AUTHORIZED RETAILER AGREEMENT
This Authorized Retailer Agreement (the "Agreement") is between ACTION.ABLEINC. a corporation duly organized and existing under and by virtue of the laws of the Philippines, with offices at 2F Crown Center, 158 N.Garcia cor. Jupiter Street, Makati City (the "Distributor" or "Action.Able") and the party (hereinafter the "Retailer") identified below. Distributor and Retailer are each, a "Party"; collectively, the "Parties".
Action.Able is engaged in the business of selling digital goods and remittance services for the purpose of ecommerce and digital marketing through which a portfolio of services ("Services") are available. Retailer wishes to resell the Services, subject to the terms and conditions of this Agreement.
GENERALTERMSANDCONDITIONS
1. DEVICE, TECHNICAL PLATFORM, AND INFORMATION
Upon loaning of the Device, Retailer is entitled to use the electronic device (the "Device") described in Annex "A". ACTION.ABLE reserves the right to remove, add and modify features to the Device, as it deems fit. Retailer acknowledges that the technical platform, software, or system used in the Device and that allows for the purchase of the Services (the "Technical Platform") are properties of ACTION.ABLE and protected by applicable laws. The Parties acknowledge that its right to use the Technical Platform may automatically be terminated by ACTION.ABLE for failure to comply with the terms and conditions of this Agreement and the Device be thereafter shall be returned to ACTION.ABLE.
It is expressly understood that nothing herein shall prevent ACTION.ABLE from appointing other distributors, retailers and/or strategic partners for the Device and Services available thereon, under such terms as ACTION.ABLE may deem reasonable.
2. SERVICES AND FEES
2.1. Services. ACTION.ABLE has the exclusive right to determine the Services to make available to the Retailer and to impose the requisite conditions related thereto. From time to time, the Services may be revised by ACTION.ABLE to include, exclude or modify certain features and Services, as it deems fit, by transmission of in-app messaging, Short Messaging Service (SMS), Email, POSIBLE's Official Social Media websites/apps or written notice by ACTION.ABLE to the Retailer.
2.2. Fees. Retailer shall pay the Maintenance and Service Fee (MDSF) and other fees identified in the Schedule of Fees and Services in Annex "C" for the Device, Services, and the use of the Technical Platform, as applicable. Purchases of Services made through the Device shall be deducted against the Retailer Wallet.
2.3. Rate Adjustments. ACTION.ABLE reserves the right to adjust the rates and discounts applicable to the Retailer.
2.4. Material Breach. Failure by Retailers to pay any of the relevant fees, as indicated in Annex "C" shall be a material breach by Retailer of this Agreement.
2.5. Changes to Service. By using the Device, Platform and Services of ACTION.ABLE, the retailers agree that they have read and are bound by the terms of this entire agreement and its annexes. Moreover, the terms and conditions of said Agreement may be subject to amendment or change by ACTION.ABLE at any time and retailer agrees that, upon notification and publication on the website/device/platform of said amendment or changes, if they shall continue to use said device/platform/services of ACTION.ABLE, they hereby expressly agree to the said amendments and/or any changes.
3. CONFLICT OF INTEREST
3.1. Conflicting Activities. Retailer shall:
3.1.1. Comply with the exclusivity guidelines and rules that ACTION.ABLE will be imposing on the use of the Device such as but not limited to product or Service exclusivity for a certain period, on a case-to-case basis;
3.1.2. NOT represent, sell, lease, or distribute devices which are competitive with or will reasonably compete or provides similar Services as the Device, unless otherwise agreed to by ACTION.ABLE, in writing; or
3.1.3. NOT represent, sell or distribute other services which are competitive with or will reasonably compete with or similar to the Services available through the Device, unless otherwise agreed to by ACTION.ABLE, in writing; or
3.1.4. NOT participate or be involved in any capacity, or engage in any activity, which may conflict with the interests of ACTION.ABLE.
3.2. Exclusivity. Upon acceptance of the Device by Retailer, Retailer shall ensure that the Services are purchased exclusively through the Device.
