This agreement (the “Service Agreement”) was last modified on 12 September 2017
PARTIES
Pay Perform Limited, trading as PayConstruct, a company incorporated under the laws of England and Wales (Company Number 10789721), with its registered office at 1&2 Heritage Park Hayes Way, Staffs, Cannock, England, WS11 7LT, United Kingdom (“PayConstruct”).
The registered user of the website ("CLIENT").
CLIENT and PayConstruct shall be referred to jointly herein as “Parties” and each in the singular as “Party”.
The Parties hereby agree as follows:
1. INTRODUCTION
1.1. This agreement (the "Service Agreement") sets out the terms and conditions (the "Terms and Conditions") governing your use (the CLIENT) of the website payconstruct.com (the "Website") and its related services that we may agree to provide to you from time to time (the "Service"). These Terms and Conditions are binding on you therefore it is important that you read and understand the Agreement.
1.2. By accessing and using the Website, you are deemed to have expressly read and understood the Agreement and accepted the Terms and Conditions when you use the Website and the Service. You agree to be bound by these Terms and Conditions and other specific rules and procedures as determined or as may be amended from time to time at the sole discretion of PayConstruct.
2. DEFINITIONS
2.1. The Parties shall be subject to the definitions detailed in Schedule 2 attached hereto.
3. INTELLECTUAL PROPERTY RIGHTS
3.1. The Service is protected by copyright, trade secret and other intellectual property laws. We and/or our licensors own the title, copyright and other worldwide intellectual property rights in all services relating to PayConstruct. Using PayConstruct and the Service does not grant you any rights to our trademarks or service marks.
3.2. For the purpose of these Terms and Conditions, intellectual property rights shall mean all patent rights, copyright rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications and registrations, renewals and extensions thereof, under the laws of United Kingdom and any country, territory or other jurisdiction.
4. REGISTRATION, IDENTIFICATION AND ACTIVATION
4.1. To help the government fight terrorism and money laundering, the applicable laws require us to obtain, verify and record information that identifies each person who wishes to use the Service.
4.2. As such, in order for you to use the Service, you must first register for an account with PayConstruct, during which we will ask for your name, address, date of birth, identification number and other identification documents that local applicable laws require us to obtain. In some cases, we may also be required by local applicable laws to conduct a face-to-face verification. We appreciate your understanding and cooperation.
4.3. As part of your registration and use of the Service, you represent and warrant that:
4.3.1. If an individual, you are at least eighteen (18) years of age;
4.3.2. You are eligible to register and use the Service and have the right, full authority and ability to enter into this Service Agreement and perform under these Terms and Conditions;
4.3.3. You will not be violating any laws or regulations by registering with us, entering into or by performing any part of this Service Agreement, or by otherwise using the Service;
4.3.4. All information provided by you as part of your registration and use of the Service is current, accurate and complete, and you undertake to promptly notify us of any changes to such information;
4.3.5. You will ensure that your all information provided at registration remains accurate and up to date; and
4.3.6. You will not impersonate any other person, operate under an alias or otherwise conceal your identity. We will use the information provided by you, as well as the information that we receive from the use of the Website and the Service, to facilitate your participation in the services and for other purposes consistent with our Privacy Policy.
4.4. From time to time, we may require you to provide additional information as a condition of the continued use of the Website and the Service.
4.5. You may register only once, and each user must maintain a separate registration. If we detect multiple active registrations for a single user, we reserve the right to merge or terminate the registrations and refuse all continued use of the Service without notification to you.
4.6. We, at our sole and absolute discretion, may refuse to approve or terminate existing registrations with or without cause or notice, other than any notice required by any applicable law, and not waived herein.
5. ADVISORY SERVICES
PayConstruct shall provide the following transaction structuring advisory services to CLIENT on a Transaction by Transaction basis in accordance with the following process (the "Service"). The specific responsibilities of the Parties related to the Transactions are detailed in Section 7 below.
5.1. CLIENT to submit a request to PayConstruct indicating its desire to settle a transaction (the “Transaction Request”). Such request by CLIENT shall be made by Electronic Recorded Communication and must include the Transaction Terms that would be acceptable to CLIENT related to the contemplated Transaction.
