4 Funder Terms (the “Terms”)
“Approved Currency” means United States Dollars.
“Benchmark Rate” means, for United States Dollars, as the relevant Approved Currency, LIBOR (London Inter-Bank Offered Rate), as administered by ICE Benchmark Administration Limited or any successor administrator of that rate and displayed on the applicable Reuters screen, at or around 11:00 a.m. London time on two (2) Business Days immediately preceding the Invoice Settlement Date for the 90 day LIBOR period; provided that if such offered rate shall be less than zero, LIBOR shall be deemed to be zero. In the event that such rate is not available, “LIBOR” shall be determined by reference to such other comparable publicly available service for displaying the offered rate for deposits in U.S. Dollars in the London interbank market as may be selected by the Bank and, in the absence of availability, such other method to determine such offered rate as may be selected by the Bank in its sole discretion. In each case, if such rate is less than zero, the Benchmark Rate shall be deemed to be zero.
“Business Day” means a day other than a Saturday or Sunday on which commercial banks are open for business in New York, NY.
“C2FO Reduction” means, for each Early Payment, an amount equal to: (a) the approved amount (less any relevant credit notes applied, where relevant) confirmed by the Buyer multiplied by (b) 0.00% (unless the Bank and/or C2FO notifies you of a different rate in writing), divided by (c) a 360 or 365 day year as is determined by the Bank to be customary for the relevant currency in the local interbank market, multiplied by (d) the Tenor.
”Discount” means, an amount equal to: (a) the approved amount (less any relevant credit notes applied, where relevant) confirmed by Buyer multiplied by (b) the Discount Rate, divided by (c) a 360 or 365 day year as is determined by Bank to be customary for the relevant currency in the local interbank market, multiplied by (d) the Tenor.
“Discount Rate” means, unless the Bank and/or C2FO notifies you of a different rate in writing, a percentage, calculated as the sum of (a) the percentage interest using the relevant Benchmark Rate on the date of payment of Early Payment for the relevant Approved Currency, plus (b) a margin of 0.50%.
“HSBC Group” means HSBC Holdings plc and its subsidiaries and associate undertakings including any of their branches.
“Invoice Settlement Date” means the date (which may differ from the invoice due date) identified by Buyer (or determined using Buyer agreed parameters, based on criteria such as Buyer’s payment scheduling) as the date for settlement of the relevant approved amount if the relevant date identified is not a Business Day, then it shall be deemed to have been identified as the next following Business Day.
“Tenor” means the number of days from the date of any Early Payment by Bank to Supplier to the Invoice Settlement Date (inclusive).
3. Buyer (or C2FO on its behalf) may provide details to Bank for Approved Invoices and advises the approved amount, Invoice Settlement Date and other additional information required to enable Bank, at its discretion, to effect Supplier’s requested Early Payment. Supplier will use C2FO’s Service to view Approved Invoices and make any request for Early Payment, or you may have confirmed to Bank and/or C2FO that you wish to always and automatically request Early Payments in respect of Approved Invoices.
4. If Bank elects (in its sole and absolute discretion) to make an Early Payment, it shall be the relevant approved amount less (i) the Discount, (ii) fees or deductions notified to Bank as being payable to C2FO and deductible from the approved amount (including the C2FO Reduction), (iii) the deductions set out below (if any) and (iv) any credit notes. If Bank elects not to make Early Payment, C2FO may notify Supplier. If Supplier is not paid by the Invoice Settlement Date or Supplier has queries relating to deductions and/or Invoice Settlement Dates, any such enquiries should be directed to Buyer or C2FO.
5. Fees and charges may change from time to time and will be notified to Supplier in writing (which may include by email) and are in addition to any fees and charges Supplier may incur with its account holding bank and/or intermediary banks.
6. Early Payments shall be made by Bank on a non-recourse basis. Upon any payment to you on account of an Approved Invoice (including, without limitation, any early payment net of any deductions set out in these Terms, and any credit notes, you shall mark its books and computer records accordingly to indicate “satisfaction in full” of such Approved Invoice.
