3PFA User Terms

1. INTRODUCTION

1.1 These terms (these "3PFA User Terms") are made between you ("Customer" or "you") and Airwallex (Hong Kong) Limited ("us", "we" or "Airwallex").

1.2 These 3PFA User Terms govern our provision, and your use, of the 3PFA Services.

1.3 These 3PFA User Terms are supplemental to, form part of, and must be read together with, the General Terms, the Treasury Management Terms and other Airwallex terms that you have agreed to (together, the "Customer Agreements"). By using the 3PFA Services, you are deemed to have accepted and agreed to these 3PFA User Terms together with the Treasury Management Terms. 

1.4 We understand that you may enter into a Factoring Agreement with a 3PFA Partner.

1.5 Each 3PFA Partner has entered into a 3PFA Collaboration Agreement with us.   

1.6 Capitalised terms shall have the same meaning as defined in the Treasury Management Terms, unless otherwise defined in clause 13 below.

1.7 To the extent that there is any conflict between the Treasury Management Terms and these 3PFA User Terms, these 3PFA User Terms shall prevail.

2. TERM

These 3PFA User Terms shall commence from the Commencement Date and remain effective until terminated in accordance with these 3PFA User Terms (the "3PFA Term"). 

3. 3PFA SERVICES

3.1 As part of the 3PFA Services, we may (but are not obliged to) carry out the following during the 3PFA Term:

(a) restrict the transfer of funds out of your Airwallex Factor Account  based on instructions from the relevant 3PFA Partner; and/or

(b) deduct Repayment Amounts from the Airwallex Factor Account, and, if the balance of your Airwallex account in the Repayment Currency is insufficient, convert an amount in your Airwallex account in another currency to the Repayment Currency in order to make such deductions, and pay the same to the account of the relevant 3PFA Partner, in accordance with the instructions from the 3PF Partner. 

3.2 You acknowledge and agree that:

(a) any obligations you owe to Airwallex under the Customer Agreements shall take precedence over any instructions we receive from the 3PFA Partner, and we shall not be liable to any late payment under the Factoring Agreement that results from the balance of your Airwallex account(s) being insufficient; and 

(b) we do not provide any solicitation, recommendation or advice of any nature in connection with any arrangement you make with the 3PFA Partner, and have not been involved in procuring, negotiating, obtaining, applying, guaranteeing or securing any Factoring Arrangement, and that you have made your own decision when entering into the Factoring Agreement. 

3.3 Except as expressly stated in these 3PFA User Terms, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise (including any implied warranties of satisfactory quality or fitness for a particular purpose or non-infringement) are excluded to the fullest extent permitted by law. We do not make any commitments, representations or warranties in respect of any content or data in connection with the 3PFA Services, any specific functions of the 3PFA Services or their respective accuracy, reliability, availability or ability to meet your needs. We cannot guarantee that the 3PFA Services will operate uninterrupted or error-free, that it will always be available, that it will be free from bugs or viruses, that it will never be faulty, or that any information we provide in respect of the 3PFA Services is current or up-to-date. Our provision of the 3PFA Services may occasionally be interrupted. In such a case we will use reasonable commercial efforts to restore the services as quickly as practicable.

4. CUSTOMER UNDERTAKINGS

4.1 You undertake to promptly provide us with any and all information that we may request from you from time to time so that we can provide the 3PFA Services and comply with our obligations under Applicable Law as they relate to the 3PFA Services (including, without limitation, customer due diligence information). We may cease to provide any 3PFA Services and terminate these 3PFA User Terms immediately if you fail to provide us with the information that we request from you.

4.2 You undertake to immediately inform us of any breach by you of, or inability to comply with, Applicable Law, a Factoring Agreement, or the Customer Agreements. 

4.3 A Factoring Agreement may provide the relevant 3PFA Partner with a right to view information in relation to your Airwallex Factor Account or do other things concerning your Airwallex Factor Account.  Where this is provided for in the relevant Factoring Agreement or otherwise, you will need to grant certain permissions to the 3PFA Partner in relation to your Airwallex accounts via OAuth or other consent or authentication method specified by Airwallex in order for the 3PFA Partner to exercise such rights (“Permissions”). You agree that, once you have granted the Permissions, we are entitled to rely on all instructions sent by the 3PFA Partner in accordance with the Permissions, including requesting us to provide access to information concerning your Airwallex accounts, restrict the transfer of funds out of your Airwallex accounts and transfer the Repayments Amounts from your Airwallex accounts to the account designated by such 3PFA Partner.

4.4 You acknowledge and agree that:

(a) Airwallex shall be entitled to rely on the instructions given by the relevant 3PFA Partner in accordance with the Permissions and shall have no other obligation to verify the authenticity of those instructions or verify that they are acting in accordance with the Factoring Agreement;

(b) any transfer of funds from or other action taken by us in respect of your Airwallex Factor Account based on the instructions of the relevant 3PFA Partner shall be absolutely and conclusively binding on you, and Airwallex shall be entitled to treat the same as being authorised by you. This includes, but is not limited to, instructions to automatically transfer any and all funds held to the credit of the Airwallex Factor Account, as soon as those funds are available to be transferred, in accordance with the Customer Agreements; and

(c) In the event of any dispute, you shall resolve the same with the relevant 3PFA Partner directly in accordance with clause 8 of these 3PFA User Terms.

5. FACTORING ACCOUNT

5.1 Prior to Airwallex receiving instruction from the relevant 3PFA Partner to restrict fund transfers out of your Airwallex Factor Account in accordance with the Permissions, you may request Airwallex to conduct any transaction with the funds in your Airwallex accounts in accordance with the terms of the Customer Agreements. 

5.2 Following our receipt of instructions referred to in clause 5.1, we may hold and deal with the funds in your Airwallex accounts and otherwise manage such accounts in accordance with the instructions of the relevant 3PFA Partner without any reference to any further authority from you. Without prejudice to the generality of the foregoing, we may: 

(a) transfer all or any of the funds in your Airwallex Factor Account into an account designated by such 3PFA Partner; and

(b) refuse any instruction from you in respect of transferring any funds from your Airwallex accounts.

6. REPRESENTATIONS AND WARRANTIES

In addition to the representations and warranties in the Treasury Management Terms, you represent and warrant that you:

(a) have the right, power and authority, under Applicable Law, to enter into these 3PFA User Terms and to perform all of your obligations under it; and

(b) will provide us with accurate, up-to-date and complete information at all times.

7. DATA SHARING

7.1 You acknowledge and agree that Airwallex, the relevant 3PFA Partner may share your Customer Data, including your personal information and transaction data, between and amongst themselves, and with applicable Third-Party Service Providers, pursuant to the relevant 3PFA Collaboration Agreement and other relevant agreements. Without prejudice to the foregoing, we will hold, process and use your Customer Data in accordance with these 3PFA User Terms, other Customer Agreements and (to the extent that the Customer Data constitutes personal data) our privacy policy. 

7.2 Without prejudice to any other right that we may have, we may collect, hold and use your Customer Data for the following purposes:

(a) providing the 3PFA Services and managing our relationship with you;

(b) enabling us to comply with all Applicable Law, including conducting anti-money laundering, financial crime and other screening procedures; or

(c) enabling us to comply with our obligations under the Customer Agreements,

for which purposes we may, where necessary, disclose the same to Airwallex Group Companies, applicable Third-Party Service Providers and the relevant 3PFA Partner.

8. DISPUTES AND RELATED LIABILITY

8.1 If you or the 3PFA Partner notify Airwallex of a dispute, or Airwallex reasonably believes that you and the 3PFA Partner are, or will be in a dispute, including but not limited to: (i) you requesting that Airwallex revoke the Permissions, purporting to or terminating the Customer Agreement; or (ii) the 3PFA Partner and you providing us with conflicting notices, claims, demands or instructions concerning funds held to the credit of the Airwallex Factor Account, you irrevocably authorize Airwallex, in its absolute discretion, to refuse to act on any instruction from either you or the 3PFA Partner in relation to the amounts held to the credit of the Aiwallex Factor Account. Should Airwallex do so, it is further irrevocably authorized to do the following:

(a) deduct from Airwallex Factor Account to cover and pay any charges, fees, costs and expenses arising out of or in connection with the Customer Agreements or the 3 PFA Collaboration Agreement; and

(b) not to release any sums held to the credit of the Airwallex Factor Account to any person if it reasonably believes that it has received conflicting notices, claims, demands or instructions or for any other reason is unable to determine who is entitled to receive any part of those funds unless (i) Airwallex has received joint written instructions from both you and the 3PFA Partner; or (ii) until directed by a final order or judgment of a court or tribunal of competent jurisdiction in respect of which there is no right of appeal (or the time allowed for appeals has elapsed ignoring any extensions of time the court may be able to grant).

8.2 You hereby acknowledge and agree that:

8.2.1 Airwallex is not responsible for any losses arising in connection with a failure to release, or for electing to release, amounts held to the credit of the Airwallex Factor Account, except in cases of gross negligence or willful misconduct; and

8.2.2 Airwallex will not be liable for any loss caused by 3PFA Partner to you as a result of action or inaction taken in connection with the Customer Agreements. 

8.3 You acknowledge that we have no control over, are not responsible for, and are not liable for, any loss that you may suffer or incur in connection with, or arising from, the acts and omissions of a 3PFA Partner. This means that we are not liable for, among other things, a 3PFA Partner directing us to deal with your Airwallex Factor Account in accordance with Permissions granted by you but outside the scope of the 3PFA Partner or Factoring Agreement, which would include a direction to restrict the transfer of funds out of your Airwallex accounts and/or transfer a sum that exceeds the relevant Repayment Amounts.

