Terms & Policies
Last updated: 6 April 2022
1. THESE GENERAL TERMS
1.1 These general terms (‘General Terms') comprise a legal agreement between Airwallex Pty Ltd ABN 37 609 653 312 (‘Airwallex’, ‘us’, ‘our’ or ‘we’) and you (‘you’, ‘your’, or ‘Customer’) and govern your use of any of our services (‘Services’), which include the use of mobile applications, websites, software and other products we offer. In these General Terms, the Customer and Airwallex are individually referred to as a 'Party', and collectively as the 'Parties'.
1.2 Before using the Services, you must register with Airwallex and create an Airwallex Profile. Your Airwallex Profile provides you with access to the Services through the Webapp.
1.3 You should download a copy of these General Terms and keep it for future reference, or you can ask us for a copy at any time. You can always see the most current version of these General Terms on our website at www.airwallex.com.
1.4 If we need to send you information in a form that you can keep, we will either send you an email or provide information on our website or via the Airwallex Platform that you can download. Please keep copies of all communications that we send to you.
2. WHO AIRWALLEX IS AND HOW TO CONTACT US
2.1 Our company information. The Services are offered by Airwallex Pty Ltd (ABN 37 609 653 312; AFSL 487 221), which has its registered office at Level 7/15 William Street, Melbourne, Victoria, 3000.
2.2 How to contact us. You can contact us by:
(a) emailing us at: [email protected];
(b) sending mail to us at: Level 7/15 William Street, Melbourne, Victoria, 3000;
(c) telephone: +61 3 8583 0915; and
(d) sending us a message through the contact links on our website www.airwallex.com.
2.3 How we will contact you. We will contact you using the contact details you provided when you registered or such other contact details that you provide to us from time to time – please keep these up to date. By using our Services, you agree to receive electronic communications from us.
3. CHANGES TO THE TERMS
3.1 We may change the Terms (including the Service Fees) by giving you thirty (30) days’ prior written notice. We will consider that you have accepted the proposed changes if you do not terminate the Terms by giving us written notice during the notice period.
3.2 We may also make some changes to the Terms immediately, without prior notice, if they:
(a) are required by Applicable Law; or
(b) relate to the addition of a new service or extra functionality of our Services and do not materially affect terms relating to the existing Services.
You should stop using our Services if you do not agree to these changes. If you keep using our Services after we have notified you of or announced any such changes (whether through our website or other means), we will treat you as having accepted the changes.
4. AUTHORISED USER
4.1 The Customer may appoint an Authorised User to act on its behalf to conduct certain transactions or give instructions to Airwallex under the Terms. The Customer must set up each Authorised User with a User Profile and promptly provide Airwallex with the following details of any of the proposed Authorised Users: name of the Customer, name of the Authorised User, address and billing address of the Customer, phone and email address of the Authorised User, and any other contact or identification information of the Authorised User that Airwallex may reasonably require. The Customer will ensure that the Authorised Users comply with the Terms and in respect of the Customer's obligations and liabilities under the Terms, references to 'Customer', 'you' and 'your' shall (where the context requires) be read as including its Authorised Users.
4.2 Airwallex will receive instructions from the Authorised User(s) through the Airwallex Platform via the Webapp or, under prior arrangements agreed with Airwallex, manually through a representative of Airwallex.
4.3 The Customer agrees that:
(a) the Authorised Users have the authority and capacity to provide instructions for the provision of Services to Airwallex on the Customer's behalf;
(b) Airwallex will rely on the authority of the Authorised User, and the Customer will be bound by the actions of the Authorised Users, until the Customer provides Airwallex with written notice withdrawing or otherwise varying the authority of an Authorised User;
(c) the Customer is responsible for ensuring that the appropriate person(s) is (or are) accorded the necessary authority to act as the Authorised Users;
(d) Airwallex may refuse access to the Authorised User(s) if Airwallex is concerned about unauthorised or fraudulent access; and
(e) the Customer will promptly report to Airwallex any infringements or unauthorised access to the Airwallex Platform, including the Webapp, or any Service.
5. CUSTOMER DUE DILIGENCE
5.1 To meet our obligations under Applicable Law, before we provide our Services to you and from time to time during our provision of Services to you, we may carry out customer due diligence checks on you, your directors, partners, ultimate beneficial owners, and employees (as relevant) and Authorised Users together with any parties involved in your transactions or use of the Services. You must provide us with complete, accurate, and up-to-date information at all times. You will promptly provide any additional information we require at any time, at the latest within two (2) Business Days of a request from us. You acknowledge that we may not provide you with any of our Services until we have received all the information we require. We will not be responsible for any loss arising out of your failure or delay in providing us with the information we require.
5.2 You agree that we may make, directly or using a third party, any inquiries we believe are necessary to verify information you provide to us, including checking commercial databases or credit reports. We may keep records of such customer due diligence checks in accordance with Applicable Law.
5.3 You agree that our provision of, and your ability to use, the Services is subject to:
(a) successful completion of the initial, and any subsequent, customer due diligence checks including credit evaluations (if applicable); and
(b) there being no material changes to your credit status during the term of the Terms.
5.4 You agree to the Identity Verification Terms and represent and warrant that each person referred to above or that you have provided us information about who we are required to identify also agrees to the Identity Verification Terms.
6. ABOUT THE SERVICES
6.1 Airwallex provides various types of Services which you may choose to use from time to time. These Services may include collection services, payout services, foreign exchange services, online payment acceptance services, card services, business administration services and technology services. By using the Services, you also agree to any additional terms specific to the Services you use (‘Additional Terms’). The Additional Terms, together with these General Terms, Identity Verification Terms, Electronic Communications Consent and the Fee Schedule, become part of your agreement with us (collectively, the ‘Terms').
