Terms and Conditions
The parties to this agreement are:
Pace Financial Group Limited (“PACE”) of Studio 10, 51 Portland Road, Kingston, Surrey, KT1 2SH (registered in England and Wales with company registration number 06893668) and the party confirming their acceptance of these Terms by way of online authentication (“Sender”).
2. PACE’S SERVICES
1.1. The definitions and rules of interpretation in this clause apply in these Terms:
- “Currency Exchange Revenue” means, in connection with each Invoice, the difference between the cost charged to the Sender by PACE in connection with paying each Invoice and the cost incurred by PACE in obtaining the Invoice Sum in the relevant currency to be paid to the Recipient;
- “Demand” means any action, award, claim or other legal recourse, complaint, cost, debt, demand, expense, fine, liability, loss, outgoing, penalty or proceeding which PACE has incurred or sustained or may incur or sustain whether directly or indirectly;
- “EEA” the European Economic Area;
- “Force Majeure Event” has the meaning given in clause 13.1;
- “Invoice Sums” the amounts due in the currency (such currency to be a currency pre-agreed by PACE and the Recipient as being available on the Pace System) listed in the Invoices as being due to the Recipient from the Sender;
- “Invoices” those invoices issued by the Recipient to the Sender from time to time;
- “Order” has the meaning given in clause 3.1;
- “Pace System” the online portal provided by PACE pursuant to which the Sender may make payments in connection with Invoices;
- “Personal Information” has the meaning given in clause 9.1;
- “Recipient” the person to whom the Sender wishes to deliver Invoice Sums via the Pace System, subject to PACE having an arrangement in place with such Recipient for the delivery and acceptance of funds.
- 1.2. Clause headings shall not affect the interpretation of these Terms.
- 1.3. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors or permitted assigns.
- 1.4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
- 1.5. Words in the singular shall include the plural and vice versa.
- 1.6. A reference to one gender shall include a reference to the other genders, the neuter and vice versa.
- 1.7. A reference to any party shall include that party’s personal representatives, successors or permitted assigns.
- 1.8. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time, provided that, as between the parties, no such amendment, extension or re-enactment shall apply for the purposes of this agreement to the extent that it would impose any new or extended obligation, liability or restriction on, or otherwise adversely affect the rights of, any party.
- 1.9. A reference to a statute or statutory provision shall include any subordinate legislation made from time to time under that statute or statutory provision.
- 1.11. Any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to what most nearly approximates to the English legal term in that jurisdiction.
- 1.12. A reference to “these Terms” or to any other agreement or document referred to in this agreement is a reference to the terms and conditions contained in this document or such other document or agreement as varied or novated (in each case, other than in breach of the provisions of this agreement) from time to time.
- 1.13. References to clauses are to the clauses of these Terms.
- 1.14. Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
3. INSTRUCTIONS AND PAYMENT INFORMATION
- 2.1. Subject to the provisions of these Terms, PACE will contract as principal with the Sender for the exchange and onward delivery of currency to the Recipient and deal with the Sender on an execution only basis.
- 2.3. PACE will not provide advice to the Sender upon the merits of the transactions envisaged by these Terms or provide taxation or other advice to the Sender. In entering into these Terms the Recipient must not treat any information or comments by PACE as advice and must rely only on its own judgement (or the judgement of any third party adviser).
- 3.1. The Recipient may give PACE instructions via the Pace System relating to a transaction for the purchase and delivery of currency to the Recipient in connection with an Invoice (the ”Order”).
- 3.2. The Sender must make payment in full in respect of the currency purchased under any Order at the same time as making such Order. PACE will not accept or act upon any Order unless full payment has first been received by PACE from the Sender in cleared funds in respect thereof.
- 3.3. Following receipt of an Order from any Sender, PACE shall, provided such Order is in relation to a bona fide Invoice, accept payment from the Sender in such amount calculated by PACE to be due in connection with the Invoice Sums due under the relevant Invoice and confirm receipt of such payment to the Recipient before delivering the Invoice Sums to the Recipient in accordance with the terms agreed from time to time between PACE and the Recipient.
