AUTHORIZED RETAILER AGREEMENT
For POSIBLE nEXT Mobile Application
This Authorized Retailer Agreement (the “Agreement”) is between ACTION.ABLE INC., 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, Inc.”) and the party (hereinafter the “Retailer”) identified below. Distributor and Retailer are each, a “Party”; collectively, the “Parties”.
Action.Able, Inc. is engaged in the business of selling digital goods and remittance services for the purpose of e-commerce and digital marketing through which a portfolio of services (“Services”) is available. Retailer wishes to resell the Services, subject to the terms and conditions of this Agreement.
GENERAL TERMS AND CONDITIONS
- MOBILE APPLICATION, TECHNICAL PLATFORM AND INFORMATION
Retailer is authorized to acquire and download the POSIBLE nEXT application (the “Mobile Application”). ACTION.ABLE, INC. reserves the right to remove, add and modify features to the Mobile Application, as it deems fit. Retailer acknowledges that the technical platform, software or system used in the Mobile Application and that allows for the availment of the Services (the “Technical Platform”) are properties of ACTION.ABLE, INC. and protected by applicable laws. The Parties acknowledge that its right to use the Technical Platform may automatically be terminated by ACTION.ABLE, INC. for failure to comply with the terms and conditions of this Agreement.
It is expressly understood that nothing herein shall prevent ACTION.ABLE, INC. from appointing other distributors, retailers and/or strategic partners for the Mobile Application and Services available thereon, under such terms as ACTION.ABLE, INC. may deem reasonable.
- SERVICES AND FEES
2.1 Services. ACTION.ABLE, INC. 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, INC. 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, INC. to the Retailer.
2.2. Rate Adjustments. ACTION.ABLE, INC. reserves the right to adjust the rates and discounts applicable to the Retailer.
2.3. Material Breach.
2.5 Changes to Service. By using the Mobile Application, Platform and Services of ACTION.ABLE, INC., 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, INC. at any time and retailer agrees that, upon notification and publication on the website/mobile application/platform of said amendment or changes, if they shall continue to use said mobile application/platform/services of ACTION.ABLE, they hereby expressly agree to the said amendments and/or any changes.
- CONFLICT OF INTEREST
3.1. Conflicting Activities. Retailer shall:
3.1.1. Comply with the exclusivity guidelines and rules that ACTION.ABLE, INC. will be imposing on the use of the mobile application such as but not limited to product or Service exclusivity for a certain period, on a case-to-case basis;
3.1.2. NOT participate or be involved in any capacity, or engage in any activity, which may conflict with the interests of ACTION.ABLE, INC.
- 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, INC. on the Services availed through the Mobile Application;
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 Mobile Application and the Services made available on the Mobile Application by ACTION.ABLE, INC.;
4.1.4. Comply with the guidelines for promotional campaigns of ACTION.ABLE, INC. or any of its suppliers or authorized entities;
4.1.5. Furnish ACTION.ABLE, INC. and/or its representatives, any and all such documents, records and information that ACTION.ABLE, INC., may request from time to time;
4.1.6. Comply with, all directives, memoranda, guidelines, decisions, announcements, rules and regulations of or issued directly by ACTION.ABLE, INC. or through its Official Distributors 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 Mobile Application, or the termination of this Agreement due to material breach, at the discretion of ACTION.ABLE, INC.; and
4.1.7. Perform any other service, as may be requested by ACTION.ABLE, INC. such as but not limited to reporting, monitoring, and the like.
4.2. Marketing and Promotions
- DATA PRIVACY
- 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 Mobile Application.
- By signing this Agreement, Retailer hereby consents to the collection and processing by Phoenix Petroleum Philippines, Inc. (parent company of ACTION.ABLE, INC.), its subsidiaries, its employees, authorized agents or representatives of his/her personal information and sensitive personal information obtained by ACTION.ABLE, INC. 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, INC. 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.
- 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, INC. The prohibition shall include unauthorized release and/or disclosure to family members, friends and co-
- The Retailer agrees to indemnify and hold ABLE, INC., 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.
- 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.
- In the event of breach, ACTION.ABLE, INC. may, in its sole discretion, impose such penalties as it deems warranted under the The imposition of penalties shall be in addition to any other remedy which ACTION.ABLE, INC. may have under law or this Agreement.
- INTELLECTUAL PROPERTY RIGHTS
- Advertising or Promotional Materials. All advertising and other promotional materials involving the intellectual property of ABLE, INC. will be submitted for approval, at least two (2) weeks in advance and will only be used if ACTION.ABLE, INC. consents thereto in writing.
- Limitations on Use. Retailer shall not cause or attempt to create, assert, register or use the name of ACTION.ABLE, INC. or any of its affiliates and/or POSIBLE, as well as other trademarks or service marks associated with ACTION.ABLE, INC. 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, INC. Retailer shall not deface, tamper or destroy the trademark, tradename, logo or other intellectual property of ABLE, INC. or its partners appearing on the face of the Mobile Application or in any advertising or promotional material used in relation to the Mobile Application or the Services. Failure to comply with this Section 6.2 may result in the imposition of penalties, deactivation of the Mobile Application, or the termination of this Agreement due to material breach, at the discretion of ACTION.ABLE, INC.
- Use of Retailer’s Company Name, Logo. ACTION.ABLE, INC. 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 ABLE, INC. Failure to object within the period shall be deemed a waiver such objection.
- Drawings and Data.ABLE supplies all necessary data for the proper installation, test, operation and maintenance of the Mobile Application. This data is proprietary to ACTION.ABLE, INC.
- Retailer shall be liable for any and all losses or damages incurred by ABLE, INC. 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 Mobile Application. To the extent allowed by law or contract, ACTION.ABLE, INC. retains for itself all proprietary rights in and to all drawings, designs, engineering details, and other data pertaining to the Mobile Application, 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, INC.’s suppliers, or any other person, for the purpose of manufacturing the Mobile Application or any other device that is similar or related thereto.
- 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 acquire the Mobile Application 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, INC. 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, INC. may have under law or this Agreement.
- 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, INC. shall not be liable for any incidental, special or consequential damages.
- 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, INC. Unless otherwise required by law, Retailer shall have no right, power or authority in any way to bind ACTION.ABLE, INC. to the fulfillment of any condition not herein contained, or to any contract or obligation, expressed or implied.
- 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 nEXT Mobile Application 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.
- INDEPENDENCE OF PARTIES
Unless otherwise required by law, nothing contained in this Agreement shall be construed to make Retailer the agent for ACTION.ABLE, INC. 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, INC. 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.
- This Agreement may be terminated by either Party:
- upon written notice to the other Party at least 30 days prior to the effective date of termination.
- This Agreement may be terminated by either Party:
- 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:
- any other obligation set forth in this Agreement which is to take effect after the date of termination.
The Retailer shall indemnify and hold ACTION.ABLE, INC. 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, INC. to any and all claims shall not exceed the amount of FIFTY THOUSAND PESOS (Php50,000.00).
Retailer agrees to hold ACTION.ABLE, INC. 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.
- GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the Philippines.
- 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 Makati 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.
- 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.
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.
- 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.
- 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: TECHNICAL PLATFORM AND WARRANTIES
- Technical Platform and Information
- Property of ACTION.ABLE. Retailer acknowledges that the Mobile Application and the technical platform, software or system used in the Mobile Application and that allows for the purchase of the Services (the “Technical Platform”) are properties of ACTION.ABLE, INC. and protected by applicable laws. Retailer acknowledges that its right to use the Technical Platform may automatically be terminated by ABLE, INC. for failure to comply with any of the terms of this Annex “A”.
- Any information that may arise from the usage of the Mobile Application, 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 Mobile Application and the Technical Platform are owned solely and exclusively by ACTION.ABLE, INC. (the “Information”). Usage of the Mobile Application and Technical Platform allows ACTION.ABLE, INC. to receive information about the location and Mobile Application, including the unique modifier for the Mobile Application. This Information may be used by ACTION.ABLE, INC. to provide Retailer location- based services such as advertising and other personalized content, amongst others.
- 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.
- Retailer shall ensure the security of its access, systems and processes pertaining to the Mobile Application, Technical Platform and the Services against all unauthorized access, connection or modification to ACTION.ABLE’s Mobile Application, Technical Platform and Services.
- Limitation of Use of the Technical
- Retailer may use the Technical Platform for the sole purpose of availment of the Services through the Mobile Application, and under the terms and conditions of this
- Retailer shall abide by all prescribed processes of ACTION.ABLE, INC. for the setting up and subsequent servicing required for the proper operation of the Mobile Application, Technical Platform and availability of the Services.
- Retailer shall not:
- be allowed, in any way, to deviate from the prescribed processes and standard operating procedures of ACTION.ABLE, INC. in relation to the Mobile Application;
- 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;
- 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;
- incorporate any portion of the Technical Platform into its programs or compile any portion of it in combination with other programs;
- 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
- use the Technical Platform for any illegal
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.
- Disclaimer of Warranties on the Technical Platform and The Technical Platform, Services, and all information, content, materials, products and any other offerings included or made available to ACTION.ABLE, INC. or Retailer are provided by ACTION.ABLE, INC. 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 Mobile Application. ACTION.ABLE, INC. does not warrant the products, services, promotions or offerings of any of these businesses or individuals. ACTION.ABLE, INC. 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 Mobile Application.
- ABLE, INC. 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, INC.
- ABLE, INC. 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 Mobile Application and Technical Platform are free of viruses, malware or other harmful components. Except for gross negligence or fraud directly attributed to ACTION.ABLE, INC., ACTION.ABLE, INC. will not be liable for any damages of any kind arising from the use of the Mobile Application, Technical Platform or Services, including but not limited to direct, indirect, incidental, punitive and consequential damages unless otherwise specified in writing.
ANNEX B: SCHEDULE OF FEES & SERVICES
(AMENDED 4 JANUARY 2020)
- Retailer Retailer shall purchase credits from Distributor to ensure continuous operation.
- 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. The Distributor may make available other Modes of Payment. The Distributor shall inform the Retailer should such other Modes of Payment be ACTION.ABLE is not responsible in any way for these Modes of Payment or for any transactions conducted there through.
- Retailer Wallet 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.
- Inspection and Monitoring.ABLE shall have the right to inspect and monitor the usage and performance of the Mobile Application and obtain information from the Retailer for such purpose.
ANNEX C: 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.