6.2 Airwallex may place interim or permanent restrictions on the use of all or any part of the Services depending on certain regulatory requirements, the Customer's country of residence, identity verification checks or business requirements, as described in the Acceptable Use Policy. Such restrictions will be communicated to the Customer, at the time the restriction is put in place or, if that is not practical due to urgent or unforeseen circumstances, promptly after the restriction is put in place.
7.1 Customer warranties. The Customer represents, warrants and undertakes on an ongoing basis that:
(a) if the Customer is natural person, the Customer is at least eighteen (18) years of age;
(b) if the Customer is a company, the Customer is a company duly incorporated under the laws of its place of its formation;
(c) it has full capacity, authority and all necessary licences, permits and consents to enter into and to exercise the rights, and perform its obligations under, the Terms;
(d) its entry into and performance of the Terms do not:
(i) conflict with or result in the breach of or default under any provisions of the Customer’s articles of incorporation or association, by-laws or any other constituent documents; and
(ii) conflict with or result in the breach of any Applicable Law or other restrictions or obligations that the Customer’s business is subject to;
(e) it will provide Airwallex with accurate, up-to-date and complete customer due diligence information and data at all times; and
(f) it will use the Services only for lawful purposes and in compliance with the applicable Terms;
(g) it will comply with all Applicable Laws in connection with the Terms and the performance of its obligations under the Terms; and
(h) it will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services.
7.2 Conduct. The Customer is solely responsible for any use of the Services, the Webapp and other features of the Airwallex Platform, including the content of any data or transmissions it executes through the Airwallex Platform, or by any Authorised User. The Customer will use all reasonable endeavours to ensure that no unauthorised person will or could access the Airwallex Profile, any of the Services or other features of the Airwallex Platform or the Webapp. The Customer will not interfere with, disrupt, or cause any damage to other users of the Airwallex Platform, the Webapp or the Services.
7.3 Disclaimers. To the extent permitted by law, Airwallex makes no warranties, guarantees or representations of any kind with respect to the Airwallex Platform, the Webapp or the Services. All warranties, conditions and terms, whether express or implied by statute, common law or otherwise (including any implied warranties of merchantability, satisfactory quality or fitness for a particular purpose or non-infringement of third party rights) given by Airwallex are excluded to the extent permitted by law. In particular, Airwallex:
(a) does not make any commitments about the content or data within the Airwallex Platform, the specific functions of the Services or its accuracy, reliability, availability or ability to meet the Customer's needs;
(b) does not guarantee that the Services will operate uninterrupted or error-free, will always be available, contains and/or displays information that is current or up-to-date, and will be free from bugs or viruses, or never be faulty;
(c) may occasionally have to interrupt the Customer's use of the Services for operational, security or other reasonable reasons. In such a case, Airwallex will restore access as quickly as practicable; and
(d) does not offer financial advice and the Customer must not treat any information or comments by Airwallex as financial advice.
7.4 Australian Consumer Law. To the extent that you acquire goods or services from Airwallex as a consumer within the meaning of Schedule 2 to the Competition and Consumer Act 2010 (Cth) (the ‘Australian Consumer Law’), you have certain rights and remedies (including consumer guarantee rights) that cannot be excluded, restricted or modified by agreement (including the Terms). Nothing in the Terms excludes, restricts or modifies any such rights you may have under the Australian Consumer Law. To the extent that the Australian Consumer Law permits Airwallex to limit its liability, then Airwallex’s liability is limited to: (a) in the case of services, supplying the services again or payment of the cost of having the services supplied again; and (b) in the case of goods, replacing the goods, supplying equivalent goods or repairing the goods, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.
7.5 Non-reliance. Airwallex may work with third parties, including other Airwallex Affiliates, to provide the Services. If the Customer receives information from Airwallex regarding or marked or indicated as provided by such third parties, the Customer will not rely on such information and will not make any claims against such third parties or Airwallex in relation to such information. The Customer bears all risk and responsibility if it chooses to rely on such information.
8. BETA SERVICES
8.1 You acknowledge and agree that Airwallex may indicate that certain Services are provided as 'beta', 'pilot', 'invite-only', 'limited release' or 'pre-release' features or services ('Beta Services').
8.2 You acknowledge and understand that:
(a) Beta Services are incomplete and still in development, may contain bugs or errors, may materially change prior to a full commercial launch (if any), and may never be released commercially;
(b) we provide all Beta Services on as 'as-is' basis, and without warranty of any kind, and your use of, or reliance on any such features and services is done at your own risk;
(c) we have no obligation whatsoever to provide any bug fixes, error corrections, patches, or service packs for, or any revisions, successors, or updated versions to, Beta Services (or any part of them) during your use of any Beta Services, however, if we provide or makes available any update to Beta Services, you must fully implement the applicable update within the time period specified by Airwallex or within thirty (30) days after we make the update available to you (whichever is earlier);
(d) we may make updates, changes, repairs, or conduct maintenance at any time, and with or without notice, which may result in changes in the availability or quality of Beta Services. In addition, Airwallex may suspend your access to Beta Services with or without notice, including if we reasonably believe that:
(i) suspension is required by Applicable Law;
(ii) continuing to provide the Beta Services would make Airwallex in breach of any obligation that Airwallex owes to a third party; or
(iii) Airwallex determines that continuing to provide the Beta Services would give rise to an unacceptable security or privacy risk; and
(e) we may terminate your access to the Beta Services if we in our sole discretion stop offering the Beta Services completely, or within your geographic jurisdiction.
