SMEs' Terms and Conditions

GXS Capital operates under the legal entity Validus Capital Pte. Ltd. (UEN 201530032R), which holds a Capital Markets Services license for dealing in Capital Markets Products which are securities, issued by the Monetary Authority of Singapore. Validus Capital Pte. Ltd. is a wholly-owned subsidiary of GXS Bank Lte. Ltd (UEN 202005626H).

GXS Capital provides products and services that may suit your needs. It is provided to you by Validus Capital Pte. Ltd. and where applicable, through its affiliates (collectively, “GXS Capital” or “we” or “us” or “our”.

Please read this SMEs’ Terms and Conditions carefully. By being registered or applying to be registered as an SME on the Platform, you agree to be bound by this website’s Terms of Use and this SME’s Terms and Conditions. This SMEs’ Terms and Conditions apply howsoever you decide to access the Platform.

We may make changes to this SMEs’ Terms and Conditions from time to time and post a revised version on this website, which shall be effective immediately upon such posting. We are under no obligation to separately inform you of any such revision. Your continued access of the Platform or the occurrence of any transaction in relation to your Account (including any payment or debit of monies into or through your Account and the existence of any on-going Investment which you have received funding from) after the revised SMEs’ Terms and Conditions have taken effect will constitute your unconditional acceptance of such revised SME’s Terms and Conditions.

1. Definitions

1.1. Unless the context otherwise requires, terms defined in the Terms of Use shall have the same meaning when used in this SMEs’ Terms and Conditions, and, in addition, the following terms shall have the respective meaning corresponding to them:

  1. ‍Account means an account assigned by GXS Capital to an SME to access the Platform and the Services;Account Bank
  2. Account Bank means DBS Bank Ltd or such other bank or financial institution as may be appointed by GXS Capital and as permitted under the relevant regulations;Annual Fee
  3. Annual Fee means the fee an SME shall pay to GXS Capital every year, as stipulated in the SME Fee Schedule;Business Days
  4. Business Days means a day (other than a Saturday, Sunday or gazetted public holiday) on which commercial banks are open for business in Singapore;Debt
  5. Debt means all outstanding amount owed by the SME under the Transaction Documents to which the SME is a party to;Default
  6. Default means an Event of Default or any event or circumstance specified in Clause 18 (Events of Default) which would (with the expiry of a stated period (if any), the giving of notice, the making of any determination under this SMEs’ Terms and Conditions or any Transaction Document or any combination of any of the foregoing) be an Event of Default;
  7. Designated Account means the bank account or electronic wallet account which the SME identifies in its Registration Information or as updated by the SME from time to time via the Platform for its Account provided that such update in respect of the bank account or electronic wallet account shall only be effective seven Business days’ after GXS Capital approves the update;
  8. Disbursal Fee means the fee payable by the SME to GXS Capital pursuant to the successful funding of its Facility Request as stipulated in the SME Fee Schedule;
  9. Electronic Signature means a digital signature or image, digital credential or representation or any other electronic method used to identify a person and to indicate the intention of that person in respect of the information contained in that application, document or agreement;
  10. Event of Default has the meaning ascribed to it in Clause 18;
  11. Facility Application has the meaning ascribed to it in Clause 5.1;
  12. Facility Application Fee means the fee payable by the SME to GXS Capital in its making of a Facility Application as stipulated in the SME Fee Schedule;
  13. Facility Fee means the non-refundable facility fee payable to GXS Capital by the SME for availing uncommitted facilities on a best efforts basis under the Facility Application approved by GXS Capital;
  14. Facility Request means a Transaction Document pursuant to a Facility Application by an SME, posted on the Platform for which Investors can invest in respect of an identified SME for the Requested Amount in accordance with the terms and conditions of the Transaction Documents relating thereto;
  15. Final Repayment Date means the final repayment date of the relevant facility as stipulated in the Facility Request, to which the SME shall repay to GXS Capital all outstanding amounts under the facility (including the Funded Amount, all relevant fees and interest amounts).
  16. Financial Indebtedness means any indebtedness for or in respect of:
    1. moneys borrowed;
    2. any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
    3. any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
    4. in accordance with the latest GAAP applicable, be treated as a balance sheet liability;
    5. receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
    6. any amount raised under any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this definition having the commercial effect of a borrowing;
    7. any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that derivative transaction, that amount) shall be taken into account);
    8. any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and
    9. the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (i) to (viii) above.
  17. Funded Amount means the amount of funds disbursed to the SME or a third party in respect of and under a Facility Request;
  18. GAAP means generally accepted accounting principles in Singapore;
  19. Guarantors means director(s), partner(s) (in case of limited liability partnership) and/or any other persons providing a guarantee to guarantee the amounts and obligations owing by the SME in respect of a Facility Application in form and substance satisfactory to GXS Capital.
  20. Indemnified Parties has the meaning ascribed to it in Clause 20.2;
  21. Indirect Tax means any goods and services tax, consumption tax, value added tax or any tax of a similar nature;
  22. Investment Commitment means an offer by an Investor in relation to a Facility Request to fund such Facility Request in such amount as the Investor may indicate in its offer;
  23. Investor means any individuals, corporations, limited liability partnerships, organisations, investment vehicles, associations or any other type of entity, whether or not incorporated who is registered on the Platform for the purposes of providing funding, individually or collectively with other Investors, to SMEs through the Platform;
  24. Late Fee means the one-time fee payable by the SME for delay in repayment of any Facility as stipulated in the SME Fee Schedule in the Facility Request;
  25. Letter of Offer means the letter of offer from GXS Capital to the SME offering the SME the facility pursuant to and based on the information furnished by the SME in the Facility Application;
  26. Minimum Investment Ratio means the minimum percentage of the Requested Amount required for the successful funding of a Facility Request, set by GXS Capital at its sole and absolute discretion in relation to each Facility Request;
  27. Platform means the online platform operated by GXS Capital to provide Services to Investors and SMEs through this website or mobile device application;
  28. Prepayment Fee means the fee which an SME who wishes to prepay a Debt under a Transaction Document shall pay to GXS Capital as stipulated in the SME Fee Schedule;
  29. Registration Fee means the fee which anyone who wishes to be registered as an SME shall pay to GXS Capital as stipulated in the SME Fee Schedule;
  30. Registration Information means such information and/or documents as may be required by GXS Capital from time to time, and which must be uploaded onto this website or the Platform during the registration process (including copies of authorising resolutions, business profile searches, constitutional documents, latest financials, identity cards or passports and proof of address of the SME’s directors, partners (in case of limited liability partnership) and ultimate beneficial owners, and such other know your client information as GXS Capital may require from time to time);
  31. Request Period means the duration for which a Transaction Document is posted on the Platform for Investors to submit their Investment Commitments, as GXS Capital may in its sole and absolute discretion determine based on the transaction to which the Transaction Documents relate;
  32. Requested Amount means the amount stated in the Facility Request by GXS Capital that an SME has requested from the Investors;
  33. Sanctions means any sanctions now and from time to time imposed by Singapore, the United States of America, the European Union, the United Nations and/or any regulatory or supervisory authority or body;
  34. Security means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect;
  35. Security Document means any document that secures or guarantees any amounts and the obligations owing by an SME in respect of any Facility Request (made in relation to that SME) in form and substance satisfactory to GXS Capital;
  36. Services means the provision by GXS Capital of an on-line marketplace through the Platform where Investors and SMEs may interact for the purposes of providing and receiving, respectively, funds pursuant to the terms of the relevant Transaction Document, and includes such assistance provided by GXS Capital to both Investors and SMEs to effect the arrangements under the relevant agreements, and any addition, modification, suspension or termination of the foregoing, as stipulated by GXS Capital from time to time;
  37. SGD and the sign S$ means the lawful currency of Singapore;
  38. SME means any body corporate or registered sole-proprietorship registered on the Platform in accordance with this SMEs’ Terms and Conditions for the purposes of receiving funding from the Platform;
  39. SME Fee Schedule means the schedule of fees which GXS Capital may notify the SMEs through the Platform or such other Transaction Document or communication from time to time;
  40. Tax means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same) as mandated and in accordance with all applicable tax rules, regulations or laws in Singapore, in which GXS Capital shall have the right to claim from the SME;
  41. Tax Deduction means a deduction or withholding for or on account of Tax from a payment under a Transaction Document;
  42. Termination Fee means the fee an SME shall pay to GXS Capital when the SME’s Account is terminated for any reason whatsoever, as stipulated in the SME Fee Schedule;
  43. Terms of Use means the terms of use relating to the online access to this website and the Platform by any person (a copy of which is available on this website), as may from time to time be amended, supplemented and/or substituted and reposted on this website by GXS Capital;
  44. Transaction Documents means any document which SMEs may enter into with GXS Capital or the relevant Investor (whether or not through GXS Capital) from time to time in relation to any Service provided, including any Security Documents; and
  45. Trust Account means a trust account or customers’ account maintained with the Account Bank opened by GXS Capital.

1.2. In this SMEs’ Term and Conditions, unless the context otherwise requires:

  1. person refers to an individual, a firm, a body corporate or an unincorporated association;
  2. any reference to any legal entity or individual persons includes, where appropriate, a reference to its authorised agents, delegates, successors or nominees;
  3. a reference to “including” means “including, without limitation”;
  4. words importing the singular include the plural and vice-versa;
  5. words importing a gender will include all other genders; and
  6. references to “Letter of Offer”, “Facility Request”, “Security Documents” and “Transaction Documents” include any other document which amends, modifies or supplements that document.

2. General

The Terms of Use are subject to this SMEs’ Terms and Conditions, both to which SMEs are bound. If there is any conflict between the two, this SMEs’ Terms and Conditions will prevail to resolve such conflict. For the avoidance of doubt, all other terms of the Terms of Use (to the extent that they are not inconsistent with this SMEs’ Terms and Conditions) shall continue to bind SMEs.

3. Account

3.1. In order to obtain access to the Services provided through the Platform as an SME, you must:

  1. be a corporation or limited liability partnership registered with the Accounting and Corporate Regulatory Authority of Singapore, and have a bank account in Singapore;
  2. not be registered on the Platform as an Investor nor may any of your shareholder, directors, partners (in case of limited liability partnership) be registered on the Platform as Investors;
  3. pay the requisite Registration fee; and
  4. fulfil such other internal policies and requirements (including credit assessments) of GXS Capital and be successfully registered by GXS Capital on the Platform as an SME.

3.2. As part of the registration process, you are required to provide Registration Information to GXS Capital. In accordance with its internal guidelines and policies (including its credit assessments), GXS Capital has the sole and absolute discretion whether or not to register you as an SME, and in the event that GXS Capital does not proceed with your registration, GXS Capital is not obliged to inform you of the reason(s) for not proceeding. We may suspend or place limitations on any transaction on your Account at any time or reject your registration application if we believe it is appropriate in order to comply with our legal or regulatory obligations, or if we are not provided with the requisite Registration Information. For details about how we may collect, use, disclose or process any personal data submitted by you (including any such information contained in your Registration Information), please refer to our privacy policy (available at https://business.gxs.com.sg/gxsc-privacy-policy/) and the provisions below.

3.3. In the event there are any changes to the substance of any information, documentation, declarations, or affirmations provided by you to GXS Capital, you shall immediately make any such changes on the Platform and inform GXS Capital of the same.

3.4. You agree to receive communication (through any medium whatsoever) from GXS Capital and our partners, which will include marketing materials such as newsletters, updates and promotions about the Services, Platform and/or this website.

3.5. In applying to be registered as an SME, you hereby represent, warrant, and undertake to GXS Capital on the date of registration and on each day thereafter that you are an SME that:

  1. all Registration Information furnished by you is true, accurate, current and complete;
  2. if you are body corporate, each individual acting on your behalf have been provided with due consent and authorisation to register with and access the Platform, operate the Account and use the Services;
  3. you are familiar with the functions of the Platform, and you understand and are capable of evaluating the risk factors in:
    1. the mechanism of the Platform; and
    2. in using the Services provided through the Platform, including the Transaction Documents;
  4. you own or are authorised to furnish such Registration Information, you are solely and entirely responsible for the Registration Information and any content you upload to the Platform and acknowledge that GXS Capital shall have no liability for any Registration Information nor any other content you upload to the Platform(including any errors, omissions or loss and damages incurred in connection there with) and may reject, delete or omit any content uploaded to the Platform by you as it deems appropriate;
  5. prior to participating in any transaction in connection with any Services provided through the Platform, you will have the opportunity to review and will review to your satisfaction the relevant Transaction Documents, and fully understand the contents and the legal and financial implications arising from them;
  6. you will not adapt or circumvent the systems in place in connection with the Platform nor access any of our systems or the Services other than by using the credentials assigned to you and by following the instructions that we have provided in relation thereto;
  7. you have and will take all reasonable precautions to ensure that any data uploaded or submitted to the Platform is free of viruses and anything else which may have a contaminating or destructive effect on any part of the Platform or any other technology;
  8. it is not illegal or unlawful for you to access the Platform from the territory in which you are carrying out such access; and
  9. you are not convicted of, nor subject to any investigation or inquiry in respect of, any money laundering, criminal or sanctioned activities.

4. Access to and Use of Platform

4.1. Once GXS Capital registers you as an SME, you will be provided a username, password and security questions to which you are required to answer. Your Account is personal to you and is not transferable.

4.2. Your username, password and the answers to the security questions are how we identify you, and so you must keep them secure at all times. You are responsible for all information and activity on the Platform by anyone using your username and password whether or not authorised by you.

4.3. Accessing the Platform from territories where its contents are illegal or unlawful is prohibited. If you choose to access the Platform from elsewhere other than Singapore, you do so on your own initiative and are responsible for compliance with local laws in the territory of access.

4.4. GXS Capital reserves the right not to act on your instructions or to withhold the Services where we suspect that the person logged into your Account is not you or if we suspect illegal or fraudulent activity or unauthorised use. GXS Capital is however not obliged to and may not be able to detect unauthorised, illegal or fraudulent use of your Account.

4.5. When you post content to the Platform or send any document to us in connection with your Account (through any medium and in any form), you grant us a world-wide exclusive, royalty-free, perpetual, irrevocable licence to use, copy, distribute, publish, reproduce, disclose, create derivative works from, reduce and transmit such content in any manner through any medium, anywhere in the world, for our own business purposes (including any advertising and promotional purposes) without any restriction (including confidentiality or any compensation to you). GXS Capital may also remove any such content upon receipt of written notification from you or at any time in GXS Capital’ sole discretion.

4.6. GXS Capital takes reasonable precautions to ensure that its systems are secure. However, information transmitted via the Platform or its systems will pass through public telecommunications networks. GXS Capital accepts no liability if communications sent via the Platform or any of its systems are intercepted by third parties, incorrectly delivered or not delivered.

4.7. You can monitor your Account and facilities on the Platform. GXS Capital does not provide paper statements of your Account or trail of your transactions on the Platform.

