Terms & Condition

Terms & Condition

1) Definition of Terms.

a) Charge means a credit or debit instruction to capture funds from an account that a Customer maintains with a bank or other financial institution in connection with a Transaction;

b) Chargeback means an instruction initiated by a Customer for the return of funds for an existing Charge;

c) FGC Services refers to the payment processing, authorization, and settlement services provided by FGC to its Merchants, enabling the latter to accept payments through FGC from the Customers of Merchants. It also includes the Dashboard, electronic information management tool that visually tracks, displays and stores metrics and data points pertaining to Transactions, provided to Merchant, and the FGC Website (www.fucentgateway.com).

d) FGC Payment Providers refers to, but is not limited to, WeChat Pay, Alipay, UnionPay, GCash, and GrabPay. FGC may add or remove FGC Payment Providers at any given time. Merchant’s use of FGC Services may be subject to separate terms applicable to the FGC Payment Provider, including but not limited to ThirdParty Rules (see definition below).

e) Settlement means the amount due to you from your Transactions minus our Fees and any Fines, Refunds, Chargebacks, Reversals, setoffs, recoupments or any other amounts due to FGC;

f) Refund means a refund issued by you through a FGC Payment Provider; and g) Reversal means an instruction initiated by a FGC Payment Provider to return funds for an existing Charge.

2) Information Verification. In order for FGC to satisfy its obligations and to comply with the relevant requirements under Applicable Law, upon reasonable request by FGC, Merchant will share records and information, including but not limited to the Transaction Information, phone numbers, physical and mailing addresses of Merchant’s business, Merchant’s tax identification number, business invoices, copies of government-issued identification, business licenses, or other information related to Merchant’s business, its beneficial owners, or principals. FGC may also request that Merchant provide copies of financial statements or records pertaining to Merchant’s compliance with this Agreement or require Merchant to provide a personal or company guarantee. Merchant’s failure to provide this information or material may result in suspension or termination of this Agreement. Merchant hereby authorizes FGC to provide the relevant records and information to governmental agencies, regulatory authorities, and third-party service providers for examination and verification as necessary and subject to the limitations set forth in Sections 17 (Confidentiality) and 18 (Data Privacy Compliance) of this Agreement.

3) Representations and Warranties. Each Party makes each of the following representations and warranties to the other Party, and acknowledges that such other Party is relying on these representations and warranties in entering into this Agreement.

a) The Party represents and warrants the following:

i) it is a corporation, partnership, or a sole-proprietorship, duly organized, validly existing and in good standing under the laws of jurisdiction of its incorporation;

ii) it is properly registered to do business in all the jurisdictions in which it carries on business;

iii) it has all the licenses, regulatory approvals, permits and powers legally required to conduct its business in each jurisdiction in which it carries on business;

iv) it has the corporate power, authority, and legal right to execute and perform this Agreement and to carry out the transactions and its obligations contemplated by this Agreement;

v) neither (a) the execution of this Agreement, nor (b) the consummation by the Party of this Agreement will (i) conflict with the certificate of incorporation or by-laws or any other corporate or constitutional document of the Party; (ii) breach any obligations of the Party under any contract to which it is a party; or (iii) violate Applicable Law;

vi) there is no litigation, proceeding or investigation of any nature pending or, to the Party's knowledge, threatened against or affecting the Party or any of its Affiliates, which would reasonably be expected to have a material adverse effect on its ability to perform its obligations under this Agreement.

4) Covenants and Warranties of Merchant

a) Use of FGC Services.

i) Merchant must only use FGC Services to facilitate a valid and legal purchase, sale, order, or other transaction (each a “Transaction”) with Merchant’s customers.

ii) Merchant must obey all laws, rules, and regulations applicable to Merchant’s use of FGC Services.

iii) Merchant hereby undertakes, warrants, and represents that Merchant will not use FGC Services:

(1) to send money to others;

(2) to conduct any personal transactions;

(3) to perform any commercial or non-commercial services for other third parties;

(4) to enable any person (including Merchant) to benefit from any activities FGC has identified as a Prohibited Product (see Schedule B);

(5) to sell products or services in a manner that is unfair or deceptive, exposes Customers to unreasonable risks, or does not disclose material terms of a purchase in advance;

