the Platform in a manner designed by the Corporation, utilizing the features of the Platform in the management of data and the Client’s payroll and facilitating the disbursement of salaries in a manner allowed by the Platform.
    3. The Client agrees and acknowledges that the Corporation shall have the right to restrict access to the full features of the Platform to the client in the event that the Client does not follow any of the requisites for the utilization of the Platform, including but not limited to transfer cash for disbursement and provision of payroll information as requested by the Platform.
    4. The Client acknowledges that while the Corporation owns and operates the Platform, it is the Client which provides payroll information, certifies as to its accuracy, provides the funding for disbursement and is the sole determining Party as to the manner and timing of disbursement of funds entrusted to employees.
    5. Subject to this Agreement, the Client shall be granted access at all times to customize and edit information uploaded on the Platform.
    6. The Corporation shall be responsible for operating, maintaining, updating and troubleshooting the Platform in order for the Client to fulfill the purposes of this Agreement.
  2. REQUIREMENTS FOR THE SERVICES

    1. Upon execution of this Agreement, the Client shall provide the Corporation with all the information as demanded by the Platform in order to perform the Purpose in this Agreement, including but not limited to email address/es and name/s of person/s to be granted access to the Platform, payroll information and bank account information of the Client’s employees.
    2. The Client shall maintain sufficient funds with the Corporation as may be required for disbursements ordered by the Client; Provided that, for the avoidance of doubt, the Parties agree that the Corporation holds the funds in trust and not as a deposit or loan.
  3. FEES, COLLECTIONS AND PAYMENTS

    1. This section is intentionally left blank.
  4. TERM

    1. This Agreement shall be valid and binding starting on the Effective Date until the termination by either party.
  5. EMPLOYER-EMPLOYEE RELATIONSHIP

    1. The Parties acknowledge that no employer-employee relationship exists between the Corporation and the employees of the Client. It is understood that the Client is the employer of said employees.
    2. The Parties further acknowledge that no employer-employee relationship exists between the Client and the Corporation.
    3. As employer, the Client acknowledges that it shall shoulder the payment of all salaries, wages and benefits of its employees, as may be required under existing laws and/or provided in policies of the Client.
  6. REPRESENTATIONS AND UNDERTAKINGS OF BOTH PARTIES

    1. The Parties to this Agreement hereby warrant and represent that:
      1. They have the full power, authority and legal right to enter into and perform their respective responsibilities and obligations pursuant to this Agreement;
      2. This Agreement constitutes their legal, valid, and binding obligation, enforceable against them in accordance with the terms hereof;
      3. The Parties are duly-authorized by their respective Boards of Directors to execute, delivery, and perform this Agreement;
      4. There are no actions, suits, proceedings or investigations pending or, to the best of their knowledge, threatened against them that would prevent the consummation or performance of this Agreement;
      5. The execution, delivery and performance of this Agreement will not violate or exceed their power, or contravene any provision of: (i) any applicable law, regulation, decree, order, Articles of Incorporation or By-Laws to which any Party is subject; and (ii) any contract or agreement to which they are parties or which are binding upon them or any of their assets; and,
      6. The parties are not subject to any disability or obligation which might interfere with the performance of their respective responsibilities pursuant to this Agreement.
    2. The Parties further undertake that:
      1. They have not made and will not make or perform any act that will interfere with the performance of their respective responsibilities and obligations under this Agreement;
      2. They will execute such additional contracts or agreements as may be necessary for the furtherance of the intents and purposes of this Agreement; and,
      3. They shall not, without the prior written consent of the other Party, assign any of their respective rights and interests under this Service to any third party.
  7. LIMITATION OF LIABILITY

