Nium Travel Card and Payment Services Agreement

Welcome to Nium!

This Nium Travel Card and Payment Services Agreement, any applicable Schedule(s), Annexures, Appendices, and any Fee Schedule(s) (together, this “Agreement”) sets out the terms and conditions under which the Client receives the Services (defined below) that may be offered by Nium from time to time.

In this Agreement, the “Client” is the entity, as described in the Fee Schedule, that is requesting access to the Services offered by Nium. If a person makes that request on behalf of the Client, that person asserts that they are authorized and empowered to make the request on behalf of the Client. “Nium” is the relevant Nium entity described in the Fee Schedule (defined below) that is providing the Services to the Client in the applicable jurisdiction(s) set out in Appendix B. The Client and Nium are each a “Party,” and together, the “Parties”.

The Client (and where applicable, the Platform Provider on the Client’s behalf) will access and use Services, including the Nium Card(s) offered by Nium strictly in accordance with the terms of this Agreement.

This Agreement consists of the following components:

1. The General Terms;
2. The Definitions set out in Appendix A;
3. The International Jurisdiction Additional Terms and Conditions set out in Appendix B as it applies to the Client;
4. The Nium Travel Card and Payment Services Agreement - Fee Schedule separately entered into between the Client and Nium (“Fee Schedule”);
5. The Nium Airline Payment Terms and Conditions as it applies to the Client; and
6. Any other agreements, policies, or documents expressly referenced in this Agreement.

GENERAL TERMS

1. 1. General.

   1. Definitions. Capitalized terms in this Agreement not defined inline are defined in Appendix A.
   2. Interpretation. In the interpretation of this Agreement, the following provisions apply unless the context requires otherwise:
      1. headings are inserted for convenience only and do not affect the interpretation of this Agreement.
      2. a reference in this Agreement to any law, legislation or legislative provision includes any statutory modification, amendment or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision.
      3. a reference to a section, part, schedule or attachment is a reference to a section, part, schedule or attachment of or to this Agreement.
      4. a word which denotes the singular denotes the plural, a word which denotes the plural denotes the singular, and a reference to any gender denotes the other genders.
      5. unless the context indicates otherwise, a reference in this Agreement to “person” is deemed to include a natural person, corporation, company, firm, partnership, limited partnership, limited liability company or limited liability partnership or other similar organization.
      6. references to the word ‘include’ or ‘including’ are to be construed without limitation.
      7. in the event of any inconsistency between these terms and conditions and any Schedule, Annexure or Appendix, the provisions of such Schedule, Annexure or Appendix will prevail to the extent of such inconsistency.
   3. Precedence of Terms. If any terms in any components of this Agreement conflict, then unless terms of lower precedence expressly state to the contrary, the order of precedence is: (1) International Jurisdiction Additional Terms and Conditions (Appendix B); (2) the Nium Airline Payment Terms and Conditions; (3) these General Terms; (4) all other components; and (5) any other agreements or documents expressly referenced in this Agreement.
   4. Please read this Agreement carefully. This Agreement sets out the terms and conditions on which Nium provides the Services to the Client, the Client’s obligations in respect of the Services, how the Client should use the Services and other important information.

2. 2. Term of Agreement.

   1. Term. This Agreement comes into force on the Effective Date and shall continue until termination of this Agreement in accordance with Section 22 of this Agreement.

3. 3. Provision of the Services.

   1. Services General Terms. To be able to use the Services, the Client must register with Nium in accordance with Section 5 below. Nium agrees to make available, and the Client agrees to accept, the Services and Nium Card(s) in accordance with the terms and conditions of this Agreement. The Client further acknowledges and agrees that certain Nium Card products may not be available or applicable in all jurisdictions. Availability may depend on the Client’s location, regulatory requirements, and the jurisdiction in which the Client operates.
   2. Licensed Jurisdiction. The Services are offered and made available by Nium from its jurisdiction of incorporation (“Licensed Jurisdiction”) as set out in the applicable International Jurisdiction Additional Terms and Conditions under Appendix B. Nium does not intend to solicit, target or market the Services to any third party (including the Client) outside of its Licensed Jurisdiction. In countries where Nium is unable to supply the Services directly, Nium may sub-contract with an appropriately authorized financial institution (which may be a member within Nium’s own group of companies) to perform Nium’s obligations under the Agreement.
   3. Other Costs. Other than the provision of the Services, the Client shall be solely responsible, at its own cost, for the provision of all equipment, infrastructure, software, systems and facilities which are necessary to enable the Client to use the Services.
   4. Nium Approval. The Client agrees that notwithstanding the terms of this Agreement, some of the Services may not be applicable or available to the Client until Nium notifies or approves the Client.

4. 4. Integration and Platform Provider.

   1. API Use. Where the Client accesses the Services via API, the Client shall ensure that:
      1. any person acting on the Client’s behalf is properly authorized to do so and acquainted with the relevant API (and any subsequent changes to it) prior to use;
      2. the software and hardware the Client uses to access and use the API (1) complies with the connection requirements (as may be notified to the Client and amended by Nium from time to time) and (2) is free from any computer viruses or similar malicious code; and
      3. it will comply with all documentation, instructions, guidelines and requirements, as shared by Nium to the Client from time to time, relating to the Client’s use of the Services.
   2. Platform Provider. The Client’s use of the Services may be facilitated by an online platform or mobile software application (“Platform”) developed and operated solely by a third party whose system is integrated with Nium (“Platform Provider”). The Client’s access to and use of the Platform is subject to any separate terms and conditions governing the Platform Services. Unless otherwise expressly stated in this Agreement, the Client remains responsible for its own and its Platform Provider’s compliance with this Agreement. Throughout the Agreement, where the context provides, an obligation or responsibility on the Client also means the Platform Provider.
   3. Primary Point of Contact. Nium will be the primary point of contact unless the Client accesses the Services via a Platform Provider, in which case the Platform Provider will be the Client’s primary point of contact. Where the context provides throughout this Agreement, any access, enquiry or other means of engagement with Nium under this Agreement will be via the Platform Provider. If the Client has any questions or issues related to the Services, the Client should initially direct its queries to the Platform Provider (if applicable), by such means as the Platform Provider makes available to the Client (for example email, in-Platform chat or telephone).
   4. Restrictions on Authority of Platform Provider. Unless Nium notifies the Client otherwise in writing, the Platform Provider is neither (i) licensed to provide payment services nor authorized to act or perform any instruction on Nium’s behalf with respect to the Services, nor (ii) authorized to collect or receive funds on Nium’s behalf. The Platform Provider solely facilitates the transmission of information, communication and instructions to Nium on the Client’s behalf in connection with the Services.
   5. Funds provided through Platform Provider. If the Client chooses to provide Nium funds through the Platform Provider for the purpose of any Service, the Client confirms that it has provided its consent and authorization to the Platform Provider to receive and provide funds to Nium on its behalf. Nium has no responsibility or liability to the Client in connection with any funds provided to Nium through the Platform Provider unless and until Nium receives cleared funds from the Platform Provider.
   6. Authorization granted to Platform Provider. Where the Client accesses the Services via a Platform Provider, by applying for the Services, the Client confirms that it has provided its authorization and consent to the Platform Provider to do any of the following:
      1. collect and pass on to Nium all information, communications and instructions submitted by the Client, and any payments or other transaction instructions in connection with the Services. This includes information, communications, and instructions submitted by any means accepted by the Platform Provider, for example in-Platform chat, telephone or email. Nium will rely on and will be entitled to act on any such information, communications and instructions received by Nium from the Platform Provider, as if the information, communications and instructions were given to Nium directly by the Client. Please note that we are not required to check the accuracy of any such information, communications and/or instructions;
      2. receive all information, communications, and instructions provided by Nium in connection with the Services. Nium is entitled to rely on the Platform Provider to transmit such information, communications, and instructions. Nium is not required to confirm that such information, communications, or instructions have been transmitted to the Client. Nium will not be liable to the Client for any Losses caused to the Client if the Platform Provider subsequently fails to communicate or delays communicating such information, communications or instructions to the Client; and
      3. access, manage or deal with any account the Client maintains with Nium or use any information (whether received from Nium or not) in relation to such account, in such manner as mutually agreed between the Client and the Platform Provider. Nium is not responsible to the Client for any Losses suffered by the Client as a result of the Platform Provider performing such activities on the Client’s behalf.
         
         The authorization and consent in this Section 4(f) remain valid and binding on the Client for as long as the Client continues to use the Services (unless otherwise agreed in writing by the Parties).
   7. Platform Provider Other Services. Other than the Services, Nium is not responsible for any other products or services offered by the Platform Provider as part of their Platform Services. The Platform Services and any other services or products, including any links to third party apps or websites, are provided solely by the Platform Provider without Nium’s involvement, endorsement or recommendation and Nium has no liability to the Client arising out of the Client’s use of such third-party services.

5. 5. Access to Services and Nium Account.

   1. Nium Account. When the Client applies to register with Nium to use the Services, upon being approved by Nium, Nium will open a Nium Account for the Client.
   2. Client Access Codes. Nium will provide the Client with Access Codes to enable the Client to access and use the Services. The security and confidentiality of the Access Codes will at all times remain the sole responsibility of the Client. The Client will ensure that none of the Access Codes are disclosed to any person, except on a need-to-know basis to the Client’s Authorized Users. The Client will ensure that each Client Authorized User is aware of the requirement to keep the Access Codes secure and confidential and use it only for their intended purpose. The Client also undertakes that it shall implement and maintain adequate security measures to prevent the loss, theft, fraudulent or unauthorized access or use to the Services.
   3. Authorized Users and Representatives.
      1. If the Client grants an Authorized User access to and use of the Services, the Client must ensure that each of its Authorized Users complies with this Agreement. The Client shall be responsible for use of the Services by each of its Authorized Users (subject to Section 5(c)(iii)).
      2. If a Representative applies for and uses the Services on behalf of the Client, the Client confirms that its Representative has the appropriate authority to use the Services and enter into an agreement with Nium on behalf of the Client under this Agreement. Nium may require the Client to provide additional information or documentation demonstrating the Representative's authority to enter into this Agreement on behalf of the Client.
      3. Nium shall be entitled to rely upon the instructions provided by a Client’s Authorized Users until such time as the Client notifies Nium in writing that the Authorized User is no longer authorized, and Nium has a reasonable opportunity to act upon the notification. Nium may at its sole discretion and without liability, decline to accept or cancel the authority of any Authorized User nominated by the Client as an Authorized User (as applicable). The Client shall remain liable for any acts or omissions of its Authorized Users.
   4. Instruction Information. Prior to submitting an instruction to Nium, the Client must ensure that all information contained in the instruction (including any Load Instruction, as applicable) is complete and accurate. If the Client subsequently learns of any error in the instruction, the Client must immediately notify Nium in writing. Where Nium receives an instruction from a person using an Access Code, Nium may assume that the instruction has been given by an Authorized User. Nium is under no obligation to check the authenticity or accuracy of any instruction or data received, or assumed to be received, from an Authorized User, and will not be liable for any Losses incurred or suffered by the Client or any other person as a result of Nium acting on an instruction received, or assumed to be received, from a Client’s Authorized User.
   5. Screening Instructions. Nium has the right to screen any instructions received in respect of the Services. Nium may refuse to act on any instructions or requests received from the Client which Nium believes (i) may violate this Agreement or any other agreement the Client may have with Nium; (ii) is unauthorized, fraudulent or illegal; or (iii) exposes, or is likely to expose, Nium, the Client or others to unacceptable risk.
   6. Refusal of Instruction. Nium may refuse to act upon any instruction received from the Client, without any liability to the Client, if it believes that it:
      1. was unclear or the Client has provided Nium with incorrect details and information;
      2. was not given by or with the Client’s authority;
      3. might cause Nium or any of its partners to breach a legal or other duty;
      4. there is a legal requirement, court order or other order imposed upon Nium to refuse to act; or
      5. involves the use of the Services for an illegal purpose.
   7. Client Responsibilities. Subject to the provisions of Section 19, unless and until the Client notifies Client Support that the Client believes that an unauthorized third party is aware of the Access Codes or is able to access the Services by impersonating the Client:
      1. the Client will be responsible for any instruction which Nium receives and acts on, even if it was not given by the Client; and
      2. Nium will not be responsible for any unauthorized access to Confidential Information about the Client in its Nium Account.
   8. Disclaimer Regarding Nium Account. Nium will use reasonable efforts to prevent unauthorized access to the Client’s Nium Account. Notwithstanding the foregoing and except as required by Applicable Law, the Client agrees that it shall, at all times, be responsible for:
      1. compiling and retaining permanent records of all Payments and other data associated with the Client’s Nium Account and the Client’s use of the Services; and
      2. reconciling all transaction activity between the Client’s own (including the Platform Provider, where applicable) system and its Nium Account.
   9. Record Keeping.
      1. Where applicable, the Platform Provider, will provide the Client with records of transactions processed by Nium pursuant to the Services, via the Platform or by other means. The Client should monitor and keep a record of all transactions to verify such transaction activity and inform the Platform Provider if the Client notices any errors. The Client is responsible for checking the completeness and accuracy of all information, communications and instructions. Failure to provide complete information may cause delays, for example, Nium may be unable to process the Client’s instructions. If the Client notices any errors in any information, communication or instruction provided to Nium via the Platform Provider, the Client must correct it as soon as possible via the Platform or by contacting the Platform Provider. Nium will not be responsible, and will not compensate the Client, if it suffers any Losses as a result of incomplete or inaccurate information provided to Nium (whether directly by the Client or via the Platform Provider), or as a result of any delays caused by any errors, inaccuracies or late submissions of any instructions or requests. Where the Client has been notified by the Platform Provider to do so, the Client should also enable the Platform to send the Client notifications of all transactions involving the Services. Nium is not responsible for the accuracy of any records displayed or communicated to the Client by the Platform.
      2. Upon the termination of the Agreement for any reason, Nium shall have no obligation to the Client to store, retain, report, or otherwise provide any copies of, or access to, any records, documentation or other information in connection with the Client’s Nium Account.