8.4 We have no liability whatsoever in respect of your Factoring Arrangement or in connection with the Factoring Agreement. You are solely responsible for all the liabilities under the Factoring Arrangement, as well as all your obligations under the relevant Factoring Agreement. 

9. FEES

9.1 We may charge a relevant 3PFA Partner fees for their use of our 3PFA Services. 

9.2 The fees we may charge will be agreed with the relevant 3PFA Partner on a case-by-case basis. 

9.3 You hereby acknowledge and consent to us receiving such fees from any 3PFA Partner. 

10. INDEMNITY

In addition to the indemnities set out in the General Terms and the Treasury Management Terms, you shall, on demand, indemnify us and keep us indemnified against all losses, damages, costs (including legal fees) and expenses incurred or suffered by us in connection with or as a result of:

(a) your failure to perform your obligations under any applicable Factoring Agreement, or any other agreement you have with the 3PFA Partner; 

(b) us acting on any instructions which we reasonably believe to have been given by you or by the relevant 3PFA Partner as your Authorised User;

(c) your breach of Applicable Law;

(d) your breach of these 3PFA User Terms; or

(e) any disputes between you and any 3PFA Partner.

11. TERMINATION AND SUSPENSION

11.1 Either party can terminate these 3PFA User Terms in accordance with the Treasury Management Terms or as otherwise provided for in these 3PFA User Terms. The termination of these 3PF User Terms will not terminate the Treasury Management Terms. However, the termination of the Treasury Management Terms will automatically terminate these 3PFA User Terms.

11.2 We reserve the right to, without notice to you, immediately suspend or terminate these 3PFA User Terms upon the termination or suspension of any relevant 3PFA Collaboration Agreement. 

11.3 We may notify the relevant 3PFA Partner of the fact that these 3PFA User Terms have been or will be terminated.

11.4 Upon your election to terminate these 3PFA User Terms:

(a) We will stop sharing your Customer Data with the relevant 3PFA Partner; 

(b) any authorisation provided by you to view your Airwallex account data, restrict fund transfer and make deductions from your Airwallex accounts pursuant to clause 4.4 shall be deemed revoked and we will cease to accept instructions from such 3PFA Partner in relation to your Airwallex Factor Account; and

(c) all outstanding Repayment Amounts, amounts held to the credit of the Airwallex Factor Account, and all other matters relating to the relevant Factoring Agreement shall be dealt with in accordance with clause 8, which shall, without limitation to any other clauses in this or other agreements with Airwallex, survive termination.  

12. RIGHTS OF THIRD PARTIES

12.1 Nothing in the 3PFA User Terms is intended to grant to any third party any right to enforce any term of the 3PFA User Terms or to confer on any third party any benefits under the 3PFA User Terms for the purposes of the Contracts (Rights of Third Parties) Ordinance (Cap. 623 of the laws of Hong Kong), except to the extent set out below:

(a) it is expressly stated otherwise in the 3PFA User Terms;

(b) a permitted successor to, or assignee of, such rights or benefits may enjoy and enforce the same; and

(c) any member of the Airwallex Group Companies may enforce any term of and enjoy any benefit conferred upon it under the 3PFA User Terms.

13. DEFINITIONS & INTERPRETATION

In these 3PF User Terms, the following definitions apply.

Airwallex Factor Account means the account designated by you where third parties will pay Outstanding Invoices.

3PFA Collaboration Agreement means a collaboration agreement with a 3PFA Partner in connection with our provision of the 3PFA Services.

3PFA Partner means any third party that provides factoring services to you pursuant to Factoring Agreement. 

3PFA Services means the services referred to in clause 3.1 above.

3PFA Term has the meaning given to it in clause 2.

3PFA User Terms means these terms and conditions.

Commencement Date means the earlier of the date that you accept these 3PFA Terms and Conditions on the Airwallex platform or start to use the 3PFA Services.

Factoring Arrangement means your arrangement with the 3PFA Partner where you have agreed to transfer your right to collect amounts from Outstanding Invoices to the 3PFA Partner. 

Factoring Agreement means an agreement entered into or to be entered into between you and a 3PFA Partner in relation to the relevant Factoring Arrangement. 

Outstanding Invoices means the invoices or other accounts that are identified in or otherwise referable in a Factoring Agreement with the 3PFA Partner. 

Permissions has the meaning given in clause 4.3.

Repayment Amounts means, in relation to a Factoring Agreement, all amounts payable to the 3PFA Partner, including, without limitation, amounts referable to Outstanding Invoices, any fees, interests and/or penalty accrued thereon and all other amounts outstanding in connection therewith.

Repayment Currency means the currency in which the Repayment Amounts are payable in accordance with the Funding Agreement.