Flexport Non-Recourse Factoring General Terms & Conditions
These General Terms and Conditions (“GTCs”) shall apply to the assignment and sale on a non-recourse basis of the Accounts Receivable by the Client to Flexport under the Accounts Receivable Purchase Agreement. These GTCs shall form an integral part of the Accounts Receivable Purchase Agreement, as if they were included therein.
1. DEFINITIONS AND INTERPRETATION
Unless expressly provided otherwise, a reference to “Clause” or “Clauses” shall be a reference to a clause in these GTCs. For the purposes of these GTCs, the following terms shall, unless the context otherwise requires, have the following meanings:
“Accounts Receivable” means receivables payable in respect of any goods supplied by the Client to the Customer in the ordinary course of business, pursuant to an Underlying Contract (including all rights attaching thereto), and the details of which are provided to Flexport;
“Accounts Receivable Purchase Agreement” or “ARPA” means the Accounts Receivable Purchase agreement entered into between Flexport and the Client pursuant to these GTCs;
“Advance Rate” means the percentage of Invoice Value as specified in the Letter of Offer;
“Advanced Amount” shall have the meaning ascribed to it in Clause 5.1;
“Agreement” means, collectively, the Accounts Receivable Purchase Agreement and these GTCs;
“Applicable law” includes without limitation applicable case laws, statutes, decrees, acts, codes, legislation, treaties, conventions and similar instruments, and all statutory instruments or orders made pursuant to any of them (as applicable), and in each case, as amended, extended, re-enacted or consolidated from time to time, whether before or after the date of this Agreement and applicable orders, guidelines, notices, guidance, rules and regulations from time to time of any state, government or government entity;
“Business Day” means a day on which banks are open for banking business in Singapore (excluding Saturdays, Sundays, or public holidays in Singapore);
“Customer” means the purchaser of goods sold by the Client in its ordinary course of business, and who shall be liable to make payment in respect of the transaction to which an Accounts Receivable relates;
“Deducted Amount” shall have the meaning ascribed to it in Clause 5.2;
“Discount Fee” means in relation to a Purchased Account Receivable, the charge payable and calculated in accordance with the formula set out in the Letter of Offer, or such other rates or formula as may be notified by Flexport in writing to the Client from time to time, and calculated from the Purchase Date up to and including the Invoice Due Date;
“Documents” means the Letter of Offer, ARPA, GTCs, and Notice of Assignment, and such other instruments and/or documents as may be necessary to transfer to Flexport ownership of the Purchased Accounts Receivable;
“Downpayment” means any downpayment, prepayment, deposit, discount, rebate, or any amount paid by the Customer which may be offset against the Invoice Face Value payable to Client in accordance with the terms of the Underlying Contract;
“Eligible Accounts Receivable” means the Accounts Receivable which:
1.0.1 is accepted by Flexport in its sole and absolute discretion;
1.0.2 is evidenced by an Eligible Invoice presented by the Client to Flexport;
1.0.3 is current (i.e. non-mature) at the time of each of (i) the Request; and (ii) the Purchase Date;
1.0.4 has a credit or payment period not exceeding 90 (ninety) days of Bill Of Lading date or Invoice Date (whichever is later);
1.0.5 has not been paid in whole by the Customer or any third party on behalf of the Customer to the Client at the date of the Request; or the Purchase Date. For the avoidance of doubt, Eligible Accounts Receivable shall include an Accounts Receivable which has been paid in part;
1.0.6 is denominated in a currency accepted by the Client and by Flexport;
1.0.7 constitutes legal, valid, binding, enforceable and undisputed obligation of the Customer to pay the Invoice Value to the Client on the Invoice Due Date, and conforms with all applicable laws including anti-money laundering and countering of financing of terrorism laws;
1.0.8 is not subject to any unusual terms or any right of set-off or exclusion of liability or prior financing;
1.0.9 does not arise from or are not created in connection with a Fraudulent Underlying Contract or a contract potentially harmful in terms of social or environmental responsibility (as determined by Flexport from time to time);
1.0.10 includes the Client’s rights to fees and interest for late payment by the Customer;
1.0.11 is legally and beneficially owned by the Client and is not subject to any Encumbrance;
1.0.12 is assignable in nature and absent any legal, contractual assignment or other restrictions that would prevent the legal and absolute assignment of such Accounts Receivable to Flexport;
1.0.13 is not subject to any Receivable Claim, litigation, arbitration or administrative proceedings, whether current, threatened or pending or where it emanates from the Underlying Contract the terms of which will not be complied with or fulfilled or performed in all or any respects;
1.0.14 does not arise out of an Underlying Contract with a Customer who is a related party to or affiliate of the Client or in respect of which the Client and the Customer share common shareholders, directors, or employees, or have any shareholders, directors or employees sharing some level of affinity or consanguinity;
1.0.15 does not relate to a Customer that has any financial liability that is overdue for more than 30 (thirty) days or is otherwise insolvent or unable to service its debts as they fall due;
1.0.16 does not contain any dispute resolution clause that requires related claims to be subject to arbitration and/or that, in terms of forum, refers to the exclusive jurisdiction of the courts of a country other than the country of the Client or the Customer;
1.0.17 complies with any other requirements that Flexport may impose from time to time, in its absolute discretion.
