Effective as of December 28, 2020.
We, Xendit Philippines Inc., a corporation organized and existing under the laws of the Republic of the Philippines, act as the First Party in these Terms and Conditions (“Conditions“). You shall be considered as the Second Party. The First Party and Second Party are collectively referred to as the Parties and individually as a Party.
The First Party shall be entitled to amend, modify or supplement the Conditions at any time and (subject to law) for an unlimited number of times subsequently without restriction in its sole and absolute discretion by posting a revised version of this Term and Conditions (https://www.xendit.co/ph/terms-and-conditions/), provided that the First Party has provided fourteen (14) calendar days’ prior notice (the “Notice Period“) to the Second Party before the effective date of any amendment, modification or supplement, such notice to be given via electronic mail transmission or otherwise in writing. Upon receipt of such notice from the First Party, the Second Party shall be entitled to terminate the Service Agreement immediately by submitting a written notice to the First Party of its intention to terminate within the Notice Period. Upon the lapse of Notice Period and to the extent that no notice has been received by the First Party, the Second Party hereby agrees to accept and be bound by any amendment, modification or supplement made to these Terms and Conditions. These Terms and Conditions that have been amended, modified or supplemented shall supersede and replace all previous versions.
These Conditions shall form part of the Services Agreement. These Conditions shall not be interpreted independently of the Services Agreement, unless the contrary is provided herein and/or the Services Agreement. In the event of conflict between the Services Agreement and these Conditions, the latter shall prevail.
“Affiliates” shall mean a parent, subsidiary, brother or sister company or other company or entity which controls the First Party or which the First Party controls or which is under common control with the First Party.
“API“ means the application programming interfaces, a set of subroutine definitions, protocols and tools for building software and application interfaces, provided by the First Party that may be used by the Second Party to access the Services.
“Card Processing Services” shall mean:
a. processing services, which enable the Second Party to accept credit cards and debit cards as modes of payment on a website or mobile platform and to receive inbound payments from cardholders through such modes of payment, and which include a bank-sponsored merchant account, fraud protection tools, recurring billing functionality, payment card storage, foreign currency acceptance, white glove customer support, and other necessary software, APIs and services and technology as described in the Services Documentation; and
b. gateway services, which equip the Second Party with the software and connectivity required to allow real-time secure data transmission for the processing of credit and debit card payments on a website or mobile platform.
“Cardholder” means a natural or legal person holding a debit or credit card, issued by a bank or an institution allowed to issue said cards.
“Charge” means a credit or debit instruction to authorize or capture funds from an account that a cardholder maintains with a bank or other financial institution for in connection with a transaction between the cardholder and the Second Party.
“Chargeback” means a challenge to a payment to the Second Party that an End-User files directly with his or her credit or debit card issuer.
“Confidential Information” means any data or information, oral or written, treated as confidential that relates to either Party’s (or, if either Party is bound to protect the confidentiality of any third party’s information, such third party’s) past, present, or future research or development activities, including any unannounced products and services, any information relating to developments, Services Documentation (in whatever form or media provided), inventions, processes, plans, financial or due diligence information, personally, identifiable data of End-Users, to such extent that said data is not otherwise subject of a separate agreement between the Parties, and the financial terms of the Services Agreement. Notwithstanding the foregoing, Confidential Information shall not be deemed to include information if: (i) it was already known to the receiving party prior to the Effective Date of the Services Agreement, as established by documentary evidence; (ii) it is in or has entered the public domain through no breach of the Services Agreement or other wrongful act of the receiving party; (iii) it has been rightfully received by the receiving party from a third party and without breach of any obligation of confidentiality of such third party to the owner of the Confidential Information; (iv) it has been approved for release by written authorization of the owner of the Confidential Information; or, (v) it has been independently developed by a party without access to or use of the Confidential Information of the other party.
“Dashboard” means a web-based reporting platform provided by the First Party to the Second Party.
“Destination Account” means the bank account or E-wallet specified by the Second Party into which, upon the instruction of the Second Party made in accordance with the procedure stipulated by the First Party, funds will be transferred by the First Party.
“Disbursement” means the act done by the First Party on behalf of the Second Party which sets in motion a movement of funds from a Top-Up Account either to a Destination Account or the in-person collection of funds by payees from Retail Outlets via API or by way of manual upload; and “Disbursements” shall mean any two or more of such instances of such acts.
“Electronic Wallets or E-Wallets” shall mean electronic accounts through which owners of the accounts store electronic money (e-money) or monetary value and are created by banks or duly-authorized on-bank issuers of e-money.
“End-User” means a person or entity that uses the services or products of the Second Party.
“Invoice UI” means the user interface hosted payment page provided by the First Party.
