1. Upon agreement by you (“the Supplier”), these Terms constitute the terms agreed between you and the Bank in relation to the SCF programme provided by the Bank to the Buyer.
2. Each reference to the Buyer below is a reference to the Buyer 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.
3. 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), bank account information, 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 5 days before the Invoice Settlement Date specified by the Buyer). You acknowledge and agree that your information is provided by the Buyer (whether directly or through the Service Provider) to the Bank in relation to the SCF programme.
4. 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.
5. 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 Service Provider.
6. 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 will notify you.
7. Payments shall be made by the Bank on a non-recourse basis. Without otherwise impacting your contractual arrangements with the Buyer, any and all cashflow 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.
8. 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.
9. 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.
10. 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.
11. The Bank may make amendments to these Terms which will become effective the date on which they are expressed to take effect in the notice from the Bank to you. Any such notice may be given to you in writing or by publishing such amendments on such website location as the Bank notifies you of from time to time. However, the 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 you.
12. 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 firstname.lastname@example.org. 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.
“Approved Currency” means, at any given time one of the following currencies:
(a) United States dollars;
(b) Singapore dollars; or
(c) such other currency as is agreed between the Buyer and the Bank from time to time.
“Business Day” means a day other than a Saturday or Sunday on which commercial banks are open for business in Singapore.
“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.
14. You acknowledge, agree, warrant and represent that:
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;
b. your involvement in the supply chain finance transactions with a Buyer has not violated and shall not violate any applicable anti-bribery laws and regulations including, but not limited to any relevant provision of any applicable anti-bribery 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;
c. 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;
d. 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;
e. you confirm compliance and will comply in all material respects with foreign and domestic laws and regulations relating to Sanctions, 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;
f. 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;
g. 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 relevant payment information identifying Approved Invoices, approved amounts, date of payment and the correlating net amount paid (after fees and charges). 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;
h. 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;
i. 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;
j. 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;
k. 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;
l. at any time that transfer of cashflow 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;
m. 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;
n. 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;
o. the Service Provider will 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:
i. 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;
ii. no one has exerted improper pressure or used improper means to require or influence you to agree to receiving any early payments from the Bank; and
iii. 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;
p. 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 Term without the consent of any person who is not party to it;
q. you acknowledge and specifically consent to the Bank (i) engaging with the Service Provider to 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;
r. 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 process, transfer and disclose such information for the same purpose;
s. 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 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;
t. 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;
u. you acknowledge that the Service Provider is independent from 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
15. The following disclosure provisions survive termination and are binding for 3 years after a valid termination:
a. 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;
b. 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");
c. 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
d. 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.
16. These Terms are governed by the laws of Singapore. You and the Bank each irrevocably submit to the non- exclusive jurisdiction of the courts of Singapore in respect of any proceedings which may be initiated in connection with these Terms.
17. In agreeing to these Terms, you confirm that:
a. you have read or viewed and understood any relevant fact sheet, video or other materials provided to you as part of the onboarding process whether delivered directly to you by the Bank or delivered to you via the Service Provider;
b. you have agreed to any relevant terms and conditions issued to you by the Service Provider;
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;
d. you have read and understood the relevant deductions that will be made in respect of Approved Invoices prior to payment to you;
e. the person agreeing to these Terms has the necessary authority and capacity to confirm acceptance of the Terms on your behalf;
f. you have taken all necessary steps to authorise the agreement to and performance of the Terms; and
g. 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.