Terms & Conditions

Last updated on 21 December 2020

We, Salarium Limited, a company established under the laws of the Republic of Singapore, act as the First Party in these Terms and Conditions (“T&C”). 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 T&Cs 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 T&C (https://www.salarium.com/terms-of-service) , provided that the First Party has provided seven (7) calendar days’ prior notice (the “Notice Period”) or any other Notice Period agreed by the First Party and the Second Party in writing 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 (“Agreement”) immediately by submitting a written notice to the First Party of its intention to terminate within the Notice Period (settlement of any Service Fee obligations must be settled by the Second Party as stipulated in T&C 2.3). 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 the T&C. Such amended, modified or supplemented T&C shall supersede and replace all previous versions.

 

By utilizing the First Party’s services and features, the Second Party hereby agree and accept to be subject to the First Party’s Privacy Policy which is accessible here https://www.salarium.com/privacy-policy/ (“Privacy Policy”).

These T&C shall constitute as one single document with the Services Agreement and shall not be interpreted separately, unless otherwise specifically stipulated under these T&C and/or in a superseding Agreement between the parties.

 

 

  1. 1. DEFINITION AND INTERPRETATION

1) All capitalized terms that are not defined in these T&C will have the meanings ascribed to them in the Agreement.

2) All terms stated in singular form shall include their plural form, and vice versa.

3) For the purposes of these T&C, and except where the context requires otherwise:

 

“Affiliates” means 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.

“Agreement” means an existing and unexpired agreement entered between the Parties in relation to the Services provided by First Party to Second 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.

“Application” means a web-based platform provided by the First Party to the Second Party.

“End-User” means a person or that is using the Application and is assigned an account to access the Application.

“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, personal, identifiable data of End-Users and the financial terms of the 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 Agreement, as established by documentary evidence; (ii) it is in or has entered the public domain through no breach of the 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.

“Disbursement” means the act done by the First Party on behalf of the Second Party which sets in motion, by way of bank transfer, a movement of Funds from a Corporate Account to a Personal Account via API or by way of the SALPay Application.

“Invoice Date” means the posted date of the invoice in Salarium

“Linked SALPay Employee Account” means the process in which a user of SALPay has an employee profile in the Application and has linked an authenticated SALPay Account to that employee profile. A detailed description of the process can be found here https://www.salarium.com/knowledge-base/how-to-link-salpay-account

“Losses” means 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.

“USD”, means the lawful currency for the time being of the United States of America.

“SaaS” means software as a service.

“SALPay Salary Disbursement” means a disbursement triggered from the Application to a Linked SALPay Employee Account equal to or greater than Ninety Five ($95.00) USD in any currency.

“Service Fees” means the fees charged by the First Party to the Second Party for the access of the Application.

“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.salarium.com/user-guide), and that are intended for use in connection with the Services.

 

2. SERVICE FEES

1) Unless agreed otherwise between the Parties in writing, the service fees to be paid by the Second Party to the First Party for the Services (including (where applicable) any foreign currency exchange fees which shall be borne by the Second Party) shall be as set out in the Price Schedule of the Agreement and incorporated herein by this reference. Where the Second Party begins using any Service of the First Party without prior agreement or negotiation with the First Party, the fees and charges applicable and payable shall be those as specified in the list price at www.salarium.com/pricing which are incorporated herein by this reference.

2) The Second Party shall pay the service fees for the Services to the First Party in accordance with the terms of the Agreement.

3) The Second Party shall pay the service fees within the prescribed due date for each invoice. If the due date shall lapse, the First Party shall have the right to suspend the Second Party and its End Users access to the Application until such time as the overdue invoice is paid in full.

4) The First Party shall be entitled to revise the Price Schedule and the prices and charges agreed therein at any time, provided that notification of such change has been provided to the Second Party in accordance with Notice Period Agreement.

3. SALPAY SPECIAL OFFER

The First Party is an Affiliate of Salarium Payments Corporation (SALPay), a duly licensed company existing under the laws of the Republic of the Philippines. In partnership with SALPay, the First Party offers a special pricing on the Application for users of SALPay.

