OVERVIEW
This SUBSCRIPTION AGREEMENT (or “Agreement”) governs the relationship between the Subscriber (hereinafter referred to as “Subscriber”, “You” or “Your”), on the one hand, and IdeaHub IT Solutions Provider Inc. on the other, with respect to the provisioning of e-commerce services through Shopeness.com.
IdeaHub IT Solutions Provider Inc. shall hereinafter be referred to, individually, as “Ideahub,” or as “Service Provider”, “We”, “Our” or “Us”.
The e-commerce services provided by Ideahub IT Solutions Provider Inc. through Shopeness.com and all the features included therein, will be referred to individually, as the “Service” and, collectively, as the “Services”.
Any reference to this SUBSCRIPTION AGREEMENT shall include reference to the following:
a. The Terms of Use issued by us in relation to the Services;
b. Your Proposal Agreement Form submitted to Us in relation to this Subscription Agreement;
c. Any Product or Service Description, Product or Service Plans and/or Product or Service special terms and conditions issued by Us, including flyers, print advertisements and mechanics; and
d. The Privacy Policy issued by us in relation to the Services.
GENERAL TERMS AND CONDITIONS
ARTICLE 1: Application Approval and Service Activation
1. Subscriber affirms that the information provided in the Proposal Agreement Form and the supporting documents submitted in connection therewith are true and correct.
2. Subscriber hereby authorizes the Service Provider to verify such information from whatever source, and authorizes the holder, controller and processor of such information, as the same is defined in Republic Act No. 10173 (otherwise known as the “Data Privacy Act of 2012”), including any amendment or modification of the same, to confirm, release, share and verify the existence, truthfulness, and/or accuracy of such information. Any incorrect information provided by Subscriber shall result in the delay or denial of the application, delay in the installation and provisioning of the Service or, if already approved, in the suspension or termination of the Service, without prejudice to any other action which Service Provider may pursue in accordance with law and equity.
3. Approval of the Service application shall be at the sole discretion of the Service Provider. Service Provider may even require submission of additional requirements to facilitate the processing of the application. In the event that the Service application is disapproved or denied, Service Provider shall have no obligation to divulge to applicant the reason for such disapproval or denial.
4. The Service shall be activated only after approval by Service Provider of Subscriber’s application and compliance by the Subscriber with all the requirements for Service activation.
ARTICLE 2: User Accounts
1. When the same is necessary to access the service of Service Provider and use the Services, Service Provider shall issue to subscriber a User Accounts that may include usernames and passwords.
2. Subscriber shall be solely responsible for the User Accounts upon its delivery to him/her. Subscriber understands and agrees that loss of the User Account/s is neither a valid ground for the Subscriber not to pay the Monthly Recurring Fee (MRF) and other charges associated with his/her use of the Services nor a valid ground for termination of the Service without Pre- Termination Fee if such loss or damage occurs within the Agreement Period.
ARTICLE 3: Promotions
1. Service Provider may offer promotions from time to time and notify Subscriber of the details thereof (including a particular pricing plan, Agreement Period, the terms and conditions for the relevant promotion) through general advertising.
2. If Subscriber validly opts to join a promotion, the terms and conditions applicable to such promotion shall apply during the promotion period and will prevail to the extent that such terms and conditions of the promotion are inconsistent with the terms of this Agreement. In all other matters not covered by the promotion’s terms and conditions, the terms and conditions of this Agreement will continue to apply.
3. After the promotion period expires, the terms and conditions applicable to the promotion will terminate and this Agreement will apply.
ARTICLE 4: Agreement Period
1. The Services shall be maintained active for the agreed Agreement Period from activation date as per approved Proposal Agreement Form unless otherwise stated. Subscriber undertakes to complete the said Agreement Period or upgrade his/her subscription during the same period. Subscriber shall neither terminate the Service before the end of the Agreement Period nor downgrade his/her subscription to a lower plan during the same period without the prior approval of the Service Provider.
