These General Terms and Conditions (“T&Cs”) apply to Clients who have entered into the International Payment Processing Agreement ("Client IPPA”) with Flywire (Singapore) Pte. Ltd., Flywire G.K., and/or their affiliates, as the case may be (collectively referred to herein as “Flywire”).
1.1. Data Protection Laws shall mean General Data Protection Regulation (Regulation (EU) 2016/679), and/or any national laws implementing this regulation including the U.K. Data Protection Act, the Personal Data Protection Act of Singapore, and other data protection law or regulations applicable to the Services, each as amended from time to time.
1.2. Intellectual Property Rights shall mean patents, utility models, rights in inventions, registered and unregistered design rights, copyrights, database rights and all other similar rights in any part of the world (including in know-how) including, where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registrations, but excluding any rights in Trademarks.
1.3. Tax shall mean all forms of taxation and shall include, but not be limited to, statutory, governmental, national, federal, provincial, state, local, government or municipal charges, duties, imposts, contributions, levies, withholdings or liabilities wherever chargeable and whether of Singapore or any other jurisdiction, and any penalty, fine, surcharge, interest, charges or costs relating thereto.
1.4. Trademarks shall mean any names, trademarks, service marks, business names, company names, corporate names, logos, insignias, slogans, emblems, symbols, getup, URLs or domain names.
1.5. Capitalised terms that are used but not otherwise defined in the T&Cs shall have the same meaning ascribed to them in the Client IPPA.
2. Flywire’s Rights And Duties
2.2. Compliance Review. Flywire’s provision of the Services is subject to the successful completion of Flywire’s client onboarding and periodic compliance review and approval process and Flywire may, in its sole discretion, suspend provision of Services to Client for compliance reasons. Client shall use commercially reasonable efforts to provide or to procure information reasonably requested by Flywire for the purpose of the compliance review process. By entering into the Agreement, Client undertakes and warrants that all information provided to Flywire by any of its employees for the purpose of Flywire’s compliance review, including but not limited to Know-Your-Client verifications, are true and current, as at the time of provision, to the best of Client’s knowledge.
2.3. Staffing, Designated Contact and Cooperation. Flywire shall have sole discretion in staffing the Services and may assign the performance of any portion of the Services to any subcontractor; provided that Flywire shall be responsible for the performance of any such subcontractor. Client will cooperate with Flywire, provide Flywire with accurate and complete information, provide Flywire with such assistance and access as Flywire may reasonably request and fulfil Client’s responsibilities as set forth in this Agreement.
2.3.1. The Services or any portion thereof as determined by Flywire may be performed by one or more Affiliates of Flywire as agent of Client.
2.3.2. The crediting of funds from Payor to an account maintained by an Affiliate of Flywire shall constitute payment to Client by Payor and the Payor’s payment obligation to Client will be considered completed and discharged at that time. Upon crediting of funds from a Payor to an account maintained by an Affiliate of Flywire, (i) Flywire shall be obligated to make payment in Client Currency to Client in the amount of the funds received by Flywire via an Affiliate of Flywire, excluding any Fees pursuant to Section 3.1 (Fees) of the Client IPPA, and (ii) Affiliate of Flywire will provide a transaction receipt to the Payor, which states that such transaction receipt evidences that final payment has been made to the Client.
2.4. Card Processing. As part of the provision of Services, Flywire or an Affiliate of Flywire shall act as the merchant of record for the processing of credit or debit card transactions as the agent of Client for the purpose of processing the card transactions.
2.5. Agency. At the request of Flywire, Client shall appoint an Affiliate of Flywire (as specified by Flywire) as its agent for the purposes of the Agreement and to take any action or execute any agreement specified by Flywire in order to validly create the agency.
3. Client’s Rights And Duties
3.1. Subject to Section 4 (Confidentiality) below, Client shall provide any additional information reasonably requested by Flywire during the Term of this Agreement (including information relating to an individual Payor and/or Client) to the extent legally permitted and required to enable Flywire to comply with all applicable laws and requirements of regulatory authorities, including but not limited to anti-money laundering laws, bribery, corruption, tax evasion, fraud or similar, Data Protection Laws, and managing all economic trade sanctions risks.
3.2. Liability for Taxes. Client agrees that Client shall be responsible for: (i) determining, in consultation with its own tax advisor what, if any, Taxes apply in connection with Client’s use of the Services and to payments that Flywire collects on Client's behalf under this Agreement, excluding Taxes on Flywire’s income, property or employees (“Client Taxes”); and (ii) calculating, collecting, reporting or remitting Client Taxes to the appropriate tax authority. Client will defend, indemnify and hold harmless Flywire and/or Affiliates of Flywire (the “Flywire Group”), in any claims, actions or proceedings and against all liabilities, losses, costs, damages and expenses (including legal costs as part of a pre-litigation and settlement process or otherwise) incurred by the Flywire Group arising out of or related to Client Taxes. If the Flywire Group becomes part of any claims, actions or proceedings regarding Client Taxes, Client shall indemnify the Flywire Group for any costs or expenses incurred. Client represents and warrants to Flywire that it is a tax resident of the country indicated by its address in the first paragraph of the Client IPPA. Upon Flywire’s reasonable request, Client agrees to provide information supporting its tax position, which may include a valid tax residency certificate authorised by appropriate tax authority. Furthermore, Client certifies that it does not have a ‘Permanent Establishment’ in India under the regulations of Articles 5 of the Double Taxation Avoidance Agreement. Client agrees and warrants that it will notify Flywire in writing as soon as is reasonably practical following any change in Client's tax residency status.
4.1. Confidential Information. During the term of this Agreement, each party will regard any information provided to it by the other party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing party’s business and the industry in which it operates, is of a confidential or proprietary nature. The receiving party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, third party consultant, or advisor of the party (or in the case where Flywire is the receiving party, Flywire's service providers, Affiliates of Flywire and the directors, officers, employees, outside consultant or advisor of Flywire's service providers and Affiliates of Flywire) (collectively, “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving party and who are bound by a duty of confidentiality no less protective of the disclosing party’s Confidential Information than this Agreement. The receiving party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing party. Each party accepts responsibility for the actions of its Representatives and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used.
4.2. Exclusions. Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (ii) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving party. Notwithstanding the provision of Clause 4.1, the parties expressly agree that i) the terms and pricing of this Agreement are the Confidential Information of Flywire and Flywire may disclose a duly executed version of the Agreement to its banking and collection partners, to facilitate the completion of payments to Client and ii) Flywire may also disclose Confidential Information to the extent it is required to be disclosed by law, by a court or other authority of competent jurisdiction. A receiving party shall promptly notify the disclosing party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing party in enforcing its rights.
4.3. Personal Data. To the extent any Confidential Information provided to or obtained by Flywire or to which Flywire has access in the performance of its functions is information about past, present, or potential students, customers or employees of Client, as the case may be, constitutes any non-public personal data as defined under the Data Protection Laws or any applicable data protection law (“Personal Data”), the following additional terms are applicable notwithstanding anything to the contrary in this Agreement:
(i) Flywire shall comply with all applicable laws, rules, regulations and ordinances governing or relating to privacy rights in connection with its performance under this Agreement including, without limitation, the Data Protection Laws, each as they may be applicable to Flywire and amended from time to time; and
(ii) Flywire shall implement such administrative, technical and physical security measures as required under applicable law to: (a) ensure the security and confidentiality of the Personal Data; (b) protect against any threats or hazards to the security and integrity of the Personal Data; and (c) protect against unauthorized access to or use of Personal Data. This includes but is not limited to: (1) encrypting all transmitted records and files containing Personal Data that will travel across public networks and on any portable device, to the extent technically feasible; and (2) implementing and maintaining a written information security program.
In respect of any Personal Data relating to any individual (including students, customers and employees of a Client, as the case may be) provided by the Client to Flywire, the Client represents and warrants to Flywire that it has provided all requisite notification and obtained all requisite consent of such individuals for the collection, processing, use, transfer and/or disclosure of their Personal Data to or by Flywire as contemplated in this Agreement.
4.4. Injunctive Relief. Notwithstanding any other provision of this Agreement, both parties acknowledge that any use of the disclosing party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate, or to the extent arising out of or in connection with the negligent performance, negligent failure to act, or misconduct of Flywire in the performance of the Services, both parties agree that, in addition to any other remedy to which the disclosing party may be entitled hereunder, at law or equity, the non-faulty party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.
4.5. Cardholder Data. Flywire agrees that for credit and debit card transactions processed by Flywire or an Affiliate of Flywire (collectively, “Flywire” for purposes of this paragraph), Flywire will comply with applicable data security rules or regulations published from time-to-time by a payment card brand which is accepted for payment on behalf of Client, including the Payment Card Industry Data Security Standards (“PCI DSS”). Flywire’s PCI DSS compliance will be certified annually, and documentation of such certification will be presented to Client upon Client’s request.
5. Intellectual Property Rights
5.1. Client acknowledges and agree that any and all right, title and interest in and to all Intellectual Property Rights in or arising from Flywire's website, system or platform shall remain the exclusive property of Flywire and that Client shall not have any right, title or interest in or to such Intellectual Property Rights other than as expressly granted by Flywire under this Agreement.
5.2. Flywire hereby grants to Client a non-exclusive, royalty free, non-sub-licensable, non-transferable licence during the Term, to use the Intellectual Property Rights of Flywire (save for Trademark), for the purposes of or in connection with the use of the Services by Client.
5.3. Client agrees not to use Flywire's Trademark for any purpose other than for the purpose as set out in Section 2.4 of the Client IPPA, provided always that Client shall not alter or tamper with Flywire's Trademark or use Flywire's Trademarks in any way which may prejudice their distinctiveness, validity or goodwill. Client shall immediately cease all uses of Flywire's Trademarks upon termination of this Agreement.
6. Limited Warranty/Indemnification
6.1. Warranty and Remedy. Flywire warrants that it will provide the Services in a competent and workmanlike manner. Flywire does not warrant that it will be able to correct all reported defects or that use of the Services will be uninterrupted or error free. Flywire makes no warranty regarding features or services provided by third parties. Client will provide Flywire with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects.
6.2. No Other Warranty; Limitation of Liability. THE SERVICES ARE PROVIDED “AS IS.” FLYWIRE DOES NOT REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICES WILL BE CORRECTED. THE WARRANTIES STATED IN SECTION 6.1 (Warranty and Remedy) ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY FLYWIRE. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED BY STATUTE AT COMMON LAW OR OTHERWISE HOWSOEVER, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. CLIENT ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES ARE ACCURATE OR SUFFICIENT FOR CLIENT’S PURPOSES.
6.3. Claims. EXCEPT FOR FLYWIRE’S OBLIGATION TO PAY CLIENT ANY FUNDS RECEIVED FROM PAYORS UNDER THIS AGREEMENT, IN NO EVENT SHALL FLYWIRE’S LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT (INCLUDING LIABILITY ARISING OUT OF SECTION 6.4 (Indemnification)) EXCEED USD$25,000 IN TOTAL FOR ALL CLAIMS (INCLUDING LEGAL FEES AND EXPENSES, LOSSES AND DAMAGES).
6.4. Indemnification. Flywire will defend and indemnify, at its own expense, any third-party claim against Client that arises due to a claim (i) that the Services infringes any valid patent, copyright or involves the misappropriation of a trade secret (an “IP Claim”) or (ii) caused by Flywire’s violation of any of its confidentiality obligations relating to Personal Data set forth in Section 4.3 (Personal Data). Flywire will pay such damages or costs as are finally awarded against Client or agreed to in settlement for such claim provided that Client gives Flywire: (a) prompt written notice of any such claim or threatened claim; (b) sole control of the defense, negotiations and settlement of such claim; and (c) full cooperation in any defense or settlement of the claim (at Flywire’s cost). Flywire will not be liable for the settlement of a claim made without Flywire’s prior written consent. Flywire shall have no obligation under this Section 6.4 (Indemnification)with respect to any claim of infringement or misappropriation based upon: (i) combination of the Services with products, programs or data not furnished by Flywire where, but for the combination, the claim would have been avoided; (ii) any modification of the Services not performed by Flywire, if such claim would have been avoided by use of the unmodified Services; (iii) compliance by Flywire with Client’s custom requirements or specifications if and to the extent such compliance with Client’s custom requirements or specifications resulted in the infringement claim. The rights granted to Client under this Section 6.4 (Indemnification) shall be Client’s sole and exclusive remedy for any alleged infringement by the Services of any patent, copyright or other proprietary right.
7. General Provisions
7.1. Assignment. This Agreement shall be binding upon and for the benefit of Flywire, Client and their permitted successors and assigns. Flywire may assign this Agreement to an Affiliate of Flywire or otherwise to another party as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Except as expressly stated in this Agreement, neither party may otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party, and any attempted assignment or delegation without such consent will be void.
7.2. Financial Assessment. In order to facilitate Flywire’s assessment of the level of risk associated with Client’s use of the Services, Client agrees to cooperate with Flywire’s reasonable requests from time to time for Client to provide its recent financial statements and other related documentation or information in a reasonably timely fashion.
7.3. Payment Methods. Notwithstanding anything to the contrary contained in this Agreement, Flywire may at its sole discretion, add, amend, limit, discontinue or suspend any of the payment methods as part of its Services, including but not limited to the availability of certain payment methods based on specific criteria such as duration of availability, or imposing restrictions on per transaction or cumulative transaction payment amounts. Flywire may take such action at any time and without prior notice but will endeavor to provide reasonable advance notice or notice subsequent such changes to Client as it deems practicable. For the avoidance of doubt, a change to a payment method does not constitute a Change of Service as set forth under Section 4.1 (Changes to Services) of the Client IPPA and shall not require a Change Request notification or prior notice period.
7.4. Modifications to T&Cs. Flywire and Client agree that Flywire may unilaterally, in its sole discretion, modify the T&Cs, from time to time, without notice to Client. Such modification of the T&Cs shall become effective, supersede and replace all prior versions of T&Cs (including the T&Cs in effect as at the Effective Date) immediately upon its publication herein and Client’s continued use of the Services shall constitute acceptance to such modifications. Any exceptions to the T&Cs must be agreed to in writing by Flywire and Client.
7.5. Consequential Damages Waiver. Except as may arise out of either party’s breach of Section 4 (Confidentiality) or otherwise required by applicable law, neither party will be liable to the other or any third party for loss of profits (direct or indirect), or special, indirect, incidental, consequential or exemplary damages, including costs, in connection with the performance of the Services, or the performance of any other obligations under this Agreement, even if it is aware of the possibility of such damages.
7.6. Insurance. During the Term of this Agreement Flywire shall procure, pay for and maintain a fidelity bond and/or insurance with ample coverage with a reputable carrier, as reasonably determined by Flywire and for the avoidance of doubt, such insurance may be taken out by an Affiliate of Flywire with a group coverage including Flywire. This insurance policy shall not be cancelled or materially changed without at least thirty (30) days prior written notice to Client
7.7. Headings and Appendices. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement. All appendices, if any, shall be part of the Agreement.
7.8. Survival. All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration, including but not limited to Section 4 (Confidentiality) and Section 6 (Limited Warranty/Indemnification), will survive termination or expiration of this Agreement.
7.9. Flywire Not a Financial Institution. Client acknowledges that (a) Flywire offers the Services to facilitate receiving payments from Payors and depositing such funds into Client Destination Account for and on behalf of Client; (b) Flywire does not transmit funds on behalf of any Payor; (c) Flywire is not a bank or other depository institution, money transmitter or money transfer, remittance or other money services business; and (d) funds held by Flywire or its service providers (including any bank partners) in connection with the Services are not deposits of Client and are not insured for the benefit of Client by the Singapore Deposit Insurance Corporation under the Singapore Deposit Insurance Scheme, the Federal Deposit Insurance Corporation, Japan Depository Office, as the case may be, or any other governmental entity.
7.10. Relationship of the Parties. Flywire and Client are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationship of employer and employee between them, for any purpose whatsoever. Neither party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other party’s name or on its behalf, except as provided under this Agreement.
7.11. Force Majeure. Non-performance of either party shall be excused to the extent that performance is rendered impossible by a Force Majeure Event. A Force Majeure Event includes any acts of God, natural disasters, terrorism, armed hostilities, sabotage, war or any escalation or worsening of acts of war, epidemic, pandemic or disease outbreak (including the COVID-19 virus), strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party.
7.12. Notices. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing or email from an authorized officer and shall be deemed to have been delivered and given for all purposes at the time mailed or emailed.
7.13. No Third-Party Beneficiaries. Nothing contained in this Agreement is intended or shall be construed to confer or shall confer upon any third person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a party to any such person.
7.14. Publicity. Client agrees that Flywire may (i) list Client’s name or logo in the Client section of Flywire’s website or in other marketing materials, provided that Client is listed with other clients, that such listing is done in a factual manner and is of similar size and font as other clients, and that such listing does not serve as an endorsement of Flywire’s products and/or services, and (ii) may display Client’s name and the logo provided by Client on Client’s custom Flywire webpage, and otherwise in connection with Flywire’s provision of the Services hereunder, which may include, but not limited to, use of Client’s name and/or logo in Payor communications, provided that Flywire abide by the Client’s brand identity standards available and that Flywire will abide by any requests Client may make to remove or change Client’s logo at any time. Notwithstanding the foregoing, Flywire shall not use Client’s name and logo for any other purpose not explicitly permitted by Client in writing in advance and shall immediately cease all uses of Client’s name and logo upon termination of this Agreement. Client undertakes to Flywire that it has obtained all requisite consent (including consent from Client’s affiliates where required) for Flywire to use the Client's name and logo in the manner described in this Agreement and waives (on behalf of itself and its affiliates) all claims towards Flywire and Affiliates of Flywire for the use of the Client's name and logo, to the extent that Flywire and Affiliates of Flywire uses the Client's name and logo in accordance with the terms of this Agreement.
7.15. Waiver and Severability. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of either party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.
7.16. Trade Compliance. In connection with Client’s provision of goods and/or services for which Payors make payments through Flywire under this Agreement, Client will comply with all applicable economic sanctions and import and export control laws and regulations, including those of the United Nations Security Council, Singapore, the United Kingdom, the European Union (or any of its member states), the United States (including the Specially Designated Nationals List of the U.S. Department of Treasury’s Office of Foreign Assets Control and the Entity List of the U.S. Department of Commerce), and/or any other applicable authority (collectively, “Trade Compliance Laws”). For clarity, Client is solely responsible for compliance with the Trade Compliance Laws in connection with Client’s provision of goods and/or services to Client’s customers. Client represents and warrants that neither Client, nor or any party that owns or controls Client, is designated on any list of prohibited or restricted parties issued pursuant to any Trade Compliance Law.
7.17. Affiliates. When an Affiliate of Flywire is providing Services to Client, Sections 4 (CONFIDENTIALITY), 6 (LIMITED WARRANTY/ INDEMNIFICATION) and 7 (GENERAL PROVISIONS) shall apply to such Affiliate of Flywire to the same extent that such Sections would apply to Flywire had such Services been performed directly by Flywire.
Last updated: October 5, 2021