RIGHT CHOICE FINANCE CORPORATION
Terms and Conditions
Definition of Terms
"Authorized Users" means the list of Persons authorized to use the Service under this agreement.
"Business Day" means a day other than a Saturday, a Sunday, Holiday or any other day declared to be a non-working day by qualified government agencies / instrumentalities.
"Confidential Information" has the same meaning in this agreement as the term has under the Non-Disclosure Policy of the FIRST PARTY available at (http://rightchoicefinance.asia/non-disclosure-policy)
"Data" means all of the data which either party creates with or uses with the Service, or otherwise related to such use of the Service.
"Disclosure Schedule" means the schedules delivered, before the execution of this agreement, by each party to the other party which list, among other things, items the disclosure of which is necessary or appropriate either in response to an express disclosure requirement contained in a provision of this agreement or as an exception to one or more of the representations or warranties made by the party, or to one or more of the covenants of the party.
"Effective Date" refers to the commencement date of the Software Service Agreement provided for in the Service Contract.
"Governmental Authority" means
any federal, state, local, or foreign government, and any political subdivision of any of them,
any agency or instrumentality of any such government or political subdivision,
any self-regulated organization or other non-governmental regulatory authority or quasigovernmental authority (to the extent that its rules, regulations or orders have the force of law), and
any arbitrator, court or tribunal of competent jurisdiction.
"Intellectual Property" means any and all of the following in any jurisdiction throughout the world
trademarks and service marks, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing,
copyrights, including all applications and registrations related to the foregoing,
trade secrets and confidential know-how,
patents and patent applications,
websites and internet domain name registrations, and
other intellectual property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys' fees for past, present, and future infringement, and any other rights relating to any of the foregoing).
any law (including the common law), statute, by-law, rule, regulation, order, ordinance, treaty, decree, judgment, and
any official directive, protocol, code, guideline, notice, approval, order, policy, or other requirement of any Governmental Authority having the force of law.
"Legal Proceeding" means any claim, investigation, hearing, legal action, or other legal, administrative, arbitral, or similar proceeding, whether civil or criminal (including any appeal or review of any of the foregoing).
"Order" means any decision, order, judgment, award, or similar order of any court of competent jurisdiction, arbitration panel, or Governmental Authority with jurisdiction over the subject matter, whether preliminary or final.
"Permits" means all material licenses, franchises, permits, certificates, approvals, and authorizations, from Governmental Authorities necessary for the ownership and operation of the party's business.
any corporation, company, limited liability company, partnership, Governmental Authority, joint venture, fund, trust, association, syndicate, organization, or other entity or group of persons, whether incorporated or not, and
"Service" refers to Right Choice Finance Corporation HRIS or RCF HRIS as defined under the Software Service Agreement.
"Subscription Fee" refers to the computation of the amount to be paid by the SECOND PARTY to the FIRST PARTY for the use of the Service, as computed under the Service Fee Agreement attached to the Software Service Agreement as Annex “A”.
"Taxes" includes all taxes, assessments, charges, duties, fees, levies, and other charges of a Governmental Authority, including income, franchise, capital stock, real property, personal property, tangible, withholding, employment, payroll, social security, social contribution, unemployment compensation, disability, transfer, sales, use, excise, gross receipts, value-added and all other taxes of any kind for which a party may have any liability imposed by any Governmental Authority, whether disputed or not, any related charges, interest or penalties imposed by any Governmental Authority, and any liability for any other person as a transferee or successor by Law, contract or otherwise.
"Service Contract" refers to the duration for which the Service is to be subscribed by the SECOND PARTY.
"Viruses" generally refers to but is not limited to computer infection, viruses, worms, Trojan horses, and other code that manifest contaminating or destructive properties.
Technical Support. On the Effective Date, and for the duration of the subscription, the FIRST PARTY shall provide the SECOND PARTY with off-site support through telephone or remote electronic means, during normal business hours (8:00 am to 5:00 pm) from Mondays through Fridays, in order to help locate and correct problems with the Service and any related software, and internet-based support system.
