Terms & Conditions (“Terms”) for Supply Chain Finance (“SCF”)
Upon agreement by you (“the Supplier”), these Terms constitute the terms agreed between you and The Hongkong and Shanghai Banking Corporation Limited, Singapore Branch (UEN S16FC0010A) (incorporated in the Hong Kong SAR with limited liability) (the “Bank”) in relation to the SCF programme provided by the Bank to Hewlett-Packard Asia Pacific Pte. Ltd. (a company incorporated in Singapore), Hewlett Packard Enterprise Singapore Pte. Ltd. (a company incorporated in Singapore) and/or Hewlett Packard Japan, G.K. (a company incorporated in Japan) (each referred to as the “Buyer”).
Each reference to the Buyer below is a reference to the relevant Buyer of yours and/or, where referring to any communication or provision or receipt of information, its nominated service provider (C2FO Singapore Limited, a company incorporated in Singapore, “Service Provider”) acting as the Buyer’s agent for making and receiving relevant communications referred to below.
The Buyer provides details to the Bank in a prescribed format for invoices it has approved for payment (“Approved Invoices”, each an “Approved Invoice”). The Buyer also advises the approved amount, Invoice Settlement Date (as defined below) and other additional information required in their agreement with the Bank to enable the Bank, at its discretion, to effect payment. Such information will be provided to the Bank by the Service Provider, typically only in instances where you have notified the Service Provider of a request for early payment. You can log in on the Service Provider’s platform, view Approved Invoices and make a request for early payment, proposing a Discount Amount or Discount Rate, if you wish to (prior to 7 days before the Invoice Settlement Date specified by the Buyer).
If the Bank elects (in its sole and absolute discretion and in accordance with its agreement with the Buyer) to make an early payment to you, it shall be the relevant approved amount less (i) the Discount, (ii) the deductions set out below (if any) and (iii) any credit notes. Subject to the Bank exercising its discretion and without obligation placed upon the Bank, you may receive funds as early as the next Business Day following your request for payment prior to the Invoice Settlement Date. If the Bank elects not to make early payment, the Service Provider may notify you.
Any payment is at the sole and absolute discretion of the Bank for regulatory and other reasons and the Bank is under no obligation or commitment to make any payment. If you are not paid by the Invoice Settlement Date or you have queries relating to deductions and/or Invoice Settlement Dates, any such enquiries should be directed to the Buyer (or the Service Provider).
The Discount may be accounted for between the Bank and the Service Provider in such proportions and on such terms as they may agree from time to time. It is for you to propose a Discount Amount or Discount Rate in your 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 the Service Provider 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 the Service Provider may notify you.
Payments shall be made by the Bank on a non-recourse basis. Any and all cash-flow rights transfer automatically to the Bank and you shall mark your books and computer records accordingly in relation to transferred rights acquired by the Bank in connection with the corresponding Approved Invoice.
Fees and charges may change from time to time and will be notified to you in writing (which may include by email) and are in addition to any fees and charges you may incur with your account holding bank and/or intermediary banks.
The Bank may terminate these Terms (or parts thereof) immediately on notice (effective from date of receipt). You may terminate these Terms upon written notice to and written acknowledgement from the Bank. Any rights and obligations that accrued before termination will survive and all payments prior to termination will continue to be governed by these Terms.
You may not assign or transfer these Terms or the right to receive payment from the Bank without the prior written consent of the Bank. The 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 your consent.
The Bank may make amendments to, or replace, these Terms which will become effective on the expiry of 30 days’ notice to you. Any such amendments or replacement terms may be given to you in writing or by publishing such amendments or replacement terms on the Service Provider’s platform or such website location as the Bank notifies you of from time to time. However, the Bank may, in exceptional circumstances, make amendments to, or replace, these Terms at any time in order to comply with any law or regulation, which will become effective immediately on notice to you.
You agree that, unless you tell the Bank otherwise, the Bank or other members of the HSBC Group may contact you from time to time by post, email and/or telephone with information about the Bank’s or other members of the HSBC Group’s products and services that the Bank or other members of the HSBC Group think may be of interest to you. You further agree that the Bank or other members of the HSBC Group may use publicly-available contact information and any contact information you provide to the Bank from time to time for this purpose. This may include individuals’ email addresses and direct telephone numbers, and you shall notify any such individuals of the use of their contact details for this purpose. If you decide at any time that you do not wish to receive this information from the Bank or other members of the HSBC Group, please contact trade@hsbc.com.sg. You understand that neither the Bank nor other members of the HSBC Group will disclose your details to third parties to allow them to market to you without your further consent.
You acknowledge that the Bank may use any information you provide to the Bank (including via the Service Provider) as explained in the Bank’s data protection policy (where applicable). You acknowledge that you can find this at https://www.business.hsbc.com.sg/en-sg/sg/generic/privacy-and-security#DPP. If you provide information about any individual to the Bank, you acknowledge that you must ensure that that individual has been notified of, and has agreed to, the collection, processing, disclosure and transfer of their information as set out in the Bank’s data protection policy and that you must at the same time advise that individual that they have rights of access to, and correction of, their personal data.
You acknowledge and accept that none of SCF or any related communication or action: (a) is undertaken as, or in connection with a service provided by HSBC Group to you, save for services negotiated separately with HSBC Group and/or for another purpose (if applicable); and/or (b) should be taken to mean that you are a “customer” of HSBC Group or to be taken to mean that you are entering into a business relationship with HSBC Group, or that HSBC Group is carrying out a transaction for you or on your behalf. All activities undertaken by the Bank (including liaison with the Buyer and communication sent by or received from the Bank whether through the Service Provider or otherwise) arise out of SCF provided by the Bank to the Buyer and the Bank is, at all times, acting as the Buyer’s agent and/or service provider.
Definitions
“Approved Currency” means as per relevant transaction chapter for HSBC entity per Buyer Agreement. “Business Day” means as per relevant transaction chapter for HSBC entity per Buyer Agreement.
”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 Term.
”Discount Amount” means a fixed amount proposed by you 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 you 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 the Buyer (or determined using Buyer agreed parameters, based on criteria such as the 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.
“Term” means the number of days from the date of any early payment by the Bank to you to the Invoice Settlement Date (inclusive) confirmed by the Buyer.