“Eligible Invoice” means a written invoice (including an invoice evidenced by electronic means), which in Flexport’s sole discretion, satisfies the following requirements: (a) is issued not later than 14 (fourteen) days after the relevant Shipment Date; (b) clearly identifies the Customer and the Seller, the Underlying Contract, the Invoice Face Value, any applicable Downpayments and Receivable Claims, and the Invoice Due Date; and (c) such other requirements as may be imposed by Flexport from time to time;
“Encumbrance” means, under any applicable law, any form of legal, equitable or security interests, including but not limited to any mortgage, charge (whether fixed or floating), pledge, lien (including, without limitation any unpaid vendors' lien or similar lien), assignment of rights and receivables, debenture, right of first refusal, option, hypothecation, title retention or conditional sale agreement, lease, hire or hire purchase agreement, restriction as to transfer, use or possession, easement, subordination to any right of any other person, and any other encumbrance or security interest;
“EURIBOR” means the prevailing 3-month Euro Interbank Offered Rate as at the date of the Notice of Assignment, and which shall be obtained from (website);
“Facility Limit” means the Client’s maximum debit balance outstanding in the Funds in Use Account permitted and predetermined by Flexport at its absolute discretion as set out in the Letter of Offer;
“Factoring Fee” means in relation to a Purchased Account Receivable, the charge payable and calculated in accordance with Clause 5.3, and the rates set out in the Letter of Offer, or such other rate or rates as may be notified by Flexport in writing to the Client from time to time.
“Fraudulent Underlying Contract” means any Underlying Contract that is obtained, entered into or created based on inaccurate, untrue, or misleading information, containing false statements, or designed or produced in bad faith and/or with the intent to defraud, alter or conceal any acts or information, including without limitation an Underlying Contract (and/or any of the rights arising thereunder) that is or will be subject to an agreement for sale, Encumbrance or financing;
“Funds In Use” means the aggregate balance of payments made to the Client plus all other debit charges less any payments received from Customer and/or any other credit charges;
“Invoice Date” means the date on which the invoice relating to an Accounts Receivable was issued by Client to Customer;
“Invoice Due Date” means the date on which an Accounts Receivable becomes due and payable by the Customer;
“Invoice Face Value” means the amount owed by the Customer to the Client under an Underlying Contract as stated on the face of the invoice;
“Invoice Value” means, in respect of each Eligible Accounts Receivable, the amount due from the Customer to the Client on the Invoice Due Date, being the Invoice Face Value less all Receivable Claims and Downpayments;
“Late Payment Fee” has the meaning ascribed to it in Clause 5.4;
“Letter of Offer” or “LoO” means the letter of offer specifying all the relevant conditions for Flexport to provide invoice financing to the Client, containing among others, information on the Customer, relevant information and conditions in respect of accepted Customer(s), Facility Limit, fees, in the form as set out in Schedule 1 to the ARPA, and as may be amended by Flexport from time to time;
“Loss” means losses (material, unmaterial, financial), liabilities (whether actual or contingent), damages (including special, indirect and consequential damage), deficiencies, demands, claims, actions, judgments or causes of action, assessments, costs, interests, penalties, fines or expenses (including, without limitation, reasonable legal fees and expenses and reasonable costs of investigation and litigation). In the event any of the foregoing are indemnifiable under the Agreement (as defined in the ARPA), the terms “Loss" and “Losses" shall also include any and all legal fees and expenses and costs of investigation and litigation incurred by the relevant party in enforcing such indemnity;
“Processing Fee” means a percentage of Invoice Value as specified in the Letter of Offer;
“Purchase Date” means the date on which Flexport has agreed to pay the Advanced Amount in consideration of the Purchased Accounts Receivable in accordance with Clause 5.1, subject to the fulfillment or waiver of the conditions precedent set out in Clause 6.1;
“Purchased Account Receivable” means an Account Receivable accepted by Flexport in accordance with Clause 2.1;
“Receivable Claim” means any abatement, charge, claim, claw-back, counter-claim, defense, deferral, lien, netting, offset, reduction, recovery, set off right or withholding, or any other right, dispute or claim of the Customer against the Client relating to carriage, damage, defects, delivery (including non-, under-or late delivery), failure to meet specifications, warranties or representations (whether express or implied), or any other failure of the Client to comply with the terms of the Underlying Contract;
“Shipment Date” means the date of shipment of goods as indicated in the bill of lading, air waybill, way bill or any other shipment document;
“SOFR” means the prevailing 3-month Secured Overnight Financing Rate as at the date of the Notice of Assignment, and which shall be obtained from (website); and
“Underlying Contract” means any and all contracts, agreements, purchase orders, invoices, notes or arrangements in any form and entered into between the Client and the Customer for the sale of goods by the Client to the Customer, and pursuant to which an Accounts Receivable arises or which evidences such Accounts Receivable.
In the Agreement, words importing the singular include the plural and vice versa, words importing any gender include every gender, words importing persons include bodies corporate and unincorporated.
1.1 Clause headings are for ease of reference only and shall not affect the construction or interpretation of the Agreement.
1.2 Any thing or obligation to be done under this Agreement on a stipulated day shall be done on the next Business Day if the stipulated day upon which that thing or obligation is required or falls to be done falls on a day which is not a Business Day. The performance of any obligation or payment of any amount stated to be “on or before” any day or Business Day shall be construed to mean on or before 5 p.m. of that day or Business Day.
2.1 Subject to the terms and conditions of this Agreement, the Client may from time to time request Flexport to purchase Eligible Accounts Receivable arising out of the Underlying Contracts (“Request”).