4. OBLIGATIONS AND RESPONSIBILITIES
4.1. Retailer’s Obligations. Retailer shall:
4.1.1. Purchase credits from the Master Wallet to fund and maintain the digital retailer wallet ("Retailer Wallet");
4.1.2. Comply with the suggested retail price (SRP) for the Services and other end-user pricing guidelines imposed by ACTION.ABLE on the Services purchased through the Device;
4.1.3. Comply with all the conditions, rules, and guidelines of ACTION.ABLE and any governmental authority in relation to the use of the Device and the Services made available on the Device by ACTION.ABLE;
4.1.4. Comply with the guidelines for promotional campaigns of ACTION.ABLE or any of its suppliers or authorized entities;
4.1.5. Furnish ACTION.ABLE and/or its representatives, all such documents, records and information that ACTION.ABLE may request from time to time;
4.1.6. Comply with, all directives, memoranda, guidelines, decisions, announcements, rules, and regulations of or issued by the Distributor or ACTION.ABLE in relation to this Agreement. Failure to comply with such directives, memoranda, guidelines, decisions, announcements, rules, and regulations may result in the imposition of penalties, deactivation of the Device, or the termination of this Agreement due to material breach, at the discretion of ACTION.ABLE; and
4.1.7. Perform any other service, as may be requested by ACTION.ABLE such as but not limited to reporting, monitoring, and the like.
4.1.8. Ensure to maintain a monthly minimum of P250,000 worth of transactions. Failure to do so, ACTION.ABLE shall have the right to terminate this agreement and/or require the return or retrieve the Device from the retailer.
4.2. Marketing and Promotions. Retailer shall use its best efforts to promote the sale and use of the Services.
4.3.Remittance/Money Transfer Services. The provisions of this section shall apply in relation to the provision of cash-in/cash-out services ("Remittance Services") through the Device.
4.3.1. The Retailer shall ensure that all applications for Remittance Services shall be made only on official forms ("Application Form") provided by the relevant Remittance Service Partner. The Retailer shall not revise, amend, or promise to revise or amend any of the terms and conditions set forth in the Application Form. The Retailer agrees to hold ACTION.ABLE and the Remittance Service Partner free and harmless from any claims, liabilities, suits, or damages that may be incurred as a result of any transaction using forms other than the Application Form. Any applications made in forms other than the Application Form shall be automatically rejected. For purposes of this Section 4.3, Remittance Service Partner shall mean the relevant entity providing the Remittance Services through the Device.
4.3.2. Any application for Remittance Services made on tampered or fictitious forms, or any fictitious or tampered documentation in support of any application shall be automatically rejected or, if the pertinent Remittance Service has already been consummated, shall constitute a ground for automatic withholding of any amount due to the Retailer and/or termination of this Agreement, without prejudice to the right of ACTION.ABLE to avail of the appropriate remedies under the law.
4.3.3. The Retailer shall ensure that the Application Form is completely filled-up and accomplished prior to proceeding with any Remittance Service. The Retailer shall reject or refuse to proceed with the transaction unless the Application Form is completely filled-up and accomplished.
4.3.4. The Retailer shall further verify the identity of the individual indicated in the Application Form as the recipient or sender through any reasonable means, including the presentation of a valid identification document.
4.3.5. The Retailer shall retain a duplicate copy of the filled-up and accomplished Application Form which shall either be submitted to ACTION.ABLE as and when the same is collected or retained by the Retailer for safekeeping for at least the period prescribed by the applicable regulations of the Bangko Sentral ng Pilipinas or other regulatory agency and/or the Remittance Service Partner. ACTION.ABLE may impose appropriate penalties to the Retailer, including the termination of this Agreement, in the event that the Retailer fails to provide ACTION.ABLE with the required duplicate copy upon collection, or the duplicate copy is defaced or damaged in any manner as to render illegible or incomplete the information indicated therein, or fails to retain a copy as required under this Section 4.3.5.
4.3.6. The Retailer shall not run any promotional or advertising campaign for the Remittance services unless prior written approval is secured from ACTION.ABLE and the relevant Remittance Service Partner.
4.3.7. Violation by the Retailer of any of the provisions of this Section 4.3 is a material breach and may constitute a ground to terminate this Agreement.
4.3.8. The Retailer shall comply with all applicable legal or regulatory requirements with respect to the provision of Remittance Services, including the attendance and participation in mandatory training seminars. The Retailer shall shoulder all fees and expenses required for compliance, including seminar fees, where applicable.
4.3.9. Nothing in this Agreement shall be interpreted in any way as to authorize, allow, advertise or make it appear that the Retailer or ACTION.ABLE is exercising the functions of or acting as a commercial banking corporation, universal bank, quasi-bank, investment house, trust corporation, savings and mortgage bank, or building and loan association, as defined under Republic Act No. 8791, as amended, and other banking rules and regulations.