 

  1. When the Second Party successfully completes a SALPay Salary Disbursement to a Linked SALPay Employee Account in a given billing period, the Service Fees for that license shall be waived in that billing period.
  2. If the Second Party fails to successfully complete a SALPay Salary Disbursement for any reason then the normal Service Fees for the Application shall appy.
  3. SALPay users are bound by the Terms & Conditions of SALPay, more information can be found on www.salpay.com

 

4. SALARIUM APPLICATION

 

The First Party primarily provides an Application with the following features and functionalities.

 

  1. Time and Attendance Application. A system where End-Users can create schedules, approve work hours, process leave requests, set and edit Holidays and process night differential pay, amongst other features. This Application integrates with SALClock and hardware devices provided by the First Party.
  2. Payroll. A system where Payroll is calculated, the sum of all compensation a business must pay to its employees for a set period or on a given date. It generally includes basic pay, commissions, allowances, bonuses, and salary deductions amongst others.
  3. Human Resource Information System (HRIS) is a data management module used for tracking employee data, payroll information and accounting functions. Through this feature, admins can manage user accounts, set up workflows, view and create access, and download reports from the system.
  4. Employee Self Service or the ESS is Salarium’s application portal used by employees. Employees can use the ESS to view timesheets, payslips, file leaves, undertime, and overtime requests, as well as view schedules and file disputes, among other features.
  5. SALPay Integration. SALARIUM payroll solution integrates with SALPay for Business via secure APIs. Allowing for salary and disbursement information to securely pass.

 

5. SOFTWARE AS A SERVICE

The First Party provides its Application as a SaaS. This includes several components besides the software including Support, Maintenance, Hosting & Backup.

  1. Support. The First Party Provides Customer Support generally available 24/7 from within the Application by initiating a chat. The Second Party may contact the customer support of the First Party by either email at support@salarium.com or by communicating via chat within the Application.
  2. Maintenance. The First Party conducts regular maintenance to the Application to make sure it is up to date.
  3. Hosting. The Application is hosted using a global provider of web-hosted services. The First Party is responsible for the hosting of the Application and all stored data.
  4. Backup. All data of the Application is regularly backed up and stored on cloud servers.

 

6. LIABILITIES

1) The Second Party acknowledges and agrees that the First Party and each of its Affiliates shall not be liable or responsible in any respect, and that the Second Party shall be liable for all Losses incurred by the First Party arising out of:

  1. Any calculation error, or other invalid computation caused by the Second Party or its End-Users (collectively, “Incorrect Computation“)
  2. any error, default, negligence, misconduct, disabling or non-observance of security features or fraud by the Second Party, employees, directors, officers, representatives of the Second Party or anyone acting on behalf of the Second Party; and/or
  3. any Losses incurred by the First Party in respect of a failure by the Second Party to comply with terms of the Agreement or these T&Cs.

2) The Second Party shall be responsible for all and any losses of the First Party in paragraph 1 above if the Second Party:

  1. Fails to secure the password or other authentication mechanism used to login to Application or transact via API.
  2. Any attempts by the Second Party to access the Application in a manner not complying with the User Manual, or actions taken by the Second Party or its affiliates to conduct unauthorized access to the system of the First Party.

 

7. SECURITY AND FRAUD

1) The Second Party represents and warrants that, at all times while the Agreement is in effect, the Second Party shall maintain and adhere to all reasonable security measures to protect the Second Party Computer Systems and the data contained therein from unauthorized control, tampering, or any other unauthorized access and comply with all applicable laws, rules and regulations. For the purposes of this T&C 8.1, “Second Party Computer Systems” shall mean the computer systems operated by or on behalf of the Second Party that capture or store End-User data or that transmit End-User data to the First Party.