2. The above notwithstanding, Service Provider has the sole discretion to approve or disapprove any upgrade or downgrade of Subscriber’s subscription plan. In case Subscriber’s request for an upgrade or downgrade of his/her plan is approved, the corresponding adjustment in rates and fees shall be made effective in the subsequent billing cycle following the approval of the request for plan upgrade and downgrade.
3. In case of pre-termination or downgrading without Service Provider’s approval prior to the expiry of the Agreement Period, Subscriber shall pay the applicable fees and penalties imposed by Service Provider for such pre-termination or downgrade.
4. Upon the lapse of the Agreement Period, this Agreement shall be renewed automatically on a month- on-month basis until terminated by notice in accordance with the provisions of this Agreement. Notwithstanding, Service Provider may require a different Agreement Period for additional service availed after the execution of this Agreement, which shall be stated in another agreement and shall be reckoned from the date of acceptance of application for such other additional services.
ARTICLE 5: Fees and Charges
1. Upon activation of the Service, Subscriber will be charged the following applicable charges for usage of the Service as stated in Subscriber’s approved Proposal Agreement Form, as well as any and all additional fees and charges indicated in this Agreement or as may be notified by Service Provider in accordance with this Agreement from time to time:
a. Monthly or Annual Recurring Fees stated in Subscriber’s subscription plan or promotional plan based on approved Proposal Agreement Form,
b. Fees and charges for the normal use of the Service, such as access fees, where applicable,
c. Administration fee and other charges which may include: (i) suspension fees, cancellation fees, late payment fees, reconnection fees or reactivation fees as may be stated in Subscriber’s subscription plan, where applicable; (ii) Service Modification Fees for any request for transfer of ownership, increase/reduction/modification of the Services, reconnection, and other modifications related to the Service, where applicable; and/or
d. Upgrade/downgrade Fees, where applicable.
2. Charges Applicable to Setup Service, Service Provider reserves the right to charge Subscriber the following additional charges, where applicable:
a. installation, connection and maintenance;
b. development and customization; and
c. relocation and modification.
The above additional charges applicable shall be paid by the Subscriber prior to Service Provider providing Subscriber with the requested service.
3. Fees and charges incurred for the Service shall be payable by Subscriber even if Subscriber did not, in fact, authorize its use, Subscriber is unable to access the Service, or the Service has become unavailable.
ARTICLE 6 Billing and Payments
6.1 Billing
1. Service Provider, by itself or through an authorized billing agent, will regularly send Subscriber’s bill via email and/or courier service. Service Provider reserves the right to send Subscriber’s bill(s) to the latter’s other address (es) disclosed in the latter’s application in case of “Moved Out/Return to Sender”. Subscriber shall inform Service Provider of any change in Subscriber’s billing/email address. Service Provider shall not be responsible for any consequence arising from Subscriber’s inability to receive his/her bill and pay the amount due on due date as a result of Subscriber’s failure to timely notify Service Provider of any change in his/her billing/email address.
2. Notwithstanding the non-delivery to Subscriber of his/her bill, Subscriber shall be responsible for informing himself/herself of any outstanding balance by calling Service Provider’s Customer Service Hotline at (+63) 082 233 9052, by visiting Service Provider’s Office, through Subscriber’s account manager, or through the website at www.Shopeness.com and making payment on or before the due date without need of further demand on Service Provider’s part.
3. Service Provider will try to include in Subscriber’s bill all charges for the relevant billing period. However, when this is not possible, Service Provider may include unbilled charges in later bill(s). Service Provider may also render interim billings in advance of the usual billing cycle whenever Subscriber’s actual usage charges exceed his/her Credit Limit.
Further, Service Provider may place on a single bill all Services that Subscriber has with Service Provider.
4. For billing-related inquiries or complaints, Subscriber may file the same with Service Provider’s Customer Service Hotline at +63(082) 2339052, by visiting Service Provider’s Office, through Subscriber’s account manager, or through the website at www.Shopeness.com within thirty (30) days from statement date. Subscriber’s failure to file an inquiry or complaint within said period shall be deemed an acceptance of the accuracy and correctness of the bill, making it final and conclusive on Subscriber. Service Provider shall respond to Subscriber’s billing queries or resolve Subscriber’s billing complaint at the soonest possible time. Subscriber understands and agrees that Service Provider, in responding to such queries and in resolving complaints, relies on its records which Subscriber acknowledges and agrees to be correct and conclusive.