6. 6. Identification, Verification and Eligibility.

   1. Nium will carry out client identification and verification checks. Nium is required by law to carry out certain checks on all Clients before it agrees to provide Services and to conduct regular reviews and ongoing monitoring of Clients for the duration of this Agreement. Nium may ask the Client to provide it with certain information and documentation to enable it to carry out its checks on the Client, for example to verify the Client’s identity, details of the Client and its Representatives and its financial standing, and Nium may need to ask third party service providers (for example credit reference agencies) to verify certain information about the Client. All information provided by the Client must be accurate in all respects, and the Client shall not omit or withhold any information which would make such information inaccurate in any respect. Failure to comply with Nium’s requests for information or documentation may result in the denial of the Client’s application for the Services or suspension or termination of the Services.
   2. Right to Refuse. Nium has the right to refuse to provide any Services at any time for any reason and without providing any reason for our refusal.
   3. Keeping Nium updated. It is very important to keep Nium updated about any changes to the information provided as part of the Client’s application for the Services and any information and documentation submitted to Nium. This includes information about any sanctions applicable to the Client, or any other circumstances which would make the Client’s use of the Services illegal. The Client must inform Nium promptly about any changes to its circumstances affecting its eligibility for the Services and/or your ability to comply with this Agreement.

7. 7. Client Bank Account.

   1. Account. Unless otherwise set out in this Agreement, the Client shall maintain in its name, a current account or other payment account (as applicable) at a duly authorized credit or financial institution (as advised by Nium to the Client from time to time) throughout the term of the Agreement and for such period as may be required thereafter for the purposes of any applicable provisions of the Agreement.
   2. Changes to Account. The Client shall notify Nium in writing in advance (and in any event, no less than ten (10) Business Days’ notice) of any changes proposed in respect of its current account or payment account, as applicable, (including, without limitation, the location of the branch at which such account is held) and shall not implement such changes without Nium’s prior written consent (such consent not to be unreasonably withheld or delayed). To the extent that there are any changes to the Client’s payment account details, the Client shall notify Nium in writing immediately, giving full details of such changes and the reasons for them.

8. 8. Nium Cards.

   1. General. The Nium Cards are virtual or electronic payment cards which may be used to pay for goods and/or services at participating Merchants that accept cards branded by the Card Scheme applicable to the Client’s Nium Card type (or such other Card Scheme that Nium may notify the Client from time to time).
   2. Use of Services and Nium Cards. By using the Services and Nium Cards the Client acknowledges, agrees and undertakes that:
      1. it has Sufficient Funds or Collateral (as applicable to the Client);
      2. all Payments made via the Nium Cards shall be for goods and/or services purchased by the Client only;
      3. the Nium Cards are for business use only and must not be used for personal purposes; and
      4. the Nium Cards are not used for any illegal purposes.
   3. Usage of Nium Cards. A Nium Card may only be used by the person to whom it was issued, and its Authorized Users (as applicable). The Nium Cards are non-transferable, and the Client acknowledges that it and its Authorized Users (as applicable) are responsible for taking all reasonable steps to keep all Access Codes linked to the Nium Card safe. The Client and any Authorized User shall not be permitted to disclose any Access Code to any other person except where necessary to complete a Payment. The Client shall always be responsible for ensuring that the Merchant, retailer or service provider is genuine and has taken adequate steps to safeguard the Client's information before proceeding with the Payment and supplying it with the Nium Card details. The Client acknowledges and agrees that specific terms and conditions may apply depending on its Nium Card type. The Client should refer to Appendix B for additional terms and conditions governing the usage and access to the Nium Card that is applicable to it.
   4. Acceptance of Nium Cards. Nium does not guarantee or undertake that a particular Merchant or any third party will accept a Payment made via the applicable Nium Card, nor will Nium procure that a particular Merchant or any other third party to accept such Payments. The Client shall be responsible for checking with the Merchant or third party before attempting the Payment through the applicable Nium Card.
   5. Expiry and Renewal of the Nium Card. The Client agrees that each applicable Nium Card will expire on the relevant Expiry Date(s), at which point the Nium Card will cease to function, and the Client will no longer be entitled to use the Nium Card. The Client may be able to request its Nium Card be renewed prior to its expiry or request a replacement Nium Card after the Expiry Date, made available via the Technology Service.

9. 9. Making Payments Using Nium Cards.

   1. Payments via a Nium Card. The Services enable Payments to be made to Merchants with the Nium Cards. A Payment will be regarded as authorized by the Client where the Services have been accessed using the correct Access Codes.
   2. Payment Initiation. Once the Client has initiated a Payment via the Nium Card, the Client will not be able to stop or revoke the Payment. The Client may in certain circumstances, be entitled to a Refund in accordance with Section 19(b). The Client acknowledges and agrees that specific terms and conditions may apply depending on its Nium Card type, and the manner in which payments are made. The Client should refer to Appendix B for additional terms and conditions governing the handling of payments for the Nium Card, as applicable.
   3. Liability for Purchased Goods and Services. Nium disclaims all liability and responsibility for the safety, legality, quality, or any other aspect of the goods and services purchased with the Nium Cards.
   4. Merchant Refunds. To the extent that a Merchant provides a refund to the Client for any reason, the Client acknowledges that it may take several days for the notification of the Refund and the funds itself to reach Nium and shall allow five (5) to ten (10) days from the date the refund was carried out for the Refund to be applied to the Client’s Nium Account.
   5. Deductions. On receipt of the Card Scheme’s authorization, Nium will deduct the value of the Payment from the Available Card Funds or the Client’s Nium Account (as applicable).
   6. Incomplete Payments. In certain circumstances, a Payment may be initiated but not fully completed. Where this happens, this may result in the value of the Payment being deducted from the Nium Card balance or the Client’s Nium Account (as applicable) and therefore those funds will become unavailable for use. Nium refers to this as “hanging authorization” or “block”. Where an authorization is not followed by a Payment transaction within the time frames specified by the Card Scheme, the funds will be returned to the Client (in a manner agreed between the Parties).
   7. Negative Balance. Under normal circumstances, if any Payment is attempted that exceeds the Available Card Funds or the balance in the Client’s Nium Account, it will be declined. In certain circumstances, a Payment may take a Nium Card into a negative balance. Where there is a negative balance on the Client’s Nium Card or Nium Account, Nium may require the Client to make up the shortfall and, until there are Sufficient Funds, Nium may restrict or suspend the use of any Nium Cards that have been issued and the Client’s use of the Services.

10. 10. Lost Security Details or Nium Cards.

    1. Notification to Nium. If the Client believes that any security device or Nium Card has been lost, stolen or compromised, or that the Client’s Nium Cards are being unlawfully accessed or improperly used, the Client shall notify Nium immediately (and in any event, no later than thirteen (13) months after the debit date of any unauthorized Payment) by contacting Client Support. The Client may be asked to provide information to verify its identity, and following satisfactory completion of the verification process, Nium shall immediately block and cancel any wrongfully accessed, or lost or stolen Nium Cards to prevent further unauthorized use.
    2. Investigation. After the Client has notified Nium of such compromise or misuse and provided that Nium is able to identify the Client and the Nium Card and satisfy certain security checks, Nium may block the Nium Card and issue replacement security details to the Client.
    3. Client Actions and Omissions. If Nium, in its sole discretion, believes the Client has acted fraudulently, or if Nium believes the Client or its Authorized Users (as applicable) have intentionally or with gross negligence failed to keep the Client’s Access Codes safe, the Client acknowledges that Nium will hold the Client liable for all Payments and any associated costs.

11. 11. Chargebacks.

    1. Chargeback Requests. Subject at all times to the Card Scheme rules, the Client may have the right to request a Chargeback. Chargebacks will be handled in accordance with the Chargeback Policy.
    2. Chargeback Process. At each stage of the Chargeback cycle and whether the Client’s Chargeback request has been successful or not, the Client agrees that it shall at all times be liable for:
       1. the Chargeback fees; and
       2. the costs of third parties, including Card Schemes, issuer and/or processors, on a pass-through basis.

12. 12. Redemption and Returns.

    1. Redemption Right. The Client has a right to Redeem the funds in its Nium Account at any time in whole or in part, provided that such funds have not been committed to Payments and/or are not required to cover any of the Client’s Fees, third party costs or fines or any other liabilities (whether actual or anticipated) under the terms and conditions of this Agreement or Applicable Law and subject to any right or obligation. The Client shall be charged a Redemption fee as set out in the Fee Schedule, which Nium will debit from the Client’s Nium Account before transferring the funds to the Client.
    2. Redemption Fees. Nium may charge a Redemption fee as set out in the Fee Schedule. Any such fees shall be deducted from the Client’s Nium Account prior to the return of funds, in accordance with Applicable Law.
    3. Exercise of Redemption Right. For the Client to exercise its right of redemption, it must contact Client Support no later than within six (6) years of the Nium Card expiry or the Client ceasing to use the Services (whichever occurs earlier).
    4. Return of Funds. All funds will be returned to the Client via the payment instrument that the Client used to fund the Load Instruction or the Client’s Nium Account (as applicable).
    5. Proof of Ownership. Nium reserves the right to see proof of the Client’s ownership of the payment instrument before transferring the funds to it. To enable Nium to comply with its legal and regulatory obligations, Nium may ask the Client to provide Nium with certain information before Nium can process the Client’s Redemption request.
    6. Redemption Requests. Nium will not complete the Client’s Redemption request if it believes the Client has provided false information, is concerned about the security of a Payment or there are not Sufficient Funds.

13. 13. Charges and Payment.

    1. Payment of Fees.
       1. In consideration of Nium entering into this Agreement and providing the Services to the Client, the Client shall pay the Fees as set out in the applicable Fee Schedule, and such Fees shall be exclusive of any applicable taxes (including value added tax, as applicable), which the Client shall remain liable for.
       2. If the Client pays Nium’s fees through the Platform Provider, the Client hereby consents and instructs Nium to invoice all fees that apply to the Services and any other amount due to Nium under this Agreement to the Platform Provider, and to receive all fees and any other amount due to Nium under this Agreement from the Platform Provider. If the Platform Provider fails to make payment to Nium within the due date stated in the invoice, Nium will deduct all outstanding fees in accordance with Section 13(a)(i) above.
    2. Currency and Conversion Fees. Where a Payment or transfer is initiated in a currency other than the currency that the Nium Card is denominated in, the Payment or transfer will be converted to the currency of the Nium Card by the Card Scheme at its standard current rate. Currency conversion fees may be charged by the Card Scheme when the Client makes a Payment (as may be deducted by the Client’s Virtual Spending Limit, where applicable to the Client’s Nium Card), and the Client agrees that these fees are not set by Nium.
    3. Offset. The payment of Fees shall be by means of offsetting the amount of the Fees against the amount of the Reward payable and/or either (i) the balance on the Client’s Nium Account; or (ii) the Collateral (as applicable to the Client), whether current or future. Nium reserves the right to invoice for any outstanding Fees at any time.
    4. Payment on Termination. All payments due to Nium and unpaid under this Agreement shall become due immediately on its termination.
    5. Platform Service and Third-Party Fees. If the Client pays fees through Nium in connection with the Platform Service and any other third party services provided on the Platform, the Client represents and agrees that it has provided its authorization and consent to the Platform Provider to instruct Nium to deduct any third-party fees from (i) the Client’s Nium Account, or (ii) funds provided to Nium as credit support for the Client’s obligations under this Agreement. Any dispute or Losses suffered by the Client that arise in connection with any third-party fees are solely between the Client and the Platform Provider.

14. 14. Minimum Volume Commitment.

    1. Minimum Volume Commitment. The Client acknowledges and agrees that it shall process at least the Minimum Volume Commitment in net settlement volume during each Commitment Period through the Services for the term of the Agreement. Where this obligation commences after the start of a Commitment Period, the Minimum Volume Commitment shall be pro-rated for the applicable period of the Commitment Period. For the avoidance of doubt, the Minimum Volume Commitment shall reset at the start of each Commitment Period.
    2. Minimum Volume Commitment Failure. If the Client does not achieve the Minimum Volume Commitment at the conclusion of a Commitment Period, it shall pay Nium the Minimum Volume Commitment Fee (or such pro-rated amount for the applicable period of the Commitment Period).
    3. Invoicing. Nium will issue an invoice within fifteen (15) days of the end of the Commitment Period (or such other period as notified by Nium to the Client from time to time), such invoice is to be paid by the Client within thirty (30) days in accordance with the invoice terms.
    4. Records. Upon the Client’s written request, Nium will provide a record of the Client’s net settlement volume at the end of a Commitment Period for that applicable Commitment Period.
    5. Termination. In the event that the Client or Nium has given notice to terminate the Agreement, the Minimum Volume Commitment shall cease to apply on the date the notice to terminate is given. The Client acknowledges and agrees that it will remain liable on a pro-rata basis for any Minimum Volume Commitment or shortfall of such Minimum Volume Commitment in accordance with the Fee Schedule, up until the date of the notice to terminate.
    6. Currency Conversion. Where any transaction requires the conversion of a supported currency into USD for the purposes of calculating the net settlement volume, Nium shall undertake the conversion at the prevailing exchange rate used by Nium at the time of conversion.

15. 15. Rewards.