2.2 The Client shall place the Request and provide to Flexport all documents relating to the Accounts Receivable (including but not limited to any shipping documents, inspection documents (if prescribed as a requirement in the Underlying Contract) and such other relevant documents and information that Flexport in its sole discretion may request from the Client) from time to time for validation by Flexport. Flexport shall be deemed to receive the request for the purchase of the relevant Account Receivable on each Request Date.
2.3 The submission of the Request referred to in Clause 2.1 herein by the Client to Flexport shall constitute an offer by the Client to sell to Flexport the Accounts Receivable and each Request shall be deemed to be a separate and independent offer. Each Request made by the Client shall constitute a representation by the Client to Flexport that in relation to the Accounts Receivable referred to in such Request, each of such Accounts Receivable which is proposed to be sold is an Eligible Accounts Receivable.
2.4 Each Request shall be valid for acceptance for 5 (Five) Business Days.
3. ACCEPTANCE AND PASSING OF RIGHTS
3.1 Flexport may at its absolute discretion, after assessing the credit worthiness of the Customer and the risks of the business transaction between the Client and such Customer, and making such inquiries as it deems fit, accept or reject any of the Account Receivables offered to Flexport by communicating its acceptance or rejection in writing (including by electronic means) to the Client or any of its officers, servants or agents PROVIDED ALWAYS that Flexport shall not be bound to purchase any Accounts Receivable if the purchase would render the Funds in Use to exceed the Facility Limit. Flexport is not required to disclose the reasons for any rejection of the Accounts Receivable.
3.2 If the Customer is so accepted, the Client will further be advised of the Facility Limit and any other terms and conditions which may be imposed.
3.3 Flexport may in respect of any accepted Customer or Purchased Account Receivable at any time and without assigning any reason thereof increase or reduce the Facility Limit or vary the terms and conditions or impose new or additional terms and conditions or withdraw the credit approval entirely by advising the Client to the effect.
4. NOTICE OF ASSIGNMENT
4.1 The Client shall enter into a Notice of Assignment with Flexport, pursuant to which, it shall assign all its rights, title and interest in respect of a Purchased Accounts Receivable to Flexport in accordance with these GTCs. The Client shall endorse on the original and every copy of each invoice relating to a Purchased Accounts Receivable a notice to the Customer in the form as Flexport may prescribe from time to time directing that the proceeds of each invoice shall be paid to Flexport or to such other account as may be nominated by Flexport and stating that such payments when made in full by the Customer shall constitute a valid discharge of such Customer's obligations to make payment to the Client. All such invoices shall, where practicable, show the name and address of the Customer in full, the amount and the description of the goods supplied, the date and the terms and conditions of sale and payment. Flexport shall serve the Notice Of Assignment of the Purchased Accounts Receivable to the Customer in respect of the relevant invoice in the form as may be prescribed Flexport and the Customer shall acknowledge and confirm by way of email in the form as prescribed by Flexport such assignment of the Client’s rights, title and interest in respect of a Purchased Accounts Receivable to Flexport.
4.2 Further, the Client hereby irrevocably appoints Flexport and the General Manager or the Officer in charge of Flexport for the time being jointly and each of them severally to be the true and lawful attorney or attorneys or in the name and on behalf of the Client to execute make and do all assurances, instruments, endorsements, acts and things necessary or desirable for giving to Flexport or perfecting a valid and effective assignment of the Client’s right in respect of all or any Purchased Accounts Receivable to deal in any manner whatsoever with the goods to which such Accounts Receivable relate or the property therein and to deal with or negotiate any moneys cheques and negotiable instruments delivered in payment of moneys due in respect thereof.
4.3 Notwithstanding the obligations imposed upon the Client in Clauses 4.1 and 4.2 the Client hereby agrees that Flexport’s rights, interest or title in the Purchased Accounts Receivable or Flexport’s rights against the Client and/or the Customer as provided herein shall subsist and shall not be affected nor prejudiced in any manner whatsoever due to any omission, illegibility, obliteration or otherwise of the said endorsement and/or said notice.
5. PURCHASE DATE AND ADVANCED AMOUNT
5.1 In connection with the purchase of any Eligible Accounts Receivable, Flexport shall, subject to the terms of the Letter of Offer, on the Purchase Date, pay the Advanced Amount to a bank account specified by the Client. The Advanced Amount, in relation to any Eligible Accounts Receivable agreed to be purchased by Flexport at any time, shall be an amount equal to the Advance Rate multiplied by the Invoice Value (“Advanced Amount”). The Advanced Amount will be reduced if required to ensure total Funds in Use does not exceed the Facility Limit, and may be reduced if so requested by the Client, at Flexport’s sole and absolute discretion.
5.2 Once the Invoice Value is fully transferred by the Customer to Flexport’s bank account, Flexport shall, within five (5) Business Days, pay to the Client the difference between the Invoice Value and the Advanced Amount of the Purchased Accounts Receivable (“Deducted Amount”) less Factoring Fee, Late Payment Fee (if any), and any other fees or charges.
5.3 Factoring Fee is the sum of Processing Fee and Discount Fee and is calculated from Purchase Date up to and including the Invoice Due Date.
5.4 In the event any Customer fails to fully settle or pay the Invoice Value on or before the Invoice Due Date, Flexport shall be entitled to deduct as late payment fee an amount calculated based on the rate specified in the Letter of Offer (or such other rate or rates as may be notified by Flexport in writing to the Client from time to time), calculated daily on the unpaid balance from Invoice Due Date up to and including the date of payment received by Flexport (“Late Payment Fee”).
