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 Electronic Deposits and Payments (SEDPE), we are NOT a Foreign Exchange Market Intermediary (IMC), nor do we solicit funds from the public. The physical management of money 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 Operational Mandate
The Client acknowledges that the payment coordination, routing, and disbursement services provided by Pingüino Capital S.A.S. may be subject to a separate Disbursement Agency Agreement, which establishes the powers granted to the Company, the liabilities of the parties, and the terms applicable to executing payment instructions through Third-Party Partners.
When the provision of the service requires such an agreement, the Client must review and expressly accept it through the physical or electronic signing mechanisms enabled by Pingüino prior to the execution of the corresponding transactions.
Electronic acceptance may be carried out through mechanisms that allow the identification of the accepting party, verification of their representative authority when applicable, recording of their consent, and preservation of evidence of the integrity and traceability of the agreement, in accordance with Law 527 of 1999 and other applicable provisions.
These Terms govern the access to and use of the Platform, whereas the Disbursement Agency Agreement governs the specific powers and obligations arising from the agency relationship, within the scope expressly agreed upon between the parties.
Acceptance of these Terms does not, by itself, replace the execution of the Disbursement Agency Agreement when required.
3. Integration with Third-Party Allies (Pass-Through)
To provide its services, Pingüino may integrate and use technological, financial, and operational infrastructure provided by banking entities, payment service providers, processing platforms, virtual asset providers, and other domestic or international business partners (hereinafter, the “Third-Party Partners”).
The participation of said Third-Party Partners will be limited to the functions and services corresponding to their legal nature, operational capacity, and contractual relationship with Pingüino, without this necessarily implying the existence of a direct contractual relationship between the Client and said providers.
Operational and contractual autonomy. Pingüino will retain management of the commercial relationship with the Client, including onboarding processes, due diligence, document management, coordination of payment instructions, and monitoring of transactions, within the scope of the contracted services.
Compliance requirements. Transactions may be subject to policies for the prevention of money laundering, terrorist financing, financing of the proliferation of weapons of mass destruction, fraud prevention, and other applicable controls established by the Third-Party Partners, in accordance with their legal, regulatory, and contractual obligations.
Management of information requests. Pingüino will act as an interlocutor and coordinator for information requests related to transactions managed through the Platform, whenever compatible with the obligations and procedures of the Third-Party Partners.
Requests for additional information will be evaluated according to criteria of necessity, relevance, proportionality, and connection to the transactions under review, without prejudice to applicable legal, regulatory, or contractual requirements.
Whenever appropriate, Pingüino may submit commercial documentation, certifications, transactional records, or other equivalent means of verification to support the legitimacy and traceability of the transactions.
Protection of Client information. Onboarding onto the Platform does not constitute a general and unlimited authorization to access, request, or disclose financial, banking, or commercial information of the Client that is unrelated to the legitimate purposes of providing the service and fulfilling applicable obligations.
Operational continuity. Pingüino may select, replace, or integrate Third-Party Partners based on criteria of availability, efficiency, security, compliance, and service continuity, while respecting the contractual obligations assumed with the Client.
The use of a Third-Party Partner does not imply that Pingüino guarantees the acceptance, execution, or permanent availability of a transaction when it depends on decisions, controls, or conditions specific to the corresponding provider.
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), Source of Funds, and Information Protection
The Client agrees to provide accurate, complete, and updated corporate, commercial, and transactional information, including the identification of its beneficial owners, the nature of its economic activities, and the documentation reasonably necessary to verify the legitimacy of transactions conducted through the Platform.
Pingüino will apply risk-based due diligence and monitoring procedures, taking into account the nature of the business relationship, transaction volume, the jurisdictions involved, and applicable legal and contractual requirements. These procedures are described on our Compliance and Risk Management page.
Requests for additional documentation must be based on criteria of necessity, relevance, and proportionality with respect to the identified risks and applicable obligations. Whenever appropriate, contracts, invoices, accounting certifications, payment receipts, and other commercial documents may be used as mechanisms to verify the source of funds.
Providing full bank statements or other financial documentation not directly related to the transactions under review will not constitute a general onboarding or retention requirement. Such requests will be evaluated individually when there is a duly identified legal, contractual, or risk justification.
Pingüino will handle information requests made by its Third-Party Allies, striving to limit disclosure to the data necessary to fulfill legitimate verification and compliance purposes, in accordance with applicable law and the corresponding authorizations.
Unjustified non-compliance with legitimate due diligence requests may lead to the suspension or termination of services, based on the severity of the breach and applicable obligations.
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 and Information Protection
Pingüino recognizes the confidential nature of the corporate, commercial, financial, contractual, technological, and transactional information provided by its Clients in the course of the business relationship and the services provided through the Platform.
Duty of Confidentiality. Pingüino will adopt reasonable administrative, technical, contractual, and organizational measures to protect its Clients' confidential information against unauthorized access, use, disclosure, alteration, or processing.
Purpose and Limited Use. The information received will be used exclusively for purposes related to the provision of contracted services, the execution of authorized instructions, risk management, fraud prevention, due diligence procedures, compliance with legal and contractual obligations, and other legitimate purposes duly communicated to the Client.
Disclosure to Third-Party Partners. Pingüino may share information with its Third-Party Partners when necessary for the provision of services, verification of transactions, risk management, or compliance with applicable legal, regulatory, or contractual obligations.
Such disclosure will be carried out under criteria of necessity, relevance, proportionality, and data minimization, seeking to limit the shared information to that reasonably necessary to satisfy the corresponding purpose.
Protection of Financial Documentation. Bank statements, financial statements, accounting records, and other financial documentation of the Client will be treated as confidential commercial information. Any request for, processing of, or disclosure of such documentation must respond to a legitimate purpose and have the corresponding legal or contractual basis.
When appropriate to satisfy a verification requirement, Pingüino may use alternative documentation, certifications, transaction receipts, transactional records, or partial statements that allow the required information to be verified without revealing data unrelated to the transaction under review.
Requests from Third Parties and Authorities. When Pingüino receives information requests made by Third-Party Partners, competent authorities, or other legally authorized entities, it will verify, as appropriate, their basis, scope, and purpose, and will manage the delivery of the required information in accordance with applicable legislation and contractual obligations.
Whenever the law and circumstances permit, Pingüino may request clarifications, limit the scope of the request, or propose alternative means of verification.
Restricted Access and Retention. Access to confidential information will be limited to personnel, contractors, and providers who need to know it to perform their duties, subject to the corresponding confidentiality and security obligations.
The information will be retained for the periods required by applicable legislation and relevant contractual obligations, and will subsequently be deleted, anonymized, or securely archived, as appropriate.
Personal Data Protection. When the information includes personal data, its processing will be carried out in accordance with Law 1581 of 2012, its regulatory decrees, the Pingüino Personal Data Processing Policy, and other applicable provisions.
Term of Confidentiality. Confidentiality obligations will survive the termination of the business relationship for the legally or contractually applicable periods, without prejudice to the exceptions provided by law.
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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