    1. Payment of Rewards. A Reward is a share of revenue and/or Interchange actually received by Nium from the Card Schemes in relation to a Payment from time to time and is not a payment by Nium to the Client for any service, as further detailed in the Fee Schedule.
    2. Variation of Rates. Reward is based on the Interchange rates provided to Nium by Card Schemes and issuers from time to time. Should these rates vary, then Nium reserves the right to alter the Reward rates with immediate effect to the Client to maintain the current position regarding Interchange it receives.
    3. Calculation and Operation of Rewards. The Client acknowledges and agrees that Rewards: 
       1. shall be calculated on the Net Settlement Value as specified in the Fee Schedule;
       2. shall, in the first instance, be set off against any Fees owed by the Client to Nium; and
       3. shall be inclusive of applicable taxes.
        
    4. Payment Terms. A Reward may be paid to the Client’s (i) Nium Account; or (ii) bank account (as applicable), in the same currency of the Client’s Nium Account, on the 10th day of the month immediately following the end of the month in which the Reward was accrued unless it falls on a public holiday or a weekend in Malta, or in the Client’s or Nium’s jurisdiction, in which case it shall be made on the next Business Day.
     
16.  

    16. Confidential Information.

     
    1. Confidentiality Obligations. Each Party will, and will cause its Representatives to, keep confidential and not use or disclose the other Party’s Confidential Information except as permitted by this Agreement. Each Party agrees to limit access to the other Party’s Confidential Information to such of its personnel, agents, subcontractors, suppliers and/or consultants, if any, who have a need to access such information in accordance with the terms of this Agreement. Both Parties agree that all Confidential Information is proprietary to the disclosing Party and shall remain the sole property of the disclosing Party. The receiving Party will be liable to the disclosing Party for any unauthorized disclosure by its Representatives, or by the Representatives of its Affiliates.
    2. Exceptions. This Section is not breached by uses or disclosures of Confidential Information that are (i) authorized in writing by the disclosing Party prior to the receiving Party’s use or disclosure; (ii) made to the receiving Party’s Affiliates, banking partners, service providers, subcontractors, or other third parties to the extent reasonably necessary for the provision, operation, or support of the Services under this Agreement, provided that such parties are bound by confidentiality obligations no less protective than those in this Agreement; or (iii) required by Applicable Law, or by a Regulatory Authority  (“Compelled Disclosure”) provided that, such Party will use reasonable efforts to provide the other Party with prior notice (to the extent legally permitted) in order to afford the other Party an opportunity to seek a protective order or otherwise challenge the Compelled Disclosure. The non-disclosing Party is solely responsible for any expenses incurred in seeking to prevent a Compelled Disclosure. After provision of such legally permissible prior notice, the disclosing Party will not be liable if such Party complies with the disclosure after giving the other Party a reasonable amount of time to respond.
    3. Expiration or Termination of Agreement. Unless expressly permitted under this Agreement, on expiry or termination of this Agreement, at the written request of the disclosing Party, all Confidential Information must either be returned to the disclosing Party or destroyed by the receiving Party and its Representatives no later than fifteen (15) days after the written request; provided, however, that (i) the receiving Party and its Representatives, subject to the obligations of this Agreement, shall not be required to destroy electronic copies of any computer records or files containing the Confidential Information which have been created pursuant to automatic archiving or back-up procedures on secured central storage servers and which cannot reasonably be deleted, and (ii) the receiving Party may retain one (1) electronic copy of the Confidential Information (the “Retained Copy”), but the Retained Copy shall be accessed and used by the receiving Party solely for the purposes of (A) ensuring compliance with Applicable Law and record retention policies, and (B) defending or maintaining any litigation with respect to the terms of this Agreement. At the request of the disclosing Party, the receiving Party will furnish a certificate, signed by the receiving Party, certifying that any Confidential Information not returned to the disclosing Party has been returned or destroyed by the receiving Party in accordance with this Section 16.
    4. Survival. The obligations set forth under this Section 16 will survive termination of this Agreement.
     
17.  

    17. Intellectual Property Rights.

     
    1. Ownership and Reservations. Nium reserves all right, title, and interest in and to any materials produced by Nium including, without limitation, all of Nium’s Intellectual Property Rights. Nium shall own and retain all right, title and interest in the Services, Nium Technology and all other Intellectual Property Rights of Nium and shall own and retain all improvements thereon.  Other than the license granted during the term of this Agreement, as set forth in Section 17(b) below, the Client shall not acquire any rights, title, or interest, express or implied, to the Services, Nium Technology, or other Intellectual Property Rights of Nium, nor to any derivative works, modifications, enhancements, improvements, translations or other alterations thereto (“Nium Derivative Works”). To the extent any assignment is necessary to evidence the intent of this Section, the Client agrees to assign to Nium all of its right, title, and interest in and to such Nium Derivative Works, and any part thereof, and in and to all copyrights, patents and other proprietary rights they may have in such Nium Derivative Works.
    2. Access and Use. Nium grants the Client during the term of this Agreement a limited, non-exclusive, worldwide, royalty-free, non-transferable, non-sublicensable license to electronically access and use the Services (as applicable) solely in compliance with this Agreement. Except as expressly permitted by Applicable Law, the Client must not: (i) work around any of the technical limitations of the Services or enable functionality that is disabled or prohibited; (ii) reverse engineer or attempt to reverse engineer the Services; or (iii) perform or attempt to perform any actions that interfere with the normal operation of the Services or affect use of the Services by Nium’s other clients.
    3. Marketing Materials. The Client consents to Nium’s use of the Client’s name and logos in marketing materials, and Nium may disclose the relationship with the Client (i) in client/customer reference lists and sales presentation, and (ii) via public disclosures (including but not limited to social media sites or on Nium’s website). Nium and the Client may issue a mutually agreed press release on execution of the Fee Schedule.
     
18.  

    18. Warranties and Indemnities.

     
    1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that it has the power and capacity to enter into the Agreement and to perform its obligations under the Agreement.
    2. Applicable Law. Each Party warrants that it will at all times comply, and will ensure that its personnel comply, with respect to the performance of this Agreement and all Applicable Law.
    3. Nium Indemnity. Subject to Section 19 below, Nium shall, to the fullest extent permitted by Applicable Law, indemnify the Client against any and all Claims brought against the Client by a third party, and any and all Losses incurred in connection with such third-party Claims, based upon or arising out of the Services or Nium Technology infringing any intellectual property rights of any third party.
    4. Client Indemnity. The Client shall, to the fullest extent permitted by Applicable Law, indemnify Nium, its Affiliates, and Representatives (each a “Nium Party”), against any and all Claims brought against a Nium Party by a third party, and for any and all Losses incurred in connection with such third-party Claims, based upon or arising out of: 
       1. the Client’s breach of the terms of this Agreement;
       2. the misuse of the Services by the Client or any Authorized User;
       3. the Client’s gross negligence or intentional misconduct; or
       4. any request, instruction or information given by the Client.
        
    5. Card Scheme Fines. Without prejudice to Section 18(d) above, in the event that Nium becomes liable for any fines and/or interest charged by the Card Schemes or other third parties resulting from an unauthorized, insecure or fraudulent or any other use of the Nium Cards or Services in breach of this Agreement, the Client shall indemnify Nium and each Nium Party against any such fines and/or interest, on a full indemnity basis, to the extent they relate to or result from such use. Nothing in this Agreement shall give the Client any rights against the Card Schemes, their affiliates or any third party.
    6. Infringement Remedies. If Nium receives information about an infringement or misappropriation Claim related to the Services, Nium may in its discretion, and at no cost to Client: 
       1. modify the applicable Service so that it is no longer claimed to infringe or misappropriate the Intellectual Property Rights of a third party;
       2. obtain a license for Client’s continued use of the applicable Service in accordance with this Agreement; or
       3. terminate this Agreement, in whole or in part, with respect to the applicable Service upon thirty (30) days’ written notice to the Client.
        
    7. Exclusions. The indemnification obligations set forth in Section 18(c) above shall not apply if: 
       1. the allegation does not state with specificity that the Service is the basis of the Claim against the Client;
       2. a Claim against the Client arises from the use or combination of the Service or any part thereof with software, hardware, data, or processes not provided by Nium, if the Service or use thereof would not infringe without such combination;
       3. the alleged infringement arises from third-party materials or data;
       4. the alleged infringement arises from a modification of the materials other than by or on behalf of Nium;
       5. the alleged infringement arises from a failure to timely implement modifications, upgrades, replacements, or enhancements made available to the Client by or on behalf of Nium; or
       6. the Claim ultimately arises from Client’s breach of this Agreement or Client’s gross negligence or intentional misconduct.
        
     
19.  

    19. Limitation of Liability.

    1. General. This Section 19 sets out the entire liability of the Parties (including any liability for the acts or omissions of their Representatives) to each other in respect of: 
       1. any breach of the Agreement;
       2. any use (in whole or part) of the Services by the Client; and
       3. any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
        
    2. Refunds. In order to obtain a Refund (including a refund of all related Fees) of an unauthorized or incorrectly executed Payment from Nium, the Client must notify Nium without undue delay on becoming aware of any such Payment giving rise to a claim, subject to Sections 19(c) and 19(d) below.
    3. Refund Liability Carveouts. The Client shall not be eligible for a Refund in cases of: 
       1. non-execution of, defective execution of, or an incorrectly executed Payment, if Nium can prove that it sent or executed the Payment (as applicable) using the details the Client gave to Nium. In such cases, Nium will use reasonable efforts to try to recover the Payment and Nium may charge reasonable costs for doing so;
       2. an unauthorized payment, if the security details and device were lost or stolen or the Client failed to keep them safe or to take reasonable steps to prevent misuse or Nium reasonably suspects fraud on the Client’s part; or
       3. an incorrect or unauthorized payment, if the Client does not tell Nium within thirteen (13) months after the debit or transaction date (as applicable).
        
    4. Reversal of Refunds. Nium can take back Refunds (after giving the Client reasonable notice): 
       1. for incorrect payments, if Nium can show that it sent or executed the Payment (as applicable) using the details the Client provided to Nium; and
       2. for unauthorized Payments if: (1) Nium can prove that the Client acted fraudulently; or (2) Nium can prove that an unauthorized payment was made because the Client failed to keep its payment device safe or to take reasonable steps to prevent misuse.
        
    5. Client Acknowledgement. The Client acknowledges and agrees that: 
       1. the Services are subject to any constraints or limitations stipulated by Nium, any Card Scheme, Regulatory Authority or Applicable Law and where applicable, Nium’s continued authorization by the Card Schemes, Regulatory Authorities and Nium’s ability to provide crucial elements of the Services is dependent on and subject to their continued consent;
       2. Nium’s ability to provide the Services depends on the continued provision of essential components provided by third party suppliers including but not limited to providers of processing and issuing services; and
       3. in no event will Nium have any liability for any losses caused by: (1) the Platform, the Platform Provider or the Platform Services; and (2) any goods or services purchased or sold using any Services.
        
    6. Damages Waiver. Notwithstanding anything else contained in the Agreement, no Party shall be liable to the other for any loss of profits, opportunity, business, reputation, goodwill or contracts or for any indirect or consequential loss or damage whether arising from negligence, breach of contract or any other cause of action arising out of the subject matter of the Agreement.
    7. Liability Cap. Save as provided for in Section 19(i) where liability shall be unlimited as to amount, Nium’s total liability in any period of twelve (12) months for any damages and/or loss suffered by the Client under the Agreement shall not exceed a sum equal to the total Fees paid by the Client in the twelve (12) months (or any shorter time period if twelve (12) months has not elapsed) preceding the date on which the cause of action arose.
    8. Time Limit. The Client must notify Nium of their intention to make a Claim against Nium within 12 months from the date of the event giving rise to the Claim (or such longer minimum period prescribed by Applicable Law). If the Client fails to notify Nium within this time period, Nium will have no liability in respect of such event.
    9. Liability that Cannot be Excluded: Nothing in the Agreement shall limit or exclude: 
       1. a Party’s liability for (1) death or personal injury arising from its negligence, or (2) fraud or fraudulent misrepresentation; and
       2. the Client’s liability for any Settlement Liability or shortfall in Available Card Funds or Collateral (all as applicable to the Client’s Nium Card type), or the Client’s Nium Account provided that such Settlement Liability or shortfall is not the result of any wrongful act or omission of Nium.
        
    10. Warranty Disclaimer. The Services are provided on an “as is” basis. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement. In particular, and except as expressly stated in the Agreement, Nium does not: 
        1. make any representations or warranties, express or implied, with respect to merchantability, fitness for a particular purpose or non-infringement;
        2. warrant or guarantee that the Client will achieve any level of sales, revenue or profit; and
        3. warrant or guarantee that the Services will be uninterrupted or operate error-free, or that any errors, omissions or misplacements in any software will be corrected.
         
    11. Acknowledgement. Without prejudice to Section 19(i), no Party shall be liable to any other, whether in contract, tort (including for negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise for any: losses that are not reasonably foreseeable; or loss of profit; or loss of goodwill or reputation; or loss of business; or loss of business opportunity; or loss of anticipated saving; or loss or corruption of data or information; or special, indirect or consequential damage or loss of any kind whatsoever, in each case that arises under or in connection with the Agreement.
    12. Faulty Nium Cards. Where a Nium Card is faulty that is directly attributable to Nium, Nium’s liability shall be limited to the replacement of the Nium Card or, at Nium’s sole discretion and to the extent applicable to the Client’s Nium Card type, repayment to the Client of the Available Card Funds or the funds contained in the Nium Account.
    13. Continued Liability. The Client shall remain liable to Nium during any period of suspension and following termination of the Agreement for so long as the Client continues to have access to, or makes any use of, the Nium API, Nium Technology, the Services or any part thereof, including for any Fees, liabilities or obligations arising from such access or use.
20.  

    20. Complaints and Payment Disputes.

     
    1. Raising a Complaint. If the Client: 
       1. would like to raise a complaint; or
       2. believes that it did not authorize a particular Payment or that a Payment was incorrectly carried out,
          
          the Client must contact Client Support or the Platform Provider (as applicable) without undue delay, upon the Client being aware of the issue.
        