4.4. Special Purpose Machine (SPM) Permit. In compliance to the provisions of the Bureau of Internal Revenue under the BIR Revenue Memorandum Order (RMO) No. 10-2005, obtain a copy of Special Purpose Machine (SPM) permit by registering the POS device in the BIR Electronic Accreditation and Registration (eAccReg) system. Please refer to “Annex D” for the registration guidelines.
5. DATA PRIVACY
5.1. The Retailer shall be responsible for the confidentiality, security and securing the free, informed, and specific consent of his/her customers for the purpose of using the Device.
5.2. By signing this Agreement, Retailer hereby consents to the collection and processing by Phoenix Petroleum Philippines, Inc. (parent company of Action.Able), its subsidiaries, its employees, authorized agents or representatives of his/her personal information and sensitive personal information obtained by Action.Able from Retailer pursuant to this Agreement. In addition, Retailer consents to the sharing of personal information and sensitive personal information now or hereinafter obtained by Action.Able from Retailer for: a) To provide Marketing, Research and Information Dissemination; (b) To provide Posible business application and Posible business application analysis services; (c) To provide for Identity verification; (d) To provide customer support and service in relation to its services; (e) To share locational information/longitude-latitude coordinates to 3rd party and remittance partners for branch/Cash-In & Cash-out directory (f) To perform standard checks/inquiries with CIBI Information Inc. (CIBI) on credit information; (g) comply with all laws, rules, regulations, lawful court orders and processes; and (h) To protect the Company, its employees and property from harm.
5.3. The Retailer shall ensure that he/she, including their agents, employees and officers are prohibited from deleting, altering, causing loss, releasing and/or disclosing, either through fault or negligence, any Personal Information (or Sensitive Personal Information) of any Data Subject without the approval of Action.Able. The prohibition shall include unauthorized release and/or disclosure to family members, friends, and co-employees.
5.4. The Retailer agrees to indemnify and hold Action.Able, its officers, employees, and personnel harmless from any damages, loss, liability, or costs (including reasonable attorneys' fees and the costs of enforcing this indemnity) arising out of or resulting from any breach of the Retailer's obligations under or in connection with Republic Act No. 10173, and any breach of applicable mandatory statutory and regulatory obligations.
5.5. A breach of this Section shall be considered a material breach of the Agreement and shall entitle the Action.Able, Inc to terminate the Agreement.
5.6. In the event of breach, ACTION.ABLE may, in its sole discretion, impose such penalties as it deems warranted under the circumstances. The imposition of penalties shall be in addition to any other remedy which ACTION.ABLE may have under law or this Agreement.
6. INTELLECTUAL PROPERTY RIGHTS
6.1. Advertising or Promotional Materials. All advertising and other promotional materials involving the intellectual property of ACTION.ABLE will be submitted for approval, at least two (2) weeks in advance and will only be used if ACTION.ABLE consents thereto in writing.
6.2. Limitations on Use. Retailer shall not cause or attempt to create, assert, register or use the name of ACTION.ABLE or any of its affiliates and/or POS!BLE.NET, as well as other trademarks or service marks associated with ACTION.ABLE or any of its affiliates, whether now or in the future, whether by itself or as part of any other trademark, trade name, domain name, or other materials without the prior written consent of ACTION.ABLE. Retailer shall not deface, tamper or destroy the trademark, tradename, logo or other intellectual property of ACTION.ABLE or its partners appearing on the face of the Device or in any advertising or promotional material used in relation to the Device or the Services. Failure to comply with this Section 6.2 may result in the imposition of penalties, deactivation of the Device, or the termination of this Agreement due to material breach, at the discretion of ACTION.ABLE.
6.3. Use of Retailer's Company Name, Logo. ACTION.ABLE is hereby granted the authority and license to use the marks, logos, company name and other intellectual property of Retailer (the "Marks") for marketing and promotional purposes. Retailer may object to the conflicting or improper use of the Marks within five (5) days from publication thereof by sending written notice to ACTION.ABLE. Failure to object within the period shall be deemed a waiver such objection.
6.4. Drawings and Data. ACTION.ABLE supplies all necessary data for the proper installation, test, operation and maintenance of the Device. This data is proprietary to ACTION.ABLE.
6.5. Retailer shall be liable for any and all losses or damages incurred by ACTION.ABLE as a result of the improper or unauthorized use by Retailer or any of its employees, agents, or representatives of data for the proper installation, test, operation and maintenance of the Device. To the extent allowed by law or contract, ACTION.ABLE retains for itself all proprietary rights in and to all drawings, designs, engineering details, and other data pertaining to the Device, Technical Platform and to all discoveries, inventions, patent rights, etc., arising out of the same and to any and all products or intellectual properties developed as a result thereof. Retailer shall not contact ACTION.ABLE's suppliers, or any other person, for the purpose of manufacturing the Device or any other device that is similar or related thereto.