15. Youacknowledge,agree,warrantandrepresentthat:
a. you are and will remain fully compliant with all laws and regulations applicable to you and no
insolvency proceedings or process has been commenced by or against you;
your involvement in the supply chain finance scheme with a 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 of any applicable anti-bribery and corruption laws and regulations in force in the jurisdiction where you and the Bank are domiciled and operate, and you have not engaged, and undertake that you shall not engage, in the following conduct: making of payments or transfers of value, offers, promises or giving of any financial or other advantage, or requests, agreements to receive or acceptances of, any financial or other advantage, either directly or indirectly, having the purpose, effect or acceptance of, or acquiescence in, public or commercial bribery or other unlawful or improper means of obtaining or retaining business, commercial advantage or the improper performance of any function or activity, and you shall procure the compliance with the above obligations from your own associated persons, agents or subcontractors as may be used for the fulfilment of your obligations herein;
neither you nor any of your subsidiaries, directors, officers, employees, agents, or affiliates is an individual or entity (“Person”) that is, or is owned or controlled by Persons that are: (i) the subject of any sanctions issued, administered or enforced by the US Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the US Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury, the Hong Kong Monetary Authority or the Monetary Authority of Singapore (collectively, “Sanctions”), or (ii) located, organised or resident in a country or territory that is, or whose government is, the subject of Sanctions;
you will not, directly or indirectly, use any benefit derived from the SCF programme to support any activities or business of or with any Person, or in any country or territory, that is, or whose government is, the subject of Sanctions; or in any other manner that would result in a violation of Sanctions by any Person;
you confirm 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 you operate and to each Approved Invoice, and will promptly notify the Bank of any circumstance in connection with an Approved Invoice that may relate to money laundering, terrorist financing, bribery, corruption, tax evasion or Sanctions;
the Bank shall be entitled to refuse, stop or cancel any early payment and/or take any action to protect the Bank’s interest in the event that any representation or warranty given by you is inaccurate or untrue;
where you have confirmed an email address for receipt of encrypted emails from the Bank, the Bank may, at its discretion, send encrypted emails to you with such information or notices as the 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 the Bank’s encrypted emails solution, Securemail, which you will need to agree separately in order to receive the emails. The Bank shall not be liable to you (or any third party, including the Buyer) in any circumstance for any error or omission in any email it issues to you;
in the event that any payment made by the Bank renders you 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, the Bank shall not be liable in relation to, nor responsible for, any claim made by you relating to your liability for such tax in any circumstances;
you agree that the Bank may make any deduction on account of tax the Bank is required to make by any local or foreign tax or regulatory authority from or in respect of any payment made to you, or to another person at your request or instruction, in connection herewith and the Bank may pay the amount deducted to the relevant tax or regulatory authority;
you indemnify the Bank against any loss, damage, cost, expense or liability the Bank incurs or suffers as a result of (i) any breach by you of the Terms and (ii) any applicable tax being assessed on, payable by or claimed against the Bank arising out of or in connection with these Terms and payments the Bank makes to you (excluding any relevant income tax imposed on the Bank), including (but not limited to) any value added, sales, withholding, stamp duty, registration or other similar tax; you must pay any amount you owe under this clause within five days of demand by the Bank;
no claim shall be made by you or any of your officers, directors, employees, agents, representatives or advisers against any member of the HSBC Group or any of their 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;
at any time that transfer of cash-flow rights in respect of an Approved Invoice to the Bank is not perfected and/or enforceable by the Bank directly without your involvement, you hold such rights on behalf of and, to the extent permissible and recognised under relevant laws, on trust for the Bank and you will promptly account to the Bank, on your receipt of any relevant recoveries;
no third party holds or will hold an interest (including, but without limitation, any ownership or security interest) in your invoices submitted to the Buyer or debt represented thereby;
all payments made by the Bank shall be made based on the information provided to the Bank by the Buyer and the Bank shall be under no obligation to check the account details provided to it by the Buyer. 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 you and the Buyer to determine;
the Buyer intends to permit the Service Provider to be able to collect a fee in respect of use of its platform in respect of each early paid Approved Invoice, by way of arrangements with the Bank as to accounting for the Discount as between the Bank and the Service Provider. In this regard, you confirm to the Bank that:
the Buyer or the Service Provider has made full disclosure of the arrangement to you and you have acknowledged and agreed to it and that, when making any early payment to you, the Bank is authorised to take into account such fee to the Service Provider which will be paid by the Bank to the Service Provider;
neither the Buyer or the Service Provider has exerted improper pressure or used improper means to require or influence you to agree to receiving any early payments from the Bank or to agree to these Terms; and
you are aware and acknowledge that no service is provided by the Bank (whether directly or indirectly) to you in respect of the collection / accounting of the fee (for the account of the Service Provider) to be borne by you.
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, Cap 53B of Singapore; you and the Bank may agree to change any Terms without the consent of any person who is not party to it;
you acknowledge and specifically consent to the Bank (i) engaging with the Service Provider 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 the Service Provider where necessary or desirable to give effect to the Terms;
you acknowledge that the Bank may, as necessary or appropriate to facilitate use of the Service Provider’s platform by you and persons authorised by you, transfer and disclose relevant information (including personal data) globally, to the Service Provider and any member of the HSBC Group, and such recipient may also collect, process, transfer and disclose such information for the same purpose;
you shall ensure that every person or entity in respect of which personal data is provided by you (or by anyone else on your behalf), or will be from time to time provided by you, to the Bank, the Service Provider 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 the Service Provider) before their information is provided. You shall at the same time advise them that they have rights of access to, and correction of, their personal data;
you acknowledge and agree that, as regards processing of personal data, the Bank acts as controller in respect of such processing, and it is not intended that the Bank shall act as a processor in respect of any personal data;
you acknowledge that the Service Provider is independent from the Bank and nothing in these Terms shall constitute a partnership, joint venture or other form of association between the Service Provider and the Bank; and the Bank assumes no liability or responsibility whatsoever relating to the Service Provider’s services including, without limitation, in relation to (i) any unavailability of the Service Provider’s services for any reason, (ii) your use of the Service Provider’s services, and (iii) any delay, malfunction or data error relating to the Service Provider’s services; and
v. you confirm that you have read and agree to the Service Provider’s terms of use in respect of the Service Provider’s platform, including to the extent that they are relevant to your use of the Service Provider’s platform to access a link to sign this document; this includes, without limitation, your agreement to any limitations of liability, disclaimers or other terms that limit your rights in relation to the Service Provider.