    2. Handling a Complaint. Once Nium has received the complaint, Nium shall: 
       1. investigate the Client’s complaint and make every possible effort to address all points raised in it as soon as practicable, and in any event, no later than fifteen (15) Business Days from receiving the Client’s complaint, and the Client acknowledges that in the exceptional circumstances, if Nium is unable to provide a full reply for reasons beyond its reasonable control, Nium will send the Client a holding reply explaining the reasons for the delay and specifying the deadline by which Nium will provide a full reply which will be no later than thirty-five (35) Business Days from receipt of the Client’s complaint;
       2. subject to Sections 19(c)(iii) and 19(d), in the case of unauthorized Payments, Refund the amount of an unauthorized Payment before the end of the Business Day after the Client notifies Nium or sooner to the extent that Nium is able to; or
       3. in the case of incorrectly executed Payments, do what Nium can to trace an incorrect Payment, and to the extent possible, inform the Client of the outcome.
        
    3. Complaints via Platform Provider. If the Client receives Services through a Platform Provider, then the Client must direct its complaints to the Platform Provider. The Platform Provider will communicate the complaint to Nium. If the complaint is not resolved to the Client's satisfaction, the Client can contact Nium directly and Nium will do its best to respond to the complaint as soon as possible or will inform the Client if more time or more information is required in order to investigate the complaint.
    4. Complaint Escalation. If the Client is not satisfied with Nium’s response, the Client has the right to refer its complaint to the applicable Regulatory Authority as set out in Appendix B.
     
21.  

    21. Suspension.

     
    1. Nium’s Right to Suspend. Nium may restrict or suspend the Client’s use of the Services or the Client’s access to the Nium Cards, in whole or in part at any time without notice or liability to the Client: 
       1. if Nium identifies or suspects that suspicious, fraudulent or illegal activities are being carried out in relation to the Client’s use of the Services;
       2. if Nium believes that the Client has not complied with the terms of this Agreement;
       3. the Client is insolvent, or it ceases to carry on business or in the event of exceptional circumstances which prohibit the normal operation of the Nium Cards or provision of the Services;
       4. where it is related to the security of the Client’s Nium Cards and/or the Nium Payments System or any of their security features;
       5. where the security features of the Services or Nium Cards have been compromised; or
       6. if the agreement between Nium and the Platform Provider has been suspended or terminated or the Client’s access to the platform is suspended or terminated by the Platform Provider.
          
          If the cause for suspension is capable of remedy and is not remedied within thirty (30) days, Nium may terminate this Agreement.
        
    2. Notice of Suspension. Unless it would be unlawful or impracticable for Nium to do so, or it would compromise Nium’s reasonable security interests, to the extent that Nium restricts or suspends the Client’s use of the Services and/or the Client’s access to the Nium Cards in accordance with Section 21(a) above, Nium will use reasonable efforts to notify the Client and its reasons for doing so, by sending an email to the email address the Client has provided to Nium. Where it is not possible to notify the Client before Nium restricts or suspends the Services and/or the Client’s use of the Nium Cards, Nium will notify the Client as soon as possible afterwards. Nium will lift the restriction and/or suspension as soon as practicable after the reasons for the suspension and/or restriction have ceased to exist, as determined by Nium in its sole discretion.
     
22.  

    22. Termination.

     
    1. Termination Without Cause by Either Party. Either Party may terminate this Agreement (in whole or in part) by giving the other Party at least thirty (30) days’ written notice.
    2. Termination for Cause by Either Party. Without prejudice to any other rights or remedies which either Party may have, either Party may terminate this Agreement (in whole or in part) with immediate effect upon written notice to the other Party if: 
       1. the other Party commits a material breach of any of the terms and conditions of this Agreement and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of that Party being notified in writing of the breach;
       2. an order is made or a resolution is passed (whether voluntary or not) for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction or Regulatory Authority to make a winding-up order in relation to the other party;
       3. an order is made for the appointment of an administrator (or other similar role as determined by the laws of the relevant Party) to manage the affairs, business and property of the other Party, or documents are filed with a court of competent jurisdiction or Regulatory Authority for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors;
       4. the other Party is unable to pay its debts and/or makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way;
       5. the other Party ceases, or threatens to cease, to trade; or
       6. the other Party takes, carries out or suffers any similar or analogous action as described in Section 22(b) above in any applicable jurisdiction.
        
    3. Effect of Termination. Termination of this Agreement shall not prejudice either of the Parties’ rights and remedies which have accrued as at termination.
    4. Termination Obligations. Upon termination of the Agreement, the Client shall immediately pay to Nium all amounts owed by the Client under the Agreement and Nium shall immediately pay to the Client all amounts owed to it under the Agreement. Following the deduction of any Fees, charges or other amounts lawfully due to Nium under this Agreement or the Fee Schedule (as applicable), Nium shall, return to the Client any remaining Collateral and/or funds in accordance with Applicable Law.
    5. Post-Termination Access and Continuing Obligations. Following termination of this Agreement, to the extent that Nium continues to provide the Client with access to its Nium Account, the Services, or functionality (including for the purpose of holding, managing, or returning any remaining balance), such access shall be deemed provision of the Services under this Agreement. During such period, the Client shall continue to be bound by, and shall comply with, all provisions of this Agreement that are applicable to such access and use. Such obligations shall continue until the earlier of (i) the date on which the Client no longer has access to any Nium Account or Services, and (ii) the completion of all actions required to return or otherwise deal with any remaining balance.
    6. Survival. Sections 10, 11, 12, 13, 16, 18, 19, 26, 30 and 31, together with any other Sections reasonably intended to survive termination, shall survive termination of this Agreement.
     
23.  

    23. Changes to Agreement and Services.

     
    1. Amendments to Agreement. Nium may modify all or any part of this Agreement at any time by posting a modified version of this Agreement (including any terms incorporated by reference into this Agreement) on the Nium website or by notifying the Client (by email or post). Unless otherwise required by Applicable Law or in accordance with Section 23(b) below, any amendment shall take effect on the date stated in Nium’s notice, or two (2) weeks after the date on which the notice of the amendment is deemed received by the Client (as applicable). Where applicable, the Client will not be able to change Platform Providers without prior written agreement from Nium.
    2. Changes with Immediate Effect. Notwithstanding the above, Nium may implement amendments to the Agreement with immediate effect where such changes are required or reasonably necessary in response to a change affecting Nium or where Nium reasonably believes that such changes will affect Nium: 
       1. to comply with any change in Applicable Law or requirement of a Regulatory Authority;
       2. to address or prevent security, compliance, or operational risks;
       3. to reflect developments in technology or Nium’s products or services that benefit the Client;
       4. to reflect changes in Nium’s costs or in market conditions; or
       5. to respond to other changes affecting Nium’s business, where it is fair and reasonable to do so, including for any reason that Nium cannot foresee.
        
    3. Client Objection. If the Client objects to any amendment, it may terminate this Agreement in accordance with Section 22 prior to the effective date of the change. The Client’s continued use of the Services after the effective date of any amendment shall constitute its acceptance of the amended Agreement.
    4. Client Responsibility. It is the Client’s responsibility to review Nium’s website regularly for notice of any amendments.
    5. Changes in Services. Nium may from time to time, make changes to the Services. If such changes lead to a material change in the Nium Technology affecting the Client, Nium will notify the Client as soon as reasonably practicable.
     
24.  

    24. Assignment and Subcontracting.

     
    1. Assignment by Client. The Client may not subcontract, assign, novate, charge, declare a trust over or transfer the benefit of all or part of this Agreement without the prior written consent of Nium.
    2. Assignment by Nium. Nium may, without prior consent or notice, novate or assign any or all of its rights and obligations under this Agreement to any: 
       1. of its Affiliates; or
       2. in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
        
    3. Subcontracting by Nium. Nium may subcontract its obligations under this Agreement to third parties without the Client’s prior written consent.
    4. Effect. The Agreement shall be binding upon the Parties and their successors and permitted assigns.
     
25.  

    25. Multiple Nium Entities Providing Services.

     
    1. Multiple Nium Entities. Where there is one or more Affiliates of Nium providing services to the Client or its Affiliates, each Affiliate of Nium will enter into a separate agreement with the Client to provide services not as a partner or jointly with Nium or the other Affiliates of Nium, and such Affiliate of Nium shall not be liable in connection with the Services provided by Nium, whether jointly or severally.
    2. Effect of Suspension or Termination. Any Affiliate of Nium or Affiliate of the Client may suspend or terminate any Service, in whole or in part, in accordance with the terms of the applicable agreement. Any suspension or termination shall affect only such portion of that agreement which relates to the Service under suspension or termination, and shall not suspend, terminate, affect, impair, invalidate or render unenforceable any provisions of this Agreement in connection with any other Services.
     
26.  

    26. Data Protection.

     
    1. Nium collects certain information about the users of the Services including personal data. For information regarding how Nium processes personal data, please see Nium’s Global Privacy Notice at www.nium.com/privacy/privacy-policy.
    2. Unless the Client has provided its explicit permission, personal data will not be used for marketing purposes by Nium or its commercial partners (unless the Client has independently provided its consent to them directly), nor will it be shared with third parties unconnected with the Card Schemes.
     
27.  

    27. Availability and Force Majeure.

     
    1. Availability and Service Levels. Nium shall use commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week, except for: 
       1. planned maintenance carried out during the maintenance windows specified in the then-current service levels (as published by Nium to the Client from time to time); and
       2. unscheduled maintenance, provided that Nium uses reasonable efforts to give the Client notice in accordance with the then-current service levels.
        
    2. Availability Disclaimer. The Client acknowledges that continuous availability of the Services cannot be guaranteed. In certain circumstances, such as serious technical issues, the Services may be temporarily unable to receive Load Instructions or complete Payments.
    3. Force Majeure. Nium will not be liable for any delay or failure to perform under this Agreement due to circumstances beyond Nium’s reasonable control, including acts of God, acts of government, Regulatory Authority, flood, fire, earthquakes, civil unrest, pandemics, epidemics, quarantines, acts of terror, strikes or other labor problems, regional shortage of adequate power or telecommunications or transportation, internet or other service disruptions involving hardware, software or power systems not within Nium’s possession or reasonable control, and denial of service attacks.
     
28.  

    28. Regulatory Information.

     
    1. The Client acknowledges and agrees that the regulatory information applicable to the Nium entity providing the Services to the Client under this Agreement is set out in Appendix B. The Client shall refer to Appendix B for all relevant details regarding the Nium entity’s registration, its regulatory status, and other jurisdiction-specific terms and disclosures.
     
29.  

    29. Notices.

     
    1. Where the Client accesses the Services via a Platform Provider, if the Client is to be notified of anything related to the Services, Nium will typically communicate with the Client through the Platform Provider. The Client should send all notices or communications via the Platform or contact the Platform Provider in the first instance.
    2. Subject to Section 29(a), all notices, requests, demands, or other communications under this Agreement (“Notices”) must be in writing and sent by email to the Party’s email address on the Fee Schedule (or any new email address that has been provided by the Party, by written Notice), and will be deemed to have been given on the date on which it has been sent.  In the event that the sender receives a machine-generated notification that the email was not received by the recipient, Notice may be given by personal delivery, certified mail, or reputable overnight or international delivery service to the Party’s address on the cover page of the Fee Schedule (or any new address that has been provided by the Party by written Notice) and shall be deemed to have been given (i) in the case of personal delivery, when received, (ii) if sent domestically, the next Business Day, or (iii) if sent internationally, five (5) Business Days after it is sent. For the purposes of this Section 29(b) where the Notice is being sent by a Platform Provider on the Client’s behalf, it will be deemed to have been sent on the date on which the Platform Provider sends it to Nium.
    3. Unless otherwise provided in this Agreement or by Applicable Law, all notices and communications between Nium and the Client will be in English.
     
30.  

    30. Governing Law and Jurisdiction.

     
    1. This Agreement shall be governed by and construed in accordance with the laws of the jurisdiction where Nium is incorporated, as set out in Appendix B, and the Parties submit to the exclusive jurisdiction of the courts of the Governing Venue as set out in Appendix B for any dispute which may arise out of or in connection with this Agreement.
     
31.  

    31. Miscellaneous.

     
    1. Severability. If any one or more of the provisions contained in this Agreement shall be invalid, illegal or unenforceable in any respect then it will be severed from the rest of this Agreement so that it is ineffective to the extent that it is invalid, illegal or unenforceable and the remaining provisions or part of this Agreement shall remain in full force and effect.
    2. Further Assurances. Each Party shall (at its own expense) promptly execute and deliver all such documents, and do all such things, or procure the execution of documents and doing of such things as are required to give full effect to this Agreement and the Payments contemplated by it.
    3. Waiver. The failure by either Party to enforce any provision of this Agreement or to exercise any right in respect thereto shall not be construed as constituting a waiver of such provision or right.
    4. Entire Agreement. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement. In particular, but without limitation to the generality of the foregoing, each Party warrants and represents that in entering into this Agreement it has not relied upon any statement of fact or opinion made by the other party, its officers, servants or agents, which has not been included expressly in this Agreement.
    5. Third Party Rights. Nothing in this Agreement is intended to confer a benefit on any person who is not a party to this Agreement, and no such person shall have any right to enforce any terms of this Agreement, provided that this Section 31(e) does not affect a right or remedy of a third party which exists or is available under Applicable Law.
    6. Specific Jurisdiction. To the extent that Services are provided from Australia, the EEA, Hong Kong, Singapore, and United Kingdom the Client shall refer to Appendix B for certain jurisdiction-specific terms and conditions.
     

