Merchant Flexible Financing Agreement

  1. Parties

    The Parties to this Agreement are:

    1. GoTyme Bank Corporation

      Registered Address: 21F Units 3 and 4, work.able Giga Tower, Bridgetowne, 80 Eulogio Rodriguez Jr. Avenue, Brgy. Ugong Norte, Quezon City, Philippines 1110

      Email address: hello@gotyme.com.ph

      (hereinafter referred to as "GoTyme" or "GoTyme Bank"); and

    2. Merchant’s full business name/s: {{business['business_name']}}

      If Merchant is a corporation, SEC Registered Primary Address and if Merchant not a corporation, Principal residential address: {{business['address_line_1']}}

      Email address: {{owner['email']}}

      Contact number: {{owner['phone_number']}}

      List of Merchant’s owners/stockholders/directors: {{owner['first_name']}} {{owner['surname']}}

      Partner: PayMongo

      (hereinafter referred to as the "Merchant")

  2. Commencement

    1. The Agreement will commence and become binding on the day that both Parties have signed the Agreement.

  3. Flexible Financing Product

    1. The Merchant acknowledges that it has previously accepted a preliminary non-binding offer ("Conditional Offer") presented to it by the Partner and that it has submitted an application to GoTyme to avail of the Flexible Financing Product ("Application") from GoTyme through the Partner.

    2. The Flexible Financing Product is being provided to the Merchant on the basis of available documents and information received by GoTyme from the Merchant because of its acceptance of the Conditional Offer and submission of the Application through the Partner. Notwithstanding, at anytime during the Term of this Agreement and until the Financed Amount is fully paid in accordance with the terms of this Agreement, Merchant agrees to submit all necessary documents and requirements, upon GoTyme’s request, in the event that it needs to verify and re-evaluate the Merchant against its eligibility criteria for the Flexible Financing, perform its obligations to the BSP, and update the Merchant’s information on GoTyme’s record, among others.

    3. The purpose of the loan is to provide financing to Merchant for their working capital needs.

    4. In addition, as material considerations for the Financed Amount, the Merchant warrants that:

      1. It acknowledges that GoTyme is one of the Partner’s Third Party / Banking Partners;

      2. It does not possess any disqualification to avail of the Flexible Financing Product from GoTyme;

      3. It has the financial capacity and a good track record of paying his/her/its obligations;

      4. The above SEC Registered Primary Address, Principal Residential Address and Email Address are updated and accurate. Should there be any changes thereto, the Merchant shall notify GoTyme in accordance with this Agreement.

      5. The merchant’s nominated bank account details in this Agreement are accurate and that any payments or disbursements sent to the merchant’s nominated bank account shall be considered sent to and received by the Merchant if Merchant does not inform GoTyme of any issues with the receipt of financed amount within seven (7) business days of confirmation notice sent to the Merchant;

      6. It is not insolvent or subject to any insolvency, liquidation, or dissolution proceedings;

      7. It shall not terminate its contract with the Partner or make any material changes to its existing contract with the Partner which may affect the Partner’s or Merchant’s obligations contemplated under this Agreement without GoTyme’s approval, until the Financed Amount is paid back in full;

      8. It will cooperate with the Partner’s or GoTyme’s requests for information and documentation in the conduct of customer due diligence measures, among others;

      9. It has allowed the Partner to share its information and documentation deemed by GoTyme necessary for the services contemplated under this Agreement to GoTyme;

      10. In consideration of the Financed Amount, It has authorized the Partner to collect, deduct, make withholdings (collectively, "collect") on all amounts held by the Partner from the Merchant’s customers which are due to the Merchant ("Future Receivables"), and make payments to GoTyme under the Split Net-Settling Process and that it will not revoke such authority for the entire duration of this Agreement until the Financed Amount is paid back in full.

      11. For collections and repayments, GoTyme shall enjoy a preference over all of the Merchant’s creditors, including the Partner. The Merchant has not and will not enter into any contracts or agreements to invalidate and/or nullify this preference.

      12. The Split Net-Settling Process is only one method of repayment and shall not be construed as the sole method of payment for the Financed Amount. Merchant warrants that it shall fully settle its obligation to repay GoTyme the Financed Amount even if the Split Net-Settling Process with the Partner becomes unavailable.