16. The following disclosure provisions survive termination and are binding for 3 years after a valid termination:
you permit the Bank to pass on information it receives in connection herewith: (a) to the Bank's actual or proposed successors and assigns; (b) to any company in the HSBC Group; (c) to the Bank's professional advisers; (d) to any rating agency or actual or proposed insurer or other provider of credit protection to the Bank; (e) to any person with whom the 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 the Bank may reasonably consider 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, in the case of a disclosure under (a), (b), (c), (d), (e) or (f) above, the party to whom disclosure is to be made is bound to keep that information confidential and use it only for the purpose for which it is disclosed;
you undertake to provide the Bank on request with any information or documentary evidence about your tax status or the identity or tax status of any of your ultimate or any intermediate owners that the 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");
you authorise (and undertake on request to obtain the written authority or consent of any of your ultimate or any intermediate owners for) any member of the HSBC Group to disclose your or your ultimate or any intermediate owners' Tax Information (as applicable), information about these Terms and any Approved Invoices involving you and the link between these Terms and Approved Invoices and you or your ultimate or any intermediate owner(s) to any local or foreign tax or regulatory authority; and
nothing in these Terms obliges the 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 the Bank's or the HSBC Group's reputation.
These
non-exclusive jurisdiction of the courts of Singapore in respect of any proceedings which may be initiated in connection with these Terms.
InagreeingtotheseTerms,youconfirmthat:
you have read or viewed and understood any relevant fact sheet, video or other materials
provided to you as part of the onboarding process;
you have agreed to any relevant terms and conditions issued to you by the Service Provider;
Terms are governed by the laws of Singapore. You and the Bank each irrevocably submit to the
c. all relevant information as provided to the Service Provider by the Buyer is accurate or you have notified any relevant changes to the Service Provider for approval by the Buyer;
you have read and understood the relevant deductions that will be made in respect of Approved Invoices prior to payment to you;
the person agreeing to these Terms has the necessary authority and capacity to confirm acceptance of the Terms on your behalf;
you have taken all necessary steps to authorise the agreement to and performance of the Terms; and
the agreement to the Terms and the granting of such authorisations as may be necessary are in accordance with the applicable constitutional documents of your organisation.
19. Where the Terms of this document are accepted electronically and the “I accept” or “I agree” option is selected:
you consent 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 Service Provider’s platform;
you acknowledge that (i) you are not required to receive notices and disclosures or sign documents electronically and may request to receive paper copies and withdraw your consent (given at (a) above) for any future receipt or signing at any time, by notifying the Bank; (ii) you may download certain documents, including these accepted Terms, and print them (viewing and printing will require that you have compatible software); (iii) if you require paper copies, you may request the same be provided by the Bank (and the Bank will confirm any fees associated to providing paper copies);
you agree that (i) the individuals accessing the Service Provider’s platform and subsequently accessing and accepting these Terms (via the relevant link on that platform or otherwise) are authorised to execute, for and on your behalf, all agreements that are being furnished to you electronically via the Service Provider or a link available on the Service Provider’s platform; (ii) any such agreement executed in this fashion shall be binding and considered, in connection with any transaction, to be “in writing”, to have been “signed” and to constitute an “original” when printed from electronic files or records established and maintained in the normal course of business; (iii) you 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) you will not contest the admissibility of records executed or created through the Service Provider’s platform or a link available on the Service Provider’s platform on the basis that the records executed or created were not created or maintained in documentary form; and
the Bank shall be entitled to rely on and assume that your accepting this document electronically is a valid, effective and enforceable execution of the document and/or, to the extent permitted by law and necessary to do so, may treat purported execution by this method as a deemed acceptance of the content by you.
Terms of Use
1.1 “Accelerated Payment” means the payment to Supplier of a reduced sum by the Buyer or a Funder (acting on behalf of the Buyer), as applicable, in exchange for payment of the invoice amount on a date which is earlier than such Funded Invoice’s due date.
1.2 “Affiliate” means with respect to a person, any corporation or other entity that controls, is controlled by, or is under common control with, that person.
1.3 “Approved Invoice” means an invoice issued by Supplier, validated and approved by the relevant Buyer and confirmed to C2FO by the Buyer (or an Affiliate, as applicable), for the purposes of the Services, as eligible for Accelerated Payment.
1.4 “Authorized Supplier”means a third party supplier to Buyer who: (i) is authorized by Buyer to use the Service and access the Buyer marketplace; and (ii) has agreed to all terms and conditions of this Agreement in accordance with allowable usage.
1.5 “Authorized User” means a user who is authorized by Supplier to access and use the Service on behalf of the Supplier.
1.6 “Award File” means electronic file(s) comprised of (i) awarded offers of a discount on the amount owing to the applicable Supplier pursuant to an Approved Invoice in consideration for Accelerated Payment of such Approved Invoices by the relevant Buyer or a Funder (acting on behalf of the Buyer), as applicable, resulting in discounts to face value of such Approved Invoices, and (ii) the source(s) of non-Buyer funding for Funded Invoices, as applicable.
1.7 “Buyer”means a party that has contracted with C2FO for purposes of processing Approved Invoices from the Supplier through the C2FO working capital marketplace to provide Accelerated Payment of an Approved Invoice in exchange for a discount on the invoiced amount.
1.7 “C2FO Market Closing” means the time identified on the Site at which the working capital market closes and the Accelerated Payment award status is confirmed during each local business day.
1.8 “Confidential Information” is any non-public information provided by the disclosing Party (“Disclosing Party”) to the Party receiving the information (“Receiving Party”). Confidential Information means the following:
a) With regard to C2FO, all C2FO Information, software, inventions, know-how, ideas, programs, apparatus programs, and Intellectual Property Rights related to, connected with or arising out of the Service;
b) With regard to Supplier, any non-public information regarding the business or business partners of Supplier, in whole and in part; and
c) With regard to either Party, the terms, conditions, pricing and other contents of this Agreement, any other information, technical data, or know-how, including, but not limited to, that which relates to research, product plans, products, services, customers, markets, software, software code, software documentation, developments, inventions, lists, trade secrets, data compilations, processes, designs, drawings, engineering, hardware configuration information, marketing or finances.