7. REPRESENTATIONS AND WARRANTIES
7.1. Retailer's Representations and Warranties. Retailer represents, warrants, and covenants that:
7.1.1. it has the competence, expertise, and experience necessary to perform its obligations under this Agreement;
7.1.2. it is lawfully authorized to loan the Devices and distribute or sell Services under this Agreement;
7.1.3. it has the capacity to execute and deliver this Agreement and this Agreement represents the valid and binding obligation enforceable in accordance with its terms;
7.1.4. there are no agreements or arrangements, whether written or oral, that would be breached by Retailer upon execution of this Agreement or that would impair or prevent it from performing its obligations hereunder; and
7.1.5. it shall abide by and comply with all applicable laws, rules and regulations and shall not engage in any unlawful activities.
7.2. Material Breach. Any breach of any of these representations and warranties is considered a material breach of this Agreement. In the event of breach, ACTION.ABLE may, in its sole discretion, impose such penalties as it deems warranted under the circumstances. The imposition of penalties shall be in addition to any other remedy which ACTION.ABLE may have under law or this Agreement.
8. FORCE MAJEURE
Either Party shall not be in default by reason of any failure to perform under this Agreement if such failure directly results from fire, explosion, strike, freight embargo, act of God or of the public enemy, war, civil disturbance, act of any government, de jure or de facto, or agency or official thereof, material or labor shortage, transportation contingencies, unusually severe weather, default of any other manufacturer or a supplier or subcontractor, quarantine, restriction, epidemic, or catastrophe. ACTION.ABLE shall not be liable for any incidental, special or consequential damages.
9. RELATIONSHIP OF PARTIES
The relationship between the Parties established by this Agreement shall be solely that of vendor and vendee, and all rights and powers not expressly granted to Retailer are expressly reserved to ACTION.ABLE. Unless otherwise required by law, Retailer shall have no right, power or authority in any way to bind ACTION.ABLE to the fulfillment of any condition not herein contained, or to any contract or obligation, expressed or implied.
10. NOTICES OR COMMUNICATION
Any notice or communication required or permitted hereunder may be made by ACTION.ABLE INC. electronically and/or digitally whether through the POSIBLE Device itself, electronic mail or any such other electronic means. Any notices or communications to either Party hereunder shall be deemed communicated and received on the day of delivery.
11. INDEPENDENCE OF PARTIES
Unless otherwise required by law, nothing contained in this Agreement shall be construed to make Retailer the agent for ACTION.ABLE for any purpose, and neither Party hereto shall have any right whatsoever to incur any liabilities or obligations on behalf or binding upon the other party. Retailer specifically agrees that it shall have no power or authority to represent ACTION.ABLE in any manner; that it will solicit orders for availment of Services as an independent contractor in accordance with the terms of this Agreement; and that it will not, at any time, represent orally or in writing to any person or corporation or other business entity that it has any right, power or authority not expressly granted by this Agreement.
12. TERMINATION
12.1. This Agreement may be terminated by either Party:
12.1.1. upon written notice to the other Party at least 30 days prior to the effective date of termination.
12.1.2. for breach of any material provision of this Agreement by the other Party, provided written notice has been given to the erring Party of the alleged breach and the erring Party fails to cure the breach within fifteen (15) days from receipt of the notice;
12.1.3. if the other Party is subject to liquidation, receivership or bankruptcy proceedings, ceases to function as a going concern or makes an assignment for the benefit of creditors.
12.2. Effects of Termination. Upon termination of this Agreement, all further rights and obligations of the Parties shall cease except that Retailer shall not be relieved of:
12.2.1. its obligation to pay any monies due, or to become due, as of or after the date of termination, including but not limited to pre-termination fees in Annex "C", as applicable and;
12.2.2. obligation to return to ACTION.ABLE any and all Devices in good working condition to ACTION.ABLE within five (5) days from receipt of notice of termination or as otherwise directed by ACTION.ABLE, in writing; and
12.2.3. any other obligation set forth in this Agreement which is to take effect after the date of termination.
13. LIABILITY
The Retailer shall indemnify and hold ACTION.ABLE free and harmless from any and all liabilities, claims and causes of action, loss, or damage, whatsoever, of third parties arising from or pertaining to the RETAILER's operation of its business, including any claims due to error, negligence or lack of due diligence from the RETAILER. In any case, the total liability of ACTION.ABLE to any and all claims shall not exceed the amount of FIFTY THOUSAND PESOS (Php50,000.00).