(6) to sell its goods or services to its customer above or beyond its normal or regular selling price or cost and shall not, directly or indirectly, transfer any fees it may incur for availing of FGC Services; or

(7) to restrict its customers in any way from using FGC Payment Providers as a payment method at checkout at any sales channel, including but not limited to requiring a minimum or maximum purchase amount from customers using FGC Payment Providers, or

(8) for any other purposes prohibited by this Agreement,

and that each and all Transactions processed using FGC Services is solely in payment for Merchant’s provision or sale of Merchant’s declared goods or services to Merchant’s customers.

b) Customer Relationship.

i) Merchant shall maintain direct relationship with its Customers, and Merchant shall be solely and fully responsible for:

(1) acquiring appropriate consent to submit a Charge through FGC Payment Providers on their behalf, this Agreement, and FGC’s Privacy Policy found in the FGC Website;

(2) providing confirmation or receipts that accurately describes each Transaction to Customers;

(3) providing Customers a way to contact Merchant in the event that the product or service is not provided as described;

(4) verifying Customers’ identities;

(5) determining a Customer’s eligibility and authority to complete Transactions;

(6) ensuring that its Customers understand the purpose, amount, and conditions of Charges submitted through the FGC Payment Providers;

(7) accurately communicating the nature of the Transaction and the amount of the Charge in the appropriate currency prior to submitting it;

(8) informing Customers that FGC and FGC Payment Providers process Transactions for Merchant; and

(9) dealing with all complaints made by its customers with respect to goods and/or services charged in a similar manner as if such goods and/or services have been paid in cash.

c) Transactions.

i) Merchant shall research a Transaction it deems to be suspicious, and, if necessary, shall contact the Customer before fulfilling or completing the Transaction. Merchant shall be solely responsible for any losses Merchant incurs due to erroneous, unlawful, fraudulent, or illegal Transactions in connection with Merchant’s use of FGC Services.

ii) Merchant shall maintain the Transaction information for each Transaction for a minimum period of five (5) years after the completion of the Transaction, and Merchant shall allow FGC or FGC Payment Providers to access the Transaction Information upon reasonable written request to review, evaluate, investigate, or verify such Transaction Information.

d) Others.

i) Merchant shall prominently and conspicuously display and maintain at its place of business acceptance signages, stickers, plastic stands, and other promotional materials provided by FGC.

ii) Merchant shall not violate or attempt to violate any security features of FGC Services, including, without limitation, (1) accessing content or data not intended for Merchant, or logging onto a server that Merchant is not authorized to access; (2) attempting to probe, scan, or test the vulnerability of FGC Services, or any associated system or network, or to breach security or authentication measures without proper authorization; (3) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the FGC Services, overloading, "flooding," "spamming," or undertaking analogous activities; (4) resell FGC Services or permit third parties to use FGC Services without FGC’s prior written consent; (5) make unauthorized copies of any content in FGC Services; and (6) other analogous acts.

iii) Merchant warrants that all information given or will be given to FGC is materially true, accurate, and complete.
 

5) Data Sharing with FGC Payment Providers and Subcontractors

a) FGC may share information about Merchant with FGC Payment Providers and its Subcontractors (such as but not limited to agents, verification vendors, cloud provider, and developers) in order to provide FGC Services, or to verify Merchant’s eligibility to use the FGC Services, monitor Transactions, conduct risk management and compliance reviews, and analogous other activities. FGC shall only collect, access, use, transfer, or otherwise process the Personal Information for the duration of this Agreement, for the exclusive purpose of providing the FGC Services, and in accordance with Section 18 (Data Privacy Compliance) of this Agreement.

b) FGC may share Merchant’s personally identifiable information with FGC Payment Providers and Subcontractors for the purpose of facilitating the compliance of FGC, FGC Payment Providers, and Subcontractors with applicable laws and regulations, as well as any rules, guidelines, or by-laws of any of FGC Payment Providers (“ThirdParty Rules”).

c) FGC Payment Providers and Subcontractors are contractually required to comply with confidentiality standards and establish adequate safeguards for data privacy, undertake to respect any user’s right to privacy, and comply with applicable laws.

d) FGC Payment Providers and Subcontractors may only use the information shared with them for the above purposes and follow our reasonable directions with respect to this information. FGC shall be fully responsible for all actions, omissions or inactions of its Subcontractors or the latter’s agents or employees as if they were acts, omissions or inactions of FGC.

