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TERMS AND CONDITIONS

FOR PARCEL DROP-OFF/COLLECTION SERVICES (S-DROP)

Last modified: 01 September 2024

These terms and conditions and any other terms and documents expressly incorporated herein (including, but not limited to, the Commercial Schedule), each as may be amended, supplemented, or replaced from time to time (together, the “Agreement”) govern Service Provider’s (as defined below) provision of the Services (as defined below) and access to the S-Drop Portal (the “Portal”, which shall include all related websites and applications provided by SPX) in connection with the parcel drop-off / first mile services facilitated by SPX (“S-Drop”).

This Agreement is entered into by and between you as the service provider (“Service Provider”, “you” or “your”) and SPX Philippines, Inc. and its Affiliates (“SPX”, “we”, “us” or “our”), and supersedes and replaces any terms and conditions and/or agreements that you may have previously agreed and/or executed with SPX in connection with the Services.

Service Provider’s opening an account in the Portal (the “Account”) and its continued use thereof shall mean that it consents unconditionally to the Agreement, and the obligations thereunder shall be binding on Service Provider and may be enforced by SPX against Service Provider, its directors, officers, proprietors, or employees, as the case may be, at any time. For avoidance of doubt, Service Provider may refer to a corporation or individual providing the Services to SPX.

Service Provider acknowledges and agrees that the Agreement: (a) sets forth the entire agreement between the parties with respect to the subject matter hereof, merges all discussions between them, and supersedes and replaces any and every other prior or contemporaneous agreement, understanding or negotiation, whether written or oral, that may have existed among the parties to the extent that any such agreement relates to the subject matter hereof (including, but not limited to, any Contract for Services or Contract for Provision of Parcel Drop-Off/Collection Services executed between the parties previously); and (b) shall apply to Service Provider’s provision of the Services in respect of any SPX Parcels (as defined below) that have already been collected by, and are still in the custody of, Service Provider.

A.        TERMS AND CONDITIONS FOR THE USE OF THE PORTAL

1. Service Provider hereby acknowledges that it (and all persons acting under its behalf) shall use the Portal solely to provide the Services to SPX (including parcel inbounding, inventory, and tracking) and for no other purpose. 

2. Service Provider acknowledges and agrees that: (a) SPX has the sole discretion in engaging Service Provider to provide the Services and granting Service Provider access to the Portal through the creation of an Account; and (b) SPX may for any reason, in its sole discretion and with or without notice or liability to Service Provider or any third party, immediately terminate or suspend Service Provider’s Account. Service Provider hereby agrees, warrants, and represents that it takes necessary precautionary measures to safeguard access to its Account in the Portal (including keeping passwords confidential and only using Service Provider’s Account credentials when logging in) and to ensure that all persons logging into the Portal under its Account are duly authorized by Service Provider. As such, neither Service Provider nor any persons acting or claiming on its behalf shall have any claim against SPX or its Affiliates for any action taken or liability incurred by anyone using Service Provider’s Account in the Portal, and Service Provider shall be fully responsible for all activities that occur using its Account. Furthermore, Service Provider shall be solidarily liable for any losses, claims, actions, expenses, and all other liabilities whatsoever that SPX or its Affiliates may sustain or incur in relation to Service Provider’s Account, including any unauthorized access and use thereof. 

3. SPX reserves the right to change, modify, suspend, or discontinue all or any part of the Portal at any time and for any reason, including, but not limited to, if SPX no longer has need of Service Provider’s Services. SPX may also impose limits on certain features or restrict Service Provider’s access to the entire or part of the Portal its sole discretion and without notice or liability.

4. By using or providing information on the Portal, Service Provider thereby consents to SPX's collection, use, disclosure, and/or processing of its data, including any Personal Data (as defined below). 

5.SPX grants Service Provider a limited and revocable license to access and use the Portal subject to the Agreement. All proprietary content, trademarks, service marks, brand names, logos, and other intellectual property (“Intellectual Property”) displayed in the Portal are the property of SPX. No right or licence is granted directly or indirectly to any party accessing the Portal to use or reproduce any Intellectual Property, and no party accessing the Portal shall claim any right, title, or interest therein. By using or accessing the Portal, Service Provider agrees to comply with the copyright, trademark, service mark, and all other Applicable Laws that protect the Intellectual Property in the Portal. Service Provider agrees not to copy, distribute, republish, transmit, publicly display, publicly perform, modify, adapt, rent, sell, or create derivative works of any portion of the Portal. Service Provider also may not, without SPX’s prior written consent, mirror or frame any part or whole of the contents of the Portal on any other server. In addition, Service Provider agrees that it will not use any robot, spider, or any other automatic device or manual process to monitor or copy the Portal’s content, without SPX’s prior written consent. 

B.        TERMS AND CONDITIONS FOR THE PROVISION OF THE SERVICES

1.         DEFINITION AND INTERPRETATION

1.1.      In this Agreement the following words will have the meanings assigned to them in this Clause, except where inconsistent with the context:

"Affiliate" means, with respect to an entity, any entity that Controls, is Controlled by, or is under common Control with, that entity, where "Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management, operating policies, or assets of that entity, whether by way of ownership of more than 50% of its voting or equity securities or assets, or by way of contract, management agreement, voting trust, or otherwise; provided that the term "Affiliates" shall include any variable interest entity regardless of whether any variable interest entity may be, or required to be, consolidated with that entity under generally accepted accounting principles;

"Applicable Law" means, with respect to any person, any and all: (a) laws, ordinances, or regulations, (b) codes, standards, rules, requirements, orders and criteria issued under any laws, ordinances or regulations, (c) rules of any securities exchange or equivalent and (d) any and all judgments, orders, writs, directives, authorisations, rulings, decisions, injunctions, decrees, assessments, settlement agreement, or awards of any governmental authority, in each case applicable to such person or its business or properties;

“Best Industry Practice” means the degree of skill, diligence, prudence and foresight which would ordinarily be expected to be observed by a highly skilled and experienced professional of international repute engaged in the same or similar type of undertaking as that of Service Provider under the same or similar circumstances;

“Business Day” means any day other than Saturdays, Sundays or public holidays in Philippines;

"Commercially Reasonable Efforts" means taking such steps and performing in such a manner as a well-managed company would undertake where such company was acting in a determined, prudent and reasonable manner to achieve the particular result for its own benefit;

