Terms of Use
These Master Terms and Conditions (the "Agreement" or the "Terms") govern the legal and operational relationship between PINGÜINO CAPITAL S.A.S., a Colombian commercial company (hereinafter "Pingüino", the "Company" or "We"), and the corporate entity, merchant, or independent professional accepting this Agreement (the "Client" or "You") for access to the technological infrastructure, API interfaces, and routing dashboards (the "Platform"). REGULATORY WARNING: Pingüino is a B2B technology company (Software as a Service). We are NOT a Bank, we are NOT a Specialized Company in Deposits and Electronic Payments (SEDPE), we are NOT a Foreign Exchange Market Intermediary (IMC), nor do we raise or collect funds from the public. The physical management of funds is executed exclusively by third-party financial institutions and providers.
1. Software License
Pingüino grants the Customer a limited, revocable, non-exclusive, and non-transferable license to access the Platform to orchestrate, visualize, and route data and instructions for receiving and dispersing local and cross-border payments.
2. Technological and Representative Mandate
By accepting these Terms, the Client grants Pingüino a special and strictly technological representative mandate. This mandate empowers the Company solely to transmit payment instructions, generate settlement requests, and route data to Third-Party Partners. This mandate does not grant Pingüino any fiduciary administration or securities custody powers.
3. Integration with Third-Party Allies (Pass-Through)
Every collection, crypto on-ramp/off-ramp, currency conversion, interbank transfer, and final settlement operation is executed on the rails of third-party financial providers, acquirers, and regulated gateways ("Third-Party Partners"). The Client bindingly accepts the Service, Risk, and Compliance Policies of said Third-Party Partners. Pingüino acts as a technological communication channel and is not liable for the operational failures of such networks.
4. Absence of Custody and "Technological Mirror"
The Platform operates under the Out-of-Flow principle. Any balance or amount displayed on the Pingüino interface constitutes a graphical representation or "data mirror" of the funds in transit processed or held in custody by Third-Party Allies, and does not represent a financial liability, deposit, or balance in bank accounts belonging to Pingüino Capital S.A.S.
5. Due Diligence (KYC/KYB) and Data Quality
The Customer undertakes to provide truthful, corporate, and transactional information for the opening of their account, clearly identifying their Ultimate Beneficial Owners (UBO). Pingüino and/or the Third-Party Partners reserve the right to request additional information regarding the origin of the funds at any time. Any omission or falsehood will result in the immediate blocking of the API.
6. Credential Security
The Client is solely responsible for the custody of their API keys, integration tokens, and passwords. Any payment or disbursement order routed from the Client's credentials will be presumed legitimate, final, and irrevocable.
7. Cross-Border Operations and Foreign Exchange (FX) Fluctuation
For currency processing, the applicable conversion rates (FX) will be determined dynamically by Third-Party Partners or blockchain networks at the time of the material execution of the order. Pingüino does not guarantee exchange rates nor assume liability for slippage or exchange losses during bank settlement times.
8. Foreign Exchange Regime and Statements to the Bank of the Republic
Since Pingüino is not an IMC (Authorized Foreign Exchange Intermediary), the Client assumes sole, absolute, and non-delegable responsibility for complying with the Colombian Foreign Exchange Regime (or the one applicable in their jurisdiction). The Client is responsible for the correct channeling, submission of exchange declarations (e.g., Form 5), and payment of customs duties to the DIAN or the Banco de la República resulting from their cross-border operations. Pingüino is exempt from any exchange or customs penalties imposed on the Client.
9. Clearing and Settlement Times
Dispersion cycles to the Client's local accounts are subject to the clearing windows of the ACH network and the validation times of Third-Party Allies. Pingüino does not assume liability for delays arising from banking holidays, network contingencies, or preventive compliance holds at the source or destination.
10. Fee Structure and Discount Mandate
The Client will pay Pingüino the agreed Technology Fees for the use of the Platform. The Client expressly, unconditionally, and irrevocably authorizes Pingüino to instruct the Third-Party Partners to automatically withhold, deduct, and settle said fees directly from the processed transactional flow, prior to its final disbursement.
11. Tax Independence and Withholdings
The Client is solely responsible for the settlement and payment of their taxes (VAT, ICA, Income, etc.) derived from their commercial operations. If fiscal authorities or Third-Party Allies require the application of withholding taxes on the Client's operations, these will be applied automatically without Pingüino being obliged to compensate for said deductions.
12. Prevention of Fraud and Chargebacks
The Client assumes 100% of the financial and operational risk for processed transactions, including fraud, reversals, consumer claims, or chargebacks. Pingüino will instruct the automatic debit of any sum owed for these concepts from future payments routed by the Client.
13. Preventive Withholdings and Reserve Funds (Rolling Reserves)
Depending on the risk level, chargeback rates, or alerts from Connected Third Parties, Pingüino may direct the application of rolling reserves or preventive holdbacks on the Client's cash flows to guarantee potential future liabilities.
14. Prohibited Activities (AUP) and SAGRILAFT
It is strictly prohibited to use the Platform to route volume associated with: (i) Money laundering and terrorist financing; (ii) Entities listed by OFAC, the UN, or national restrictive lists; (iii) Trade of illegal goods, child pornography, or drugs; (iv) Businesses not declared during onboarding. The Client declares under oath that their funds come from lawful activities.
15. Unilateral Suspension (Kill-Switch)
In the event of a violation of the AUP Policy, suspicion of fraud, requests from the UIAF/Prosecutor's Office, or at the request of the Allied Third Party, Pingüino will immediately and unilaterally suspend access to the Platform. This action will not require prior notice and will not entitle the Customer to claim lost profits or compensation.
16. Dispute Management and Support
Pingüino will act as a first-level technical support channel for interface issues. However, any material dispute regarding funds withheld due to Anti-Money Laundering controls must be resolved between the Client and the Third-Party Allied or the respective authority. Pingüino does not have the authority to release funds withheld for third-party regulatory compliance.
17. Intellectual Property
All rights, trademarks, algorithms, codes, and interfaces belong exclusively to Pingüino Capital S.A.S. The Client is prohibited from decompiling, reverse engineering, or creating derivative works of the Platform.
18. Corporate Confidentiality
Both parties commit to maintaining strict confidentiality regarding trade secrets, pricing strategies, API manuals, and data shared during the execution of this Agreement.
19. Maximum Limit of Liability
Pingüino provides the software "AS IS". To the maximum extent permitted by Colombian law, Pingüino shall not be liable for indirect damages, consequential damages, lost profits, or reputational damage. The total and aggregate liability of Pingüino for any claim (whether in contract or tort) shall be strictly limited to twenty percent (20%) of the Technology Fees actually paid by the Client to Pingüino in the last twelve (12) months prior to the claimed event.
20. Indemnification (Hold Harmless)
The Client agrees to defend, indemnify, and hold harmless Pingüino (and its officers) against any regulatory fine, lawsuit, or loss arising from the Client's breach of this Agreement, their fraud, or the violation of exchange/tax regulations.
21. Force Majeure
Neither party shall be liable for delays or failures to perform resulting from events beyond their reasonable control, including cloud service outages (AWS, Google Cloud), SWIFT/ACH network disruptions, systemic hacks on Third-Party Allies, or sudden regulatory changes.
22. Divisibility and Modifications
If any clause is declared null and void, the others will remain in full force and effect. Pingüino reserves the right to modify these Terms unilaterally, notifying the Customer through the dashboard or by email. Continued use of the service constitutes acceptance of the modifications.
23. Governing Law and Jurisdiction
This Agreement is governed entirely by the laws of the Republic of Colombia. Any controversy, dispute, or claim that cannot be resolved by mutual agreement shall be submitted to the exclusive jurisdiction of the ordinary courts of the city of Medellín, Antioquia.
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