Last updated: 24 November 2023

1. INTRODUCTION

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

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

1.3 These 3PF 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").

1.4 We understand that you may enter into a Funding Agreement with a 3PF Partner and/or a service agreement with a 3PF Agent from time to time.

1.5 Each 3PF Partner, or relevant 3PF Agent acting on behalf of such 3PF Partner, has entered into a 3PF Collaboration Agreement with us. You acknowledge that, where we have entered into a 3PF Collaboration Agreement with a 3PF Agent, we might have no contractual relationship or other dealings with the relevant 3PF Partner.

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 3PF User Terms, these 3PF User Terms shall prevail.

2. TERM

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

3. 3PF SERVICES

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

(a) exchange information about you and your Airwallex accounts with the relevant 3PF Partner or 3PF Agent in connection with (i) your application for a Facility, (ii) such 3PF Partner or 3PF Agent conducting credit underwriting and/or monitoring the repayment status of such Facility and the transaction records of your Airwallex accounts, and (iii) other matters incidental or relating to the matters set out in this clause 3.1;

(b) restrict the transfer of funds out of your Airwallex accounts based on instructions from the relevant 3PF Partner, or the relevant 3PF Agent for and on behalf of such 3PF Partner;

(c) deduct Repayment Amounts from your Airwallex accounts, 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 3PF Partner, or the account designated by the relevant 3PF Agent as the receiving account of such 3PF Partner, in accordance with the instructions from the 3PF Partner or the 3PF Agent respectively; and/or

(d) allow the relevant 3PF Partner or 3PF Agent to operate and control your Airwallex accounts as agreed between you and such 3PF Partner or 3PF Agent and notified to us.

3.2 You acknowledge and agree that:

(a) subject to clauses 3.2(b) and 3.2(c), the 3PF Services will be provided in respect of all of your Airwallex accounts;

(b) should you wish to exclude any specific Airwallex account from receiving the relevant 3PF Services, you and such 3PF Partner or the relevant 3PF Agent, may do so by jointly providing us with no less than five business days' written notice;

(c) any obligations you owe to Airwallex under the Customer Agreements shall take precedence over any instructions we receive from the 3PF Partner or 3PF Agent to deduct Repayment Amounts, and we shall not be liable to any late payment under the Facility Agreement that results from the balance of your Airwallex account(s) being insufficient to make the Repayment Amount; and

(d) we do not provide any solicitation, recommendation or advice of any nature in connection with your application for any Facility, and have not been involved in procuring, negotiating, obtaining, applying, guaranteeing or securing any Facility, and that you have made your own decision as to whether to apply for a Facility.

3.3 By using the 3PF Services, you are deemed to have accepted and agreed to these 3PF User Terms together with the Treasury Management Terms.

3.4 Except as expressly stated in these 3PF 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 3PF Services, any specific functions of the 3PF Services or their respective accuracy, reliability, availability or ability to meet your needs. We cannot guarantee that the 3PF 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 3PF Services is current or up-to-date. Our provision of the 3PF 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 3PF Services and comply with our obligations under Applicable Law as they relate to the 3PF Services (including, without limitation, customer due diligence information). We may cease to provide any 3PF Services and terminate these 3PF User Terms immediately if you fail to provide us with the information that we request from you.

4.2 A 3PF Partner or the relevant 3PF Agent may, in connection with your application for a Facility, provide you with links, codes and unique identifiers, which may be relevant to us providing the 3PF Services. You agree to follow all reasonable instructions of the 3PF Partner or the relevant 3PF Agent in relation to the use of any such links, codes and unique identifiers. If you do not do so, we may not be able to provide the 3PF Services.

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

4.4 A Funding Agreement may provide the relevant 3PF Partner with a right to view information in relation to your Airwallex accounts or do other things concerning your Airwallex accounts. Such rights may be delegated by the 3PF Partner to a relevant 3PF Agent. Where this is provided for in the relevant Funding Agreement or otherwise, you will need to grant certain permissions to the 3PF Partner or 3PF Agent in relation to your Airwallex accounts via OAuth or other consent or authentication method specified by Airwallex in order for the 3PF Partner or 3PF Agent 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 3PF Partner or 3PF Agent 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 3PF Partner or 3PF Agent.

4.5 You covenant and agree that:

(a) Airwallex shall be entitled to rely on the instructions given by the relevant 3PF Partner or 3PF Agent 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 Funding Agreement;

(b) any transfer of funds from or other action taken by us in respect of your Airwallex accounts based on the instructions of the relevant 3PF Partner or 3PF Agent shall be absolutely and conclusively binding on you, and Airwallex shall be entitled to treat the same as being authorised by you. In the event of any dispute, you shall resolve the same with the relevant 3PF Partner or 3PF Agent directly in accordance with clause 8 of these 3PF User Terms.