“Losses” shall mean any losses, damages, liability, costs and expenses (including reasonable fees and expenses of legal and other advisers, court costs and other dispute resolution costs) suffered or incurred by a party.
“PHP” or “Philippine Peso” means the lawful currency for the time being of the Philippines.
“Refund” means an instruction initiated by the Second Party to return funds to an End-User for an existing Charge.
“Retail Outlets” shall mean payment or collection centers with whom First Party has agreements or arrangements allowing the in-person of payments by End-Users or the in-person collection by payees of Disbursements.
“Reversal” means an instruction initiated by any bank, money services business, payment network, or other financial intermediary, or the First Party to return funds for an existing Charge. Reversals may result from (i) invalidation of a charge by a bank, money services business, payment network, or other financial intermediary; (ii) funds settled to the Second Party in error or without authorization; and (iii) submission of a Charge in violation of Network Rules, or where submission of the Charge or use of the Card Processing Services by the Second Party violates these Conditions or the Services Agreement.
“Services Agreements” means an agreement entered between the Parties in relation to the Services provided by First Party to Second Party.
“Services Documentation” means collectively, the operating instructions, user manuals, and help files, in written or electronic form, made available to the Second Party (including, but not limited to, the information found on www.xendit.co), and that are intended for use in connection with the Services.
“Top-Up” means any topping up of the balance in the Top-Up Account which shall be done in PHP.
“Top-Up Account(s)” means bank account(s) created and administered in any bank appointed by the First Party designated for the purpose of storing the balance of the Second Party’s funds for and throughout the Second Party’s use of the Services.
Any Disbursements performed or to be performed by the First Party on behalf of the Second Party are subject always to the following conditions:
Any Card Processing Services performed or to be performed by the First Party on behalf of the Second Party are subject always to the following conditions:
a. Where the First Party acts as an aggregator, the Second Party may enjoy Card Processing Services using the merchant account and unique merchant identification number(s) (collectively, the “Merchant ID”) of the First Party with its appointed acquiring bank(s). All third-party processors and authorizing banking institutions upstream of any transactions processed with the Merchant ID(s) will identify such transactions as transactions belonging to the First Party, and subsequently any and all funds from such transactions shall be deposited into the merchant account (the “Aggregator Method”); or
b. Where the First Party assists the Second Party in obtaining its own Merchant ID with the First Party’s partner Banks (the “Switcher Method”).
2. The Second Party shall notify the First Party of its elected method for the provision of the Card Processing Services via Instant Messaging Service, Email or otherwise in writing. The First Party shall not be obligated to commence any Card Processing Services or the performance of any card Collections on behalf of the Second Party until such time as the Second Party has made such notification in accordance with this Condition 4.2.
3. Where the Second Party elects the Aggregator Method:
a. Unless otherwise agreed by both Parties and the Second Party enables the auto-withdrawal feature, settlement of all funds received in the balance of the Second Party shall be done on a H + 7 calendar days basis, and all payments due to the Second Party shall be totalled and routed to the Top-Up Account(s) designated to the Second Party with such balance made available on the Dashboard of the Second Party for disbursement or withdrawal no later than 23:59 P.M. (Philippine Time) seven (7) calendar days after the last receipt of any payment from any End-User, where such payment was made by 14:00 P.M. (Philippine Time) on a business day, less the deduction of any expenses, fees, costs or charges owed by the Second Party to the First Party in accordance with the Fee Schedule, the Services Agreement or these Conditions.
b. Where such payment is made after 14:00 P.M. (Philippine Time) on a business day or on a non-business day, all payments due to the Second Party shall be totalled and routed to the Top-Up Account(s) designated to the Second Party with such balance made available on the Dashboard of the Second Party for disbursement or withdrawal no later than 23:59 P.M. (Philippine Time) eight (8) calendar days after the date of such payment.
c. Save as subject to Clause 7 (Dispute Resolution) of the Services Agreement, Condition 2.6 above or Condition 5 below, the Second Party shall be entitled to withdraw the funds held on its behalf in the merchant account through the Dashboard at any time.
d. The First Party reserves the right and has full discretion to convert all Card Processing Services provided to the Second Party under the Aggregator Method to be managed under the Switcher Method instead. The following considerations shall serve as guidelines for when such conversion may take place:
i. When the total volume of transactions conducted on behalf of the Second Party exceeds 5,000 transactions per month;
ii. When the total value of transactions conducted on behalf of the Second Party exceeds PHP 40 million per month; and/or
iii. When the aggregate Chargeback rate or volume of transactions conducted on behalf of the Second Party exceeds 0.5%.