7. Without affecting the C2FO Terms, Bank may terminate these Terms (or parts thereof) immediately on notice to you and C2FO (effective on receipt). Supplier may terminate these Terms upon written notice to and written acknowledgement from Bank and C2FO. Any rights and obligations that accrued before termination under these Terms will survive and all Early Payments prior to termination will continue to be governed by these Terms.
8. Supplier may not assign or transfer these Terms or the right to receive payment from Bank without the prior written consent of Bank. Bank may (i) assign or transfer any of its rights or obligations under these Terms, or (ii) enter into sub-participation arrangements and/or other risk mitigation in relation to these Terms, in each case with any person without Supplier consent.
9. Bank may make amendments to these Terms which will become effective immediately on notice to the Supplier. Any such notice may be given by publishing such amendments on the C2FO Platform.
10. Supplier acknowledges, agrees, warrants and represents to Bank that:
a. it is and will remain fully compliant with all laws and regulations applicable to it and no insolvency proceedings or process has been commenced by or against it;
b. its involvement in the supply chain finance program with Buyer has not violated and shall not violate any applicable anti-bribery and corruption laws and regulations including, but not limited to any relevant provision in force in the jurisdiction where it and Bank are domiciled and operate;
c. neither it nor any of its subsidiaries, directors, officers, employees, agents, or affiliates is an individual or entity (“Person”) that is, or is owned or controlled by Persons that are subject of any Sanctions or located, organized or resident in a Sanctioned Jurisdiction;
d. it will not, directly or indirectly, use any benefit derived from the supply chain finance program to support any activities or business of or with any Sanctioned Person, or in any Sanctioned Jurisdiction; or in any other manner that would result in a violation of Sanctions by any Person;
e. it confirms compliance and will comply in all material respects with foreign and domestic laws and regulations relating to Sanctions, anti-money laundering, export controls and any required import or export licenses, pertaining to each jurisdiction in which it operates and to each Approved Invoice, and will promptly notify Bank of any circumstance in connection with an Approved Invoice that may relate to money laundering, terrorist financing, bribery, corruption, tax evasion or Sanctions;
f. Bank shall be entitled to refuse, stop or cancel any Early Payment and/or take any action to protect Bank’s interest in the event that any representation or warranty given by Supplier is inaccurate or untrue;
g. where it has confirmed an email address for receipt of encrypted emails from Bank, Bank may, at its discretion, send encrypted emails to Supplier with 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 Bank’s encrypted emails solution, Securemail, which Supplier will need to agree separately in order to receive the emails. Bank shall not be liable to Supplier (or any third party, including Buyer) in any circumstance for any error or omission in any email it issues to Supplier;
h. in the event that any payment made by Bank renders Supplier liable to any tax (including without limitation any value added, sales, withholding or other tax), levy, impost, duty, charge, assessment or fee of any nature (including interest, penalties and additions thereto) imposed by any government or other taxing authority) due or imposed in any jurisdiction, Bank shall not be liable in relation to, nor responsible for, any claim made by Supplier relating to its liability for such tax in any circumstances;
i. it agrees that Bank may make any deduction on account of tax Bank is required to make by any local or foreign tax or regulatory authority from or in respect of any payment made to Supplier, or to another person at its request or instruction, in connection herewith and Bank may pay the amount deducted to the relevant tax or regulatory authority;