6) Handling Fees and Taxes

a) Merchant shall pay FGC the agreed Handling Fee also known as “Merchant Discount Rate” (MDR) indicated in the Merchant Conforme Sheet in exchange for facilitating each Transaction.

b) The Handling Fee and payment terms shall be subject to re-negotiation and adjustment with the mutual consent of the Parties of this Agreement.

c) The Handling Fee is exclusive of any applicable Taxes, except as expressly stated to the contrary, and Merchant shall pay, indemnify, and hold FGC harmless from any taxes, duties, or fees that FGC may incur with respect to this Agreement. In relation to this, FGC may send documents to you and tax authorities for Transactions processed using FGC Services.

7) Payments and Suspension or Refusal of Transactions

a) FGC shall accept and process payments made through FGC Payment Providers, subject to the exceptions found in this Section.

b) FGC may refuse, condition, or suspend any Transactions that FGC believes: (i) may violate this Agreement or other agreements Merchant may have with FGC; (ii) are unauthorized, fraudulent or illegal; or (iii) exposes Merchant, FGC, FGC Payment Providers, or others to risks unacceptable to FGC.

c) In the event that FGC suspects or knows that Merchant is using or has used FGC Services for unauthorized, fraudulent, or illegal purposes, FGC may share any information related to such activity with the appropriate financial institution, regulatory authority, or law enforcement agency consistent with our legal obligations. This information may include information about Merchant, Merchant’s customers, and Transactions made through your use of the FGC Services.

d) FGC may, in its sole discretion, suspend or terminate FGC Services which may be subject to high risk unauthorized, fraudulent, or illegal transactions, including, but not limited to adjusting the types, issuing banks and payment limits of and on the payment methods that customers will be able to use to complete Transactions; provided, that such suspension or termination is made with reasonable notice to Merchant.

e) Merchant hereby agrees to cooperate with FGC and FGC Payment Providers to mitigate the risks of unauthorized, illegal, and fraudulent Transactions, and further agrees to provide necessary information relevant to any investigation on claims of unauthorized, illegal, or fraudulent Transactions within three (3) Business Days upon receipt of FGC’s written request.

8) Settlement

a) FGC shall credit the payments and collections from the Transaction(s) to the Nominated Bank Account in the Merchant Application Form. The amounts credited shall be net of Handling Fee and applicable government taxes, if any. Merchant hereby affirms that Merchant is authorized to initiate Settlements to and debit from Merchant’s Nominated Bank Account.

b) FGC, FGC Payment Provider, or the financial institution holding Merchant’s Nominated Bank Account may delay settlement for any reason (such as, but not limited to, weekends, Philippine holidays, holidays where FGC Payment Provider is located). FGC shall not be held liable nor responsible for any harm suffered by Merchant stemming from such delay. FGC is not responsible for any action taken by the institution holding Merchant’s Nominated Bank Account to not credit Merchant’s Nominated Bank Account or to otherwise not make funds available to Merchant as Merchant has expected.

c) Upon payment of valid Transactions, Merchant shall cease to have any interest therein. FGC will have the exclusive right to collect payments and reimbursements for the Transactions from FGC Payment Providers. Merchant agrees not to make any collections nor accept payment directly from FGC Payment Providers or from its customers unless said customer pays directly through Merchant’s other payment channels. In any case, FGC warrants that it will make good the amount of Transaction to Merchant, except in instances mentioned in Section 7 of this Agreement.

d) Subject to prior notice and consent of Merchant, FGC has an option to charge or offset an immediate refund from any amount due the Merchant from FGC or any chargeback, without any prejudice to the right of FGC to immediately collect for any deficiency.

e) Merchant must ensure that the banking details provided in the Merchant Application form are accurate. Merchant will bear all the losses arising from the inaccuracy of its banking details as provided in the Merchant Application Form.

