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NextPay Platform Use Agreement

This agreement sets out the terms and conditions that govern client use of the NextPay platform and related services.

Last updated: May 2024

Overview

This Services Agreement ("Agreement") is a binding legal agreement 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 the Client's use of the Corporation's Services, as defined below.

The Agreement becomes 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 and/or process payments to its employees, suppliers, or merchant partners, as the case may be. For the avoidance of doubt, "use" shall be interpreted as accessing the Platform through its interface 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 failure to transfer cash for disbursement, failure to provide payroll information as requested by the Platform, or failing to pay for the subscription as agreed.
  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 addresses and names of persons 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. For the avoidance of doubt, the Parties agree that the Corporation holds the funds in trust for the purpose of current or future payments, and not as a deposit or loan.

3. Fees, Collections, Cancellations, Refunds, and Suspensions

Fees Overview

The specific fees associated with the use of the Platform are detailed in Annex A - Service Fees. This includes all subscription fees, disbursement fees, and any other applicable charges, all of which are inclusive of the required 12% VAT.

Collections

Payment for the services provided by the Corporation will be collected on a regular, recurring monthly basis through the available payment method/s on the Platform. The billing cycle continues regularly until an official cancellation request is submitted by the Client pursuant to Paragraph 3(3) of this Agreement.

Cancellations

  1. If the Client wishes to cancel their subscription, they must notify the Corporation in writing a minimum of thirty (30) days prior to the intended cancellation date. The Client may contact the Corporation's support team for assistance with the cancellation process and to clarify any billing discrepancies.
  2. Despite the submission of a cancellation request, the Client will be billed for the entire month during which the notice is given, with the cancellation taking effect at the end of that billing cycle.
  3. Non-use of the Platform shall not be a justification to stop billings.

Refunds

  1. The Service Fees paid by the Client for the use of the Platform are generally non-refundable. Refunds will not be issued once payment has been made.
  2. Refunds may be considered under certain conditions, particularly if there has been a billing error or an overcharge. The Client is advised to reach out to our support team with any claims for refunds, providing necessary documentation and/or evidence for their request.
  3. All refund requests will be reviewed on a case-by-case basis, with decisions made at the discretion of the Corporation in accordance with the policies outlined in this Agreement and applicable laws.

Payment Delinquency and Account Suspension/Restriction

  1. Grace Period: In the event of a missed payment, the Corporation will send reminders to the Client through email notifications regarding any missed payments, with a grace period of thirty (30) calendar days to settle payment, unless a different period is stated in the reminder. These reminders will continue up to the issuance of a final reminder, the non-payment of which may result in account suspension or restriction.
  2. Account Suspension or Restriction for Non-Payment: In case of failure to pay the outstanding fees upon the lapse of the grace period, the Corporation reserves the right to suspend the Client's account or restrict access to the Platform due to non-payment and without prior notice. Suspension or restriction will remain in effect until the overdue payments are fully settled; provided that, in the event of restriction, billings shall continue to be incurred until full settlement.
  3. Reactivation: To reactivate a suspended or restricted account, the Client must settle all outstanding fees in full or submit all requirements. The Client may contact the Corporation's support team for assistance with the reactivation process and to clarify any billing discrepancies.
  4. Communication of Suspension: The Corporation is committed to clear communication and will notify the Client promptly of any suspension or restriction action taken due to non-payment, outlining the steps necessary for account reactivation.

4. Term

This Agreement shall be valid and binding starting on the Effective Date until 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

The Parties to this Agreement warrant and represent that they have the full power, authority, and legal right to enter into and perform their respective responsibilities and obligations pursuant to this Agreement; that this Agreement constitutes their legal, valid, and binding obligation; that they are duly authorized to execute, deliver, and perform this Agreement; that no pending or threatened action prevents performance; that performance will not violate applicable law, organizational documents, or binding agreements; and that they are not subject to any disability or obligation which might interfere with performance.

