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Merchant agreement

Last update: May 07, 2021

1. DEFINITION OF TERMS

The following terms, used either in singular or plural, shall have the meaning as set below:

1.1.  AGREEMENT – these terms and conditions, including any annexes and attachments, along with any additional agreements concluded with the MERCHANT in regard to the SWIFTPAY SERVICE;

1.2.  ACCOUNT STATEMENT – the information about the financial operations provided for the MERCHANT as part of the SWIFTPAY SERVICE;

1.3.  CLIENT – the MERCHANT’s customer/end-user who transacts through the MERCHANT’s website or over the channels accepted by SWIFTPAY;

1.4.  SWIFTPAY – the entity incorporated under the laws of Philippines under the name SWIFTPAY TECHNOLOGY VENTURES INC. operating the SWIFTPAY SERVICE;

1.5.  SWIFTPAY SERVICE or SERVICE – the service and software offered by SWIFTPAY that allows the CLIENT of any MERCHANT to pay for purchases through any payment channel jointly supported by the MERCHANT and SWIFTPAY. This system directly debits the CLIENT’s fund source and credits the  MERCHANT’s account with SWIFTPAY. The full, current range of services and their specification is set out in “Attachment 1 – the Services” as available on the following website: https://swiftpay.ph/terms-and-conditions-services;

1.6.  FORMS – any electronic documents that have to be filled by the CLIENT with his/her financial data to use the SWIFTPAY SERVICE;

1.7.  BUSINESS DAY  – any day excluding Saturdays, Sundays, days declared in the Philippines as public holidays and days declared by the Bankers Association of the Philippines or any other entity as a holiday;

1.8.  PRIVACY POLICY – refers to the policy provided for the processing of the personal information by SWIFTPAY, as set out in “Attachment 2 – Privacy Policy” as available on the following website: https://swiftpay.ph/privacy-policy;

1.9.  PAYMENT TRANSACTIONS – mean a legitimate transaction of payment or settlement made with the CLIENT, performed in whole or in part via electronic communication and processed with the use of the SERVICE, enlisted in the “Attachment 3 – Payment Transactions” as available on the following website: https://swiftpay.ph/terms-and-conditions-transactions;

1.10.   GENERAL TERMS OF LICENSE – means general license terms regarding the SWIFTPAY SERVICE, set out in “Attachment 4 – General Terms of License” as available on the following website: https://swiftpay.ph/terms-and-conditions-license.

2. GENERAL PROVISIONS

2.1. Under this AGREEMENT, SWIFTPAY agrees to provide services to allow MERCHANT to further provide SWIFTPAY SERVICES to the CLIENT.

2.2. The MERCHANT must read the terms and conditions of this AGREEMENT carefully. By accepting the AGREEMENT the MERCHANT acknowledges that he has read, understood and agreed with thus AGREEMENT. The provisions of this AGREEMENT is effective towards the MERCHANT on the moment when the MERCHANT clicks “I agree” on checkbox on the website, accepting the provisions of this AGREEMENT.

2.3. Nothing in this AGREEMENT shall be deemed to establish or imply any other relation or a partnership, company or joint venture between SWIFTPAY and the MERCHANT. Nothing in this AGREEMENT shall be deemed to construe either of the parties as the agent of the other.

2.4. The SWIFTPAY SERVICE is delivered to CLIENT on an “as is” basis and although SWIFTPAY has used its best endeavours to make the SERVICE work properly, SWIFTPAY does not warrant the performance of the SWIFTPAY nor the compatibility of the SWIFTPAY with CLIENTS’ devices.

2.5. SWIFTPAY reserves the right, but shall not be obliged, to pursue investigations and/or inquiries on the conduct and/or alleged violations by CLIENT based on any reports or complaints, and to impose appropriate penalties or consequences on the MECHANT and CLIENT, at the sole and absolute discretion of SWIFTPAY.

3. SECURITY AND PRIVACY PROVISIONS

3.1.  SWIFTPAY and MERCHANT will ensure the security and confidentiality of all information of the CLIENTS, in accordance with relevant laws.