“Confidential Information” means all confidential, non-public information and data, of any nature and in any  (whether written, visual, electronic or oral), that the Receiving Party and its Representatives receive from the Disclosing Party and its Representatives under this Agreement, including without limitation: (a) information relating to the Disclosing Party's and its Affiliates' business and business strategies, markets, customers, products (including new products and plans for new products, as well as marketing plans and materials), pricing and cost information, condition (financial or otherwise), operations, assets, liabilities, results of operations, cash flow and prospects, or employees, officers, contractors and agents, including, without limitation, technical, commercial, financial, accounting, legal and administrative information; (b) the Disclosing Party's position in any dispute in relation to this Agreement; and (c) any copies of Confidential Information and all information created or derived by the Receiving Party or its Representatives from the Confidential Information, provided that Confidential Information shall not include information that: (a) is already in the Receiving Party’s or its Representatives’ possession at the time of disclosure by the Disclosing Party or its Representatives; (b) is or becomes part of public knowledge other than as a result of any action or inaction of the Receiving Party or its Representatives in breach of the confidentiality provisions of this Agreement; (c) is obtained by the Receiving Party or its Representatives from a third party who did not obtain such information, directly or indirectly, from the Disclosing Party subject to any confidentiality obligation; or (d) is independently developed by the Receiving Party its Representatives without the use of or reference to the Confidential Information of the Disclosing Party;

“Data Protection Laws” means all Applicable Laws relating to the processing, privacy and security of Personal Information, including, without limitation, Republic Act No. 10173 or the Data Privacy Act of 2021, all DPA subsidiary legislation and requirements set out in any advisory or guidelines issued from time to time by the National Privacy Commission, and all other applicable international, regional, federal or national data protection laws, regulations and regulatory guidance, as may be amended or superseded from time to time.

“Force Majeure Event” means any action, event or occurrence outside the reasonable control of the Party in questions, including but not limited to, disease outbreak, epidemic, pandemic (including, without limitation, COVID-19 (Coronavirus)), war, the threat of imminent war, riots or other acts of civil disobedience, insurrection, acts of God, travel ban or restraints imposed by governments or any other supranational legal authority, or any other industrial and trade dispute, fire explosions, storms, floods, lightening, earthquakes, other natural calamities or the action of any governmental authority (other than any action of a governmental authority directed specifically to the affected party);

“Insolvency Event” means, in relation to a specified person, any of the following events: (i) a receiver or similar officer being appointed over all or a material part of that person’s assets or undertaking; (ii) the passing of a resolution for winding-up (other than a winding-up for the purpose of, or in connection with, any solvent amalgamation or reconstruction) or a court making an order to that effect or a court making an order for administration (or any equivalent order in any jurisdiction); (iii) entry into any composition or arrangement with that person’s creditors (other than relating to a solvent restructuring); (iv) ceasing to carry on business; (v) being unable to pay that person’s debts as they become due in the ordinary course of business; or (vi) the person causing or being subject to any event with respect to it which, under Applicable Law, has an analogues effect to any of the events specified in sub-paragraphs (i) – (v) above;

“Intellectual Property Rights” means all copyright, patents, utility innovations, trade marks and service marks, geographical indications, domain names, layout design rights, registered designs, design rights, database rights, trade or business names, rights protecting trade secrets and confidential information, rights protecting goodwill and reputation, and all other similar or corresponding proprietary rights and all applications for the same, whether presently existing or created in the future, anywhere in the world, whether registered or not, and all benefits, privileges, rights to sue, recover damages and obtain relief or other remedies for any past, current or future infringement, misappropriation or violation of any of the foregoing rights;

“Personal Data” means any information relating to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, online identifier or by one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that person (including Sensitive Personal Information);

“Regulator” means any regulatory or quasi-regulatory, administrative or taxation body or court or listing authority which regulates or governs either Party, including any supervisory authority or regulator for the purposes of the Data Protection Laws and/or matters concerning electronic communications; and

“Representatives” means a Party’s Affiliates, and its and its Affiliates’ respective officers, directors, employees, advisers, agents and subcontractors.

1.2.      In this Agreement, unless the context otherwise requires: (a), any reference to a "Clause", unless the context otherwise requires, is a reference to a clause in this Agreement, any reference to a “Paragraph” or “Section”, unless the context otherwise requires, is a reference to a paragraph or section in this Agreement; (b) a reference to any document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time; (c) any reference to a statute, statutory provision or subordinate legislation shall, except where the context otherwise requires, be construed as referring to such legislation as amended and in force from time to time and to any legislation which re-enacts or consolidates (with or without modification) any such legislation; (d) any reference to one gender includes the other gender and the neuter; (e) any reference to day, month and year means a calendar day, a calendar month and a calendar year, respectively; (f) words in the singular include the plural and vice versa and words in one gender include any other gender; (g) a reference to any Party includes its successors in title and permitted assigns, a reference to a "person" includes any individual firm, body corporate, association or partnership, government or state (whether or not having a separate legal personality); (h) any undertaking under this Agreement not to do any act or thing will be deemed to include an undertaking not to permit or suffer the doing of that act or things; (i) the heading of clauses is for convenience only and will not affect the interpretation of this Agreement; (j) the word "includes" in any form is not a word of limitation; and (k) a reference to “Php”, “PHP” or “peso” is to the lawful currency of the Philippines.

2.         TERM

2.1.      This Agreement commences upon Service Provider’s acceptance and shall continue until terminated in accordance with the provisions of this Agreement (the “Term”).

3.         SERVICES

3.1.      Service Provider shall provide the services as set forth in the Commercial Schedule (“Services”), which shall be incorporated into and form part of this Agreement. To the extent of any conflict between the provisions of the Commercial Schedule and the rest of this Agreement, the Commercial Schedule shall prevail in respect of such conflict.

3.2.      The Services shall: (a) include: (i) the services, tasks, functions and responsibilities set forth in the Agreement; and (ii) such other tasks, services, functions, activities, and obligations which are not specified in the Agreement but which are reasonably required for Service Provider’s performance of the Services; and (b) (without prejudice to any specific performance standards set out in this Agreement), be performed: (i) to at least the same degree of accuracy, completeness, and quality provided by, and with the same level of care, skill, and diligence used by, skilled and experienced suppliers of international repute engaged in the same or similar type of undertaking as that of Service Provider; (X) using skilled, experienced, and qualified staff; (ii) in accordance with the terms of this Agreement and Applicable Law; and (iii) to meet or exceed the Service Levels, specifications, requirements, additional terms, and timelines as set out in this Agreement. Service Provider shall perform and provide any and all that is necessary to carry out the Services, at the place of work agreed upon with SPX, including, without any additional charge, fee, or cost to SPX, manpower, supervision and management, tools, equipment, supplies, and other materials necessary to complete the same.

3.3.      SPX may purchase the same or similar services as those purchased under the Agreement from anyone it chooses.  Further, the parties agree that no minimum purchase commitment exists, and SPX may avail of Service Provider’s Services at its discretion.

4.         SERVICE LEVELS AND SERVICE CREDITS

4.1.      Service Provider shall provide the Services in compliance with this Agreement and so as to meet or exceed any applicable service level standards or similar requirements specified in this Agreement (including the Commercial Schedule) (the “Service Levels”).

4.2.      Service Provider shall provide all such information as SPX may reasonably require to enable it to verify that the Services are provided in accordance with the relevant Service Levels (if applicable).