5.2. Upon receipt of any such Transaction Request, PayConstruct shall assign a discrete reference code (the “Transaction Reference Code”) to each such request, which shall be referenced by the Parties when referring to any contemplated Transaction.
5.3. Based on the Transaction Terms communicated in each Transaction Request, PayConstruct shall provide advice to CLIENT related to the optimal structure for each Transaction.
5.4. Final Transaction Terms shall be confirmed between PayConstruct and CLIENT. Such confirmed Transaction Terms shall be valid for a period of thirty (30) minutes. In the event that PayConstruct and CLIENT are unable to agree the Transaction Terms related to a specific Transaction Request, or such Transaction does not proceed in accordance with Clause 5.5 below within thirty (30) minutes of confirming the Transaction Terms, such Transaction Request shall be cancelled. Notification of such cancellation shall be made by PayConstruct to CLIENT by Electronic Recorded Communication.
5.5. PayConstruct shall provide transactional support to facilitate Transactions as follows:
5.5.1. Settlement of Available Local Funds in PayConstruct Account. Upon Confirmation of the Transaction Terms per Clause 5.4, CLIENT to settle the Available Local Funds to the PayConstruct Account specified by PayConstruct to CLIENT.
5.5.2. Final Settlement of Funds. Upon receipt and availability of the funds stipulated in Clause 5.5.1, PayConstruct to facilitate the settlement of the Settlement Amount in accordance with the Settlement Details.
6. CONDITIONS PRECEDENT TO TRADING
6.1. Prior to any Transaction, the following conditions precedent shall be met amongst the Parties:
6.1.1. Completion of any required financial structuring that may be required related to any contemplated Transaction, including the specification of the necessary mechanics and/or financial structures necessary to complete the Transaction.
6.1.2. KYC Information shall be received by all Parties for each of the other Parties to this Service Agreement. Such KYC Information must be kept current and valid by each Party at all times.
7. RESPONSIBILITIES OF THE PARTIES
7.1. Responsibilities of all Parties
All Parties shall have the following responsibilities related to this Service Agreement:
7.1.1. Furnish all required documentation stipulated in this Service Agreement as reasonably requested by the other Parties.
7.1.2. Make all reasonable efforts to ensure the security of funds related to any Transaction.
7.2. Responsibilities of PayConstruct
PayConstruct shall have the following responsibilities related to this Service Agreement:
7.2.1. Manage all communications with CLIENT.
7.2.2. Ensure all Conditions Precedent have been met prior to each Transaction, as detailed in Section 6 above.
7.2.3. Coordinate all Transactions, as detailed in Section 5 above.
7.2.4. Undertake all necessary financial structuring that may be required under Clause 6.1.1, including but not limited to the leveraging of its network.
7.2.5. Facilitate the settlement of the Settlement Amount in accordance with the Settlement Details in accordance with Clause 5.5.2.
7.2.6. PayConstruct shall not be held liable for non-delivery of funds as there is no loss to any party, and no fees will be levied on any party whatsoever in the event of funds being returned due to suspected illegal activity.
7.3. Responsibilities of CLIENT
CLIENT shall have the following responsibilities related to this Service Agreement:
7.3.1. Settle the Available Local Funds into the PayConstruct Account in accordance with Clause 5.5.1.
8. UNLAWFUL AND OTHER IMPERMISSIBLE USE
8.1. You confirm that you shall not use the Service to conduct transactions in connection with any prohibited activities under applicable laws, and we reserve the right to investigate any suspicious activity or in response to any complaints or reported violations. When investigating any such activity, we reserve the right to report suspected unlawful activity to any appropriate regulatory or similar authority or person and to provide such authority or person any relevant information, including personal data.
8.2. If we detect any unusual or suspicious activity on your use of the Service, we may require you to contact us or temporarily suspend the continued use of the Service until we can verify the activity.
8.3. PayConstruct may close and revoke any service with or without notice to you if, because of any change to any applicable law, regulation, regulatory requirement or judicial decision, or in our opinion, maintaining or performing any obligation under the terms in this Service Agreement becomes illegal, or we are otherwise prohibited from doing so. If this happens, you must pay us all liabilities on demand.