j. it indemnifies Bank against any loss, damage, cost, expense or liability Bank incurs or suffers as a result of (i) any breach by Supplier of the Terms and (ii) any applicable tax being assessed on, payable by or claimed against Bank arising out of or in connection with these Terms and payments Bank makes to Supplier (excluding any relevant income tax imposed on Bank), including (but not limited to) any value added, sales, withholding, stamp duty, registration or other similar tax; Supplier must pay any amount it owes under this clause within five days of demand by Bank;
k. no claim shall be made by Supplier or any of its officers, directors, employees, agents, representatives or advisers against any member of the HSBC Group or C2FO or any of their respective officers, directors, employees, agents, representatives or advisers for any special, indirect, punitive or consequential damages in respect of or arising from breach of contract or any other theory of liability relating to or connected herewith; all such claims are waived and released;
l. you will promptly account to Bank on receipt of any relevant recoveries;
m. no third party holds or will hold an interest (including, but without limitation, any ownership or security interest) in Supplier invoices submitted to Buyer or debt represented thereby in a manner that would in any way restrict or limit the early payment of such invoice, net of any deductions and credit notes set out herein, constituting the “satisfaction-in-full” of such invoice in an enforceable manner binding on you and such third-party; and neither the entry into these Terms nor the payment or early payment of invoices in accordance herewith (net of any deductions set out herein and any credit notes) shall constitute a violation or breach of, or trigger any indemnity, accelerated payment obligation or other negative consequence under, any agreement with any such third-party nor interfere with any rights of any such third-party;
n. all payments made by Bank shall be made based on the information provided to Bank by Buyer and C2FO; Bank shall be under no obligation to check the account details provided to it by Buyer and/or C2FO. To the extent that any issue arises related to the amount paid, set‑off, counterclaim, credit notes, deduction or withholding, it will be a matter for Supplier and Buyer to determine;
o. Buyer intends to permit C2FO to be able to collect the C2FO Reduction in respect of each Early Payment, and by way of arrangements with Bank the C2FO Reduction will be deducted from the relevant approved amount before any Early Payment by Bank to Supplier. In this regard, Supplier confirms to Bank that:
i. neither Buyer or C2FO has exerted improper pressure or used improper means to require or influence Supplier to agree to receiving Early Payments from Bank or to agree the C2FO Reduction; and
ii. it is aware and acknowledges that no service is provided by Bank (whether directly or indirectly) to Supplier in respect of the deduction of the C2FO Reduction to be borne by Supplier;
p. it acknowledges and specifically consents to Bank (i) engaging with C2FO 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 (iii) disclosing information (including personal data) to C2FO where necessary or desirable to give effect to the Terms;
q. it acknowledges that Bank may, as necessary or appropriate to facilitate use of C2FO’s Service by Supplier and persons authorized by it, transfer and disclose relevant information (including personal data) globally, to C2FO and any member of the HSBC Group, and such recipient may also process, transfer and disclose such information for the same purpose;
r. it shall ensure that every person or entity in respect of which personal data is provided by Supplier (or by anyone else on its behalf), or will be from time to time provided by Supplier, to Bank, C2FO or to another member of the HSBC Group has been notified of and agreed to the processing, disclosure and transfer of their information (including to or from C2FO) before their information is provided. Supplier shall at the same time advise them that they have rights of access to, and correction of, their personal data; Supplier acknowledges that Bank will use any information Supplier provides to Bank as explained in Bank’s privacy notice (references to customer therein are deemed to refer to Supplier where the context requires) and that it can find this at www.us.hsbc.com/online-privacy-statement/ or it can ask for a copy by writing to HSBC Bank USA, N.A., P.O. Box 2013, Buffalo, NY 14240.