      13. It shall not commit any fraud, act, or employ any scheme that would unfairly affect its repayment of the Financed Amount.

      14. It acknowledges and agrees that GoTyme may, at its discretion, and without notice, outsource or subcontract any portion of its services under this contract.

      15. It agrees to expressly waive the confidentiality of its information and that this Agreement shall be considered as the executed written waiver.

      16. If requested by GoTyme, Merchant will provide it with a copy of its updated ITR within twenty-four (24) hours from receipt of such request.

      17. It expressly agrees to grant GoTyme the authority to conduct random verification with the Bureau of Internal Revenue ("BIR") to establish the authenticity of any Merchant Information or documents. Should a separate document be needed by the BIR to confirm such authorization, Merchant will provide GoTyme with documentation to confirm such authorization within twenty-four (24) hours from receipt of such request.

      18. It did not withhold any material information from GoTyme or Partner which may reasonably be expected to affect its eligibility and/or credit worthiness for the Flexible Financing Product.

      19. All representations, submissions, information and documents received by GoTyme, including all information contained in this Agreement with regard to it, are true and correct. Should there be any changes to the foregoing, Merchant must notify GoTyme in writing within five (5) business days from such change.

    5. GoTyme shall disburse the Financed Amount to the Merchant’s Nominated Bank Account as soon as practicable upon the execution of this Agreement. The Merchant’s Nominated Bank Account has the following details:

      Bank Name: {{business['bank_name']}}
      Account Name: {{bank_account_name}}
      Account Number: {{business['bank_account_number']}}

    6. The Merchant acknowledges that the Financed Amount is a loan that it has to unconditionally repay to GoTyme in accordance with the terms of this Agreement.

    7. This Agreement shall replace and supersede the Merchant’s existing agreement with GoTyme in relation to any previous Flexible Financing Product by GoTyme to the Merchant, with effect from the date of commencement.

  4. Unconditional Repayment

    1. The Merchant shall pay the Financed Amount to GoTyme through the Split Net-Settling Process, as a primary mode of payment.

    Under the Split Net-Settling Process, the Merchant authorizes the Partner to collect Future Receivables from the Merchant and, once collected, are paid to GoTyme, until the Merchant has paid the full Financed Amount. The Merchant expressly authorizes Partner to collect from its future receivables at anytime for the purpose of paying the Financed Amount to GoTyme on its behalf. The parties agree that this authorization is made with consideration and cannot be revoked by the Merchant without the consent of GoTyme for the entire duration of this Agreement and for as long as the Merchant has not yet paid back the Financed Amount to GoTyme in full.


  5. Key Terms

    1. Key terms are described in Annex A: DISCLOSURE STATEMENT ON SMALL BUSINESS/RETAIL/CONSUMER CREDIT.

    2. The Merchant warrants and represents to GoTyme that it, or its authorized representative, where applicable, has full capacity to enter and accept this Agreement, together with Annex A.

  6. Execution & Signature

    1. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same agreement. The parties acknowledge that this Agreement may be executed by an exchange of facsimile or electronic mail and confirm that their execution of this Agreement by such means will be valid and sufficient.

    2. Electronic signature and such electronic signatures shall be accepted and deemed original signatures, and have the same force and effect as manual signatures and binding upon the Parties.

    3. Parties warrant that the signatories herein are the authorized representative of the Parties they are representing.

    4. The Merchant warrants, if it is a company, that any one of its directors, is hereby authorised to represent the Merchant in respect of this Agreement and any future transactions with GoTyme in relation to any Flexible Financing Agreement.