14. INDEMNITY
Retailer agrees to hold ACTION.ABLE free and harmless from any and all claims, damages, and expenses of every kind or nature whatsoever (a) arising from acts or omissions of Retailer; (b) as a direct or indirect consequence of termination of this Agreement in accordance with its terms; or (c) arising from acts of third parties in relation to Services and products sold to Retailer under this Agreement, including but not limited to execution of liens and security interests by third parties with respect to any such products or services.
15. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the Philippines.
16. DISPUTE RESOLUTION
Any dispute arising out of or in connection with this Agreement, or in any other agreement executed in connection herewith, including any question regarding its existence, validity, or termination, or the occurrence of an Event of Default or its consequences, shall be initially discussed and resolved amicably by the Parties themselves within thirty (30) days from notice of the occurrence of the dispute. If the Parties are unable to amicably resolve the same within the aforesaid period, then the matter shall be resolved exclusively through legal action before the competent courts of Taguig City. The Parties waive, to the fullest extent permitted by law, any and all objections to the laying of the venue of any legal action or proceeding arising out of or in relation to this Agreement.
17. REMEDIES CUMULATIVE
The Parties' rights granted hereby are cumulative and in addition to any rights it may have at law or equity. Each remedy shall be construed to give it the fullest effect allowed by this Agreement.
18. COUNTERPARTS
This Agreement may be signed in any number of counterparts. Any single counterpart or a set of counterparts signed electronically, digitally or otherwise, by all the Parties hereto shall constitute a full and original agreement for all purposes.
19. COST AND EXPENSES
In all events, unless otherwise expressly provided for in this Agreement, each Party shall pay its own costs, expenses, and legal or other professional fees incurred in connection with this Agreement and the transaction contemplated by this Agreement.
20. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective heirs, executors, administrators, and permitted assigns.
ANNEX A
DEVICE SPECIFICATIONS
1. Upon activation, Retailer shall be entitled to one (1) unit of the Device with its accessories and consumables (product package):
- One (1) unit electronic device with pre-installed POS!BLE Enterprise Retail Assistant (PERA) application
- One (1) power adaptor
- Manual and other relevant informational material
ANNEX B
DEVICE, TECHNICAL PLATFORM AND WARRANTIES
1. Technical Platform and Information
1.1. Property of ACTION.ABLE. Retailer acknowledges that the Device described in Annex "A" and the technical platform, software or system used in the Device and that allows for the purchase of the Services (the "Technical Platform") are properties of ACTION.ABLE and protected by applicable laws. Retailer acknowledges that its right to use the Technical Platform may automatically be terminated by ACTION.ABLE for failure to comply with any of the terms of this Annex "B".
1.2. Information. Any information that may arise from the usage of the Device, Technical Platform and online transactions for the Services, such as but not limited to the sales of the individual Stock Keeping Units ("SKUs"), time of purchase, quantities purchased, and any other information that may be derived from the Device and the Technical Platform are owned solely and exclusively by ACTION.ABLE (the "Information"). Usage of the Device and Technical Platform allows ACTION.ABLE to receive information about the location and Device, including the unique modifier for the Device. This Information may be used by ACTION.ABLE to provide Retailer location-based services such as advertising and other personalized content, amongst others.
1.3. Updates. To ensure that the Technical Platform is up-to-date, ACTION.ABLE has the exclusive right to offer automatic or manual updates at any time, without need of any notice to Retailer.
1.4. Security. Retailer shall ensure the security of its access, systems and processes pertaining to the Device, Technical Platform and the Services against all unauthorized access, connection or modification to ACTION.ABLE's Device, Technical Platform and Services.
1.5. Limitation of Use of the Technical Platform.
1.5.1. Retailer may use the Technical Platform for the sole purpose of availment of the Services through the Device, and under the terms and conditions of this Agreement.
1.5.2. Retailer shall abide by all prescribed processes of ACTION.ABLE for the setting up and subsequent servicing required for the proper operation of the Device, Technical Platform and availability of the Services.