- 3.4. Upon making payment in respect of any Order, the Sender will not be entitled to cancel such Order and shall have no right of refund from PACE.
- 4.1. In respect of any Order or Invoice, PACE may (but shall not be obliged to) before accepting payment from or on behalf of the Sender require further confirmation or information from the Sender in connection with any such Invoice or Order if PACE considers that such confirmation or information is desirable or that an Invoice or Order is ambiguous or to comply with any rules or regulations affecting PACE or its business from time to time.
- 4.2. PACE shall not be liable for any fees, costs, taxation liabilities or charges incurred by the Sender or charged by any financial institution in connection with the transfer of funds by the Sender from its bank account or credit card (as the case may be) to PACE.
6. EXCHANGE RATE AND CURRENCY EXCHANGE REVENUE
- 5.1. If the Sender fails to make any payment required under these Terms when it falls due, interest will be charged on the outstanding sum at a rate of three percent per annum over the base rate of the Bank of England (or of such monetary authority as may replace it). Such interest shall accrue and be calculated daily from the date payment was due until the date the Sender pays in full and shall be compounded monthly.
- 5.2. PACE may receive and retain or apply for its own benefit any interest which arises in respect of the Invoice Sums pending delivery of such sums to the Recipient.
7. REPRESENTATIONS AND AGREEMENTS
- 6.1. PACE shall calculate the sums payable by the Sender by applying the exchange rate offered by PACE through the Pace System to the Invoice Sums.
- 6.2. The Sender understands and acknowledges that because PACE deals as principal the exchange rates it offers the Sender will not be the same as the rate PACE obtains itself.
6.3. In consideration of the obligations of PACE hereunder, the Sender hereby:
- (a) waives any legal or moral right it has or considers it has to the Currency Exchange Revenue;
- (b) acknowledges that PACE shall own and be entitled to the Currency Exchange Revenue and may deal with such sums in such manner as it deems fit; and
- (c) acknowledges and agrees that the Currency Exchange Revenue derives from an exchange rate set by PACE which is calculated by PACE to provide PACE with profit on exchanges of currency.
8. DEFAULT & REFUSAL TO PERFORM
7.1. The Sender represents to PACE that, both at the date of acceptance by the Sender of these Terms and of each Order:
- (a) all information supplied to PACE by the Sender is, or at the time it is supplied will be, accurate in all material respects and the Sender will not omit or withhold any information which would make such information inaccurate in any material respect; and
- (b) the Sender requires the currency solely for the purposes of making payment of Invoice Sums due to the Recipient and acknowledges that the purpose of this arrangement is not for investment purposes and is not speculative.
- 7.2. The Sender will provide to PACE on request such information regarding its financial and business affairs and/or identity, as PACE may reasonably require (including without limitation any information required for PACE to be able to comply with its anti-money laundering obligations).
9. DATA PROTECTION
8.1. PACE may refuse to perform any Order without incurring any liability to the Sender for losses that may be sustained as a result and without giving notice to the Sender or receiving any instructions from it, upon or at any time after the happening of any of the following events:
- (a) it becomes or may become unlawful for PACE to maintain or give effect to all or any of the obligations under these Terms or otherwise to carry on its business or if PACE is requested not to perform such obligations (or any part thereof) by any governmental or regulatory authority whether or not that request is legally binding; or
- (b) PACE considers it necessary to do so for its own protection including (without limitation) in the following circumstances: (i) protection from fraud; (ii) protection from Sender or Recipient default; (iii) protection from market failure; or (iv) in response to any information revealed by PACE’s due diligence or credit checks on the Sender and/or the Recipient.
- 8.2. PACE shall not be responsible in any way for any delay by the Sender in making payment in respect of any Invoice or for any delay by any financial institution in processing any payment or transaction under these Terms or the Payment Services Agreement.