5.5 The sum of Factoring Fee and Late Payment Fee shall not exceed the Deducted Amount.
5.6 Notwithstanding any of the provisions hereinbefore contained, Flexport shall not be obliged to pay the Client the Advanced Amount or the Deducted Amount:
5.6.1 other than by bank wire transfer; or
5.6.2 if the Client is in breach of any of its obligations hereunder.
6. CONDITIONS PRECEDENT
6.1 Each purchase of Accounts Receivable hereunder shall be subject to, unless otherwise waived by Flexport, the following conditions precedent (“Conditions Precedent”):
6.1.1 the representations and warranties made by the Client contained in Clause 7.1 are correct in all respects on and as of the relevant Purchase Date;
6.1.2 the Client signing the Notice of Assignment and procuring that the Customer acknowledges the assignment by way of email confirmation in the form prescribed by Flexport;
6.1.3 the delivery of all consents, approvals, opinions or documents required in connection with the Client’s performance under the Agreement and such other information and/or documents as Flexport may request (all in form and substance satisfactory to Flexport), to Flexport and which shall be in effect on the relevant Purchase Date;
6.1.4 the Client not having (i) been placed in voluntary liquidation nor having any order made for its compulsory liquidation; (ii) consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Client or a substantial part of its property; (iii) made any assignment for the benefit of creditors or entered into any composition or arrangement with its creditors generally; (iv) admitted in writing its inability to pay its debts generally as they become due; (v) taken any corporate action in furtherance of any of the foregoing actions; or (vi) been in material breach of any terms of the Agreement;
6.1.5 there being no Receivable Claim in respect of the Eligible Accounts Receivable;
6.1.6 there being no material adverse change (in Flexport’s opinion, acting in its absolute discretion) from the Request Date in respect of the Client, the Customer, the industries in which they operate and/or the Eligible Accounts Receivable;
6.1.7 the Customer having duly acknowledged and executed the Buyer’s Notification Letter;
6.1.8 such other conditions precedent as Flexport may in its sole discretion impose.
6.2 Flexport may, at any time, and in its sole and absolute discretion, waive in whole or in part, the Conditions Precedent by written notice to the Client.
6.3 In the event any Condition Precedent has not been fulfilled (or waived by Flexport) on or before the Purchase Date, the Request in respect of such Accounts Receivable shall be deemed to be withdrawn by the Client, and both Flexport and the Client shall not have any further obligations to each other in respect of such Request.
7. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
7.1 The Client hereby makes the following representations and warranties and confirms that the following representations and warranties are and will be true and accurate and complete in all respects as of each Request Date and, in each case, as of each Purchase Date for an Eligible Accounts Receivable as if made on each such date with reference to the facts and circumstances then existing:
7.1.1 this Agreement constitutes or will, when executed, constitute its legal, valid and binding obligations enforceable in accordance with its terms, and the provisions of this Agreement and the acceptance of each Request by Flexport is effective to assign the Eligible Accounts Receivable to Flexport and the Customer is not entitled to exercise any set-off rights or counterclaim or to withhold, extend or delay payment of any such Eligible Accounts Receivable or part thereof and there are no circumstances that will compromise, prejudice, prevent or prohibit the payment of any such Eligible Accounts Receivable or part thereof;
7.1.2 that the Client and the Customer are not related in any way be it shareholding, directors or in any form that could lead to undue influence of one party towards another;
7.1.3 there is no restriction or limitation on the Client (whether in its constitutional documents, any partnership agreement, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Client is a party or by which any of the Client’s property or assets is subject or otherwise) which would prevent it from entering into this Agreement or performing the transactions contemplated thereby, and all necessary consents required for the Client to enter into this Agreement and perform the transactions contemplated thereby have been obtained and are in full force and effect;
7.1.4 that the Client has fully performed its obligations under any Underlying Contract and that the Account Receivable has not been disputed by the Customer and is a bona fide obligation of the Customer to the Client and arises in the ordinary course of the Client's business, and the Underlying Contract was executed by duly authorised representative(s) of the Customer;
7.1.5 that the Client: (a) is and will continue to be (i) duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, (ii) in compliance with its constitutional documents, (iii) in compliance with any law or regulation or determination of an arbitrator or a court or other government authority binding upon or applicable to Client or any of its property, and (iv) in compliance with all contractual obligations; and (b) has and will continue to have the requisite power and authority and the legal right to execute, deliver and perform its obligations under the Agreement and to conduct its business as now, heretofore or proposed to be conducted;
7.1.6 the performance of the Client’s obligations under this Agreement and the consummation of the transactions herein contemplated do not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any Claim or Encumbrance upon any of the Client’s property or assets pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Client is a party or by which any of the Client’s property or assets is subject;
7.1.7 the Client has the power and authority to enter into this Agreement, and its authorized signatories have the power to enter into this Agreement on its behalf;
7.1.8 that the amount payable by the Customer in respect of the Account Receivables shall not be less than the Invoice Value;
7.1.9 that the Customer is not and shall not be entitled to any counterclaim, set off or defense against the Client in respect of the Account Receivables, and has not sought to repudiate or rescind the Underlying Contract, and that the Client does not know and would not on reasonable enquiry know of any facts likely to lead to any such counter-claim, set off or defense or repudiation or rescission. For the avoidance of doubt, any claim, demand or benefit, that the Client may be entitled to against Flexport arising out of or in connection with freight forwarding services provided by Flexport shall not be set off against the Client in respect of the Account Receivables;
7.1.10 that Flexport shall under the contract obtain a good unencumbered title to the Purchased Accounts Receivable and that the Purchased Accounts Receivable are not subject to any prior sale, assignment, transfer or encumbrance;
7.1.11 that the Client has not agreed with the Customer for any extension of the contractual time for payment of the Account Receivable or for any waiver or modification of the terms of the Underlying Contract except as provided for in this Agreement;