1.5.3. Retailer shall not:
1.5.3.1. be allowed, in any way, to deviate from the prescribed processes and standard operating procedures of ACTION.ABLE in relation to the Device;
1.5.3.2. make any changes in the Technical Platform of the Services that will result in a change in the Technical Platform or its provision of Services, including but not limited to systems design, information flow, contents or software applications, external equipment connectivity and set-up, system configuration and other similar parameters, without prior approval of ACTION.ABLE;
1.5.3.3. encourage, assist or authorize any other person to copy, modify, reverse engineer, decompile, or otherwise tamper with, the Technical Platform, whether in whole or in part, or create any derivative works from or of the Technical Platform;
1.5.3.4. incorporate any portion of the Technical Platform into its programs or compile any portion of it in combination with other programs;
1.5.3.5. transfer it for use with another service, system, platform or sell, rent, lease, lend, loan, distribute or sub- license the Technical Platform or otherwise assign any rights to the Technical Platform in whole or in part; and
1.5.3.6. use the Technical Platform for any illegal purpose.
1.5.3.7. move the location of the device to a different address as specified above without obtaining written approval from Action.able. Any unauthorized change in address/location of the Device will be a material breach of this Agreement. In addition to any other remedies that may be exercised by ACTION.ABLE under the law or this Agreement, ACTION.ABLE may impose such penalties as it deems warranted, including the immediate deactivation of the account.
1.6. Access. For the purpose of verification, evaluation, security and quality assurance testing, Retailer shall allow ACTION.ABLE access to the Device and the Technical Platform, in any manner.
2. Device and Warranties
2.1. Device. Retailer acknowledges that its rights to use the Device may automatically be terminated by ACTION.ABLE for failure to comply with any of the terms of this Annex "B" including failure to register any transaction on the Device for a period of one (1) month from deployment.
2.2. Device Warranty. ACTION.ABLE warrants that Retailer shall loan the Device free and clear of all liens and encumbrances. ACTION.ABLE further warrants the Device to be free from defects in material or workmanship under normal use and service for a period of six (6) months from the date of activation. All repairs covered by this warranty must be performed by ACTION.ABLE, or other such repair facilities or service providers, as may be designated by ACTION.ABLE. All requests for repair and/or replacement shall be coursed through the ACTION.ABLE. Any defect notified in writing to ACTION.ABLE within thirty (30) days from the date of activation and found to be within the scope of this warranty will be repaired by ACTION.ABLE, free of charge. ACTION.ABLE may, at its sole discretion, replace the defective Device, within the six (6) month warranty period.
2.3. Disclaimer of Warranties on the Technical Platform and Services. The Technical Platform, Services, and all information, content, materials, products and any other offerings included or made available to ACTION.ABLE or Retailer are provided by ACTION.ABLE on an "as is" and "as available" basis, unless otherwise specified in writing. Parties other than ACTION.ABLE provide the Services, products or promotions available through the Device. ACTION.ABLE does not warrant the products, services, promotions or offerings of any of these businesses or individuals. ACTION.ABLE does not assume any responsibility or liability for the actions, product and content of all of these businesses, individuals or any other third parties and any transactions made through the Device.
2.3.1. ACTION.ABLE shall not be liable for any loss or damage suffered by Retailer for any interruption, suspension or loss of any of the Services or Technical Platform, except for gross negligence or fraud directly attributable to ACTION.ABLE.
2.3.2.ACTION.ABLE does not warrant that the Technical Platform, Services, Information, content, materials, products or other offerings included on or otherwise made available to Retailer through the Device and Technical Platform are free of viruses, malware or other harmful components. Except for gross negligence or fraud directly attributed to ACTION.ABLE, ACTION.ABLE will not be liable for any damages of any kind arising from the use of the Device, Technical Platform or Services, including but not limited to direct, indirect, incidental, punitive and consequential damages unless otherwise specified in writing.
2.4. Limitation of Liability. In the event that the defect is not covered by Section 2.1 or the warranty is rendered void under Section 2.4, Retailer agrees to pay all charges associated with each such repair.
2.4.1.The provisions of Section 2 constitute the sole warranty made by ACTION.ABLE either expressed or implied, as to the operation of the Device or Technical Platform, or the information, content, materials, services, products (including software) or other services or promotions included on or otherwise made available to Retailer through the Device. Retailer expressly agrees that the use of the Device, Technical Platform and availment of Services thereon is at its sole risk. There are no other warranties expressed or implied which extend beyond the face hereof, herein, including the implied warranties of merchantability and fitness for a particular purpose. In no event shall ACTION.ABLE be liable for loss of profit or revenues, any incidental, indirect, special, or consequential damages and the remedy of Retailer shall be limited to repair or replacement of nonconforming units or parts.