6.2 Payments
5. Subscriber shall pay the entire amount billed on or before the due date specified in any payment notification, bill or any other notice sent by Service Provider. Subscriber’s failure or refusal to pay, in whole or in part, any outstanding charges by due date shall entitle Service Provider to exercise the right to redirect, bar or temporarily disconnect Subscriber’s Service(s) without liability on Service Provider’s part.
6. Subscriber may pay his/her bill through any of Service Provider’s accredited payment channels. Service Provider is not bound to honor payments made to persons or entities or at places not authorized by Service Provider to receive payments on its behalf. If Subscriber opts to pay his/her bill via direct debit from an identified account, by credit card, or by check, and the payment is not fulfilled or honored, for example, because of insufficient funds for direct debit or credit card payment, or a dishonored check, Service Provider may charge Subscriber an additional fee.
7. Subscriber’s payments shall be first applied to any late payment fee, billings in arrears, and current billing.
8. In case of overpayment, the excess amount shall be used to offset outstanding charges, fees, cost, rentals or any other sum due in Subscriber’s other bills or Subscriber’s account will be credited with the amount he/she has overpaid. If Subscriber has stopped obtaining the Service, Subscriber will use reasonable efforts to notify Subscriber of the overpayment and refund the same in accordance with Service Provider’s policies.
9. Any late payment made by Subscriber, whether in full or in part, shall not affect Service Provider’s right to pursue legal remedies to collect penalties or damages which Service Provider may incur as a result of Subscriber’s late payment, incomplete payment or non-payment of his/her bill. These penalties or damages may include, but is not limited to, the following: (1) penalty fee for Subscriber’s failure to comply with the Agreement Period, (2) reconnection fee; and (3) reactivation fee.
In the event Subscriber fails and continues to fail to pay his/her bill, Service Provider may engage the services of a collection agency or institute legal proceedings against Subscriber to recover the money owed by Subscriber and Service Provider may seek to collect recovery fee and/or reasonable costs and legal fees.
ARTICLE 7 IdeaPay
IdeaPay is a payment aggregator service that allows merchants to process e-payments from over 20 payment methods. The integration and use of IdeaPay is included for all subscription plans.
1. By subscribing to IdeaPay in Shopeness, Subscriber acknowledges and agrees to the terms and conditions of IdeaPay which can be found on the website: https://www.ideapay.ph/terms-and-conditions/
2. Subscriber may choose which payment methods shall be integrated in their website.
3. Payouts due to Subscriber will be settled on a bi-weekly schedule or as agreed between the parties.
4. A convenience fee will be charged to Subscriber’s customers for every transaction paid through IdeaPay. The amount of the convenience fee charged to Subscriber’s customers will vary based on the rates listed below. The convenience fees will be automatically deducted outright on the settlement of funds or payout due to Subscriber on a bi-weekly basis or as agreed between the parties.
ARTICLE 8 Commercial Photography and Use of License Images
The Commercial Photography services by the Service Provider in Shopeness outlines the agreement with the Service Provider in Shopeness to license and share the use of images on the Subscriber's behalf. The Subscriber needs to read and understand the rights and obligations that control the relationship of using license images by the Service Provider in Shopeness.
1. By subscribing to the Commercial Photography in Shopeness, Subscriber acknowledges and agrees to the following terms and conditions on using license images.
2. Shared image / non-exclusive royalty-free license: Prices above are for shared image licenses and are exclusive for shared use between the Subscriber and the Service Provider in Shopeness’s related promotional ads and materials such as print, design, logo and video among others.
3. Client-owned image / exclusive royalty-free license: The exclusive royalty-free license which only the Subscriber opts to choose to have the sole ownership and rights of the image will require to pay the Service Provider in Shopeness at Php. 5,000 per image.