7.1.12 that all information, documents, reports and other papers and data furnished to Flexport are accurate, correct and complete in all material respect and particulars;
7.1.13 the Underlying Contract has been duly executed and delivered by the Customer, and shall and will continue to be a legal, valid and binding obligation of the Customer, enforceable against the Customer in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency and other similar laws affecting creditors’ rights generally;
7.1.14 no litigation proceeding is pending, or to the knowledge of the Client, threatened by or against the Client;
7.1.15 the Client and each person who, to the Client’s knowledge has an ownership interest in the Client or, to the Client's knowledge, has or will have an interest in the transaction contemplated by this Agreement or will participate, in any manner whatsoever, in receiving or using the proceeds of the Purchased Accounts Receivable (collectively, “Covered Entities” and each, a “Covered Entity”) is: (i) not a “blocked” person listed in the Annex to Executive Order Nos. 12947, 13099 and 13224 and all modifications thereto (the “Annex”); (ii) in full compliance with the requirements of the USA Patriot Act 2001, 107 Public Law 56 (October 26, 2001, as amended) and other statutes, orders, rules and regulations of the United States government and its various executive departments, agencies and offices related to the subject matter of the Patriot Act, including Executive Order 13224 effective September 24, 2001, as amended (the “Patriot Act”) and all other requirements contained in the rules and regulations of the Office of Foreign Assets Control, Department of the Treasury (“OFAC”); (iii) operated under and has in place policies, procedures and practices that are in compliance with the Patriot Act and all other applicable anti-corruption and anti-money laundering laws, rules and regulations as may be amended from time to time, and such policies, procedures and practices are available to Flexport for Flexport’s review and inspection during normal business hours and upon reasonable prior notice; (iv) not in receipt of any notice from the Secretary of State of the Attorney General of the United States or any other department, agency or office of the United States claiming a violation or possible violation of the Patriot Act; (v) not listed as a Specially Designated Terrorist (as defined in the Patriot Act) or as a “blocked” person on any lists maintained by the OFAC pursuant to the Patriot Act or on any other list of terrorists or terrorist organizations maintained pursuant to any of the rules and regulations of the OFAC issued pursuant to the Patriot Act; (vi) not a Person who has been determined by competent authority to be subject to any of the prohibitions contained in the Patriot Act; (vii) not acting, and if other than a natural person, owned or controlled by and/or will not in the future act for or on behalf of any person named in the Annex or any other list promulgated under the Patriot Act or any other Person who has been determined to be subject to the prohibitions contained in the Patriot Act; (viii) implementing a Customer Identification Program (“CIP”) and performs CIP due diligence in accordance with the Patriot Act and (ix) has implemented Customer Due Diligence (“CDD”) procedures compliant with FinCEN’s CDD rule that enables Company, its affiliate(s) and/or subsidiaries, to the extent required, to identify and verify the beneficial owner(s) and key controller of its customers; and
7.1.16 the Client has disclosed to Flexport if the Client or any other Covered Entity is or has been a PEP Entity, Politically Exposed Person or an immediate family member or close associate of a Politically Exposed Person and has provided or will provide the necessary information required by law. For the purpose of this clause:
i) “PEP entity” means any corporation, business or other entity that (a) has been formed by, or for the benefit of, a politically exposed person, has a key controller who is a politically exposed person, or (b) has a politically exposed person that is the ultimate beneficial owner; and
ii) “Politically Exposed Person” means a natural person who is or has been entrusted with prominent public functions whether domestically, in a foreign country or jurisdiction or in an international organisation.
7.2 The Client hereby covenants and agrees:
7.2.1 the Client shall not do anything which will affect or prejudice Flexport’s rights, interest or title in the Purchased Accounts Receivable or Flexport’s rights against the Client and/or Customer in respect of the Purchased Accounts Receivable;
7.2.2 that it shall duly and timely perform and fulfill all obligations on its part to be performed or fulfilled under or in connection with the Purchased Accounts Receivable, the Underlying Contract and the collection or collectability of any of the amounts thereunder. In the case of force majeure events, the Client shall take all reasonable measures and exercise commercially reasonable efforts to minimize adverse effects on the performance of its obligations, and any impossibility to perform according to the Underlying Contract shall not exonerate the Client from its obligations under this Agreement;
7.2.3 at the request of Flexport, do all acts and things as is, in the opinion of Flexport, reasonably necessary or desirable to perfect, or protect or enforce Flexport rights and benefits in respect of this Agreement and/or to perfect or enforce or confer to Flexport all rights, title and interest of the Client in respect of any Accounts Receivable in respect of which Flexport has paid the Advanced Amount;
7.2.4 that it shall promptly upon becoming aware, notify Flexport of any Receivable Claim with respect to any Purchased Account Receivable and or of any breach of any of the representations and warranties herein on an ongoing basis;
7.2.5 shall within five (5) business days notify Flexport of any receivable (assigned or unassigned) which remains unpaid 14 days after its Invoice Due Date with a Customer and shall provide to Flexport the list of all receivables outstanding on the relevant Customer (full statement of account) and the reasons for the late payment;
7.2.6 that it shall assist (including joining proceedings with Flexport against the Customer), take all measures and provide information to Flexport in the event of any collection or recovery proceeding against a Customer and shall pay to Flexport all properly incurred costs and expenses (including legal fees) related to any enforcement under this Agreement and any transaction hereunder, provided that (i) the recovery or collection proceeding has started out of or in connection with an indemnifiable event, as described in Clause 11.4 of this Agreement and (ii) Flexport provides written proof of the incurred costs and expenses;
7.2.7 provide any documents and/or information as requested by Flexport from time to time;
7.2.8 without giving Flexport at least thirty (30) days’ prior written notice, Client shall not change (i) its name as it appears in official filings in the jurisdiction of its incorporation or organization, (ii) the jurisdiction of its formation, or (iii) the type of legal entity that it is; and
7.2.9 to inform Flexport of any Customer that is a counterparty in the factoring arrangement that has turned insolvent or going to turn insolvent, at any point in time that the Client is aware of the same.