4.8. You shall pay an Annual Fee to GXS Capital every year for which your Account is maintained with GXS Capital.

5. Requesting Funding Through the Platform and Other Processes

5.1. After being registered with the Platform, the SME is entitled to submit an application to GXS Capital through the Platform for a Facility Request to be posted on the Platform, in accordance with this SMEs’ Terms and Conditions (a Facility Application). Each Facility Application shall be made in the form prescribed by GXS Capital through the Platform or otherwise. The SME is required to provide documents and information in the Facility Application for GXS Capital to access that SME’s legal, operational and credit history including the Facility Application’s suitability for a Facility Request. GXS Capital may require further documents or information to be provided if any document or information provided in the Facility Application is incomplete or not to its satisfaction.

5.2. The Platform’s acceptance of a Facility Application does not constitute any legal obligation on the part of GXS Capital to process or fulfil the Facility Application. GXS Capital is not obliged to review nor consider any Facility Application until it is in receipt of the Facility Application Fee.

5.3. Where a Facility Application is approved by GXS Capital, it will post a Facility Request in relation to that Facility Application on the Platform. Each Facility Request shall be deemed to be an offer made by the SME pursuant to the Facility Application and the SME agrees to be irrevocably bound by the terms therein. Prior to or simultaneous with that Facility Request being posted on the Platform, the SME shall be required to execute (and procure such relevant security provider to execute) such Transaction Documents (including Security Documents) in connection with the Facility Request. For the avoidance of doubt, GXS Capital may not post a Facility Request until it is in satisfactory receipt of all required Transaction Documents from the SME.

5.4. Any Facility Application leading to a Facility Request being posted on the Platform shall be irrevocable by the relevant SME but any Facility Request may at any time during the Request Period, be withdrawn or terminated by GXS Capital in its sole and absolute discretion without giving any reason.

5.5. For the avoidance of doubt, SMEs acknowledge and agree that GXS Capital shall have the sole and absolute discretion to decide (and such decision shall be final and binding on the SME) which Investors may partake in the SME’s Facility Request.

5.6. Provided that:

  1. no Event of Default has occurred; and
  2. the Investors have successfully funded no less than the Minimum Investment Ratio of such Facility Request,

GXS Capital shall notify the SME and transfer the Funded Amount in respect of that Facility Request less the Disbursal Fees and the Facility Fees (as the case may be) to the SME’s Designated Account or to the account(s) of any third party as stipulated in that Facility Request. The SME shall be deemed to have received such funds once the transfer is made by GXS Capital.

5.7. The SME shall apply all amounts received by it pursuant to the Transaction Documents towards its working capital and growing its business. GXS Capital is not bound to monitor nor verify the application of any such amount.

5.8. Each Facility Application will be reviewed separately and independently, the approval or funding of one Facility Application does not necessarily mean that other Facility Applications made will be approved by GXS Capital or funded by Investors.

6. Repayment

The SME shall be liable to repay any amount (including all applicable Tax) owing by it (whether to GXS Capital as agent or otherwise) under any Transaction Document to which it is a party as stipulated by GXS Capital under each such Transaction Document. Where the facility involves the service of a notice of irrevocable payment instructions to third party debtor(s), the SME shall instruct the relevant debtor to make all payments under or in connection with any applicable contract to GXS Capital as repayment of any amount owing under any Transaction Document and shall procure the relevant debtor(s) to acknowledge the said payment instruction.

7. Prepayment

7.1. The SME may prepay the whole or any part of any amounts owing by it under any Transaction Document, subject to:

  1. GXS Capital’ prior written approval;
  2. a Prepayment Fee being paid; and
  3. the terms of such Transaction Document.

8. Interest

  1. The SME shall pay interest on the funding received stipulated under each Transaction Document to which it is a party (“Interest”).
  2. In the event that the SME fails to pay any amount payable by it in accordance with the relevant Facility Request, late interest shall accrue at the rate set out in the Facility Request on any overdue principal amount from the day after the date the amount is due to the date of the actual repayment and shall be immediately due and payable by the SME on demand by GXS Capital (“Late Interest”).

9. Late Fees

In addition to the late interest payable in Clause 8(b), in the event that the SME fails to repay any amount that is outstanding under any Transaction Document on the Final Repayment Date, the SME shall be liable to pay a Late Fee (as set out in the relevant Facility Request) and such Late Fee shall be immediately due and payable by the SME on demand by GXS Capital.

10. Administration and Transaction Documents

10.1. Rights and discretions of GXS Capital

  1. GXS Capital may rely on:
    1. any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and
    2. any statement made by a director, partner (in case of limited liability partnership), authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify or instruct.
  2. While GXS Capital is under no obligation to verify or investigate into the authenticity of the Registration Information provided by you and the authority of any individual acting on your behalf, you agree to promptly supply to GXS Capital, upon request, such further information or documents as may be required by GXS Capital to ascertain the above.
  3. GXS Capital may assume that no Event of Default or any other event stated in any Transaction Document has occurred under such Transaction Document (unless it has actual knowledge of such Event of Default or other event).
  4. GXS Capital may delegate the maintenance and operation of the Trust Account and the handling of any monies in connection with a Facility Request or Transaction Document to a competent third-party service provider.
  5. GXS Capital may (but shall not be obliged to) take such action in the exercise of any of its powers and duties under any Transaction Document as it considers in its discretion to be appropriate.
  6. Notwithstanding any other provision of any document to the contrary, GXS Capital is not obliged to do or omit to do anything if it would or might, in its reasonable opinion, constitute a breach of any law, regulation, its obligations, any fiduciary duty or duty of confidentiality owed by it to any person, and shall be entitled to perform any act or enforce any right for the purposes of complying with any law, regulation, court order or arbitral award to which it is subject without first notifying you or seeking your consent (where required).

10.2. Clawback and Pre-funding

  1. Where a sum is to be paid to GXS Capital for any SME, GXS Capital is not obliged to pay that sum to that SME until it has been able to establish to its satisfaction that it has actually received that sum.
  2. If GXS Capital pays an amount to any SME and it proves to be the case that GXS Capital had not actually received that amount, then the SME to whom that amount (or the proceeds of any related exchange contract) was paid by GXS Capital shall on demand refund the same to GXS Capital together with interest on that amount from the date of payment to the date of receipt by GXS Capital, calculated by GXS Capital to reflect any costs incurred by it as a result of such payment.

10.3. Partial Payments

If GXS Capital receives a payment that is insufficient to discharge all the amounts then due and payable by an SME, security provider or debtor under a Transaction Document, GXS Capital shall, subject to GXS Capital’ right under any document to recover its costs (including all legal costs on a full indemnity basis) incurred as a priority, apply that payment in the following order:

  1. first, in or toward payment pro rata to any accrued Interest or accrued Late Interest fee due but unpaid under any Transaction Document owing to GXS Capital (or any of its agents);
  2. second, in or towards payment pro rata to the Investors of any principal due but unpaid under the Transaction Document which such Investors are party to; and
  3. third, in or towards payment pro rata of any Late Fees owing to GXS Capital (or any of its agents).

10.4. Variation of application of payment

Notwithstanding Clause 10.3 above, GXS Capital may, in its sole discretion, apply any partial payment in any order as it may determine.

10.5. No set-off by SME and Security Provider

All payments to be made by an SME or security provider under the Transaction Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.

10.6. Business Days

  1. Any payment under the Transaction Documents which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
  2. During any extension of the due date for payment of any Debt under this SMEs’ Terms and Conditions, interest is payable on the principal or unpaid sum at the rate payable on the original due date including any default interest applicable.

10.7. Currency of account

  1. Subject to paragraphs (b) and (c) below, SGD is the currency of account and payment for any sum due from an SME under any Transaction Document to which it is a party to.
  2. Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
  3. Any amount expressed to be payable in a currency other than SGD shall be paid in that other currency.

10.8. Day count convention

Any interest, commission or fee accruing under a Transaction Document will accrue from day to day and is calculated on the basis of the actual number of days elapsed and a year of 360 days or, in any case where the practice in the jurisdiction of incorporation differs, in accordance with that market practice.

10.9. Further Assurance

The SME shall promptly do whatever GXS Capital (acting reasonably) requires:

  1. to perfect or protect any Transaction Document to which it is a party or the priority of any Security Documents to which it is a party;
  2. to facilitate the realisation of any assets secured or to be secured under any Transaction Document to which it is a party or the exercise of any rights vested in GXS Capital or any receiver, delegate or agent of GXS Capital in accordance with the provisions of such Security Document;
  3. to confer on GXS Capital over any property and assets of that SME located in any jurisdiction outside Singapore equivalent or similar to the security intended to be conferred by or pursuant to any Security Document,

including depositing, with GXS Capital, all title deeds, agreements, leases and documents relating to any of the assets secured under any Security Document, executing any transfer, conveyance, charge, mortgage, assignment or assurance of any assets secured or to be secured under any Transaction Document (whether to GXS Capital or its nominees or otherwise), making any registration and giving any notice, order or direction.

The SME shall also enter into a power of attorney (in form and substance satisfactory to GXS Capital) granting GXS Capital the right to do any of the above on behalf of the SME.

10.10. Calculations and Certificates

In relation to any amounts due and owing under any Transaction Document, or any litigation or arbitration proceeding arising out of or in connection there with, the entries made in the accounts, ledgers or books (in any medium or form) maintained by GXS Capital are prima facie evidence of the matters to which they relate. Any certificate or determination by GXS Capital of a rate or amount under any Transaction Document is, in the absence of manifest error, conclusive evidence of the matters to which it relates.

11. Partial Invalidity

If, at any time, any provision of a Transaction Document is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.

12. Remedies and Waivers

No failure to exercise, nor any delay in exercising by GXS Capital, any right or remedy under a Transaction Document shall operate as a waiver of any such right or remedy any of the Transaction Documents. No waiver of any right or remedy under any Transaction Document by GXS Capital shall be effective unless it is in writing. No single or partial exercise of any right or remedy shall prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in each Transaction Document are cumulative and not exclusive of any rights or remedies provided by law.

13. Disclosure by GXS Capital

The SME irrevocably consents to the disclosure by GXS Capital, GXS Capital’ officers, employees and agents and, in any manner howsoever, of any information relating to the SME including but not limited to details of facilities, securities taken, credit assessment including any personal data of any individuals submitted by the SME to

(i) GXS Capital’ representatives and affiliates, documents checking and processing centres and branch offices in any jurisdiction,

(ii) any regulatory, court or supervisory authority including fiscal authority in any jurisdiction,

(iii) any potential assignee of GXS Capital, any Investor or any other participant in any of GXS Capital’ rights and/or obligations in relation to any Transaction Document,

(iv) any insurers with whom insurance cover is taken out in connection with such Transaction Document, and

(v) any corporate or institution with whom the SME has a commercial relationship with (including any invoice debtors to the SME).

14. Fees

14.1. Any fees, charges or expenses incurred by GXS Capital in connection with the creation, execution, registration or satisfaction of a security created under the Security Documents shall be borne by the SME and the SME shall, on demand by GXS Capital, pay to GXS Capital the amount of any such fees, charges or expenses as GXS Capital may specify (whether in the SME Fee Schedule or otherwise).

14.2. GXS Capital reserve the right to charge new fees for the facility or to revise the rate or amount of any fees that is payable by the SMEs to GXS Capital under the Transaction Documents by notifying the SMEs through the Platform or such other Transaction Document or communication from time to time.

14.3. In relation to any particular Facility Request, Facility Application and Transaction Document (including its registration, enforcement), GXS Capital may engage, rely on the advice or services of any lawyers, accountants or other experts if it deems prudent to do so. The costs of any such engagement, advice or services shall be borne by the SME to which such matter relates.

14.4. If any SME owes an amount to GXS Capital under the Transaction Documents, GXS Capital has the right without the need for further notice or reference to any SME, to deduct from any monies received for such SME, any charges and other amounts (including any relevant fees) due to GXS Capital under this SMEs’ Terms and Conditions or the Transaction Documents to which the SME is party to and apply the amount deducted in or towards satisfaction of the amount owed.

14.5. In consideration of GXS Capital providing and administering the Platform, providing the Services, and maintaining the Account, the SME shall pay to GXS Capital in readily available funds the fees and charges prescribed by GXS Capital from time to time under the SME Fee Schedule.

14.6. In addition to any general lien, right of set-off or any other right to which GXS Capital may be entitled by law or contract, GXS Capital may at any time at its sole and absolute discretion and without notice to any relevant SME earmark, set-off, debit or transfer any sum or sums standing to the credit of the SME’s Account or for the SME from time to time in or towards payment or satisfaction of all or any monies or liabilities (whether actual or contingent) due or owing under or in connection with or in respect of any Account, Facility Request or Transaction Document.

14.7. GXS Capital may at its sole and absolute discretion require that any fees payable hereunder or pursuant to any Transaction Document and any other amounts due to it under this SMEs’ Terms and Conditions be paid either by a fund transfer to the Trust Account (or such other bank account as may be stipulated by GXS Capital) or such other methods acceptable to GXS Capital.

15. Representations and Warranties

Any person using or accessing the Platform and/or the Services and/or agreeing to this SMEs’ Terms and Conditions on behalf of an SME represents and warrants that he or she is duly authorised to act on its behalf.