f) If Merchant elects to change its Nominated Bank Account, Merchant shall immediately send a Nominated Bank Account amendment request to FGC and coordinate with the designated officer to process such change. FGC shall hold settlements due to Merchant until Merchant is able to comply with the requirements to implement the Bank Change Request. Upon submission of the complete documentary requirements by Merchant, FGC shall, in two (2) business days, update the Nominated Bank Account of Merchant and deposit all settlement due to Merchant to said new Nominated Bank Account.

g) Merchant hereby represents and warrants that its Nominated Bank Account is owned by the Merchant and that any change in its Nominated Bank Account is and will continuously be compliant with all applicable laws, rules, and regulations, including, but not limited to: Anti-Money Laundering Act. Any misrepresentation in relation to this provision constitutes a material breach of this Agreement. FGC shall, in no event, be held liable for any damages in the event that Merchant has decided to change its Nominated Bank Account but failed to properly inform FGC of the same, nor shall FGC be held liable for any delay in settlement resulting from the change of the Nominated Bank Account, save in instances where delay is a result of proven fraud, gross negligence, or serious misconduct of FGC.

9) Suspension of Settlement

a) FGC reserves the right to suspend settlement to Merchant. If FGC exercises its right to withhold a settlement under this Section, FGC shall communicate the general reason for withholding the settlement and inform Merchant of the timeline for releasing the funds.

b) Suspension of settlement is warranted in certain instances such as but not limited to: (i) where there are pending, anticipated, or excessive Chargebacks, Refunds, or Reversals; (ii) in the event that FGC or FGC Payment Providers suspect or become aware ofsuspicious activity; or (iii) where FGC is required by applicable law or court order.

c) FGC shall have the right to withhold settlement to Merchant’s Nominated Bank Account upon termination of this Agreement if FGC reasonably determines that FGC may incur losses resulting from credit, fraud, or other legal risks associated with Merchant.

10) Customer Dispute

a) FGC shall inform Merchant, whenever applicable, if a Customer initiates a complaint/dispute with any FGC Payment Provider relating to the Transaction with Merchant. FGC may assist Merchant and Customer in resolving the complaint/dispute.

b) Merchant agrees to fully cooperate with FGC and FGC Payment Provider in resolving the complaint/dispute and shall immediately provide the relevant information relating to the said complaint/dispute. In case the complaint/dispute results in a request for Refund, Merchant shall decide whether to accept or deny the same (“Response”) within five (5) calendar days (the “Response Deadline”) from the date the request for refund is received by Merchant from FGC.

c) Upon receipt of Merchant’s Response to the complaint, FGC shall take the necessary actions and shall inform Merchant, within a reasonable time, further actions to be taken by Merchant. If FGC does not receive any decision from Merchant after the lapse of the Response Deadline, FGC shall immediately notify the corresponding FGC Payment Provider of such fact. FGC Payment Provider may take the necessary actions, including the initiation of a refund to the Customer within three (3) calendar days from the lapse of the Response Deadline. Merchant shall not hold FGC liable for the Merchant’s failure to respond within the said period.

11) Returns/Refunds/Cancellations.

a) Merchant shall maintain and make available to the Customers a fair and neutral return, refund, cancellation, or adjustment policy, and clearly explain the process related to the same to its Customers.

b) In the event that a Customer intends to return or exchange the purchased goods in accordance with Merchant’s Return and Exchange Policy, and the Merchant agrees, the Merchant shall execute the Refund or exchange with the relevant FGC Payment Provider. The Refund or return shall be the basis for the cancellation/Reversal of the Transaction. In the event of an exchange, the customer may then execute a new Transaction for the exchanged goods using the applicable FGC Payment Provider.

c) Should a Customer make a mistake in inputting the amount due to Merchant or should a Transaction fail due to technical reasons (i.e. network disconnection, device malfunction), the full amount shall be credited back to the Customer. No partial Refunds will be processed at any time for any reason. Customers will be advised to re-transact upon reversal of the Transaction.

d) At all times, the Reversal should be requested by the Merchant while the Customer is on-site so as to provide verification by both the customer and the merchant. If one party disagrees with the Reversal, Merchant and Customer shall communicate directly.

e) Service Level Agreement. FGC commits that requests for Refunds made before 01:00 AM the following day of the Transaction through the Dashboard shall be processed within three (3) banking days from approval of by the Customer, Merchant, and/or FGC Payment Provider. For refund requests sent after 01:00 AM the following day of the Transaction, the Merchant must send an email to info@fucentgateway.com. FGC commits to process the request within three (3) banking days from receipt of approval from the Customer, Merchant, and/or FGC Payment Provider.

12) Term and Renewal. The term of this Agreement shall be for a period of one (1) year and shall commence upon the execution of this Agreement. This Agreement is automatically renewed every year thereafter unless otherwise terminated upon the request of either Party, by giving the other Party a written notice at least thirty (30) days prior to the expiration of the term or renewal term, or, in case of pretermination, thirty (30) days prior to the desired date of termination.

13) Termination.

a) Merchant must give prior written notice to FGC of not less than thirty (30) banking days for any removal or closing down of any of the Merchant’s business or branches or any reorganization of the Merchant; and give written notice to FGC within seven (7) banking days after any sale or assignment or transfer of all or any part of its business or establishment.

b) Either Party, upon written notice to the other Party, shall be entitled to terminate this Agreement effectively immediately in any of the following instances:

i) A Party is in material breach of any of its obligations in this Agreement;

ii) A Party defaults in the performance of any of its obligations hereunder and fails to remedy the same within thirty (30) calendar days from default;

iii) A Party transfers all or part of its business or establishments without prior written consent from the other Party;

iv) A Party becomes bankrupt or insolvent, is unable to pay its debts as such debts become due has a receiver appointed over its assets or goes into liquidation or reorganization (whether voluntary or involuntary) except for the purpose of merger or consolidation;

v) A Party’s proof of identity, business registration information, administrative license, business scope, and other compliance requirements are found to be falsified;

vi) A Party exhibits deliberate slander or damage to the reputation of the other Party; or

vii) A Party suffers Data Compromise to the detriment of the other Party and fails to remedy the same within thirty (30) calendar days from the occurrence of the Data Compromise.

c) FGC, upon written notice to Merchant, shall be entitled to terminate this Agreement effectively immediately in any of the following instances: (i) The government, judicial authorities, financial regulators, issuers, issued a request to suspend or terminate the payment to Merchant; (ii) Merchant has an accumulated amount of verified unauthorized payments exceeding (a) RMB 50,000 or its equivalent in PHP and (b) 1/10,000 of the total Transaction value of the Transactions submitted by FGC in each of two (2) consecutive months; (iii) Merchant fails to adopt, without any justifiable reason, the measures requested by FGC, in relation to unauthorized payments, within ten (10) calendar days from receipt of FGC’s notice; and/or (iv) Merchant sells any of the Prohibited Products in Schedule B.

d) The expiration or termination of this Agreement for any reason shall not relieve either Party from any liability or obligation it may have to the other arising out of or related to the acts or omissions prior to such termination or expiration. The nondefaulting Party’s exercise of its rights to terminate this Agreement shall be without prejudice to any other rights it may have under the Applicable law and equity and to seek injunctive relief or legal redress against the defaulting Party, with prior notice to the defaulting Party. The defaulting Party shall indemnify the non-defaulting Party for any loss, damage or cost, including attorney’s fees, resulting from the defaulting Party’s breach of any term, covenant or warranty under this Agreement.

e) Upon the expiration or termination of this Agreement, the Merchant shall cease to use or refer to in any manner the service marks of FGC and FGC Payment Providers, and it shall immediately return to FGC all materials, including but not limited to promotional materials, machines, or other items which has been sent to the Merchant pursuant to this Agreement, as well as those which are in its possession and/or in the possession of any of its employees, agents and/or representatives.

14) Anti-Money Laundering. The Parties shall at all times comply with all applicable laws and regulations, which are already in force or may be enforced in the future, including but not limited to those relating to the prevention of anti-money laundering, in carrying out their respective obligations herein. In the event any of the Parties shall become aware of any existing or proposed law, rule, or regulation which may have an effect on the obligations of either Party in this Agreement, it shall promptly inform the other Party, providing such details as are reasonably available.