8.4. PayConstruct shall not be accountable for any loss of funds if funds are suspended or ceased by authorities as a result of suspected prohibited or illegal activity, or actual prohibited or illegal activity under applicable laws.
9. REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants to the other Parties as follows:
9.1. It is validly existing and in good standing in the jurisdictions in which it is incorporated.
9.2. The KYC information provided by each Party to the other Parties is true, correct and valid. Further, each Party shall ensure that such information provided to the other Parties remains true, correct and valid for the duration of this Service Agreement.
9.3. Each Party is in compliance with all relevant laws and regulations related to the Transactions contemplated herein, including but not necessarily limited to the laws in the Governing Jurisdiction, as stipulated in Clause 24 below.
10. NON-DISCLOSURE, NON-CIRCUMVENTION AND CONFIDENTIALITY
10.1. The Parties shall be subject to the non-disclosure, non-circumvention and confidentiality provisions detailed in Schedule 1 attached hereto.
11. FEES AND EXPENSES
11.1. The Parties agree that all expenses incurred related to this Service Agreement shall be for their own account without recourse to any other Party for any reason whatsoever.
12. WAIVER
12.1. No failure or delay by either Party to exercise any right or remedy provided under this Service Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13. NO PARTNERSHIP OR AGENCY
13.1. Nothing in this Service Agreement is intended to, or shall be deemed to establish any partnership or joint venture between any of the Parties, or constitute any party the agent of another Party in terms of being authorised by the other Party to make or enter into any commitments for or on behalf of the other Party.
14. FURTHER ASSURANCE
14.1. Each Party shall use all reasonable endeavours to ensure that any necessary third Party shall promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Service Agreement.
15. SERVICE PROVIDERS
15.1. PayConstruct may use agents and 3rd party service providers to help us deliver the Service to you. In any event, all services provided by us or our agents and service providers are performed at our discretion and subject to our supervision and control.
16. LIMITATIONS OF LIABILITY
16.1. The Website and the Service are provided on an "as is" and "as available" basis. Use of the Service is at your own risk. In the event of any action that you may file against us, you agree that our total liability shall not exceed £1,000.00 (One thousand British Pounds) or the amount of the damages actually suffered by you, whichever is lower.
16.2. You hereby agree to indemnity and render us, our directors, officers, employees, agents, affiliates, holding companies, subsidiaries, service providers or subcontractors and assign free and harmless from and against any claim, cause of action, suit, liability, and loss or damage of whatever nature that may arise as a result of or in connection with your use of the Service in the following instances:
16.2.1. Losses or damages alleged to result from our failure to properly complete a Transaction;
16.2.2. Losses or damages alleged to result from our delay in completing a Transaction;
16.2.3. If, through no fault of ours, you have not timely deposited sufficient funds with us to make the Transaction;
16.2.4. If your system or device was not working properly during your use of the Service and you knew about the breakdown when you started the Transaction;
16.2.5. For errors made by you or a Recipient, such as making a transfer to an unintended person or transferring an unintended amount;
16.2.6. For errors by your bank, such as the provision of an incorrect bank account information;
16.2.7. For losses or damage arising from your misuse or inability to use the Service and the Website, whether due to reasons within our control or not;
16.2.8. For losses or damage to you from our inability to complete a Transaction because we are prohibited by law or for losses or damage caused as a result of actions taken due to our obligations under applicable law or order; or
16.2.9. Due to circumstances beyond our control (such as failure or interruption of telecommunications or data transmission systems) that prevent or affect the Transaction, despite reasonable precautions that we have taken.
17. DISCLAIMER OF LIABILITY
17.1. In providing the Service to you, neither we nor any of our affiliates, holding companies, subsidiaries, employees, officers, directors, agents, service providers or subcontractors, makes any express warranties or representation to you with respect to the Service except as set out in this Agreement, and all implied and statutory warranties and representations, including without limitation any warranty of fitness for a particular purpose, merchantability or non-infringement are hereby expressly disclaimed to the maximum extent permitted by applicable law.