    5. The Parties agree to the terms and conditions of this Agreement, which includes and incorporates the Standard Terms and Conditions that are attached and all definitions appearing therein ("the Standard Terms and Conditions")

Annex A:

GoTyme Bank Corporation

(Business Name of Creditor)

DISCLOSURE STATEMENT ON LOAN/CREDIT TRANSACTION

(As Required under R.A. No. 3765, Truth in Lending Act)

NAME OF BORROWER: {{owner['first_name']}} {{owner['surname']}}

ADDRESS: {{business['address_line_1']}}

1. Loan Amount PHP {{total_repayable}}
2. Other Bank Deductions Collected PHP {{fee_total}}
a. Fixed Fee PHP {{mca_fee}}
b. Origination Fee PHP {{extra_info['dst']}}
3. Net Proceeds of Loan PHP {{advance_amount}}
4. Effective Interest Rate {{factor}}%
5. Sales Allocation {{repayment_percentage}}%

CERTIFIED CORRECT:

(Signature of Creditor/Authorized Representative over Printed Name)

Co-Chief Executive OfficerDate

Position



I ACKNOWLEDGE RECEIPT OF A COPY OF THIS STATEMENT PRIOR
TO THE CONSUMMATION OF THE CREDIT TRANSACTION.



{{owner['first_name']}} {{owner['surname']}}

(Signature of Borrower over Printed Name)

{{signed_at_date}}

Date



ACCEPTED BY {{owner['first_name']}} {{owner['surname']}} FOR {{business['business_name']}} ON {{signed_at_date}} {{signed_at_time}}
VIA THE PAYMONGO CAPITAL PLATFORM.

Standard Terms and Conditions

  1. Definitions

    In this Agreement, unless the context clearly indicates a contrary intention, the following words and expressions bear the meanings assigned to them and cognate expressions bear corresponding meanings:

    1. "Agreement" means the Merchant Flexible Financing Agreement (including the Standard Terms and Conditions and includes any annexures, addenda, appendices and schedules referred to in any of the documents or applications referred to in this agreement;

    2. "Business Day" means any day other than a Saturday, Sunday or public holiday officially recognised as such in the Philippines.

    3. "Data Privacy Act" means the laws, regulations, or adopted codes of practice applicable to the Parties relating to data protection, privacy, security, or electronic communications, including, without limitation the Data Privacy Act of 2012 and its implementing rules and regulations.

    4. "Fee" means any consideration, interest or charges, as applicable, which may be collected by GoTyme or the Partner;

    5. "Financed Amount" means the amount as agreed in the Agreement, which GoTyme shall loan to the Merchant in accordance with the terms of this Agreement;

    6. "Outstanding Balance" means at any particular date, the amount of the Financed Amount and Fees which remains unpaid;

  2. Representations

    1. The Merchant makes the following representations and warranties set out below in relation to itself, himself, or herself (as applicable) to GoTyme:

      1. Where the Merchant is a company, it is duly incorporated and validly existing under the laws of the Philippines and has the power to own its own assets and carry on its business as it is being conducted; Where the Merchant is not a corporation, he or she, by his or her self, has the full legal capacity to contract, consent to, and enter into the Agreement, with no disqualifications under the law.

      2. The obligations expressed to be assumed by the Merchant in this Agreement are legal, valid, binding and enforceable obligations of the Merchant and, where applicable, his or her heirs, successors, and assigns.

      3. The Merchant’s entry into and performance of, and the transactions contemplated by this Agreement, do not and will not conflict with:

        1. Any law or regulation application to the Merchant;

        2. In relation to the Merchant, its constitutional documents;

        3. Any agreement or instrument binding upon the Merchant or its assets; and

        4. Any contractual obligation of the Merchant with the Partner or any other person, even if they are not part of this Agreement.

      4. The Merchant has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of this Agreement;

      5. The Merchant has received independent legal advice before and in connection entering into this Agreement;

      6. All information and documentation provided by the Merchant to the Partner are true and accurate.

      7. Any information received by GoTyme from the Merchant’s Application was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated.

      8. The warranties and representations made by the Merchant shall be valid for the entire duration of the Agreement and, in the event of Termination, shall survive until the Financed Amount is paid in full.

      9. The Partner’s collection from future receivables shall not be considered as payment to GoTyme until such amounts collected are actually received by GoTyme from the Partner.

      10. Merchant assumes full liability towards repayment of the Financed Amount until the same is fully settled and paid back to GoTyme.

      11. The Merchant represents to GoTyme that prior to the execution of the Agreement: (i) it fully understands the terms of the transaction that it is entering into, including the risks, penalties, interest, which it may be subjected to, in accordance with Agreement, where applicable; and (ii) it had every opportunity to clarify this Agreement with GoTyme.