4.3.      If the Service Levels are not met or if Service Provider otherwise fails to perform its obligations under the Agreement, then without prejudice to SPX’s rights under the Agreement or at law, Service Provider shall: (a) investigate, assemble, and preserve pertinent information with respect to the cause(s) of the problem, including performing a root cause analysis of the problem; (b) advise SPX of the status of remedial efforts being undertaken (and which Service Provider shall undertake) with respect to such problem; (c) minimize the impact of and correct the problem and thereafter recommence performance in accordance with and so as to meet or exceed the Service Levels as soon as possible; (d) take appropriate preventative measures so that the problem does not reoccur; and (e) permit SPX and/or its nominated Representative to remedy the failure, if Service Provider has not done so within a reasonable time, in which case Service Provider will indemnify SPX in respect of any costs and expenses incurred by SPX in doing so.

4.4.      If a Service Level is not achieved or met, service credits will accrue as set out in the Commercial Schedule and shall either (at SPX’s sole discretion) be applied against the first invoice submitted following that month or be paid thirty (30) days after the last day of the month in which the relevant service credits accrued. Where there is an outstanding billing invoice in respect of the Fees as of the date the payment of service credits is due, SPX may offset the relevant service credits against the Fees (as defined below) owed by Service Provider and any balance of service credits shall be paid to SPX by Service Provider on the last day of the month in which the relevant service credits accrued.

4.5.      Service credits under this Agreement are a price adjustment mechanism to reflect the actual (reduced) quality of the Services provided to SPX and do not represent an estimate of the losses or damages SPX may suffer as a result of the Service Level failure. Crediting any applicable service credits is without prejudice to the right of SPX to claim for the full compensation of the losses or damages actually suffered as a result of the Service Level failure and is without prejudice to any other rights and remedies under the Agreement or Applicable Law.

4.6.      Notwithstanding any other right or remedy in this Agreement, in the event that SPX considers that Service Provider has either failed to provide the Services in accordance with the applicable Service Levels on a consistent basis or has failed to satisfy a Service Level which has a material adverse effect on SPX’s ability to comply with its obligations, applicable senior personnel of Service Provider shall meet with relevant senior personnel of SPX to discuss SPX’s concerns, explain the reasons for the potential failures and the steps being taken to ensure that any failures do not continue or re-occur. Parties shall co-operate to agree on any appropriate further actions and obligations Service Provider shall adhere to (e.g., the implementation of an appropriate remediation plan or similar) as are reasonable to ensure that any failures do not continue and/or any risks of failure are mitigated.

4.7.      Notwithstanding any other provision of the Agreement, Service Provider acknowledges and agrees that SPX’s records (“SPX’s Records”) shall be the sole, final, and conclusive evidence of Service Provider’s performance under the Agreement and any and all Fees payable and shall be binding on Service Provider for all purposes whatsoever in connection with the Agreement.

5.         SERVICE PROVIDER’S OBLIGATIONS

5.1.      Service Provider shall promptly notify SPX if it becomes aware of any actual or potential business, professional, personal, or other interest that would conflict in any manner or degree with the performance of its obligations under the Agreement.

5.2.      Service Provider shall perform all its obligations under the Agreement in compliance with all export control or economic sanctions laws, regulations and orders, including Applicable Laws governing the import and export of computer hardware, software, and encryption technology, and Service Provider agrees that neither Service Provider, nor any of Service Provider’s Affiliate, Sub-Contractor (as defined below), nor any third party or other person who will be involved in the performance of Services under the Agreement or will receive or process payment for the Services is the target of any of sanctions laws, regulations, or orders administered by the United Nations, the United States of America, the United Kingdom, and the European Union and its Member States (collectively, the “Sanctions Laws”).

5.3.      Service Provider will always minimise any disruption to SPX’s normal business operations. Service Provider agrees to comply with SPX’s reasonable instructions in connection with the provision of Services which is incorporated into the Agreement by reference, and as SPX may update and communicate to Service Provider in writing from time to time.

5.4.      Service Provider will maintain its own on-going training process to prevent any breach of Service Provider’s obligations by Service Provider’s Representatives involved in providing the Services.

5.5.      If Service Provider provides SPX with any Personal Data, Service Provider shall ensure that it has taken all steps required to lawfully disclose the Personal Data to SPX for the purposes anticipated by the Agreement, including, where necessary under Data Protection Laws, by obtaining express consent to the processing, collection, access, use, maintenance, and/or disclosure of such Personal Data.

5.6.      Service Provider will maintain readily retrievable written or electronic records related to the Services provided, including all documentation related to the Fees (as defined below) and any expenses charged, Personnel (as defined below) assigned, systems information, and other applicable records, for at least five (5) years after completion or termination of the Services to which they pertain, or for so long as required by Applicable Laws. At SPX’s reasonable request, Service Provider will provide reports to SPX relative to the Agreement.

5.7.      Service Provider shall (at its cost) comply with all Applicable Laws (including any changes to such Applicable Laws) that govern the performance of each of its obligations under the Agreement, including the provision of the Services.  Each party shall maintain such records as are necessary pursuant to such Applicable Laws and shall promptly on request make them available for inspection by the other party, its designees and/or any Regulator.

5.8.      Service Provider shall cooperate fully with any Regulator on all matters relating to the performance of Service Provider’s obligations under the Agreement and shall further provide all information necessary to a Regulator on any such matter upon request, including where requested by SPX and/or its designees.

5.9.      When providing the Services, Service Provider shall adhere to the requirements set forth in SPX’s guidelines and policies that are notified to Service Provider from time to time (including through the Commercial Schedule) (“SPX Policies”).

6.         FEES; INVOICING; TAX.

6.1.      Fees.

6.1.1.   For and in consideration of the faithful performance by Service Provider of the Services, SPX shall pay Service Provider the fees (“Fees”) calculated in accordance with the rates table set forth in the Commercial Schedule (“Rates”).

6.1.2.   During the Term, SPX shall continue to review the Fees and/or Rates. If it is determined in good faith by SPX in connection with any such review that the Fees and/or Rates warrant adjustment, then, SPX, at its sole and exclusive discretion, could impose new Fees and/or Rates with at least thirty (30) days’ written notice Service Provider.

6.1.3.   Service Provider acknowledges and agrees that other than the Fees, no other fees, royalties, handling fees, payments, amounts, charges, or consideration of any kind will be due to Service Provider or any third party for SPX’s receipt of the Services.

6.2.      Invoicing/payment.

6.2.1.   Service Provider shall tabulate the total Fees accumulated for the immediately preceding month and provide SPX such records in writing (“Reconciliation Report”) for SPX’s approval before issuing a billing invoice to SPX, which shall not be later than five (5) Business Days from the beginning of each month.