15) Publicity. Merchant shall obtain FGC’s written consent, prior to the publication, of any advertising and/or promotional materials containing the FGC branding/program marks. FGC in the same manner, shall require prior clearance from Merchant in as far as using the latter’s brand marks for promotions purposes under this Agreement. Notwithstanding the foregoing, Merchant agrees that preceding limitation will not be interpreted to prevent FGC from making statements about FGC Payment Providers in general in or outside of the jurisdiction where the Merchant is located, including but not limited to identifying the Merchant as a business partner using FGC Services or making references publicly to the Merchant’s name, logo, trademarks or a general description of the Merchant’s cooperation with FGC for business development purpose.

16) Intellectual Property. Nothing in this Agreement shall affect each Party’s ownership of, or right to use, any intellectual property rights (including trademarks, trade names, copyrights, patents and designs) belonging to such Party before the date of this Agreement, or which has been independently developed by such Party outside this Agreement during the term hereof. Any intellectual property owned or held by either Party, but which is used or displayed in any material resulting from this Agreement, shall be licensed (or sub-licensed) to the other Party for the term of this Agreement without any royalty, fee, or charge. All rights relating to each Party’s products, services, platforms, or software which are not expressly granted in this Agreement are reserved to the corresponding owner or holder of such rights.

17) Confidentiality

a) Each Party acknowledges that the Confidential Information of the other is valuable to it and agrees to treat as confidential all Confidential Information received from the other Party in connection with this Agreement. Neither Party will disclose such Confidential Information to any third party, except as provided in paragraphs b and c of this Section, and shall hold and maintain the Confidential Information in strictest confidence at all times during the effectivity of this Agreement and for a period of two (2) years thereafter; provided, that for the obligations of confidentiality relating to technical data or know-how and other sensitive information relating to, owned, or used by the Disclosing Party such as, but not limited to, information relating to business and product or service plans; operational information; sales data; financial information; customers and suppliers; object or source code and computer software; research data and results; innovations and inventions (patented or not); ideas; processes; designs; specifications; engineering plans; marketing strategies and data; employees; and any other information or materials concerning the Disclosing Party’s business and affairs (collectively, the “Trade Secrets”), the term of confidentiality shall extend in perpetuity.

b) The receiving Party may disclose the disclosing Party’s Confidential Information to receiving Party’s responsible representatives, but only to the extent necessary to evaluate or carry out its obligations with the disclosing Party and only if such representatives are advised of the confidential nature of such Confidential Information and the terms of this Agreement.

c) Receiving Party may disclose the Confidential and Proprietary Information if required to do so by law; provided, that the Receiving Party shall provide the Disclosing Party with: (a) prompt notice of its intent to make such disclosure so as to afford the Disclosing Party the opportunity to seek a protective order or other appropriate remedy, and (b) reasonable cooperation and assistance in any effort to obtain such relief. The receiving Party will furnish only that portion of the Confidential and Proprietary Information that is legally required to be disclosed and will use reasonable efforts to obtain assurance that confidential treatment will be accorded the Confidential and Proprietary Information that is so disclosed.

d) Receiving Party agrees that upon learning of, or upon a showing by the Disclosing Party of, any threatened or actual: (i) breach of the provisions of confidentiality/disclosure or of any threatened or actual unauthorized use or disclosure of the Confidential and Proprietary Information by a Receiving Party or any employee or independent contractor of the Receiving Party bound by a written confidentiality obligation comparable to this one, or (ii) loss of or inability to account for such Confidential and Proprietary Information, the Receiving Partyshall immediately notify the Disclosing Party thereof and shall cooperate as reasonably requested by the Disclosing Party in conjunction with efforts to prevent or curtail such threatened or actual breach or unauthorized use or disclosure or to recover such Confidential and Proprietary Information.

e) Upon the earlier of: (i) the completion of the matter requiring the Confidential and Proprietary Information, or (ii) written request by a Disclosing Party, all Confidential and Proprietary Information (and all copies thereof) previously received by the Receiving Party shall, as specified in the request, either be promptly returned to it or destroyed. In the event that the Confidential and Proprietary Information is destroyed, the Receiving Party responsible for destroying the Confidential and Proprietary Information shall confirm such destruction in writing to the Disclosing Party.