The SME represents and warrants to GXS Capital on each day that it is an SME that:

15.1. Where the SME is a body corporate, it is duly incorporated or formed and, the extent of such concept exists in its jurisdiction of organisation, it is in good standing under the laws of such jurisdiction, and has the power to own its assets and carry on its business as it is being conducted and where the SME is an individual operating as a sole-proprietorship, it is in good standing under the laws of the jurisdiction of his/her residence, and has the capacity to own assets and carry on his/her business as it is being conducted;

15.2. any funds provided by GXS Capital to the SME will not be used in breach of any Sanctions;

15.3. it has the power and capacity to enter into (and, if necessary, has taken all necessary action to authorise), exercise its rights and perform and comply with its obligations under this SMEs’ Terms and Conditions and each Transaction Document it enters into or submits a Facility Application for;

15.4. All authorisations or other corporate or entity action required or desirable:

  1. to enable it lawfully to enter into, exercise its rights and comply with its obligations:
    1. under this SMEs’ Terms and Conditions;
    2. in the Transaction Documents to which it is a party or submits a Facility Application for;
    3. to make such documentation admissible in evidence in its jurisdiction of incorporation; and
    4. for it to carry on its business and which are material,

have been obtained or effected and are in full force and effect (if applicable);

15.5. all actions, conditions and things required to be taken, fulfilled and done have been so taken fulfilled and done, including the obtaining of any necessary consents or license or governmental, regulatory approvals, or the making of any filing or registration in order to enable it to lawfully enter into, exercise its rights and perform and comply with the obligations under this SMEs’ Terms and Conditions or any Transaction Document it enters into or submits a Facility Application for;

15.6. no litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency or other circumstance which, if adversely determined, might reasonably be expected to have a material adverse effect on the SME or its business or assets has or have (to the best of its knowledge and belief) been started or threatened against it;

15.7. its entry into, exercise of its rights and/or performance of or compliance with its obligations under this SMEs’ Terms and Conditions or any Transaction Document it enters into or submits a Facility Application for, do not and will not violate, or exceed any power or restriction granted or imposed by any law, regulation, constitutional documents (if applicable), authorisation, any agreement or instrument binding upon it or any of its assets or constitute a default or termination event (however described) under any agreement or instrument, authorisation, directive or order whether or not having the force of law to which it or its assets is subject;

15.8. the obligations expressed to be assumed by it in each Transaction Document to be entered into by it will constitute legal, valid, binding and enforceable obligations on that SME;

15.9. its payment obligations under this SMEs’ Terms and Conditions and the Transaction Documents rank or will rank at least pari passu with the claims of all of its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law;

15.10. it is not required under the law applicable where it is incorporated or resident or at the address specified in this SMEs’ Terms and Conditions to make any Tax Deduction from any payment it may make under any Transaction Document;

15.11. any financial projection submitted to GXS Capital has been prepared on the basis of recent historical information and on the basis of reasonable assumptions and its financial statements most recently submitted to GXS Capital were prepared in accordance with the GAAP consistently applied save where disclosed in such financial statements and present a true and fair view of its financial condition and operations for the period it relates;

15.12. there is no material adverse change in its business and financial condition;

15.13. all individuals accessing its Account are duly authorised to act on its behalf;

15.14. its obligations under this SMEs’ Terms and Conditions or any Transaction Document it enters into or submits a Facility Application for are or will be valid, binding and enforceable in accordance with their terms; and

15.15. any representation, information or statement made by it in this SMEs’ Terms and Conditions or any Transaction Document it enters into or submits a Facility Application for is true and correct to the best of their knowledge in all material aspects.

16. Acknowledgements and Disclaimers

Notwithstanding anything contained herein in this SMEs’ Terms and Conditions, the following are specifically acknowledged and agreed to by SMEs:

16.1. The SME shall obtain specific professional advice as it considers necessary or appropriate before entering into any Transaction Document.

16.2. SMEs requesting funding through the Platform do so entirely at their own risk. There are serious obligations undertaken when entering into Transaction Documents and there is a real possibility of debt recovery or other legal action being taken against an SME and/or any party providing security including Guarantors for the SME’s obligations under such Transaction Documents should an SME fail to comply with, or default on, its obligations under a Transaction Document. The SME retains complete control and discretion over its decision on whether or not to:

  1. submit a Facility Application; and
  2. to participate in the Platform and enter into the Transaction Documents issued through it.

16.3. GXS Capital is duly authorised by SMEs, without the need for further notice or reference to any SME, to contact any relevant authorities or other organisations to ascertain, verify and confirm relevant information about the specific SME including its legal, operational or credit history (if applicable).

16.4. GXS Capital’ decisions in respect of any Facility Application or to post any Facility Request (including details of its pertinent terms) are final and irrevocable.

16.5. The funding of any Facility Request by Investors will be on the terms of the relevant Transaction Documents (a copy of which will be sent to SMEs upon their successful funding) and will be effected by the execution of such Transaction Documents by the relevant parties thereto.

16.6. GXS Capital shall be entitled to rely, and shall be fully protected in relying, upon any instrument, writing, resolution, notice, consent, certificate, affidavit, letter, telecopy, email, telex or teletype message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper person or persons and upon advice and statements of legal counsel, independent account and other experts selected by GXS Capital at its own cost or otherwise. Before GXS Capital takes any commercially reasonable action under this SMEs’ Terms and Conditions it may first receive such legal advice as it reasonably deems appropriate or it shall first be indemnified in funds to GXS Capital’ account by the SME against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action.

16.7. GXS Capital gives no representation, warranty or undertaking to any SME that:

  1. any information, data or other content that you store on or provide to this website will not be subject to inadvertent damage, temporary unavailability, corruption or loss; and
  2. the Platform or the Services will enable any SME to receive from the Investors the full amount requested to be funded or that there will be any Investor that will be willing to provide or participate in any such Facility Request.

16.8. GXS Capital may, from time to time, but accepts no obligation to, require that any SME update or amend their information.

16.9. SMEs are solely responsible for understanding and complying with their own tax obligations (including the payment of all taxes imposed by relevant authorities on any payments or interests received) in all jurisdictions in which those obligations arise and relating to use of the Services. GXS Capital does not provide tax advice and is not responsible for any SME’s tax obligations in any jurisdiction which may arise as a result of the SME’s use of the Services and payments received under the Transaction Documents.

17. General Undertakings

The SME undertakes to GXS Capital for so long as it is registered on the Platform and for so long as any amount is outstanding under any Transaction Document that:

17.1. it shall provide all information and/or documents reasonably requested by GXS Capital or to any third party nominated by GXS Capital as GXS Capital may decide in its sole and absolute discretion as being necessary to carry out the Services including the carrying out of due diligence or to comply with any regulatory requirement;

17.2. it shall promptly:

  1. obtain, comply with and do all that is necessary to maintain in full force and effect; and
  2. supply certified copies to GXS Capital of,

any authorisation required to enable it to perform its obligations under this SMEs’ Terms and Conditions and Transaction Documents and to ensure the legality, validity, enforceability or admissibility in evidence in the jurisdiction of incorporation of any Transaction Document;

17.3. it shall comply in all respects with all laws to which it may be subject, if failure so to comply would materially impair its ability to perform its obligations under this SMEs’ Terms and Conditions and the Transaction Documents;

17.4. it shall ensure that its payment obligations under this SMEs’ Terms and Conditions and Transaction Documents rank and continue to rank at least pari passu with the claims of all of its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally;

17.5. if applicable, it shall supply to GXS Capital in sufficient copies:

  1. as soon as the same become available, but in any event within 180 days after the end of each of its financial years its audited consolidated financial statements for that financial year; and
  2. as soon as the same become available, but in any event within 60 days after the end of each half of each of its financial years its consolidated financial statements for that financial half year;

17.6. if applicable, it shall supply to GXS Capital:

  1. all documents dispatched by it to its shareholders (or any class of them) or its partners (as applicable) or its creditors generally at the same time as they are despatched;
  2. promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against it, and which might, if adversely determined, have a material adverse effect;
  3. promptly, such further information regarding the financial condition, business and operations of it as GXS Capital may reasonably request; and
  4. promptly, notice of any change in authorised signatories of it signed by its directors or company secretary, partner or manager (in case of limited liability partnership) accompanied by specimen signatures of any new authorised signatories;

17.7. it shall notify GXS Capital of any Event of Default or other event specified under any Transaction Document to which it is a party (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence;

17.8. it shall, promptly upon a request by GXS Capital, supply to GXS Capital a certificate signed by two of its directors or partners (in case of limited liability partnership) or senior officers on its behalf certifying that no Event of Default or other event specified under any Transaction Document to which it is a party is continuing (or if such a Default is continuing, specifying the Event of Default or other event and the steps, if any, being taken to remedy it);

17.9. it shall procure that no substantial change is made to the general nature of the business of it from that carried on from the date of its registration as an SME;

17.10. it shall not, if requested by GXS Capital in writing, make or allow to subsist any loans, grant any credit (save in the ordinary course of business) or give or allow to remain outstanding any guarantee or indemnity (except as required under any of the Transaction Documents) to or for the benefit of any person or otherwise voluntarily assume any liability, whether actual or contingent, in respect of any obligation of any person;

17.11. it shall not, without the prior written consent of GXS Capital, enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of any asset unless such sale, lease, transfer or other disposal is:

  1. made in the ordinary course of trading of the disposing entity and of assets not secured under any Transaction Document; or
  2. of assets in exchange for other assets comparable or superior as to type, value and quality and for a similar purpose;

17.12. it shall not, without the prior written consent of GXS Capital, enter into any amalgamation, demerger, merger or corporate reconstruction (if applicable).

18. Event of Default

Each of the events or circumstances set out in the following sub-clauses of this Clause 18 (other than Clause 18.12 (Acceleration)) is an Event of Default.

18.1. Non-payment

The SME does not pay on the due date any amount payable pursuant to this SMEs’ Terms and Conditions or any Transaction Document it is party to at the place at and in the currency in which it is expressed to be payable.

18.2. Other obligations

The SME does not comply with any provision of the Transaction Documents including any financial covenants or additional conditions imposed by GXS Capital on the SME in respect of, or under, any Transaction Document.

18.3. Misrepresentation

Any representation or statement made or deemed to be made by or information provided by the SME in this SMEs’ Terms and Conditions or any Transaction Document or any other document delivered by or on behalf of any SME under or in connection with this SMEs’ Terms and Conditions or any Transaction Document is or proves to have been incorrect or misleading in any material respect when made or deemed to be made.

18.4. Cross Default

  1. Any Financial Indebtedness of the SME is not paid when due nor within any originally applicable grace period.
  2. Any Financial Indebtedness of the SME is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).
  3. Any commitment for any Financial Indebtedness of the SME is cancelled or suspended by a creditor as a result of an event of default (however described).
  4. Any creditor becomes entitled to declare any Financial Indebtedness due and payable prior to its specified maturity as a result of an event of default (however described).

18.5. Insolvency

  1. The SME is or is presumed or deemed to be unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness.
  2. Where the SME is a body corporate, the value of the assets of the SME is less than its liabilities (taking into account contingent and prospective liabilities).
  3. Where the SME is a body corporate, a moratorium is declared in respect of any indebtedness of the SME.

18.6. Insolvency proceedings

Any corporate action, legal proceedings or other procedure or step is taken in relation to:

  1. the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration, judicial management, provisional supervision or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of the SME (if applicable);
  2. a composition or arrangement with any creditor of the SME, or an assignment for the benefit of creditors generally of the SME or a class of such creditors (if applicable);
  3. the appointment of a liquidator (other than in respect of a solvent liquidation of the SME), receiver, administrator, judicial manager, administrative receiver, compulsory manager, provisional supervisor or other similar officer in respect of the SME or any of its assets; or
  4. enforcement of any security over any assets of the SME,

or any analogous procedure or step is taken in any jurisdiction.

18.7. Creditors’ process

Any expropriation, attachment, sequestration, distress or execution affects any asset or assets of the SME.

18.8. Change of constitution

Any change in shareholding, membership or constitution of the SME (if applicable).

18.9. Unlawfulness

It is or becomes unlawful for the SME to perform any of its obligations under this SMEs’ Terms and Conditions or the Transaction Documents.

18.10. Repudiation

The SME repudiates this SMEs’ Terms and Conditions or any Transaction Document or evidences an intention to repudiate this SMEs’ Terms and Conditions or any Transaction Document.

18.11. Change or Cessation of business

The SME suspends or ceases to carry on all or a material part of its business or changes the nature of its business (whether or not such change is reflected in its business profile search).

18.12. Acceleration

On and at any time after the occurrence of an Event of Default which is continuing GXS Capital shall be entitled to do any of the following (in GXS Capital’ sole and absolute discretion):

  1. by notice to any SME declare that all or part of the Debt be immediately due and payable, whereupon they shall become immediately due and payable;
  2. report such Default or failure in payment to any credit bureau or such other entities as it deems appropriate, without the need for further notice or reference to that SME;
  3. where assignments of receivables have been made to give security in connection with securing the obligations of that SME under the Transaction Documents, to contact such person(s) to whom the receivables relate; and
  4. take such other actions or procure the taking of such other actions as GXS Capital may deem fit in its sole and absolute discretion, including debt recovery or other legal action against that SME through any third party or otherwise, or where the financing is insured, submit a claim and assign all rights to recovery to the insurer, in order to ensure the SME’s compliance with this SMEs’ Terms and Conditions, the Terms of Use or the terms of the Transaction Documents.

19. Terminating Your Account

19.1. If you no longer wish to be an SME, subject to Clause 19.2, you should notify GXS Capital and we will terminate your Account, access to the Platform and consequently this SMEs’ Terms and Conditions (save for provisions intended to survive termination of this SMEs’ Terms and Conditions).

19.2. Your Account may not be terminated until all Transaction Documents to which you are a party and under which you have received Investment Commitments, have been terminated, and all Debt and fees outstanding (including the Termination Fee) are fully repaid.

19.3. All charges shall continue to apply to your Account until such time as it may be closed.

19.4. GXS Capital may end your usage on the Platform and terminate your Account at any time if:

  1. you breach any of your obligations under the Terms of Use, this SMEs’ Terms and Conditions, any Transaction Document or any regulatory requirements relating to your activity as an SME on the Platform;
  2. we suspect that you have committed or are committing fraud or forgery, are involved in money laundering or other criminal or sanctioned activities;
  3. it comes to our attention that you have provided information to us which we subsequently find to be materially incorrect, inaccurate or false;
  4. you use the Platform or any information accessible on or obtained from it for the purpose of canvassing or soliciting any person or enticing any person away from the employment of, investment with, seeking funding from or any other commercial relationship with GXS Capital; or
  5. it is or will become unlawful in any applicable jurisdiction for GXS Capital to perform its obligations under any Transaction Document.

In such an event, all Debt (including the Termination Fee) of that SME must immediately be repaid.

19.5. GXS Capital is authorised at any time, at its sole and absolute discretion, without giving any reason therefor, to deregister an SME from the Platform. In such an event, all Debt (including the Termination Fee) of that SME must immediately be repaid.

20. Limitation of Liability

20.1. To the maximum extent permitted by law, GXS Capital expressly excludes all conditions, warranties and other terms that might otherwise be implied by law into this SMEs’ Terms and Conditions.

20.2. GXS Capital, and all of its subsidiaries, affiliated companies, directors, officers, agents including the shareholders, partners, and employees and Investors (collectively the Indemnified Parties and each an Indemnified Party), shall not be liable to any person, including SMEs, for any direct, indirect, punitive, incidental, special, consequential damages, losses, expenses or liabilities under any causes of action or any damages whatsoever, including damages for loss of use or data, loss of opportunity, loss of goodwill, loss of profits (including revenue or anticipated profits) or losses to third parties, arising out of or in any way connected with:

  1. any action taken by it under or in connection with any Facility Application and/or Transaction Document and no SME may take any proceedings against any officer, employee or agent of GXS Capital in respect of any claim it might have against GXS Capital or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Transaction Document;
  2. any losses to any person or any liability arising as a result of taking or refraining from taking any action in relation to any of the Transaction Documents, the property in connection therewith or otherwise;
  3. the exercise of, or the failure to exercise, any judgment, discretion or power given to it by or in connection with:
    1. any Transaction Document;
    2. the property in connection with such Transaction Document; or
    3. any Transaction Document, Security Document or any other agreement, property, arrangement or document entered into, made or executed in anticipation of, under or in connection therewith;
  4. any shortfall which arises on the enforcement or realisation of the property in connection with the Investment;
  5. any loss or damage (whether direct or indirect), howsoever caused, as a result of any computer viruses, trojan horses, worms or similar items or processes arising from your use of this website and/or the Platform;
  6. any SME’s registration with and/or use of the Platform;
  7. any SME’s successful or due execution of any Transaction Document;
  8. any SME’s Facility Application not being successfully submitted on the Platform;
  9. any SME’s participation in any Transaction Document, or in the Platform or the SME’s use of the Services;
  10. the maintenance, provision and operation of this website, the Platform and the Services by GXS Capital;
  11. any delay (or any related consequences) in crediting an Account with an amount pursuant to a Transaction Document to be paid by any Indemnified Party if it has taken all necessary steps as soon as reasonably practicable to comply with the operating procedures of GXS Capital or the relevant clearing or settlement system for that purpose; or
  12. any negligence, default or fraud by any third party service provider, debt collector or law firm in the provision of its respective services.