2) Unless caused solely by the First Party’s gross negligence, wilful default or fraud, the Second Party shall be responsible for all Losses incurred when lost or stolen credentials or accounts are used to transact the Application of the Second Party, when there has been a compromise of username or password of the Second Party or any other unauthorized use or modification of the account of the Second Party on the First Party’s platform. Each of the First Party and its Affiliates does not and will not insure the Second Party against any Losses caused by fraud. Further, the Second Party acknowledges and agrees to fully reimburse the First Party for any Losses incurred by the First Party in respect of (whether directly or indirectly) the use of lost or stolen credentials or accounts of the Second Party, unless such credential or accounts have been lost or stolen solely through the gross negligence, wilful default or fraud of the First Party.

3) The First Party may assist the Second Party with any investigations with law enforcement to recover lost funds. However, where the First Party agrees to facilitate the Second Party in such investigations, the First Party shall not be liable to the Second Party, or responsible for any financial or non-financial (whether direct or indirect) Losses or any other consequences of such fraud.

4) The onus is on the Second Party to review all security controls provided or suggested by the First Party and to determine if such security controls are sufficient or appropriate for its purposes and, where appropriate, independently implement other security procedures and controls not provided by the First Party. The First Party does not represent, warrant or guarantee that the Second Party or any End-User will never become victims of fraud.

5) The Second Party agrees that it will provide evidence of its compliance to T&C 8.1 to the First Party upon the request of the First Party. Failure to provide evidence of such compliance to the satisfaction of the First Party may result in the suspension of Services or termination of the Agreement.

6) The First Party may provide or suggest best practices for implementation to help prevent losses and ensure the smoothest experience. Second Party agrees to review all the best practices that the First Party suggests and choose those that are appropriate for the Second Party’s business, and independently implement other security procedures and control not provided by the First Party.

 

8. LICENSE AND INTELLECTUAL PROPERTY

1) Subject to the terms of these T&Cs, the First Party hereby grants to Second Party and the Second Party hereby accepts from the First Party a personal, limited, non-exclusive, non-transferable license and right to use the First Party’s Products and accompanying Services Documentation for the following purposes:

  1. Access the Application to use the Services for the purpose of conducting transactions with End-Users;
  2. If the First Party found that the Second party attempts to access the internal code of the First Party, and or perform activities attempting to acquire intellectual property of the First Party without consent, and or attempt to breach the security protocols of the Application or any application of the First Party, then the First Party will perform any means necessary towards the Second Party, including but not limited to temporary service suspension or Termination.
  3. The Second Party hereby stated to be fully responsible for any loss, consequences,  as well as lawsuits and legal accountability which might occur related to any attempts to access non-client facing product Clause 9.1 point (b).
  4. use the accompanying Services Documentation solely for the purpose of using the Products and Services; and
  5. create any necessary number of copies of the Services Documentation, with all copyright notices intact, for archival purposes only.

2) Subject to the terms of these T&Cs, the First Party hereby grants the Second Party a limited, non-exclusive, non-transferable royalty-free license to use the First Party’s trademarks and service marks (collectively the “Advertising Materials“); provided that the Second Party agrees to change, at the Second Party’s expense, any Advertising Materials which the First Party, in its sole judgment, determines to be inaccurate, objectionable, misleading, or a misuse of the First Party’s trademarks and/or service marks. The Second Party, upon written demand by the First Party, shall immediately cease the use of any Advertising Materials that the First Party deems to be in violation of this Clause 9.2. Notwithstanding any provision in these T&Cs to the contrary, such license shall be revoked immediately and automatically upon termination of the Agreement. The Second Party will not add to, delete from, or modify any Advertising Materials, Services Documentation or forms provided by the First Party without the prior written consent of the First Party.

3) The Second Party acknowledges and agrees that except for the rights and licenses expressly granted to the Second Party in these T&Cs, as between the Second Party and the First Party, the First Party shall retain all right, title and interest in and to the Services, APIs, Services Documentation, and any derivatives of the foregoing (the “First Party IP“); and, nothing contained in the Agreement or these T&Cs shall be construed as conferring upon the Second Party by implication, operation of law, estoppel, or otherwise, any other license or right. The Second Party shall not: (i) use, reproduce, distribute, or permit others to use, reproduce, or distribute any of the First Party IP for any purpose other than as specified in these T&Cs; (ii) make the First Party IP available to unauthorized third parties; (iii) rent, electronically distribute, timeshare, or market the First Party IP by interactive cable, remote processing services, service bureau or otherwise; or, (iv) directly or indirectly modify, reverse engineer, decompile, disassemble, or derive source code from any of the First Party IP.