f) Receiving Party expressly acknowledges and agrees that the Confidential and Proprietary Information is valuable property of the Disclosing Party and that, in the event of the unauthorized use or disclosure of the Confidential and Proprietary Information, the Disclosing Party will suffer irreparable injury not compensable by money damages. Accordingly, in any action or proceeding to enforce the provisions of this non-disclosure and confidentiality agreement, the Disclosing Party shall be entitled to injunctive and other equitable relief to prevent or curtail any such breach, threatened or actual, including, but not limited to, the specific performance of the terms and conditions of this non-disclosure and confidentiality agreement. The foregoing shall be in addition to and without prejudice to or limitation on any other rights the Parties might have at law or in equity.

18) Data Privacy Compliance.

a) The Parties shall comply with the applicable provisions of the Data Privacy Act of 2012, also known as Republic Act No. 10173, its implementing rules and regulations, the issuances and circulars of the National Privacy Commission(“NPC”), as well as other applicable personal data privacy and protection laws and regulations (collectively, "Privacy Laws"). At all times, both Parties shall implement the appropriate and reasonable level of organizational, physical, and technical security measures to ensure the confidentiality, integrity, and availability of any personal information and sensitive personal information as defined under the Privacy Laws (collectively “Personal Data”) that may be processed pursuant to this Agreement and the Privacy Laws.

b) In the event that any Personal Data shall be disclosed in relation to this Agreement, the party disclosing such Personal Data shall ensure that the required consents under the Privacy Laws have been obtained from the relevant Data Subjects (as defined under the Privacy Laws). To the extent applicable and required under the Privacy Laws and this Contract, the Discloser shall:

i) process the Personal Data only upon the documented instructions of the Discloser, including transfers of Personal Data to another country or an international organization, unless such transfer is authorized by law;

ii) ensure that an obligation of confidentiality is imposed on persons authorized to process the Personal Data;

iii) ensure that appropriate trainings on Privacy Laws are provided to persons authorized to process the Personal Data;

iv) implement appropriate security measures and comply with the Privacy Laws;

v) immediately inform the Discloser within twenty-four (24) hours or earlier, if:

(1) in its opinion, an instruction infringes the Privacy Laws; and

(2) upon reasonable belief that a security incident or personal data breach has occurred, to enable the Discloser to notify NPC and the affected Data Subjects, within the criteria prescribed under the Privacy Laws; and

vi) timely document and provide a copy of the Security Incident and Personal Data Breach Reports to the Discloser through a secure channel and keep copies for the period agreed upon with the Discloser or otherwise directed by the NPC.

19) Force Majeure. The Parties will not be held liable for any default, delay, or failure in performing its obligations under this Agreement resulting directly or indirectly from acts of nature, forces or causes beyond such Party’s, its Affiliates’ or agents’ reasonable control, including without limitation, (i) fire, flood, element of nature or other act of God, (ii) outbreak or escalation of hostilities, war, riot or civil disorder, or act of terrorism; (iii) internet failure, computer, telecommunications, electrical power failure or any other equipment failure; (iv) labor dispute (whether or not employees’ demands are reasonable or within the Party’s power to satisfy), (v) act or omission of a government authority prohibiting or impeding the affected Party (or its Affiliates or agents) from performing its obligations under this Agreement, including order of a domestic or foreign court or tribunal, governmental restriction, sanctions, restriction on foreign exchange controls, etc. or (vi) the nonperformance by a third party for any similar cause beyond the reasonable control of the Party (each a “Force Majeure Event”). If a Force Majeure Event occurs, the non-performing Party will be excused from any further performance of the obligations affected by the event only for as long as the Force Majeure Event continues and only to the extent of such Force Majeure Event and the Party continues to use commercially reasonable efforts to resume performance.

20) Assumption of Risk. Merchant’s use of FGC Services is entirely Merchant’s own risk. Merchant understands and agrees that should Merchant choose to use FGC Services, Merchant is doing so voluntarily and Merchant assumes all such risks without limitation.

21) Disclaimer of Warranties. FGC IS MAKING THE SERVICE AVAILABLE “AS IS” AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, FGC EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON INFRINGEMENT. MERCHANT ASSUMES THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, FGC SERVICES. FGC DOES NOT WARRANT THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.