6.2.2.   Service Provider shall ensure that each billing invoice is complete, accurate, and conforms to SPX’s requirements (as set out in this Agreement and notified to Service Provider from time to time) and shall constitute a valid Bureau of Internal Revenue- (“BIR”)-registered billing invoice (“Valid Invoice”). Service Provider shall ensure that details provided in the Valid Invoices are compliant with Section 113 of the Philippine Tax Code, as amended. Failure of Service Provider to provide Valid Invoices in the prescribed form and within the prescribed timeline shall be regarded as a material breach of the Agreement by Service Provider. Service Provider shall reflect the (a) total number of parcels of SPX’s customers, i.e., sellers of goods in the Shopee platform (https://shopee.ph/) (“SPX Customer”), that have been successfully received and stored by Service Provider, and thereafter collected by SPX, at the designated warehouse or place of storage mutually agreed upon by the Parties in writing (the “SPX Parcels”), for the relevant month, (b) the corresponding serial numbers of such processed SPX Parcels, (c) the total Fees, less any service credits, accumulated by SPX for the relevant month pursuant to Clauses 4.4 and 4.5; and (d) the value-added tax (“VAT”) and withholding taxes due, if any.

6.2.3.   Service Provider shall have ninety (90) days from date of handover of SPX Parcels to SPX to bill in respect of the Fees. Failure of Service Provider to include in a Valid Invoice any completed receipt, storage and handover of SPX Parcels to SPX within the stipulated ninety- (90)-day period shall automatically result in a forfeiture of its right to claim such unbilled amount from SPX.

6.2.4.   SPX may withhold payment of Fees that SPX disputes in good faith (or, if the disputed Fees have already been paid, then SPX may withhold an equal amount from a later payment), including disputes in respect of (a) any discrepancy between the Reconciliation Report and associated Valid Invoice, or (b) the transaction was not invoiced within ninety (90) days from the date of handover of SPX Parcels to SPX as provided in Clause 6.2.3. If SPX withholds any such amount, SPX will promptly notify Service Provider, in writing, that it is disputing such charges (and in the case of withheld payments, prior to the due date of payment) and the parties will promptly address such dispute.

6.2.5.   SPX shall pay any undisputed Fees within thirty (30) Business Days from receipt of Valid Invoice via bank transfer to Service Provider’s designated bank account (“Settlement Account”). For the purpose of remitting the Fees, Service Provider shall open an account with SeaBank Philippines, Inc. (A Rural Bank) (“SeaBank”) and designate the same as the Settlement Account in the Portal. In the event that Service Provider opts to designate a non-SeaBank account as the Settlement Account, any costs, fees, and charges for disbursement to such designated non-SeaBank account shall be borne solely and exclusively by Service Provider. Service Provider shall ensure that the Settlement Account is in Service Provider’s name or shall provide / execute such further documentation as required by SPX for verification and confirmation purposes.

Any change in the Settlement Account shall be effective thirty (30) days from receipt and due acknowledgment in writing by SPX of the written notice of such change from Service Provider. In the event of any bank-related penalties due to inaccurate and/or invalid Settlement Account details, such penalties shall be solely borne by Service Provider. For the avoidance of doubt, Service Provider shall ensure that the Settlement Account is accurate and valid for the purposes of SPX making payment for the Fees to Service Provider.

6.2.6.   The parties acknowledge and agree that SPX shall have the right to set off and apply any sum due or owing by SPX or its Affiliates to Service Provider or its Affiliates under this Agreement against any amounts of debts, outstanding claims, demands, loss or damages, and/or any amounts due and owing by Service Provider and/or its Affiliates (as the case may be) to SPX and/or its Affiliates under the Agreement or any other dealings, agreements, contracts, or debit notes.

6.2.7.   Service Provider shall issue BIR-registered official receipts (“Valid Official Receipts”) immediately upon receipt of the Fees.

6.3.      Tax.

6.3.1.   All Fees and other amounts (including reimbursements) due under the Agreement are inclusive of VAT and subject to applicable withholding taxes.

6.3.2.   For the purpose of the Agreement, “Tax” means any taxes, including, but not limited to, service tax, consumption tax, value-added tax, goods-and-services tax, business tax, and any similar local sales tax, withholding tax, indirect tax, or corporate income tax.

6.3.3.   Each party shall be responsible for the payment of its own Taxes arising from the Agreement as required under Applicable Law in the relevant tax jurisdictions. Notwithstanding any other provision in the Agreement, should SPX have any withholding obligation with respect to any payment due pursuant to the Agreement, such payments are considered to be inclusive of all Taxes, and SPX shall be entitled to deduct and withhold from such payment any Taxes required to be deducted and withheld with respect to the making of such payment under any provision of Applicable Law. To the extent that amounts are so withheld and deducted pursuant to this Clause, such withheld amounts shall be treated as having been paid to such Regulator in respect of which such deduction and withholding was made and SPX shall have no further obligation to pay the equivalent of such withheld amounts, or any part thereof, to Service Provider. SPX will furnish to Service Provider copies of receipts or other government certifications evidencing all Taxes withheld from such payment on or before the twentieth (20th) day of the month following the quarter when the withholding is made. The parties shall cooperate and endeavour to comply with all applicable documentation and registration requirements so as to minimize the amount of withholding Tax imposed, if any.

7.         SERVICE PROVIDER PERSONNEL

7.1.      Assignment of Personnel. Service Provider shall assign its employees and other personnel (“Personnel”), if any, to perform such tasks and services as are necessary to provide the Services. Service Provider shall provide SPX with such information about each Personnel as SPX requests from time to time and shall be responsible for training and managing the Personnel.

7.2.      Reporting. Service Provider shall provide reports to SPX upon request (with the format, details, and form to be determined by SPX from time to time) indicating Service Provider’s performance of the Services and adherence to the Service Levels, and shall report any issues to SPX (including, but not limited to, delays, damage, or loss of shipments) within twenty-four (24) hours and provide such details and materials as requested by SPX.

7.3.      Personnel Requirements. Service Provider shall be responsible for selecting, engaging, and ensuring that each Personnel:

7.3.1.   has the right to work in the Philippines under all Applicable Law;

7.3.2.   is over eighteen (18) years of age;

7.3.3.   is either a Philippines citizen or permanent resident, or holds a valid employment pass, work permit, or other work visa entitling such Personnel to carry out the Services;

7.3.4.   are qualified and suitable to provide the Services;

7.3.5.   remains an employee or contractor of Service Provider throughout their assignment to provide the Services; and

7.3.6.   is not a Subcontractor (unless pre-approved in writing by SPX).