s. it acknowledges and agrees that, as regards processing of personal data, Bank acts as controller in respect of such processing, and it is not intended that Bank shall act as a processor in respect of any personal data;
t. it acknowledges that C2FO is independent from Bank and nothing in these Term shall constitute a partnership, joint venture or other form of association between C2FO and the Bank. The Bank assumes no liability or responsibility whatsoever relating to C2FO’s Service including, without limitation, in relation to (i) any unavailability of the Service for any reason, (ii) Supplier’s use of the Service, and (iii) any delay, malfunction or data error relating to the Service;
u. it confirms that it has read and agreed to the C2FO’s Terms in respect of its Service; this includes, without limitation, Supplier’s agreement to any limitations of liability, disclaimers or other terms that limit Supplier’s rights in relation to C2FO; and
v. It confirms it is a diverse supplier under the Buyer’s Supplier Inclusion (walmart.com) program (“Inclusion Program”) and agrees to comply with the terms thereof, including with respect to any registration requirements and keeping your diverse supplier certification up-to-date. Supplier also agrees that if its status as a diverse supplier has changed, Supplier will notify Buyer as soon as possible at SupplierInclusion@walmart.com (or as directed by Buyer). For purposes hereof, the term diverse supplier is defined by the Buyer to mean a U.S. privately held company that is 51% owned and operated by a woman, minority, veteran, disable veteran, person with a disability or a member of the lesbian, gay, bisexual or transgender (LGBT) community.” If you have any question about the Inclusion Program, please visit http://corporate.walmart.com/suppliers or email SupplierInclusion@walmart.com
11. The following disclosure provisions survive termination and are binding for 3 years after a valid termination:
a. Supplier permits Bank to pass on information it receives in connection herewith: (a) to Bank's actual or proposed successors and assigns; (b) to any company in the HSBC Group; (c) to Bank's professional advisers; (d) to any rating agency or actual or proposed insurer or other provider of credit protection to Bank; (e) to any person with whom Bank has or may enter into sub-participation arrangements and/or other risk mitigation in respect of any risks or rewards under Approved Invoices; (f) to any person whom Bank reasonably considers necessary to obtain receipt of payment of any Approved Invoices; (g) as required by law or to any court or regulatory, supervisory or governmental authority; or (h) to a federal reserve or central bank, provided that, for disclosure under (a), (b), (c), (d), (e) or (f) above, the party to whom disclosure is made is bound to keep that information confidential and use it only for the purpose for which it is disclosed;
b. Supplier undertakes to provide Bank on request with any information or documentary evidence about its tax status or the identity or tax status of any of its ultimate or any intermediate owners that Bank considers (acting reasonably) is needed to comply (or demonstrate compliance or avoid non-compliance) with any HSBC Group member's obligations to any local or foreign tax or regulatory authority (the "Tax Information");
c. Supplier authorizes (and undertakes on request to obtain written authority or consent of any of its ultimate or intermediate owners for) any member of the HSBC Group to disclose its or its ultimate or any intermediate owners' Tax Information (as applicable), information about these Terms and any Approved Invoices and the link between these Terms and Approved Invoices and Supplier or its ultimate or any intermediate owner(s) to any local or foreign tax or regulatory authority; and
d. nothing in these Terms obliges Bank to act or refrain from acting in any way that might cause breach of any legal or regulatory requirement, contractual obligation or Bank policy or harm Bank's or the HSBC Group's reputation.
12. These Terms are governed by the laws of the State of New York. You irrevocably submit to the non-exclusive jurisdiction of the courts of the State of New York and the courts of the United States of America for the Southern District of New York in respect of any proceedings which may be initiated in connection with these Terms.
13. In agreeing to these Terms, Supplier confirms that:
a. it has read or viewed and understood any relevant fact sheet, video or other materials provided to it as part of the onboarding process;
b. it has agreed to the C2FO Terms;
c. all relevant information about Supplier as provided to Buyer is accurate or Supplier has notified any relevant changes to Buyer;
d. it has read and understood the relevant deductions that will be made in respect of Approved Invoices prior to Early Payment;
e. the person agreeing to these Terms has the necessary authority and capacity to confirm acceptance of the Terms on Supplier’s behalf;
f. it has taken all necessary steps to authorize agreement to and performance of these Terms; and
g. the agreement to these Terms and the granting of such authorizations as may be necessary are in accordance with the applicable constitutional documents of Supplier’s organization.
14. In choosing to accept these Terms electronically and selecting the “I accept” option:
a. Supplier consents to use of electronic communications, to receiving notices and communications electronically and to utilising electronic signatures in lieu of using paper documents; the electronic signature service is accessible via a relevant link on C2FO’s Service;
b. Supplier acknowledges: (i) it is not required to receive notices and disclosures or sign documents electronically and may request to receive paper copies and withdraw consent (given at (a) above) for any future receipt or signing at any time, by notifying Bank and C2FO; (ii) it may download certain documents, including these accepted Terms, and print them (viewing and printing will require that Supplier has compatible software); (iii) if it requires paper copies, Supplier may request the same be provided by Bank (and Bank will confirm any fees associated to providing paper copies);
c. Supplier agrees that (i) the individuals accessing C2FO’s Service and subsequently accessing and accepting these Terms (via the relevant link on that Service or otherwise) are authorized to execute, for and on Supplier’s behalf, all agreements that are being furnished to Supplier electronically via C2FO or a link available on its Service; (ii) any such agreement executed in this fashion shall be binding and considered, in connection with any transaction, to be “in writing”, “signed” and to constitute an “original” when printed from electronic files or records established and maintained in the normal course of business; (iii) Supplier will not contest the validity or enforceability of any such agreement under the provisions of any applicable law relating to whether certain agreements are to be in writing, must be physically signed or whether the relevant individual(s) are authorized to execute any such agreement; and (iv) Supplier will not contest admissibility of records executed or created through C2FO’s Service or a link available on its Service on the basis that records executed or created were not done so in documentary form; and
d. Bank shall be entitled to rely on and assume that Supplier accepting this document electronically is valid, effective and enforceable execution and/or, to the extent permitted by law and necessary to do so, may treat purported execution by this method as deemed acceptance of the content.
15. YOU HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING BETWEEN THE PARTIES HERETO ARISING OUT OF OR RELATING TO THESE TERMS AND RELATED NOTICE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Interest Rate Disclosure
The following is provided for general information only and you should conduct your own independent research and analysis regarding the risks involved in conjunction with your legal, tax and/or accountancy advisors. The statements below are not exhaustive. Whilst HSBC receives updates from regulators as to their expectations, there are events relevant to benchmark rates which are not yet known. Accordingly, HSBC cannot give any statement about the likelihood of any specific outcome or its potential impact on any transaction, nor is HSBC providing any advice or recommendation.
What is LIBOR? The London Interbank Offered Rate (“LIBOR”) is an interest rate benchmark often used, directly or indirectly, to determine the interest payable under banking products including to calculate relevant early payment discounts. In addition to LIBOR, calculation methodologies of some other benchmarks may be linked to LIBOR and these benchmarks may be directly or indirectly impacted as a consequence of LIBOR transition.
What’s changing? LIBOR is subject to national and international regulatory guidance and reform. Examples of recent regulatory and industry led guidance and proposals include:
o On 5 March 2021, the Financial Conduct Authority (FCA), the UK regulator of LIBOR , announced that all LIBOR settings for all currencies will either cease or no longer be representative immediately after (i) 31 December 2021, for GBP, Euro, Swiss Franc and Japanese Yen LIBOR settings in all tenors, and US Dollar LIBOR 1-week and 2-month settings; and (ii) 30 June 2023, for US Dollar Overnight, 1-month, 3-month, 6-month and 12-month settings.
o The FCA also stated it will consult in Q2 2021 on the publication of certain LIBOR settings on a ‘synthetic’ basis (a different calculation methodology) after the above dates to potentially support the transition of ‘tough legacy’ contracts (contracts that are expected to be particularly difficult to transition) in limited circumstances.
o UK regulators have made it clear that that all new issuance of GBP LIBOR referencing products that expire after the end of 2021 should cease by the end of March 2021.
o The Alternative Reference Rates Committee (ARRC) which is a group convened by the Federal Reserve Board and the Federal Reserve Bank of New York to assist with a market transition from USD LIBOR to the Secured Overnight Financing Rate (SOFR) has, for US documentation, recommended that after 30 September 2020, no new USD LIBOR products maturing after 2021 should be issued. US financial regulator recommendations are to cease products using USD LIBOR as soon as practicable and in any event by the end of 2021.
o The methodology for the calculation of EURIBOR could in the future change which could result in EURIBOR being different than would have been the case if it were to be determined using its existing methodology. It is also possible in the future that EURIBOR may become unavailable. Fallback provisions are also being developed by the Working Group on Euro Risk-Free Rates for use in contracts referencing EURIBOR. Your product documents may require amendment to reflect any recommended fallback provisions.
o Financial regulatory authorities are encouraging the use of “Risk Free Rates” or “Near Risk-Free Rates” (RFRs) which have been developed as alternative interest rate benchmarks. RFRs are typically backward looking overnight rates based on actual transactions and reflect the average of the interest rates that certain financial institutions pay to borrow overnight on an unsecured basis from wholesale market participants (for unsecured RFRs, such as SONIA) or the average rate paid on secured overnight repurchase or “repo” transactions (for secured RFRs, such as SOFR). RFRs do not include or imply any credit or term premium of the type seen in LIBOR or EURIBOR; however, RFRs are not truly free of risk; RFR’s can rise or fall as a result of changing economic conditions and central bank policy decisions.
Why are we sending this to you? As you are in receipt of terms from us that use LIBOR and/or that use an RFR to calculate discounts, you should be aware of the potential impact of these changes. You may use this information alongside the other information published by regulators to assist you and your advisers in deciding whether a different payment solution is more appropriate.
What are the key differences? The RFR interest rate benchmark for US Dollars is SOFR. LIBOR is a ‘term rate’ which means it is published for different periods of time (e.g. 3 or 6 months) and is a ‘forward looking’ rate which means it is published at the beginning of the borrowing period and remains the same for that period. It is important to note:
o the manner of adoption, calculation and application of RFRs for early payment discounts may differ compared with the application, calculation and adoption of RFRs in other products, such as the bond and derivatives markets;
o for some settings and currencies, LIBOR may continue to be published on a synthetic and non-representative basis; however, such continuance, is expected to be used only for contracts unable to transition from LIBOR because they genuinely have no or inappropriate alternative and have no realistic ability to be renegotiated or amended;
o the adoption, calculation and application of a RFR could result in differences to the economics over the duration of the discounting and mean that amounts payable are lower or higher than using a LIBOR or other interest rate benchmark; you should ensure you speak to your advisers to understand the consequences of this;
o forward-looking SONIA term rates have been developed; the ARRC is seeking to develop forward looking SOFR term rates for US dollars, however this is subject to the development of a robust SOFR derivatives market and there is no indication of how extensive use of such rates will be;
o term RFRs are based on forward-looking derivatives (typically Swaps or Futures) on overnight RFRs and therefore include future rate expectations but not interbank credit risk; the quality and stability of a term RFR is a function of derivative market liquidity and therefore these rates are different to the RFRs themselves and pose additional risks in their use;
o forward-looking term RFRs may not be available in every currency, particularly those where there is no active and liquid derivatives market e.g. CHF SARON;
o using a RFR where interest is calculated using one calculation methodology (e.g. RFR compounded in arrears), could mean that amounts payable are lower or higher than using an alternative interest rate benchmark or a RFR calculated using a different methodology (e.g. forward looking term RFR);
o you may find that different products will use different methodologies and conventions for calculating interest e.g. a loan facility may use a compounding in arrears methodology whilst a trade facility may use a forward looking term or a simple overnight rate; you should consider the operational impacts this may have on you;
o RFR interest rate calculation conventions will likely require your internal treasury, accounting and payment systems to be enhanced in order for you to manage the servicing of these products in an accurate, efficient and timely manner;
o future changes to market practice or conventions relating to the use of RFRs could potentially be adverse to your interests, require you to make changes to the documentation you have executed with us or to other administrative and operational changes you have already made; these further changes could result in you incurring additional costs;
What’s the impact for you? It is possible that use of a RFR may result in changes to the early payment amounts payable. Those amounts might be lower or higher than would have been payable if LIBOR had applied. Where an RFR is used, fallback provisions will be included to address unavailability of an RFR as an interest rate benchmark. The fallback provision may vary by jurisdiction and may result in changes to the discount amounts, which may be higher or lower than would have been payable under the RFR.
If you are using a derivative product to hedge your early payments or for other purposes, the fallback interest rates that may apply may no longer match and could result in your position ceasing to be hedged appropriately by that product. Furthermore, in the event of a restructuring or termination of any associated hedging product(s) you have with HSBC or another hedging provider, a payment may be due from you to HSBC or that hedging provider. Such payment may be significant.
Where can I find further information? We are unable to provide specific advice or recommendations on this issue. We strongly recommend you seek guidance from your usual professional advisors if you have any questions. Further information is available at: www.business.hsbc.com/ibor.