For the avoidance of doubt, notwithstanding anything contained in this Condition 4.3(d), the First Party shall have full discretion to make such conversion for any reason and at any time that it deems fit.
e. Where such conversion initiated by the First Party in accordance with subsection (d) above fails for any reason whatsoever, the First Party shall not be obligated to maintain the provision of the Card Processing Services under the Aggregate Method and shall not be liable for any Losses directly or indirectly incurred by the Second Party following the termination of the Card Processing Services following such failed conversion.
f. The First Party covenants that, subject to this Condition 4.3, all funds received by the First Party on behalf of the Second Party shall be held for the benefit of the Second Party, and that, save for any expenses, fees, costs or charges owed by the Second Party to the First Party in accordance with the Fee Schedule or any Losses legally and rightfully incurred by the First Party as a result of the actions of the Second Party, as determined in accordance with Clause 7 (Dispute Resolution) of the Services Agreement, Condition 2.6 or Condition 5 below, the First Party shall not have any rights to any funds received on behalf of the Second Party.
g. Where the Second Party engages the Card Processing Services of the First Party to receive recurring payments or implement subscription billing, the Second Party acknowledges and agrees that the First Party shall have the right to cancel any subscription in respect of any card upon receipt of a Chargeback request on such card immediately with written notice. The First Party shall not be responsible or liable for any Losses directly or indirectly incurred by the Second Party in respect of or in connection with such cancellation in accordance with this Condition. Further, the First Party shall not be responsible for the re-subscription of such card, which shall be the sole responsibility of the Second Party.
4. Where the Second Party elects the Switcher Method:
a. The First Party may, at the request of the Second Party, assist with the Second Party’s Merchant ID application with the partner banks. Such assistance may be in the form of:
i. Collection and submission of the Second Party’s company documents to the relevant bank;
ii. Negotiation of pricing terms;
iii. Completion of any Merchant ID application forms for the Second Party; and/or
iv. Liaising with the relevant bank to provide other information as required by such bank.
For the avoidance of doubt, notwithstanding anything contained in this Condition 4.4(a), the First Party shall have sole and absolute discretion in respect of the manner in which it may assist the Second Party in the latter’s application for a Merchant ID and may vary the list above in any way and at any time as it deems fit.
b. Settlement of all funds received into the Second Party’s merchant account shall be done directly with the appointed acquiring bank with whom such account is opened and all matters in respect of such settlement shall be determined solely by such appointed acquiring bank. The First Party shall not be directly or indirectly responsible for any matter in respect of settlement, which shall be managed solely between the Second Party and the appointed acquiring bank, and shall not be liable to the Second Party for any Losses directly or indirectly incurred in respect thereof.
c. The Second Party acknowledges and agrees that the First Party shall not be responsible for the rejection (if any) of the Second Party’s Merchant ID application, which shall be the sole and final decision of the relevant bank, nor shall the First Party be liable for any Losses directly or indirectly incurred incurred by the Second Party in respect of such rejection.
5. The Second Party agrees to be subject to the terms and conditions of the appointed acquiring banks (in the case where either the Aggregate Method or the Switcher Method is elected) with whom the merchant account is created and maintained and all such terms and conditions thereto are incorporated herein by this reference.
6. The Second Party acknowledges, agrees with and covenants that, when accepting card payments, it will comply with all guidelines, by-laws, rules, and regulations imposed by any bank, money services business, payment network, or other financial intermediary that operates payment networks supported by the First Party (including the payment card network operating rules for Visa, MasterCard, JCB, American Express and/or UnionPay networks) (the “Network Rules”) applicable to merchants. The Second Party acknowledges and accepts, and covenants to comply with all Network Rules, including all prohibitions on (i) providing cash refunds for a Charge on a credit card, unless required by any law, rule or regulation, (ii) accepting cash, its equivalent, or any other item of value for a Refund, (iii) acting as a payment intermediary or aggregator, or otherwise reselling Card Processing Services on behalf of others, (iv) submitting what the Second Party or any of its respective directors, officers, employees or representatives believe or know to be a fraudulent Charge, or (v) using Card Processing Services in a manner that is an abuse of the networks of any bank, money services business, payment network, or other financial intermediary or a violation of the Network Rules. The payment card networks may amend the Network Rules at any time without notice, and, in such event, the First Party reserves the right to amend the Card Processing Services provided to the Second Party at any time to comply with the Network Rules.
7. The Second Party acknowledges and agrees, and covenants to maintain a direct relationship with each of its End-Users and, consistent with relevant baking and money laundering and countering terrorist financing regulations, is responsible for: (i) acquiring appropriate consent to submit Charges through the Card Processing Services on the behalf of each End-User; (ii) providing confirmation or receipts to End-Users for each Charge; (iii) confirming and verifying the identity of each End-User; and (iv) determining an End-User’s eligibility and authority to complete all transactions between it and such End-User.