    1. The Corporation shall not be liable for any and all losses, damages, or claims of whatever nature due to fortuitous events or force majeure such as but not limited typhoons, floods, earthquakes, public disturbances, calamities, epidemics or pandemics, and their effects or due to any act or circumstance beyond the control and reasonably foresight of the Corporation, or for which the Corporation is not responsible, or circumstances not otherwise attributable to the fault or gross negligence of the Corporation, such as but not limited to: (i) prolonged power outages, breakdown in computers and communication facilities, and similar cases; (ii) inaccurate, incomplete or delayed transmission of information to the Client due to disruption or failure of communication devices used for the services; and (iii) indirect, incidental, or consequential loss, loss of profit, or damage suffered by the Client.
    2. The Corporation shall be free and clear of any cost, claim or liability arising out of any dispute between the Client and its suppliers, customers or employees.
    3. The Client hereby agrees to indemnify and hold free and harmless the Corporation, its shareholders, directors, officers and employees against any and all losses, liabilities, damages and expenses (including reasonable attorney’s fees and expenses) that they, or any of them, may suffer or incur or be obligated to pay arising out of or resulting from: (a) any fault or negligence of the Client or the Client’s shareholders, directors, officers, employees or authorized representatives or any person controlled by or under contract with the Client; (b) any breach of this Agreement or any agreement, document or instrument executed pursuant hereto or concurrently herewith; and (c) any breach of any of the Client’s representations and warranties.
    4. Subject to communication to the Client as to the reason for withholding any payout or suspending settlement, the Corporation reserves the right to access the Platform at any time to suspend settlement of transactions when (a) there are pending, anticipated or excessive chargebacks, refunds or reversals, (b) the Corporation suspects or becomes aware of suspicious activity, (c) the Corporation is required by applicable law, court order or an order of the Bangko Sentral ng Pilipinas or any other competent regulator, or (d) there are analogous circumstances to the above that would either place the Corporation or the Platform at risk, that would result to losses resulting from credit, fraud or other associated risks, or that would constitute an illegal act under the laws of the Republic of the Philippines.
  8. UNAUTHORIZED TRANSACTIONS AND ERRORS

    1. The Client shall be responsible for Unauthorized Transactions; Provided that, the Corporation shall provide assistance to the Client as outlined in this Agreement. The Corporation shall be responsible for and shall rectify Errors when determined in accordance with this Agreement.
    2. An "Unauthorized Transaction" refers to transaction created or facilitated thru the Client’s account that it did not authorize and/or that it did not benefit from whether due to unauthorized access to its account, loss or theft of login information or the account was utilized by a person otherwise authorized but was utilized in an unauthorized manner.
    3. An "Error" refers to the following:
      1. A processing error made by the Corporation or its suppliers in which the Client’s account is mistakenly debited or credited, or when a transaction is incorrectly recorded in Client’s account;
      2. The Client sends a disbursement and the incorrect amount is debited from its account by the Corporation;
      3. A transaction is missing from or not properly identified in the Client’s account statement due to the fault of the Corporation; or,
      4. The Corporation made a computational or mathematical error related to the Client’s account.
    4. The following instances shall not be considered an “Error”:
      1. Instances that fall under the definition of “Unauthorized Transactions”;
      2. If the Client erroneously sends a disbursement to the wrong party, or sends a disbursement for the wrong amount; or,
      3. Processing delays.
    5. The Client shall notify the Corporation in writing within fifteen (15) calendar days from receipt of the statement or receipt from the Corporation whether there was an error or an unauthorized transaction; Provided that, upon the lapse of such 15-day period the statement or receipt shall be deemed to not carry an errors or that the transaction is authorized. The notification shall describe the possible error or unauthorized transaction.

      Upon notification as indicated in this Agreement, the Corporation shall conduct an investigation within ten (10) business days after receipt.

      After completing the investigation, if the Corporation decides that there was no error or unauthorized transaction, the Corporation will send you a written explanation of the decision. If the Corporation determines that there was an error, the Corporation will promptly rectify the error within ten (10) business days from the completion of the investigation. If the Corporation determines that there was an unauthorized transaction, the Corporation will proceed in accordance with Section 8.6 of this Agreement.
    6. In the event that the Corporation determines there was an unauthorized transaction, the Corporation shall:
      1. Notify and coordinate with the corresponding partner bank and recipient bank to facilitate possible return of the funds subject of the unauthorized transaction within twenty-four (24) hours from determination of such unauthorized transaction;
      2. Coordinate with the Client for possible civil, criminal and/or administrative action within ten (10) business days from determination of such unauthorized transaction; and/or,
      3. Freeze the Client’s account as necessary.
  9. CONFIDENTIAL INFORMATION

    1. Neither Party shall disclose to third parties or to their employees, any information concerning the business, affairs, of the other Party which either Party may acquire in the course of its activities under this Agreement, except to their employees who need to know such information for the performance of this Agreement and exclusively for such purpose. Either Party shall take all necessary precautions to prevent any unauthorized disclosure by any of its employees.
    2. The foregoing provision shall not apply to any information which: (a) has become publicly known through no fault of either Party or its employees; (b) was rightfully received from a third party without a breach of any such agreement by such third party; or (c) was approved for release by written authorization by the Client or the Corporation, as the case may be.
    3. The Parties shall continue to abide by the Non-Disclosure Agreement executed between the Parties on [•]; Provided that, in the event of any conflict between such Non-Disclosure Agreement and Section 8 of this Agreement, the former shall prevail.
    4. As an exception to confidentiality obligations in this Agreement, the Parties agree and acknowledge that each other’s brand names and logos may be utilized in marketing collaterals solely for the purpose of promoting their respective businesses. Further, subject to subsequent agreements, the Parties agree and acknowledge that they may solicit each other’s assistance in creating marketing content to promote their respective businesses
  10. INTELLECTUAL PROPERTY