8.3 Airwallex may, in its discretion, provide Beta Services to the Customer free of charge.
9. SERVICE FEES
9.1 In consideration for the Services, the Customer will pay to Airwallex the Service Fees. The Service Fees are charged separately depending on the Service used by the Customer and are set out in the Fee Schedule (which forms part of the Terms) or as otherwise agreed in writing with us.
9.2 Some of the Services we provide may require Service Fees to be paid for on a recurring basis (‘Subscription Services’). By activating or using a Subscription Service (including after the completion of any trial period, if applicable), you agree to pay the recurring fees applicable to such Subscription Service listed in our Fee Schedule or as set out on the Airwallex Platform, or as otherwise agreed in writing (‘Subscription Fee’).
9.3 Unless specified in the Fee Schedule or we otherwise agree in writing with you, Subscription Fees will be charged at the end of every month until cancelled. You may cancel a Subscription Service at any time via the Airwallex Platform. If you cancel a Subscription Service, you will continue to have access to that Subscription Service through the end of your then current billing period, you are still liable to pay the Subscription Fee for the current billing period.
9.4 Invoices. In respect of certain Services, Airwallex may invoice the Customer for amounts due or payable under the Terms on a monthly basis.
9.5 Any invoices issued by Airwallex must be paid by the Customer in a timely manner in order for the Customer to continue their access to the Services and no later than the date specified on the invoice. If full payment is not received on time, Airwallex may suspend the Customer's use of the Services and access to any associated accounts until Airwallex receives the full invoiced payment.
9.6 Tax. All amounts payable to Airwallex under the Terms are exclusive of all taxes and similar fees now in force or enacted in the future, which the Customer will be responsible for and will pay in full without any set-off, counterclaim, deduction or withholding unless prohibited by Applicable Law. Where the Customer is obliged by Applicable Law to deduct withholding tax from any payment made to Airwallex:
(a) the Customer will promptly notify Airwallex of the requirement;
(b) the Parties will make all necessary filings in order to ensure the provisions of any applicable tax treaty applies to the payment;
(c) the Customer will pay to Airwallex such additional amount as will result in the receipt by Airwallex of the full amount which would otherwise have been receivable had no withholding or deduction been payable;
(d) the Customer will pay to the relevant authorities the full amount required to be deducted or withheld when due; and
(e) the Customer will promptly forward to Airwallex an official receipt (or a certified copy), or other documentation reasonably acceptable to Airwallex, evidencing payment to such authorities.
9.7 Airwallex may deduct any amounts that the Customer owes Airwallex from time to time from the funds Airwallex collects or receives as part of the Services or from any amount provided as security pursuant to clause 9.8 of these General Terms. If the Customer does not have enough funds to pay the amount owed to Airwallex, Airwallex may, at the Customer's cost, take reasonable steps to recover this amount (such as taking legal action or using debt collection services).
9.8 Security. Airwallex may, at any time, require that the Customer procures, within thirty (30) days (or such longer period as the Parties agree) after receiving Airwallex's written request, a guarantee, indemnity or other security (including the replacement of any existing security) in such form and over such assets as Airwallex may reasonably require to secure to its reasonable satisfaction the performance of the Customer's obligations (including contingent or potential obligations) from time to time under the Terms.
10. INTELLECTUAL PROPERTY
10.1 Airwallex Marks. All Airwallex Marks owned or used by Airwallex in the course of its business are the property of Airwallex. Airwallex reserves all Intellectual Property Rights in relation to the use of the Airwallex Marks. The Customer may not use the Airwallex Marks or any similar marks without the prior written consent of Airwallex.
10.2 Ownership. Airwallex owns all Intellectual Property Rights in and to the Services, including the Airwallex Platform, the Webapp and its proprietary technology, including its software (in source and object forms), algorithms, user interface designs, architecture, and documentation (both printed and electronic), and network designs, and including any modifications, improvements, feedback, ideas or suggestions relating to the Airwallex Platform, the Webapp and Services and derivative work thereof. The Terms do not transfer from Airwallex to the Customer any ownership rights in the Airwallex Platform, the Webapp or the Services.
10.3 Customer Materials.
(a) The Customer grants a royalty-free, non-exclusive, irrevocable, transferable and sub-licensable licence to Airwallex and any applicable Affiliate or third party service provider of Airwallex, to use the Customer Materials, for the purposes of operating the Airwallex Platform, providing the Services, and fulfilling Airwallex's rights and discharging its obligations under the Terms.
(b) The Customer is solely responsible for the quality, accuracy, and completeness of any Customer Materials and shall indemnify and hold harmless Airwallex, its Affiliates and its service providers on demand against all Losses arising out of or in connection with their use of the Customer Materials in accordance with the licence granted pursuant to this clause 10.3 and any claim that the Customer Materials infringe the Intellectual Property Rights of any third party.
10.4 Airwallex licence. Airwallex grants you a personal, limited, revocable, non-transferable, non-exclusive, non-assignable, non-sub-licensable, royalty-free licence to access and use the Airwallex Platform through any supported web browser for the receipt of Services provided to the Customer under the Terms provided that you comply with the Terms.
10.5 Licence restrictions. The provisions of this clause 10.5 shall apply to any licences granted to the Customer by Airwallex and/or its Affiliates. The Customer shall not, except to the extent allowed by Applicable Law or granted under a licence from Airwallex to the Customer under clause 10.3 or otherwise in the Terms, attempt to:
(a) use, distribute, reproduce, modify, copy, adapt, translate, create derivative works from, transfer, loan, rent, sublicense, sell, or otherwise commercially exploit, frame or otherwise re-publish or redistribute, publicly perform or publicly display any part of the Services including the Airwallex Platform, Services, or included software;
(b) allow any unauthorised person to access or use the Airwallex Platform or use the Services, or trade on the Airwallex Platform for speculative purposes; or
(c) reverse compile, disassemble, reverse engineer, attempt to extract the source code, or otherwise reduce to human-perceivable form all or any part of the Services or Airwallex Platform.