3.2.  Using the SWIFTPAY SERVICE requires certain information to be entered by the CLIENT to authenticate his identity and authorise access to his fund sources. 

3.3.  All transactions processed by SWIFTPAY will be included in the electronic files.

3.4.  In case of any threat to the security and confidentiality of the CLIENT information, SWIFTPAY will suspend the performance of the SWIFTPAY SERVICE until the threat is addressed to the satisfaction of SWIFTPAY.

3.5.  Due to the requirements of security, privacy, and confidentiality, the MERCHANT is not allowed to enter data into the FORMS on behalf of the CLIENT.

3.6.  SWIFTPAY reserves the right to temporarily or permanently suspend the SWIFTPAY SERVICE to the MERCHANT due to his/her any actual or threatened fraudulent or unethical business practice, violation of the AGREEMENT, or any other unauthorised use of the SWIFTPAY SERVICE. 

3.7.  To recover access to the SWIFTPAY SERVICE, the MERCHANT has to submit a satisfactory explanation in regard to the concerns of SWIFTPAY that led to the suspension of the services. If the explanation is plausible, SWIFTPAY will reactivate the SWIFTPAY SERVICE within 10 BUSINESS DAYS of the filing of such an explanation.

3.8.  By availing of SERVICE, the MERCHANT and its CLIENTS conclusively agree that the SERVICE to be provided by the SWIFTPAY shall be subject to the terms and conditions provided in the PRIVACY POLICY. The MERCHANT shall be obliged to pass the terms of the PRIVACY POLICY to the CLIENTS.

4. TIME OF TRANSACTIONS

4.1.  PAYMENT TRANSACTIONS received by SWIFTPAY up to the cut-off time of 12:00 midnight Manila, Philippine Time (GMT+8) will be considered as transactions of that day. Any transaction received by SWIFTPAY after the cut-off time will be considered as a transaction of the next day.

4.2 PAYMENT TRANSACTIONS will be settled on the terms presented in the “Attachment 3 – Payment Transactions” as available on the following website: https://swiftpay.ph/terms-and-conditions-transactions.

5. MODIFICATIONS OF THE SWIFTPAY SERVICE

5.1.  SWIFTPAY has the right to add/modify/remove payment methods from the SWIFTPAY SERVICE. The list of current, available payment methods shall be set out in “Attachment 1 – the Services” as available on the following website: https://swiftpay.ph/terms-and-conditions-services.

5.2.  The MERCHANT will be informed about such changes with due notice and in case of the removal or modification of payment methods – at least 2 weeks before such removal or modification.

5.3.  Sec. 14.1 of those Terms and Conditions will apply to removals or modifications of payment methods that are used at that time by the MERCHANT.

5.4.  SWIFTPAY may issue from time to time revised versions of the SWIFTPAY SERVICE software, which may include improvements, extensions and general changes in the operation of the SWIFTPAY SERVICE software for the purpose of providing more functionality and better services. For revised versions of software the MERCHANT will be informed with announcements.

6. RESPONSIBILITIES OF THE MERCHANT

6.1.  The MERCHANT will set up an interface to connect his website to the SWIFTPAY SERVICE to allow payments made through that system. Unless otherwise agreed upon, the MERCHANT will be responsible for the cost of setup, configuration, hardware, software, routers/modems, and other items that may be necessary to connect the MERCHANT system to the SWIFTPAY SERVICE.

6.2.  The MERCHANT agrees that the SWIFTPAY SERVICE will be used solely for the website, products, and services as agreed by the Parties.

6.3.  The MERCHANT is not allowed to use the SWIFTPAY SERVICE to receive payments for illegal or unethical products and services, as well as for products infringing on any third party’s copyright, patent, trademark, trade secret, or other property rights. 

6.4.  The MERCHANT is solely responsible for any non-delivery or erroneous delivery of his product/service.

6.5.  The MERCHANT will bear the financial risk of any error or fraud committed by its CLIENTs with the use of the SWIFTPAY SERVICE.

6.6.  The MERCHANT indemnifies SWIFTPAY against any damages and costs incurred by SWIFTPAY as a result of the activities set out in sec. 6.3-6.5 above, including fines and other related legal expenses, as well as obliges to hold SWIFTPAY harmless from any connected claims of third parties. Furthermore, the MERCHANT will hold SWIFTPAY harmless from all liability against the CLIENTS for the quality and delivery of the MERCHANT’s products or services.

6.7.  The MERCHANT will handle all of his CLIENTS’ queries and complaints relating to the online purchase of products/services and payment via the SWIFTPAY SERVICE. 

6.8.  Any complaint arising from the billing made by the MERCHANT to his CLIENTS will be referred to the MERCHANT for immediate investigation and settlement.

6.9.  In case there is a need to credit back a CLIENT’s account due to an erroneous payment or fraud, the MERCHANT agrees that SWIFTPAY may deduct the contested amount from the unsettled transactions to MERCHANT. If the unsettled transactions are insufficient to cover the amount to be credited back, the MERCHANT will pay the due amount immediately upon demand.

6.10.   The MERCHANT will coordinate, promote, and enforce with the CLIENTS the policies, standards, and procedures of SWIFTPAY while using the SWIFTPAY SERVICE.

6.11.   It is forbidden for the MERCHANT and CLIENT to proceed or allow third parties to make, and/or to attempt on the their behalf to make and distribute copies of SWIFPTAY SERVICE, to attempt copying, reproduction and modification or reverse engineering of the Products  or any part thereof, rent, lease, loan, sell, publish, grant sub-license, distribute, transfer or otherwise transfer any part of the application to any third party, to consolidate, adapt or create derivative works, reconstruction of objects or source code, to attempt to access otherwise the source code of the Products.

7. RESPONSIBILITIES OF SWIFTPAY

7.1.  SWITPAY SERVICE is available and accessible via Internet. SWIFTPAY will make every reasonable effort to ensure that SWITPAY SERVICE is accessible and available anytime. However, since this application is available via Internet, the quality and accessibility of the application may be affected by factors that are beyond the sphere of influence of SWITPAY. Nothing in this section shall be deemed as a Company’s warranty on the SWITPAY SERVICE being accessible and available anytime.

7.2.  SWIFTPAY is not responsible for the unavailability of the SWITPAY SERVICE or for any difficulty or inability to access, or for any other failure of the network (for example for network failures, telecommunication network delays etc.) in consequence of which the CLIENT cannot access SWITPAY SERVICE.

7.3.  SWIFTPAY will:

a. Operate and maintain the SWIFTPAY SERVICE in a diligent manner so to make it available accessible and available anytime. Technical breaks are allowed if 1) made in accordance with the requirements of the BSP and financial regulators, 2) forced by causes beyond SWIFTPAY’s reasonable control;

b. Provide the MERCHANT with relevant system documentation of its existing infrastructure to enable the MERCHANT to develop the required interface programs. Such documentation shall be available in “Attachment 1 – the Services” as available on the following website: https://swiftpay.ph/terms-and-conditions-services;

c. Support the MERCHANT in the implementation of the SWIFTPAY SERVICE;

d. Accept and process payments through the channels available through the SWIFTPAY SERVICE, subject to sec. 5.3 and any legal restrictions imposed on SWIFTPAY;

e. Credit the account of the MERCHANT with the CLIENTS’ payments made through the SWIFTPAY SERVICE;

f. Provide the MERCHANT with the ACCOUNT STATEMENT based on the agreed schedule to show the amounts credited or debited for the MERCHANT’s review;

g. Undertake the necessary security measures to reduce the possibility of fraud or error. However, SWIFTPAY may be held liable only for errors or frauds committed due to the wilful misconduct, fraud or gross negligence of its employees or subcontractors.

8. INTELLECTUAL PROPERTY

8.1.  MERCHANT acknowledges that the copyright, designs, trademarks, and other intellectual property rights comprised in the information, text, graphics, scripts, software, technology, music, sound, photograph, or any other materials or works used or contained in the SWIFTPAY SERVICE or belonging to SWIFTPAY (collectively “SWIFTPAY’s IPR”) are the sole and exclusive property of SWIFTPAY and/or its licensors.

