These General Terms and Conditions (“T&Cs”) apply, and are incorporated by reference in full, to the Flywire Terms under which Customer appointed Flywire (Singapore) Pte. Ltd. (“Flywire”) as Affiliated Product service provider as set out in the Software as a Service Agreement that Customer has entered into with Learning Information Systems Pty Limited t/a StudyLink (“SaaS Agreement”).
1. DEFINITIONS
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 Flywire 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 Flywire Terms.
2. FLYWIRE’S RIGHTS AND DUTIES
2.1. Customer and Payor Support. In connection with the Flywire Services, Flywire will also (a) provide information to Customer necessary to allow Customer to facilitate the reconciliation and identification of payments based on information requested by Customer from the Payor and as received by Flywire from the Payor as is; Flywire shall not be responsible for ensuring the accuracy of such information provided by the Payor, and (b) make available Customer and Payor support personnel via telephone and via its web site for any questions or issues raised by Customer or its Payors. Flywire will provide the appropriate disclosures, notices and terms of use to the Payor via Flywire’s website on the Customer’s behalf.
2.2. Compliance Review. Flywire’s provision of the Flywire Services is subject to the successful completion of Flywire’s Customer onboarding and periodic compliance review and approval process and Flywire may, in its sole discretion, suspend provision of Flywire Services to Customer for regulatory and compliance reasons, including but not limited to anti-money laundering and counter terrorism financing risks, by providing written notice as soon as feasible and Customer may terminate the Flywire Services immediately in the event Flywire Services are suspended for more than 90 days. Customer shall use commercially reasonable efforts to provide or to procure information reasonably requested by Flywire for the purpose of the compliance review process. By agreeing to the Flywire Terms, Customer 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-Customer verifications, are true and current, as at the time of provision, to the best of Customer’s knowledge.
2.3. Staffing, Designated Contact and Cooperation. Flywire shall have sole discretion in staffing the Flywire Services and may assign the performance of any portion of the Flywire Services to any subcontractor; provided that Flywire shall be responsible for the performance of any such subcontractor. Customer 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 Customer’s responsibilities as set forth in the Flywire Terms.
2.3.1. The Flywire Services or any portion thereof as determined by Flywire may be performed by one or more Flywire Affiliates as agent of Customer.
2.3.2. The crediting of funds from Payor to an account maintained by a Flywire Affiliate shall constitute payment to Customer by Payor and the Payor’s payment obligation to Customer will be considered completed and discharged at that time. Upon crediting of funds from a Payor to an account maintained by a Flywire Affiliate, (i) Flywire shall be obligated to make payment in Customer Currency to Customer in the amount of the funds received by Flywire via a Flywire Affiliate, excluding any Fees pursuant to Section 3.1 (Fees) of the Flywire Terms, and (ii) Flywire Affiliate will provide a transaction receipt to the Payor, which states that such transaction receipt evidences that final payment has been made to the Customer.
2.4. Card Processing. As part of the provision of Flywire Services, Flywire or a Flywire Affiliate shall act as the merchant of record for the processing of credit or debit card transactions as the agent of Customer for the purpose of processing the card transactions.
2.5. Agency. At the request of Flywire, Customer shall appoint Flywire Affiliate (as specified by Flywire) as its agent for the purposes of Flywire Services provided under the Flywire Terms and to take any action or execute any agreement specified by Flywire in order to validly create the agency.
3. CUSTOMER’S RIGHTS AND DUTIES
3.1. Subject to Section 4 (Confidentiality) below, Customer shall provide any additional information reasonably requested by Flywire during the Term of the SaaS Agreement (including information relating to an individual Payor and/or Customer) 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. Customer agrees that Customer shall be responsible for: (i) determining, in consultation with its own tax advisor what, if any, Taxes apply in connection with Customer’s use of the Flywire Services and to payments that Flywire collects on Customer's behalf as part of the Flywire Services provided in the Flywire Terms, excluding Taxes on Flywire’s income, property or employees (“Customer Taxes”); and (ii) calculating, collecting, reporting or remitting Customer Taxes to the appropriate tax authority. Customer will defend, indemnify and hold harmless Flywire and/or Flywire Affiliates (the “Flywire Group”), in any claims, actions or proceedings and against all direct 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 Customer Taxes. If the Flywire Group becomes part of any claims, actions or proceedings regarding Customer Taxes, Customer shall indemnify the Flywire Group for any costs or expenses incurred. Customer represents and warrants to Flywire that it is a tax resident of the country indicated by its address provided under Key Details of the SaaS Agreement. Upon Flywire’s reasonable request, Customer agrees to provide information supporting its tax position, which may include a valid tax residency certificate authorised by appropriate tax authority. Furthermore, Customer certifies that it does not have a ‘Permanent Establishment’ in India under the regulations of Articles 5 of the Double Taxation Avoidance Agreement. Customer agrees and warrants that it will notify Flywire in writing as soon as is reasonably practical following any change in Customer's tax residency status.
4. CONFIDENTIALITY
4.1. Confidential Information. During the term of Flywire Services being provided to Customer under the Flywire Terms, each of Flywire and Customer 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, Flywire Affiliates and the directors, officers, employees, outside consultant or advisor of Flywire's service providers and Flywire Affiliates) (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 the Flywire Terms. 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 the Flywire Terms; 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 the Flywire Terms are the Confidential Information of Flywire and Flywire may disclose a duly executed version of the SaaS Agreement including the Flywire Terms to its banking and collection partners, to facilitate the completion of payments to Customer 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 Customer, 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 these Flywire Terms:
- Flywire shall comply with all applicable laws, rules, regulations and ordinances governing or relating to privacy rights in connection with its performance under these Flywire Terms including, without limitation, the Data Protection Laws, each as they may be applicable to Flywire and amended from time to time; and
- 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 Customer, as the case may be) provided by the Customer to Flywire, the Customer 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 these Flywire Termst.
4.4 Injunctive Relief. Notwithstanding any other provision of these Flywire Terms, Flywire and Customer acknowledge that any use of the disclosing party’s Confidential Information in a manner inconsistent with the provisions of these Flywire Terms 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 Flywire Services, Flywire and Customer 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 a Flywire Affiliate (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 Customer, 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 Customer upon Customer’s request.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 Customer 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 Customer shall not have any right, title or interest in or to such Intellectual Property Rights other than as expressly granted by Flywire under these Flywire Terms.
5.2 Flywire hereby grants to Customer a non-exclusive, royalty free, non-sub-licensable, non-transferable licence during the Term of the SaaS Agreement, to use the Intellectual Property Rights of Flywire (save for Trademark), for the purposes of or in connection with the use of the Flywire Services by Customer.
5.3 Customer agrees not to use Flywire's Trademark for any purpose other than for the purpose as set out in Section 2.4 of the Flywire Terms, provided always that Customer 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. Customer shall immediately cease all uses of Flywire's Trademarks upon termination of the Flywire Services provided under the Flywire Terms.
6. LIMITED WARRANTY/INDEMNIFICATION
6.1 Claims. EXCEPT FOR FLYWIRE’S OBLIGATION TO PAY CUSTOMER ANY FUNDS RECEIVED FROM PAYORS UNDER FLYWIRE SERVICES PROVIDED UNDER THE FLYWIRE TERMS, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF FLYWIRE AND STUDYLINK ARISING FROM OR RELATING TO (I) FLYWIRE SERVICES (INCLUDING LIABILITY ARISING OUT OF SECTION 6.2 (Indemnification) OF THE T&CS) UNDER THESE FLYWIRE TERMS AND (II) THE SAAS AGREEMENT EXCEED THE AMOUNT AS SET FORTH IN CLAUSE 15 OF THE SAAS AGREEMENT FOR ALL CLAIMS (INCLUDING LEGAL FEES AND EXPENSES, LOSSES AND DAMAGES).
6.2 Indemnification. Flywire will defend and indemnify, at its own expense, any third-party claim against Customer that arises due to a claim (i) that the Flywire 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) of the T&Cs. Flywire will pay such damages or costs as are finally awarded against Customer or agreed to in settlement for such claim provided that Customer 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 6.2 (Indemnification) with respect to any claim of infringement or misappropriation based upon: (i) combination of the Flywire 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 Flywire Services not performed by Flywire, if such claim would have been avoided by use of the unmodified Flywire Services; (iii) compliance by Flywire with Customer’s custom requirements or specifications if and to the extent such compliance with Customer’s custom requirements or specifications resulted in the infringement claim. The rights granted to Customer under this Section 6.2 (Indemnification) shall be Customer’s sole and exclusive remedy for any alleged infringement by the Flywire Services of any patent, copyright or other proprietary right.
7. GENERAL PROVISIONS
7.1 Financial Assessment. In order to facilitate Flywire’s assessment of the level of risk associated with Customer’s use of the Flywire Services, Customer agrees to cooperate with Flywire’s reasonable requests from time to time for Customer to provide its recent financial statements and other related documentation or information in a reasonably timely fashion.
7.2 Payment Methods. Notwithstanding anything to the contrary contained in the Flywire Terms, Flywire may add, amend, limit, discontinue or suspend any of the payment methods as part of the Flywire 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, provided that any such changes do not materially impair Customer’s ability to collect payments from Payers. 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 Customer as it deems practicable. For the avoidance of doubt, a change to a payment method does not constitute a Change of Flywire Service as set forth under Section 4.1 (Changes to Flywire Services) of the Flywire Terms and shall not require a Change Request notification or prior notice period.
7.3 Consequential Damages Waiver. Except as may arise out of either party’s breach of Section 4 (Confidentiality) of the T&Cs 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 Flywire Services, or the performance of any other obligations under the Flywire Terms, even if it is aware of the possibility of such damages.
7.4 Insurance. During the Term of Flywire Services being provided under the Flywire Terms, 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 a Flywire Affiliate with a group coverage including Flywire. This insurance policy shall not be canceled or materially changed without at least thirty (30) days prior written notice to Customer
7.5 Headings and Appendices. The headings to the sections of these T&Csare for ease of reference only and shall not affect the interpretation or construction of the Flywire Terms.
7.6 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) of the T&Cs, will survive termination or expiration of the Flywire Services being provided under the Flywire Terms.
7.7 Flywire Not a Financial Institution. Customer acknowledges that (a) Flywire offers the Flywire Services to facilitate receiving payments from Payors and depositing such funds into Customer Destination Account for and on behalf of Customer; (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 Flywire Services are not deposits of Customer and are not insured for the benefit of Customer 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.
7.8 Relationship of the Parties. Flywire and Customer are independent contractors, and nothing in the Flywire Terms 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 the Flywire Terms.
7.9 Force Majeure. Non-performance of either party under the Flywire Terms 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.
7.10 Publicity. Customer agrees that Flywire may (i) list Customer’s name or logo in the Customer section of Flywire’s website or in other marketing materials, provided that Customer is listed with other Customers, that such listing is done in a factual manner and is of similar size and font as other Customers, and that such listing does not serve as an endorsement of Flywire’s products and/or services, and (ii) may display Customer’s name and the logo provided by Customer on Customer’s custom Flywire webpage, and otherwise in connection with Flywire’s provision of the Flywire Services hereunder, which may include, but not limited to, use of Customer’s name and/or logo in Payor communications, provided that Flywire abide by the Customer’s brand identity standards available and that Flywire will abide by any requests Customer may make to remove or change Customer’s logo at any time. Notwithstanding the foregoing, Flywire shall not use Customer’s name and logo for any other purpose not explicitly permitted by Customer in writing in advance and shall immediately cease all uses of Customer’s name and logo upon termination of Flywire Services provided under the Flywire Terms. Customer undertakes to Flywire that it has obtained all requisite consent (including consent from Customer’s affiliates where required) for Flywire to use the Customer's name and logo in the manner described in the Flywire Terms and waives (on behalf of itself and its affiliates) all claims towards Flywire and Flywire Affiliates for the use of the Customer's name and logo, to the extent that Flywire and Flywire Affiliates use the Customer's name and logo in accordance with the Flywire Terms.
7.11 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 the Flywire Terms will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of the Flywire Terms will not affect the validity or enforceability of any of the other provisions hereof, and the Flywire Terms will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.
7.12 Trade Compliance. In connection with Customer’s provision of goods and/or services for which Payors make payments through Flywire under the Flywire Terms, Customer 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, Customer is solely responsible for compliance with the Trade Compliance Laws in connection with Customer’s provision of goods and/or services to Customer’s customers. Customer represents and warrants that neither Customer, nor or any party that owns or controls Customer, is designated on any list of prohibited or restricted parties issued pursuant to any Trade Compliance Law.
7.13 Flywire Affiliates. When a Flywire Affiliates is providing Flywire Services to Customer, Sections 4 (CONFIDENTIALITY), 6 (LIMITED WARRANTY/ INDEMNIFICATION) and 7 (GENERAL PROVISIONS) of the T&Cs shall apply to such Flywire Affiliate to the same extent that such Sections would apply to Flywire had such Flywire Services been performed directly by Flywire.
LAST UPDATED: 5 March 2024