ARTICLE 9 Taxes and Currency Exchange Rates Adjustment
Unless otherwise indicated, the fees and charges set out in this Agreement include any amount on account of tax and Currency Exchange Rates Adjustment (if any). Should there be additional taxes or increase in tax rate as mandated under Philippine laws, Service Provider will bill Subscriber accordingly.
ARTICLE 10 Representations and Warranties
1. Service Provider represents that it will reasonably provide the Service in accordance with industry standards.
2. Service Provider makes no representation that the Service will be available throughout the Philippine territory and in all international territories.
3. SERVICE PROVIDER PROVIDES THE SERVICE ON AN "AS IS" BASIS AND MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICES SHALL BE UNINTERRUPTED OR ERROR FREE. SERVICE PROVIDER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES AS TO THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FURTHER, SERVICE PROVIDER NEITHER REPRESENTS NOR WARRANTS THAT THE INFORMATION OR CONTENT ACCESSIBLE ON OR THROUGH THE SERVICE IS ACCURATE, COMPLETE OR CURRENT, AND ALL INFORMATION OR CONTENT, INCLUDING PRICES AND AVAILABILITY, ARE SUBJECT TO CHANGE WITHOUT PRIOR NOTICE TO SUBSCRIBER.
4. Subscriber assumes all the risks associated with the use of the Service, any information or content available and/or accessed through the Service and any security features provided for the Service. Service Provider shall not be responsible for loss of data, it being understood that Subscriber is solely responsible for ensuring that his/her data is properly backed-up and stored in another location other than the Service.
5. Subscriber represents and warrants that--- (a) his/her use of the Services shall strictly be in accordance with this Agreement; (b) he/she will not violate or infringe upon any intellectual, proprietary or other rights, including data protection and privacy rights, or any applicable law, rule or regulation; and (c) he/she has not represented to any party that Service Provider made any warranty or representation of any kind with respect to the Services.
ARTICLE 11 Termination and Suspension of the Service
Cancellation or Termination of the Service
1. Subscriber may cancel the Service at any time by:
a. giving Service Provider thirty (30) days prior notice, or
b. giving Service Provider notice in the form of a letter or a call to Service Provider’s Customer Service Hotline in the following instances:
i. Service Provider breaches a material term of this Agreement and such breach cannot be remedied, except if the breach was a result of circumstances reasonably attributable to Subscriber; or
ii. Service Provider breaches a material term of this Agreement and such breach may be remedied but Service Provider unreasonably refuses or fails to remedy the breach within thirty (30) days after receipt of Subscriber’s notice requiring Service Provider to remedy the breach; or
iii. occurrence of force majeure.
The Service will be terminated on the termination date indicated on the notice. In the absence of the notice required in 1(a) above and upon the expiry of the Agreement Period, Service Provider shall continue to supply the Service to Subscriber and Subscriber shall continue to be charged for the Service.
2. Service Provider may terminate the Service at any time by giving Subscriber due notice. Service Provider may however terminate the Service even without notice in any or all of the following instances:
a. there is an emergency or threat to Service Provider’s service, such as but not limited to Subscriber’s equipment emitting signals or codes that are harmful to or interfere with Service Provider’s service,
b. Service Provider reasonably suspects that Subscriber directly or indirectly engages in any fraud either by himself/herself or with any other person in connection with the Service, whether the said act is punishable under the law or not.
c. Service Provider is required to do so to comply with an order, instruction, request or notice of any competent legal authority or by authorization of or under law,
d. Subscriber uses the Services (i) to send spam messages or unsolicited texts and broadcast messages for the purpose of offering services, selling products, or otherwise disseminating information about a product promo, event or advocacy, (ii) to send scam or unsolicited, fraudulent or bogus messages or broadcast messages for the purpose of obtaining gain or benefit from other people, or (iii) to perform any illegal activity, or otherwise use the Services in a manner that breaches a material term of this Agreement including, but not limited to, Subscriber’s obligations relating to the use of the Service set out in his/her application or otherwise misuses the Service.
e. there is unusually high use of the Service, or the Subscriber uses the Service in a manner that violates Service Provider’s Fair Use Policy.