8.2.  The MERCHANT agrees that with the exception when it is directly allowed by the Agreement, he will not, without SWIFTPAY’s prior written consent, perform the following:

a. reproduce, copy, reverse compile, adapt, modify, distribute, commercially exploit, display, broadcast, hyperlink, or transmit by any means, or store in a system any part of SWIFTPAY’s IPR; or

b. create or use any derivative works from SWIFTPAY’s IPR.

8.3.  The MERCHANT will make his clients aware of the SWIFTPAY SERVICE by displaying SWIFTPAY’s logo and the information about the service when on the website where the payments are processed. SWIFTPAY hereby grants the MERCHANT the non-exclusive, limited, revocable right to use SWIFTPAY’s logo for this purpose and only as part of the SWIFTPAY SERVICE provided to the MERCHANT.

8.4.  GENERAL TERMS OF LICENSE apply to the use of the SWIFTPAY SERVICE by MERCHANT and CLIENT. It is MERCHANT’S responsibility and liability to acknowledge himself and the CLIENTS with the terms of the GENERAL TERMS OF LICENSE.

9. CONFIDENTIALITY

9.1. All information disclosed and exchanged between SWIFTPAY and the MERCHANT in the course of negotiations and further cooperation will be considered Confidential Information. The Confidential Information should not be distributed, disclosed, or disseminated without the disclosing party written agreement, and should only be known to employees who need to know such information for the purpose for which it is disclosed.

9.2. The detailed provisions concerning the confidentiality obligations and terms and conditions of the SWIFTPAY SERVICE’S confidentiality shall be set in PRIVACY POLICY.

10.  FEES FOR THE SWIFTPAY SERVICE

10.1.  The fees will be paid according to the fee schedule set out in “Attachment 5 – Fee Schedule” (“Fee Schedule”) as available in its latest version on the website: https://swiftpay.ph/fees.

10.2. SWIFTPAY may introduce changes to its Fee Schedule during the term of the Agreement with the MERCHANT. SWIFTPAY will inform the MERCHANT about the changes at least 2 weeks before introducing a new Fee Schedule.

10.3.  The Merchant may terminate the Agreement if he does not agree with pricing terms introduced as part of a new Fee Schedule, in accordance with the rules of termination set out in 11.3 of these Terms and Conditions.

10.4.  SWIFTPAY may withhold the service provided to the MERCHANT if he does not issue payments in accordance with the Fee Schedule. The transactions started by the CLIENTS using the SWIFTPAY SERVICE before the suspension of the services will be completed by SWIFTPAY.

10.5.  All fees paid/payable to SWIFTPAY by MERCHANT under this Agreement shall be payable in cleared funds in the agreed currency on the due date of such amounts inclusive of all applicable Philippine taxes.

10.6.  SWIFTPAY shall pay the MERCHANT the full amount in the Merchant Payment File generated by the System, net of the Merchant Discount Rate as agreed in the Merchant Agreement Enrolment Form.

11.  REPRESENTATIONS AND WARRANTIES OF THE MERCHANT

11.1. The MERCHANT hereby represents and warrants that:

a. he is duly licensed and have the right to market, distribute, and sell his products or services online,

b.  the content provided by the MERCHANT does not infringe upon any copyright, trademark, or other proprietary rights of third parties,

c. the content provided by the MERCHANT does not violate any relevant laws or third parties’ rights established under contracts made by the MERCHANT with those third parties.

12.  LIMITATION OF LIABILITY

12.1. Except to the extent that any exclusion or limitation of liability is void, prohibited or unenforceable by applicable law, SWIFTPAY’S liability shall be limited as provided in this Sec. 12.

12.2. SWIFTPAY shall not be liable for any direct or indirect damage that may be caused with the use of SWIFTPAY SERVICE; in particular, SWIFTPAY shall have no liability for any loss of profit or revenue or for any consequential, indirect, incidental, special, punitive, or exemplary damages, even if advised of their possible existence.