2.5. Misuse of Device. The following acts or circumstances shall render the warranty void:
2.5.1. use of the Device and Technical Platform for purposes other than that specified in this Agreement;
2.5.2. installing an application not approved by ACTION.ABLE;
2.5.3. defects or damage resulting from excessive force or use of an object (not approved by ACTION.ABLE) when pressing on the touch screen, accident, exposure to liquid, moisture, dampness, sand, dirt, or infestation;
2.5.4. defects or damages resulting from improper storage, care, testing, operation, maintenance, installation not approved by ACTION.ABLE;
2.5.5. if, at any time, Retailer attempts to make any internal changes to any of the components of the Device;
2.5.6. if the Device is tampered with or the SIM card or SD card or any other pre-installed component is removed from the Device;
2.5.7. if, at any time, the power supplied to any part of the Device exceeds the rated tolerance;
2.5.8. if any external device attached by Retailer creates conditions exceeding the tolerance of the Device;
2.5.9. if, at any time, the serial number plate is removed or defaced; or
2.5.10. any other form of tampering, misuse or negligence in the handling or use of the Device. The determination of the coverage and non-coverage of the warranty shall be solely determined by ACTION.ABLE.
2.5.11. Operation of the Device that renders this warranty void will be defined to include all of the possibilities described in this paragraph, together with any practice which results in conditions exceeding the design tolerance of the Device and Technical Platform.
ANNEX C
SCHEDULE OF FEES & SERVICES (Amended 4 January 2020)
1. Retailer Wallet. Retailer shall purchase credits from Distributor to ensure continuous operation.
2. Mode of Payment. Payment for the replenishment of the Retailer Wallet may be made via wire transfer, online bank transfer, mobile application money transfer or cash deposit to the nominated bank account of the Distributor provided in the business package.
The Distributor may make available other Modes of Payment. The Distributor shall inform the Retailer should such other Modes of Payment be available. ACTION.ABLE is not responsible in any way for these Modes of Payment or for any transactions conducted there through.
3. Maintenance & Service Fee (MDSF). Retailer shall pay ACTION.ABLE, through an automatic deduction from the Retailer Wallet by the operating system or any such other means and/or schedules as ACTION.ABLE may deem appropriate, the following fees, subject to the withholding of any and all applicable taxes, fees or charges, in accordance with the schedule below:
Monthly Service Fee of One Hundred Philippine Pesos (Php100.00)
4. Retailer Wallet Adjustments. ACTION.ABLE reserves the right to make automatic deductions from the Retailer Wallet by the operating system on fees and adjustments due to ACTION.ABLE.
5. ACTION.ABLE reserves the right to determine and change the MDSF and/or settlement schedule at any time. In the event of such change, ACTION.ABLE shall inform the Distributor at least seven (7) days before the effectivity of the new MDSF and/or settlement schedule.
6. Zero or Negative Wallet Balance. Retailer shall, at all times, maintain a minimum amount in the Retailer Wallet sufficient at least to settle the MDSF to avoid deactivation of their account resulting from zero or negative wallet balance. In the event of account deactivation, Retailer shall settle the MDSF with ACTION.ABLE and any related fees with the Distributor or directly with Action.Able (whichever applies) in order to resume operation, in accordance with a schedule as provided by the Distributor or ACTION.ABLE.
7. Inspection and Monitoring. ACTION.ABLE shall have the right to inspect and monitor the usage and performance of the Device and obtain information from the Retailer for such purpose.
ANNEX D
SPECIAL PURPOSE MACHINE (SPM) PERMITAPPLICATIONGUIDELINES
In compliance to the provisions of the BIR Revenue Memorandum Order (RMO) No. 10-2005 which states that:
Taxpayer-user shall register special purpose machines as identified in Section III (B)
Sec. III (B) of the same RMO provided that SPM shall be subject for REGISTRATION only, such as but not limited to the following:
Cash Depository;
ForEx Machines;
Ordering Machines;
Bills Payment Machines;
Internal Special Purpose Machines
Based on the foregoing provision, the machine initially subject for accreditation (such as POSIBLE Device) shall be classified as SPM and client/retailer shall only be required to register the said machines via the Electronic Accreditation and Registration (eAccReg) System.
There are 3 Major Online Steps to follow:
1st Step: Account Enrollment for eAccReg
2nd Step: SPM Permit Application
3rd Step: Generating Permit to Use Special Purpose Machine (SPM)
Note: *Skip Step 1 if your business already has an eAccReg account.
Under each major step are sub-steps / sub-activities.
1st Step: Account Enrollment for eAccReg
1. Go to BIR Website https://eaccreg.bir.gov.ph/ACCREG/enrollment-create.html
2. Click "Enroll User". Upon clicking “Enroll User”, the system will automatically proceed to the “Application for Account Enrolment” page.
3. Fill up all the required information. Make sure that all the data are in reference with the Certificate of Registration (BIR 2303). After filling up, click SUBMIT.
Note:
1) In the online application, PLEASE TICK/SELECT “TAXPAYER” under the field “Taxpayer Profile”
Please DO NOT SELECT “SUPPLIER/PSEUDO-SUPPLIER”.
2) Under “Taxpayer Classification”, if the Taxpayer is an individual/single proprietor, tick “INDIVIDUAL”;
if a company, select “NON-INDIVIDUAL”.
3) Please ensure that you have a copy of the Head Office’s / Taxpayer’s BIR CERTIFICATE OF REGISTRATION / COR (BIR FORM 2303) with you when you are doing an actual online application. 4) In the “Authorized User” fields, please input details of the employee you will authorize/designate to use the online system.
4. Wait for BIR’s email saying “You have successfully submitted your application for Account Enrolment” with “Transaction Number ___________”. Kindly note the issued TransactionNumber.
5. Upon receipt of BIR’s email, submit the following documents to LTAD or LTDO or RDO withinthree (3) working days.
a. “Application Letter” for Head Office/Account EAccReg Enrolment.
b. Notarized Annex A - Sworn Statement
c. Notarized “BIR Authorized User Form” or “Authorization Letter”
Taxpayers should authorize a designated user of the system, whose Username, First Name, Middle Name, Last Name and Email Address are indicated in the Authorized User Form/Authorization Letter.
For companies, the authorized user can be someone from the Finance Department or any employee the company will designate. This form should be signed by the President/Ownerof the Company and notarized.
d. Taxpayer Current Annual Registration Fee (BIR Form 0605)
e. Taxpayer BIR Certificate of Registration (COR) – BIR Form 2303
f. Securities & Exchange Commission (SEC) Certificate of Registration
g. Photocopies of two (2) Valid IDs - company ID & another valid ID - with photo & signature of:
1. authorized signatory (President or Owner)
2. authorized user/representative
Note: Failure to submit requirements within three (3) working days from receipt of the email notice will forfeit online account application. You will have to apply again online.
6. Wait for another email from BIR LTAD/ LTDO/RDO saying “your application for account enrolment has been approved with Transaction Number _______.
You may now access your account via https://eaccreg.bir.gov.ph/ACCREG/enrollment-create.html
Kindly note the issued Transaction Number.
7. Upon receipt of a second email, you may now log in and proceed with the PTU application.
2nd Step: SPM Permit Application
1. Log in to your registered account.
2. Click Registration for Permit to Use, then Encode Application.
3. Fill-in the required details, then click Add Machine.
Note: Please be ready with your machine serial number / brand /model information when you do this particular step. Details will be provided by POSIBLE upon delivery of the device.
4. You will receive an email confirmation from the BIR for the application made.
5. An email notification will be sent to you once the application is approved.
3rd Step: Generating Permit to Use Special Purpose Machine (SPM)
1. Log in using your approved eAccreg account.
2. From Home Page, click “Registration for Permit to Use”
3. Select List of Registrations for Permit to Use
4. Fill up the search parameters then click SEARCH.
Transaction Number: please refer to BIR email reference number
Permit Number: Leave blank
Type or Permit: ALL
Machine Type: ALL
Status: ALL
Date: based on the application date (ex. October 2022 to October 2022)
Double click the permit you want to generate.
5. Once the permit appears on the screen, PRINT the document and place this permit on thePOS where it will be visible to customers.
The first printed copy of this permit will be the Original copy.
ANNEX E
RELEASE TERMS
I, the Retailer, hereby authorize ACTION.ABLE, INC., to use my picture-including photographic, motion picture, and electronic (video and digital) images-for marketing purposes, in any and all media (including print, broadcast, and Internet), languages, formats and markets now known or hereafter devised. I also waive the right to receive any payment for signing this release or for ACTION.ABLE's use of any of the materials authorized by this release.
I am signing this in good faith, on condition that I am not portrayed in any manner that goes against my principles, values, or beliefs, or that my appearance is altered to a significant degree that degrades my value as a human being. This permission shall continue in perpetuity unless revoked in writing, with notice of revocation given 60 days before the date of effectivity.
EFFECTIVE DATE:
RETAILER NAME:
SIGNATURE:
