“Approved Currency” means Euro, British Sterling and United States Dollars.
“Business Day” means any day that is not a Saturday, Sunday or other day that is a legal holiday under the laws of England and Wales or is a day on which banking institutions in England and Wales are authorised or require by law to close
”Discount” means, for each Approved Invoice paid (prior to the Invoice Settlement Date confirmed by the Buyer), either (1) the Discount Amount; or (2) an amount equal to: (a) the approved amount (less any relevant credit notes applied, where relevant) confirmed by the Buyer multiplied by (b) the Discount Rate, divided by (c) a 360 or 365 day year as is determined by the Bank to be customary for the relevant currency in the local interbank market, multiplied by (d) the Tenor.
”Discount Amount” means a fixed amount proposed by Supplier for Early Payment in respect of an Approved Invoice for the purpose of setting the Discount.
“Discount Rate” means a percentage interest rate (per annum) proposed by Supplier for Early Payment in respect of an Approved Invoice for the purpose of calculating the Discount.
“HSBC Group” means HSBC Holdings plc and its subsidiaries and associate undertakings including any of their branches.
“Invoice Settlement Date” means the date (which may differ from the invoice due date) identified by Buyer (or determined using Buyer agreed parameters, based on criteria such as Buyer’s payment scheduling) as the date for settlement of the relevant approved amount; for the avoidance of doubt if the relevant date identified is not a Business Day, then it shall be deemed to have been identified as the next following Business Day.
“Tenor” means the number of days from the date of any Early Payment by Bank to Supplier to the Invoice Settlement Date (inclusive).
2. Buyer (or C2FO on its behalf) may provide details to Bank for Approved Invoices and advises the approved amount, Invoice Settlement Date and other additional information required to enable Bank, at its discretion, to effect Supplier’s requested Early Payment. Supplier will use C2FO’s Service to view Approved Invoices and make any request for Early Payment, proposing a Discount Amount or Discount Rate.
3. If Bank elects (in its sole and absolute discretion) to make an Early Payment, it shall be the relevant approved amount less (i) the Discount, (ii) the deductions set out below (if any) and (iii) any credit notes. If Bank elects not to make Early Payment, C2FO may notify Supplier. If Supplier is not paid by the Invoice Settlement Date or Supplier has queries relating to deductions and/or Invoice Settlement Dates, any such enquiries should be directed to Buyer or C2FO.
4. The Discount may be accounted for between the Bank and C2FO in such proportions and on such terms as they may agree from time to time. It is for Supplier to propose a Discount Amount or Discount Rate in its absolute discretion. Acceptance of a proposed Discount Amount or Discount Rate by the Bank and any Early Payment by the Bank remains at the absolute discretion of the Bank and, in exercising such discretion, the Bank will take account of its arrangements with C2FO to account for the Discount. The Bank will have pricing criteria from time to time that the proposed Discount Amount or Discount Rate will need to meet. If the Bank’s pricing criteria from time to time is not met, the proposed Discount Amount or Discount Rate will be automatically rejected and C2FO will notify Supplier.
5. Fees and charges may change from time to time and will be notified to Supplier in writing (which may include by email) and are in addition to any fees and charges Supplier may incur with its account holding bank and/or intermediary banks.
6. Early Payments shall be made by Bank on a non-recourse basis. Any and all cash-flow rights transfer automatically to Bank and Supplier shall mark its books and computer records accordingly in relation to transferred rights acquired by Bank in connection with the corresponding Approved Invoice.
7. Without affecting the C2FO Terms, Bank may terminate these Terms (or parts thereof) immediately on notice to Supplier and C2FO (effective on receipt). Supplier may terminate these Terms upon written notice to and written acknowledgement from Bank and C2FO. Any rights and obligations that accrued before termination under these Terms will survive and all Early Payments prior to termination will continue to be governed by these Terms.
8. Supplier may not assign or transfer these Terms or the right to receive payment from Bank without the prior written consent of Bank. Bank may (i) assign or transfer any of its rights or obligations under these Terms, or (ii) enter into sub-participation arrangements and/or other risk mitigation in relation to these Terms, in each case with any person without Supplier’s consent.
9. Bank may replace or make amendments to these Terms which will become effective on the expiry of 10 days’ notice to Supplier. Any such notice may be given by publishing such replacement or amendments on the Site. However, Bank may, in exceptional circumstances, make amendments to these Terms at any time in order to comply with any law or regulation, which will become effective immediately on notice to Supplier.
10. Supplier acknowledges, agrees, warrants and represents to Bank that:
a. it is and will remain fully compliant with all laws and regulations applicable to it and no insolvency proceedings or process has been commenced by or against it;
b. its involvement in the supply chain finance program with Buyer has not violated and shall not violate any applicable anti-bribery and corruption laws and regulations including, but not limited to any relevant provision in force in the jurisdiction where it and Bank are domiciled and operate;
c. neither it nor any of its subsidiaries, directors, officers, employees, agents, or affiliates is an individual or entity (“Person”) that is, or is owned or controlled by Persons that are subject of any Sanctions or located, organised or resident in a Sanctioned Jurisdiction;
d. it will not, directly or indirectly, use any benefit derived from the supply chain finance program to support any activities or business of or with any Sanctioned Person, or in any Sanctioned Jurisdiction; or in any other manner that would result in a violation of Sanctions by any Person;
e. it confirms compliance and will comply in all material respects with foreign and domestic laws and regulations relating to Sanctions, anti-money laundering, export controls and any required import or export licenses, pertaining to each jurisdiction in which it operates and to each Approved Invoice, and will promptly notify Bank of any circumstance in connection with an Approved Invoice that may relate to money laundering, terrorist financing, bribery, corruption, tax evasion or Sanctions;
f. Bank shall be entitled to refuse, stop or cancel any Early Payment and/or take any action to protect Bank’s interest in the event that any representation or warranty given by Supplier is inaccurate or untrue;
g. where it has confirmed an email address for receipt of encrypted emails from Bank, Bank may, at its discretion, send encrypted emails to Supplier with such information or notices as Bank deems necessary or appropriate (including but not limited to relevant payment information identifying Approved Invoices, approved amounts, date of payment and the correlating net amount paid (after fees and charges) and notices envisaged in these Terms). Terms and conditions apply to the use of Bank’s encrypted emails solution, Securemail, which Supplier will need to agree separately in order to receive the emails. Bank shall not be liable to Supplier (or any third party, including Buyer) in any circumstance for any error or omission in any email it issues to Supplier;
h. in the event that any payment made by Bank renders Supplier liable to any tax (including without limitation any value added, sales, withholding or other tax), levy, impost, duty, charge, assessment or fee of any nature (including interest, penalties and additions thereto) imposed by any government or other taxing authority) due or imposed in any jurisdiction, Bank shall not be liable in relation to, nor responsible for, any claim made by Supplier relating to its liability for such tax in any circumstances;
i. it agrees that Bank may make any deduction on account of tax Bank is required to make by any local or foreign tax or regulatory authority from or in respect of any payment made to Supplier, or to another person at its request or instruction, in connection herewith and Bank may pay the amount deducted to the relevant tax or regulatory authority;
j. it indemnifies Bank against any loss, damage, cost, expense or liability Bank incurs or suffers as a result of (i) any breach by Supplier of the Terms and (ii) any applicable tax being assessed on, payable by or claimed against Bank arising out of or in connection with these Terms and payments Bank makes to Supplier (excluding any relevant income tax imposed on Bank), including (but not limited to) any value added, sales, withholding, stamp duty, registration or other similar tax; Supplier must pay any amount it owes under this clause within five days of demand by Bank;
k. no claim shall be made by Supplier or any of its officers, directors, employees, agents, representatives or advisers against any member of the HSBC Group or C2FO or any of their respective officers, directors, employees, agents, representatives or advisers for any special, indirect, punitive or consequential damages in respect of or arising from breach of contract or any other theory of liability relating to or connected herewith; all such claims are waived and released;
l. at any time that transfer of cash-flow rights in respect of an Approved Invoice to Bank is not perfected and/or enforceable by Bank directly without Supplier’s involvement, Supplier holds such rights on behalf of and, to the extent permissible and recognised under relevant laws, on trust for Bank and will promptly account to Bank on receipt of any relevant recoveries;
m. no third party holds or will hold an interest (including, but without limitation, any ownership or security interest) in Supplier invoices submitted to Buyer or debt represented thereby;
n. all payments made by Bank shall be made based on the information provided to Bank by Buyer and C2FO; Bank shall be under no obligation to check the account details provided to it by Buyer and/or C2FO. To the extent that any issue arises related to the amount paid, set‑off, counterclaim, credit notes, deduction or withholding, it will be a matter for Supplier and Buyer to determine;
o. Buyer intends to permit C2FO to be able to collect a fee in respect of use of its Service in respect of each Early Payment, by way of arrangements with Bank as to accounting for the Discount as between Bank and C2FO, and C2FO may in turn account to Buyer in respect of a proportion of the amount it receives for its role in the administration of the supply chain finance program. In this regard, Supplier confirms to Bank that:
i. C2FO has madedisclosure of the arrangement to Supplier and Supplier has acknowledged and agreed that, when Bank is making any Early Payment, the Discount may include fees to C2FO which the Bank is authorised to take into account and may be paid by Bank to C2FO;
ii. neither Buyer or C2FO has exerted improper pressure or used improper means to require or influence Supplier to agree to receiving Early Payments from Bank or to agree the C2FO fee arrangement or to these Terms; and
iii. it is aware and acknowledges that no service is provided by Bank (whether directly or indirectly) to Supplier in respect of the collection / accounting of the C2FO fee (for the account of C2FO) to be borne by Supplier;
p. it acknowledges and accepts that no communication or action by Bank: (a) is undertaken as, or in connection with a service provided by HSBC Group to Supplier, save for services negotiated separately with HSBC Group and/or for another purpose (if applicable); and/or (b) should be taken to mean that Supplier is a “customer” of HSBC Group or to be taken to mean that Supplier is entering into a business relationship with HSBC Group, or that HSBC Group is carrying out a transaction for Supplier or on Supplier’s behalf. All activities undertaken by Bank (including liaison with Buyer and C2FO and communication sent by or received from Bank whether through C2FO or otherwise) arise out of supply chain finance provided by Bank to Buyer and Bank is, at all times, acting as Buyer’s agent and/or service provider.
q. unless otherwise provided for herein, a person who is not party to these Terms may not enforce them under the Contracts (Rights of Third Parties) Act 1999; Supplier and Bank may agree to change any of the Terms without the consent of any person who is not party to it; provided, that C2FO is a third party beneficiary of these terms solely for C2FO’s benefit in enforcing its rights against Supplier and for defence purposes for any action arising out of the transactions contemplated by these Terms and the C2FO Terms;
r. it acknowledges and specifically consents to Bank (i) engaging with C2FO to collect, exchange, process, transfer or disclose data (including personal data) and to share, store or transmit information (including personal data) for the purposes of exercising its rights and/or obligations under the Terms, and (ii) disclosing information (including personal data) to C2FO where necessary or desirable to give effect to the Terms;
s. it acknowledges that Bank may, as necessary or appropriate to facilitate use of C2FO’s Service by Supplier and persons authorised by it, transfer and disclose relevant information (including personal data) globally, to C2FO and any member of the HSBC Group, and such recipient may also collect, process, transfer and disclose such information for the same purpose;
t. it shall ensure that every person or entity in respect of which personal data is provided by Supplier (or by anyone else on its behalf), or will be from time to time provided by Supplier, to Bank, C2FO or to another member of the HSBC Group has been notified of and agreed to the collection, processing, disclosure and transfer of their information (including to or from C2FO) before their information is provided. Supplier shall at the same time advise them that they have rights of access to, and correction of, their personal data; Supplier acknowledges that Bank will use any information Supplier provides to Bank as explained in Bank’s privacy notice (references to customer therein are deemed to refer to Supplier where the context requires) and that it can find this at [www.business.hsbc.uk / other link as appropriate for non- UK HSBC entity] or it can ask for a copy by writing to [insert]] OR [Supplier agrees that, unless it tells Bank otherwise, Bank or other members of the HSBC Group may contact Supplier from time to time by post, email and/or telephone with information about Bank’s or other members of the HSBC Group’s products and services that Bank or other members of the HSBC Group think may be of interest; and Supplier further agrees that Bank or other members of the HSBC Group may use publicly available contact information and any contact information Supplier provides to Bank from time to time for this purpose - this may include individuals’ email addresses and direct telephone numbers, and Supplier shall notify any such individuals of the use of their contact details for this purpose; if Supplier decides at any time that it does not wish to receive this information from Bank or other members of the HSBC Group, please contact [insert email address]; Supplier understands that neither Bank nor other members of the HSBC Group will disclose Supplier details to third parties to allow them to market to Supplier without Supplier’s further consent;
u. it acknowledges and agrees that, as regards processing of personal data, Bank acts as controller in respect of such processing, and it is not intended that Bank shall act as a processor in respect of any personal data;
v. it acknowledges that C2FO is independent from Bank and nothing in these Terms shall constitute a partnership, joint venture or other form of association between C2FO and the Bank; the Bank assumes no liability or responsibility whatsoever relating to C2FO’s Service including, without limitation, in relation to (i) any unavailability of the Service for any reason, (ii) Supplier’s use of the Service, and (iii) any delay, malfunction or data error relating to the Service; and
w. it confirms that it has read and agreed to the C2FO Terms in respect of its Service; this includes, without limitation, Supplier’s agreement to any limitations of liability, disclaimers or other terms that limit Supplier’s rights in relation to C2FO.