7.3 Each of the representations and warranties provided by the Client under this Agreement is separate and independent of other representations and warranties and, save for any matters expressly provided otherwise, shall not be limited by any provision in this Agreement or any other agreement, event or matter or any inconsistency with any of the same, or be affected by the Flexport’s due diligence investigations on the Client, Customer, the Accounts Receivable or any matter whatsoever which may have howsoever come to the notice of Flexport, its employees, professional advisers, representatives or agents.
8. COLLECTION FROM CUSTOMER
8.1 Flexport shall have the sole and exclusive right of collecting and enforcing payment of every Account Receivable purchased by Flexport and the Client shall not collect and enforce payment except at Flexport's request.
8.2 The Client shall if requested by Flexport, cooperate to procure such collection and enforcement and agree that for such purpose, Flexport and its assigns may institute and conduct legal proceedings in Flexport‘s name and that Flexport shall have full control of such proceedings.
8.3 The Client shall immediately deliver to Flexport any payment which the Client may have received from a Customer in or towards payment of any Purchased Accounts Receivable. Until so delivered, the Client shall hold and keep separate from the Client’s other moneys all such moneys, cheque or other negotiable instrument in respect of a Purchased Account Receivables as trustee for Flexport.
8.4 The Client shall not, without obtaining Flexport’s prior written consent, waive or modify any term of an Underlying Contract. In particular, the Client shall not extend the time of the payment or give the Customer any credit or discounts. Upon Flexport’s written consent being given to discount in respect of a Purchased Account Receivable on which any monies have been paid by Flexport to the Client, or any credit note issued pursuant to such consent being forwarded to Flexport for delivery to the Customer, the Client shall forthwith reimburse Flexport the amount of such credit or Customer discount.
9.1 Flexport may maintain such accounts as it may consider appropriate or convenient to record these transactions.
9.2 Flexport may at any time at its absolute discretion set-off any amount due to Flexport from the Client against any amount due from Flexport to the Client.
10. RECORD INFORMATION
10.1 The Client shall at all times, whether before or after the sale of an Account Receivable, disclose to or notify Flexport forthwith all matters of fact and opinion together with any documents in connection therewith, if applicable, which the Client or its agent or servant may have or subsequently obtain, bearing adversely upon the credit worthiness of any Customer and the validity of the Account Receivable, arrange for Flexport to see and interview the Customer if necessary and shall assist Flexport in every way to safeguard its interest and report to Flexport any information which may come to the knowledge of the Client or its agent or servant about reclaimed, repossessed or returned merchandise, Customer's claims disputes or possible disputes and any other matter affecting Account Receivables whether purchased or unpurchased.
10.2 The Client shall notify Flexport in writing immediately and, where possible, in advance of the happening of any event tending to affect the warranties contained in Clause 7.1 or the performance of its obligations under Clause 7.2.
10.3 The Client shall, within seven (7) days from (i) the date of appointment of a new director to the Board of the Client, or (ii) the date of transfer or issue of fifty percent (50%) or more of the shares, interest, ownership or rights in the Client to another party (as the case may be), inform Flexport of the same, as well as the name of any business, firm or company in which such director or shareholder has any interest whatsoever.
10.4 All documents supplied by the Client to Flexport under this Agreement shall at all times remain the property of Flexport without any obligation on the part of Flexport to return the same to the Client.
11.1 The Client shall pay to Flexport on demand on a full indemnity basis all stamp, documentary, registration or other like duties or taxes, including withholding taxes and any penalties, additions, fines, surcharges or interest relating thereto or any notarial fees which are imposed or chargeable on or in connection with this Agreement, any Request or the purchase by Flexport of any Accounts Receivable.
11.2 All payments to be made to Flexport under this Agreement shall be made in cleared funds, without any deduction or set-off and free and clear of any deduction for or on account of any taxes, levies, imports, duties, charges, fees and withholdings of any nature now or hereafter imposed by any governmental, fiscal or other authority save as required by applicable law. If the Client or the Customer are compelled to make any such deduction, the Client will pay to Flexport such additional amounts as are necessary to ensure receipt by Flexport of the full amount which it would have received but for the deduction.
11.3 Flexport shall be entitled to rely upon without further inquiry, any communication which Flexport believes in good faith to be given or made by the Client, and the Client shall indemnify and hold Flexport harmless from and against all actions, proceedings, costs, claims, demands, expenses or losses of any nature (direct or indirect) which Flexport may suffer, incur or sustain as a consequence of accepting and/or acting upon any such communication.