17.2. In no event shall we or any of our affiliates, holding companies, subsidiaries, employees, officers, directors, agents, service providers or subcontractors be liable to you or any third party for any indirect, special, consequential, punitive, exemplary or incidental damages, whether based on negligence, willful misconduct, tort, contract or any other theory of law, or for any damages for loss of data, loss of income, failure to realize expected revenues or savings, loss of profits or any economic or pecuniary loss.
17.3. We further disclaim any and all liability for any goods or services brought or sold by you that are settled through your participation in the Service.
18. ASSIGNMENT
18.1. This Service Agreement is personal to the Parties and no Party shall assign, transfer, subcontract, declare a trust of or deal in any other manner with any of its rights and obligations under this Service Agreement without the prior written consent of the other Party.
18.2. Each Party confirms that it is acting on its own behalf and not for the benefit of any other person.
19. TERMINATION
19.1. This Service Agreement may be terminated by PayConstruct or CLIENT for any reason with thirty (30) days prior written notice to the other Parties.
19.2. Without prejudice to any rights that have accrued under this Service Agreement or any of its rights or remedies, any of the Parties may at any time terminate this Service Agreement with immediate effect by giving written notice to the other Parties if:
19.2.1. any Party fails to pay any amount due under this Service Agreement on the due date for payment and remains in default not less than 5 Business Days after being notified in writing to make such payment; or
19.2.2. any Party breaches any material term of this Service Agreement and (if such breach is remediable) fails to remedy that breach within a period of 5 Business Days after being notified in writing to do so; or
19.2.3. any Party repeatedly breaches any of the terms of this Service Agreement 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 this Service Agreement; or
19.2.4. any Party suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply; or
19.2.5. any Party is subject to an Insolvency Event; and/or
19.2.6. any Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
19.3. Other than as set out in this Service Agreement, no Party shall have any further obligation to any other Party under this Service Agreement after its Termination.
19.4. Termination of the Service Agreement, howsoever arising, shall be without prejudice to any provision of this Service Agreement which expressly or by implication is intended to come into or continue in force on or after termination of this Service Agreement.
19.5. Termination of this Service Agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the Parties existing at Termination including, for the avoidance of doubt, the right to claim damages in respect of any breach of this Service Agreement existing at or before the date of Termination.
20. ANNOUNCEMENTS
20.1. No Party shall make, or permit any person to make, any public announcement concerning this Service Agreement without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
21. SEVERANCE
21.1. If any court or competent authority finds that any provision of this Service Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Service Agreement shall not be affected.
21.2. If any invalid, unenforceable or illegal provision of this Service Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable OR the Parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the Parties' original commercial intention.
22. NOTICES
22.1. Any notice or other communication required to be given to a Party under or in connection with this Service Agreement shall be in writing and shall be delivered by next working day delivery service providing proof of postage, at its registered office (if a company) or (in any other case) its principal place of business, or sent by return receipt email to the individuals detailed below.
22.2. Any notice or communication shall be deemed to be received on signature of a delivery receipt, or if sent by return receipt email, at 9.00 am on the next Business Day after transmission.
22.3. Notices shall be sent to the following:
To PayConstruct:
Address: its registered office address for the time being.
Email: concierge@PayConstruct.com
To CLIENT:
Address: its address used at the time of registration.
Email: its email address used at the time registration.
22.4. This Clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
23. OTHER MATTERS
23.1. Indemnification: Each Party hereby indemnifies each other Party against any and all loss or damage that might be incurred by any Party related to the Transactions contemplated in this Service Agreement, except in the case of wilful misconduct by a Party.
24. GOVERNING LAW AND JURISDICTION
24.1. This Service Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales.
24.2. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Service Agreement or its subject matter or formation (including non-contractual disputes or claims).
25. ENTIRE AGREEMENT
25.1. This Service Agreement and any documents expressly referred to in it constitute the whole agreement between us and supersedes any pervious discussions, correspondence, arrangements or understandings between us.
25.2. This Service Agreement may be provided to you in English or any other language that we support. For the avoidance of doubt, any non-English version of this Agreement is provided for translation purposes only. In the event that any inconsistency arises between the English and non-English versions of the Agreement, the English version of the Agreement shall prevail.
26. AMENDMENTS
26.1. We reserve the right to amend this Service Agreement at any time and for whatever reason it may deem proper, and any such amendment shall be binding upon notice to you by publication or other means of communication, electronic or otherwise. This is unless you object to those amendments by manifesting the intention to terminate your agreement in writing within five (5) days from notice of the amendments. Your failure to notify us about this intention to terminate your membership as provided, and your continued use of the Service, or both, shall be taken as your conclusive acceptance of the amendments.
SCHEDULE 1
NON-DISCLOSURE, NON-CIRCUMVENTION AND CONFIDENTIALITY
The Parties further agree as follows:
1. Non-Disclosure
1.1 All information, both explicit and implicit, relating to the Transaction forms the Confidential Information. “Confidential Information” means any information or details howsoever concerning the Transactions and includes the contact details (including the identities) (collectively the “Contact Details”) of any parties relating to the Transactions. Confidential Information and contact details includes information or details which are provided by one Party (the “Disclosing Party”) to the other Parties (the “Receiving Parties”), including the intellectual property/marketing material produced by and disseminated by the Disclosing Party. Confidential Information may be provided or obtained orally, in writing, visually, or stored or communicated to the Receiving Parties by way of facsimile transmission, email, computer storage media or by any other means but excluding information or details:
(a) which are in the public domain at the date hereof;
(b) which are subsequently made known lawfully by any third party not connected with nor bound by any obligation of confidence to the Parties or their respective owners, employees, officers or advisors;
(c) which were lawfully in the possession of the Receiving Parties prior to the date hereof and is or becomes free from any restriction on its subsequent disclosure or use by the Receiving Parties;
(d) which subsequently pass into the public domain other than by reason of breach of the terms hereof; or
(e) which is required to be disclosed, retained or maintained by law or any regulatory or government authority.
1.2 The Receiving Parties hereby covenant that any Confidential Information provided by the Disclosing Party for purposes of the Transactions will be used solely for that purpose and will not be passed on to any other third parties other than those approved by the Disclosing Party in writing and even then only when those third parties are signed up to an NDA/NCA with the Disclosing Party.
2. Confidentiality
2.1 The Receiving Parties hereby warrant that with respect to the Confidential Information that they will take all reasonably necessary steps to ensure that:
(a) at all times hereafter keep secret and confidential the Confidential Information so supplied by the Disclosing Party;
(b) the Confidential Information is protected with security measures and a degree of care that the Disclosing Party would reasonably apply to its own confidential information;
(c) no copies in any form of the Confidential Information shall be made, or permitted or procured to be made except (i) for the purpose of supplying Confidential Information to persons to whom disclosure of Confidential Information is expressly permitted by this Service Agreement or (ii) with the prior written consent of the Disclosing Party (including but not necessarily limited to Contact Details to a third party);
(d) any Confidential Information is not to be used to obtain a commercial, trading or other advantage with direct relation to a proposed Transaction, nor any other commercial activity utilising and attempting to profit from the Confidential Information in the future without the explicit written agreement of the Disclosing Party;
(e) any written or oral announcement or disclosure (other than as permitted herein) of the Confidential Information is not made;
(f) whether or not any Transactions proceed, the Confidential Information is not disclosed to any third party (other than those agreed in writing between by the Disclosing Party; and
(g) any other party to whom disclosure of Confidential Information is permitted to be made by this Service Agreement agrees before disclosure to be bound by the terms of this Service Agreement as if they were parties hereto.
3. Non-Circumvention
(a) The Receiving Parties warrants that they will not deal directly with any party introduced by the Disclosing Party referred to in the Contact Details other than by mutually agreed commercial terms to be agreed from time to time and unless a Party can prove that they have been dealing with the introduced party prior to the introduction by the other party related to a transaction of a similar nature to that introduced by the other party.
(b) In case of circumvention after breach of this Service Agreement, or of a Receiving Party attempting to or actually profiting commercially from dealing commercially with any of the parties in the Contact Details, such Receiving Party warrants that they shall be liable for and shall indemnify the Disclosing Party (as appropriate) for any loss, liability, costs (including reasonable legal costs), damages or expenses arising from or in connection with, whether directly or indirectly, any such circumvention by such Receiving Party, including but not limited to a sum equivalent to any fee, commission, profit or other sum that the Disclosing Party would have reasonably and ordinarily realised in line with its established business practices in place from time to time, but for the breach of this provision by such Receiving Party.