12.3. SWIFTPAY excludes all liability and responsibility in contract, tort (including negligence), or otherwise, for any: loss or damage resulting, directly or indirectly, from the use of, or reliance on, the SWIFTPAY SEERVICE and software.

12.4. SWIFTPAY excludes all liability and responsibility in contract (including negligence) tort (including negligence), or otherwise for any loss or damage that may be caused by third party systems and software connected with the SWIFTPAY SEERVICE.

12.5. SWIFTPAY is not responsible for any disruption which may be attributed to Internet malfunctions, network delays, power outage, malfunction of the CLIENT’S computer, laptop, phone or tablet, malfunction or fall of mobile providers systems or internet service providers.

13. TERM, TERMINATION

13.1. This Agreement will remain in force for an initial term of 1 (one) year and will be automatically renewed every year thereafter unless otherwise terminated upon the request of either party, by giving the other party written notice of at least one (1) month in advance.

13.2. SWIFTPAY may at any time, in its sole discretion and without any liability, suspend or terminate the use of the SERVICE, especially in case the SWIFTPAY considers this action necessary: (a) to comply with law (b) to prevent any immerse or loss of data, or(c) in case of the fault of the CLIENT which is causing SWIFTPAY SERVICE to perform at a reduced level. With the suspension or termination of the SERVICE, all rights and licenses granted to the MERCHANT or CLIENTS automatically expire. 

13.3. SWIFTPAY may terminate this Agreement with an immediate effect upon notice, due to material breach of the Agreement by the MERCHANT or its CLIENT. The Agreement may be terminated under this clause only if the infringing Party does not remedy the breach within 3 (three) days from receipt of a request from SWIFTPAY. SWIFTPAY may terminate the Agreement with immediate effect and without a prior call if the breach is not capable of remedy. The following types of the breach shall be deemed to be, among other things, a material breach of the Agreement not capable of remedy:

a) MERCHANT or CLIENT Infringes or otherwise violates any copyright, trademark, or other intellectual property rights of SWIFTPAY;

b) MERCHANT uses the SWIFTPAY logo, logo marks or other SWIFTPAY website/branding imagery in a header graphic or in any way as to indicate they are officially partnered with SWIFTPAY;

c) MERCHANT promotes discounts that were not provided and set directly by SWIFTPAY, without SWIFTPAY’S prior consent;

d) MERCHANT promotes, markets, offers or sells during the term of this Agreement any products which are competing with the SERVICE;

e) MERCHANT uses misleading practices, either through action or omission, negligence and/or has unfair credit relationship with any of the customers using SWIFTPAY SERVICE;

f) MERCHANT infringes the provisions of this Agreement regarding payment and calculation of the fees in a way that SWIFTPAY is exposed to the risk of financial loss.

g) MERCHANT breaches PRIVACY POLICY.

14. MISCELLANEOUS

14.1. This Agreement may be subject to periodic review and be amended 1) by SWIFTPAY or 2) upon mutual consent of the parties. If the Agreement is amended by SWIFTPAY, it will inform the MERCHANT at least 2 weeks before introducing the changes and the MERCHANT may object to any material amendments within 2 weeks of receiving the information about the planned changes, notifying SWIFTPAY about his will of terminating the Agreement with 2 weeks’ notice. If the MERCHANT does not object to the proposed amendments, it is deemed he accepted a new version of the Agreement.

14.2. No provision of this Agreement will be deemed to have been waived or modified unless such waiver or modification is evidenced by a written instrument.

14.3.  This Agreement may not be transferred or assigned by the MERCHANT without the prior written consent of SWIFTPAY.

14.4.  This Agreement will be governed by Philippine law. All disputes arising out of or in connection with this Agreement will be settled by the courts of the competent jurisdiction over SWIFTPAY’s seat in the Philippines.

14.5.  Neither SWIFTPAY nor the MERCHANT will be liable for any loss, damage, or delay caused by war, riots, civil commotion, strikes, lock-outs, or other such causes beyond the reasonable control which prevent or delay the performance of obligations arising out of this Agreement.

14.6.  SWIFTPAY and the MERCHANT’s representatives declare that they are duly authorised to enter into this Agreement on behalf of their companies.

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