7.4.      Responsibility for Personnel. Service Provider acknowledges and agrees that:

7.4.1.   each Personnel shall be deemed to be an employee of the Service Provider for the purposes of this Agreement, and Service Provider will remain liable to SPX for the acts and omissions of any Personnel as if they were the acts or omissions of Service Provider. Service Provider shall also have appropriate agreements with each Personnel, and shall ensure that each Personnel is aware of all relevant obligations under this Agreement. In this Agreement, unless the context requires otherwise, references to Service Provider will be deemed to include the Personnel where such reference relates to the Personnel providing the Services;

7.4.2.   the Personnel shall at all times remain the employees or contractors of Service Provider and:

7.4.2.1.            Service Provider shall be solely responsible for all payments of wages, statutory contributions, leave, and other employment rights and benefits to each Personnel, and in no event shall SPX have any liability for the Personnel, including for any claims made by any Personnel in connection with the provision of the Services; and

7.4.2.2.            Service Provider shall have sole responsibility for the Personnel under Applicable Law, including labour and other laws pertaining to remuneration, overtime, bonus, management, dismissal, safety, insurance, health and safety.

7.5.      Service Provider’s Other Responsibilities. In addition to the other provisions of this Clause, Service Provider further acknowledges and agrees to the following:

7.5.1.   Qualifications of the Personnel.  It shall be the obligation of Service Provider to ensure that all of the Personnel assigned to perform any part of the Services are qualified and well-trained in all their tasks relative to the Services. 

7.5.2.   Compensation and Other Benefits. Service Provider shall be solely responsible for the payment of all salaries/wages, allowances, overtime pay, premium pay for Sunday, holiday or rest day work, mandated government increases in wages, retrenchment pay, and completion bonus where applicable, and any and all remuneration and employment benefits that may now or hereinafter accrue to the Personnel assigned to perform the Services by provision of law, contract or employment practice.

7.5.3.   Social Welfare Benefits. Service Provider shall be responsible for the enrolment of the Personnel assigned to perform the Services with and the payment/remittance of the proper contributions to the Social Security System (“SSS”), Home Development Mutual Fund (“Pag-IBIG”), and Philippine Health Insurance Corporation (“PhilHealth”). Proof of payment or remittance of such contributions shall be immediately furnished by Service Provider to SPX upon the latter’s demand.

7.5.4.   Minimum Labor Standards.  Service Provider shall ensure that the Personnel assigned to perform the Services are entitled to at least the minimum labor standards prescribed by law including, but not limited to, security of tenure and right to self-organization. Service Provider shall likewise undertake to comply with all the requirements, rules, and regulations on occupational health and safety standards and procedures set and enforced by the Department of Labor and Employment (“DOLE”) and its attached agencies.

7.5.5.   Occupational Safety and Health. Service Provider shall oversee the management of the occupational safety and health program for the Personnel as required by Applicable Law and shall be responsible for all costs of such program.

7.6.      Personnel Replacement/Transfer/Reassignment.

7.6.1.   Service Provider shall be responsible for all costs and expenses related to the replacement of its Personnel as may be needed to perform the Services.

8.         SUBCONTRACTING

8.1.      Service Provider shall not subcontract the Services without SPX’s prior written approval. If Service Provider subcontracts any of its obligations under this Agreement to a third party (“Subcontractor”), then Service Provider will remain liable to SPX for the acts and omissions of any Subcontractor as if they were the acts or omissions of Service Provider, and such subcontracting will not relieve Service Provider of its obligation to perform the Services under the Agreement.

9.         PROVISION OF SUPPORT BY SPX

9.1.      In the event that Service Provider does not possess the necessary equipment and facilities (as advised by SPX in writing) required for the performance of the Services in the standard and of the quality required under this Agreement prior to the commencement of the Services (the “Facilities”), Service Provider shall immediately inform SPX in writing of such fact, and SPX may, at its sole and absolute discretion, use Commercially Reasonable Efforts to provide Service Provider the Facilities.

9.2.      In the event that SPX agrees to provide Service Provider the Facilities, such agreement shall not be construed as granting Service Provider any right, title, or interest in and to the Facilities other than the right to utilize the same for the performance of the Services for SPX. Service Provider hereby acknowledges and agrees that: (a) SPX owns all rights, title, and interests, in and to all the Facilities; (b) it shall not at any time acquire any right, title, or interest in or to the Facilities, or any part thereof; and (c) it shall not at any time seek to register, assert, or claim any right, title, or interest in or to the Facilities, or any part thereof.

10.       INTELLECTUAL PROPERTY RIGHTS

10.1.    Service Provider acknowledges and agrees that: (a) SPX owns all rights, title, and interests, including all Intellectual Property Rights, in and to all materials and content provided by SPX to Service Provider for the purposes of the Agreement, including the Portal and any other software or applications provided by SPX and its Affiliates (including any customizations, enhancements, changes or derivatives thereof) (collectively, “SPX IP”); (b) it shall not at any time acquire any right, title, or interest in or to the SPX IP, or any part thereof; and (c) it shall not at any time seek to register, assert or claim any right, title or interest in or to the SPX IP, or any part thereof.

10.2.    Service Provider hereby grants to SPX a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, and royalty-free licence to use any materials (including any documentation or other written materials in whatever form) provided by Service Provider to SPX in connection with the performance of the Services.

10.3.    Neither party will use the other party's name, trademarks, logos, or Intellectual Property Rights for any promotional, marketing, or advertising purposes. Any and all advertisements, marketing materials, and similar as well as press releases displaying or referencing the name or logo of the parties need to be mutually approved by the parties in writing prior to release.

11.       INSURANCE AND BOND

11.1     The Service Provider shall at all times during the Term possess and maintain in full force and effect the types of insurance coverage set forth below in such amounts sufficient to cover any claim or liability during the Term and acceptable to SPX:

11.1.1. Commercial general liability insurance for bodily injury and property damage;

11.1.2. General public liability and property damage insurance; and

11.1.3. Worker’s compensation insurance in accordance with Applicable Law.

11.2     At the request of SPX, Service Provider shall deliver to SPX the certificates of any of the above insurance.

12.       TERMINATION

12.1.    SPX may terminate the engagement of Service Provider to provide the Services and the Agreement at any time and without cause by providing Service Provider with prior written notice of thirty (30) days.

12.2.    SPX may also, without prejudice to its other rights and obligations under the Agreement, terminate the engagement of Service Provider to provide the Services and the Agreement at any time with immediate effect upon sending a written termination notice to Service Provider if:

12.1.1. Service Provider commits a material breach of any of its obligations, representations, or warranties under the Agreement and fails to remedy that breach within fourteen (14) Business Days after being notified in writing by SPX to do so;

12.1.2. an Insolvency Event occurs with respect to Service Provider; or

12.1.3. any Force Majeure Event fulfilling the provisions of Clause 21 continues for a period of thirty (30) consecutive days or more.

12.3.    The termination shall be without prejudice to the parties’ rights and liabilities that may have accrued prior to such expiration or termination, unless waived in writing by the party enjoying the right.

12.4.    Upon termination, Service Provider shall immediately refund SPX any Fees that SPX has prepaid under the Agreement and for which the Services have not been provided by Service Provider to the absolute satisfaction of SPX at the termination date.

12.5.    The expiry or termination Service Provider’s engagement shall not affect the coming into force or the continuance in force of any provision of the Agreement which is expressly or by implication intended to come into force or continue in force on or after expiry or termination.