11.4 The Client shall indemnify, defend and hold harmless Flexport and its affiliates (and their respective directors, officers, employees, agents, representatives, affiliates, successors and assigns) (collectively, “Indemnified Persons”, and each an “Indemnified Person”) from and against any and all claims, actions, demands, expenses, costs, proceedings or judgments which may be instituted, made, threatened, alleged, asserted or established (each a “Claim”) from any person(s) from time to time in any jurisdiction against or otherwise involving the Indemnified Persons, and from all Losses (including without limitation diminution in value and/or legal and other professional fees and costs) which the Indemnified Persons may suffer or incur from time to time, in any such case arising out of, based upon or in connection with, whether directly or indirectly:
11.4.1 any Purchased Account Receivable not being an Eligible Accounts Receivable at the date of the Request or the date the Request is accepted or Purchase Date;
11.4.2 any Purchased Account Receivable being originated in/or as part of a Fraudulent Underlying Contract;
11.4.3 any dispute between the Client and the Customer arising out of or in connection to, but without limitation, the quantity or quality of goods, late delivery, or any defect (contingent or not), whether or not related to the shipment of the goods that may affect the Accounts Receivable and/or the Underlying Contract;
11.4.4 any inaccuracy in or any breach of any of the representations or warranties or undertakings of the Client under the Agreement.
11.5 The Client shall further indemnify Flexport in respect of any Loss arising from or occasioned by any governmental prohibition, restriction, regulation or moratorium having the effect of temporarily or permanently preventing payment of all or any part of a Purchased Account Receivable.
11.6 Nothing in this Clause 11 shall be deemed or construed to restrict or limit the rights of the Indemnified Persons or otherwise affect the ability of the Indemnified Persons to claim for damages or other remedies on any other basis available to them in respect of the matters in this Clause 11 and/or to start any recovery or collection proceedings or to bring any claim and/or actions at law or otherwise, that may be needed, against the Customer and/or the Client, from time to time to allow proper recovery and indemnification to the Indemnified Persons. For purposes of this Clause 11, Flexport will be deemed to incur any Loss suffered by the Indemnified Persons, and it shall not be necessary for Flexport to establish loss or damage.## 12. GENERAL
12.1 No failure or delay by Flexport in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any right, power or privilege by Flexport preclude any of its further exercise thereof or its exercise of any other right, power privilege. The rights and remedies herein provided to Flexport are cumulative and not exclusive of any rights and remedies provided by the law.
12.2 All moneys received by Flexport in respect of an Account Receivable shall to the extent that they do not exceed the same be deemed to have been received in payment of any such sum due to Flexport in respect of any Accounts Receivable forming part thereof. Any payments made by any third party or third parties to Flexport in or towards the account of the Client’s indebtedness to Flexport shall be deemed to be fully authorized or approved by the Client and the Client shall at all times save harmless and keep Flexport indemnified against any and all claims, demands, expenses, costs and proceedings which may be brought by such third party or third parties.
12.3 In no event shall Flexport be liable for any loss of profits, business, data or information or any incidental, indirect, special or consequential damages whether arising from the negligence of a third party, breach of contract or otherwise, even if Flexport is informed of the possibility of those losses or damages. Flexport shall not be liable for any Losses arising out of or relating to any of its actions or omissions to act under the Agreement, except to the extent that any such Losses are caused by Flexport’s willful misconduct, fraud or gross negligence.
12.4 Flexport shall be entitled at its absolute discretion to institute proceedings against the Customer for the recovery of any moneys owing in respect of a Purchased Account Receivable.
12.5 It is hereby agreed that the Client is not a legal representative nor an agent of Flexport in any respect and is not authorised to assume or create obligations of any kind on behalf of Flexport, or make any promises or representations in Flexport’s name. The Client's activities shall be limited to the Agreement.
13. RIGHT OF VARIATION
13.1 Flexport may alter the basic terms of the Agreement by giving to the Client notice in writing and upon the expiration of such notice, such altered terms shall form part of the Agreement in substitution for the terms which have been altered, and the Agreement shall in such altered form be in full force and effect. Without prejudice to the foregoing, this Agreement may be varied and will in any event be deemed to be varied to comply with any laws/regulations currently and as may be applicable in the future.
13.2 Without prejudice to the foregoing and notwithstanding the provisions relating to the Factoring Fee, Late Payment Fee and/or any other charges as herein provided (as applicable), Flexport shall be entitled at any time to vary at its absolute discretion such charges as herein provided or the Letter of Offer (as applicable) by serving a notice in writing to the Client of its intention and such amended charges shall be payable as from the date specified in the said notice.
14.1 The Agreement shall commence from the date of the Accounts Receivable Purchase Agreement and shall continue in force until determined at any time by either Flexport or the Client giving to the other not less than seven (7) days’ written notice without the provision of any reasons thereto.