21. Indemnity

Without prejudice to the other provisions herein, each SME hereby severally undertakes to indemnify and keep the Indemnified Parties fully indemnified, within three Business Days of demand, at all times from and against all actions, proceedings, costs, claims, expenses (including all legal costs on a full indemnity basis), demands, liabilities, losses (whether direct, indirect or consequential) and damages (whether in tort, contract or otherwise) whatsoever and howsoever arising, including claims made by third parties and claims for defamation, infringement of intellectual property rights, death, bodily injury, wrongful use of computers, unauthorised or illegal access to computers (including hacking), property damage or pecuniary losses which the Indemnified Parties may sustain, incur, suffer or pay arising out of, in connection with or pursuant to:

  1. GXS Capital accepting any Facility Application from the SME and any funding granted to the SME thereafter;
  2. the adequacy, accuracy or completeness of any information (whether oral or written) supplied by such SME in connection with any Facility Application or Transaction Document to which it is a party or the transactions contemplated thereto, or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection therewith, relating to such SME;
  3. acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised in relation to any Transaction Document to which such SME is a party;
  4. any breach by such SME of this SMEs’ Terms and Conditions or the Terms of Use or Transaction Document or otherwise in connection with such SME’s use of this website and content, the Platform or the Services including a breach of its representations, warranties, obligations, covenants and undertakings hereunder;
  5. obtaining, enforcing or preserving of its rights under any Transaction Document to which such SME is a party;
  6. the occurrence of any event of default;
  7. any enquiry, investigation, litigation with respect to that SME (including instructing of any third party agent or counsel, adviser or experts);
  8. any failure to prepay as notified by the SME or required of the SME pursuant to this SMEs’ Terms and Conditions or any Transaction Document;
  9. the access to and/or the use of this website, the Platform or the Services by such SME, whether or not such access or use was authorised or whether it was due to any act or omission on its part including any transmission error or delay via the internet of any instruction or Facility Application made by such SME;
  10. any breach of any Transaction Document by such SME, including a breach of its representations, warranties, obligations, covenants and undertakings thereunder
  11. any action taken by such Indemnified Party to investigate any event which it reasonably believes to be a default or other event specified under any Transaction Document to which such SME is a party;
  12. any default or other event hereunder or under any Transaction Document to which such SME is a party;
  13. the violation by such SME of any rights of another person or entity or the breach by such SME of any statutory requirement, duty or law; or
  14. any commercially reasonable actions taken by GXS Capital in relation to that SME under this SMEs’ Terms and Conditions and any Transaction Document to which such SME is a party to protect GXS Capital or any of the Indemnified Parties’ interests.

22. Tax Gross Up and Indemnities

22.1. Tax Gross-Up

  1. All payments to be made by an SME to GXS Capital (as agent for the Investors or for itself) hereunder or the Transaction Documents shall be made free and clear of and without any Tax Deduction unless such SME is required to make a Tax Deduction, in which case the sum payable by such SME (in respect of which such Tax Deduction is required to be made) shall be increased to the extent necessary to ensure that GXS Capital receives a sum net of any deduction or withholding equal to the sum which it would have received had no such Tax Deduction been made or required to be made.
  2. The SME shall promptly upon becoming aware that it must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify GXS Capital accordingly.
  3. If an SME is required to make a Tax Deduction, that SME shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
  4. Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the SME making that Tax Deduction shall deliver to GXS Capital evidence reasonably satisfactory to it that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

22.2. Tax Indemnity

Without prejudice to Clause 22.1(b) (Tax gross-up), if GXS Capital is required to make any payment of or on account of Tax on or in relation to any sum received or receivable under any Transaction Document (including any sum deemed for the purposes of Tax to be received or receivable by GXS Capital whether or not actually received or receivable) or if any liability in respect of any such payment is asserted, imposed, levied or assessed against GXS Capital, the relevant SME shall, within three Business Days of demand, promptly indemnify GXS Capital for any loss or liability as a result against such payment or liability, together with any interest, penalties, costs and expenses payable or incurred in connection therewith, provided that this Clause shall not apply to any Tax imposed on and calculated by reference to the net income actually received or receivable by GXS Capital (but, for the avoidance of doubt, not including any sum deemed for the purposes of Tax to be received or receivable by GXS Capital but not actually receivable) by the Inland Revenue Authority of Singapore.

22.3. Stamp Taxes

The SME shall:

  1. pay all stamp duty, registration fees and other similar Taxes payable in respect of any Transaction Document; and
  2. within three Business Days of demand, indemnify GXS Capital against any cost, loss or liability that it incurs in relation to any stamp duty, registration or other similar Tax paid or payable in respect of any Transaction Document.

23. Confidentiality

23.1. SMEs must maintain strict confidence and secrecy of:

  1. all information of a proprietary or confidential nature that it receives, through the Platform and pursuant to or in connection with any Transaction Document (including information of any Investor, GXS Capital, or other SME); and
  2. all communications through the Platform or otherwise with GXS Capital.

23.2. SMEs’ obligation in Clause 23.1 shall not apply to:

  1. any information which is required to be disclosed by the SME pursuant to any applicable legal requirement or legal process issued by any court or any competent government authority or rules or regulations of any relevant regulatory body but only in relation to and to the extent of such information necessary and only to such persons as required by court, law, rules or regulation;
  2. any information which is or becomes generally known to the public, other than by reason of a breach of confidentiality obligations; and
  3. any information which the SME derives on its own, without the use of any confidential information described in Clause 23.1.

23.3. SMEs shall observe the above-mentioned restrictions and shall take all reasonable steps to minimise the risk of disclosure of confidential information, by ensuring that only its employees, directors, partners (in case of limited liability partnership), consultants and advisers (if any) whose duties will require them to possess any of such information shall have access thereto, and that they shall be instructed to treat the same as confidential.

23.4. The obligations herein shall endure without limit in point of time except and until any confidential information enters the public domain as set out above (otherwise than as a result of a breach of this Clause or any other confidentiality obligations).

24. Force Majeure

24.1. GXS Capital shall not be in breach of this SMEs’ Terms and Conditions, nor be liable for any failure or delay in the performance of any other obligations under this SMEs’ Terms and Conditions or any Transaction Document, arising from or attributable to acts, events, omissions, accidents beyond its reasonable control, including any of the following:

  1. acts of God, including fire, flood, earthquake, windstorm or other natural disaster;
  2. war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions;
  3. acts of any government or authority;
  4. any changes in law preventing GXS Capital from performing its obligations under this SMEs’ Terms and Conditions or any Transaction Document;
  5. terrorist attack, civil war, civil commotions or riots;
  6. any labour disputes, including strikes, industrial action or lockouts;
  7. nuclear, chemical or biological contamination or sonic boom;
  8. fire, explosion or accidental damage;
  9. interruption or failure of utility service, including communications, electric power, gas or water;
  10. collapse of building structures, failure of plant machinery, machinery, computers, computer systems, or vehicles; and/or
  11. any interruption to the Platform or Services outside the reasonable control of GXS Capital.

If any such delay or non-performance continues for a period in excess of thirty (30) calendar days, GXS Capital shall have the right to terminate this SMEs’ Terms and Conditions by giving any relevant SME seven (7) Business Days’ notice prior to such termination without affecting any rights accruing prior to such termination. For the avoidance of doubt, in the event that GXS Capital so terminates this SMEs’ Terms and Conditions, the SME shall immediately repay all Debt.

25. Electronic Execution

To the extent permitted by applicable laws, any applications, documents and agreements (including, but not limited to, a Facility Request and any Transaction Document) signed, executed or accepted by the SME by way of an Electronic Signature shall be deemed to have been duly signed, executed or accepted by the said SME and GXS Capital may rely on such electronic execution as conclusive evidence of the SME’s intention to be legally bound by the application, document or agreement. The SME further confirms that((a) the use of an Electronic Signature under any application, document or agreement does not violate, breach or conflict with or constitute a default under any law, regulation, rule, judgment, contract or other instrument binding on the SME, its representatives or its constitutional documents and (b) any application, document or agreement signed, executed or accepted using an Electronic Signature is legally valid, binding and enforceable against the SME.

26. Notices and Communications

26.1. All notices, demands or other communications by GXS Capital to an SME in connection with this SMEs’ Terms and Conditions, the Platform or any Transaction Document may be sent in any manner or medium whatsoever, including through the internal messaging system of the Platform, by updating the SME’s dashboard on the Platform, through the posting on this website, delivered personally, sent by prepaid registered post with recorded delivery, by facsimile transmission, by electronic mail, by telephone calls or through the short messaging system, addressed to the SME at its Account, address, facsimile number, telephone number, or electronic mail address given at the time of registration on the Platform, or through this website. Any such notice, demand or communication aforesaid by GXS Capital to an SME shall be deemed to have been duly served immediately upon transmission or sending, as the case may be.

26.2. Any notices or other communication by an SME to GXS Capital in connection with this SMEs’ Terms and Conditions, or any Transaction Document must be in writing and sent by prepaid registered mail, to the address of GXS Capital. The address of GXS Capital shall be its address stated in the “Contact Us” tab of this website, or as from time to time notified by GXS Capital to SMEs. Any such notice or communication by an SME to GXS Capital shall be deemed to have been duly served upon actual physical receipt of the same by GXS Capital.

26.3. SMEs shall not contact any Investor or other SME directly, or enter into or attempt to enter into any financial or commercial transactions with other SMEs or Investors in relation to financing (whether directly or indirectly), other than through the Platform and through the use of the Services. Prompt notification to GXS Capital must be given if SMEs are contacted directly by an Investor, or other SMEs requesting details relating to the SME including their transactions on the Platform or in respect of contact information of the shareholders, directors, officers or partners of the SME, or in relation to any of GXS Capital’ dealings with the SME, whether in respect of the Platform or otherwise. For the avoidance of doubt, all communications between SMEs and Investors shall only be through GXS Capital.

27. Relationship of GXS Capital and SME

Nothing herein shall be construed to create a partnership, joint venture or employment relationship between GXS Capital and any SME or to constitute GXS Capital as a trustee or fiduciary of any person.

28. Assignment

Other than as expressly provided for in this SMEs’ Terms and Conditions, this SMEs’ Terms and Conditions and any rights or obligations of an SME hereunder may not be transferred or assigned by any SME, but may be transferred or assigned by GXS Capital without the need for consent from any SME. Any novation by an SME shall require GXS Capital’ express written consent.

29. Amendments/Variations of these Terms and Conditions

We may make changes to these Terms and Conditions from time to time and post a revised version on this Website, which shall be effective immediately upon such posting. We are under no obligation to separately inform you of any such revision. Your continued use of the Services after the revised Terms and Conditions have taken effect will constitute your unconditional acceptance of such revised Terms and Conditions.

30. Severance

If any provision of this SMEs' Terms and Conditions or part thereof is rendered void, illegal or unenforceable by any legislation to which it is subject, it shall be rendered void, illegal or unenforceable to that extent and no further.

31. Contract (Rights of Third Parties) Act (Chapter 53B)

Save for GXS Capital, the Indemnified Persons and SMEs, no other person will have any right whatsoever under the Contracts (Rights of Third Parties) Act (Chapter 53B) to enforce this SMEs’ Terms and Conditions or have the benefit of any of its terms.

32. Governing Law & Dispute Resolution

32.1. This SMEs’ Terms and Conditions is governed by the laws of Singapore.

32.2. SMEs irrevocably submit to the exclusive jurisdiction of the courts of Singapore in order to settle or resolve any dispute which may arise out of or in connection with this SMEs’ Terms and Conditions. In connection therewith, SMEs irrevocably waive, to the fullest extent permitted by the law, any objection that any of them may now or hereafter have to the laying by GXS Capital of the venue of any such dispute in any such court or that any such dispute brought in any such court has been brought in an inconvenient forum.

Appendix A - Schedule of SME Fee

This schedule of SME Fee is intended as a reference only. The applicable fee chargeable to each SME may varies depending on the type of facility. The Letter of Offer or the Facility Request between the SME and GXS Capital shall be the conclusive proof of the fee applicable to the SME.

GXS Bank

At a glance

The GXS FlexiLoan Biz is a standby revolving line of credit that is accessible through our GXS Bank app.

You can open 1 GXS FlexiLoan Biz Account and draw multiple loans up to your credit limit. You may make repayments in equal monthly instalments if instalment loans are drawn. No fees are chargeable, but additional late interest will accrue on late payments.

Funds drawn from your GXS FlexiLoan Biz Account can be transferred to your current account opened in accordance with the Business Account Terms or any other business account held with us, as we may permit or prescribe from time to time. You may draw up to 10 active loans at a time within your credit limit. The minimum loan amount is S$200 per loan for instalment loans. You may choose your preferred tenure
for each loan, and the repayment date applicable to your loan(s).

You may make loan repayments within our GXS Bank app with funds from your current account opened in accordance with the Business Account Terms or any other business account held with us, as we may permit or prescribe from time to time. You should ensure that fund transfer details are accurate as there is no guarantee we will be able to reverse any erroneous transaction.

We place focus on providing digital and paperless services to you, therefore you will be able to download your monthly statements from our GXS Bank app.

For sole proprietors, you must be at least 18 years old, a Singaporean citizen or permanent resident, and registered as a sole proprietor with the Accounting and Corporate Regulatory Authority of Singapore to open a GXS FlexiLoan Biz Account with us. The GXS FlexiLoan Biz Account must be used solely for business purposes.

GXS FlexiLoan Biz Terms

These GXS FlexiLoan Biz Terms (“Terms”) set out the terms and conditions that govern the relationship between GXS Bank Pte. Ltd. (the “Bank”, “us”, “we” or “our”) and the customer (“you”) and the services and products that we provide to you under these Terms. The Bank agrees to provide you with the services or products that you have applied for, and for which we have approved your application.

Section A (General Terms and Conditions) sets out the terms and conditions (the “General Terms”) that apply generally to the services and products that the Bank provides to you under these Terms.