10.6 Customer infringement. The Customer will not use the Services, including the Airwallex Platform, in any way that infringes or violates Airwallex's or any third party's Intellectual Property Rights, or otherwise in breach of Applicable Law. The Airwallex Platform may display content that Airwallex does not own or is otherwise not responsible for. The Customer shall not use content from any of the Services, including the Airwallex Platform, unless the Customer obtains written consent from Airwallex or the owner of the content, or as permitted by Applicable Law.
10.7 Promotion. The Customer agrees that Airwallex may include the Customer's name, trading name, logo, trade marks and general business information in Airwallex's promotional and marketing materials for the Services and on its websites without consent. The Customer may at any time and upon reasonable notice in writing to Airwallex request that Airwallex ceases to use its name, logo, trade marks and general business information for these purposes.
10.8 Feedback. If the Customer provides us with any comments, questions, ideas, suggestions or other feedback relating to the Airwallex Platform or any of the Services (‘Feedback’), the Customer agrees that we may freely use, copy, disclose, license, distribute and exploit such Feedback in any manner without any obligation, royalty or restriction based on Intellectual Property Rights or otherwise. Feedback will not be considered as constituting the Customer's Confidential Information or Customer Materials.
11.1 Nothing in the Terms limits or excludes:
(a) in relation to each Party, its Liability for:
(i) death or personal injury caused by its negligence;
(ii) fraud or fraudulent misrepresentation;
(iii) any other act or omission, liability for which may not be limited under Applicable Law; and
(b) in relation to the Customer, its Liability for:
(i) any sums properly due and payable to Airwallex under the Terms;
(ii) a breach by the Customer of Applicable Laws; and
#(iii) liability arising under any indemnity given by the Customer.
11.2 Subject to clause 11.1, Airwallex and its Affiliates shall have no Liability in respect of:
(a) any incidental, punitive, indirect, special or consequential losses suffered or incurred by the Customer;
(b) any (i) loss of profits; (ii) loss of business opportunities or bargain; (iii) loss of revenue; (iv) loss of anticipated profits; (v) loss of or corruption of data or loss associated with the same; (vi) loss of operation time or loss connected with or arising from business interruption; (vii) loss of anticipated savings; and/or (viii) damage to goodwill or any other damage to reputation, (in each case, arising as a direct or indirect result of the applicable claim);
(c) any loss outside of the direct control of Airwallex and/or any of its Affiliates that arises from the negligence, fraud or wilful misconduct or the insolvency of any third-party correspondent bank, liquidity provider, or other financial institution who is part of the payment network used to provide the Services;
(d) the non-execution, or defective execution, of transactions or instructions if any information you provide in the Customer's instructions is incorrect or if such non-execution or defective execution arises out of the Customer's failure or delay in providing us with the information we require in accordance with the Terms; and
(e) any error, mistake or non-performance arising from the payee/beneficiary bank if the payee/beneficiary bank fails to process the payment correctly.
11.3 Subject to clause 11.1, the maximum aggregate Liability in any one (1) calendar year of Airwallex in relation to the Terms shall not exceed the aggregate Service Fees paid by the Customer in respect of that year in relation to the Terms.
11.4 Damages alone may not be an adequate remedy for breach and accordingly either Party will be entitled to seek the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach.
12.1 Customer's Indemnity. The Customer shall indemnify and keep indemnified Airwallex and its Affiliates on demand against all Losses incurred or suffered by Airwallex and its Affiliates in connection with or as a result of:
(a) the Customer's breach of any term of the Terms;
(b) failure to comply with Applicable Law;
(c) failure to comply with the Acceptable Use Policy;
(d) the Customer's use or misuse of the Services including the Airwallex Platform;
(e) a third party alleging that Airwallex's use of the Customer Materials as permitted by the Terms infringes any Intellectual Property Rights;
(f) Airwallex acting on any of the Customer's or any of its Authorised Users' instructions or which Airwallex reasonably believe to have been made by the Customer or an Authorised User; or
(g) Airwallex funding or arranging to fund all or part of any transactions pursuant to the Customer's instruction, and the Customer cancels or fails to fully fund such transactions and Airwallex incurs Losses as a result of the investment, deposit or other deployment of that funding or the unwinding of any arrangement for that funding.
13. CONFIDENTIALITY, PRIVACY AND USE OF DATA
13.1 Confidential Information. You acknowledge that:
(a) you may have access to Confidential Information belonging to us;
(b) you must keep such information confidential in accordance with these General Terms; and
(c) you may only use such information solely for the specific purposes for which it was disclosed by us to you or as expressly permitted by us.
13.2 Confidentiality Undertakings. You agree that you:
(a) will not disclose any of our Confidential Information to any third party except as required: (i) by law or any authority of competent jurisdiction; (ii) to your attorneys, accountants and other advisors as reasonably necessary; or (iii) for the purposes of defending yourself in relation to actual or threatened proceedings, provided that in respect of (i) and (iii) above, you will give us reasonable notice in advance of such required disclosure, together with such details as we may request (where notice to us is permissible under Applicable Law); and
(b) will take reasonable precautions to protect the confidentiality of such information, at least as stringent as those taken to protect your own Confidential Information.