On Site Support Services. For the first (1st) month after the Effective Date, the FIRST PARTY shall provide the SECOND PARTY free on-site technical support, on an as need basis, in order to help the SECOND PARTY’s authorized users of the software to become familiar with the same. The one-month period provided herein shall already include the training period for the authorized users. It is understood herein that the support services provided for herein shall be rendered during normal business hours.
Billable Support Services. All support services which the FIRST PARTY shall render for the SECOND PARTY beyond the normal business hours shall be subject to the billing of appropriate charges for overtime, night differential and holiday pay. In addition, if the support services shall be rendered on-site, appropriate transportation cost shall likewise be billed to the SECOND PARTY. The charges herein mentioned shall be billed by the FIRST PARTY to the SECOND PARTY in accordance with the agreed schedule of charges as contained in Annex “A” of the Software Service Agreement.
Applicable Levels. The Service shall be provided with a guaranteed System Availability of at least ninety-eight [98%] percent during each calendar month.
System Maintenance. Item [a] notwithstanding, the FIRST PARTY may take the Service offline for scheduled maintenance activities provided that the SECOND PARTY shall be informed of the scheduled maintenance in writing at least five (5) working days for internal minor version change, ten (10) working days for medium change request, and fifteen (15) working days for critical maintenance scope, prior to the intended maintenance date. Scheduled maintenance time will not count as System Availability.
System Availability Definition
Percentage of Minutes per Month. "System Availability" means the percentage of minutes in a month that the key components of the Service are operational.
Not Included in "System Availability. "System Availability" will not include any minutes of downtime resulting from scheduled maintenance, events of force majeure, malicious attacks on the system, issues associated with SECOND PARTY’s computing devices, local area networks or internet service provider connections, or inability of the FIRST PARTY to deliver services because of causes beyond its control, including SECOND PARTY 's own acts or omissions.
Both parties undertake in good faith that they shall implement reasonable safeguards to prevent unauthorized access to, use of, or disclosure of the disclosing party's Data. SECOND PARTY expressly agrees that by signing on the Software Service Agreement, it is bound by the FIRST PARTY’s Non-Disclosure Agreement Policy (please provide the link).
Data Report Service.
On a 30-day cycle the FIRST PARTY may provide the SECOND PARTY any requested data report for free and a copy of the data report will be delivered to the SECOND PARTY upon its request in writing.
Statistical information related to the performance of the Service may be compiled for purposes of improving the Service. It shall assure however that such information does not identify the data as belonging to or otherwise include the name of the SECOND PARTY.
Employee Loans / Cash Advance Feature.
An essential part of the Service to be provided by the FIRST PARTY to the SECOND PARTY is the loan component of the Service. By subscribing to the Service, all enrolled employees of the SECOND PARTY shall have access to and eligible to avail of the loans being provided by the FIRST PARTY. However, only employees who apply for such loan who were duly endorsed by the SECOND PARTY shall be approved. Inn this regard, the SECOND PARTY, by virtue of such endorsement, guarantee the payment of the employees obligation to the FIRST PARTY. Any unpaid obligation shall be considered as allowable deduction to the Maintaining Balance of the SECOND PARTY as it falls due. In the event of such deduction, SECOND PARTY expressly undertakes to replenish its Maintaining Balance to cover the deduction, if there be any. This feature may be availed of subject to terms as agreed by the parties pursuant to the Service Fee Agreement attached as Annex “A” of the Software Service Agreement.
Consent & Cooperation. The parties shall cooperate to draft all appropriate press releases and other public announcements relating to the subject matter of this agreement and the relationship between the parties.
No Unreasonable Delay. The parties will not unreasonably withhold or delay their consent to press releases or public announcements.
Hardware Obligations. The SECOND PARTY shall be responsible for obtaining and maintaining all computer hardware, software, and communications equipment needed to internally access the Service. Any cost and/or charges related to third party access incurred while using the Service shall be for the exclusive account of the SECOND PARTY.
The SECOND PARTY shall be responsible for implementing, maintaining, and updating all necessary and proper procedures and software for safeguarding against computer infection, viruses, worms, Trojan horses, and other code that manifest contaminating or destructive properties (collectively "Viruses").
Compliance of the Use of the Services.
The SECOND PARTY shall abide by all local and international Laws and regulations applicable to its use of the Service, use the Service only for legal purposes, and comply with all regulations, policies and procedures of networks connected to the SaaS.
The SECOND PARTY will not upload or distribute of any files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Service, modify, disassemble, decompile or reverse engineer the Service, probe, scan, test the vulnerability of, or circumvent any security mechanisms used by, the sites, servers, or networks connected to the Service, take any action that imposes an unreasonably or disproportionately large load on the sites, servers, or networks connected to the Service, copy or reproduce the Service, access or use any other clients' or their users' data through the Service, maliciously reduce or impair the accessibility of the Service, use the service to post, promote, or transmit any unlawful, harassing, libelous, abusive, threatening, harmful, hateful, or otherwise objectionable material, or transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability.
The parties shall continue to be bound by the terms of the NonDisclosure Policy (http://rightchoicefinance.asia/non-disclosure-policy). Both PARTIES agrees to maintain confidentiality of any data, documents and conversation mark as confidential or by nature. This shall mean non- disclosure and non-sharing of such confidential information to any third party without any written approval of the disclosing party.
As part of its obligations under this Agreement, the SECOND PARTY agrees to keep, under the account of the FIRST PARTY, a deposit in the amount agreed upon by the parties pursuant to the Service Fee Agreement attached to the Software Service Agreement as Annex “A” thereof. This deposit shall be known as the Maintaining Balance. SECOND PARTY agrees to maintain the same for the entire duration of the Service Contract. Such deposit shall be refundable in full to the SECOND PARTY, without interest, at the end of the Service Contract, subject only to allowable deduction as agreed hereunder.
Periodic Assessment of Enrolled Employees.
The FIRST PARTY shall conduct periodic assessment of SECOND PARTY’s enrolled employees in the system pursuant to the agreed manner and schedule thereof as provided for in Annex “A” of the Software Service Agreement.
Interest on Late Payments.
Any amount not paid when due will bear interest from the due date until paid at a rate equal to one percent [1%] of the unpaid amount, per day of delay.
Non-Representation. The FIRST PARTY makes no representation that the Service is appropriate or available for use outside of the Philippines.
Status. The SECOND PARTY expressly represents and that it is not located in, under the control of, or a national or resident of any country to which the Philippines has embargoed the import or export of goods.
Existence. The parties are corporations incorporated and existing under the laws of the jurisdictions of their respective incorporation.
Authority and Capacity. The parties have the authority and capacity to enter into this agreement including that of their duly authorized representatives.
Execution and Delivery. The parties have duly executed and delivered the Software Service Agreement in which this Terms and Conditions was duly incorporated by reference as part and parcel thereof.
Enforceability. This Terms and Conditions, as well as that of the Software Service Agreement in which this was incorporated by reference, constitutes a legal, valid, and binding obligation, enforceable against the parties according to its terms.
No Conflicts. Neither party is under any restriction or obligation that the party could reasonably expect might affect the party's performance of its obligations under this agreement.
No Breach. Neither party’s execution, delivery, or performance of its obligations under this agreement will breach or result in a default under its articles, by-laws, or any unanimous shareholders agreement, any Law to which it is subject, any judgment, Order, or decree of any Governmental Authority to which it is subject, or any agreement to which it is a party or by which it is bound.
Permits, Consents, and Other Authorizations. Each party holds all Permits and other authorizations necessary to own, lease, and operate its properties, and conduct its business as it is now carried on.
No Bankruptcy. Neither party has taken or authorized any proceedings related to that party’s bankruptcy, insolvency, liquidation, dissolution, or winding up.
Representations of the First Party
Ownership. Except as otherwise disclosed, the FIRST PARTY is the exclusive legal owner of the Service, including all Intellectual Property, should there be any, included in the Service.
Status of Licensed Intellectual Property. Except as otherwise disclosed, the FIRST PARTY has properly registered and maintained all Intellectual Property included in the Service.
No Conflicting Grant. Except as otherwise disclosed, the FIRST PARTY has not granted and is not obligated to grant any license to a third party that would conflict with the Service.
No Infringement. The Service does not infringe the Intellectual Property rights or other proprietary rights of any third party.
No Third Party infringement. To the knowledge of the FIRST PARTY, no third party is infringing the Service.
Service Warranty. The FIRST PARTY will provide the Service in a professional manner consistent with general industry standards.
Performance Warranty. The FIRST PARTY warrants that the Service will perform substantially in accordance with the Documentation.
Warranty Disclaimer. The FIRST PARTY does not guarantee that the Service will be error-free, virus-free, or uninterrupted. The Company will not be liable for any unauthorized alteration, theft, or destruction of any of the Customer's data.
Ownership of Intellectual Property. The FIRST PARTY will retain all interest in and to the Services, including all documentation, modifications, improvements, upgrades, derivative words, and all other Intellectual Property rights in connection with the Service, including its name, logo and trademark reproduced through the Service.
Termination on Notice. Either party may terminate this agreement for any reason upon 30 business days’ notice to the other party. Should the termination be at the instance of the FIRST PARTY, it shall reimburse to the SECOND PARTY any unused Subscription Fee pro rata. In the event that the termination be at the instance of the SECOND PARTY, any and all Subscription Fee already paid to the FIRST PARTY shall be considered used and non-refundable.
Termination for Material Breach. Each party may terminate this agreement with immediate effect by delivering notice of the termination to the other party, if the other party fails to perform, has made or makes any inaccuracy in, or otherwise materially breaches, any of its obligations, covenants, or representations, and the failure, inaccuracy, or breach continues for a period of 30 Business Days' after the injured party delivers notice to the breaching party reasonably detailing the breach. Should the FIRST PARTY be the cause for the termination, it shall return all unused Subscription Fee to the SECOND PARTY. In the event that the cause of the termination be the SECOND PARTY, any and all Subscription Fee already paid shall be considered used and nonrefundable.
Termination for Failure to Pay. The FIRST PARTY may terminate this agreement with immediate effect by delivering notice of the termination to the SECOND PARTY if the SECOND PARTY fails to pay the Subscription Fee three (3) times over the duration of the Service Contract, for monthly paid subscription, or up to the end of the second (2nd) month from the start of the Service Contract, for yearly paid subscription. Any unpaid Subscription Fee, which was the cause of the termination, may be deducted by the FIRST PARTY from the Maintaining Balance of the SECOND PARTY.
Effect of Termination
Refund Amounts. Refund of unused Subscription Fees shall be subject to the conditions stated herein above.
Payment Outstanding Fees. The SECOND PARTY shall immediately pay to the FIRST PARTY all amounts outstanding as of the date of termination. Failure on the part of the SECOND PARTY to settle within five (5) days from date of termination shall authorize the FIRST PARTY to deduct the same from the Maintaining Balance. Should the Maintaining Balance be insufficient to cover the outstanding fees, the SECOND PARTY shall immediately pay the difference upon demand otherwise, the FIRST PARTY shall refund to the remainder of the Maintaining Balance after deduction of the outstanding fees.
Discontinuance of Use. The SECOND PARTY shall cease all use of the Service upon the effective date of the termination.
Recovery of Data. The SECOND PARTY shall have thirty  days from the date of termination to retrieve any of data it wishes to keep thereafter, FIRST PARTY shall delete the same for storage availability.
This Agreement shall be renewed upon mutual agreement of the parties upon such terms as they may hereafter agree in Annex “A” of the Software Service Agreement. Should the SECOND PARTY do not intend to further renew this agreement, termination notice pursuant to provisions of item 23 par. a hereof should be made to the FIRST PARTY. The FIRST PARTY may in like manner send to the SECOND PARTY, within the period provided for under item 23 par. a or even earlier, a notice of the revised Service Fee Agreement to start the negotiation for the renewal of the Service Contract. Failure on the part of either to send such notices as mentioned herein within the period provided for under item 23 par. a hereof, this agreement shall be considered automatically renewed under the same terms as that previously agreed under the existing Software Service Agreement and Annex “A” thereof.
Qualifications for Indemnification of Infringement Claim. FIRST PARTY may be required to indemnify the SECOND PARTY only if its use of the Service complies with this agreement and all documentation related to the Service, the infringement was not caused by its own act of modifying or altering the Service or documentation related to the Service, unless FIRST PARTY consented, in writing, to the modification or alteration, and the infringement was not caused by SECOND PARTY’s act of combining the Service with products not supplied by the FIRST PARTY, unless the latter consented to the such combination in writing.
Mutual Indemnification. Each party (as an indemnifying party) shall indemnify the other (as an indemnified party) against all losses arising out of any proceeding brought by a third party or an indemnified party, and arising out of the indemnifying party's willful misconduct or gross negligence.
Notice and Failure to Notify
Notice Requirement. Before bringing a claim for indemnification, the indemnified party shall notify the indemnifying party of the indemnifiable proceeding, and deliver to the indemnifying party all legal pleadings and other documents reasonably necessary to indemnify or defend the indemnifiable proceeding.
Failure to Notify. If the indemnified party fails to notify the indemnifying party of the indemnifiable proceeding, the indemnifying party will be relieved of its indemnification obligations to the extent it was prejudiced by the indemnified party's failure.
Exclusive Remedy. The parties' right to indemnification is the exclusive remedy available in connection with the indemnifiable proceedings described in this section.
Limitation on Liability
Mutual Limit on Liability. Neither party will be liable for breach-of-contract damages suffered by the other party that are remote or speculative, or that could not have reasonably been foreseen on entry into this agreement.
Maximum Liability. FIRST PARTY's liability under this agreement will not exceed the fees paid by the SECOND PARTY under this agreement for the duration of the Service Contract preceding the date upon which the related claim arose.
Amendment. The FIRST PARTY may amend the terms and conditions of this agreement at any time by reasonable notice, including without limitation by posting revised terms on its website at (http://rightchoicefinance.asia).
Assignment. Neither party may assign this agreement or any of their rights or obligations under this agreement without the other party's prior written consent.
Method of Notice. The parties shall give all notices and communications between the parties in writing by (i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid[, (iv) fax][ or (v) electronic mail] to the party's address specified in this agreement, or to the address that a party has notified to be that party's address for the purposes of this section.
Receipt of Notice. A notice given under this agreement will be effective on the other party's receipt of it, or if mailed, on the earlier of the other party's receipt of it and the [fifth] business day after mailing it.
Governing Law. This agreement shall be governed, construed, and enforced in accordance with the laws of the Philippines, without regard to its conflict of laws rules.
Severability. If any part of this agreement, including that of the Software Service Agreement, in which this Terms and Conditions, is incorporated by reference, is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.
Affirmative Waivers. Neither party's failure or neglect to enforce any rights under this agreement will be deemed to be a waiver of that party's rights.
Written Waivers. A waiver or extension is only effective if it is in writing and signed by the party granting it.
No General Waivers. A party's failure or neglect to enforce any of its rights under this agreement will not be deemed to be a waiver of that or any other of its rights.
No Course of Dealing. No single or partial exercise of any right or remedy will preclude any other or further exercise of any right or remedy.
Force Majeure. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations.
No Relationship. Nothing in this agreement creates any special relationship between the parties, such as a partnership, joint venture, or employee/employer relationship between the parties.
No Authority. Neither party will have the authority to, and will not, act as agent for or on behalf of the other party or represent or bind the other party in any manner.