In addition, specific terms and conditions (each referred to as “Specific Terms”, and collectively referred to as the “Specific Terms”) will apply to the provision of specific services and products by the Bank to you. When the Bank introduces or agrees to provide you with new services or products, the Bank will inform you of the relevant Specific Terms that apply to the provision of such new services or products, and you agree that the relevant Specific Terms will apply to the provision of the relevant new service or product by the Bank. The Specific Terms are part of these Terms. If there is any inconsistency between the General Terms and the Specific Terms, the Specific Terms will prevail to the extent of such inconsistency.

A. General Terms and Conditions

1. Account Opening Requirements

1.1 To open any account with the Bank or use any service or product of the Bank, you:

  1. must meet such requirements that the Bank may specify from time to time, generally or in relation to any specific service or product;
  2. agree that the Bank may retrieve information relating to you or the individuals connected to you (including any Authorised Person or any director, officer, member, partner, shareholder or other beneficial owner) from any source maintained by any government authority, including the Myinfo or Myinfo business platform maintained by the Singapore government and the Bizfile+ portal maintained by the Accounting and Corporate Regulatory Authority; and
  3. agree to provide the Bank with any information or document that the Bank asks for from you in such form and manner required by the Bank from time to time.

1.2 The Bank shall have the right, in our discretion, to approve or reject any application to open any account with the Bank, or to use any service or product of the Bank, without giving any reasons and shall not be liable for any Loss that may be incurred as a result.

2. Instructions

2.1 Instructions to the Bank must be given in writing (through any means specified and accepted by the Bank, including electronic means), or any other means permitted by the Bank.

2.2 You may authorise a person (an “Authorised Person”) to give instructions to the Bank and operate your account on your behalf. You may apply for a person to be an Authorised Person by providing us with the details of such person in the manner specified by us. Your appointment of an Authorised Person is subject to our approval and such conditions (including providing any indemnity in favour of the Bank and any evidence that such appointment has been duly authorised) specified by us. If we approve your appointment of an Authorised Person, you will ensure that such Authorised Person is aware of and complies with these Terms. These Terms, with the necessary modifications, apply to each Authorised Person. The Bank is under no obligation to enquire as to: (a) the validity of any authority granted to any Authorised Person, (b) the purpose for which any authority granted to any Authorised Person is exercised, or (c) whether any Authorised Person is exercising the authority granted to the Authorised Person in good faith. You may remove or replace an Authorised Person by providing written notice in the manner specified by us. Such removal or replacement will take effect after we inform you that we have accepted and approved such removal or replacement. Until we have accepted and approved such removal or replacement, we are entitled to and may continue to act on any instruction from such Authorised Person that you wish to remove or replace.

2.3 The Bank will not act on any instruction other than an instruction from you or given on your behalf (including by any Authorised Person). The Bank is entitled to act and rely on any instruction that it reasonably believes to come from you or to have been given on your behalf. If we request for information, or evidence of the identity or authority of the Authorised Person or authentication before acting on any instruction, you shall promptly provide such information, evidence or authentication. Notwithstanding this, we may act and rely on any instruction without requesting for evidence of your identity, the identity of any person giving the instruction on your behalf or any authentication.

2.4 Where any instruction is given through any means that require use of a passcode or PIN to access an application or other system before giving such instruction or to provide an authentication code, you agree that the use of such passcode, PIN or authentication code is evidence that the instruction comes from you and is authorised by you. You must safeguard the confidentiality of your passcodes, PINs and authentication codes. You must not disclose any passcode, PIN or authentication code to any person or keep a record of your passcode, PIN or authentication code in any matter that enables another person to misuse your passcode, PIN or authentication code. If you know or suspect that your passcode, PIN or authentication code has been compromised, you must immediately change your password, PIN or authentication code and notify the Bank.

2.5 The Bank may request you to provide additional confirmation before acting on any instruction. Notwithstanding this, we may act and rely on any instruction without requesting for such additional confirmation.

2.6 The Bank is not responsible or liable for any Loss that you may incur as a result of us acting on any instruction that was not authorised by you or did not come from you, unless such Loss is caused by our gross negligence, wilful misconduct or fraud.

2.7 You are responsible for ensuring that your instructions are given on time, and are accurate, clear and complete. The Bank may request confirmation, clarification or further information from you before acting on any instruction. We will not be responsible or liable for any Loss you may incur as a result of your instructions being late, inaccurate, unclear, inadequate or incomplete, or any time taken for us to confirm or clarify your instructions, unless such Loss is caused by our gross negligence, wilful misconduct or fraud.

2.8 The Bank shall have the right, but is not obliged, to not act on any instruction, or to carry out
checks before acting on any instruction, if:

  1. we reasonably believe the instruction to be not authorised or to have not come from you;
  2. the instruction is unclear or incomplete, or we receive conflicting instructions;
  3. you do not provide any information, document, authentication or confirmation requested by us;
  4. we believe that you lack the mental capacity to give us instructions or operate your account;
  5. there are insufficient funds in your account, or if any instruction may result in your account being overdrawn or having a negative balance;
  6. doing so may result in a breach of any Applicable Law (including any Applicable Law relating to anti-money laundering, countering the financing of terrorism or sanctions), or if we are prohibited by any Applicable Law, any court order or any direction from any regulator from doing so;
  7. any event or circumstance that is not reasonably within our control prevents us from doing so; or
  8. there is any other reasonable ground for us to do so, including any ground on which we have a right to freeze or suspend your account under Clause A10 (Rights of the Bank) or if any Event of Default has occurred.

The Bank will not be responsible or liable for any Loss that you may incur as a result, including from any delay in carrying out your instructions, unless such Loss is caused by our gross negligence, wilful misconduct or fraud.

2.9 Instructions once given cannot be cancelled or reversed and are binding on you, unless the Bank agrees otherwise.

3. Statements and Notifications

3.1 The Bank will periodically make available to you statements of account, confirmation advice, transaction records or other documents (“Statements”) setting out particulars of your accounts and transactions. The Bank may also send you notifications or alerts of transactions (“Notifications”) for your account, regardless of the value of the transaction.

3.2 You are responsible for checking your Statements and Notifications for errors or unauthorised transactions, and to verify the accuracy and completeness of the details in your Statements and Notifications. You must check any Statement or Notification immediately once you receive it.

3.3 We will be entitled to treat the details set out in the Statement or Notification as correct and accurate, and the relevant transaction as authorised by you, if you do not notify us of any errors or unauthorised transactions, or otherwise object to any details set out in your Statement or Notification within seven (7) days of the date of such Statement or Notification.

3.4 The Bank shall have the right, but is not obliged, to rectify any errors or omissions in any Statement or Notification.

4. Fees and Charges

4.1 The Bank may impose fees and charges for the provision of our services or products, and has the right to change the amount of such fees and charges. The Bank’s fees and charges will be set out in a fee schedule notified to you from time to time. The fee schedule is part of these Terms. If there is any inconsistency between these Terms and the fee schedule, the fee schedule will prevail to the extent of such inconsistency.

4.2 In addition, you agree to pay the Bank for any expenses, taxes or other charges that the Bank may incur in providing you with any product or service. Where possible, the Bank will notify you in advance of any such expenses, taxes or charges.

4.3 You will pay the Bank such fees, charges and expenses promptly.

4.4 The Bank has the right to deduct such fees, charges and expenses from your account, or through any other means in our discretion.

5. Disclosure of Your Customer Information

5.1 You agree and consent to the Bank disclosing your Customer Information to:

  1. any person whom the Bank believes in good faith to be an Authorised Person or your legal representative or any person connected to you;
  2. any guarantor, surety or security provider who is providing a guarantee or any security in respect of any moneys or liabilities you owe to the Bank;
  3. any other person who is jointly or jointly and severally liable with you in respect of any moneys or liabilities owed to the Bank;
  4. any Related Entity of the Bank;
  5. our agents, advisers (whether professional or otherwise), auditors, service providers and contractors (including sub-contractors and any further indirect sub-contractors who may be engaged by a contractor or another sub-contractor), whether in or outside Singapore (including cloud storage providers, service providers who carry out background, anti-money laundering and other checks, marketing service providers, data analytics providers, research partners and debt collectors);
  6. any other bank, correspondent bank, broker, insurer, provider of credit protection, fund manager, financial institution, card association, financial market infrastructure or any other third party for the purposes of and in connection with the provision of services or products to you;
  7. any payment system operator, payment institution or any other party for the purposes of and in connection with a funds transfer or payment transaction (including the other parties to a funds transfer or payment transaction, payment processors, payment intermediaries, payment networks, card associations, banks and other financial institutions) and their respective service providers, contractors and agents;
  8. credit bureaus, alternative credit scoring agencies and any other credit reporting organisations;
  9. any government authority, regulator, enforcement agency, tax authority, court, tribunal or judicial body;
  10. any person to whom the Bank is required to disclose information under Applicable Law;
  11. our business partners, such as Singtel and Grab;
  12. any person for the purposes of, or in connection with, any legal action contemplated or taken against you or in connection with the provisions of services or products to you;
  13. any person to whom we assign or transfer (or may potentially assign or transfer) any of our rights or obligations under these Terms, and any person who may invest in, finance, purchase or participate in any loan made to you;
  14. any person with which the Bank is entering (or is proposing to enter) into a transaction for the sale or transfer of any part of its business or assets, or any merger, acquisition or other corporate transaction, and any legal or professional advisers and consultants appointed by any party or potential party to any such transaction;
  15. any person referred to in the Data Privacy Policy;
  16. any person as notified by the Bank to you from time to time; or
  17. any person to whom we are permitted to disclose your Customer Information under the Third Schedule to the Banking Act or any other Applicable Law.

5.2 This Clause A5 (Disclosure of Your Customer Information) does not constitute an express agreement by the Bank for a higher degree of confidentiality than that prescribed in section 47 of the Banking Act.

5.3 This Clause A5 (Disclosure of Your Customer Information) shall survive the termination of these Terms.

6. Personal Data

6.1 You agree and consent to the Bank or any of our officers, employees, agents, service providers and contractors (including subcontractors and any further indirect sub-contractors who may be engaged by a contractor or another sub-contractor) collecting, using, processing and disclosing the Personal Data provided by you in accordance with the Data Privacy Policy, which is incorporated by reference to this Clause A6 (Personal Data), and sets out:

  1. what Personal Data we collect;
  2. how Personal Data is collected;
  3. your representations with respect to Personal Data of third parties;
  4. what we use Personal Data for;
  5. who we disclose Personal Data to;
  6. overseas transfers of Personal Data;
  7. use of cookies and related technologies;
  8. protection of Personal Data;
  9. retention of Personal Data;
  10. your rights with respect to your Personal Data;
  11. amendments and updates; and
  12. how to contact us if you have any queries about the Data Privacy Policy or would like to exercise your rights as set out in the Data Privacy Policy.

6.2 You represent and warrant that in relation to any Personal Data of any individual (including, where applicable, any Authorised Person, or any director, officer, member, partner, employee, shareholder or other beneficial owner, employees or signatories) that you or your representatives provide to us:

  1. you have, before providing the Personal Data to us: (1) notified such individual that their Personal Data has been or will be provided to us; (2) notified such individual that their Personal Data will be collected, used, processed and disclosed by us in the manner and for the purposes as set out in these Terms and the Data Privacy Policy, and for the purposes of the provision of services or products by us and any other purposes which we provide notification for from time to time, in accordance with all Applicable Laws (including the PDPA); and (3) obtained the consent of such persons to the above in accordance with all Applicable Laws (including the PDPA). Further, you shall give us notice in writing as soon as reasonably practicable should you be aware that any individual has withdrawn such consent(s) and without prejudice to our other rights under law or any contractual agreement between you and us, upon receipt by us of such written notification, we shall have the right to discontinue or not provide any services or products that are linked to such Personal Data; and
  2. you are validly acting on behalf of such individual and that you have the authority of such individual to provide their Personal Data to us and for us to collect, use, process and disclose such Personal Data for any of the purposes as set out in these Terms and the Data Privacy Policy, and for the purposes of the provision of services or products by us and any other purposes which we provide notification for from time to time, in accordance with all Applicable Laws (including the PDPA).

Upon reasonable request from us, you further agree to provide to us a copy of document(s) containing such consent or which evidences that such individual has given such consent;

6.3 Your consent, authorisation and agreement in this Clause A6.3 shall be in addition to any other agreement, authorisation and consent to disclosure which you may have given or may hereafter give to us in connection with any other agreements or accounts you have or may have with us, and shall survive and continue in full force and effect for our benefit and the benefit of our officers, employees, agents, service providers and contractors (including sub-contractors and any further indirect sub-contractors who may be engaged by a contractor or anther sub-contractor) notwithstanding your death, incapacity, bankruptcy or insolvency, or the termination of any type of relationships between you and the Bank.

7. Your Obligations

7.1 You represent and warrant that the following are true and accurate at the time you first open any account with the Bank or use any service or product provided by the Bank, and on a continuing basis:

  1. you have full power, authority and capacity to enter into these Terms, to enter into any transactions with or through the Bank, and to perform and comply with all your obligations under these Terms;
  2. you are duly organised and validly existing under the laws in which you are incorporated, established or registered;
  3. you have obtained all necessary consents and authorisations and taken all other actions necessary for you to enter into these Terms and to be able to perform and comply with all your obligations under these Terms, and your Authorised Persons, legal representatives and signatories are duly authorised to act on your behalf;
  4. your obligations under these Terms are valid and legally binding, and these Terms are enforceable against you;
  5. any information or documents that you provide to us, including information relating to you on and from any source maintained by any government authority, including the Myinfo or Myinfo business platform or the Bizfile+ portal, are true, accurate, complete and not misleading;
  6. you have read and understood the Data Privacy Policy;
  7. you consent to, and have obtained all necessary consents for, the collection, use, processing and disclosure of all Personal Data that you or your representatives provide to us as set out in the Data Privacy Policy;
  8. you will not be in breach of any Applicable Law or your constitutional documents or any contract, agreement or other document by entering into these Terms or obtaining any services or products from us;
  9. you have filed all tax returns and no claims or investigations are being or are reasonably likely to be made with respect to your tax returns;
  10. you are not involved in any unlawful activity, and you have not committed or been convicted of any tax, money laundering, terrorism financing or other criminal conduct, and you are not involved in any sanctioned activities or the subject of any sanctions;
  11. you are not incorporated, established, registered or otherwise domiciled in, any jurisdiction where we are not permitted to provide you with services or products;
  12. you are obtaining the services or products from us in the course of your business and are not dealing with us as a consumer;
  13. you are acting as a principal for your own benefit, and you are not acting on behalf of any other person, whether as trustee, agent, nominee or otherwise, and you beneficially own all funds and assets in your accounts with the Bank;
  14. there are no other persons, apart from those you have already disclosed to us, who are able to exercise control over your accounts with the Bank or have any beneficial interest in any funds or assets in any of your accounts with the Bank; and
  15. there is no Event of Default occurring.