The Parties further undertake that they have not made and will not make or perform any act that will interfere with their responsibilities and obligations under this Agreement; that they will execute additional contracts or agreements as may be necessary for the furtherance of this Agreement; and that they shall not, without prior written consent of the other Party, assign any of their respective rights and interests under this Agreement 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 to typhoons, floods, earthquakes, public disturbances, calamities, epidemics or pandemics, and their effects, or due to any act or circumstance beyond the control and reasonable 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 prolonged power outages, breakdown in computers and communication facilities, inaccurate, incomplete, or delayed transmission of information to the Client due to disruption or failure of communication devices used for the services, and 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 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, arising out of or resulting from fault or negligence of the Client or its representatives, any breach of this Agreement or related documents, and any breach 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 there are pending, anticipated, or excessive chargebacks, refunds, or reversals; the Corporation suspects or becomes aware of suspicious activity; the Corporation is required by applicable law, court order, or order of the Bangko Sentral ng Pilipinas or any other competent regulator; or analogous circumstances would place the Corporation or the Platform at risk, result in losses from credit, fraud, or other associated risks, or constitute an illegal act under Philippine law.

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 a transaction created or facilitated through the Client's account that it did not authorize and/or did not benefit from, whether due to unauthorized access to its account, loss or theft of login information, or the account being utilized by an otherwise authorized person in an unauthorized manner.
  3. An "Error" refers to a processing error made by the Corporation or its suppliers in which the Client's account is mistakenly debited or credited, a disbursement causes the incorrect amount to be debited, a transaction is missing from or not properly identified in the Client's account statement due to the fault of the Corporation, or the Corporation made a computational or mathematical error related to the Client's account.
  4. Instances falling under the definition of Unauthorized Transactions, errors caused by the Client sending a disbursement to the wrong party or for the wrong amount, and processing delays due to third-party networks outside the Corporation's control shall not be considered Errors.
  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 unauthorized transaction. Upon lapse of such 15-day period, the statement or receipt shall be deemed to not carry any errors or that the transaction is authorized. The notification shall describe the possible error or unauthorized transaction.
  6. Upon notification, the Corporation shall conduct an investigation within ten (10) business days after receipt.
  7. After completing the investigation, if the Corporation decides that there was no error or unauthorized transaction, the Corporation will send a written explanation of the decision. If the Corporation determines that there was an error, it will promptly rectify the error within ten (10) business days from completion of the investigation.
  8. If the Corporation determines there was an unauthorized transaction, it shall notify and coordinate with the corresponding partner bank and recipient bank to facilitate possible return of the funds within twenty-four (24) hours from determination, coordinate with the Client for possible civil, criminal, and/or administrative action within ten (10) business days, and/or freeze or suspend 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 or affairs of the other Party which either Party may acquire in the course of its activities under this Agreement, except to employees who need to know such information for performance of this Agreement and exclusively for such purpose. Either Party shall take all necessary precautions to prevent unauthorized disclosure by any of its employees.
  2. The foregoing provision shall not apply to information which has become publicly known through no fault of either Party or its employees, was rightfully received from a third party without breach, or 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 them; provided that, in the event of any conflict between such Non-Disclosure Agreement and this Agreement's confidentiality provisions, the former shall prevail.
  4. As an exception to confidentiality obligations, 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. Subject to subsequent agreements, the Parties 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, database rights, topography rights, domain names, trademarks, rights in trade dress and get up, rights in goodwill or to sue for passing off, service marks, trade names, logos, trade secrets, know-how, 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, 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

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 mandatory and non-mandatory benefits owed to its employees in accordance with pertinent laws, rules, regulations, and 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

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.

Either Party (the "Non-Defaulting Party") shall have the right to terminate this Agreement by written notice to the other Party (the "Defaulting Party") whenever breach of this Agreement remains uncured within thirty (30) days after notice requiring remedy; the Defaulting Party becomes insolvent or subject to bankruptcy, receivership, administration, or other procedure arising out of failure to pay overdue debts; or the representations and warranties of the Defaulting Party are proven false in any material respect.