10. USE OF THE PACE SYSTEM
- 9.1. The Sender authorises PACE to collect, use, store or otherwise process any personal information provided by the Sender or from the searches referred to at Clause 14.7 below (‘Personal Information’) to enable PACE and/or members of its group and/or the organisation which introduced or referred the Sender to PACE to provide and/or improve its services.
- 9.3. Under the UK Data Protection Act 1998 PACE follows strict security procedures in the storage and disclosure of information to prevent unauthorised access and is registered with the Information Commissioner's Office (registration No. Z2031475).
- 9.5. If the Sender wishes to obtain a copy of its Personal Information, it should contact PACE on its helpline 0844 409 9615.
11. RELATIONSHIP BETWEEN THE RECIPIENT AND THE SENDER
- 10.1. PACE hereby grants to the Sender on and subject to these terms and conditions a non-exclusive, non-transferable licence to use the Pace System for the purposes of paying the Invoice Sums.
10.2. The Sender shall not:
- (a) attempt to duplicate, modify or distribute any portion of the Pace System; or
- (b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any of the Pace System or its source code, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or
- (c) attempt to obtain, or assist others in obtaining, access to the Pace System, other than as provided under this clause 10.
- 10.3. It is the Sender’s responsibility to take precautions to ensure that whatever computer equipment and/or software it uses in logging into the Pace System is free from viruses, worms, trojan horses or other material which is malicious or technically harmful. The Sender shall not store on, or distribute or transmit to, the Pace System (or if by email, to PACE itself) any viruses, worms, trojan horses or other material which is malicious or technically harmful.
- 10.4. Except for any Invoices uploaded onto the Pace System, the Sender acknowledges and agrees that PACE and/or its licensors own all intellectual property rights in the Pace System, including (but not limited to) the ‘look and feel’ of the Pace System. The Sender may not duplicate, copy, or re-use any portion of the HTML/CSS, source code or visual design elements of the Pace System without PACE’s prior written permission.
- 10.5. These Terms do not grant the Sender any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Pace System.
- 10.6. PACE has a policy of continuous service enhancement and reserves the right to amend the specifications of the Pace System or any part of them without prior notice to give effect to such enhancements. The Pace System may therefore be altered as a consequence of any such enhancement.
- 10.7. Because public networks, such as the internet, occasionally experience disruptions, PACE cannot guarantee that the Pace System will be available one hundred per cent (100%) of the time. Although PACE uses reasonable endeavours to maintain the reliability of the Pace System, interruptions and delays in accessing the Pace System are sometimes unavoidable.
12. PACE’S LIABILITY
11.1. Nothing in this agreement shall have the effect of creating any contractual obligation on PACE to provide any services of the Recipient to the Sender and PACE shall have no liability in respect of any Demands arising in connection with the relationship between the Sender and the Recipient including (without limitation):
- (a) any breach by the Recipient of any contractual obligation owed by it to the Sender or vice versa;
- (b) any breach by the Recipient or the Sender of any laws, rules, regulations or codes;
- (c) any charges claimed against the Sender by the Recipient;
- (d) any request by the Sender for reimbursement for any reason; and
- (e) any other obligation, judgement or liability affecting either of the Recipient or the Sender.
- 11.2. Without prejudice to clause 11.1 above, the Sender hereby agrees to indemnify and keep indemnified PACE in respect of any liability falling upon PACE as a direct or indirect consequence of any action, breach or omission by the Sender in connection with the contractual relationship between the Recipient and the Sender.
13. EVENTS OUTSIDE PACE’S CONTROL
12.1. This clause 12 sets out PACE’s entire financial liability (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Sender in respect of:
- (a) any breach of these Terms;
- (b) any use made by the Sender of the Pace System;
- (c) any Order made by the Sender; and
- (d) any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms or any Order.
- 12.2. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Terms.