Notwithstanding the foregoing, Confidential Information does not include Market Statistics, and information, data or know-how which:
a) Is in the public domain at the time of the disclosure or becomes available to the public thereafter without restriction, and not as a result of the act or omission of the Receiving Party;
b) Is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure;
c) Is lawfully in the possession of the Receiving Party at the time of the disclosure;
d) Is approved for release by written authorization of the Disclosing Party; or
e) Is developed independently and separately by the Receiving Party without use of the Disclosing Party’s Confidential Information.
1.9 “Content” means any data, information or materials provided to C2FO by or relating to Supplier, in any media known now or in the future, for use with the Service.
1.10 “Data Protection Laws” means all laws (including the EU General Data Protection Regulation ((EU) 2016/679)) that relate to the processing or the security of Personal Data and which are applicable to the processing of Personal Data by C2FO.
1.11 “Force Majeure” means events or conditions beyond a Party’s reasonable control, including, without limitation, acts of common enemy, earthquakes, floods, fires, epidemics, terrorist attacks, embargoes, strike, fire, governmental acts or orders or restrictions, acts of God, lack of internet availability beyond the demarcation of the Service (e.g. issues related to backbone peering point, DNS, or root server issues), inability to secure products or services from third parties, or any other reason where failure to perform is not caused by the negligence of the nonperforming Party.
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1.12 “Funded Invoice” means each Approved Invoice for which an Accelerated Payment is made to a Supplier.
1.13 “Funder” means a financial institution or other entity (other than the relevant Buyer) which communicates its acceptance of a request for an Accelerated Payment, in each case enabled by the Services.
1.14 “Information”means any technical, or business information in written, graphical, oral, or other tangible or intangible forms, including but not limited to specifications, drawings, tools, samples, reports, compilations, records, data, computer programs, drawings, models, and secrets.
1.15 “Intellectual Property Rights” means any patent rights, copyrights, trade secrets, trade names, service marks, trademarks, moral rights, know-how and any other similar rights or intangible assets recognized under any laws or international conventions, and in any country or jurisdiction in the world, as intellectual creations to which rights of ownership accrue, and all registrations, applications, disclosures, renewals, extensions, continuations or reissues of the foregoing now or hereafter in force.
1.16 “Market Statistics”means any summarized, derivative, aggregated, de-identified, or non-attributable statistical information associated with Transaction Information (e.g. supplier registration/participation rates, segmentation analysis, offer activity, invoice load trending analysis and industry, sub-industry and geographical trending analysis) that may be combined with other information to optimize, construct, provide or improve C2FO’s performance, modeling, products or services.
1.17 “Party” or “Parties” means, individually or collectively, as the case may be, C2FO and Supplier and any and all permitted successors and assigns.
1.18 “Person” means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture, limited liability company, a government or any political subdivision or agency thereof, or any other entity.
1.19 “Proxy Offer” is an offer made to the Buyer on behalf of Supplier and with Supplier’s authorization by C2FO.
1.20 “Residual Data” means all data (e.g. duplicate information shared between Buyer and Authorized Suppliers through the Service, including invoice information, discount proposals, dates and project numbers associated with purchase orders and invoices), for suppliers who register and/or participate in the Services, and related Award Files.
1.21 “Sanctions” means economic, trade or financial sanctions, requirements, or embargoes imposed, administered, or enforced from time to time by any Sanctions
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Authority.
1.22 “Sanctions Authority” means the United States (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, and the Bureau of Industry and Security of the U.S. Department of Commerce), the United Kingdom (including, without limitation, Her Majesty’s Treasury), the European Union and any EU member state, the United Nations Security Council and any other relevant sanctions authority.
1.23 “Sanctioned Jurisdiction” means, at any time, a country or territory that is, or whose government is, the subject of Sanctions.
1.24 “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list maintained by any Sanctions Authority, or (b) any Person located, organized or resident in a Sanctioned Jurisdiction.
1.25 “Service” branded as “C2FO” means C2FO’s proprietary electronic invoice prepayment discount market-based application services platform, related tools, and other services accessed and used by Buyer, Funder, Supplier and their respective Authorized Users (in the case of the Supplier and its Authorized Users, pursuant to the terms of this Agreement) to offer, accept, make and document payments in respect of Approved Invoices, including any successor or replacement or future services offering the same or more functionality than its predecessor.
1.26 “Software” means (i) any proprietary C2FO computer software program or application, or those of its third party licensors, utilized by C2FO in the establishment, operation, and/or the provision of the Service including any proprietary schema, data processing or storing applications, tools, methodologies, databases and (ii) all source code, documentation, updates, upgrades, and derivative works thereof.
1.27 “Supplier Services” means any consultancy services such as implementation, training or support to be provided by C2FO as set out in the signup process or as agreed between the Supplier and C2FO in writing from time to time.
1.28 “Transaction Information”means all data, Content, and information generated or posted through the Service that is disclosed directly or indirectly to C2FO by any party, but shall not include any information which was at the time of disclosure within an enumerated exception to the definition of Confidential Information.
2. SERVICE ACCESS
2.1 Use. C2FO hereby grants the Supplier a non-exclusive, non-transferable, limited right to permit Authorized Users to access and use the Service, subject to the following restrictions: (i) the Supplier may use the Service solely for the Supplier’s own business purposes; and (ii) the Supplier shall not (A) make any copies of all or
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any portion of the Service; (B) sell, sublicense, distribute, rent, lease or assign the Service to any other person or entity; (C) modify, reverse engineer, decompile, disassemble, translate, alter or create derivative works based on the Service; (D) except for Authorized Users, permit any third party to use the Service; (E) create Internet “links” to or from the Service, or “frame” or “mirror” any content forming part of the Service, other than on the Supplier’s or its Authorized Users’ own intranets or otherwise for its own internal business purposes, (F) send spam or other duplicative or unsolicited messages in violation of applicable laws, (G) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights, (H) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (I) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (J) attempt to gain unauthorized access to the Service or its related systems or networks.