APPENDIX A

DEFINITIONS

The following capitalized terms in the Agreement shall have the following definitions:

APPENDIX B

INTERNATIONAL JURISDICTIONS ADDITIONAL TERMS AND CONDITIONS

The table below specifies for each applicable jurisdiction (a) where the Services are provided; (b) the Nium entity that provides the Services and applicable regulatory information, (c) the governing law for this Agreement and the venue where any disputes may be brought.

Appendices B-1 to B-6 contain additional terms and conditions that shall only apply to the Client to the extent that the Services are being provided in the jurisdiction specified in the appendix.

Appendix B-1

Australia

1. Interpretation. 
   1. In the context of Nium providing the Services in Australia: 
      1. the Parties agree that the Agreement is supplemented and/or amended (as applicable) as set out in this Appendix B-1 (including any annexures); and
      2. in the event of any inconsistency or conflict between the provisions in this Appendix B-1 and the Agreement, the provisions in this Appendix shall prevail to the extent of the inconsistency.
       
   2. Any capitalized terms used in this Appendix B-1 shall have the meanings given to them in the Agreement (including Appendix A) unless otherwise defined as follows:
      
       

      “Nium Account”	means an account (or accounts as applicable) that is used to hold the Collateral, for transfers to and from Nium, reconciliation of Fees and Rewards, Return, and any other transfers and/or activity permitted under and in accordance with the terms and conditions of the Agreement and as further described in Section 35(d).
      “Nium Card(s)”	means the Virtual Charge Cards.
      “Supported Currency”	means AUD, GBP, EUR, and USD, or such other currencies as notified by Nium to the Client from time to time.

       
    
2. Amendments to the Agreement. 
   1. Making Payments Using Nium Cards. Section 9 of the General Terms to the Agreement is deleted in its entirety and replaced with the following new Section 9:
      
      “9. Making Payments Using Nium Cards.
       
      1. Payments via a Nium Card. The Services enable Payments to be made to Merchants with the Nium Cards. A Payment will be regarded as authorized by the Client where the Services have been accessed using the correct Access Codes.
      2. Payment Initiation. Once the Client has initiated a Payment via the Nium Card, the Client will not be able to stop or revoke the Payment. The Client may, in certain circumstances, be entitled to a Refund in accordance with Section 19. The Client acknowledges and agrees that specific terms and conditions may apply depending on its Nium Card type, and the manner in which payments are made. The Client should refer to Appendix B for additional terms and conditions governing the handling of payments for the Nium Card that is applicable to it.
      3. Incomplete Payments. In certain circumstances, a Payment may be initiated but not fully completed. Where this happens, this may result in the Virtual Spending Limit being reduced by the value of that Payment and therefore unavailable for use. Nium refers to this as “hanging authorization” or “block”. Where an authorization is not followed by a Payment transaction within the time frames specified by the Card Scheme, the Virtual Spending Limit will be corrected accordingly.
      4. Negative Balance. Under normal circumstances, if any Payment is attempted that exceeds the Virtual Spending Limit it will be declined. In certain circumstances, a Payment may take the Virtual Spending Limit into the negative balance. Where this occurs, Nium will require the Client to make up the shortfall in accordance with Section 32(b) and Section 32(c), and, until rectified, Nium may restrict or suspend the use of any Nium Cards that have been issued and the Client’s use of the Services.
      5. Insufficient Collateral. Nium shall not be obliged to complete any Payment if there is not sufficient Collateral in the Nium Account.
      6. Exceeded Limits. The Client acknowledges and agrees that: 
         1. in the event that any Payment would cause the Virtual Spending Limit or any single card spending limit to be exceeded: 
            1. Nium may, at its discretion, in the case of a single card spending limit being exceeded, recover the exceeded amount from the Collateral;
            2. the Client will, in the case of a single card spending limit being exceeded and where there is not sufficient Collateral to recover the exceeded amount from, replenish the Collateral with the exceeded amount immediately and in no event later than three (3) Business Days so that Nium can recover that amount from the Collateral;
            3. the Client will, in the case of the Virtual Spending Limit being exceeded, replenish the Collateral with the exceeded amount immediately and in no event later than three (3) Business Days so that Nium can recover that amount from the Collateral; and
            4. Nium may, at its discretion, stop any use of the relevant Nium Card(s) in which case Nium shall give the Client as much notice as is practicable prior to the suspension of the use of Nium Card(s) and notify the Client of what the Client may do to correct the problem and promptly restore the use of the Nium Card(s) when the corrective action has been taken.
             
         2. by facilitating Payments using Nium Cards, Nium shall not be deemed to have assumed any liability for the Client or any Merchant or in any manner absolved them from any liability that the Client or Merchant (as applicable) may have incurred in relation to the Payment.”
          
       
   2. Redemption and Returns. Section 12 of the General Terms to the Agreement is deleted in its entirety and replaced with the following new Section 12:
      
      “12. Return Procedure
       
      1. Return Right. The Client has a right to request a Return of the Collateral and/or funds in the Nium Account at any time in whole or in part, provided that such funds have not been committed to Payments and/or are not required to cover any of the Client’s Fees, third party costs or fines or any other liabilities (whether actual or anticipated) under the terms and conditions of this Agreement and subject to any right or obligation. The Client shall be charged a Return fee as set out in the Fee Schedule, which Nium will debit from the Collateral before transferring the remainder of the funds to the Client. For the avoidance of doubt, a Return is not a withdrawal from the Nium Account and is a request by the Client to Nium to make a payment to the Client in accordance with this Agreement.
      2. Return Fees. Nium may charge a Return fee as set out in the Fee Schedule. Any such fees shall be deducted from the Client’s Nium Account prior to the return of funds, in accordance with Applicable Law.
      3. Return of Funds. All funds will be returned to the Client via the payment instrument that the Client used to fund the Collateral. Proof of Ownership. Nium reserves the right to see proof of the Client’s ownership of the payment instrument before transferring the funds to it. To enable Nium to comply with its legal obligations, Nium may ask the Client to provide Nium with certain information before Nium can process the Client’s Return request.
      4. Return Requests. Nium will not complete the Client’s Return request if it believes the Client has provided false information or is concerned about the security of the payment instrument that the Client used to fund the Collateral or believes the Client has outstanding liabilities.”
       
   3. Virtual Charge Card Additional Terms. The following new Sections 32 to 36 are inserted immediately after the existing Section 31 of the General Terms to the Agreement:
      
      “32. Facility.
       
      1. Loan Facility. Subject to the terms and conditions of the Agreement, Nium shall make available to the Client a loan facility in an aggregate amount equal to the Virtual Spending Limit. The Client will be notified of the initial Virtual Spending Limit. Section 33 below details how the Client may vary its Virtual Spending Limit. The Client acknowledges that the loan facility provided can only be applied towards transactions made using the Nium Card.
      2. Reduction of Virtual Spending Limit. When a Payment is made using a Nium Card, the Client agrees that Nium will reduce the Virtual Spending Limit by the amount of the Payment (plus any applicable Fees, third party costs or other liabilities the Client is required to cover under this Agreement).
      3. Provision of Debt. All transactions made using the Nium Card(s) constitute a debt owed to Nium which is immediately repayable after any transaction. The Client agrees that Nium may deduct/set-off the amount of any transactions made using the Nium Card (inclusive of any Fees, third party costs or other liabilities the Client is required to cover under this Agreement) from the Collateral following Nium’s processing of any transaction(s).
      4. Shortfalls. Subject to Section 9(f), if the amount owing from the Client’s Nium Card transactions exceeds the Collateral, such shortfall represents a debt immediately due and payable to Nium and the Client shall transfer an amount equivalent to the shortfall to a bank account nominated by Nium on demand.
      5. Interest. If payment is not received immediately, Nium reserves the right to charge a late payment interest charge of 6% per annum, which will be applied to the outstanding balance and will continue to accrue daily until the outstanding balance is paid in full.
       

      33. Spending Limits.

      1. Virtual Spending Limit. The Client acknowledges that the Nium Card(s) are subject to: 
         1. an aggregate spending limit, being the Virtual Spending Limit, applicable to the Client;
         2. if set by the Client, a single card spending limit applicable to each Nium Card; and
         3. if applicable, transaction limits in accordance with Section 34 below.
            
            Nium will notify the Client of the initial Virtual Spending Limit applicable to the Client and, where set by the Client, the single card spending limit applicable to each Nium Card. The Client can check the Virtual Spending Limit via the Services.
          
      2. Variation of Virtual Spending Limit. The Client may request to vary its Virtual Spending Limit and/or the single spending limit of any Nium Card. The Client agrees that Nium may agree to such request for variation if the Client has provided sufficient funds as Collateral.

      34. Transaction Limits.

      1. Nium may, in its sole discretion, apply single transaction limits (meaning that the Client cannot spend more than a certain amount on any single transaction with a Nium Card) and/or day limits (meaning that the Client cannot spend more than a certain amount on a Nium Card in any single day).

      35. Collateral.

      1. General. As a condition for the use of any Nium Card, the Client agrees and undertakes to ensure that it has remitted the Collateral to Nium and maintains such Collateral and that the Client will pay all amounts owed by the Client to Nium under this Agreement from time to time, including but not limited to: 
         1. all amounts authorized under all Nium Cards issued to the Client or on the Client’s behalf;
         2. all outstanding fees; and
         3. any other amounts owed to Nium under this Agreement.
          
      2. Collateral Amount. The amount of Collateral provided to Nium shall be used to determine the initial and any varied Virtual Spending Limit assigned to the Client. Nium will notify the Client of: 
         1. the Collateral amount to be provided by the Client to Nium; and
         2. any variation to the Collateral amount, as may be required from time to time.
          
      3. Supported Currency. The Client may provide Nium the Collateral in a Supported Currency by: 
         1. transferring the funds to Nium via the Client’s bank account; or
         2. any other method as notified by Nium to the Client from time to time.
          
      4. Transfer of Title. Upon receipt of the Collateral to the Nium Account in cleared funds, the Client agrees that full legal and beneficial ownership of the Collateral will transfer to Nium absolutely and irrevocably. The Client acknowledges that, following such transfer, the Collateral will not be held on trust, in custody or as security for the Client’s obligations, and the Client will have no proprietary rights in the Collateral. Nium may deduct the Collateral and utilize the deducted amount towards repayment of any amount owed by the Client to Nium under this Agreement (whether such amount is present, future, actual, contingent or potential, liquidated or unliquidated and irrespective of the currency of its denomination). In this regard, the funds in the Nium Account (including any Collateral) may not be held separately from Nium’s own funds. If Nium were to become insolvent, the Client shall be regarded as a general unsecured creditor in respect of the funds in the Nium Account (including any Collateral) and/or Nium’s obligations under this Agreement and shall claim solely against the general assets of Nium.
      5. Returns. Notwithstanding Section 35(d) above, Nium agrees that the Client will have a contractual right to request return of the Collateral or part thereof pursuant to and subject to Section 12 of this Agreement. The Client acknowledges that a Return will not be allowed if the Client has any potential unsettled liabilities.
      6. Refunds and Rewards. If any Refund or Reward is applied to the Nium Account pursuant to this Agreement, this means the Collateral has been increased by the amount of the Refund or Reward.

      36. Monthly Transaction Statement.

      1. At the beginning of each month, Nium will make available to the Client a transaction statement which sets out all transactions made using the Nium Card(s) in the preceding month (“Monthly Transaction Statement”).”

Appendix B-2

European Economic Area (EEA)

1. Interpretation. 
   1. In the context of Nium providing the Services in the EEA: 
      1. the Parties agree that the Agreement is supplemented and/or amended (as applicable) as set out in this Appendix B-2 (including any annexures);
      2. in the event of any inconsistency or conflict between the provisions in this Appendix B-2 and the Agreement, the provisions in this Appendix shall prevail to the extent of the inconsistency; and
      3. in the event of a conflict between any provisions of this Agreement and any provisions of Annex 1 to Appendix B-2 of this Agreement, the provisions of the Annex 1 to Appendix B-2 shall prevail.
       
   2. Any capitalized terms used in this Appendix B-2 shall have the meanings given to them in the Agreement (including Appendix A) unless otherwise defined as follows: 
      
       

      “Large Enterprise”	means a person whose annual turnover and/or annual balance sheet total exceeds €2 million and which has at least ten (10) employees.
      “Nium Card(s)”	means either Virtual Cards or Balanceless Cards (as applicable).
      “Payment Services Regulations”	means Directive No. 1 issued by the Central Bank of Malta titled “The Provision and Use of Payment Services”.