7.2 You agree and undertake that you will:

  1. immediately inform us of any changes to your particulars, including any change in name, constitution, composition, citizenship or place of domicile, tax residency, address(es) on record, taxpayer, passport, business registration or other identification numbers, contact details, identity of officers, directors, shareholders or other beneficial owners, or any other information or documents that you provided to us whether in relation to you, or any of your shareholder, director or officer, as the case may be;
  2. immediately inform us if any of the representations and warranties set out in Clause A7.1 are no longer true or accurate;
  3. comply with all Applicable Laws, including tax laws and laws relating to anti-money laundering, countering the financing of terrorism and sanctions, and (where you are a sole proprietor) user protection duties;
  4. not use the services and products of the Bank for any unlawful purpose, or that may involve a breach of any Applicable Law (including any Applicable Law relating to anti-money laundering, countering the financing of terrorism or sanctions);
  5. promptly do all such acts, provide us with all such assistance and information and do all such acts or execute all such documents as we may reasonably specify (and in such form and substance as we may require), whether or not it is in connection with your account with the Bank or any service or product provided by the Bank, and whether in order for us to comply with all Applicable Laws or otherwise;
  6. check your Statements and Notifications immediately once you receive them, and notify us immediately of any errors or unauthorised transactions. You agree to provide us with any information that we reasonably request to facilitate our investigations into the transactions, and to make a police report if we reasonably request such a report to be made to facilitate the claims investigation process. If there is any delay in your informing us of the error or unauthorised transaction, you must explain to us the reasons for such delay; and
  7. not share your password, PIN or other security code with any other person, and immediately inform us if you suspect that your password, PIN or other security code has been compromised. You agree to safeguard the confidentiality of your password, PIN and other security codes and not to keep a record of your password, PIN or other security codes in any matter that enables another person to misuse your password, PIN or other security codes.

7.3 The Bank will not request for your personal particulars, password, PIN or other security code through SMS or e-mail. You are responsible for safeguarding the confidentiality of your personal particulars, password, PIN and other security code. You must verify and agree to exercise caution with any hyperlink in any SMS or e-mail claimed to be sent by the Bank.

7.4 Where you are a partnership, each partner who ceases to be a partner (whether due to resignation, bankruptcy, mental incapacity, death or otherwise) will remain jointly and severally liable for all obligations, liabilities and amounts owed by the partnership to the Bank that accrue up to and including the date on which such partner ceases to be a partner of the partnership.

7.5 Where you are a sole proprietor, you are hereby notified of and shall comply with your user protection duties under Section 3 of the E-Payments User Protection Guidelines issued by the Monetary Authority of Singapore (“MAS”), as amended from time to time, which is available on MAS’ website. Our corresponding duties are also set out in Section 4 of the E-Payments User Protection Guidelines.

8. Conflicts of Interests

8.1 The services and products provided by the Bank are non-exclusive, and you agree and consent to the Bank providing the same services and products to other customers of the Bank.

8.2 You agree that (a) the Bank may introduce you to Grab, Singtel and our other business partners, who may recommend their services and products to you and otherwise collect, use, process and disclose Personal Data relating to you as set out in the Data Privacy Policy, or (b) you may have been introduced to us by Grab, Singtel or our other business partners. You agree that we may receive or pay a referral fee or commission from or to such business partner for such introduction.

9. Service Providers and Agents

9.1 You agree that the Bank may engage third party service providers, contractors (including sub- contractors and any further indirect sub-contractors who may be engaged by a contractor or another sub-contractor) or agents for the purposes of, and in connection with, the provision of services or products to you.

10. Rights of the Bank

10.1 The Bank shall have the right to decide whether to approve your application to obtain any services or products from the Bank, and whether to provide you (or continue to provide you) with any service or product. In addition, the Bank shall have the right to withdraw the provision of, or change the manner in which we provide you with, any service or product at any time in our discretion.

10.2 The Bank shall have the right, but is not obliged to, to record any of our telephone conversations or video conferences with you, or any other verbal instructions or communications from or with you. You agree that we shall have the right to use the recordings in the event of any dispute. We are not obliged to provide you with a copy of any such recordings.

10.3 The Bank will retain records of your Customer Information to comply with Applicable Laws and for business and operational purposes. Our records shall be conclusive evidence of the contents set out in the records, including details of your accounts and transactions. We may destroy or cease to maintain any records where we are no longer required to do so under Applicable Laws, and you agree that we are not obliged to retain any records after the record retention period under Applicable Laws has ended.

10.4 The Bank shall have the right to take any steps reasonably necessary to comply with any Applicable Law, court order or direction from any regulator. The Bank shall have the right not to do anything under these Terms or in connection with the provision of services or products to you, if doing so shall result in a breach of Applicable Laws, any court order or any direction from any regulator. The Bank shall not be responsible or liable for any Loss that you may incur as a result of any such actions of the Bank.

10.5 The Bank shall have the right to freeze, suspend, block, close or terminate any or all of your accounts maintained with us or any provision of services or products to you, or not accept any deposit or payments from you, withhold any payments to you (including withdrawals from your accounts) or place any payments or amounts received from you in a suspense account, or take any action that the Bank determines is reasonable or appropriate, with or without prior notice, if:

  1. you have a zero or negative balance in your account;
  2. you do not provide any information or documents requested by us;
  3. any representation or warranty in Clause A7.1 is not true or accurate or is no longer true or accurate;
  4. we reasonably suspect that you are involved in any unlawful activity, including any breach of Applicable Law (including any Applicable Law relating to anti-money laundering, countering the financing of terrorism or sanctions);
  5. we are required to do so by any government authority, regulator, enforcement agency, tax authority or any other authority;
  6. we are required to do so under a garnishee order, Mareva injunction, or other similar court order, or any order of any court, tribunal or judicial body;
  7. in our opinion, any account, product or service provided by the Bank is not being used in a lawful, proper or regular manner;
  8. any Event of Default has occurred;
  9. we have reasonable grounds to believe that you are not likely to be able to repay any
    amount or liabilities that you owe to us, or otherwise to perform any of your obligations to
    us under these Terms or otherwise; or
  10. there is any other reasonable ground for doing so or the Bank deems fit in its absolute
    discretion.

The Bank shall not be responsible or liable for any Loss that you may incur as a result of any
such actions of the Bank.

10.6 In the event that your account remains inactive or dormant for such period of time as the Bank may determine, the Bank shall have the right to impose such conditions in relation to the further operation of the account as we may determine in our discretion. The Bank shall not be responsible or liable for any Loss that you may incur as a result of any such actions of the Bank.

10.7 The Bank shall have the right, but is not obliged, to reverse or cancel any transaction and make
any corresponding debits from or adjustments to your account, without prior notice to you or
without your prior consent:

  1. to correct any mistake or error, including where we have made a mistake or error in crediting your account;
  2. where we are required to do so under any Applicable Law, any court order or any direction from any regulator; or
  3. if we have any other reasonable ground for doing so.

In particular, the Bank is not obliged to reverse or cancel any transaction, or make any corresponding debits from or adjustments to your account or the account of any other person, to correct any mistake or error made by you or a third party.

10.8 Certain of our services or products may be temporarily unavailable for certain periods of time to facilitate maintenance of our systems. Where possible, the Bank will notify you in advance of any such periods of temporary unavailability.

10.9 This Clause A10 (Rights of the Bank) shall survive the termination of these Terms.

11. Payments

11.1 Any payment you make to the Bank shall be made in freely available funds in Singapore dollars or such other currency specified by the Bank, without any set-off or counterclaim, or any withholding or deduction of any taxes, charges or other duties.

11.2 If any withholding or deduction is required to be made under any Applicable Law, you agree to pay us an amount equal to the amount withheld or deducted such that the Bank receives a net amount equal to the amount which we would have received if no such withholding or deduction had been made.

11.3 If any taxes, charges or other duties are payable on any payment that you make to the Bank, you shall pay us an additional amount equal to the amount of such taxes, charges or other duties.

11.4 If you do not make any payment to the Bank on time, the Bank shall have the right to charge you default interest on the overdue amounts that are outstanding at a rate determined by the Bank and notified to you.

11.5 This Clause A11 (Payments) shall survive the termination of these Terms.

12. Foreign Currencies

12.1 If the Bank receives any payment from you or on your behalf, executes any transaction for you or on your behalf, or you owe any amount to us, in a currency other than Singapore dollars (or a currency other than the currency in which payment is due), we may convert the amount denominated in the foreign currency (or such other currency than the currency in which payment is due) into Singapore dollars (or the currency in which payment is due) at the prevailing foreign exchange rate as determined by us. If we incur any costs or expenses in making such currency conversion, you agree to pay us for such costs or expenses.

12.2 Where any currency in which any of the Bank’s payment obligations is denominated becomes unavailable due to the imposition of currency exchange controls or restrictions, other governmental action, extreme volatility in the foreign exchange markets, or any other event or circumstance that is not reasonably within our control, the Bank shall have the right to convert the amount to be paid into another currency at the prevailing foreign exchange rate as determined by us.

13. Right of Set-Off and Lien

13.1 The Bank shall have the right to retain and not repay you any amount which it holds for you in any account, or to withhold any payments due to you, if there is any outstanding amount you owe to the Bank, if you have any other outstanding liabilities to the Bank, or if the Bank has placed a hold or set aside any amount in any of your accounts for any reason.

13.2 All your funds in your accounts with the Bank are subject to a banker’s lien in our favour. We may apply the lien as security for any amount you owe to the Bank or any other outstanding liabilities you owe to the Bank.

13.3 Without limiting our rights under the banker’s lien above or any other rights we may have under these Terms or otherwise, the Bank and any of our Related Entities may, at any time and without any prior notice to you, set-off (on the one hand) any balance in your accounts with the Bank (including (where you are a sole proprietor) any account you hold in a personal capacity) or any amount that we or any of our Related Entities owe to you (including (where you are a sole proprietor) in your personal capacity), against (on the other hand) any amount that you (including (where you are a sole proprietor) in your personal capacity) owe to us or any of our Related Entities. The Bank and our Related Entities may also combine or consolidate all your accounts (including (where you are a sole proprietor) any account you hold in a personal capacity) held
with us or any of our Related Entities.

13.4 The Bank may exercise our rights under this Clause A13 (Right of Set-Off and Lien) at any time, regardless whether an Event of Default has occurred and whether your account has been closed or whether these Terms have been terminated.

13.5 You must not create any security interest or any other encumbrance over your accounts with the Bank, any funds or assets in your accounts with the Bank, or rights or obligations vis-à-vis, the Bank without our prior written consent.

13.6 This Clause A13 (Right of Set-Off and Lien) shall survive the termination of these Terms.

14. No Tax, Legal or Other Advice

14.1 The Bank does not provide any advice on tax, accounting, insurance, legal, regulatory or environmental matters. If you need such advice, you should seek advice from your own independent advisers.

14.2 The Bank does not act as your agent, trustee or fiduciary in providing services or products to you.

15. Liabilities

15.1 The Bank shall not be liable for any Loss that you may incur in connection with or arising from our provision of services or products to you, unless such Loss is caused by our gross negligence, wilful misconduct or fraud. Without limiting the generality of the above, and without prejudice to any other provision of these Terms, the Bank shall not be liable for any Loss that you may incur:

  1. arising from us acting on any instruction that we reasonably believe to have been authorised by, or to have come from, you;
  2. arising from any delay in carrying out your instructions, unless such delay is due to our gross negligence, wilful misconduct or fraud;
  3. as a result of the Bank taking any steps reasonably necessary to comply with any Applicable Law or court order or taking any other action in accordance with our rights under these Terms;
  4. where the provision of services or products to you is affected by any event or circumstance that is not reasonably within our control, regardless of the duration of such event or circumstance;
  5. where there is any unauthorised use or access of your smartphone or other device used to access the services or products provided by the Bank, or your smartphone or other device is lost, misplaced or stolen; or
  6. where your password, PIN or other security code is compromised or misused by another person.

15.2 In any event, we shall not be liable for any Loss that is an indirect or consequential loss, or any
lost profits, earnings, business, goodwill or opportunity, even if such Loss is foreseeable.

15.3 We are not responsible or liable for the acts of any third party, including the acts of any third party involved in the provision of services or products to you, or the acts of any third party service providers, contractors or agents engaged by the Bank and their sub-contractors or further indirect sub-contractors or the insolvency or bankruptcy of any such third party, and we will not be liable for any Loss that you may incur as a result of the acts of any such third party, unless such Loss is caused by our gross negligence, wilful misconduct or fraud.

15.4 We are not responsible for any decision you make to obtain our services or products or to enter into these Terms, and any such decision is your own decision based on your independent judgment. If you need any advice, you should seek advice from your own independent advisers.

15.5 We are not responsible or liable for any acts or representations of our employees or agents that are made without our authority.

15.6 This Clause A15 (Liabilities) shall survive the termination of these Terms.

16. Indemnities

16.1 You agree, on a continuing basis, to indemnify the Bank, and pay and reimburse the Bank, for all and any Losses that the Bank may incur in connection with or arising from our provision of services or products to you, except where such Loss is caused by our gross negligence, wilful misconduct or fraud.

16.2 This Clause A16 (Indemnities) shall survive the termination of these Terms.

17. Events Outside Our Control

17.1 The Bank shall not be responsible or liable for any Loss which you may incur where such Loss arises from any event or circumstance that is not reasonably within our control, regardless of the duration of such event or circumstance. Such events include earthquakes, fires, floods, storms, pandemics, natural disasters or other acts of God, wars, acts of terrorism, military action, riots, civil unrest or other disturbances, strikes, industrial disputes or other industrial actions, imposition of currency exchange controls or restrictions, embargoes, changes to laws and regulations or other governmental action, mechanical errors or malfunctions in any machines or systems, sabotage, fluctuations or failures in power supply or telecommunication networks, disruptions to the Internet, computer viruses, or the failure of any financial market infrastructure.

18. Account Closure and Termination

18.1 You may terminate these Terms or any service or product provided by the Bank and close your account by giving the Bank notice in writing, provided that you do not owe any outstanding amount to the Bank or have any outstanding liabilities to the Bank.

18.2 The Bank may terminate these Terms or the provision of any service or product to you and close your account by giving you reasonable notice in writing.