2.2 Access to the Service. C2FO shall provide access to the login screen to Supplier on the instruction of, and on behalf of, the Buyer, and Supplier shall be permitted to create a unique login credential (“User Name” and “Password”) to be confidential and used by Authorized Users to access the Services. The Supplier will be solely responsible and liable for all activities that occur under any User Name and Password created by to the Supplier, including any requests made or actions taken, whether under Section 3.2 or otherwise, to obtain Accelerated Payment. The Supplier shall immediately notify C2FO of any unauthorized use of any User Name or Password and C2FO shall take such action as it deems appropriate to address the unauthorized use. The Supplier agrees on its own behalf, and agrees to require its Authorized Users, to access the Service in a secure manner in compliance with C2FO’s reasonable standards established from time to time which currently require, to the extent applicable, use of web browsers utilizing 128 bit SSL encryption.
3. SCOPE, AVAILABILITY AND MODIFICATIONS
3.1 Scope of Service. The Service is intended to enable transactions between the Supplier, the Buyer(s) and/or any Funder (as applicable) as principals and C2FO does not represent in any way either the Supplier, any Buyers or Funder (as applicable). C2FO is not a party to, third party beneficiary of, or a guarantor of performance with respect to any transaction, agreement or arrangement concluded between the Supplier, any Buyer or Funder using the Service. Specifically, (i) C2FO does not control the quality, safety, legality or availability of the content or services accessed through the Service, the terms and conditions on which the Content, goods, and/or related services accessed are provided, or the Supplier’s compliance with any agreement that it may execute with a Buyer; (ii)
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C2FO undertakes no duties to receive or distribute any payments agreed by the Supplier, any Buyer or Funder; and (iii) under no circumstances shall C2FO in any manner obtain an interest in, or otherwise be deemed to be within the chain of title of, any Content, goods, and/or related services accessed by the Supplier. Supplier acknowledges that C2FO takes no responsibility for the terms and conditions governing the provision of any Supplier Content, goods, and/or related services. The Supplier shall address any issues arising from any transaction, agreement or arrangement concluded between the Supplier, any Buyers and Funder using the Service exclusively with the relevant Buyer and/or Funder (as applicable) and shall not hold C2FO responsible or liable in any way for the actions or omissions of any Buyers. The Supplier agrees that all C2FO Market Closings will be held on a business day for the respective Buyer.
3.2 Effect of using the Service.
a) The Supplier acknowledges and agrees that the effect of using the Service and obtaining Accelerated Payment in relation to the relevant Approved Invoice results in the Supplier and the Funder or the Buyer (as applicable) agreeing that such Approved Invoice shall be paid early and extinguished solely in respect of that Approved Invoice made available through the Service to give effect to this Section 3.2(a) and to the extent of such Approved Invoice’s approved amount. The Supplier agrees that such Accelerated Payment is effective as to and enforceable against the Supplier and the applicable Buyer with regard to each Funded Invoice, notwithstanding any formalities for the trade transaction between Buyer and Supplier or any amendment required by the terms of the relevant Approved Invoice, and (ii) the applicable Buyer shall no longer be obliged to pay the Supplier in respect of the approved amount of such Funded Invoice.
b) It is always the Supplier’s decision whether to request Accelerated Payment of an Approved Invoice. If a Supplier requests an Accelerated Payment, the reduced sum payable as Accelerated Payment against the face value of each Approved Invoice will be displayed on the Service or otherwise communicated to the Supplier.
c) All Approved Invoices must be, and the Supplier hereby represents that all Approved Invoices are, in respect of genuine and lawful trade transactions arising in the ordinary course of business, and the goods and/or services which give rise to each Approved Invoice may not, and the Supplier hereby represents that all Approved Invoices do not, include any goods or services the supply or receipt of which is contrary to applicable law (including without limitation applicable national and international export control, trade sanction and embargo laws, regulations, treaties and conventions). [In addition to the
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foregoing sentence, any Supplier that is resident in Canada for purposes of the Income Tax Act (Canada) hereby represents that all Approved Invoices are solely for the supply or delivery of goods and do not arise wholly or partly from the rendering of services in Canada]
d) If an Accelerated Payment is made, with effect from such Accelerated Payment by the Buyer or Funder (as applicable) to the Supplier, the Supplier shall cease to have any rights to receive (and the Supplier shall not seek) payment from the applicable Funder or Buyer in respect of the Funded Invoice and such Funded Invoice shall be extinguished by means of such Accelerated Payment, in each case to the extent of the approved amount of such Funded Invoice (but all other sums owed to the Supplier shall remain outstanding). The Supplier represents and warrants that any Funded Invoice shall not be encumbered by any adverse claim or third party right or interest and the Supplier undertakes not to dispose of any Funded Invoices.
The Supplier hereby irrevocably authorizes C2FO to notify the applicable Buyer that the Funder (if applicable) has made an Accelerated Payment to the Supplier in relation to a Funded Invoice and to disclose to the applicable Buyer in an Award File or otherwise such transaction details as are requested to be disclosed by the Funder to give effect to the extinguishment of the Supplier’s relevant right, title and interest in the relevant Funded Invoice pursuant to this Section 3.2(d).
The Supplier acknowledges and agrees that the relevant Funder obtains a right to get reimbursed an amount equal to the approved amount of the Funded Invoice on the relevant due date by the relevant Buyer; however, the Supplier shall have no liability if the Funder is not so paid by the Buyer. Reimbursement of the requested amount in no way diminishes any right of the relevant Buyer to reclaim overpayments from the Supplier pursuant to the Approved Invoice.
By the Supplier’s entry into this Agreement, the Supplier agrees not to authorize or permit any person to have any ownership or security interest in the relevant Approved Invoices in relation to which Accelerated Payment is requested and the Supplier hereby represents and warrants that immediately prior to the relevant Accelerated Payment, the Supplier was the owner of, had good title to, and was authorized and effectively transferred or otherwise transacted with regard to the relevant Approved Invoice in accordance with the terms of this Agreement, free and clear of any lien, security interest, charge, mortgage, pledge, hypothecation, assignment, encumbrance or any other right or similar claim in, of, or on such Approved Invoice.