11. The following disclosure provisions survive termination and are binding for 3 years after a valid termination:
a. Supplier permits Bank to pass on information it receives in connection herewith: (a) to Bank's actual or proposed successors and assigns; (b) to any company in the HSBC Group; (c) to Bank's professional advisers; (d) to any rating agency or actual or proposed insurer or other provider of credit protection to Bank; (e) to any person with whom Bank has or may enter into sub-participation arrangements and/or other risk mitigation in respect of any risks or rewards under Approved Invoices; (f) to any person whom Bank reasonably considers necessary to obtain receipt of payment of any Approved Invoices; (g) as required by law or to any court or regulatory, supervisory or governmental authority; or (h) to a federal reserve or central bank, provided that, for disclosure under (a), (b), (c), (d), (e) or (f) above, the party to whom disclosure is made is bound to keep that information confidential and use it only for the purpose for which it is disclosed;
b. Supplier undertakes to provide Bank on request with any information or documentary evidence about its tax status or the identity or tax status of any of its ultimate or any intermediate owners that Bank considers (acting reasonably) is needed to comply (or demonstrate compliance or avoid non-compliance) with any HSBC Group member's obligations to any local or foreign tax or regulatory authority (the "Tax Information");
c. Supplier authorises (and undertakes on request to obtain written authority or consent of any of its ultimate or intermediate owners for) any member of the HSBC Group to disclose its or its ultimate or any intermediate owners' Tax Information (as applicable), information about these Terms and any Approved Invoices and the link between these Terms and Approved Invoices and Supplier or its ultimate or any intermediate owner(s) to any local or foreign tax or regulatory authority; and
d. nothing in these Terms obliges Bank to act or refrain from acting in any way that might cause breach of any legal or regulatory requirement, contractual obligation or Bank policy or harm Bank's or the HSBC Group's reputation.
12. These Terms are governed by the laws of England and Wales. Supplier and Bank each irrevocably submit to the exclusive jurisdiction of the courts of England and Wales in respect of any proceedings which may be initiated in connection with these Terms.
13. In agreeing to these Terms, Supplier confirms that:
a. it has read or viewed and understood any relevant fact sheet, video or other materials provided to it as part of the on-boarding process;
b. it has agreed to the C2FO Terms;
c. all relevant information about Supplier as provided to Buyer is accurate or Supplier has notified any relevant changes to Buyer;
d. it has read and understood the relevant deductions that will be made in respect of Approved Invoices prior to Early Payment;
e. the person agreeing to these Terms has the necessary authority and capacity to confirm acceptance of these Terms on Supplier’s behalf;
f. it has taken all necessary steps to authorise agreement to and performance of these Terms; and
g. the agreement to these Terms and the granting of such authorisations as may be necessary are in accordance with the applicable constitutional documents of Supplier’s organisation.
14. In choosing to accept these Terms electronically and selecting the “I accept” or “I agree” option:
a. Supplier consents to use of electronic communications, to receiving notices and communications electronically and to utilising electronic signatures in lieu of using paper documents; the electronic signature service is accessible via a relevant link on the Site;
b. Supplier acknowledges: (i) it is not required to receive notices and disclosures or sign documents electronically and may request to receive paper copies and withdraw consent (given at (a) above) for any future receipt or signing at any time, by notifying Bank and C2FO; (ii) it may download certain documents, including these accepted Terms, and print them (viewing and printing will require that Supplier has compatible software); (iii) if it requires paper copies, Supplier may request the same be provided by Bank (and Bank will confirm any fees associated to providing paper copies);
c. Supplier agrees that (i) the individuals accessing C2FO’s Service and subsequently accessing and accepting these Terms (via the relevant link on the Site or otherwise) are authorised to execute, for and on Supplier’s behalf, all agreements that are being furnished to Supplier electronically via C2FO or a link available on the Site; (ii) any such agreement executed in this fashion shall be binding and considered, in connection with any transaction, to be “in writing”, “signed” and to constitute an “original” when printed from electronic files or records established and maintained in the normal course of business; (iii) Supplier will not contest the validity or enforceability of any such agreement under the provisions of any applicable law relating to whether certain agreements are to be in writing, must be physically signed or whether the relevant individual(s) are authorised to execute any such agreement; and (iv) Supplier will not contest admissibility of records executed or created through C2FO’s Service or a link available on the Site on the basis that records executed or created were not done so in documentary form; and
d. Bank shall be entitled to rely on and assume that Supplier accepting this document electronically is valid, effective and enforceable execution and/or, to the extent permitted by law and necessary to do so, may treat purported execution by this method as deemed acceptance of the content.