4. If any Party commences legal proceedings against another Party to interpret or enforce the terms of this Service Agreement, the prevailing Party will be entitled to recover court costs and reasonable legal fees on the highest allowable tariff and scale of fees.
5. The Receiving Parties accept that any breach of this Service Agreement could cause injury to the Disclosing Party and that monetary damages may not be an adequate remedy.
6. In the event of a breach or threatened breach by a Receiving Party, the Disclosing Party shall be entitled to injunctive relief in any court of competent jurisdiction and the Receiving Party shall reimburse the Disclosing Party for any costs, claims, demands or liabilities arising directly or indirectly out of a breach. Nothing contained in this Service Agreement shall be construed as prohibiting any Party from pursuing any other remedies available to it for a breach or threatened breach.
SCHEDULE 2
DEFINITIONS AND INTERPRETATION
The Parties further agree as follows:
1. The following definitions shall apply under this Service Agreement:
1.1. Advisory Fee - shall mean the advisory fee to be paid by CLIENT to PayConstruct related to provision of the Advisory Services for each Transaction, as detailed in Section 5 of the Service Agreement. The Advisory Fee to be paid by CLIENT to PayConstruct shall be agreed on a Transaction by Transaction basis and shall be equal to a margin percentage applied to the Applicable Base Rate in determining the Settlement Amount.
1.2. Applicable Base Rate - shall be the relevant intermarket bank rate published on the day of the Trade, as agreed otherwise between PayConstruct and CLIENT.
1.3. Available Local Funds - shall mean the total amount in local funds available to CLIENT, related to any specific Transaction.
1.4. PayConstruct Account - shall mean the PayConstruct Account as specified in the PayConstruct Account Details.
1.5. PayConstruct Account Details - shall mean the PayConstruct Account specified by the details below, which shall be provided by PayConstruct to CLIENT on a Transaction by Transaction basis in accordance with the process stipulated in Clause 5.5 of the Service Agreement.
1.5.1. Account number
1.5.2. Name of account holder
1.5.3. Address of account holder
1.5.4. Beneficiary bank name
1.5.5. Beneficiary bank address
1.5.6. Beneficiary SWIFT Code / BIC
1.5.7. Intermediary bank name (if applicable)
1.5.8. Intermediary bank address (if applicable)
1.5.9. Intermediary SWIFT Code / BIC (if applicable)
1.5.10. Correspondent bank name (if applicable)
1.5.11. Correspondent bank address (if applicable)
1.5.12. Correspondent SWIFT Code / BIC (if applicable)
1.6. Business Day - a day other than a Saturday, Sunday or public holiday in United Kingdom, Canada, China, or the country of CLIENT’s domicile, when banks in such jurisdictions are open for business.
1.7. Business Hours - the period from 08:00 to 17:00 GMT on any Business Day.
1.8. Certified Copies - shall mean copies of original documents that have been certified as true original copies by any of the following a Lawyer, an Accountant, a Bank Official, a Notary, or an Officer of an Embassy or Consulate. Notwithstanding the foregoing, the individual certifying documents may not be an employee or a relation.
1.9. Company Liaison Officer - shall mean the appointed representative of CLIENT related to the process detailed in Clause 5.5 of the Service Agreement, which may change from time to time at CLIENT’s discretion.
1.10. Confidential Information - as defined in Clause 1.1 of Schedule 1 attached hereto.
1.11. Electronic Recorded Communication - shall mean electronic methods of communication as agreed to between the Parties, which shall be modified from time to time. Upon execution of this Service Agreement, the Parties agree that the following methods of Electronic Recorded Communication shall be acceptable: email, instant messaging and text messaging (SMS).