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The Supplier expressly acknowledges and agrees that the Funder’s provision of funding is uncommitted and that the Funder shall not, at any point, have any obligation to make any payment to the Supplier in full or in part of an Accelerated Payment, nor shall the Funder be liable for any delay in any Accelerated Payment or any other payment in connection with the Services. To the extent not settled by an Accelerated Payment as contemplated by this Agreement, the relevant Approved Invoice remains payable to the Supplier by the Buyer in accordance with its original terms.
e) The Supplier acknowledges that each of the Funder and the Buyer is a third-party beneficiary of this Section 3.2 and may enforce the provisions contained herein. Supplier acknowledges that it may be required to submit documents to the Buyer in order to comply with local market tax regulations. In the event any requested documents are not provided in the timeline specified by either the Buyer or Pollen Inc., the Supplier may not receive an Accelerated Payment in respect of their Approved Invoice(s).
f) Supplier further acknowledges that the annual percentage calculation associated with a Supplier discount offer for Accelerated Payment within the Service uses the Bankers Rounding technique and has a tolerance of one-eighth (1/8th) of one (1) percent.
g) The Award File may require the Supplier, where appropriate, to post an adjustment to its tax records (for example, in relation to turnover taxes such as VAT, GST or equivalent local sales taxes referred to hereafter as ‘VAT/GST’). If this is the case, the Supplier may in certain countries, subject to local VAT/GST regulations in the relevant country, treat the Award File as an appropriate document to adjust VAT/GST records. The responsibility to ensure that there is an appropriate document to adjust VAT/GST records, subject to relevant local VAT/GST regulations, rests solely with the Supplier. In some countries, the Award File may not show an updated VAT amount as it is not appropriate to adjust the relevant tax amount charged on the original Supplier invoice. Please note that the responsibility of ensuring that an accurate VAT/GST adjustment is posted in the Supplier’s VAT records rests solely with the Supplier and is not C2FO’s responsibility. In particular, where the Supplier has not charged VAT/GST on the original invoice, and consequently the Award File shows no VAT adjustment, it is the Supplier’s sole responsibility to ensure that any manual VAT/GST adjustments, which may be required under domestic legislation, are made to the relevant VAT/GST records. By accepting this clause the Supplier acknowledges that both the Buyer and the Supplier have authorized C2FO to issue the Award
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File on their behalf whilst clearly showing the Buyer and Supplier names and other relevant details.
3.3 Proxy Offer.Supplier agrees that C2FO may act as a limited purpose Authorized User on behalf and direction of a Supplier Authorized User (including by email, text, voice, and/or Service configuration) to request, offer or accept Accelerated Payments. Proxy Offer is provided as an optional service program for the convenience of the Supplier. As such, C2FO is not under any commitment to provide a Proxy Offer and may stop providing the program at any time in its sole discretion.
3.4 Availability of Service. Supplier acknowledges and agrees that the availability of the Service is subject to the availability of connection services and functions to and within the Internet and that the Internet is not fault-tolerant. Accordingly, C2FO shall not have any liability for any breach of any representation, warranty or covenant of this Agreement that arises out of or relates to the unavailability of such connection services and other network functions for whatever reason.
3.5 Modification of Service. The Supplier understands and agrees that C2FO may modify the Service, their names, or the manner in which the Service is made available, and that those modifications may create differences in how the Supplier accesses the Service. The Supplier further understands and agrees that, upon reasonable advance written notice to the Supplier, C2FO reserves the right to replace any of the Service.
3.6 Supplier Services. Where agreed to in the sign-up process or as otherwise agreed between the Parties, C2FO will provide the Supplier Services to the Supplier.
3.7 Indemnity. The Supplier shall indemnify, defend and hold harmless C2FO and any Funder in respect of a Funded Invoice and each of their respective directors, officers, members, managers and employees from and against all claims, actions, liabilities, losses, expenses, damages and costs (including reasonable attorneys’ fees), that may at any time be incurred by reason of claim from any third party arising out of or relating to a breach of this Agreement by the Supplier; any claim from a Buyer arising out of the Supplier’s use or misuse of the Service, or any claim that is inconsistent with a Supplier’s representations or warranties to C2FO contained in this Agreement.
4. PROPRIETARY RIGHTS
4.1 Title to Technology. All Intellectual Property Rights pertaining to C2FO, the Software, Market Statistics and the Service, in whole or in part, shall be, vest with and remain the exclusive property of C2FO and its third-party licensors. The Supplier shall not on its’ own behalf or on behalf of any third party violate C2FO’s Intellectual Property Rights.
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4.2 Market Statistics. Supplier agrees that C2FO may use Transaction Information to create Market Statistics.
4.3 Title to Content. All title, right, and interest in and to any Content submitted to C2FO in the course of providing the Service shall remain the property of the applicable Supplier or other third-party owners. If all or part of any Content becomes the subject of an actual or threatened lawsuit or if C2FO believes such Content may violate a third party’s Intellectual Property Rights or applicable law, C2FO will immediately be entitled to remove such Content without incurring any liability to the Supplier. All title, right and interest in and to content licensed by C2FO from third party licensors and utilized in the process of providing the Service, if any, shall remain the exclusive property of C2FO or its third-party licensors.
4.4 Suggestions.C2FO shall have a royalty-free, worldwide, perpetual and irrevocable license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by the Supplier and its Authorized Users relating to the Service.
4.5 Supplier’s license to C2FO. Supplier hereby grants a limited, non-transferable license to C2FO for C2FO to use the Supplier’s name, logos and trademarks to identify the Supplier as a user of the Site and the Services for C2FO’s marketing and public relations purposes, including marketing materials, advertisements, customer lists, press releases, presentations, and publications during the term of this Agreement. C2FO must obtain the Supplier’s prior written consent for any other uses of Supplier’s name, logos, and trademarks, such consent not to be unreasonably withheld or delayed.
5. CONFIDENTIALITY AND DATA PROTECTION
5.1 Nondisclosure of Confidential Information.
Each Party shall retain the other Party’s Confidential Information in the strictest confidence (on a need to know basis) and shall not disclose such Confidential Information to any third party. Each Party agrees: (i) to use the Confidential Information only for the purposes of this Agreement and as expressly permitted by this Agreement; (ii) not to make copies of or store Confidential Information or any part thereof except as expressly permitted by this Agreement; (iii) to reproduce and maintain on any copies of any Confidential Information such proprietary legends or notices (whether of Disclosing Party or a third party) as are contained in or on the original or as the Disclosing Party may otherwise reasonably request; and (iv) to treat this Agreement as Confidential Information. The Receiving Party shall notify the Disclosing Party in writing of any known unauthorized use, possession or disclosure of Confidential Information of the Disclosing Party. The Disclosing Party shall have the sole right (but shall be under no obligation) to take legal or other
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action against any third party with respect to any such unauthorized use, possession or disclosure of Confidential Information of the Disclosing Party, and the Receiving Party shall cooperate with the Disclosing Party in such effort.