18.3 In addition, the Bank shall have the right to terminate these Terms or the provision of any service or product to you and close your account, with immediate effect and without any notice to you if any of the following Events of Default occur:

  1. you do not make any payment that is due to us;
  2. you breach any of your obligations under these Terms;
  3. you do not provide any information or documents requested by us;
  4. any representation or warranty in Clause A7.1 is not true or accurate or is no longer true or accurate;
  5. you have a zero or negative balance in your account;
  6. you are, or are likely to become, insolvent or bankrupt, or any insolvency or bankruptcy proceedings are commenced against you;
  7. (i) an application is made by any party for the appointment of a liquidator, receiver, administrator, judicial manager, administrative receiver, compulsory manager, provisional supervisor or other similar officer in respect of you, or (ii) you are subject to any proceedings relating to winding up, dissolution, administration, judicial management, provisional supervision, reorganisation or receivership, or (iii) (where you are a partnership) there is any change to your partners, including admission of a new partner or cessation of an existing partner (whether due to resignation, bankruptcy, mental incapacity, death or otherwise), or (iv) your registration as a business or partnership or any licence or approval you hold expires, or is cancelled or withdrawn;
  8. you are, or are likely to be, unable to fulfil any of your financial obligations to any person, including third parties;
  9. any expropriation, attachment, sequestration, distress or execution affects any of your asserts or your assets are subject to enforcement proceedings in any jurisdiction;
  10. you are the subject of any civil, criminal, investigation or disciplinary proceedings in any jurisdiction or any such proceedings are threatened against you;
  11. you commit or are convicted of any criminal offence in any jurisdiction, or you are found to be fraudulent or dishonest in any proceedings;
  12. we reasonably suspect that you are involved in any unlawful activity, including any breach of Applicable Law (including any Applicable Law relating to anti-money laundering, countering the financing of terrorism or sanctions);
  13. in our opinion, any account, product or service provided by the Bank is not being used in a lawful, proper or regular manner;
  14. it becomes unlawful for you to perform any of your obligations under these Terms or any relevant transaction document with the Bank or any of your obligations under these Terms or any transaction document with the Bank ceases to be legal, valid, binding or enforceable;
  15. we are required under Applicable Law or by any court order or direction from any regulator to do so or we would otherwise breach any Applicable Law or agreement with a third party; or
  16. the occurrence of any Event of Default under any Specific Terms or any event of default or any similar event under any other terms and conditions governing the provision of any services or products by the Bank to you.

18.4 If you wish to terminate these Terms or close your account with the Bank under Clause A18.1, you shall transfer all funds out from your account with the Bank, repay all outstanding amounts and liabilities due to the Bank and comply with any other reasonable procedures or requests of the Bank (including closure of any other account with the Bank), before the termination or account closure is effective.

18.5 Upon the termination of these Terms or the closure of your account with the Bank, any amount that you owe to us shall immediately become due and payable.

18.6 If these Terms are terminated or your account is closed for any reason and you do not transfer all funds out from your account, we may proceed to exercise our rights of set-off and consolidation under Clause A13 (Right of Set-Off and Lien) and pay you the net balance in your account by any means in our discretion, and you agree that this shall be a full discharge of the Bank’s liabilities to you in respect of your account and these Terms, and you waive any and all rights or claims you may have against the Bank under these Terms.

18.7 Termination of these Terms do not affect any rights or obligations of any party that arose before the termination, or any liabilities that accrued before the termination.

18.8 This Clause A18 (Account Closure and Termination) shall survive the termination of these Terms.

19. Notices and Communications

19.1 You shall provide the Bank with your registered and business address, Singapore telephone number, e-mail address or any other contact information at which we may contact you, and send you notices and communications. Your registered or business address may be used by the Bank as your mailing address. We may also provide your registered or business address, Singapore telephone number, e-mail address or any other contact information to any government authority, regulator, enforcement agency, tax authority, court, tribunal or judicial body if we are required to do so. You must immediately inform us of any changes to any of your contact information.

19.2 The Bank may publish certain notices or communications to you on our website or mobile application. You should check our website or mobile application regularly for notices or communications.

19.3 Any notice or communication that the Bank sends to you will be deemed to be delivered and effective:

  1. if sent in person, at the time of delivery;
  2. if sent by post to an address in Singapore, on the second Business Day following the date of posting;
  3. if sent by post to an address outside Singapore, on the fifth Business Day following the date of posting;
  4. if sent by SMS or e-mail, at the time of delivery, unless we receive a message delivery failure receipt;
  5. if sent by push notification through our mobile application, at the time of delivery; and
  6. if published on our website or mobile application, at the time of publication.

19.4 Notices or communications that you send to the Bank will be deemed to be delivered and effective only when we receive them.

20. Amendments

20.1 The Bank may amend any or all of these Terms (including our fees and charges) at any time. We may make such amendments because of changes in the way we provide you with services or products, or other changes in our operations or business, to introduce new features, services or products, because of changes to Applicable Law or to clarify the meaning of these Terms. The Bank will notify you of any amendment. Such amendment will take effect on the date we specify in the notice to you. The Bank may introduce additional terms and conditions governing new features, services or products without giving you any advance notice. Nonetheless, we will use reasonable endeavours to provide you with 30 days advance notice for any amendment relating to our fees and charges or your liabilities or obligations, unless the amendment is clarificatory in nature, required for compliance with Applicable Law (which may take effect immediately) or time sensitive, or it is not practicable to do so.

20.2 The Bank may introduce additional Specific Terms that apply to the provision of new services or products without giving you any advance notice. Any such Specific Terms will take effect from the date we agree to provide you with the relevant new service or product.

20.3 If you continue to use any service or product provided by the Bank to you after having been notified of amendments to these Terms, you are deemed to have agreed to and accepted the amendments. If you do not accept any such amendments, you must discontinue your use of the Bank’s services or products and terminate your banking relationship with us with respect to such relevant service or product in accordance with these Terms.

21. Assignments

21.1 The Bank is entitled to assign or transfer any or all of our rights or obligations under these Terms to any person without notice to you and without your consent.

21.2 You may not assign or transfer any part of your rights or obligations under these Terms without our prior written consent.

22. No Third Party Rights

22.1 A third party who is not a party to these Terms shall have no rights under the Contracts (Rights of Third Parties) Act 2001 of Singapore to enforce or enjoy the benefit of any provision of these Terms.

23. Waivers

23.1 A failure or delay by the Bank in exercising or enforcing any power or right under these Terms, or in enforcing compliance with any provision of these Terms, shall not operate as a waiver or release by the Bank, and the Bank is not prevented from exercising or enforcing any such power or right.

24. Illegality and Severability

24.1 If any provision of these Terms is, or becomes, illegal or otherwise invalid or unenforceable in any way, such illegality, invalidity or unenforceability shall not in any way affect or impair any other provision of these Terms, and these Terms shall be interpreted as if such illegal, invalid or unenforceable provision was varied so that it is legal, valid and enforceable or as if such illegal, invalid or unenforceable provision was not part of these Terms.

25. Entire Agreement

25.1 These Terms set out the entire contractual agreement between the Bank and you in connection with the provision of services or products by the Bank to you. These Terms supersede any other agreement, understanding, notice, statement or representation, whether oral or written, in relation to any services or products of the Bank.

26. Governing Law and Dispute Resolution

26.1 These Terms shall be governed by and interpreted in accordance with Singapore law.

26.2 You agree to submit to the exclusive jurisdiction of the Singapore courts. You may only bring an action or proceeding against the Bank in the Singapore courts. The Bank may bring an action or proceeding against you in the courts of any jurisdiction, including any jurisdiction where you may be resident or where you may own assets.

27. Service of Legal Process or Documents

27.1 Any originating claim, statement of claim, originating application or any other notice or document relating to legal proceedings shall be deemed to be sufficiently served on you if sent in person or by post to your last known address in our records.

27.2 Nothing in this Clause A27 (Service of Legal Process or Documents) shall affect or limit our rights to serve any legal process or documents on you in any other manner allowed under Applicable Law.

28. Definitions and Interpretation

28.1 The table below sets out the meaning of the following capitalised words when used in these
Terms.

“Applicable Law”
means any and all applicable laws, regulations, guidelines, codes or rules, including industry guidelines, codes or rules, whether in Singapore or elsewhere, and whether having the force of law, as amended, modified, varied or re-enacted from time to time.

“Authorised Person”
shall have the meaning defined in Clause A2.2.

“Banking Act”
means the Banking Act 1970 of Singapore.

“Business Day”
means any day on which banks in Singapore are generally open for business.

“Customer Information”
means any information relating to you, including your Personal Data and other personal information, and information on your accounts and transactions, that the Bank has in connection with the provision of services or products to you.

“Data Privacy Policy”
means our data privacy policy as (i) set out at the following URL: www.gxs.com.sg/data-privacy, or (ii) made available through our mobile application.

“Event of Default”
means any event that gives the Bank the right to terminate these Terms or the provision of any service or product to you under Clause 18 (Account Closure and Termination).

“Loss”
means any losses, damages, costs (including legal costs on a full indemnity basis), expenses, liabilities, taxes, charges, suits, proceedings, actions, claims, any other demands or remedies of any kind, whatsoever and however caused, whether arising under contract, tort or otherwise, and including any lost profits, earnings, business, goodwill or opportunity, whether or not foreseeable, and whether direct, indirect or consequential.

“Notifications”
shall have the meaning defined in Clause A3.1 .

“PDPA”
means the Personal Data Protection Act 2012 of Singapore.

“Personal Data”
means any information (whether true or not) which identifies or that relates to an individual.

“PIN”
‍means the personal identification number for any service or product provided by the Bank.

“Related Entity”
in relation to an entity, means any holding company, subsidiary, affiliate, related corporation or other related entity of the first entity.

“Statements”
shall have the meaning defined in Clause A3.1.

28.2 In these Terms, unless the context requires otherwise:

  1. the headings shall be ignored in interpreting the provisions of these Terms;
  2. any reference to a Clause shall be to a Clause of these Terms – references to a Clause number prefixed by the Section number shall be a reference to a Clause in that Section (e.g. Clause A1 refers to Clause 1 of Section A);
  3. any reference to “you” shall include the person in whose name an account is maintained with the Bank, the person offered a product or service by the Bank, and (as the context may require) any legal representative, director, officer, member, partner, shareholder or other beneficial owner, employee, signatory or Authorised Person;
  4. any reference to a person shall include body corporates, unincorporated associations, partnerships, sole proprietorships, trusts and other bodies of persons;
  5. the word “includes” or “including” shall be understood to mean “includes without limitation” or “including without limitation”;
  6. any reference to actions or acts shall include failures to act; and
  7. any reference to any statute, regulation, guidelines, code or rules shall be a reference to such statute, regulation, guidelines, code or rules as may be amended, modified, varied or re-enacted from time to time.

B. GXS Flexiloan Biz

1. General

1.1  This Section B (GXS FlexiLoan Biz) sets out the terms and conditions on which the Bank provides you with the GXS FlexiLoan Biz and the terms under this Section B must be read together with the General Terms in Section A.

2. Uncommitted Loan

2.1  The GXS FlexiLoan Biz is an uncommitted loan facility with a revolving line of credit that allows multiple loan drawdowns which are repayable in monthly instalments.

3. Application and Credit Limit

3.1 All applications for GXS FlexiLoan Biz are subject to approval by the Bank in accordance with our criteria, including any applicable credit policies and assessments. The Bank may approve or reject your application for a GXS FlexiLoan Biz without giving any reasons.

3.2 Upon the Bank’s approval of your application, the Bank will assign you an interest rate and a credit limit from which you may immediately drawdown a single loan or multiple loans capped at the credit limit offered to you, subject to these Terms.

3.3 The credit limit assigned to you will be determined by the Bank in our discretion. Any request by you for a credit limit increase will be subject to the Bank’s assessment.

3.4 The credit limit assigned to you is a revolving line of credit. Any principal amount which you repay on your outstanding loan(s) will be made available as credit for subsequent drawdowns.

4. Drawing Down from the GXS FlexiLoan Biz

4.1 The GXS FlexiLoan Biz allows you to drawdown up to ten (10) loans at any one time, within the credit limit assigned to you. You may select a tenure of two (2) to thirty-six (36) months (or such other tenure that is permitted by the Bank) for each loan.

4.2 Each loan may be disbursed into your current account opened in accordance with the Business Account Terms or any other business account maintained with the Bank, as we may permit or prescribe from time to time, where such account is held in the same name as that for the GXS FlexiLoan Biz Account. You are responsible for ensuring the accuracy and completeness of the disbursement account number contained in your application for each loan. We are not responsible for verifying or ensuring that the disbursement account is your account. If you have provided an incorrect account number, we will not be liable or obliged to recall any loan(s) so disbursed and such loan(s) shall be repayable by you in accordance with these Terms. We will not be liable for any Loss that you may incur as a result.

4.3 You may utilise the GXS FlexiLoan Biz by delivery to the Bank of a duly completed GXS FlexiLoan Biz drawdown request. Drawdown requests once delivered are irrevocable and form part of these Terms.

4.4 Your GXS FlexiLoan Biz drawdown request must comply with the following conditions:

  1. the maximum amount that may be drawn cannot exceed your available credit limit; and
  2. each loan must be a minimum of S$200 (or such other amount as the Bank may determine).

4.5 A loan can be utilised only and disbursed by the Bank upon the Bank receiving such documents, items and evidence (in form and substance satisfactory to the Bank) as the Bank may require, including but not limited to:

  1. all necessary corporate documents and necessary resolutions, consents, approvals and other authorisations (if applicable) from any Obligor (if applicable);
  2. if applicable, any Security Document or such other documents (including any notices and/or acknowledgments) required to perfect, preserve or protect the Bank’s rights and interests under any security, each in form and substance satisfactory to the Bank and duly executed by the parties to it;
  3. evidence of any registrations or filings, if required;
  4. evidence satisfactory to the Bank on the results of all “know-your-customer” or similar checks and the results of all credit, bankruptcy, winding up, judicial management and other similar checks on you and each Security Provider (as applicable), as the Bank may deem necessary;
  5. specimen signatures of all authorised signatories (if required); and
  6. payment by you of all costs, expenses and fees (if any) required to be paid to the Bank.

4.6 The Bank will only be obliged to disburse a loan if:

  1. no Event of Default is continuing or would result from the proposed loan; and
  2. each of the representations to be made by you and each Security Provider (if applicable) are true.

5. Repayment

5.1 Each loan drawn from your available credit limit shall be repaid in equal monthly instalments (together with interest accrued) over its selected tenure. During the drawdown of your first loan, you may select your preferred monthly repayment date. The monthly repayment date for subsequent loans will follow the monthly repayment date for the first loan.

5.2 If the repayment date selected (e.g. 31st day) does not exist in a certain month (e.g. February), the date of repayment for that month would automatically be defaulted to the last day of that month.

5.3 You will have at least one (1) month from the drawdown date of a loan to make your first monthly repayment.

5.4 The Bank will apply repayments in the order of interest, fees and charges first, followed by principal. In the event where there are overdue repayment amounts, overdue repayment amounts will take precedence, unless otherwise stated. The Bank shall be entitled to apply and appropriate all repayments received in such manner or order as the Bank deems fit.

5.5 You may choose to repay your monthly instalment or your total loan(s) outstanding early without incurring any fees. Any interest savings due to early repayment will be reflected in your next monthly instalment.  