13.3 Disclosures to employees and agents. In addition, you may only reveal our Confidential Information only to your agents, representatives and employees who have a ‘need to know’ such information in connection with these General Terms, and are informed of the confidential nature of such Confidential Information and agree to act in accordance with this clause 13. You will remain liable for any disclosure of Confidential Information by your agents, representatives and employees as if you had made such disclosure.
13.5 Purposes. You agree to share Personal Data with Airwallex and authorise Airwallex to collect, use, store, disclose, transfer or otherwise process such Personal Data for the following ‘Agreed Purposes’:
(a) assist in providing information to you about a product or service;
(b) consider your request for a product or service;
(c) enable us to provide a product or service;
(d) manage Airwallex’s relationship with the Customer;
(e) manage accounts and perform other administrative and operational tasks (including risk management, systems development and testing, credit scoring, staff training, collecting debts and market or customer satisfaction research);
(f) design new products and services or improve existing products and services provided by us;
(g) general and specific communication between us and you;
(h) consider any concerns or complaints you raise against us, to manage any legal action involving Airwallex and/or its Affiliates, or both;
(i) carry out any enforcement activities including to collect any money due from you;
(j) identify you or establish your tax status under any local or foreign legislation, regulation or treaty or pursuant to an agreement with any tax authority;
(k) identify, prevent or investigate any fraud, unlawful activity or misconduct (or suspected fraud, unlawful activity or misconduct);
(l) comply with all Applicable Law, including conducting anti-money laundering, financial crime and other screening checks;
(m) verify any information and records relating to you;
(o) enable actual or proposed assignee(s) or investors of all or any part of our business and/or assets or interest or shares of or in Airwallex and/or any of its Affiliates to evaluate the transaction intended to be the subject of the transaction and to enable such person(s) to use the Personal Data provided by you in the operation of the business; and
13.6 Data Subjects. The categories of Data Subjects who we may collect Personal Data about may include the following, where they are a natural person: the Customer, the directors and ultimate beneficial owner(s) of the Customer, your customers, employees and contractors, payers and payees. You may share with Airwallex some or all of the following types of Personal Data regarding Data Subjects:
(a) full name;
(b) email address;
(c) phone number and other contact information;
(d) date of birth;
(f) public information about the data subject;
(g) other relevant verification or due diligence documentation as required under the Terms; and
(h) any other data that is necessary or relevant to carry out the Agreed Purposes.
13.7 Compliance. The Customer will not knowingly perform its obligations under the Terms in a way that causes Airwallex to breach applicable Data Protection Legislation.
13.8 Data Security. You will ensure that any Personal Data that is transferred to Airwallex is transferred by a method and means that is secure and compliant with Data Protection Legislation in addition to any other reasonable information security requirements specified by us.
13.9 Cooperation. The Customer will provide Airwallex with reasonable cooperation and assistance to comply with all obligations imposed on Airwallex by the Data Protection Legislation and any relevant Applicable Law, including: (i) dealing with and responding to any communications from Data Subjects; (ii) dealing with, mitigating and responding to any breach of personal data; and (iii) with respect to security, impact assessments and consultations with supervisory authorities or Regulatory Bodies.
13.10 Personal data you provide about someone else. If you give us Personal Data about someone else, including (but not limited to) your Authorised Users, your director and ultimate beneficial owner(s), your customers, employees and contractors, payers and payees, you undertake that we may rely on you to obtain such other persons' consent for disclosing their Personal Data to us which we will use in accordance with these General Terms. You are required to show them information about these provisions so that they may understand the manner in which their Personal Data may be collected, used and disclosed by Airwallex in connection with your dealings with us and our use of their Personal Data including our use of Personal Data for direct marketing purposes and their consent to our use of their Personal Data provided by you on their behalf.
13.11 We may disclose your information to others. Airwallex may disclose your Data to:
(a) any branch, subsidiary, holding company, associated company, affiliate including any Affiliate or related entity of Airwallex;
(b) any agent, contractor or service provider that we engage or propose to engage to carry out or assist us with our functions and activities who is under a duty of confidentiality to keep such information confidential;
(c) participants in the payments system including card schemes, financial institutions and payments organisations such as Society for Worldwide Interbank Financial Telecommunication;
(d) any person to whom Airwallex may enter into any assignment, fundraising, share purchase or other commercial agreement who is under a duty of confidentiality to keep such information confidential;
(e) any person to whom information is permitted or required (or expected) to be disclosed by any applicable law or regulation or pursuant to any order of court;
(f) any referee or representative of yours (including any professional advisor, broker, introducer, attorney or executor);
(g) any third party provider of collateral, security or credit support (if any);
(h) credit reference agencies, and, in the event of default, debt collection agencies;
(i) any of your agents you have authorised or who is authorised under law such as an administrator or trustee in bankruptcy or your legal representative; and
(j) any actual or proposed assignee or investor of all or any part of our business and/or assets and/or shares or interests of or in Airwallex.
14. ANTI-BRIBERY, ANTI-CORRUPTION AND SANCTIONS
14.1 The Customer will (and will ensure that any Personnel will):
(a) comply with all Applicable Law relating to Sanctions, bribery and corruption including the UK Bribery Act 2010, the US Foreign Corrupt Practices Act, Crimes Act 1914 (Cth) and Criminal Code Act 1995, Dutch Money Laundering and Terrorist Financing (Prevention) Act (Wet ter voorkoming van witwassen en financieren van terrorisme), Sanctions Law 1977 (Sanctiewet 1977), the Dutch Criminal Code (Wetboek van Strafrecht),the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992 of Singapore, Prevention of Corruption Act 1960 of Singapore, Terrorism (Suppression of Financing) Act 2002 of Singapore and any laws and rules based on the OECD treaty ('ABC Legislation');
(b) not do or omit to do anything likely to cause Airwallex to be in breach of any such ABC Legislation;
(c) not give or receive any bribes, including in relation to any public official;
(d) maintain a programme designed to ensure compliance with ABC Legislation, including an education and training programme and measures reasonably calculated to prevent and detect violations of ABC Legislation; and
(e) provide Airwallex with sufficient reasonable assistance to enable it to perform any actions required by any government or agency in any jurisdiction for the purpose of compliance with ABC Legislation or in connection with any investigation relating to ABC Legislation.
14.2 The Customer represents and warrants that it is not, and will ensure that none of its Personnel is a Restricted Person and do not act directly or indirectly on behalf of a Restricted Person.
15. FORCE MAJEURE
15.1 Neither Party will be responsible for any failure to fulfil any obligation for so long as, and to the extent to which the fulfilment of such obligation is impeded by a Force Majeure Event. The Party subject to the Force Majeure Event will:
(a) promptly notify the other Party of any circumstances which may result in failure to perform its obligations; and
(b) use reasonable efforts to mitigate the effect of the Force Majeure Event on the performance of its obligations.
15.2 This clause 15 does not limit or otherwise affect the Customer's obligation to pay any Service Fees or other charges or amounts payable under the Terms.
16. SUSPENSION AND TERMINATION
16.1 Stopping Services. At any time, you can stop using any part of the Services and, subject to any Additional Terms, terminate the Terms by giving us thirty (30) days' prior written notice where there are no outstanding transactions between you and Airwallex.
16.2 Airwallex's rights to terminate or suspend the Services for additional cause. Airwallex may without notice immediately suspend access to the Services or terminate all or any part of the Terms or any of the Services if:
(a) the Customer is in breach of Applicable Law;
(b) the Customer undergoes a Change of Control;
(c) Airwallex suspects criminal activity in connection with the Airwallex Profile, that any of the Services is being used fraudulently, or Airwallex reasonably believes that the Customer has fraudulently requested a refund for an unauthorised transaction;
(d) Airwallex reasonably believes the Customer is in breach of Applicable Law or about to breach an Applicable Law, or Airwallex is required to terminate the Terms by Applicable Law or a regulator of competent jurisdiction;
(e) the Customer has breached the Terms or breached any applicable limits or restrictions set out in the Acceptable Use Policy;
(f) the Customer has given Airwallex false or inaccurate information, or Airwallex has been unable to verify any information the Customer has provided;
(g) the Customer notifies Airwallex of, or Airwallex suspects or identifies, any suspected or actual unauthorised transactions;
(h) the Customer has been placed on any national or international restricted or prohibited lists, which prevents Airwallex from doing business with the Customer;
(i) Airwallex suspends or stops all, or part of, the Services, including for technical or security reasons;
(j) Airwallex has reasonable concerns about the Customer's Airwallex Profile, including the Customer's use of the Services;
(k) the Customer has not paid or repaid any amounts owing to Airwallex by the date due notified by Airwallex, or the Customer suffers an Insolvency Event;
(l) one of Airwallex's banking partners, or other service provider necessary to provide the Services, requires Airwallex to terminate these General Terms or any other Terms; or
(m) the Customer does not use its Airwallex Profile for twelve (12) months and it becomes inactive.
16.3 Notice. Where Airwallex exercises a right of suspension, we will give the Customer notice of suspension where possible and the reasons for such suspension, either before the suspension is put in place, or immediately after, unless it would compromise Airwallex's reasonable security measures or otherwise be unlawful. Airwallex will use commercial reasonable endeavours to remove the suspension as soon as practicable after the reasons for the suspension have ceased to exist.
16.4 On termination you will need to repay any money you owe us. In the circumstances set out in clause 16.2, we may charge you for any costs, expenses and losses we incur (including those due to any action we may take to cover or reduce the exposure).
Please let us know if we have made a mistake or you feel that we have not met your expectations in the delivery of our Services. We have internal procedures for handling complaints fairly and promptly in accordance with our regulatory requirements. A copy of our complaints procedure is available upon request. If you are not satisfied with the decision in our final response, you may be able to refer your complaint to the Australian Financial Complaints Authority ('AFCA'). The eligibility criteria and the procedures involved are available from the AFCA. You can contact the AFCA by:
(a) visiting AFCA’s website: www.afca.org.au;
(b) post: GPO Box 3, Melbourne VIC 3001;
(c) telephone: 1800 931 678 (toll free in Australia); and
(d) email: [email protected].
(a) All notices, demands and other communications provided for or permitted under the Terms must be:
(i) made in writing in English; and
(a) given to Airwallex, it must be addressed to the postal address or email address set out in clause 2.2 (or otherwise as notified by Airwallex to you from time to time); and
(b) given to the Customer, it must be addressed to the postal address or email address which Airwallex has recorded for the Customer in the Customer's Airwallex Profile (as the Customer has updated from time to time).
(b) All notices, demands and other communications provided for or permitted under the Terms and delivered in accordance with clause 17.2(a) will be deemed delivered:
(i) if delivered by hand, on signature of a delivery receipt or, if not signed for, at the time the notice is left at the Party's postal address above; or
(ii) if sent by post, two (2) days after the day of posting; or
(iii) if sent by email, on the day of sending the notice, or if sent outside of usual business hours, at 9:00am the next working day after posting.
(c) Notices to be given by Airwallex or its Affiliates to the Customer and/or its Affiliates may be given by Airwallex, for and on behalf of its Affiliates, to the Customer directly.
(d) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Nothing in these General Terms will be construed as creating an agency, a partnership or joint venture between the Parties, constitute any Party being the agent of the other Party, or authorise any Party to make or enter into any commitments for or on behalf of the other Party. Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
17.4 Assignment and subcontracting
You will not assign the Terms, in whole or in part, without our prior written consent. Any attempt to do so will be void and constitute a material breach of the Terms. We may assign the Terms, in whole or in part, or subcontract our obligations under it, without your consent.
No failure or delay by a Party to exercise any right or remedy provided under the Terms or Applicable Law, or a single or partial exercise of such right or remedy, will constitute a waiver of that or any other right or remedy, nor will it preclude or restrict the further exercise of that or any other right or remedy.
If any provision of the Terms is determined to be invalid, unenforceable or illegal by any court of competent jurisdiction, it will be deemed to have been deleted without affecting the remaining provisions. If such provision would be valid, enforceable and legal if some part of it were modified or deleted, the provision will apply with the minimum modification necessary to make it legal, valid and enforceable.
The Customer agrees that, except in the case of manifest error, Airwallex's records of the Customer's use of the Services and of transactions carried out through the Airwallex Platform is conclusive evidence of its contents.
We may at any time set off any payment liability you have to us against any payment liability that we have to you, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under these General Terms. If the liabilities to be set off are expressed in different currencies, we may convert either liability at a market rate of exchange for the purpose of set-off. Our right to set off includes, but is not limited to, setting off the amount of any payment you have requested against any amount collected through any account you have with Airwallex.
17.9 Other languages
The Terms are made in the English language. They may be translated to other languages for convenience only, and in the event of any inconsistency, the English language version will prevail.
17.10 Governing law
The Terms will be governed by and constructed in accordance with the laws of the Victoria, Australia. Each Party irrevocably submits to the exclusive jurisdiction of Victorian courts over any dispute, controversy or claim (including non-contractual claims) arising under or in connection with the Terms.
17.11 Class waiver
To the fullest extent permitted by law, each Party agrees that any dispute arising out of or in connection with the Terms, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim or dispute proceeds in court rather than through arbitration, each Party knowingly and irrevocably waives any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to the Terms or any of the transactions contemplated between the Parties.
18. DEFINITIONS AND INTERPRETATION
18.1 In these General Terms (unless the context requires otherwise):
(a) the words "including", "include", "for example", "in particular" and words of similar effect shall not be deemed to limit the general effect of the words which precede them;
(b) reference to any agreement, contract, document or deed shall be construed as a reference to it as varied, supplemented or novated from time to time;
(c) reference to a Party shall be construed to include its successors and permitted assignees or transferees;
(d) words importing persons shall include natural persons, bodies corporate, un-incorporated associations and partnerships (whether or not any of them have separate legal personality);
(e) words importing the singular shall include the plural and vice versa;
(f) the headings, index and front sheet are all for reference only and shall be ignored when construing the Terms;
(g) references to a clause, schedule, attachment to a schedule, paragraph, annex or appendix are references to the clause, schedule, attachment, paragraph, annex or appendix of, or to, any Terms (and in each case, as varied, supplemented or novated from time to time);
(h) reference to any legislative provision shall be deemed to include any statutory instrument, by law, regulation, rule, subordinate or delegated legislation or order and any rules and regulations which are made under it and any subsequent re-enactment or amendment of the same; and
(i) if there is any inconsistency between the General Terms and any Additional Terms, then the Additional Terms prevail to the extent of the inconsistency.
18.2 Capitalised terms in the General Terms, unless otherwise expressly defined herein, have the following definitions:
"Acceptable Use Policy"
means the terms and conditions applicable to use of the Webapp and the Airwallex Platform as set out on our website www.airwallex.com;
means any member of a Party's Group (other than a Party) and any joint venture to which a Party is a party to;
means all trade marks, logos, trade names, domain names and any other logos or materials of Airwallex or its licensors;
means the proprietary technology and associated products (including but not limited to those found on the Webapp, mobile applications and through an Airwallex API) devised by Airwallex to provide customers with Services;
means the electronic information profile that records the Customer's personal or business details (as applicable) and that is used to log in to and use the Airwallex Platform;
means in any jurisdiction in which the Services are to be performed any and all applicable laws, regulations and industry standards or guidance and any applicable and binding judgment of a relevant court of law, including in relation to money service business, payment services, anti-money laundering, consumer and data protection;
means any Personnel appointed by the Customer for the purposes set out in clause 4;
has the meaning given to it in clause 8.1;
means any day when banks are generally open for business in Melbourne, Australia (other than a Saturday, Sunday or public holiday in Melbourne, Australia);
"Change of Control"
means that the person or persons who controlled or had the power to control the affairs and policies of the applicable entity whether directly or indirectly and either by ownership of share capital, possession of voting power, ability to appoint directors, contract or otherwise, ceases to have such control;
means all information in any form or medium that is secret or otherwise not publicly available (either in its entirety or in part, including the configuration or assembly of its components) including accounts, business plans, business methods, strategies and financial forecasts, tax records, correspondence, designs, drawings, manuals, specifications, customer sales or supplier information, technical or commercial expertise, software, formulae, processes, methods, knowledge, know-how, trade secrets and other information in any form or medium whether disclosed orally or in writing together with any copies, summaries, reproductions or extracts of such information clearly designated as being confidential or which can reasonably be considered confidential;
means information that describes the Customer and its business (including proprietary business information) and its operations, its products or services, and orders placed by its customers, including details of the transactions transmitted via Airwallex infrastructure and data contained or inputted into the Airwallex Profile;