13.       REPRESENTATION AND WARRANTIES

13.1.    Service Provider represents, warrants, and undertakes to SPX that:

13.1.1. it is duly organized, validly existing, and in good standing under the laws of the jurisdiction where it is organized, with full power and authority to carry on its business as now being conducted;

13.1.2. it is not the subject of an Insolvency Event and is not aware of any such risk;

13.1.3. it has the full capacity, power, and authority to enter into and perform its obligations under the Agreement, which obligations are valid and binding obligations enforceable against it in accordance with its terms;

13.1.4. the performance by Service Provider of its obligations under the Agreement will not result in any breach of any: (a) any provision of its memorandum and articles of association, certificate of incorporation, bylaws, or similar organizational documents; (b) any contract to which it is a party or by which it is bound; or (c) judgement or court order to which it is bound;

13.1.5. as far as it is aware, there is no undisclosed proceeding, pending or threatened event, matter, occurrence or circumstance which challenges or may have a material adverse impact on its ability to perform its obligations under the Agreement;

13.1.6. (a) it has all rights to agree to the Agreement and to grant to SPX all rights and assignments granted under the Agreement, free of any encumbrances that may conflict with SPX’s full enjoyment thereof; and (b) its performance of its obligations under the Agreement and SPX’s receipt and use of the Services will not infringe on the rights (including Intellectual Property Rights) of any third party;

13.1.7. it will not violate any Applicable Law (including any applicable Data Protection Laws) in its performance of its obligations under the Agreement;

13.1.8. it shall obtain and retain throughout the Term all third party and regulatory approvals, licences, consents, and rights necessary to perform its obligations under the Agreement, including, but not limited to, all the necessary business permits and licenses to operate to transact with SPX (such as BIR Certificate of Registration (BIR Form No. 2303), Business / Mayor’s Permit, Department of Trade and Industry/Securities and Exchange Commission Certification of Registration, and BIR-registered official receipt) and shall maintain the validity of the said permits and licenses throughout the Term;

13.1.9. SPX has delivered or made available to Service Provider all information and documents which Service Provider deems necessary to perform its obligations under the Agreement;

13.1.10.           it has the necessary experience, expertise and technical and operational resources and abilities to perform its obligations under the Agreement, and it has, and will at all relevant times have, the appropriate organizational structure and an adequate number of personnel to carry out the obligations contemplated in the Agreement reliably and professionally;

13.1.11.           it is financially sound and fiscally capable of performing its obligations under the Agreement, and has sufficient capital or investment in the form of, among others, tools, equipment, machineries, and work premises, to provide the Services and fulfil its obligations under the Agreement, and shall provide SPX proof and documentation to support the foregoing upon request;

13.1.12.           it will inform SPX promptly of the existence of any event, matter, occurrence, or circumstance which may have an adverse effect upon Service Provider’s ability to fulfil its obligations under the Agreement;

13.1.13.           all information provided to SPX are true, accurate, and not misleading;

13.1.14.           the Services will be free of all liens and encumbrances and there are no claims pending or threatened that could have an adverse effect on Service Provider’s ability to perform its obligations under the Agreement; and

13.1.15.           all materials that will be used in the Services are and will be of high quality and satisfy all the specifications of SPX and should it become necessary for Service Provider to use materials other than those specified, it shall first obtain the prior written and signed approval of SPX before incorporating said substitute materials in the Services.

14.       INDEMNIFICATION

14.1.    Service Provider (“Indemnifying Party”) will defend, indemnify and hold harmless SPX (“Indemnified Party”) and its Affiliates, and its and their respective officers, directors, employees, subcontractors and agents (collectively, the “Indemnitees”) from and against any and all losses, liabilities, damages, fines, judgments, settlements, costs, expenses, and fees (including reasonable and justified attorney’s fees), whether foreseeable or not, (“Losses”) directly resulting from any third party claims, investigations, legal or administrative action, litigation or arbitrations or demands (collectively, “Third Party Claims”) to the extent arising out of or relating to:

14.1.1. any actual breach of any of Service Provider’s representations, warranties, covenants, or obligations under the Agreement;

14.1.2. any wilful or negligent act or omission of Service Provider, or, where applicable, any of its officers, employees or, agents in relation to the performance of Service Provider’s obligations under the Agreement;

14.1.3. any breach of Applicable Law by Service Provider in connection with the Agreement;

14.1.4. any injury or damage caused by the Services or by Service Provider to SPX’s or its Representatives’ personnel or property;

14.1.5. the employment, engagement or replacement / transfer / reassignment of any Personnel by Service Provider, as well as any breach of Clause 7 and for any employment related claim or action taken by a Personnel against SPX, which shall include any and all demands, claims and/or judgments for unpaid wages, allowances and other employee benefits as well as for claims and liabilities for non-payment of SSS, PhilHealth or Pag-IBIG contributions, including claims and judgments of labor-only contracting and regularization and their consequences; and

14.1.6. any breach, act, omission, or negligence by Service Provider, its Personnel, Subcontractors or other Representatives, relating to the handling of Personal Data or the exercise by a data subject of any of its data privacy rights under applicable Data Protection Laws, which may result in SPX being in breach of the applicable Data Protection Laws.

14.2.    Indemnified Party will notify Indemnifying Party in a timely manner in writing that it seeks indemnification with specific reference to the Third-Party Claim for which such indemnification is sought. A failure by Indemnified Party to provide such notice or information will not impair its right to indemnification hereunder except to the extent that such failure has materially prejudiced or materially delayed Indemnifying Party in the defence of the Third-Party Claim. Indemnifying Party will have the sole right to control the investigation, defence and settlement of each such Third Party Claim, provided that Indemnifying Party must obtain Indemnified Party’s prior written approval for the settlement of any such Third Party Claim (unless such settlement provides for the full and final release of Indemnified Party, does not involve the payment of any monies or admission of any wrongdoing by Indemnified Party, and does not require any action or inaction by Indemnified Party). Indemnified Party will have the right to participate in the defence and settlement of such Third-Party Claim being defended by the Indemnifying Party through separate counsel, at Indemnified Party’s sole expense.

15.       LIMITATION OF LIABILITY

15.1.    Nothing in this Agreement (including this Clause) shall exclude or restrict either party's liability: (a) for death or personal injury resulting from the negligence of that party or of its employees; (b) for fraud or fraudulent misrepresentation; (c) under its obligations to provide an indemnity under the Agreement; (d) for breach of Clause 16; (e) or for any other matter that may not otherwise be limited or excluded under Applicable Law.

15.2.    Subject to Clause 15.1, under no circumstances shall either party be liable to the other party for any: (a) indirect, incidental, consequential, punitive, or special damages whatsoever; or (b) loss of profits, loss of business, loss of opportunity, or loss of goodwill, arising out of or in connection with the Agreement, whether based on breach of contract, tort (including, without limitation, negligence), misrepresentation, under statute or otherwise, and whether or not such party has been advised of the possibility of such damage.