14.2 Without prejudice to the provision of Clause 14.1, it is hereby further agreed that in the event (each, an “Event of Default”):
14.2.1 the Client fails to observe or perform any of its obligations or any undertaking under this Agreement, and, in the case of a failure capable of being remedied, Flexport does not determine, within seven (7) days after the Client became aware of the failure, that it has been remedied to Flexport’s satisfaction;
14.2.2 any Purchased Accounts Receivable remains unpaid more than 30 days from the Invoice Due Date, or the Client fails to pay any amount due under any agreement or arrangement to any lenders on the due date or on demand, if so payable;
14.2.3 the Client is in breach of any representations and warranties given under the Agreement;
14.2.4 the Client and/or the Customer commits any fraud, error, omission, misrepresentation, wrongdoing, negligence (including without limitation in respect of any Underlying Contract);
14.2.5 the Client or its directors or shareholders commits a breach of the applicable laws pertaining to their respective activities or operations;
14.2.6 the Client changes the nature or scope of its business, suspends a substantial part of the present business operations which it now conducts directly or indirectly, or any governmental authority expropriates all or part of its assets and the result of any of the foregoing is, in the determination of Flexport adversely to affect the financial condition or the ability of the Client to observe or perform its respective obligations under this Agreement;
14.2.7 Flexport has reason to believe that the Purchased Accounts Receivable originate from or as part of, a Fraudulent Underlying Contract;
14.2.8 there is a dispute between the Client and the Customer including without limitation: (a) failure of consideration (whether partial or total); and/or (b) the quantity or quality of goods, late delivery, or any defect, whether related to the shipment of the goods pursuant to the Underlying Contract, that may in Flexport’s opinion, affect the Purchased Account Receivables and/or payment and settlement of the Underlying Contract;
14.2.9 the Client is unable or becomes unable to pay its debts as they fall due; makes or seeks to make any arrangements with its creditors; becomes insolvent or is deemed to become insolvent if and as soon as it suffers the appointment of a receiver or an interim liquidator in respect of the whole or any part of its assets or the presentation by the petitioner or the making of an order or the passing of an effective resolution for winding up (other than a members voluntary winding up);
14.2.10 any legal proceedings, suits, actions, litigation, arbitration or administrative proceeding is commenced against the Client and which, in the opinion of Flexport will affect the Client’s ability to observe or perform its obligations under this Agreement;
14.2.11 any provision of this Agreement is or becomes, for any reason, illegal, invalid or unenforceable, or the Client is otherwise unable to perform any of its obligations under this Agreement;
then, without prejudice to any other rights that it may have under this Agreement, at law, equity or otherwise, Flexport may in its sole and absolute discretion have the right to suspend the factoring facility provided herein or terminate the Agreement forthwith by written notice to the Client.
14.3 Termination of this Agreement whether under Clauses 14.1 or 14.2 shall not affect any obligations of the Client in relation to any Account Receivables purchased prior to such termination and the provisions of this Agreement shall continue to bind the Client so far and so long as may be necessary to give effect to such obligations. IN ADDITION to the rights of Flexport provided herein, Flexport may at its absolute discretion on the date of such determination reassign to the Client any Purchased Account Receivables provided that the Advanced Amount paid in respect of such Purchased Account Receivables provided together with all other amounts previously paid by Flexport to the Client shall have been paid by the Client in full and Flexport may withhold any payment which would otherwise be due to the Client until the Client has complied with all its obligations hereunder.
15.1 Flexport may disclose: (a) to any person to (or through) whom Flexport assigns or transfers (or may potentially assign or transfer) all or any of its rights and obligations under this Agreement; (b) to any person with (or through) whom Flexport enters into (or may potentially enter into) any sub-participation in relation to, or any other transaction under which payments are to be made by reference to, this Agreement; (c) any person or entity working for/with Flexport or is a part of Flexport subsidiaries and/or group of companies and is under a duty of confidentiality to the disclosing Flexport entity; or (d) to any person to whom, and to the extent that, information is required to be disclosed by any applicable law; any information about the Client or its business as Flexport shall consider appropriate.
15.2 The Client shall at all times keep confidential the information acquired in consequence of or in relation to this Agreement, except for information which it may be entitled or bound to disclose under compulsion of law or where requested by regulatory agencies or professional advisers as reasonably necessary for the performance of their professional services.
16.1 All notices, requests, and demands given or made under this Agreement shall be given or made in writing and unless otherwise stated, shall be made by letter or via any electronic communication including but not limited to email or online notification.
16.2 All notices or other communications shall be deemed to have been received: (a) if a notice given by hand, on the day of actual delivery; (b) if sent by post, five (5) Business Days after being deposited in the post with first class prepaid postage; or (c) if sent by e-mail or other electronic communication, on the date of sending; provided that a notice given in accordance with the above but received on a day which is not a Business Day or after normal business hours in the place of receipt shall be deemed to have been received on the next Business Day.
17. ENTIRE AGREEMENT
The Documents constitute the entire agreement and understanding of the Client and Flexport, and collectively, shall supersede any previous oral or written understanding, commitments, contracts or representations relating to the subject matter of the aforesaid documents.
18. SUCCESSORS IN TITLE
The Client shall not transfer or assign its rights or obligations under this Agreement. Flexport may assign and/or transfer any of its rights and obligations hereunder, and such assignment and/or transfer shall be binding on the legal representatives, successors in title, assigns and heirs of Flexport.
Any Party may enter into the Agreement by manually signing any such counterpart or by inserting an electronic signature of any such counterpart transmitted electronically by any of the Parties to any other Party, and the receiving Party may rely on the receipt of such document so executed and delivered (including by electronic means) as if the original had been received.
20. THIRD PARTY RIGHTS
Save for the Indemnified Parties, a person who is not a Party has no rights under the Contracts (Rights of Third Parties) Act 2001 of Singapore to enforce any term of this Agreement.
In the event that any provision contained in this Agreement shall be invalid, illegal, or unenforceable, such provision or part thereof shall to the extent be deemed not to form part of this Agreement and the validity, legality, and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired.
22. GOVERNING LAW AND DISPUTE RESOLUTION
22.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Singapore.
22.2 Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre in accordance with the Arbitration Rules of the Singapore International Arbitration Centre for the time being in force. The seat of the arbitration shall be Singapore. The tribunal shall consist of one (1) arbitrator. The language of the arbitration shall be English.