       
    
2. Amendments to the Agreement. 
   1. Provision of the Services and Nium Card. Section 3 of the General Terms to the Agreement is amended to include the following new sub-sections immediately after Section 3(d):
      
      “e. EEA Large Enterprises. If the Client is based in the EEA and is a Large Enterprise, the Client:
       
      1. confirms that it is not a consumer or micro-enterprise within the meaning of the Payment Services Regulations;
      2. agrees that none of the provisions of Title III – ‘Transparency of conditions and information requirements for payment services’ of the Payment Services Regulations applies to this Agreement; and
      3. agrees that regulations 38(1), 40(3), 48, 50, 52, 53, 56, 64 and 65 of the Payment Services Regulations do not apply to this Agreement.
       
      f. Micro-Enterprise Clients. If the Client is a micro-enterprise, then Annex 1 (Terms Applicable to Micro-Enterprises) shall apply to the Client, as amended by Nium from time to time.
      
      g. Fund Segregation and Protection. The Client acknowledges and agrees that:
       
      1. Funds received into the Client’s Nium Account or issued on a Virtual Card, are held in accordance with article 10B of the Financial Institutions Act. Such funds remain the Client’s  property and are not available for Nium’s own use, except as permitted by Applicable Law;
      2. the Nium Account is not a personal bank or deposit account, and electronic money issued by Nium does not constitute a deposit. The Client will not earn any interest on the funds held in the Nium Account or on any Nium Cards;
      3. the Maltese Deposit Guarantee Scheme does not cover electronic money issued by or claims made in connection with the issuing of electronic money;
      4. Nium safeguards the Client’s funds using the segregation method. Nium shall safeguard all funds received into the Client’s Nium Account and/or in exchange for electronic money that has been issued and shall hold such relevant funds in one or more segregated bank accounts which Nium holds with one or more authorized credit institutions or other permitted third parties; or invest them in low-risk assets that have been approved by the Malta Financial Services Authority which are also kept in dedicated client accounts with financial institutions;
      5. safeguarding accounts may be pooled accounts holding funds for multiple clients but remain separate from Nium’s own funds;
      6. funds received by Nium for the Client will be safeguarded and allocated to the Client as soon as practicable and, in any event, by the end of the Business Day following receipt, in accordance with Applicable Law. The Client’s ability to use funds may be subject to the completion of safeguarding, reconciliation and operational processes, and applicable cut-off times. For the purposes of this sub-Section (vi), the end of Business Day means 16:00 CET on a day that is not a weekend or public holiday in the country where Nium is located;
      7. if Nium receives funds that cannot be immediately allocated to the Client, (for example due to missing or incorrect information), Nium will hold such funds in accordance with Applicable Law until it has identified the correct recipient; and
      8. in the event of Nium’s insolvency, an insolvency practitioner would handle the process and once any costs related to the insolvency are paid out, the Client will be paid from the pooled safeguarded accounts before anyone else, subject to any potential proportionate share of any shortfall, in accordance with applicable insolvency laws.”
       
   2. Nium Cards. Section 8 of the General Terms to the Agreement is amended to include the following new sub-sections immediately after Section 8(e):
      
      “f. Acknowledgement. The Client acknowledges that: 
      1. the Nium Cards are not credit cards nor are they linked to a bank account; and
      2. the Nium Cards are not cheque guarantee cards, charge cards, deposits and may not be used as evidence of identity;
       
      g. Available Card Funds and Spending Limits. The Client or Nium may apply limits, including maximum transaction limits on the Client’s Nium Account and/or the Nium Cards via the Services. The Client may check the balance of its Nium Account and/or the Available Card Funds via the Technology Service.
      
      h. Transfer of Unused Balance. At the Client’s request or on termination of the Agreement, Nium shall transfer any unused balance on a Virtual Card to the Client’s Nium Account free of charge.
      
      i. Transfer of Sufficient Funds. Prior to initiating a Payment, the Client must transfer Sufficient Funds to the Client’s Nium Account. Nium shall not be obliged to complete any relevant Load Instruction, Payment, or pay any Settlement Liability if the Client’s Nium Account does not have Sufficient Funds.
      
      j. Client Load Acknowledgments. The Client acknowledges and agrees that: 
      1. in the event that any Payment or Load Instruction would cause any limits which may be set by Nium to be exceeded, Nium may at its discretion stop any further Load or the use of the Nium Cards. Nium shall give the Client as much notice as is practicable prior to the imposition or increase of any limits or related suspension of the use of Nium Cards (as applicable) and notify the Client of what the Client may do to correct the problem and promptly restore the use of the Nium Card(s) when the corrective action has been taken; and
      2. by facilitating Payments using the Nium Cards, Nium shall not be deemed to have assumed any liability of the Client or any Merchant or in any manner absolved them from any liability they may have incurred in relation to the Payment.”
       
   3. Redemption and Returns. Section 12 of the General Terms to the Agreement is amended to include the following new sub-sections immediately after Section 12(f):
      
      “g. Nature of Transfers. Client acknowledges that any transfer of such funds between the Client and Nium, or to another financial institution for safeguarding or redemption and return purposes, shall not constitute a transfer of beneficial ownership and shall not give rise to any tax or duty liability under Applicable Law.”
      
      
   4. Loading Virtual Cards. The following new Section 32 of the General Terms to the Agreement is inserted immediately after the existing Section 31:
      
      “32. Loading Virtual Cards
      
       
      1. Load Instructions. Subject to the terms and conditions of this Agreement, upon the Client’s selection of the goods and/or services from the relevant Merchant and the Client’s Load Instruction, a Virtual Card with the required balance for that Payment shall be generated by Nium to pay the Merchant. Under the terms and conditions of the Agreement, (subject to the availability of Sufficient Funds) the Client hereby grants to Nium irrevocable instructions to initiate the issue, activation and allocation of funds to each Virtual Card (each a “Load”) when the Client submits the data related to the proposed Payment to Nium via the Technology Service.
      2. Handling of Funds. The funds corresponding to the balance in the Virtual Cards will be held by Nium in accordance with Section 3(g).
      3. Cancelling a Load Request. The Client may request the cancellation of any Load Instruction it has made by contacting Client Support provided the Payment has not yet been effected.”
       

Annex 1 to Appendix B-2

Terms applicable to micro-enterprises

1. Mandatory changes. 
   1. Changes. In place of Section 23(a) of the General Terms: Nium may amend this Agreement at any time by giving notice to the Client. The amendment will take effect on the date stated in the notice, which will be at least two (2) months after the Client receives it, unless the Client objects to the proposed amendment prior to that date.
   2. Termination. In place of Section 22(a) of the General Terms to the Agreement: 
      1. The Client may terminate this Agreement at any time without reason by giving at least one (1) month’s prior notice to Nium. Termination shall be free of charge except where this Agreement has been in force for less than six (6) months.
      2. Nium may terminate this Agreement at any time without reason by giving at least two (2) months’ prior notice to the Client.
       
    
2. Mandatory additional information for micro-enterprises. 
   1. How Nium is regulated. Nium Financial Services Malta Limited is authorized as an Electronic Money Institution by the Malta Financial Services Authority. To find out more about Nium, see the Malta Financial Services Authority financial services register: https://www.mfsa.mt/financial-services-register.
   2. While this Agreement is in force, Nium will provide the Client with a copy of this Agreement on request.
   3. Nium will make available to the Client through its Nium Account key information relating to all Payments and a transaction history at any time and such information may also be downloaded as a report which can be stored and reproduced in an unchanged manner.
   4. Any documentation Nium sends to the Client by email may be sent as an electronic attachment (for example, as a PDF). The Client should make sure that its electronic device(s) are set up to receive Nium’s communications (for example, they have the correct hardware, software, operating system and browser).
   5. If Nium suspects or becomes aware that the Client’s Nium Cards may be subject to fraud or security threats, Nium will contact the Client using the contact details Nium holds of the Client.
   6. If the Client is unhappy with any of Nium’s Services, the Client can contact Client Support in writing.
   7. Nium may apply spending limits on the Nium Cards (for example, the maximum amount on a Payment that the Client can make in one day), and Nium will tell the Client if it does so.
   8. The Fees Nium charges for the Services are set out in the Fee Schedule. However, other third parties might impose fees, charges or taxes.
   9. If the Client confirms a Payment on a non-Business Day (or after Nium’s cut off times (which Nium shall make available on its website)), Nium will process the Payment on the next Business Day.
   10. If the Merchant’s account is held in the EEA and is in pounds sterling (£), euro (€) or another EEA currency, the account provider (e.g. bank) will receive the money within two (2) working days after the Client asks Nium to send it. Otherwise, the account provider will receive the money within four (4) working days after the Client asks Nium to send the money.
   11. If the Merchant’s account provider is in the EEA and the account is in an EEA currency, the account provider is required by law to put the money into the Merchant’s account as soon as it receives it. Banking practices may vary if the Client sends money to a non-EEA currency account or to an account outside the EEA – for more information on when a payment will be credited to such an account, the Client can ask Nium or the Merchant’s account provider.
   12. If a Payment the Client asked Nium to make within the EEA does not arrive when it should have, the Client can ask Nium to contact the Merchant account provider and ask them to treat it as if it was made on time.
   13. The Merchant’s account provider may apply its own charges to the Payment.
   14. Unless Nium agrees otherwise, Nium will provide the Client with statements every month and free of charge, provided that there have been transactions on the Client’s Nium Account during the month. At any point in time, the Client may request to change the frequency of the issue of statements so that the Client receives these on a less frequent basis. Should the Client decide to change the frequency, the Client will be allowed to revert back to monthly statements at any time.
    
3. Mandatory changes in relation to payments for micro-enterprises.  
   1. Redemption Fees. Nium may only charge a Redemption fee if one of the following circumstances applies: 
      1. the Client is requesting Redemption before termination or expiry of this Agreement; or
      2. the Client cancels this Agreement before any agreed termination or expiry date.
       
   2. Improper execution. 
      1. If there is a defective or non-executed Payment transaction, Nium will without undue delay procure a Refund of the amount of a payment and any charges the Client has paid as a result.
      2. Nium will not be liable if the error was caused by the Merchant’s payment service provider, unless Nium is also that payment service provider.
      3. If a Payment goes to the wrong person, or is delayed, because the Client gave Nium the wrong details, Nium will not be responsible but will use reasonable efforts to try to recover the Payment. Nium may charge reasonable costs for doing so.
       
   3. Unauthorized payments. 
      1. If there is a Payment that the Client did not authorize, Nium will immediately, and not later than by the end of the following Business Day after noting or being notified of the Payment, procure a Refund of the Payment and any charges the Client has paid as a result, subject to Section 2.3.2 and 2.3.3 below.
      2. If the Client acted fraudulently, failed to use the Nium Card in line with this Agreement or failed to notify Nium of the loss, theft, misappropriation or unauthorized use of the Nium Cards, the Client will be liable for and bear all the losses relating to any unauthorized Payments that could not be stopped.
      3. The Client will be obliged to bear the losses relating to any unauthorized Payments, up to a maximum of €50, resulting from the use of a lost or stolen Nium Card or from the misappropriation of such Card. This shall only apply until the Client has informed Nium that any security credentials have been lost, stolen or could be misused. If the loss, theft or misappropriation of the Nium Card was not detectable to the Client prior to the payment, unless the Client has acted fraudulently, or the loss was caused by Nium’s actions or lack of action, Nium will not be liable for losses relating to an unauthorized Payment resulting from the use of a lost or stolen Nium Card or from the misappropriation of such Nium Card.
      4. The Client should without undue delay notify Nium if it becomes aware of the loss, theft or misuse of the Client’s Access Codes, log-in details or any device which the Client uses to access the Services.
      5. Nium will not procure a Refund if the Client fails to bring an unauthorized or incorrectly executed Payment to Nium’s attention without undue delay and in any case within thirteen (13) months of the date of the Payment.
      6. Nium shall be responsible for any loss suffered by the Client as a result of Nium breaking this Agreement. There are two exceptions to this rule: 
         1. Nium shall not be liable for losses or costs caused by circumstances beyond its reasonable control as described in Section 27(c) of this Agreement; and
         2. Nium shall not be liable for losses or costs where Applicable Law means that Nium had to break this Agreement.
          
       
   4. The Client may claim a Refund for a Payment that the Client authorized provided that: 
      1. the relevant authorization did not specify the exact amount when the Client consented to the Payment; and
      2. the amount of the Payment exceeded the amount that the Client could reasonably have expected it to be (taking into account the Client’s previous spending pattern on the Nium Card, this Agreement and the circumstances of the case).
       

      Such a Refund must be requested from Nium’s Client Support team within eight (8) weeks of the Payment. Nium may require the Client to provide Nium with evidence to substantiate its claim. The Refund shall be equal to the amount of the Payment. Any such Refund will not be subject to any fee.

Appendix B-3

Hong Kong (HK)

1. Interpretation. 
   1. In the context of the HK Services: 
      1. the Parties agree that the Agreement is supplemented and/or amended (as applicable) as set out in this Appendix B-3 (including any annexures); and
      2. in the event of any inconsistency or conflict between the provisions in this Appendix B-3 and the Agreement, the provisions in this Appendix shall prevail to the extent of the inconsistency.
       
   2. Any capitalized terms used in this Appendix B-3 shall have the meanings given to them in the Agreement (including Appendix A) unless otherwise defined as follows:
      
       

      “Nium Account”	means an account (or accounts as applicable) that is used to hold the Collateral, for transfers to and from Nium, reconciliation of Fees and Rewards, Return, and any other transfers and/or activity permitted under and in accordance with the terms and conditions of the Agreement and as further described in Section 35(d).
      “Nium Card(s)”	means the Virtual Charge Cards.
      “Supported Currency”	means HKD, GBP, EUR, and USD, or such other currencies as notified by Nium to the Client from time to time.

       
    
2. Amendments to the Agreement. 
   1. Making Payments Using Nium Cards. Section 9 of the General Terms to the Agreement is deleted in its entirety and replaced with the following new Section 9:
      
      “9. Making Payments Using Nium Cards.
      