22) Limitation of Liability and Indemnification.

a) Each party shall indemnify and hold harmless the other party (the “Indemnified Party”) for any loss or damage arising from or caused by a party’s (the “Indemnifying Party”) fraud, gross negligence, acts or omissions, willful misconduct, bad faith, or for any loss or damage actually arising and immediately payable from the infringement of a third party’s intellectual property rights, or for death of or any personal injury suffered by the Indemnified Party’s representative in the course of fulfilling his/her principal’s responsibilities under the Agreement.

b) The Indemnifying Party shall fully compensate the Indemnified Party for actual costs incurred by the Indemnified Party in rectifying the damage or loss which it has actually or imminently suffered, and/or in defending itself from any third party relating to such damage, loss, or injury caused by the Indemnified party’s breach of its obligations pursuant to this Agreement. Neither party shall be liable to the other for any special, incidental, indirect, exemplary, liquidated, moral, nominal, temperate, or consequential damages for whatever cause, including loss of profits or revenues or loss of prospective business advantage, regardless of whether the party had been advised of such damages or whether that liability arises in contract, tort, strict liability, breach of warranty, or otherwise.

c) Each Party agrees to indemnify, defend and hold free and harmless the other Party, its directors, officers, employees, and agents from and against all actual loss, damage, liability, cost, and expense arising from or occasioned by a Customer’s abusive and/or fraudulent use of FGC Services, or out of a breach by a Party of any of its obligations under this Agreement.

23) Governing Law. This Agreement is made expressly subject to all present and future orders and regulations of any regulatory body having jurisdiction over the subject matter hereof and to the laws of the Republic of the Philippines.

24) Dispute Resolution.

a) FGC and Merchant shall first attempt in good faith to resolve the dispute informally by contacting each other by email. Both Parties shall attempt to resolve the dispute within sixty (60) calendar days from receipt of the other Party of the notice of dispute from the complaining Party.

b) If the dispute is not resolved through informal resolution then either Party may bring the dispute to arbitration in accordance with the rules (the “Rules”) of the Philippine Dispute Resolution Center, Inc. (“PDRCI”) in force at the time of the commencement of the arbitration. There shall be one arbitrator, and the proceedings shall be held in Makati City or such other place as the parties may agree and shall be conducted in English.

c) Any other cause of action the exclusive jurisdiction over which is conferred upon the regular courts shall be filed, prosecuted, or enforced exclusively with/through the appropriate court in Makati City to the exclusion of all other courts. d) Save and except as provided in this Agreement, FGC Services shall not be suspended or terminated pending dispute resolution in accordance with this Section.

25) Assignment. It is expressly agreed that any Party shall not assign or transfer all or any part of its rights or obligations under this Agreement without prior written approval from the other Party.

26) Amendments. Any changes or modifications to this Agreement shall become effective and binding only if executed in writing and signed by each Party’s authorized representatives. The terms and conditions herein will prevail over previous written stipulations, but such previous agreement(s) that remain(s) applicable and is/are not inconsistent herewith will continue to be in full force and effect.

27) Waiver. The waiver by either Party of a breach or default of any provision of this Agreement by the other Party, or the failure on the part of either Party to exercise any right or privilege will not be construed as a waiver of any subsequent breach or default by the other Party, or as a waiver of any such provision, right, or privilege.

28) Notices. Unless otherwise agreed by the Parties, all notices hereunder shall be given by e-mail. All notices and communications to the Merchant shall be sent to the e-mails set forth in the Merchant Application Form. All notices and communication to FGC shall be addressed and sent to: help@fucentgateway.com.

29) Separability. If any one of the provisions contained in the Agreement or any document executed in connection herewith shall be invalid, illegal orunenforceable, the remaining provisions contained herein shall not in any way be affected or impaired, and, that should any Party, in any particular instance, excuse compliance by the other Party with any of the foregoing conditions, the same shall not constitute a waiver thereof nor any amendment of the Agreement but shall apply only to the particular instance involved.

30) Headings. The section headings contained in these Terms and Conditions are for reference purposes only and shall not affect the meaning or interpretation of these Terms and Conditions in any way