14. Account Suspension or Restriction Due to Suspicious or Fraudulent Activities

  1. The Corporation reserves the right to suspend the Client's account or restrict access to the Platform immediately and without prior notice if the Corporation deems the account to be engaged in suspicious or fraudulent activities.
  2. Upon suspension or restriction, the Corporation will notify the Client of the suspension or restriction and the reasons for such action.
  3. To reactivate the account, the Client may be required to contact the Corporation's support team and provide sufficient documentation to verify the legitimacy of their activities and address the concerns raised by the Corporation.
  4. Upon receiving the required documentation and clarification from the Client, the Corporation will review the provided information promptly and decide, at its sole discretion within ten (10) business days, whether to lift the suspension and reactivate the account or take further necessary actions.
  5. During the suspension period, the Corporation will ensure the security and confidentiality of the Client's data in accordance with the terms of the Agreement and applicable data protection laws.

15. Arbitration

  1. All disputes, controversies, or differences arising out of or in connection with this Agreement, including questions of interpretation, 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 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.
  2. Any award by the arbitration tribunal shall be final and binding upon the Parties and may be enforced by judgment of a competent court having jurisdiction in the premises.
  3. Nothing herein contained shall bar the right of any Party to obtain injunctive relief against threatened conduct likely to cause loss and/or damage pending resolution of the dispute by arbitration.

16. Governing Law

This Agreement, including all matters relating to its validity, construction, performance, and enforcement, shall be governed by and construed in accordance with the laws of the Republic of the Philippines, without giving effect to any choice or conflict of law provision or rule.

17. 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.

18. Separability

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 shall remain in full force and effect.

19. Waiver

The waiver by either Party of a breach of any provision 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 operate as a waiver of any breach or default by the other Party.

20. 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.
  2. A notice with respect to a change of address shall be effective only when actually received.

21. 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.
  2. Approvals or consents hereunder by a Party shall also be in writing.

22. Interpretations

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

23. 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 and supersede all previous understandings, agreements, or communications, whether oral or written, 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 on the Platform.
  3. If executed electronically as indicated in this Agreement, such execution shall be without prejudice to the right of the Corporation to require execution of a hard copy and 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.
  4. The Client may not refuse execution of a hard copy upon the requirement of the Corporation, 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 with the following schedule:

Fees

  1. Disbursements: The Corporation shall charge a fixed fee of PHP 5.00 for every transaction worth PHP 50,000.00 or below at any bank or eWallet in the Philippines; provided that, the Corporation shall charge an additional PHP 5.00 for every PHP 50,000.00 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. Any fees charged on the platform are inclusive of 12% VAT.
  2. Platform Subscription: The Corporation shall charge a recurring subscription fee based on the Client's selected subscription tier and schedule, inclusive of 12% VAT. This fee is separate from the Disbursement fees as outlined in Annex A and includes costs imposed by transfer agents, other payment systems, and third-party service providers as part of the transaction, inclusive of 12% VAT. Costs that may be imposed by transfer agents, other payment systems, and other third-party service providers part of the transaction shall be included as additional fees. For more details, please see the pricing page.
  3. Ecommerce: A fixed fee of PHP 15.00 in addition to a fee of 3.5% of the total transaction value shall be charged by the Corporation.

Other Terms and Conditions

  1. Invoicing, Bills, and Ecommerce: Fees due shall be deducted automatically from the account of the Client when and where applicable, and are inclusive of 12% VAT.
  2. Deposits: The Client shall transfer to the account of the Corporation its full amount of deposit at least one to three (1-3) business days ahead prior to any disbursements to be initiated.
  3. Fee Adjustments: All fees imposed by the Corporation may be increased subject to at least thirty (30) days' notice prior to the effectivity of such increase. Notification of any fee adjustments will be communicated through email, the platform, written notice, SMS, or any other efficient and effective means of communication at the discretion of the Corporation. Any decrease in fees may be implemented by the Corporation at its sole discretion without the need for notice. Any change in terms and conditions concerning service fees shall be subject to a maximum ten (10) day notice requirement prior to the effectivity of the change in such terms and conditions.

Contact Us

If you have any questions regarding the Platform Use Agreement, please reach out to [email protected].