8. Notwithstanding that a transaction is successfully authorized, the First Party is not responsible for or liable to the Second Party for any Losses directly or indirectly incurred in connection with any authorized and completed Charges that are later the subject of a Chargeback, Refund, or Reversal, which are submitted without authorization or in error, or in violation of any law, rule or regulation.
9. The Second Party shall be immediately responsible to the First Party for all Chargebacks, Refunds, Reversals regardless of the reason or timing. Where any Refund or Reversal is requested, the End-User shall be issued a refund in the amount of the original Charge, a corresponding value of which shall be deducted by the First Party immediately after the time that such refund is issued directly from the balance in the Top-Up Account(s) and Dashboard of the Second Party, provided that any failure or delay by the First Party to deduct such corresponding value shall not constitute or be construed as a waiver of any or all of the First Party’s rights to such corresponding value. Where the balance in the Top-Up Account of the Second Party is less than the sum of the value of any Chargebacks, Refunds or Reversals, the First Party shall issue a written notice to the Second Party for any reimbursement in respect of such Chargebacks, Refunds or Reversals, and the Second Party shall make such reimbursement within seven (7) calendar days of receipt of such notice. The Second Party acknowledges and agrees to bear all direct or indirect Losses in respect of any Chargeback, Refund or Reversal and shall indemnify the First Party in full in respect thereof including but not limited to processing fees paid to the First Party for each transaction.
10. In relation to Condition 4.9, in the event that a termination is initiated by either Party with or without cause, the First party reserves the right to settle cards payment to the Second Party within one hundred eighty (180) calendar days of either Party sending such termination notice to the other Party.
11. The First Party is under no obligation whatsoever to assist the Second Party in disputing any claims made by an End-User or any financial institution in respect of a Chargeback or Reversal. However, where the First Party agrees to facilitate the Second Party in its dispute of such claims, the Second Party agrees and covenants to provide all information, data and documentation necessary (in the sole determination of the First Party) in relation to the dispute within seven (7) calendar days of the First Party’s request for such information, data and documentation. Notwithstanding any assistance by the First Party, the First Party does not make any representation or guarantee that the dispute by the Second Party will be successful, and any result of the dispute is solely in the discretion of the relevant financial institution. Where a dispute is entirely or partially successful, the relevant financial institution may credit funds associated with the Charge that is the subject of the Chargeback or Reversal (or a portion thereof) to (where the Aggregator Method applies) the merchant account of the First Party on behalf of the Second Party or (where the Switcher Method applies) the merchant account of the Second Party.
12. The First Party reserves the right and has full discretion to suspend or terminate the provision of its Services to the Second Party where the aggregate Chargeback rate of the transactions conducted by the Second Party or by the First Party on behalf of the Second Party exceeds 0.5%. The First Party further reserves the right and has full discretion to terminate or suspend the provision of its Card Processing Services to the Second Party should the Second Party fail to manage Chargebacks in a timely and effective manner with its End-Users (as determined in the sole discretion of the First Party). The First Party shall not be liable for any Losses directly or indirectly incurred by the Second Party in connection with the suspension or termination of its Services (including the Card Processing Services) to the Second Party pursuant to this Condition 4.12.
13. The First Party reserves the right to share the information provided by the Second Party used to identify the nature of the products or services with any bank, money services business, payment network, or other financial intermediary, which includes the assignment of the business activities of the Second Party to a particular payment network merchant category code (MCC).
14. The First Party shall take appropriate technical and organizational measures in order to secure the confidentiality of the Personal Data against unauthorized access and to prevent its unauthorized disclosure or use.
15. The Second Party acknowledges and understands that personal data may be transferred overseas in order for the First Party to provide the Services, and the Second Party warrants to the First Party that it will provide all necessary disclosures and/or obtain all necessary consents for such transfer of personal data overseas.
16. The Second Party is advised to keep records or proof of trading, delivery of goods and/or services and receipt of payment such as tax invoices, delivery slips, receipts, and other documents that can be used to prove entitlement to receive payments by the Second Party, as evidence in case of disputes. The Second Party acknowledges and affirms that it is solely responsible for maintaining complete backup records of all information relating to orders, inquiries and purchases and any information submitted to the First Party for the purpose of providing the Services. The Second Party acknowledges that insufficient record or proof of donation may increase the risk that it will be unable to successfully defend any requested Chargebacks, Reversals, Refunds and refusals and agrees that it shall be responsible for all such risks and all losses, damages, costs and liabilities arising therefrom.
17. In the event that the First Party requires verification for a transaction related to the Second Party, the Second Party agrees and covenants to provide all relevant information and documents within seven (7) calendar days of such request to the First Party. The Second Party further agrees and covenants that it will assist the First Party in its obtainment of such information and documents and will not impede, impair, or inhibit the First Party in its obtainment of such information and documents.
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