15.3.    Subject to Clauses 15.1 and 15.2, under no circumstances shall SPX’s total liability towards Service Provider in respect of all claims arising out of or related to the Agreement, regardless of the forum and regardless of whether any action or claim is based on contract, tort (including, without limitation, negligence), misrepresentation, under statute or otherwise, exceed the total Fees actually paid by SPX to Service Provider in the last six (6) months prior to the event giving rise to the liability.

16.       CONFIDENTIALITY

16.1.    The provisions of this Clause shall supersede and replace any non-disclosure agreements relating to the same subject matter previously entered into between the parties, if any.

16.2.    The party receiving Confidential Information (“Receiving Party”) from the other party (the “Disclosing Party”) shall: (a) keep the Confidential Information strictly confidential and shall not, without the Disclosing Party’s prior written consent, disclose any Confidential Information, in whole or in part, except as permitted by this Clause; (b) employ all reasonable measures to protect the Confidential Information from unauthorized or inadvertent disclosure, including measures no less protective than those measures that the Receiving Party employs to protect its own information; (c) not use or copy, or authorise anyone to use or copy, the Confidential Information for any purpose other than the performance of the Receiving Party’s obligations or the exercise of its rights under this Agreement; and (d) promptly notify the Disclosing Party of any suspected or actual unauthorised use or disclosure of the Confidential Information.

16.3.    The Receiving Party may disclose the Confidential Information to its Representatives only to the extent and provided that such persons: (a) have a need to know the Confidential Information in connection with this Agreement; (b) are obligated to maintain the confidentiality of the Confidential Information on terms that are substantially similar to this Clause.  The Receiving Party shall be responsible for any breach of this Clause by any of its Representatives.

16.4.    Upon termination of Service Provider’s engagement to provide the Services, or earlier upon the Disclosing Party’s written request, the Receiving Party shall: (a) (and shall ensure that its Representatives shall) promptly return to Disclosing Party or destroy or expunge all copies of Confidential Information; and (b) certify to the Disclosing Party in writing signed by an authorized representative of its compliance with sub-clause (a), provided that the Receiving Party shall be entitled to retain such copies of the Confidential Information as is required by Applicable Law or its bona fide internal compliance or document retention policies on the basis that the confidentiality obligations in this Clause shall continue to apply.

16.5.    In the event that Receiving Party or any of its Representatives becomes legally compelled by or is requested by any competent authority, regulatory agency, stock exchange or Applicable Law to disclose any of the Confidential Information, the Receiving Party shall: (a) first provide written notice to the Disclosing Party and assist the Disclosing Party in seeking a protective order or other appropriate remedy; or (b) to the extent it is legally prevented from satisfying sub-paragraph (a) use Commercially Reasonable Efforts to limit the disclosure and obtain assurances from the disclosee as to the confidentiality and use of the Confidential Information, and provide written notice to the Disclosing Party when it is legally permitted to do so.

16.6.    Service Provider: (a) shall not make any public announcements relating to its relationship with SPX or its provision of the Services to SPX without the prior written consent of SPX; and (b) acknowledges and agrees that this Clause shall be enforceable by SPX and its Affiliates.

16.7.    The Receiving Party acknowledges and agrees that damages alone would not be an adequate remedy for a breach of this Clause and that the Disclosing Party shall be entitled to seek the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach.

17.       SPX PARCELS OWNERSHIP AND RESTRICTIONS

17.1.    Ownership, whether legal or beneficial, of SPX Parcels shall at no point in time be considered to have transferred over to Service Provider. Notwithstanding any other provision of the Agreement, but except as otherwise expressly provided in a separate written agreement that is not, by its terms, superseded by the Agreement, title to all SPX Parcels or other materials that are received, handled, stored, or otherwise held in the custody of Service Provider on behalf of SPX pursuant to the Agreement, shall at all times remain with SPX, and SPX shall at all times be the owner of record of such SPX Parcels.

17.2.    SPX agrees and acknowledges that, to the best of its knowledge, in no event shall, any of the SPX Parcels contain any harmful, dangerous, illegal, controlled, unlawful, forbidden, or objectionable material (“Restricted Item”). Any Restricted Item tendered to Service Provider may be refused and Service Provider shall immediately notify SPX in writing of such refusal.

17.3.    Further, where applicable, any SPX Parcels to be received and stored with Service Provider under the Agreement shall be in accordance with the specifications listed in the Commercial Schedule.

18.       LIABILITY FOR LOST/DAMAGED SPX PARCELS AND ITS CLAIMS PROCEDURE

18.1.    If the SPX Parcels received, handled, and/or stored by Service Provider through the use of its Services, if any, (a) are not handed over to SPX for any reason; (b) are not handed over to SPX in the same condition as they were received; or (c) are not handed over to SPX in a mutually agreed condition, Service Provider, unless explicitly waived by SPX, shall be fully liable and responsible for the related damage and/or loss.

18.2.    Pursuant to Clause 18.1, any claims for related damages and/or losses shall be based on the listing price of each SPX Parcel. Once a claim has been raised in good faith with Service Provider, SPX shall be reimbursed for all relevant damages and losses in a timely manner subject to Clause 18.3 below.

18.3.    In the event of any claims in respect of losses or damage to any of the SPX Parcels, parties shall conduct a joint investigation in the following manner to determine if the fault lies with Service Provider:

18.3.1. The amount of the loss and damage shall be notified by SPX to Service Provider. Within five (5) Business Days from receipt of the notice from SPX, Service Provider shall either approve the amount claimed by SPX or send to SPX a notice of dispute pursuant to Clause 18.3.2. In case of failure by Service Provider to approve the amount claimed by SPX or send to SPX a notice of dispute within the five- (5)-Business Day period, Service Provider shall be deemed to have approved the amount claimed by SPX.

18.3.2. In the event of a dispute, Service Provider shall notify SPX of the dispute within five (5) Business Days from receipt of notification from SPX. Service Provider shall provide supporting documents to validate the dispute as requested by SPX.  Both parties shall resolve to approve the amount of the loss and damage within fifteen (15) Business Days from the notice of dispute by the Service Provider. If the parties fail to agree on an amount, amount claimed by SPX shall be considered as final.

18.3.3. To compensate for the loss and damage, Service Provider agrees to pay the final amount to SPX within fifteen (15) Business Days upon approval by Service Provider pursuant to Clause 18.3.1 or resolution of the dispute pursuant to Clause 18.3.2, as appropriate. SPX reserves the right to deduct, at its sole discretion, such loss or damage from the Fees due to Service Provider.

19.       DATA PROTECTION AND SECURITY

19.1.    Service Provider shall comply fully with Data Protection Laws in relation to its collection, use, transfer, or other processing of any Personal Data under the Agreement, including (without limitation) with respect to the provision of the Services, and it shall not knowingly or negligently do (or omit to do) anything that would put SPX in breach of its respective obligations under the Data Protection Laws.