      12. Merchant has received a copy of the Bank’s disclosure statement prior to executing the contract.

      13. Merchant is aware that GoTyme is regulated by the Bangko Sentral ng Pilipinas with contact number (+632) 8708-7087 and with email address consumeraffairs@bsp.gov.ph, and webchat at www.bsp.gov.ph.

  3. Default and Acceleration

    GoTyme may declare the Merchant in default, with immediate effect, if:

    1. Merchant breaches any of the representations or warranties terms under this Agreement.

    2. Merchant’s contract or relationship with the Partner is terminated, regardless of who initiates such termination.

    3. Merchant’s contract with Partner is modified or changed, without GoTyme’s consent, and such changes may materially affect either the Merchant’s or Partner’s obligations under this Agreement.

    4. Merchant revokes or challenges the Partner’s authority to collect, deduct or make withholdings on the Future Receivables.

    5. The Partner fails to remit the full Financed Amount along with the Fee to GoTyme because the amount of Future Receivables of the Merchant are insufficient. The Merchant’s outstanding Financed Amount shall be considered past due if no repayment is received by GoTyme for fifteen (15) consecutive days or non-performing if no repayment is received by GoTyme for sixty (60) consecutive days. Loans which are past due or non-performing will be subject to applicable laws and regulation as defined by the BSP.

    6. Upon GoTyme’s declaration that the Merchant is in default, the Outstanding Balance shall immediately be due and demandable in full.

    7. If competent authority orders GoTyme to terminate the Agreement or make material changes to its business which will make it impractical for GoTyme to continue its Flexible Financing Product with the Merchant, the Outstanding Balance shall also be immediately due and demandable, without penalty.

  4. General Undertakings

    1. The Merchant shall promptly obtain, comply with, and do all that is necessary to maintain in full force and effect any authorisation required under any law or regulation of the Philippines to enable it to perform its obligations under this Agreement and to ensure the legality, validity, enforceability, or admissibility in evidence of this Agreement.

    2. The Merchant shall comply in all respects with all laws to which they may be subject.

    3. The Merchant shall ensure that no substantial change is made to the general nature of its business or its relationship with the Partner from that carried on at the date of this Agreement.

    4. The Merchant shall, immediately on demand, pay to GoTyme all costs and expenses, including legal fees, incurred by GoTyme in connection with the protection of or enforcement of GoTyme’s rights under this Agreement.

  5. Termination

    1. Agreement shall remain in full force and effect until terminated by GoTyme with or without cause.

    2. The Merchant’s obligations and representations to pay back the Funded Amount and/or the Outstanding Balance, together with all existing obligations to GoTyme related to such payment, including penalties and interest, if any, shall survive the termination of this Agreement until such are fully paid to and received by GoTyme.

  6. Liability

    1. Nothing in this Agreement limits any liability for:

      1. death or personal injury caused by negligence;

      2. fraud or fraudulent misrepresentation;

      3. liability which cannot be limited or excluded by applicable law; or

      4. claims by GoTyme under any indemnity in this Agreement.

    2. GoTyme will not in any circumstances have any liability under this Agreement which may be suffered by the Merchant, whether suffered directly or indirectly, whether immediate or consequential and whether arising in contract, tort (including negligence) or otherwise, such as, but not limited to, the following categories:

      1. special or indirect or consequential damage even if the Parties were aware of the circumstances in which such damage could arise;

      2. loss of profits (whether considered a direct or indirect loss);

      3. loss of anticipated savings;

      4. loss of business opportunity; or

      5. loss of goodwill or damage to reputation.

    3. Notwithstanding the foregoing provisions, GoTyme’s liability to the Merchant shall not exceed an amount equal to the Funded Amount.

  7. Certificate of Indebtedness

    1. The Merchant acknowledges that the Financed Amount is a loan from GoTyme, which has to be repaid, together with an agreed fee, charge, and/or interest. The Merchant further acknowledges that the Split Net-Settling Process is only one method of repayment and should not be construed as the sole method of repayment. Accordingly, the Merchant remains bound to pay the Outstanding Balance to GoTyme even if the Split Net-Settling Process becomes unavailable, for any reason. The availability of the Split Net-Settling Process shall also not be construed as a condition for the obligation of repayment and should not affect the agreed payment schedule under the Agreement.