5.6 All repayment amounts may be paid to the Bank via your current account opened in accordance with the Business Account Terms or any other business account maintained with the Bank, as the Bank may permit or prescribe from time to time, or such other channels the Bank may make available to you from time to time.

6. Interest Rate and Late Interest

6.1 The Bank has sole discretion to determine the interest rate applicable to your loan.  

6.2 Interest for each loan drawn will begin to accrue from its drawdown date.

6.3 Interest will be calculated on a daily reducing principal basis without compounding interest. This means that as the principal balance of each loan reduces over the repayment period, your total interest payable reduces correspondingly.

6.4 For overdue instalments, late interest will be chargeable in the manner specified by us. The Bank offers a grace period of 2 days past your due date, where no late interest will be charged.

6.5 The Bank may revise the interest rate applicable to you from time to time in our discretion. Should any of your outstanding loans be affected by a change in interest rate (where applicable), the Bank will provide you 30 days’ notice before the revised rate comes into effect.

7. Account Closure

7.1 You may cancel your GXS FlexiLoan Biz in full at any time at no fee, provided you fully repay all outstanding amounts due to the Bank.

7.2 The Bank may terminate your GXS FlexiLoan Biz account at any time without giving any reasons.

8. Additional Security

8.1 The Bank may at any time and from time to time request that Security or guarantee be created for or in respect of the moneys and liabilities owing to the Bank.

8.2 Each Security Provider shall be bound by these Terms, with the necessary modifications (including reading each reference to the “customer” or “you” as a reference to the Security Provider) as if the Security Provider were a party to these Terms.

9. Representations and warranties

9.1 Each Obligor makes the following representations and warranties, and acknowledges that the Bank has made available the GXS FlexiLoan Biz in full reliance on the following representations and warranties of each Obligor, and the representations and warranties you have given under the General Terms:

  1. it is a corporation or other entity, duly incorporated or organised and validly existing under the law of its jurisdiction of incorporation, establishment or registration;
  2. it has the power to own its assets and carry on its business as it is being conducted;
  3. the obligations expressed to be assumed by it in these Terms and the Security Documents (if applicable) are legal, valid, binding and enforceable obligations;
  4. the entry into and performance by it of, and the transactions contemplated by, these Terms and the Security Documents (if applicable) do not and will not conflict with any Applicable Law, its constitutional documents or any agreement or instrument binding upon it or any of its assets.
  5. it has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, these Terms and the Security Documents to which it is a party and the transactions contemplated by these Terms and the Security Documents to which it is a party;
  6. all authorisations of any government or other authority which are required or desirable to authorise it to own its assets, carry on its business as it is being conducted as of the date of these Terms have been duly and unconditionally obtained and are in full force and effect and it is in compliance in all respects with all Applicable Law relating to the carrying on of its business (including but not limited to all applicable anti-corruption, environmental and social laws and governance requirements);
  7. it is not in default of the payment or performance of any of its respective obligations for borrowed money or under any instrument or agreement binding on it or any of its respective assets which may have a Material Adverse Effect;
  8. no litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency which, if adversely determined, might reasonably be expected to have a Material Adverse Effect have (to the best of its knowledge and belief) been started or threatened against it;
  9. no steps have been taken or are being taken to wind up itself or to appoint a receiver and/or manager or judicial manager, liquidator, trustee in bankruptcy or any other such official over it, its assets or any of them;
  10. its payment obligations under these Terms and the Security Documents (if applicable) rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally;
  11. there has been no material adverse change in its business or financial condition; and
  12. no Event of Default is continuing or might reasonably be expected to result from the making of any utilisation and no other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on it or to which its assets are subject which might have a Material Adverse Effect.

9.2 Each Obligor agrees that the abovementioned representations and warranties shall be deemed to be repeated upon each drawing of the GXS FlexiLoan Biz.

9.3 Each of the representations and warranties contained in this Clause shall survive and continue in full force and effect after the acceptance of these Terms and the execution of the Security Documents (if applicable) and each Obligor hereby warrants to the Bank that the above representations and warranties will be true and correct and fully observed at all times during the continuance of the Security Documents (if applicable) as if repeated during such period by reference to the then existing circumstances.

10. Undertakings

10.1 Each Obligor undertakes and agrees that:

  1. it shall (and shall ensure that each other Obligor will) promptly obtain, comply with and do all that is necessary to maintain in full force and effect and supply certified copies to the Bank of, any authorisation required under any law or regulation of its jurisdiction of incorporation to enable it to perform its obligations under these Terms and the Security Documents to which it is party (if applicable) and to ensure the legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of these Terms and the Security Documents to which it is party (if applicable);
  2. it shall (and shall ensure that each other Obligor will) comply in all respects with all Applicable Law to which it may be subject, if failure to so comply would materially impair its ability to perform its obligations under these Terms and the Security Documents to which it is party (if applicable);
  3. save for any Security previously disclosed to the Bank, it shall not (and shall ensure that no other Obligor will), without the Bank’s prior written consent, create or permit to subsist any Security over any of its assets, save for any Security created pursuant to any Security Document;
  4. it shall not (and shall ensure that no other Obligor will) (whether by a single transaction or a number of related or unrelated transactions and whether at the same time or over a period of time) (i) sell, lease, transfer or otherwise dispose of any asset or (ii) materially change the scope or nature of its business whether by disposal, acquisition or otherwise. This paragraph (d) does not apply to any sale, lease, transfer or other disposal made in the ordinary course of business or made with the prior consent in writing of the Bank.
  5. it shall (and shall ensure that each other Obligor will) from time to time on request by the Bank do or procure the doing of all such acts and will execute or procure the execution of all such documents as the Bank may reasonably consider necessary for giving full effect to each of these Terms or the Security Documents (if applicable) or securing to the Bank the full benefits of all rights, powers and remedies conferred upon the Bank in any of these Terms or the Security Documents (if applicable); and
  6. it shall (and shall ensure that each other Obligor will) ensure that its payment obligations under these Terms and the Security Documents (if applicable) rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.

11. Events of Default

11.1 If:

  1. an Obligor does not make any payment that is due or outstanding under the GXS FlexiLoan Biz and/or the Security Documents on the due date;
  2. an Obligor breaches any of its obligations under these Terms or any of the Security Documents;
  3. an Obligor does not provide any information or documents requested by us;
  4. any representation or warranty made or acknowledged or deemed to have been made or acknowledged by an Obligor herein and/or any of the Security Documents is not true or accurate or is no longer true or accurate;
  5. an Obligor is, or is likely to become, insolvent, bankrupt, or any insolvency or bankruptcy proceedings are commenced against it;
  6. an application is made by any party for the appointment of a liquidator, receiver, administrator, judicial manager, administrative receiver, compulsory manager, provisional supervisor or other similar officer over any Obligor, or an Obligor becomes the subject of any proceedings relating to winding up, dissolution, administration, judicial management, provisional supervision, reorganisation, or receivership;
  7. an Obligor is, or is likely to be, unable to fulfil any of its financial obligations to any person, including third parties;
  8. any expropriation, attachment, sequestration, distress or execution affects any asset of an Obligor or the assets of an Obligor are subject to enforcement proceedings in any jurisdiction;
  9. an Obligor is the subject of any civil, criminal or disciplinary proceedings in any jurisdiction;
  10. an Obligor commits or is found guilty of any criminal offence in any jurisdiction, or an Obligor is found to have acted fraudulently in any proceedings;
  11. we reasonably suspect that an Obligor is involved in any unlawful activity, including any breach of Applicable Law (including any Applicable Law relating to anti-money laundering, countering the financing of terrorism or sanctions);
  12. it becomes unlawful for any Obligor to perform any of their obligations under these Terms or the terms of any Security Document or relevant transaction document with the Bank or any Obligor’s obligations under these Terms, the terms of any Security Document or relevant transaction document with the Bank ceases to be legal, valid, binding or enforceable;
  13. any event or circumstance occurs which the Bank determines might have a Material Adverse Effect; or

11.2 You shall notify the Bank of any Event of Default promptly upon becoming aware of its occurrence.

11.3 Notwithstanding anything under these Terms, the GXS FlexiLoan Biz and all amounts accrued or outstanding shall be repayable on demand.

11.4 The Bank may set off any matured obligation due from an Obligor under the documents of the GXS FlexiLoan Biz against any matured obligation owed by the Bank to that Obligor, regardless of the place of payment, booking branch or currency of either obligation.

12. The Bank's right to suspend your Account

12.1 In addition to any rights of suspension set out in the General Terms, the Bank may, in our discretion, suspend any further drawdown of your available credit limit, including, without limitation, upon the occurrence of any of the following or should the Bank have reason to believe that any of the following will occur:

  1. you do not pay any amount due to the Bank on time; and
  2. you become deceased, incapacitated, bankrupt or insolvent.

13. Reporting to Credit Bureaus

13.1 In applying for the GXS FlexiLoan Biz, you agree that the Bank may report your name and other relevant particulars to any relevant credit bureau agency or authority, which may make available such information to its member banks and financial institutions. You acknowledge that this may affect your current and future banking agreements with other banks and financial institutions. The Bank shall have the right to request for your data from any such relevant credit bureau agency or authority from time to time.

14. Assignments

14.1 The Bank is entitled to assign or transfer any or all of our rights or obligations in respect of theGXS FlexiLoan Biz and/or these GXS FlexiLoan Biz Terms to any person without notice to youand without your consent.

15. Certification

15.1 Any certification or determination by the Bank of a rate or amount is, in the absence of manifest error, conclusive evidence of the matters to which it relates.

16. Conversion to Instalment Loan

16.1 Each Obligor shall make all payments to be made by it without any restriction or condition, without any deduction or withholding (except to the extent required by law) on account of any tax or any other amount owed to the Bank.

16.2 If any Obligor is required by law to make any such deductions or withholdings, you shall notify the Bank and ensure that the amount received by the Bank is equal to the amount payable by you and/or any Obligor if no such deduction or withholding had been made. Each Obligor shall ensure that all such deductions and withholdings and any payment required in connection with such deductions and withholdings have been paid on time. You or any such Obligor shall, if requested by the Bank, provide the Bank with evidence reasonably satisfactory to the Bank that such required deductions, withholdings and/or any payments have been made to the relevant taxing authority.

16.3 You shall pay and indemnify the Bank:

  1. for any loss, liability or cost which the Bank determines will be or has been (directly or indirectly) suffered by it for or on account of any tax, levy, duty, charge or withholding of a similar nature; and
  2. for any loss, liability or cost the Bank incurs in relation to all stamp duty, registration and other similar taxes, levies, duties or charges payable in connection with your GXS FlexiLoan Biz account and any terms and conditions or documents thereunder.

16.4 Each Obligor shall pay to the Bank, in addition to any amount payable by that Obligor to the Bank under or relating to any document in connection with the GXS FlexiLoan Biz, any goods and services, value added or similar tax payable in respect of that amount (and references in that document to that amount shall be deemed to include any such taxes payable in addition to it).

17. Right of Proof / Suspense Account

17.1 Until and unless the whole of the monies and liabilities owing to the Bank with interest shall have been fully and completely paid and discharged:

  1. you and any Security Provider (as applicable) shall not be entitled as against the Bank to any right of proof in the bankruptcy of a person or winding up of any corporation liable to the Bank or any other right under these Terms and the Security Documents (as applicable);
  2. any monies received may be placed in a suspense account for so long as the Bank thinks fit without any obligation to apply the same or any part thereof towards discharge of such monies or liabilities and in the event of any proceedings in or analogous to bankruptcy, winding up, liquidation, composition or arrangement, the Bank may prove for and agree to accept any composition in respect of the whole or any part of such monies and liabilities; and
  3. any monies or liabilities received from any person or estate capable of being applied towards discharge of such monies or liabilities shall be regarded for all purposes as payments in gross and if a bankruptcy order shall be made against any person liable to the Bank or an order be made or an effective resolution be passed for the winding up of any corporation liable to the Bank, the Bank may prove for the whole of the monies and no monies received under such proof shall be considered as received under these Terms and the Security Documents (as applicable) but the full amount owing shall be payable until the Bank has received from all sources 100 cents in the dollar.

18. Increased Costs

18.1 If the Bank determines that, as a result of:

  1. the introduction of or any change in, or in the interpretation or application of, any law (which shall for this purpose include any removal or modification of any exemption currently in force in your favour); or
  2. compliance by it with any law or regulation made after the date of these Terms:
    ‍
    • the cost to the Bank of maintaining the GXS FlexiLoan Biz and/or of making, maintaining or funding any drawing or overdue sum is increased;
    • any sum received or receivable by the Bank or the effective return to it under these Terms and/or the Security Documents is reduced (except on account of tax on its overall net income); and/or
    • the Bank makes any payment (except on account of tax on its overall net income) or foregoes any interest or other return on or calculated by reference to the amount of any sum received or receivable by it under these Terms and/or the Security Documents, you shall indemnify the Bank against that increased cost, reduction, payment or foregone interest or other return and, accordingly, shall from time to time on demand (whenever made) pay to the Bank the amount certified by it to be necessary so as to indemnify it.

19. Definitions and Interpretation

19.1 The table below sets out the meaning of the following capitalised words when used in this Section B (GXS FlexiLoan Biz).

‍

"drawdown"

means your borrowing of funds from the GXS FlexiLoan Biz.

‍

"GXS FlexiLoan Biz"

means a revolving line of credit offered by the Bank to you subject to these Terms, from which multiple loans may be drawn down by you with each loan to be repayable in monthly instalments.

‍

"loan"

means such part of the GXS FlexiLoan Biz drawn down by you.

‍

"Material Adverse Effect"

means a material adverse effect on or a material adverse change in:
(a) the financial condition, assets, prospects or business of any Obligor or the Obligors taken together;
(b) the ability of any Obligor to perform and comply with its obligations under these Terms, the terms of any
Security Document or any relevant transaction document with the Bank; or
(c) the validity, legality or enforceability of these Terms, the terms of any Security Document or any relevant
transaction document with the Bank.

‍

"Obligor"

means you or any Security Provider.

‍

"outstanding loan"

means a loan which has not been repaid.

‍

"Security"

means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.

‍

"Security Document"

includes all and any of the documents from time to time created or executed in the Bank’s favour as security and/or guarantee for or in respect of the moneys and liabilities owing to the Bank pursuant to or in connection with the GXS FlexiLoan Biz.

‍

"Security Provider"

includes any guarantor, any party to a Security document (other than you and the Bank), any surety or any indemnifier for or in respect of the moneys and liabilities owing to the Bank pursuant to or in connection with the GXS FlexiLoan Biz.

‍

"uncommitted loan"

means your GXS FlexiLoan Biz is subject to review by the Bank at any time in our discretion, and the Bank has the right to revise the terms of your GXS FlexiLoan Biz (including the credit limit, interest rate or tenure), and terminate, reduce, suspend or cancel the GXS FlexiLoan Biz without giving any reasons.

‍

‍

GXS Bank Pte. Ltd. (202005626H)

whatsapp chat icon