5. SECURITY OVER AIRWALLEX ACCOUNT

5.1 Upon:

5.1.1 Airwallex being informed by you, a relevant 3PF Partner or 3PF Agent that a Facility has been granted to you and that a corresponding Funding Agreement has been entered into; and

5.1.2 You granting the 3PF Partner or 3PF Agent Permissions to transfer Repayment Amounts and/or restrict the transfer of funds out of your Airwallex account(s),

you agree that Airwallex can treat this as your notice to Airwallex (and Airwallex hereby acknowledges such notice) that you have, by way of charge, charged all your rights, titles and interests which you may now or later have in or to your Airwallex accounts (including the funds in those accounts) to such 3PF Partner as security for the payment and discharge of your obligations under the Funding Agreement.

5.2 Prior to Airwallex receiving instruction from the relevant 3PF Partner or 3PF Agent to restrict fund transfers out of your Airwallex accounts 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.

5.3 Following our receipt of instructions referred to in clause 5.2, 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 3PF Partner or 3PF Agent 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 accounts into an account designated by such 3PF Partner or an account belonging to the 3PF Partner as designated to us by the relevant 3PF Agent; 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 3PF 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 3PF Partner and the relevant 3PF Agent 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 3PF Collaboration Agreement and other relevant agreements. Without prejudice to the foregoing, we will hold, process and use your Customer Data in accordance with these 3PF 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 3PF 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;

(c) enabling the relevant 3PF Partner to assess whether to enter into a Funding Agreement with you; and

(d) 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 3PF Partner and 3PF Agent.

8. DISPUTES AND RELATED LIABILITY

8.1 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 3PF Partner or 3PF Agent. This means that we are not liable for, amongst other things, a 3PF Partner or 3PF Agent directing us to deal with your Airwallex accounts in accordance with Permissions granted by you but outside the scope of the 3PF Partner or Agent’s legal rights and authority under the Funding 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.

8.2 In the event of any complaint or dispute between you and a 3PF Partner and/or a 3PF Agent, you must settle the dispute directly with such 3PF Partner or 3PF Agent.

8.3 We have no liability whatsoever in respect of your Facility. You are solely responsible for all the liabilities under the Facility as well as all your obligations under the relevant Funding Agreement.

9. FEES

9.1 We may charge a relevant 3PF Partner and/or 3PF Agent fees for their use of our 3PF Services.

9.2 The fees we may charge will be agreed with the relevant 3PF Partner and/or the 3PF Agent on a case-by-case basis, and may be subject to the size of the Facility.

9.3 You hereby acknowledge and consent to us receiving such fees from any 3PF Partner and/or the 3PF Agent.

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 repay any Facility in accordance with its terms;

(b) your failure to comply with any Funding Agreement or other obligation that you owe to the relevant 3PF Partner or 3PF Agent;

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

(d) your breach of Applicable Law;

(e) your breach of these 3PF User Terms; or

(f) any disputes between you and any 3PF Partner or 3PF Agent.

11. TERMINATION AND SUSPENSION

11.1 Either party can terminate these 3PF User Terms in accordance with the Treasury Management Terms or as otherwise provided for in these 3PF 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 3PF User Terms.

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

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

11.4 Upon the termination of these 3PF User Terms:

(a) We will stop sharing your Customer Data with the relevant 3PF Partner and (where applicable) 3PF Agent;

(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 3PF Partner or such 3PF Agent in respect of your Airwallex accounts; and

(c) all outstanding Repayment Amounts and all other matters relating to the relevant Funding Agreement shall continue to be dealt with and resolved directly between you and the relevant 3PF Partner and/or 3PF Agent (as the case may be).

12. RIGHTS OF THIRD PARTIES

12.1 Nothing in the 3PF User Terms is intended to grant to any third party any right to enforce any term of the 3PF User Terms or to confer on any third party any benefits under the Agreement 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 3PF 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, 3PF Partners and 3PF Agents may enforce any term of and enjoy any benefit conferred upon it under the 3PF User Terms.

13. DEFINITIONS & INTERPRETATION

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

3PF Agent means, in relation to a 3PF Partner, an agent duly authorised to act on its behalf and to collaborate with us in connection with our provision of the 3PF Services.

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

3PF Partner means any financial institution or funds provider that has granted or will grant a Facility to you under a Funding Agreement.

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

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

Facility means a funding facility or other similar arrangement.

Funding Agreement means an agreement entered into or to be entered into between you and a 3PF Partner in relation to the relevant Facility.

Permissions has the meaning given in clause 4.4.

Repayment Amounts means, in relation to a Facility, the amounts repayable or payable by you to the 3PF Partner in connection therewith, including without limitation 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.