    2. If the Merchant is not a corporation, upon the Merchant’s death, the loan shall be charged to his or her estate and his or her obligations under this Agreement shall be binding upon his or her heirs, successor, or assigns.

    3. If any litigation, arbitration or other legal or formal proceedings arising out of or in connection with this Agreement, the entries made in the accounts maintained by GoTyme are prima facie evidence of the matters to which they relate.

    4. Any certification or determination by GoTyme of a rate or amount under this Agreement is, in the absence of manifest error, conclusive evidence of the matters to which it relates.

    5. Any interest, commission or fee accruing under this Agreement will accrue from day to day and is calculated on the basis of the actual number of days elapsed and a year of 365 days.

  8. Remedies and Waivers

    No failure to exercise, nor any delay in exercising, on the part of any Party, any right or remedy under this Agreement shall operate as a waiver of any such right or remedy. No single or partial exercise of any right or remedy shall prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law. To be clear, any waiver must be expressed, described in full, made in writing, and signed by the party giving such waiver.


  9. Non-variation

    1. No variation, addition, deletion, or agreed cancellation of this Agreement, including this clause, will be of any force or effect unless in writing and signed by or on behalf of the Parties.

    2. This Agreement constitutes the whole agreement between the Parties relating to the matters dealt with in this Agreement and save to the extent otherwise provided herein, no undertaking, representation, term or condition relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on any of the Parties.

  10. Severability

    1. Each provision of this Agreement is severable from the other provisions. Should any provision be found by a Court of competent jurisdiction to be invalid or unenforceable for any reason, the Parties will consult with one another in good faith in order to agree, if possible, an alternative provision in accordance with the intent and tenor of this Agreement.

    2. The remaining provisions of this Agreement shall nevertheless remain binding and continue with full force and effect.

  11. Cession and Assignment

    1. Save as otherwise herein provided, neither this Agreement nor any part, share or interest therein nor any rights or obligations may be ceded, assigned, or otherwise transferred by the Merchant without GoTyme’s prior written consent.

    2. The Merchant further hereby irrevocably and unconditionally consents to the cession, delegation, assignment, or other transfer by GoTyme (or any person to whom its rights and/or obligations are ceded, delegated, assigned or transferred) of all or any of its rights or obligations under this Agreement.

  12. Addresses for Notices and Legal Process

    1. Each Party chooses as its address for all purposes under this Agreement (“Chosen Address”), whether in respect of serving any court process or other documents, giving any notice or making any other communications of whatsoever nature (“Notice”), the respective addresses at clause 1 of the Merchant Funding Agreement.

    2. Any Party may by Notice to the other Party, change its Chosen Address to another physical address or email address, provided that the change shall only become effective on the 7th (seventh) day of receipt (or deemed receipt) of the Notice by the other Party. Provided, that the Merchant must substantiate its Notice to GoTyme with an original government issued document recognizing such change of address for such change of address to be considered received and/or effective. The Chosen Address, unless a Notice for change of address is duly received and made effective, shall be deemed conclusive as to the updated address of the Merchant for the purpose of receiving demand letters, including demand letters for payment.

  13. Data Protection

    1. For the purposes of this Agreement, "Personal Data" and "data controller" shall have the meaning given by the Privacy Act.

    2. Each of the Parties act as a data controller, or the equivalent, under the Data Privacy Act, in relation to the Personal Data they process in the course of the performance of this Agreement. Each of the Parties shall comply with its respective obligations under the Data Privacy for the duration of this Agreement.

    3. No Merchant shall cause GoTyme to breach any of its obligations under the Data Privacy Act. GoTyme shall not be responsible for any consequences resulting from the Merchant or any Guarantor’s failure to comply with the Data Privacy Act in relation to Personal Data it, he or she shares with GoTyme or the Partner.

  14. Third Party Rights

    No person who is not a party to this Agreement will have any right to enforce it.


  15. Governing law and Jurisdiction

    1. This Agreement and any non-contractual obligations arising out of or in connection with it are governed by the laws of the Philippines.

    2. The courts of Quezon City have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement.