By signing up to apply, obtain and/or use the financing facilities made available or to be made available by CapBay (as defined below), you (“Counterparty”) acknowledge that you have read and understood, and agree to be bound by, these Terms and Conditions in its entirety. Please note that when you execute these Terms and Conditions, along with the Customer Due Diligence / Know Your Client Questionnaire, authorisation forms, as well as any other form by us, whether through a hard copy or digitally, your submission becomes the basis of a legally binding agreement between CapBay and yourself.
1. Definitions and interpretation
1.1 Definitions
In these Terms and Conditions, unless the context otherwise requires, the following definitions apply:
Agencies
has the meaning given to it in Clause 2.4.2.2;
Business Day
a day on which commercial banks are open for ordinary banking business in Singapore (excluding Saturdays, Sundays and public holidays);
CapBay
CapitalBay Technologies Pte. Ltd. (UEN No. 202006022N) a company incorporated under the laws of Singapore having an address at
18 Cross St, #02-101, Cross St Exchange, Singapore 048423, which term shall include its holding company, subsidiaries, affiliates and all members of its group of companies;
Confidential Information
information which is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances in which the information was acquired or disclosed but excludes information:
(a) within public knowledge;
(b) obtained from a source not connected with the other Party and not under any obligation of confidence in respect of the information;
(c) known to the other Party before the date of these Terms and Conditions and not subject to any obligation of confidence on the part of the other Party; or
(d) independently developed by a Party;
Intellectual Property
trademarks, service marks, trade names, domain names, logos, get-up, patents, inventions, registered and unregistered design rights, copyrights, database rights and all other similar rights in any part of the world including where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registrations;
Know-how
confidential industrial and commercial information and techniques in any form including, without limitation, source code, formulae, data analysis, test results, reports and testing procedures, instruction and manuals, market forecasts, and lists and particulars of participants;
Parties
CapBay and the Counterparty, and “Party” means any one of them;
Purpose
the purpose of enabling CapBay to evaluate the Counterparty with a view of providing, facilitating and/or making available financing facilities and/or financial services to the Counterparty; and
Related Persons
has the meaning given to it in Clause 2.4.1.2.
1.2 Interpretation
In these Terms and Conditions, unless the context otherwise requires:
1.2.1 words in the singular shall include the plural and words in the plural shall include the singular;
1.2.2 a reference to a “person” shall include any natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.3 references to Clauses are to the clauses of these Terms and Conditions;
1.2.4 headings contained in these Terms and Conditions are for convenience only and shall not affect the construction or interpretation of these Terms and Conditions;
1.2.5 any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms;
1.2.6 there shall be no presumption that any ambiguity should be construed in favour of or against any Party solely as a result of such Party’s actual or alleged role in drafting these Terms and Conditions or any part of it; and
1.2.7 in these Terms and Conditions, any reference to a document (including these Terms and Conditions) is a reference to that document (including any schedules or annexures
2. Registration
2.1 Account setup and verification
2.1.1 If the Counterparty has completed and submitted required forms and supporting documentation, CapBay will review the application according to its existing approval procedures. These procedures may include:
2.1.1.1 verifying the Counterparty’s identity, business (including its financial and trading history or performance) and any other information as CapBay may deem necessary or desirable; and
2.1.1.2 undertaking various anti-money laundering checks, customer due diligence and other checks which may be advisable or required by law.
2.2 Accuracy, updating of information
2.2.1 The Counterparty represents to CapBay that all information provided by the Counterparty and/or its representatives to CapBay is true, current, accurate and complete, and undertakes to maintain and update such information provided to CapBay, as well as upon CapBay’s request.
2.3 Processing of personal data
2.3.1 The Counterparty consents to CapBay, on behalf of itself and other persons (whose personal data is provided to CapBay), for the processing of such personal data according to CapBay’s privacy policy available on CapBay’s website www.capbay.com.
2.4 Consent for checks and verifications
2.4.1 CapBay, its agents, representatives, consultants, third parties doing business or any other party instructed to act for and on behalf of CapBay pursuant to the fulfilment of this Terms and Conditions including but not limited to Bay Group Holdings Sdn Bhd and its subsidiaries and related parties, is permitted to undertake credit checks (including credit analysis, evaluation, monitoring and review for the purposes of the offering of our products and services), anti-money laundering, due diligence checks (including checks with credit reporting agencies and credit bureaus), checks relating to property, litigation, identity, background, compliance risk as well as other checks which may be advisable or required by law on:
2.4.1.1 the Counterparty; and
2.4.1.2 persons controlling, having an interest or otherwise related to the Counterparty such as (without limitation) its directors, shareholders, owners, partners, managers and guarantors (collectively, “Related Persons”).
2.4.2 The Counterparty, on behalf of itself and its Related Persons, consents to:
2.4.2.1 CapBay; and
2.4.2.2 such agencies, contractors or other persons as CapBay may engage (including credit reporting agencies and data analytics service providers) (collectively, the “Agencies”),
to conduct such the checks referred to in Clause 2.4.1 and to:
2.4.2.2.1 procure information relating to the Counterparty and its Related Persons from relevant data sources;
2.4.2.2.2 disclose and share information relating to the Counterparty and its Related Persons including but not limited to their trade reference information with other subscribers and participants in their services, and with third parties and data processors located within or outside Singapore; and
2.4.2.2.3 retain information in the Agencies database subject to and consistent with applicable laws.
2.4.3 The Counterparty grants consent to CapBay to the collection of its personal and corporate data including that of its officers, employees, representatives, contractors, agents, shareholders, suppliers, vendors, related parties, business counterparts and otherwise those instructed by or doing business with you to be used by CapBay and any of its related parties, to be shared with and provided to credit bureaus and/or credit reporting agencies regulated under the laws of Singapore, any statutory or other regulatory authority authorized by law to require disclosure for any compliance, anti-money laundering, tax, customs, duties, trade or such other law and regulation which from time to time may be introduced and required under the applicable law, whether that of Singapore or other jurisdiction which may have governing interest over the Counterparty and/or CapBay.
2.4.4 The Counterparty further agrees that consent given by the Counterparty, on behalf of itself and its Related Persons is :-
2.4.4.1 irrevocable for the duration which the Counterparty has a business relationship, facility or amount due to CapBay; and
2.4.4.2 without holding the Agencies liable for all activities conducted in relation to the checks and disclosure of information referred to in sub-Clauses 2.4.2.2.2 and 2.4.2.2.3,
and the Counterparty, on behalf of itself and its Related Persons, agrees to the same (where applicable).
2.5 Counterparty approval
CapBay reserves the right to approve or reject a Counterparty’s application at its sole and absolute discretion (without being required to disclose any reasons for its decision).
2.6 Data Collection & Sharing
2.6.1 During the course of our activities, CapBay may collect, record, hold, store and/or process personal data about the Counterparty, customers, suppliers and other third parties in any medium whether electronically or otherwise, for the purposes of assessing credit risks the transactions and any other purposes permitted under the law and the Personal Data Protection Act 2012 (“PDPA”), and CapBay recognises that the correct and lawful treatment of this data will remain confidential in the organisation.
2.6.1.1 Personal data includes name, address, copies and details of identification documents, contact details, employment history, credit and references check, marital status, commission or alleged commission of offence, data activity, financing activity, financial position, personal, corporate financial and social security details, provided to CapBay from time to time.
2.6.1.2 The Counterparty authorises CapBay, its related entities and business partners including any of their appointed representatives, related parties, and contractors, successors and assignees to share, collect, retrieve, process and store the Counterparty’s information and data with such other entities as may be relevant for the Counterparty in connection with the Purpose.
3. Confidentiality
3.1 Confidentiality obligations
Each Party shall at all times use all reasonable endeavours to keep confidential, and to ensure that its officers, employees and agents shall keep confidential, any Confidential Information and shall not use or disclose any such Confidential Information except:
3.1.1 to such Party’s professional advisers where such disclosure is for the Purpose;
3.1.2 with the written consent of the Party that the information relates to;
3.1.3 as may be required by law or by the rules of any recognised stock exchange, or governmental or other regulatory body; or
3.1.4 if the information comes within the public domain (otherwise than as a result of the breach of this Clause 3.1.
3.2 Survival of obligations
The obligations of each Party in this Clause 3 shall continue without limit in time and notwithstanding termination of these Terms and Conditions for any cause.
4. Termination
4.1 Termination for breach, insolvency etc.
Without affecting any other right or remedy available to it, CapBay may suspend or restrict access, or terminate these Terms and Conditions with immediate effect if:
4.1.1 the Counterparty:
4.1.1.1 commits a material breach of any other term of these Terms and Conditions which breach is irremediable or, if such breach is remediable, fails to remedy that breach within a period of fourteen (14) days after being notified in writing to do so;
4.1.1.2 repeatedly breaches any of the terms of these Terms and Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these Terms and Conditions;
4.1.2 the Counterparty becomes insolvent, or if an order is made or resolution is passed for the winding up of the Counterparty (other than voluntarily for the purpose of solvent amalgamation or reconstruction), or if a special administrator, receiver and manager or receiver is appointed in respect of that Counterparty or in respect of the whole or any part of the Counterparty’s assets or business, or if the Counterparty makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of a debt; or
4.1.3 the Counterparty suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business having relevance to the Purpose (as applicable).
4.2 Termination with notice
4.2.1 Without affecting any other right or remedy available to it:
4.2.1.1 CapBay may terminate these Terms and Conditions on giving not less than three (3) months’ written notice to the Counterparty; and
4.2.1.2 CapBay may terminate these Terms and Conditions on giving not less than one (1) months’ written notice to the Counterparty if the Counterparty is not participating in any one Programme at that point of time.
Any financing activity or transactions ongoing will remain unaffected.
4.3 Consequence of termination
4.3.1 Any provision of these Terms and Conditions that expressly or by implication is intended to come into or continue in force on or after termination of these Terms and Conditions shall remain in full force and effect.
4.3.2 Termination of these Terms and Conditions shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages
5. Notices
5.1 Notices to Counterparties
Notices and other communications (a “Notice”) from CapBay to Counterparties in connection with the Purpose may be, if in the opinion of CapBay the circumstances warrant, delivered by hand, sent by prepaid registered post,
sent by commercial courier sent by email for the attention of the authorised person, or sent by a digital messaging service recognised by CapBay and the Counterparty and to the address or email given by the Counterparty.
5.2 Notices to CapBay
Notices from Counterparties to CapBay in connection with the Purpose may be delivered by hand, sent by prepaid registered post, sent by commercial courier or sent by email for the attention of the person and to the address or email provided at www.capbay.com.
5.3 Deemed receipt
5.3.1 If a Notice has been properly sent or delivered in accordance with Clause 5.1 or Clause 5.2) (as applicable), it will be deemed to have been received as follows:
5.3.1.1 if delivered by hand, at the time of delivery;
5.3.1.2 if sent by post, at the time at which the letter would be delivered in the ordinary course of post;
5.3.1.3 if sent by a digital messaging service, at the time of a read receipt or if read receipts are unavailable, then one (1) hour after the Notice was sent;
5.3.1.4 if sent by courier, at the time of signature of the courier’s delivery receipt; or
5.3.1.5 if sent by email, one (1) hour after the Notice was sent.
provided that if deemed receipt under the previous paragraphs is not within business hours (meaning 9.00 a.m. to 5.00 p.m. on a Business Day), it is deemed received on the next Business Day.
5.4 Application
This Clause 5 applies to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
6. General provisions
6.1 Successors and assigns
6.1.1 Subject to Clause 6.1.2, these Terms and Conditions is personal to the Parties. Accordingly, the Counterparty may not, without the prior written consent of the other, assign the benefit of all or any of the other’s obligations under these Terms and Conditions, or any benefit arising under or out of these Terms and Conditions.
6.1.2 Either Party may, without the consent of the other, assign to a subsidiary or related corporation the benefit of all or any of the other Parties’ obligations under these Terms and Conditions provided that if the assignee ceases to be a subsidiary or related corporation of the relevant Party, the benefit of those obligations shall be reassigned to the relevant Party or a related corporation of the relevant Party.
6.2 Release, indulgence and waiver
No failure on the part of a Party to exercise, and no delay on its part in exercising, any right or remedy under these Terms and Conditions shall operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.
6.3 Third party rights
A person who is not a Party has no right under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore to enforce or to enjoy the benefit of any term of these Terms and Conditions.
6.4 Costs
Each Party shall bear its costs incurred by it in connection with the preparation, negotiation and entry into of these Terms and Conditions, and its participation in any Programme.
6.5 Invalidity
If any term in these Terms and Conditions shall be held to be illegal, invalid or unenforceable, in whole or in part, under any enactment or rule of law, such term or part shall to that extent be deemed not to form part of this Governing law, dispute resolution and jurisdiction.
6.6 Governing law
This Terms and Conditions shall be governed by and construed in accordance with the laws of Singapore.
6.7 Dispute resolution
6.7.1 If any dispute arises under or in connection with these Terms and Conditions between the Parties, the Parties shall make a good faith effort to resolve the dispute before taking any legal action.
6.7.2 The Parties shall meet at the earliest opportunity to discuss the dispute after one Party gives written notice to the other Party that such a dispute exists. Such meeting may be held by way of videoconference, teleconference or other electronic means whereby each participant in the meeting can hear and be heard by every other participant, if travel is impractical.
6.7.3 At such meeting, a senior officer or principal of the Parties who has authority to resolve the dispute shall be in attendance. Legal action may only be commenced:
6.7.3.1 after the Parties have met pursuant to this Clause 6.7.2; or
6.7.3.2 if no meeting has taken place pursuant to this Clause 6.7.2, after one month from the receipt of the written notice reference in Clause 6.7.2 (except in the case where immediate injunctive relief is being sought).
6.8 Arbitration
Any dispute arising out of or in connection with these Terms and Conditions, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clause.
The seat of the arbitration shall be Singapore.
The Tribunal shall consist of one arbitrator, to be jointly nominated by the Parties. If the Parties are unable to agree upon a common arbitrator, the arbitrator shall be appointed by the Chairman of the SIAC.
The language of the arbitration shall be English.
6.9 Relationship of parties
Notwithstanding any provision hereof, CapBay shall be deemed to act independently and not as partner, joint venturer, agent, employee, or employer of the other. The Counterparty shall not have any authority to assume or create any obligation for or on behalf of CapBay, express or implied, and shall not attempt to bind CapBay to any contract.
Nothing in these Terms and Conditions shall obligate CapBay to approve, agree or undertake to provide any financial services or financing facilities or to otherwise enter into any other transaction or contractual relationship with the Counterparty, and CapBay reserves the right, in its sole discretion, to terminate the discussions contemplated in connection with the Purpose. For avoidance of doubt it is clarified that no agreement providing for any transaction currently exists and none shall be deemed to exist between the Parties hereto unless and until a definitive written agreement for any such transaction is hereafter negotiated, executed and delivered with the intention of being legally binding upon the Parties hereto and any other necessary parties thereto.