4) The Second Party acknowledges and agrees to give the First Party permission to use the Second Party’s name, logo, trademark on the First Party’s website for any lawful purposes including marketing purposes.

 

9. REPRESENTATIONS AND WARRANTIES

1) The First Party’s representations and warranties shall be as follows:

  1. The Services and Products provided to the Second Party hereunder will conform to the specifications set forth in the applicable Services Documentation, as may be amended from time to time at the First Party’s sole and absolute discretion, and in the Agreement.
  2. The First Party further represents and warrants that the First Party will maintain compliance with all applicable laws, rules and regulations and (where applicable) governing the security of End-User data, including, without limitation, the Payment Card Industry Data Security Standard.
  3. The preceding warranties will not apply if: (i) any products, services, or deliverables provided hereunder are used in material variation with the Agreement, these T&Cs or the applicable documentation; (ii) any products, services, or deliverables licensed hereunder or any part thereof have been modified without the prior written consent of the First Party; or, (iii) a defect in any products, services, or deliverables provided hereunder has been caused by any of the Second Party’s malfunctioning equipment or third party software.
  4. In the event that the Second Party discovers that any products, services, or deliverables are not in conformance with the representations and warranties set forth in T&C 9.1(a) and T&C 9.1(b) and reports such non-conformity to the First Party, the First Party will, at the First Party’s discretion, (i) exercise commercially reasonable efforts to correct the non-conformity at no additional charge to the Second Party, or (ii) refund the fees paid for the non-conforming products, services, or deliverables during the ninety (90) day period preceding the Second Party’s discovery of such non-conformity. The remedy stated in this paragraph constitutes the Second Party’s sole and exclusive remedy and the First Party’s entire liability under T&C 9.1(a) and T&C 9.1(b).
  5. The First Party represents and warrants that it will not use or disclose unique, non-public End-User data submitted by the Second Party except as reasonably necessary (i) to provide the Services to the Second Party hereunder, (ii) to provide services generally without disclosing personally identifiable End-User information, or, (iii) as otherwise permitted or required by law.

2) The Second Party’s representations and warranties shall be as follows:

  1. The Second Party represents and warrants that: (i) it has all necessary right, power and ability to execute the Agreement and to perform its obligations thereof (including but not limited to these T&Cs); (ii) no authorization or approval from any third party is required in connection with the Second Party’s execution, delivery or performance of the Agreement; (iii) the Agreement constitutes a legal, valid and binding obligation, enforceable against the Second Party in accordance with its terms, and does not breach any other agreement to which the Second Party is bound; (iv) its use of the Services is solely for the purpose of legitimate transactions and business activities in compliance with all applicable laws, rules and regulations and (v) it does and will comply with all applicable laws, rules and regulations.
  2. The Second Party further represents and warrants that its installation, configuration, and use of the Services, the Application and the APIs shall conform to the specifications set forth in the applicable Services Documentation and the terms of the Agreement and in particular (where applicable) the specifications set forth in the services documentation or any other terms and conditions by any of the third-party licensors of the First Party, as shall be stipulated by the First Party and which are incorporated herein by this reference.
  3. The Second Party further represents and warrants that, prior to transmitting End-User information to the First Party, it will provide all reasonably necessary disclosures and/or obtain all reasonably necessary consents from each End-User regarding the intended disclosures and uses of the End-User data.
  4. The Second Party further represents and warrants that (i) it has all necessary rights and authorizations for which the Second Party is using the Services, (ii) the Second Party does and will comply with all applicable laws and regulations as related to its use of the Services, and (iii) none of its products or services violates any applicable law, regulation or third party right.
  5. The Second Party further represents and warrants that it has not engaged in and is not now engaging in any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to influence official action or secure an improper advantage; and the Second Party has conducted its business in compliance with the applicable anti-corruption anti-bribery laws.