       
      1. Payments via a Nium Card. The Services enable Payments to be made to Merchants with the Nium Cards. A Payment will be regarded as authorized by the Client where the Services have been accessed using the correct Access Codes.
      2. Payment Initiation. Once the Client has initiated a Payment via the Nium Card, the Client will not be able to stop or revoke the Payment. The Client may, in certain circumstances, be entitled to a Refund in accordance with Section 19. The Client acknowledges and agrees that specific terms and conditions may apply depending on its Nium Card type, and the manner in which payments are made. The Client should refer to Appendix B for additional terms and conditions governing the handling of payments for the Nium Card that is applicable to it.
      3. Incomplete Payments. In certain circumstances, a Payment may be initiated but not fully completed. Where this happens, this may result in the Virtual Spending Limit being reduced by the value of that Payment and therefore unavailable for use. Nium refers to this as a “hanging authorization” or “block”. Where an authorization is not followed by a Payment transaction within the time frames specified by the Card Scheme, the Virtual Spending Limit will be corrected accordingly.
      4. Negative Balance. Under normal circumstances, if any Payment is attempted that exceeds the Virtual Spending Limit it will be declined. In certain circumstances, a Payment may take the Virtual Spending Limit into the negative balance. Where this occurs, Nium will require the Client to make up the shortfall in accordance with Section 32(b) and Section 32(c), and, until rectified, Nium may restrict or suspend the use of any Nium Cards that have been issued and the Client’s use of the Services.
      5. Insufficient Collateral. Nium shall not be obliged to complete any Payment if there is not sufficient Collateral in the Nium Account.
      6. Exceeded Limits. The Client acknowledges and agrees that: 
         1. in the event that any Payment would cause the Virtual Spending Limit or any single card spending limit to be exceeded: 
            1. Nium may, at its discretion, in the case of a single card spending limit being exceeded, recover the exceeded amount from the Collateral;
            2. the Client will, in the case of a single card spending limit being exceeded and where there is not sufficient Collateral to recover the exceeded amount from, replenish the Collateral with the exceeded amount immediately and in no event later than three (3) Business Days so that Nium can recover that amount from the Collateral;
            3. the Client will, in the case of the Virtual Spending Limit being exceeded, replenish the Collateral with the exceeded amount immediately and in no event later than three (3) Business Days so that Nium can recover that amount from the Collateral; and
            4. Nium may, at its discretion, stop any use of the relevant Nium Card(s) in which case Nium shall give the Client as much notice as is practicable prior to the suspension of the use of Nium Card(s) and notify the Client of what the Client may do to correct the problem and promptly restore the use of the Nium Card(s) when the corrective action has been taken.
             
         2. by facilitating Payments using Nium Cards, Nium shall not be deemed to have assumed any liability for the Client or any Merchant or in any manner absolved them from any liability that the Client or Merchant (as applicable) may have incurred in relation to the Payment.”
          
       
   2. Redemption and Returns. Section 12 of the General Terms to the Agreement is deleted in its entirety and replaced with the following new Section 12:
      
      “12. Return Procedure
      
       
      1. Return Right. The Client has a right to request a Return of the Collateral and/or funds in the Nium Account at any time in whole or in part, provided that such funds have not been committed to Payments and/or are not required to cover any of the Client’s Fees, third party costs or fines or any other liabilities (whether actual or anticipated) under the terms and conditions of this Agreement and subject to any right or obligation. The Client shall be charged a Return fee as set out in the Fee Schedule, which Nium will debit from the Collateral before transferring the remainder of the funds to the Client. For the avoidance of doubt, a Return is not a withdrawal from the Nium Account and is a request by the Client to Nium to make a payment to the Client in accordance with this Agreement.
      2. Return Fees. Nium may charge a Return fee as set out in the Fee Schedule. Any such fees shall be deducted from the Client’s Nium Account prior to the return of funds, in accordance with Applicable Law.
      3. Return of Funds. All funds will be returned to the Client via the payment instrument that the Client used to fund the Collateral.
      4. Proof of Ownership. Nium reserves the right to see proof of the Client’s ownership of the payment instrument before transferring the funds to it. To enable Nium to comply with its legal obligations, Nium may ask the Client to provide Nium with certain information before Nium can process the Client’s Return request.
      5. Return Requests. Nium will not complete the Client’s Return request if it believes the Client has provided false information or is concerned about the security of the payment instrument that the Client used to fund the Collateral or believes the Client has outstanding liabilities.”
       
   3. Virtual Charge Card Additional Terms. The following new Sections 32 to 36 are inserted immediately after the existing Section 31 of the General Terms to the Agreement:
      
      “32. Facility.
       
      1. Loan Facility. Subject to the terms and conditions of the Agreement, Nium shall make available to the Client a loan facility in an aggregate amount equal to the Virtual Spending Limit. The Client will be notified of the initial Virtual Spending Limit. Section 33 below details how the Client may vary its Virtual Spending Limit. The Client acknowledges that the loan facility provided can only be applied towards transactions made using the Nium Card.
      2. Reduction of Virtual Spending Limit. When a Payment is made using a Nium Card, the Client agrees that Nium will reduce the Virtual Spending Limit by the amount of the Payment (plus any applicable Fees, third party costs or other liabilities the Client is required to cover under this Agreement).
      3. Provision of Debt. All transactions made using the Nium Card(s) constitute a debt owed to Nium which is immediately repayable after any transaction. The Client agrees that Nium may deduct/set-off the amount of any transactions made using the Nium Card (inclusive of any Fees, third party costs or other liabilities the Client is required to cover under this Agreement) from the Collateral following Nium’s processing of any transaction(s).
      4. Shortfalls. Subject to Section 9(f), if the amount owing from the Client’s Nium Card transactions exceeds the Collateral, such shortfall represents a debt immediately due and payable to Nium and the Client shall transfer an amount equivalent to the shortfall to a bank account nominated by Nium on demand.
      5. Interest. If payment is not received immediately, Nium reserves the right to charge a late payment interest charge of 6% per annum, which will be applied to the outstanding balance and will continue to accrue daily until the outstanding balance is paid in full.
       

      33. Spending Limits.

      1. Virtual Spending Limit. The Client acknowledges that the Nium Card(s) are subject to: 
         1. an aggregate spending limit, being the Virtual Spending Limit, applicable to the Client;
         2. if set by the Client, a single card spending limit applicable to each Nium Card; and
         3. if applicable, transaction limits in accordance with Section 34 below.
            
            Nium will notify the Client of the initial Virtual Spending Limit applicable to the Client and, where set by the Client, the single card spending limit applicable to each Nium Card. The Client can check the Virtual Spending Limit via the Services.
          
      2. Variation of Virtual Spending Limit. The Client may request to vary its Virtual Spending Limit and/or the single spending limit of any Nium Card. The Client agrees that Nium may agree to such request for variation if the Client has provided sufficient funds as Collateral.

      34. Transaction Limits.

      1. Nium may, in its sole discretion, apply single transaction limits (meaning that the Client cannot spend more than a certain amount on any single transaction with a Nium Card) and/or day limits (meaning that the Client cannot spend more than a certain amount on a Nium Card in any single day).

      35. Collateral.

      1. General. As a condition for the use of any Nium Card, the Client agrees and undertakes to ensure that it has remitted to Nium the “Collateral” and maintain such Collateral and that the Client will pay all amounts owed by the Client to Nium under this Agreement from time to time, including but not limited to: 
         1. all amounts authorized under all Nium Cards issued to the Client or on the Client’s behalf;
         2. all outstanding fees; and
         3. any other amounts owed to Nium under this Agreement.
          
      2. Collateral Amount. The amount of Collateral provided to Nium shall be used to determine the initial and any varied Virtual Spending Limit assigned to the Client. Nium will notify the Client of: 
         1. the Collateral amount to be provided by the Client to Nium; and
         2. any variation to the Collateral amount, as may be required from time to time.
          
      3. Supported Currency. The Client may provide Nium the Collateral in a Supported Currency by: 
         1. transferring Nium the funds via the Client’s bank account; or
         2. any other method as notified by Nium to the Client from time to time.
          
      4. Transfer of Title. Upon receipt of the Collateral to the Nium Account in cleared funds, the Client agrees that full legal and beneficial ownership of the Collateral will transfer to Nium absolutely and irrevocably. The Client acknowledges that, following such transfer, the Collateral will not be held on trust, in custody or as security for the Client’s obligations, and the Client will have no proprietary rights in the Collateral. Nium may deduct the Collateral and utilize the deducted amount towards repayment of any amount owed by the Client to Nium under this Agreement (whether such amount is present, future, actual, contingent or potential, liquidated or unliquidated and irrespective of the currency of its denomination). In this regard, the funds in the Nium Account (including any Collateral) may not be held separately from Nium’s own funds. If Nium were to become insolvent, the Client shall be regarded as a general unsecured creditor in respect of the funds in the Nium Account (including any Collateral) and/or Nium’s obligations under this Agreement and shall claim solely against the general assets of Nium.
      5. Returns. Notwithstanding Section 35(d) above, Nium agrees that the Client will have a contractual right to request return of the Collateral or part thereof pursuant to and subject to Section 12 of this Agreement. The Client acknowledges that a Return will not be allowed if the Client has any potential unsettled liabilities.
      6. Refunds and Rewards. If any Refund or Reward is applied to the Nium Account pursuant to this Agreement, this means the Collateral has been increased by the amount of the Refund or Reward.

      36. Monthly Transaction Statement.

      1. At the beginning of each month, Nium will make available to the Client a transaction statement which sets out all transactions made using the Nium Card(s) in the preceding month (“Monthly Transaction Statement”).”

Appendix B-4

Singapore (SG)

1. Interpretation. 
   1. In the context of the SG Services: 
      1. the Parties agree that the Agreement is supplemented and/or amended (as applicable) as set out in this Appendix B-4 (including any annexures); and
      2. in the event of any inconsistency or conflict between the provisions in this Appendix B-4 and the Agreement, the provisions in this Appendix shall prevail to the extent of the inconsistency.
       
   2. Any capitalized terms used in this Appendix B-4 shall have the meanings given to them in the Agreement (including Appendix A) unless otherwise defined as follows:
      
       

      “Nium Card(s)”

      means either the Virtual Cards or Balanceless Cards (as applicable).

       
    
3. Amendments to the Agreement. 
   1. Provision of the Services. Section 3 of the General Terms to the Agreement is amended to include the following new sub-sections immediately after Section 3(d):
      
      “e. Nium Account Acknowledgement. The Client acknowledges and agrees that:
      
       
      1. the Nium Account is not a personal bank or deposit account, and the Client will not earn any interest on the funds held in that account or on any Virtual Cards; and
      2. the funds in the Client’s Nium Account are held in one or more segregated bank accounts separately from Nium’s own funds, with a safeguarding institution appointed by Nium, in accordance with Applicable Law. All funds in dedicated customer segregated accounts are held on trust by Nium for its customers, including the Client. To the extent that Nium were to become insolvent, the Client will be able to make a claim for the funds in the Client’s Nium Account from the segregated accounts. The Client may not be able to recover the funds in its Nium Account if the safeguarding institution becomes insolvent.
       
      f. Notice for non-Singapore residents. Nium Pte. Ltd. is licensed by the Monetary Authority of Singapore to provide e-money issuance services. This does not mean that the Client will be able to recover all the money it paid to Nium Pte. Ltd. if Nium Pte. Ltd.’s business fails.”
   2. Nium Cards. Section 8 of the General Terms to the Agreement is amended to include the following new sub-sections immediately after Section 8(e):
      
      “f. Acknowledgement. The Client acknowledges that:
      
       
      1. the Nium Cards are not credit cards nor are they linked to a bank account; and
      2. the Nium Cards are not cheque guarantee cards, charge cards, deposits and may not be used as evidence of identity.
       
      g. Available Card Funds and Spending Limits. The Client or Nium may apply limits, including maximum transaction limits on the Client’s Nium Account and/or the Nium Cards via the Services. The Client may check the balance of the Client’s Nium Account and/or the Available Card Funds via the Technology Service.
      
      h. Transfer of Unused Balance. At the Client’s request or on termination of the Agreement, Nium shall transfer any unused balance on a Virtual Card to the Client’s Nium Account free of charge.
      
      i. Transfer of Sufficient Funds. Prior to initiating a Payment, there must be Sufficient Funds in the Client’s Nium Account. Nium shall not be obliged to complete any relevant Load Instruction, Payment, or pay any Settlement Liability if the Client’s Nium Account does not have Sufficient Funds.
      
      j. Client Load Acknowledgments. The Client acknowledges and agrees that: 
      1. in the event that any Payment or Load Instruction would cause any limits which may be set by Nium to be exceeded, Nium may at its discretion stop any further Load or the use of the Nium Cards.  Nium shall give the Client as much notice as is practicable prior to the imposition or increase of any limits or related suspension of the use of the Nium Cards (as applicable) and notify the Client of what the Client may do to correct the problem and promptly restore the use of the Nium Card(s) when the corrective action has been taken; and
      2. by facilitating Payments using the Nium Cards, Nium shall not be deemed to have assumed any liability of the Client or any Merchant or in any manner absolved the Client or the Merchant from any liability they may have incurred in relation to the Payment.”
       
   3. Loading Virtual Cards. The following new Section 32 of the General Terms to the Agreement is inserted immediately after the existing Section 31:
      
      “32. Loading Virtual Cards
      
       
      1. Subject to the terms and conditions of this Agreement, upon the Client’s selection of the goods and/or services from the relevant Merchant and the Client’s Load Instruction, a Virtual Card with the required balance for that Payment shall be generated by Nium to pay the Merchant. Under the terms and conditions of the Agreement, (subject to the availability of Sufficient Funds) the Client hereby grants to Nium irrevocable instructions to initiate the issue, activation and allocation of funds to each Virtual Card (each a “Load”) when the Client submits the data related to the proposed Payment to Nium via the Technology Service.
      2. Handling of Funds. The funds corresponding to the balance in the Virtual Cards will be held by Nium in accordance with Section 3(e) (as applicable).
      3. Cancelling a Load Request. The Client may request the cancellation of any Load Instruction it has made by contacting Client Support provided the Payment has not yet been effected.”
       

APPENDIX B-5

United Kingdom (UK)

1. Interpretation. 
   1. In the context of Nium providing the Services in the United Kingdom: 
      1. the Parties agree that the Agreement is supplemented and/or amended (as applicable) as set out in this Appendix B-5 (including any annexures);
      2. in the event of any inconsistency or conflict between the provisions in this Appendix B-5 and the Agreement, the provisions in this Appendix shall prevail to the extent of the inconsistency; and
      3. in the event of a conflict between any provisions of this Agreement and any provisions of Annex 1 to Appendix B-5 of this Agreement, the provisions of the Annex 1 to Appendix B-5 shall prevail.
       