Notwithstanding the foregoing, Supplier hereby agrees that Buyer, C2FO and/or the relevant Funder may disclose Transaction Information and any relevant banking information, as necessary and applicable, to (i) Funder or Funder’s affiliates, (ii) to third parties providing funds, payment reconciliation services, or other services as necessary or required to make payments to Supplier of Accelerated Payments or otherwise in connection with the Services, (iii) to actual or potential assignees, transferees or participants of Funder or any other person with whom Funder enters into (or may potentially enter into) any transaction under which payments are to be made by reference to any relevant Funded Invoice, (iv) to any person who holds or is considering holding notes in one of the secured notes programs of Funder’s group of companies (and to any relevant note issuer, note trustee and distributor of such secured note program), (v) to any relevant service providers, insurers or professional advisers of Funder or Buyer (or each of their respective affiliates) (vi) or to any governmental agency or authority or supervisory or regulatory body or as otherwise required by any applicable law or regulation.
5.2 Remedies. The Parties agree that, notwithstanding any other section of this Agreement, the non-breaching Party shall be entitled to seek equitable relief to protect its interests, including but not limited to preliminary and permanent injunctive relief, as well as money damages. Nothing stated herein shall be construed to limit any other remedies available to the Parties.
5.3 Disclosures to Governmental Entities. If Receiving Party becomes legally obligated to disclose Confidential Information by any governmental entity as a result of court order, subpoena or similar legal action (“Compelled Disclosure”), the Receiving Party will give the Disclosing Party (if allowed) prompt written notice. The Receiving Party will cooperate with the Disclosing Party’s reasonable efforts to quash, modify or challenge the Compelled Disclosure, and will disclose only such information as is legally required. Notwithstanding anything herein to the contrary, a Compelled Disclosure is not considered a breach of Section 5.1 above.
5.4 Data Protection. To the extent C2FO processes any Personal Data as a result of providing the Service, the Supplier agrees that C2FO does so as Data Processor and that the Supplier is the Data Controller in relation to such Personal Data and in relation to such Personal Data: (i) C2FO will process such Personal Data for the sole purpose of providing the Service in accordance with the terms of this Agreement and any lawful written instructions reasonably given to C2FO by Supplier from time to time; and (ii) Supplier will have in place appropriate technical and organizational
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security measures against unauthorized or unlawful processing of such Personal Data and against accidental loss or destruction of, or damage to, such Personal Data. For the purposes of this Agreement, the terms “Personal Data”, “Data Processor” and “Data Controller” shall have the same meaning as set out in the EU General Data Protection Regulation ((EU) 2016/679).
5.5 International Data Transfers. C2FO and Supplier acknowledge and agree that any Personal Data processed as a result of providing the Service will be hosted or stored in the United States of America by C2FO’s Affiliate (or, in case of Personal Data processed by an actual or prospective Funder (or any of its Affiliates), hosted and stored in the United Kingdom or Europe and, in any case, in accordance with all applicable data protection legislation). In respect of such Personal Data, C2FO represents and warrants that it has taken appropriate measures to comply with applicable Data Protection Laws in respect of such Personal Data.
6. TERM AND TERMINATION
6.1 Term. This Agreement shall become effective on the date the Supplier or any Authorized User first registers on the Site and agrees to these terms and shall continue in force so long as the Service is being provided by C2FO to the Supplier.
6.2 Termination for Cause.C2FO may terminate this Agreement if (a)(i) the Supplier defaults under this Agreement; and (ii) such default is not cured within three (3) business days after notice of default is provided to the Supplier; or (b) the Supplier terminates or suspends its business activities, becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding under any applicable law.
6.3 Termination for Convenience. Either Party may terminate this Agreement at any time for any reason at its sole discretion by providing the other Party no less than thirty (30) days advance written notice thereof.
6.4 Effect of Termination. Upon termination of this Agreement consistent with the terms herein, C2FO may immediately discontinue Supplier’s access to and use of the Service. Supplier shall promptly discontinue use of any Service and destroy any Confidential Information that Supplier has received from C2FO.For a period of not less than seven (7) years post-termination, C2FO may keep one (1) copy of all Residual Data for archival, litigation, regulatory, financial and audit tracking purposes in accordance with standard data security, audit and accounting practices. C2FO is not required to affirmatively purge delete or purge any records in backup or archival systems kept in the normal course of business.
6.5 Survival. Notwithstanding any termination of this Agreement, Sections 5.1 – 5.3 739967596.4
(“Confidentiality”) shall survive for a period of five (5) years, Section 8.4(“Employee Solicitation”) shall survive for a period of one (1) year, while Sections 3.7 (“Indemnity”), 4 (“Proprietary Rights”), 7 (“Disclaimer; Warranty; Limitation of Liability”), and 8.6 (“Governing Law”) shall survive termination of this Agreement indefinitely. All other rights to the Services granted to the Supplier by C2FO hereunder will cease upon termination.
7. DISCLAIMER; WARRANTY; LIMITATION OF LIABILITY.
7.1 Disclaimer.To the maximum extent allowed by law and except as unambiguously and expressly set forth in this Agreement, the Supplier Services are provided “as is” and C2FO specifically excludes and disclaims all implied warranties, conditions and representations (including relation to quality, skill and care and fitness for a particular purpose) connected with, related to or arising out of this Agreement and any representation, condition or warranty that access or use of the Service will be error-free, secure or uninterrupted, or that information or content will be accurate or timely.
7.2 Supplier’s Warranty. Supplier represents and warrants that (i) its Authorized Users have authority to act on behalf of the Supplier; and (ii) all Transaction Information or other materials submitted by the Supplier to C2FO hereunder is correct, accurate, up-to-date and will not (A) infringe on any third party’s rights, including any Intellectual Property Rights, (B) violate any applicable law, statute, ordinance or regulation; or (C) contain viruses, trojan horses, worms, time bombs, cancel bots or other similar harmful or deleterious programming routines.
Supplier represents warrants that: (i) it is duly organized, validly existing and in good standing under applicable law; (ii) it has the power and authority to execute, deliver and perform under this Agreement; and (iii) this Agreement constitutes a valid and binding obligation enforceable in accordance with its terms.