    1. Intellectual Property Rights means all patents, unpatented inventions, registered and unregistered design and design rights, copyrights (including rights in computer software), database rights, topography rights, domain names, trademarks, rights in trade dress and get up, rights in good will or to sue for passing off, service marks, trade names, logos, rights in trade secrets, know-how (including applications or the right to apply for all of the foregoing) and all other intellectual property rights of any nature whatsoever and all rights of a similar nature having similar effect throughout the world whether registered or unregistered and whether now existing or in the future created.
    2. The Corporation shall retain absolute ownership over the Intellectual Property Rights over its devices and the Platform, including all pertinent software and hardware thereto.
    3. Each Party shall promptly notify the other in writing of any alleged or threatened infringement of any Intellectual Property Rights. The Corporation shall have the right, and according to its sole discretion, to direct, take, bring and control any action or proceeding in its own name, with respect to infringement.
  11. DATA PRIVACY

    1. Each Party warrants that it shall, at all times, be fully compliant with the Data Privacy Act of 2012 and its implementing rules and regulations, including any amendments or supplements thereto, as well as any applicable privacy laws or regulations, as may be applicable.
  12. TAXES, FEES, AND BENEFITS

    1. The Client shall be solely responsible for all taxes and fees connected with the salaries of the employees of the Client. The Client shall hold the Corporation free and harmless from any liability arising from any such taxes and fees.
    2. The Client shall be solely responsible for all the mandatory and non-mandatory benefits owed to its employees in accordance with pertinent laws, rules and regulations and the internal policies of the Client. In no case shall the Corporation be made responsible for any benefits.
    3. The preparation, issuance, filing, and safekeeping, as the case may be, of all accountable forms connected with such taxes, fees and benefits shall be the sole responsibility of the Client.
  13. TERMINATION

    1. This Agreement shall remain in effect unless terminated earlier under the provisions of this Agreement.
    2. This Agreement shall remain in effect unless terminated earlier under the provisions of this Agreement.This Agreement may be terminated by either party upon no less than thirty (30) days written notice, for any reason, unless a lesser time is mutually agreed by both parties.
    3. Either Party (the “Non-Defaulting Party) shall have the right to terminate this Agreement by written notice to the other Party (the “Defaulting Party”) at any time whenever any of the following events shall occur:
      1. Breach of this Agreement by the Defaulting Party and failure to remedy such breach within thirty (30) days after notice requiring it to do so;
      2. Insolvency of the Defaulting Party, or the Defaulting Party becomes subject to any bankruptcy, receivership, administration or other procedure arising out of failure to pay debts overdue; and,
      3. The representation and warranties of the Defaulting Party, as specified herein, is proven false in any material respect.
  14. ARBITRATION

    1. All disputes, controversies or differences arising out of or in connection with this Agreement (including, without limitation, questions of interpretation of any of the provisions of this Agreement) shall be amicably settled by mutual consultation within thirty (30) days after written notice thereof has been given by the complaining Party. Should the Parties fail to agree within the said period, the matter in dispute shall be finally settled by arbitration in the Philippines in accordance with the Philippine Arbitration Law by which each Party agrees to be bound. Any award by the arbitration tribunal shall be final and binding upon the Parties and may be enforced by judgement of a competent court having jurisdiction in the premises. Nothing herein contained shall bar the right of any of the Parties to obtain injunctive relief against threatened conduct that will be likely to cause loss and/or damage pending the resolution of the dispute by arbitration pursuant to this Agreement.
  15. GOVERNING LAW

    1. The Client shall be solely responsible for all the mandatory and non-mandatory benefits owed to its employees in accordance with pertinent laws, rules and regulations and the internal policies of the Client. In no case shall the Corporation be made responsible for any benefits.
  16. ASSIGNMENT

    1. This Agreement is being entered into by the Client based on the Corporation’s particular abilities and therefore shall not be assigned by the Corporation, or any duty under this Agreement delegated, without the prior written consent of the Client.
    2. The Client shall not, without written consent of the Corporation, assign this Agreement to a third party.
  17. SEPARABILITY

    1. If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement, and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.
  18. WAIVER

    1. The waiver by either Party of a breach of any of the provisions of this Agreement by the other Party shall not be construed as a waiver of any succeeding breach of the same or other provisions; nor shall any delay or omission by either Party in exercising any right that it may have under this Agreement operate as a waiver of any breach or default by the other Party.
  19. NOTICES

    1. All notices required or permitted to be given under this Agreement shall be in writing and shall be addressed to the Parties at the addresses set forth above or such addresses as may from time to time be notified to such Parties. A notice with respect to a change of address shall be effective only when actually received.
  20. AMENDMENTS

    1. Except as may otherwise be provided in this Agreement, no modifications, amendments or supplements to this Agreement shall be effective for any purpose unless in writing and signed by each Party. Approvals or consents hereunder by a Party shall also be in writing.
  21. INTERPRETATIONS

    1. This Agreement is executed in the English language. The language used in this Agreement shall be deemed to be the language chosen by the Parties hereto to express their mutual intent and no rule of strict construction against either Party shall apply to any term or condition of this Agreement. The headings to this Agreement are for ease of reference only and shall not be used to construe any provision. The word “including” shall not limit a more general preceding phrase. References to an Exhibit means an exhibit to this Agreement, which shall form part of this Agreement.
  22. ENTIRE AGREEMENT

    1. The terms and conditions of this Agreement, all related agreements indicated herein and the terms, conditions and policies connected with the use of the Platform constitute the entire Agreement and understanding of the Parties hereto and supersede all previous understandings, agreements or communications, whether oral or written, between the Parties hereto with respect to the subject matter hereof.
    2. The Client acknowledges and agrees that this Agreement may be executed electronically; Provided that, in the case of electronic execution, in lieu of a handwritten signature, consent shall be given by indicating conformity to this Agreement in the manner indicated in the Platform.
    3. If executed electronically as indicated in Section 21.2 of this Agreement, such execution shall be without prejudice to the right of the Corporation to require the execution of a hard copy of this Agreement and the notarization thereof; Provided that, such hard copy shall not differ in substance from the Agreement as it appears on and conformed to in the Platform; Provided further that, the Client may not refuse execution of a hard copy upon requirement of the Corporation to execute such hard copy, except for cases when such hard copy differs in substance from the Agreement as it appears on and conformed to in the Platform.

IN WITNESS WHEREOF, the Client and the Corporation have caused this Agreement to be executed by their duly authorized representatives.

ANNEX A – Service Fees

The Client agrees to pay the Corporation service fees in accordance to the following schedule:

  1. FEES

    1. Disbursements: The Corporation shall charge a fixed fee of PHP15.00 for every transaction worth PHP50,000.00 or below; Provided that, the Corporation shall charge an additional PHP15.00 for every PHP50,000.00 or fraction thereof thereafter. Costs imposed by transfer agents, other payment systems and other third party service providers part of the transaction shall be included as additional fees.
    2. Invoicing: A fixed fee of PHP15 in addition to a fee of 3.5% of the total transaction value shall be charged by the Corporation.
    3. Ecommerce: A fixed fee of PHP15 in addition to a fee of 3.5% of the total transaction value shall be charged by the Corporation.
    4. Invoicing: A fixed fee of PHP15 in addition to a fee of 3.5% of the total transaction value shall be charged by the Corporation.
  2. OTHER TERMS AND CONDITIONS

    1. Disbursements, Invoicing, Bills, & Ecommerce: Fees due shall be deducted automatically from the account of the Client.
    2. Deposits: The Client shall transfer to the account of the Corporation its full amount of deposit at least 1-2 business days ahead prior to any disbursements to be initiated.
    3. All fees imposed by the Corporation may be increased by the Corporation from time to time subject to at least thirty (30) day notice prior to effectivity of such increase. Notice of such increase may be done by the Corporation via email, through the platform, via written notice, via SMS, or through any efficient and effective means of communications or combination thereof at the sole discretion of the Corporation.Any decrease in fees may be implemented by the Corporation at its sole discretion without need of notice.Any change in terms and conditions concerning service fees shall be subject to a maximum ten (10) day notice requirement prior to effectivity of change in such terms and conditions. Notice of such increase may be done by the Corporation via email, through the platform, via written notice, via SMS, or through any efficient and effective means of communications or combination thereof at the sole discretion of the Corporation.

Contact Us

If you have any questions regarding the Platform Use Agreement, please send an electronic mail to info@nextpay.world.