1.12. Effective Date - shall be upon execution of this Service Agreement by the Parties.
1.13. Insolvency Event –
1.13.1. any distress, execution or other legal process is levied or enforced upon any property of a Party; or
1.13.2. any action is taken against a Party with a view to it being declared en désastre;
1.13.3. saisie proceedings are commenced against a Party or a preliminary vesting order is granted against the property of a Party;
1.13.4. a resolution is passed to wind up a Party or an application is presented to a court to wind up a Party;
1.13.5. negotiations are commenced with one or more of a Party’s creditors with a view to the general readjustment or rescheduling of indebtedness or a general assignment is made of its assets for the benefit of its creditors;
1.13.6. an application is presented to a court for an administration order in respect of a Party;
1.13.7. a receiver or commissioner or similar officer is appointed in respect of a Party or its assets; or
1.13.8. some event of equivalent or analogous effect to those listed above occurs in any jurisdiction.
1.14. KYC Information - shall mean Certified Copies of the following documents:
1.14.1. Certificate of Incorporation;
1.14.2. Memorandum of Association;
1.14.3. Articles of Association;
1.14.4. either (i) Director Register and Shareholder Register, or (ii) latest Annual Review for the company;
1.14.5. Proof of Address for all directors and shareholders >25%; and
1.14.6. Passport copy for all directors and shareholders >25%.
1.15. Proof of Address - shall mean a utility bill (electricity, phone, water) that is not more than three (3) months’ old. Notwithstanding the foregoing, other forms of Proof of Address may be acceptable if agreed by the Parties.
1.16. Settlement Amount - shall mean the amount of the Settlement Currency to be settled on behalf of CLIENT in accordance with the Settlement Details, which shall be equal to the Available Local Currency converted to the Settlement Currency at a rate equal to the Applicable Base Rate plus the agreed margin percentage that is the Advisory Fee.
1.17. Settlement Currency - Shall mean the currency to be settled by PayConstruct on behalf of the CLIENT in accordance with the Settlement Details.
1.18. Settlement Details - shall mean the account to which CLIENT wishes to settle the funds related to any specific Transaction, as specified by the details below.
1.18.1. Account number
1.18.2. Name of account holder
1.18.3. Address of account holder
1.18.4. Beneficiary bank name
1.18.5. Beneficiary bank address
1.18.6. Beneficiary SWIFT Code / BIC
1.18.7. Intermediary bank name (if applicable)
1.18.8. Intermediary bank address (if applicable)
1.18.9. Intermediary SWIFT Code / BIC (if applicable)
1.18.10. Correspondent bank name (if applicable)
1.18.11. Correspondent bank address (if applicable)
1.18.12. Correspondent SWIFT Code / BIC (if applicable)
1.19. Term - this Service Agreement shall remain in full force and effect unless terminated by PayConstruct or CLIENT in accordance with Section 19 of this Service Agreement.
1.20. Termination - means any termination of this Service Agreement in accordance with Section 19 of this Service Agreement.
1.21. Transaction Reference Code - as defined in Clause 5.2 of the Service Agreement.
1.22. Transaction Request - as defined in Clause 5.1 of the Service Agreement.
1.23. Transactions - as defined in Recital B.
1.24. Transaction Terms - shall mean the key Transaction terms to be confirmed by PayConstruct with CLIENT related to each Transaction, including:
1.24.1. Applicable Base Rate
1.24.2. Available Local Currency
1.24.3. Settlement Currency
1.24.4. Settlement Amount
1.24.5. Settlement Details
1.24.6. Advisory Fee
2. Section, Clause and Schedule headings shall not affect the interpretation of this Service Agreement.
3. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
6. Unless the context otherwise requires, a reference to one gender shall include a reference to the other gender.
7. A reference to any Party shall include that Party's personal representatives, successors and permitted assigns.
8. A reference to a statute or statutory provision is a reference to it as amended, extended or re- enacted from time to time.
9. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
10. A reference to writing or to a written document includes e-mail.
11. Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
12. A reference to "this Service Agreement" or to any other agreement or document referred to in this Service Agreement is a reference to this Service Agreement or such other document or agreement as varied or novated (in each case, other than in breach of the provisions of this Service Agreement) from time to time.
13. References to Sections, Clauses and Schedules are to the sections, clauses and schedules of this Service Agreement.
14. Any words following the terms including, include, in particular 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.
15. "Holding Company" and "Subsidiary" shall have the meanings given to such expressions in Companies Law.