7.3 Limitation of Liability. To the maximum extent allowed by law, in no event will C2FO (and any C2FO subcontractor) or the Funder or any of its Affiliates be liable for any loss of profits or revenue, loss of business, goodwill or reputation, loss of anticipated savings, loss of use, business interruption, loss of data or costs of procurement of substitute goods, technologies or services, cost of cover or punitive or exemplary, or and direct, indirect, special, incidental or consequential damages of any kind in connection with or arising out of the furnishing, performance of or use of the Service or Supplier Services, whether alleged as a breach of contract or tortious conduct, including negligence, even if the Supplier has been advised of the possibility of such damages, including but not limited to (1) the failure, for any reason, to receive Accelerated Payment of any Approved Invoice under the Service or for any delay in such payment; (2) any financing aspects of the Service; (3) the
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accounting treatment or tax consequences arising out of accelerated payments or the Supplier’s participation in the Services otherwise; (4) the failure or alleged failure of the Service, or any party involved therewith, to comply with applicable laws; or (5) any damages caused by delay in delivery or furnishing the Service or Supplier Services. C2FO’s aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement, will not, in any event, exceed the greater of fees actually paid by Supplier to C2FO pursuant to this Agreement during the six (6) months prior to the occurrence of the breach or incident asserted as causing damage or $100.00.
7.4 Exclusion. Nothing in this Agreement excludes the liability of C2FO or the Funder for death or personal injury caused by C2FO’s negligence or for fraud or fraudulent misrepresentation.
8. GENERAL
8.1 Compliance. Supplier agrees that: (i) it will provide to C2FO any information in its possession related to an Authorized User who may be a Sanctioned Person; (ii) if C2FO determines in its commercially reasonable discretion that any Authorized User is a Sanctioned Person, C2FO may deactivate the Sanctioned Person as an Authorized User; (iii) Supplier shall comply with all relevant laws and regulations, anti-bribery/corruption, anti-money laundering and export control laws, and tax information reporting requirements applicable to this Agreement; (iv) if Supplier is listed as a Sanctioned Person, Supplier will notify C2FO; and (v), if C2FO determines in its commercially reasonable discretion that Supplier is Sanctioned Person, C2FO may deactivate the Supplier and no further invoices for the Supplier will be submitted to the Service.
8.2 Notices. Any notice required or permitted under the terms of this Agreement shall be delivered in person, by fax, overnight courier service, or mailed by first class, registered, or certified mail, postage prepaid, if to the Supplier: to the address supplied by the Supplier during the sign-up process or if to C2FO: Attention: C2FO – Legal Notices, 2020 West 89th Street, Suite 200, Leawood, Kansas 66206. All such notices shall be deemed to have been given upon receipt.
8.3 Third party rights. Buyer and Funder and their successors and permitted assigns, as applicable, shall be deemed to be a third-party beneficiary of the terms of this Agreement and have the benefit of and be entitled to enforce the terms of this Agreement against Supplier. Subject to the foregoing and save as expressly provided for in this Agreement, this Agreement does not confer any rights on any person not a Party to this Agreement.
8.4 Employee Solicitation. Neither Party shall, directly or indirectly, for itself, or on 739967596.4
behalf of any other person, firm, corporation or other entity, whether as principal, agent, employee, stockholder, partner, member, officer, director, sole proprietor, or otherwise, solicit, participate in or promote the solicitation of the other Party’s employees or independent contractors to leave the employ or service of the other Party, during the period such employee or independent contractor is working with the other Party and for one (1) year immediately following the period for which such employee or independent contractor last performed services for the other Party.
8.5 Assignment and subcontracting. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Supplier, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of C2FO, except as expressly permitted hereby. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns. Notwithstanding anything to the contrary, C2FO shall have the right to assign the Agreement and/or subcontract any of its obligations hereunder subcontract any of its obligations hereunder in part or in full to third parties. The Funder (and any of its successors and permitted assigns) shall have the right, without consent from or notice to any person, to sell, transfer, assign, negotiate, or grant participations in, or declare a trust or create security over, all or any part of, or any interest in, its rights and benefits under the terms of this Agreement.
8.6 Governing Law. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of the State of New York USA, without reference to conflict of laws principles. The parties irrevocably agree that the courts of the State of New York have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims). A Buyer may, as provided for in this Agreement, enforce this Agreement against a Supplier pursuant to Section 3.2 of this Agreement in any court of competent jurisdiction.
8.7 Independent Contractors.The relationship of C2FO and the Supplier established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed or implied to give either Party the power to direct or control the day-to-day activities of the other or constitute the Parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking.
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8.8 Terms. C2FO reserves the right to amend or terminate all or any part of this Agreement at any time. Any such amendments will be in accordance with applicable law, and C2FO will provide notice of such amendments to Funder and as otherwise required by law. Supplier agrees to abide by the Agreement in effect each time that Supplier accesses the Services. The revised Agreement will be effective when posted.
8.9 Miscellaneous. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction: (i) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. The failure of either Party to enforce at any time any of the provisions of this Agreement shall not be deemed to be a waiver of the right of either Party thereafter to enforce any such provisions. Except for any obligation to make payments, nonperformance of either Party shall be excused to the extent that performance is rendered impossible by Force Majeure. Section headings are for ease of reference only and do not form part of this Agreement. The Supplier acknowledges having read the terms and conditions set forth in this Agreement, understands all the terms and conditions, and agrees to be bound thereby. No employee, agent, representative, or Affiliate of C2FO has authority to bind C2FO to any oral representations or warranty concerning the Service. Any written representation or warranty not expressly contained in this Agreement will not be enforceable.
8.10 Governing Language. This Agreement is entered into in the English language. Any translation prepared for any reason shall be a non-binding accommodation of no legal effect, and the English version of this Agreement shall govern. All communications with respect to this Agreement shall be in the English language. All actions brought under this Agreement shall be conducted in English, and all documents, other than third-party documentary evidence, submitted to the court or used in support of either party shall be in English. Without limiting the generality of this Section 8.8, each of the Parties acknowledges that: (i) it shall not assert any claim based upon any translation or any discrepancy or purported discrepancy between such translation and this English-language version of this Agreement; and (ii) any such translation shall not be used to interpret this Agreement.