f. Subscriber breaches any term or condition of this Agreement which breach can be remedied but Subscriber fails or refuses to remedy the breach within ten (10) days after receipt of notice from Service Provider requiring Subscriber to do so,
g. Subscriber breaches any term or condition of this Agreement which breach cannot be remedied such as, but not limited to, transferring Subscriber’s account without Service Provider’s consent, having connected accessories pertaining to the application software that may have virus or bugs, having installed and used software that Subscriber does not have any license that may result in an infringement of third party’s intellectual property rights or which may be harmful to Service Provider’s equipment and network,
h. Subscriber suffers an insolvency event and Service Provider reasonably believes that it is unlikely able to receive payment from Subscriber for amounts due under this Agreement, or
i. occurrence of force majeure.
3. Upon cancellation or termination of the Service, Subscriber shall no longer be able to use the Service after termination date. Once the Service is terminated, Service Provider reserves the right to prevent Subscriber from further using its service. Further, Subscriber shall be liable to immediately pay any charges incurred (including the pre-termination fee and outstanding equipment charges and penalty fees, if any) until termination date. Subscriber shall also immediately pay for charges that Service Provider discovers after such termination.
If Subscriber is able to use the Service after the termination date, Subscriber shall be liable for any charges incurred by him/her for that use, in addition to any other charges under this clause.
For this purpose, Subscriber hereby authorizes Service Provider to apply any of his/her advance payment to any such outstanding charges.
4. In addition to the fees and charges due in the immediately preceding provision, if the Service is terminated as a result of circumstances reasonably attributable to Subscriber: (a) before the service start date, Subscriber must pay Service Provider all infrastructure and installation costs incurred by Service Provider in connection with preparations for supplying the Service to Subscriber, or (b) during the Agreement Period, Subscriber must pay the pre-termination fee and the outstanding balance for the purchase price of any Device used to avail of the Service, if any.
5. In addition to Subscriber’s liabilities stated above, Subscriber shall be responsible for the safe custody of CPE until such time that Subscriber surrenders possession thereof to Service Provider. Subscriber agrees to delete any application and data that may be stored in said CPE. For this purpose, Subscriber allows Service Provider to enter his/her premises and remove such CPE.
Suspension of the Service
1. Service Provider may suspend the Service at any time, if: (a) doing so is necessary to allow Service Provider or its supplier to repair, maintain or service any part of Service Provider’s service or supplier's network used to supply the Service, (b) Service Provider reasonably believes that there has been an unusually high use of the Service, (c) problems are experienced interconnecting to Service Provider’s network with any supplier's network, or (d) Service Provider is otherwise entitled to do so under this Agreement.
2. If Subscriber wishes to have the suspension lifted, he/she should contact Service Provider. If the suspension is temporary and was requested by Subscriber for personal reasons, the Service shall be automatically lifted after thirty (30) days unless Subscriber contacts Service Provider and requests that the suspension be continued.
3. If Service Provider suspends the Service, for any reason, Service Provider may later terminate the Service for the same or a different reason. Upon such termination, Subscriber must pay Service Provider any applicable pre-termination fee, as well as any outstanding balance for the purchase price of any Device used to avail or the Service.
4. If the Service is suspended, Subscriber may have to pay access fees for the Service while it is suspended.
5. If the Service Provider suspends the Service for acts or omissions on Subscriber’s part, upon such termination, Subscriber must pay Service Provider any applicable pre-termination fee, as well as any outstanding balance for the purchase price of any Device used to avail or the Service Provider’s control including but not limited to force majeure, power and equipment failure or acts or omissions on Subscriber’s part or a third party.
ARTICLE 12 Service Reconnection
1. In case of suspension of the Service, or temporary disconnection, Service Provider shall have no obligation to reconnect the Service unless Subscriber has cured the cause for such suspension, redirection or temporary disconnection to Service Provider’s satisfaction. Reconnection/reactivation shall be at Service Provider’s sole discretion and subject to the payment by Subscriber of reconnection/reactivation fees.
2. Upon reconnection/reactivation of Service, Subscriber shall be bound by the terms and conditions of this Agreement.
ARTICLE 13 Liability
1. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOSS OF INCOME, PROFITS, DATA, DAMAGES FROM LOSS OF USE, OR BUSINESS OPPORTUNITY, OR FAILURE TO ACHIEVE COST SAVINGS, IN CONTRACT, TORT, OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, COST, OR DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; PROVIDED HOWEVER, THAT THE FOREGOING LIMITATION SHALL NOT APPLY TO ANY CLAIMS FOR PERSONAL INJURY OR DEATH OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR SUBSCRIBER’S/SERVICE PROVIDER’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT.
2. SERVICE PROVIDER’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE MONTHLY RECURRING FEE AS STATED IN SUBSCRIBER’S APPLICATION.
3. Service Provider reserves the right to investigate any possible violations of this Agreement and it may gather information from the Subscriber, the complaining party, or any third party. Service Provider may, without incurring any liability, suspend Subscriber’s use of the Service as it deems appropriate and without notice. If Service Provider, at its own discretion, determines that a violation of this Agreement has occurred, it may terminate, temporarily or permanently, the Service or take other corrective action as it deems appropriate. Service Provider will fully cooperate with any court order requesting or directing it to disclose, among others, Subscriber’s identity in case Subscriber is found to have violated this Agreement or any law.
ARTICLE 13 Limitation of Liability and Remedies
1. Subscriber agrees to defend and hold Service Provider free, harmless and indemnified from and against any and all claims, demands, actions, causes of action, judgment, cost and reasonable attorney's fee and expenses of any nature for--- (a) any damage of any kind arising from or related to Subscriber’s use of the Service or by another party irrespective of whether Subscriber knew or has authorized such usage, (b) any damage to property or injury to or death of any person resulting from Subscriber’s use and operation of or malfunction of any equipment or power supply used for the Service, (c) any claims resulting from any action taken by Service Provider during or as a result of its investigations and/or from any action taken by it as a consequence of investigations conducted by it or by law enforcement authorities, and/or (d) any damage as a result of Subscriber’s acts or Subscriber’ failure to comply with the terms and conditions of this Agreement.
2. In no event shall Service Provider be liable for: (a) any of the circumstances enumerated in Clause 1 of this Article 17, (b) any unauthorized access by a third party to Subscriber’s network or data, (c) any error, omission or inaccuracy with respect to any information obtained or disclosed through the use of the Service, or for any damages which such errors may cause, or (f) any delay, interruption or failure to provide or restore the Service due to causes beyond Service Provider’s control or force majeure, etc.
ARTICLE 14 Assignment or Transfer of Service
1. Subscriber agrees that he/she will not, without Service Provider’s prior written consent: (a) allow any person to share in the use and benefits of the Service or of this Agreement, whether for consideration or not, (b) assign, transfer, mortgage or create any encumbrance on any of his/her rights under this Agreement and/or on any right, interest or benefit originating from it.
ARTICLE 15 Miscellaneous
1. This Agreement represents the entire understanding by and between Subscriber and Service Provider and supersedes all prior written and oral agreements and representations and will commence on the date of Service Provider’s acceptance of Subscriber’s signed Proposal Agreement Form and shall continue for the agreed Agreement Period unless earlier terminated.
2. Any failure by Service Provider to enforce this Agreement, for whatever reason, shall not necessarily be construed as a waiver of any right to do so at any time.
3. Service Provider and Subscriber agree that, if any portion of this Agreement is held invalid or unenforceable, that portion will be construed consistent with applicable law as nearly as possible, and the remaining portions will remain in full force and effect.
4. This Agreement shall be construed in accordance with the Philippine laws. In case of suit arising from this Agreement, Service Provider and Subscriber agree to submit to the appropriate courts in Davao City to the exclusion of all other courts. Subscriber agrees that in addition to the amount due and collectible, Subscriber shall pay an additional amount by way of damages and another amount by way of attorney’s fees and costs of suit.
5. Subscriber hereby acknowledges that he/she has read and understood all the terms and conditions herein stated and that he/she voluntarily entered into this Agreement with full knowledge and consent of everything that this Agreement contains.