19.2.    Service Provider and its Personnel shall protect the Personal Data in their possession or control by making reasonable security arrangements (including, where appropriate, physical, administrative, procedural and information and communications technology measures) to prevent unauthorized or accidental access, collection, use, processing, disclosure, copying, corruption, modification, disposal, destruction or loss of the Personal Data or any storage medium or device where the Personal Data is stored.

19.3.    Service Provider and its Personnel shall only permit duly authorized Personnel set out to access the Personal Data on a need-to-know basis. In any case, access by such authorized Personnel shall be limited and proportionate to the purposes set forth in the Agreement.

19.4.    Service Provider and Personnel shall not transfer Personal Data to any third party without the prior written consent of SPX.

19.5.    Service Provider and its Personnel shall immediately give SPX notice in writing when it becomes aware of or reasonably suspects that any collection, use, processing, disclosure of any Personal Data otherwise than as permitted under the Agreement, or any misuse of any Personal Data, or any security breach in connection with the Agreement that could compromise the security or integrity of Personal Data and shall undertake to use all reasonable endeavours to assist SPX in relation to the investigation and remedy of such breach incident.

20.       GOVERNING LAW AND JURISDICTION

20.1.    Governing Law. To the extent permitted by Applicable Law, the Agreement, the use of the Portal and any non-contractual rights or obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of the Philippines.

20.2.    Dispute Resolution. To the extent permitted by Applicable Law, in the event of any dispute, controversy, difference, or claim arising under or relating to the Agreement or the use of the Portal (including, without limitation: (a) any contractual or non-contractual rights, obligations, or liabilities; and (b) any issue as to the existence, validity, or termination of the contractual arrangement between the parties (a “Dispute”), a party shall promptly notify the other party in writing (the “Dispute Notice”) and the parties shall conduct discussions and negotiations in good faith. Any resolution of such Dispute is to be set forth in writing signed by the parties. If such Dispute cannot be satisfactorily resolved by the parties through good faith negotiations within thirty (30) days after the Dispute Notice, it shall be referred to and finally resolved by arbitration administered by the Philippine Dispute Resolution Center, Inc. (“PDRCI”) in the Philippines in accordance with the arbitration rules of the PDRCI for the time being in force, which rules are deemed to be incorporated by reference in this Clause. The seat of the arbitration shall be Taguig City, Metro Manila. This arbitration shall be governed by Philippine law including the Alternative Dispute Resolution Act. The tribunal shall consist of one (1) arbitrator and the language of the arbitration shall be English.

20.3.    In any action or suit between the parties to enforce any right or remedy under the Agreement or to interpret any provision of the Agreement, the prevailing party shall be entitled to recover its costs, including reasonable and justified legal costs.

21.       FORCE MAJEURE EVENT

21.1.    Neither party shall be liable for any failure or delay in performance of any obligation under the Agreement to the extent such failure or delay is due to a Force Majeure Event and the party affected by such Force Majeure Event: (a) could not have prevented the delay or failure by using reasonable precautions; (b) as soon as reasonably practicable following becoming aware gives notice of the occurrence of the Force Majeure Event to the other party in writing; and (c) uses Commercially Reasonable Efforts to commence performing such obligations as soon as possible or otherwise mitigate the effects of the Force Majeure Event.

22.       GENERAL PROVISIONS

22.1.    No Agency or Employment Relationship. As an independent contractor, Service Provider is not to be considered an agent or employee of SPX, and the Personnel, or all persons acting under the authority or for and in behalf of the Service Provider shall not be considered as employees or agents of SPX and shall not be entitled to any wages or benefits from SPX. Service Provider warrants that it is an independent contractor with substantial capitalization to undertake the Services. Service Provider undertakes the completion of the Services on its own account and under its own responsibility, according to its own manner and method, and free to control and direct the performance of such work or activity under the Agreement, SPX being interested only in the results thereof.

22.2.    Third Party Rights. Except as expressly stated in the Agreement, no third party shall receive any benefit or be entitled to any claim, cause of action, remedy, or right of any kind under the Agreement, it being the intent of the parties that the Agreement shall not be construed as a third party beneficiary contract.

22.3.    Transfers. Neither party may or shall assign, transfer (by way of novation or otherwise), or create any trust or purport to do the same, in respect of a right or obligation in, the Agreement without the prior written consent of the other party hereto (not to be unreasonably withheld or delayed), provided that SPX may assign or transfer (by way of novation or otherwise) its right or obligation in the Agreement to: (a) its Affiliates, or (b) a third party as part of a corporate restructuring. The terms and conditions of the Agreement will inure to the benefit of and bind each Party’s respective successors and permitted assigns.

22.4.    Waiver. The failure of a party to enforce at any time or for any period of time any of the provisions hereof shall not be construed to be a waiver of such provision or of the right of such party thereafter to enforce each such provision. No waiver of any term or condition of the Agreement shall be valid or binding on a party unless the same is set forth in a written document, specifically referring to the Agreement and duly signed by the waiving party.

22.5.    Severability. Where any provision of the Agreement is or becomes illegal, invalid or unenforceable in any respect under the laws of any jurisdiction, then such provision shall be deemed to be severed from the Agreement and, if possible, replaced with a lawful provision which, as closely as possible, gives effect to the intention of the parties under the Agreement and, where permissible, that shall not affect or impair the legality, validity, or enforceability in that, or any other, jurisdiction of any other provision of the Agreement.

22.6.    Remedies. Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by Applicable Law.

22.7.    Notices. Any notice or other communication to be given in connection with the Agreement shall be in writing and will be (as elected by the Party giving such notice): (a) personally delivered; (b) transmitted by registered or certified mail, return receipt requested; (c) deposited prepaid with a nationally recognized overnight courier service; or (d) sent by confirmed e-mail. Unless otherwise provided herein, all notices shall be deemed to have been duly given on: (x) the date of receipt if delivered personally or by courier; (y) ten (10) Business Days (for the recipient) after the date of posting if transmitted by mail; or (z) if transmitted by e-mail, the date a confirmation of transmission is received. Each party may change its address for purposes hereof with not less than five (5) Business Days’ prior notice to the other party. All notices hereunder to SPX or Service Provider shall be delivered, transmitted, or sent to the relevant addresses as notified to each other.

22.8.    Modification. SPX may revise and update the Agreement at any time in its sole discretion by posting an updated Agreement on the Portal. Service Provider shall be responsible for checking the Portal regularly to make note of any changes. All such changes to the Agreement are effective immediately when posted to the Portal and apply to all access to and use of the Portal and provision of the Services by Service Provider thereafter. Service Provider’s continued use of the Portal and provision of the Services following the posting of such revised Agreement constitutes its acceptance and agreement to the changes which are binding on Service Provider.