 

10. DISCLAIMERS

1) Except as expressly set forth in the Agreement or these T&Cs, the products and services provided hereunder are provided “as is” with all faults and without any representations or warranties. The entire risk as to satisfactory quality, performance, accuracy, and effort is with the Second Party. This disclaimer of warranty extends to the End-User and users of the End-User’s products and services, is in lieu of all warranties and conditions whether express, implied, or statutory, and the First Party hereby specifically excludes, to the fullest extent permitted by law, any representations, conditions or warranties, express or implied, regarding any of its products or services, including the implied warranties of merchantability, fitness for particular purpose, title, and non-infringement with respect to the products and services, and any implied warranties arising from the course of dealing or course of performance.

2) The Second Party acknowledges that the First Party is not an accounting services provider. Each of the First Party and its Affiliates is responsible only for transmitting data and/or assisting with the products and services of the First Party and is not responsible for the action or inaction of any third party, including but not limited to (a) the operation of the websites of internet service providers (“ISPs“), banks, financial processors, or other financial institutions, (b) the availability or the operation of the operating systems of ISPs, banks, financial processors or other financial institutions, and shall not be liable for any financial or non-financial (whether direct or indirect) Losses or any other consequences suffered or incurred by the Second Party in respect of any errors, omissions, failure, delay or breakdown of any ISPs, banks, financial processors or financial institutions.

3) The Second Party shall only use the Services for legitimate transactions with its End-Users. The Second Party shall be responsible for its relationship with its End-Users, and the First Party and its Affiliates shall not be responsible or liable in any manner whatsoever for the agreements between End-Users and the Second Party. The Second Party acknowledges and affirms that it is solely responsible for the relationship with End-Users, and that the First Party and its Affiliates shall not have any responsibility or liability in respect of the same whatsoever. The First Party reserves the right to terminate the Services and the Agreement immediately upon reasonable suspicion that the Second Party is engaged in any illegitimate transaction(s) with its End-Users and/or illegitimate business and shall not be responsible or liable for any Losses incurred in respect thereof or in connection therewith by any person (including, without limitation, the Second Party and/or any End-User) whatsoever.

 

11. INDEMNIFICATION AND LIABILITY

1) First Party Indemnity: The First Party shall defend, hold harmless and indemnify, at its expense, the Second Party, its affiliates and each of their respective officers, directors, employees, and the successors and assigns of the foregoing (each, a “Second Party Indemnified Party“) against any third party legal cause of action, claim, suit, proceeding or regulatory action brought against the Second Party Indemnified Party and any related Losses (including reasonable fees and expenses of legal and other advisers, court costs and other dispute resolution costs) suffered or incurred by the Second Party Indemnified Party, to the extent that such cause of action is based upon a claim that any services or products of the First Party infringe a copyright, patent, trade secret, or other intellectual property rights of a third party. Should any of the First Party’s products or services become, or in the First Party’s reasonable opinion is highly likely to become, the subject of a claim of intellectual property infringement, the First Party may, at its option: (i) obtain the right for the Second Party and its Customers to continue using the products or services; (ii) replace or modify the First Party’s products and services so it is no longer infringing or reduces the likelihood that it will be determined to be infringing; or (iii) if neither of the foregoing options is commercially reasonable, terminate the Agreement.

2) Second Party Indemnity: The Second Party shall defend, hold harmless and indemnify, at its own expense, the First Party, its affiliates and each of their respective directors, officers, employees and representatives, and the successors and assigns of the foregoing (each, a “First Party Indemnified Party“) against any third party legal cause of action, claim, suit, proceeding or regulatory action brought against the First Party Indemnified Party and any related 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 the First Party Indemnified Party, to the extent that such cause of action is based on or arising from (i) any services or products of the Second Party that infringe a copyright, patent, trade secret, or other intellectual property rights of a third party; (ii) a breach by the Second Party of any of the terms, conditions, representations and warranties set forth in the Agreement and these T&Cs; or (iii) the Second Party’s or an End-User’s use of the Services that are inconsistent with any of the terms of the Agreement or these T&Cs or that violate any data protection laws, Network Rules, or any other applicable law, rule or regulation.

3) The Party from whom indemnification is being sought (the “Indemnifying Party“) will indemnify the Party seeking indemnification (the “Indemnified Party“) from a claim provided that the Indemnified Party notifies the Indemnifying Party in writing promptly and in any event not later than three (3) business days after the Indemnified Party becomes aware of such claim (provided that the failure to so notify shall not affect the Indemnified Party’s rights to indemnification hereunder unless, and then only to the extent that, the Indemnifying Party has been actually prejudiced thereby). The Indemnifying Party may not agree to any settlement that involves injunctive or equitable relief affecting the Indemnified Party or admission of liability by the Indemnified Party without obtaining the Indemnified Party’s prior written consent.

4) The First Party shall have no liability to the Second Party for any claim based on:

  1. any and all Losses incurred by the Second Party in respect of the products or services of the First Party which have been modified by parties other than the First Party;
  2. any and all Losses incurred by the Second Party in respect of the Second Party’s use of the First Party’s products or services in conjunction with data where use of such data gave rise to an infringement claim;
  3. any and all Losses incurred by the Second Party in respect of any failure of the Second Party to install upgrades or patches provided by the First Party where such upgrade or patch would have avoided such Losses;
  4. any and all Losses incurred by the Second Party in respect of the Second Party’s use of the First Party’s products or services in a manner inconsistent with the Services Documentation provided with such products or services;
  5. the Second Party’s use of the First Party’s products or services with software or hardware not authorized by the First Party, where use with such other software or hardware gave rise to the Losses incurred by the Second Party;
  6. any and all Losses incurred by the Second Party in relation to any absence of any license or permit in respect of the business activities and operations of the Second Party;
  7. any and all Losses incurred by the Second Party in relation to any claim related to any infringement of any intellectual property committed by the Second Party; and
  8. any other Losses, fines, penalties, claims (including, inter alia, legal and professional adviser costs), and damages suffered or incurred by the Second Party as a result of any tort (including, inter alia, negligence and misrepresentation), breach of statutory duty, fraud, fraudulent misrepresentation, wilful damage to property or person or any other wilful or unlawful misconduct, in each case, attributable to or caused by the Second Party or any of his employees, directors, officers, representatives, agents or affiliates.
  9. failure to comply with T&C 8.7, in which the Second Party disables or fail to properly follow best practice suggestions by the First Party which will increase the likelihood of fraud, losses and other similar occurrences, unless such losses result from the First party’s willful or intentional actions.

 

5) Under no circumstances (i) shall the First Party nor any of its third-party licensors be liable to the Second Party for indirect, incidental, consequential, special or exemplary damages or Losses suffered or incurred (even if the First Party or any of its third-party licensors has been advised of the possibility of such damages and regardless whether each of them knew or had reason to know of the possibility of the loss, injury or damage in question), such as, but not limited to, loss of revenue, profits, goodwill or business, anticipated savings, loss of reputation, costs of delay, costs of lost or damaged data or documentation, or such party’s liabilities to third parties of any nature arising from any source; nor (ii) shall the entire liability of the First Party or any of its third-party licensors to the Second Party with respect to the Agreement or any subject matter thereof, these T&Cs or the Services under any contract, tort, negligence, strict liability or other legal or equitable theory, exceed the fees paid or payable to the First Party by the Second Party under the Agreement or (in the case of a dispute involving a third-party licensor of the First Party) the fees paid or payable to such third-party licensor during the six-month period immediately prior to the date the cause of action arise.

6) The exclusions and limitations of this T&C 12 do not apply to obligations hereunder regarding indemnification for infringement of third party intellectual property rights by the Second Party or for liability arising from the bodily injury or death of a person by any Party.