means any systems, software, materials, data (including Customer Data and Payment Data), content, logos, trade marks, trade names, documents and/or other equipment or materials provided by the Customer to Airwallex and used by Airwallex directly or indirectly in connection with the supply of the Services;
means all types of data including Personal Data and Payment Data;
"Data Protection Legislation"
means the Data Protection Act 2018, GDPR, UK GDPR and any relevant law implemented as a result of GDPR, E Privacy Law, articles 7 and 8 of the Charter of Fundamental Rights of the European Union, article 8 of the European Convention on Human Rights, Privacy Act 1988 (Cth), Dutch GDPR implementation act, Personal Data Protection Act 2012 of Singapore and any other legislation in any applicable jurisdiction concerning the protection and/or processing of personal data, the right to privacy, information security, and the obligation to provide data breach notifications, and including all subordinate legislation, regulations, guidance and codes of practice and "Data Subject", "controller", "processor", "personal data" and "processing" shall have the meaning given to them under the Data Protection Legislation;
means the fee schedule applicable to the Services published by Airwallex on www.airwallex.com or as we have otherwise agreed in writing with you;
"Force Majeure Event"
means any event outside the reasonable control of the performing Party that materially affects its ability to perform its obligations under these General Terms, including an act of God, fire, earthquake, war, revolution, act of terrorism, strikes, lock- outs, labour troubles (but excluding strikes or other forms of industrial action by the employees, agents or subcontractors of that party); interruption or failure of a utility service including the internet, electric power, gas or water; riots, war, pandemic, or terrorist attack; nuclear, chemical or biological contamination; extreme abnormal weather conditions; the imposition of a sanction, embargo or breaking off of diplomatic relations; or any change in Applicable Law;
means Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data;
means any entity in respect of which a Party or a Party’s ultimate holding company: (i) owns (directly or indirectly) more than fifty (50) percent of the voting rights or issued share capital; or (ii) can ensure that the activities and business of that entity are conducted in accordance with its wishes;
(a) any procedure commenced with a view to the winding-up or re-organisation of such Party (other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or the solvent reconstruction of such Party);
(b) any step taken or any procedure is commenced with a view to the appointment of an administrator, receiver, liquidator, provisional liquidator, judicial manager or receiver and manager, administrative receiver or trustee in bankruptcy or similar official in relation to such Party or all or substantially all of its assets;
(c) the holder of any security over all or substantially all of the assets of such Party takes any step to enforce that security;
(d) all or substantially all of the assets of such Party is subject to attachment, sequestration, execution or any similar process;
(e) such Party is unable to pay its debts as they fall due;
(f) such Party enters into, or any step is taken, whether by the board of directors of such Party or otherwise, towards entering into a composition or arrangement with its creditors or any class of them, including a company voluntary arrangement or a deed of arrangement; or
(g) such Party enters into, or any step is taken, whether by the board of directors of such Party or otherwise, towards any analogous procedure under the laws of any jurisdiction to the procedures set out in (a) to (f) above, and in each case other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
"Intellectual Property Rights"
means patents, rights to inventions, copyright and related rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, database rights, rights in computer software, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of (and rights to apply for, renew or extend), such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world, together in each case with the right to claim and retain damages for past, current and future infringements of such rights;
means any liability that arises, howsoever caused, whether as a result of a breach of contract, tort, negligence, breach of statutory duty or otherwise;
means losses, damages, liabilities (including any liability to taxation), claims, costs and expenses, including fines, penalties, legal and other reasonable professional fees and expenses (in each case, whether direct, indirect, special, consequential or otherwise);
means the guidelines, bylaws, rules, agreements and regulations imposed by the financial services providers that operate payment networks supported by Airwallex from time to time (including the payment card scheme operating rules for Visa, MasterCard, or American Express);
payment account details, information communicated to or by financial services providers, financial information specifically regulated by Applicable Laws and Network Rules, and any other transactional information generated as part of the use of our Services;
means information that identifies a specific living person (not a company, legal entity, or machine) that is collected, transmitted to or accessible through the Services and as otherwise defined in applicable Data Protection Legislation;
means, in respect of a Party, that Party’s employees, directors, officers, agents, sub-contractors and/or authorised representatives;
means a person who is:
(a) listed on, or owned or controlled by a person listed on any Sanctions List;
(b) located in, incorporated under the laws of, or owned or controlled by, or acting on behalf of, a person located in or organised under the laws of a country or territory that is the target of country-wide Sanctions; or
(c) otherwise a target of Sanctions;
means any economic sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by:
(a) the United States;
(b) the United Nations;
(c) the European Union;
(d) the United Kingdom;
(g) any other jurisdiction in which Airwallex or Airwallex Group operates; or
(h) the respective governmental institutions and agencies of any of the foregoing, including without limitation, the Office of Foreign Assets Control of the US Department of Treasury ('OFAC'), the United States Department of State, Her Majesty's Treasury, and the Australian Sanctions Office (together 'Sanctions Authorities');
means the Specially Designated Nationals and Blocked Persons list issued by OFAC, the Consolidated List of Financial Sanctions Targets issued by Her Majesty's Treasury, the Consolidated List issued by the Australian Sanctions Office, or any similar list issued or maintained or made public by any of the Sanctions Authorities;
has the meaning given to it in clause 1.1;
means the fees applicable to the use of any of the Services;
has the meaning given to it in clause 9.2;
has the meaning given to it in clause 9.2;
has the meaning given to it in clause 6.1;
means GDPR as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the United Kingdom or a part of the United Kingdom from time to time);
means, with respect to each Authorised User, the electronic profile that records the Authorised User’s details and that is used by them to log into and use the Airwallex Platform on the Customer's behalf; and
means the user interface that the Customer and its Authorised Users may use to access the Airwallex Platform and the Services.