12.3. This does not include or limit in any way PACE’s liability for:
- (a) death or personal injury caused by PACE’s negligence;
- (b) fraud or fraudulent misrepresentation; or
- (c) any matter for which it would be illegal for PACE to exclude, or attempt to exclude, its liability.
12.4. PACE is not responsible for indirect losses which happen as a side effect of the main loss or damage and which are not foreseeable by PACE and the Sender, including but not limited to:
- (a) loss of income or revenue;
- (b) loss of business;
- (c) loss of profits or contracts; or
- (d) loss of anticipated savings,
- PACE’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of these Terms or any Order shall be limited to the amount of undelivered Invoice Sums as at the date of the breach.
- 12.5. The Sender shall, on demand by PACE, indemnify PACE and keep it indemnified from and against all liabilities, damages, losses and costs (including legal costs), duties, taxes, charges, commissions or other expenses incurred by PACE in the proper performance of its services or the enforcement of its rights under these Terms and, in particular, but without limiting the general indemnity, against all amounts which PACE may certify to be necessary to compensate it for all liabilities, damages, losses and costs (including legal costs), duties, taxes, charges, commissions or other expenses incurred by PACE (including loss of profit and losses and expenses from any action PACE takes to seek to cover or reduce its exposure under any Order) as a result of the Sender breaching any provisions of these Terms.
- 12.6. The indemnities in this clause 12 shall survive termination of any agreement under these Terms and PACE’s certificate under clause 12.5 shall, unless it is manifestly inaccurate, be conclusive.
- 13.1. PACE will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under an Order that is caused by events outside PACE’s reasonable control (“Force Majeure Event”).
A Force Majeure Event includes any act, omission or accident beyond PACE’s reasonable control and includes in particular (without limitation) strikes, lock-outs or other industrial action, terrorist attack or threat of terrorist attack, war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or impossibility of the use of public or private telecommunication networks.
- 13.2. PACE’s performance under any Order is deemed to be suspended for the period that the Force Majeure Event continues, and PACE will have an extension of time for performance for the duration of that period. PACE will use its reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which PACE’s obligations under the Order may be performed despite the Force Majeure Event.
15. APPLICABLE LAW AND LANGUAGE
- 14.2. PACE may amend these Terms by notice in writing to the Sender at any time and such amendment shall take effect from the date specified by PACE but may not affect any rights or obligations that have already arisen and will not be retrospective. Otherwise, these Terms may only be varied by the written agreement of PACE and the Sender.
- 14.3. If at any time any provision of these Terms is or becomes illegal, invalid or unenforceable under the laws of any jurisdiction, neither the legality, validity or enforceability of such provision under the laws of any other jurisdiction nor the legality validity or enforceability of any other provision of these Terms shall in any way be affected as a result.
- 14.4. If a party fails to exercise or delays in exercising any right under these Terms, by doing so it does not waive such right. The rights provided in these Terms do not exclude other rights provided by law.
14.5. The Sender agrees to:
- (a) the electronic recording by PACE of telephone conversations between the parties with or without an automatic tone warning device; and
- (b) the use of such recordings as evidence by PACE in any dispute or anticipated dispute between the parties or relating to dealings between the parties.
- 14.6. If PACE makes any recordings or transcripts it may also destroy them in accordance with its normal procedures.
- 14.7. The Sender acknowledges and agrees that PACE is permitted to carry out an electronic database search and search credit reference agencies in order to verify the Sender’s, or in the case of the Sender being a corporate entity, any shareholder of the Sender’s, identity and credit standing. If such searches are carried out, PACE may keep records of the contents and results of such searches in accordance with all current and applicable laws.
- 14.8. The provisions of the Contracts (Rights of Third Parties) Act 1999 shall not apply to these Terms.
- These Terms and any relationship between PACE and the Sender shall be governed by English law and subject to the exclusive jurisdiction of the English courts. All communications between the Sender and PACE shall take place in English.