 

 

12. CONFIDENTIAL INFORMATION

1) Each Party (the “Receiving Party“) hereby agrees (i) to hold the other Party’s (the “Disclosing Party“) Confidential Information in strict confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials), (ii) not to divulge any such Confidential Information or any information derived therefrom to any third party except as is strictly necessary to provide or use the Services, (iii) not to make any use whatsoever at any time of such Confidential Information except as contemplated hereunder, and (iv) that any employee or third party given access to any such Confidential Information must have a legitimate “need to know” and shall be bound in writing to comply with the Receiving Party’s confidentiality obligations, whether generally or specific to the Agreement or these T&Cs.

2) Except as otherwise provided in the Agreement or these T&Cs, within thirty (30) calendar days of termination of the Agreement, the Receiving Party shall destroy all materials that constitute Confidential Information and/or Intellectual Property of the Disclosing Party and provide to the Disclosing Party written certification signed by an authorized officer or representative of the Receiving Party that all such information was so destroyed. Notwithstanding the foregoing, each party may retain Confidential Information that is (i) stored on archival or back-up files or (ii) required for compliance with applicable law, card company rules or its obligations pursuant to the Agreement (including these T&Cs), provided that such party continues to maintain confidentiality of such Confidential Information pursuant to the terms of the Agreement and these T&Cs.

3) Notwithstanding any provision in the Agreement or these T&Cs to the contrary, each Party may disclose Confidential Information of the other Party to the extent it is required to be disclosed pursuant to a valid order or requirement of a governmental agency or court of competent jurisdiction, provided that the owner of the Confidential Information shall be given reasonable notice of the pendency of such an order or requirement and the opportunity to contest it.

4) For the avoidance of doubt and notwithstanding the foregoing, either Party shall be entitled to disclose the existence of the relationship formed hereunder between the First Party and the Second Party and may include the name, trade name, trademark, or symbol of the other Party in its publicity materials without the prior written consent of the other Party.

 

13. DATA PROTECTION

1)   In the course of rendering the Services, First Party shall comply with Data Privacy Act of 2012 of the Republic of the Philippines and its implementing rules and regulations with regard to the processing of Personal Data.

2)  First Party will keep the Personal Data secure in accordance with the standard industry practice.

3)    First Party will keep the Personal Data confidential in accordance with the confidentiality provisions in T&C 4  unless First Party is mandated by Philippine laws to disclose the same.

4)     First Party will not use the personal data for any purposes other than the purposes for which such use is necessary for the performance of the Services, unless First Party has the express authorization of Second Party or is otherwise compelled by law to use the personal data for another purpose

 

14. MISCELLANEOUS

1) The Parties shall perform all of their duties under the Agreement (including these T&Cs) as independent contractors. Nothing in the Agreement shall be construed to give either Party the power to direct or control the daily activities of the other Party, or to constitute the Parties as principal and agent, employer and employee, franchisor and franchisee, partners, joint capital venturers, co-owners, or otherwise as participants in a joint undertaking. The Parties understand and agree that, except as specifically provided in the Agreement, neither Party grants the other Party the power or authority to make or give any agreement, statement, representation, warranty, or other commitment on behalf of the other Party, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of the other Party, or to transfer, release, or waive any right, title, or interest of such other Party.

2) In performing any of the Services under the Agreement and these T&Cs, from time to time, to the extent permitted under the law, Second Party hereby agrees to authorize First Party, at First Party’s sole discretion, to delegate any of its duties and obligations hereunder to any of its Affiliates and/or trusted third party. For the avoidance of doubt, should the First Party choose to exercise its rights in T&C 14.2, the First Party shall not be considered in breach of T&Cs 14 for failure or delay in notifying the Second Party of such intention.

3) These T&Cs are written in English and should be interpreted with the Law of the Republic of Singapore but, if any provision of this Agreement shall be prohibited or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this T&C/

4) Parties agree not to do anything in violation of Singaporean law or the law of any jurisdiction in which First Party may perform services under the Agreement.

5) The failure of First Party  to insist upon strict performance of any of these T&Cs and an Agreement shall not be construed as a waiver thereof.

6)Any right or remedy conferred under these T&Cs and/or an Agreement upon the First Party shall not  be exclusive of any other right or remedy permitted by law or in equity and shall. be cumulative of every other right or remedy.