   2. Any capitalized terms used in this Appendix B-5 shall have the meanings given to them in the Agreement (including Appendix A) unless otherwise defined as follows:
      
       

      “Large Charity”	means a charity as defined in the Payment Services Regulations whose annual income is greater than £1 million.
      “Large Enterprise”	means a person whose annual turnover and/or annual balance sheet total exceeds €2 million or sterling equivalent and which has at least ten (10) employees.
      “Nium Card(s)”	means either Virtual Cards or Balanceless Cards (as applicable).
      “Payment Services Regulations”	means the UK Payment Services Regulations 2017.

       
    
2. Service Provider. 
   1. In the context of Nium providing the Services in the United Kingdom: 
      1. Nium Solutions Limited provides the Technology Services, Nium Account and issues the UATP Token; and
      2. Nium Payments UK Limited is the issuer of the Nium Cards (excluding the UATP Token).
       
    
3. Amendments to the Agreement. 
   1. Provision of the Services. Section 3 of the General Terms to the Agreement is amended to include the following new sub-sections immediately after Section 3(d):
      
      “e. Large Enterprises. If the Client is a Large Enterprise or Large Charity, the Client:
      
       
      1. confirms that it is not a consumer, micro-enterprise or small charity within the meaning of the Payment Services Regulations;
      2. agrees that none of the provisions of Part 6 of the Payment Services Regulations applies to this Agreement; and
      3. agrees that regulations 66(1), 67(3), 67(4), 75, 77, 79, 80, 83, 91, 92 and 94 of the Payment Services Regulations do not apply to this Agreement.
       
      f. Micro-Enterprise Clients. If the Client is based in the UK and is a micro-enterprise, consumer, or charity, then Annex 1 to Appendix B-5 (Terms Applicable to Micro-Enterprises and Charities) shall apply to the Client, as amended by Nium from time to time.
      
      g. Funds Type and Protection. The Client acknowledges and agrees that:
      
       
      1. funds received into the Client’s Nium Account or issued on a Nium Card, are held as “relevant funds” in accordance with the Financial Conduct Authority Client Assets Sourcebook (CASS 15). Such funds remain the Client’s property and are not available for Nium’s own use, except as permitted by Applicable Law;
      2. the Nium Account is not a personal bank or deposit account, and electronic money issued by Nium on the Nium Card does not constitute a deposit. The Client will not earn any interest on the funds held in the Nium Account or on any Nium Cards;
      3. the UK Financial Services Compensation Scheme (and any other equivalent scheme in any other jurisdiction) does not apply to the funds in the Client’s Nium Account and any e-money on the Client’s Nium Card(s);
      4. Nium safeguards the Client’s funds using the segregation method. Nium shall safeguard all funds received into the Client’s Nium Account and/or in exchange for electronic money that has been issued and shall hold such relevant funds in one or more segregated bank accounts which Nium holds with one or more authorized credit institutions or other permitted third parties; or invest them in low-risk assets that have been approved by the Financial Conduct Authority, which are also kept in dedicated client accounts with financial institutions;
      5. safeguarding accounts may be pooled accounts holding funds for multiple clients but remain separate from Nium’s own funds;
      6. funds received by Nium for the Client will be safeguarded and allocated to the Client as soon as practicable and, in any event, by the end of the Business Day following receipt, in accordance with Applicable Law. The Client’s ability to use funds may be subject to the completion of safeguarding, reconciliation and operational processes, and applicable cut-off times. For the purpose of this sub-Section (vi), the end of Business Day means 16:00 (UK time or local time) on a day that is not a weekend or public holiday in the UK or in the country where Nium is located;
      7. if Nium receives funds that cannot be immediately allocated to the Client, (for example due to missing or incorrect information), Nium will hold such funds in accordance with Applicable Law until it has identified the correct recipient; and
      8. in the event of Nium’s insolvency, an insolvency practitioner would handle the process and once any costs related to the insolvency are paid out, the Client will be paid from the pooled safeguarded accounts before anyone else, subject to any potential proportionate share of any shortfall, in accordance with applicable insolvency laws.”
       
   2. Nium Cards. Section 8 of the General Terms to the Agreement is amended to include the following new sub-sections immediately after Section 8(e):
      
      “f. Acknowledgement. The Client acknowledges that:
      
       
      1. the Nium Cards are not credit cards nor are they linked to a bank account; and
      2. the Nium Cards are not cheque guarantee cards, charge cards, deposits and may not be used as evidence of identity;
       
      g. Available Card Funds and Spending Limits. The Client or Nium may apply limits, including maximum transaction limits on the Client’s Nium Account and/or the Nium Cards via the Services. The Client may check the balance of its Nium Account and/or the Available Card Funds via the Technology Service.
      
      h. Transfer of Sufficient Funds. Prior to initiating a Payment, the Client must transfer Sufficient Funds to the Client’s Nium Account. Nium shall not be obliged to complete any relevant Load Instruction, Payment, or pay any Settlement Liability if the Client’s Nium Account does not have Sufficient Funds.
      
      i. Load Instructions. Subject to the terms and conditions of this Agreement, upon the Client’s selection of the goods and/or services from the relevant Merchant and the Client’s Load Instruction, a Virtual Card with the required balance for that Payment shall be generated by Nium to pay the Merchant. Under the terms and conditions of the Agreement, (subject to the availability of Sufficient Funds) the Client hereby grants to Nium irrevocable instructions to initiate the issue, activation and allocation of funds to each Virtual Card (each a “Load”) when the Client submits the data related to the proposed Payment to Nium via the Technology Service.
      
      j. Handling of Funds. The funds corresponding to the balance in the Virtual Cards will be held by Nium in accordance with Section 3(g) of the Agreement.
      
      k. Cancelling a Load Request. The Client may request the cancellation of any Load Instruction it has made by contacting Client Support provided the Payment has not yet been effected.
      
      l. Load Instruction Acknowledgments. The Client acknowledges and agrees that:
      
       
      1. in the event that any Payment or Load Instruction would cause any limits which may be set by Nium to be exceeded, Nium may at its discretion stop any further Load or the use of the Nium Cards. Nium shall give the Client as much notice as is practicable prior to the imposition or increase of any limits or related suspension of the use of Nium Cards (as applicable) and notify the Client of what the Client may do to correct the problem and promptly restore the use of the Nium Card(s) when the corrective action has been taken; and
      2. by facilitating Payments using the Nium Cards, Nium shall not be deemed to have assumed any liability of the Client or any Merchant or in any manner absolved them from any liability they may have incurred in relation to the Payment.
       
      m. Transfer of Unused Balance. At the Client’s request or on termination of the Agreement, Nium shall transfer any unused balance on a Virtual Card to the Client’s Nium Account free of charge.”
   3. Redemption and Returns. Section 12 of the General Terms to the Agreement is amended to include the following new sub-sections immediately after Section 12(f):
      
      “g. Nature of Transfers. Client acknowledges that any transfer of such funds between the Client and Nium, or to another financial institution for safeguarding or redemption and return purposes, shall not constitute a transfer of beneficial ownership and shall not give rise to any tax or duty liability under Applicable Law.”

Annex 1 to Appendix B-5

Terms applicable to Micro-Enterprises and Charities

1. Mandatory changes 
   1. Changes. In place of Section 23(a) of the General Terms: Nium may amend this Agreement at any time by giving notice to the Client. The amendment will take effect on the date stated in the notice, which will be at least two (2) months after the Client receives it, unless the Client objects to the proposed amendment prior to that date.
   2. Termination. In place of Section 22(a) of the General Terms to the Agreement: 
      1. The Client may terminate this Agreement at any time without reason by giving at least one (1) month’s prior notice to Nium. Termination shall be free of charge except where this Agreement has been in force for less than six (6) months.
      2. Nium may terminate this Agreement at any time without reason by giving at least two (2) months’ prior notice to the Client.
       
   3. In the event of a conflict between the provisions of this Annex 1 and any other provisions of this Agreement, the provisions of this Annex 1 shall prevail.
    
2. Mandatory additional information for micro-enterprises and charities. 
   1. How Nium is regulated. Nium Solutions Limited with company number 09024600 is authorized as a payment institution by the Financial Conduct Authority, and Nium Payments UK Limited with company number 04072405 is authorized as an Electronic Money Institution by the UK Financial Conduct Authority. To find out more about Nium, see the Financial Services Register: https://register.fca.org.uk/ or call the Financial Conduct Authority on 0800 111 6768.
   2. While this Agreement is in force, Nium will provide the Client with a copy of this Agreement on request.
   3. Nium will make available to the Client through its Nium Account key information relating to all Payments and a transaction history at any time and such information may also be downloaded as a report which can be stored and reproduced in an unchanged manner.
   4. Any documentation Nium sends to the Client by email may be sent as an electronic attachment (for example, as a PDF). The Client should make sure that its electronic device(s) are set up to receive Nium’s communications (for example, they have the correct hardware, software, operating system and browser).
   5. If Nium suspects or becomes aware that the Client’s Nium Cards may be subject to fraud or security threats, Nium will contact the Client using the contact details Nium holds of the Client.
   6. If the Client is unhappy with any of Nium’s Services, the Client can contact Client Support in writing.
   7. Nium may apply spending limits on the Nium Cards (for example, the maximum amount on a Payment that the Client can make in one day), and Nium will tell the Client if it does so.
   8. The Fees Nium charges for the Services are set out in the Fee Schedule. However, other third parties might impose fees, charges or taxes.
   9. If the Client confirms a Payment on a non-Business Day (or after Nium’s cut off times (which Nium shall make available on its website)), Nium will process the Payment on the next Business Day.
   10. If the Merchant’s account is held in the UK or the EEA and is in pounds sterling (£), euro (€) or another EEA currency, the account provider (e.g. bank) will receive the money within two (2) working days after the Client asks Nium to send it. Otherwise, the account provider will receive the money within four (4) working days after the Client asks Nium to send the money.
   11. If the Merchant’s account provider is in the UK or the EEA and the account is in an EEA currency, the account provider is required by law to put the money into the Merchant’s account as soon as it receives it. Banking practices may vary if the Client sends money to a non-EEA currency account or to an account outside the EEA – for more information on when a payment will be credited to such an account, the Client can ask Nium or the Merchant’s account provider.
   12. If a Payment the Client asked Nium to make within the UK or the EEA does not arrive when it should have, the Client can ask Nium to contact the Merchant account provider and ask them to treat it as if it was made on time.
   13. The Merchant’s account provider may apply its own charges to the Payment.
   14. Unless Nium agrees otherwise, Nium will provide the Client with statements every month and free of charge, provided that there have been transactions on the Client’s Nium Account during the month. At any point in time, the Client may request to change the frequency of the issue of statements so that the Client receives these on a less frequent basis. Should the Client decide to change the frequency, the Client will be allowed to revert back to monthly statements at any time.
    
3. Mandatory changes in relation to payments for micro-enterprises and charities.  
   1. Redemption Fees. Nium may only charge a Redemption fee if one of the following circumstances applies: 
      1. the Client is requesting Redemption before termination or expiry of this Agreement; or
      2. the Client cancels this Agreement before any agreed termination or expiry date.
       
   2. Improper execution. 
      1. If there is a defective or non-executed Payment transaction, Nium will without undue delay procure a Refund of the amount of a payment and any charges the Client has paid as a result.
      2. Nium will not be liable if the error was caused by the Merchant’s payment service provider, unless Nium is also that payment service provider.
      3. If a Payment goes to the wrong person, or is delayed, because the Client gave Nium the wrong details, Nium will not be responsible but will use reasonable efforts to try to recover the Payment. Nium may charge reasonable costs for doing so.
       
   3. Unauthorized payments. 
      1. If there is a Payment that the Client did not authorize, Nium will immediately, and not later than by the end of the following Business Day after noting or being notified of the Payment, procure a Refund of the Payment and any charges the Client has paid as a result, subject to Section 2.3.2 and 2.3.3 below.
      2. If the Client acted fraudulently, failed to use the Nium Card in line with this Agreement or failed to notify Nium of the loss, theft, misappropriation or unauthorized use of the Nium Cards, the Client will be liable for and bear all the losses relating to any unauthorized Payments that could not be stopped.
      3. The Client will be obliged to bear the losses relating to any unauthorized Payments, up to a maximum of £35, resulting from the use of a lost or stolen Nium Card or from the misappropriation of such Card. This shall only apply until the Client has informed Nium that any security credentials have been lost, stolen or could be misused. If the loss, theft or misappropriation of the Nium Card was not detectable to the Client prior to the payment, unless the Client has acted fraudulently, or the loss was caused by Nium’s actions or lack of action, Nium will not be liable for losses relating to an unauthorized Payment resulting from the use of a lost or stolen Nium Card or from the misappropriation of such Nium Card.
      4. The Client should without undue delay notify Nium if it becomes aware of the loss, theft or misuse of the Client’s Access Codes, log-in details or any device which the Client uses to access the Services.
      5. Nium will not procure a Refund if the Client fails to bring an unauthorized or incorrectly executed Payment to Nium’s attention without undue delay and in any case within thirteen (13) months of the date of the Payment.
      6. Nium shall be responsible for any loss suffered by the Client as a result of Nium breaking this Agreement. There are two exceptions to this rule: 
         1. Nium shall not be liable for losses or costs caused by circumstances beyond its reasonable control as described in Section 27(c) of this Agreement; and
         2. Nium shall not be liable for losses or costs where Applicable Law means that Nium had to break this Agreement.
          
       
   4. The Client may claim a Refund for a Payment that the Client authorized provided that: 
      1. the relevant authorization did not specify the exact amount when the Client consented to the Payment; and
      2. the amount of the Payment exceeded the amount that the Client could reasonably have expected it to be (taking into account the Client’s previous spending pattern on the Nium Card, this Agreement and the circumstances of the case).
       

      Such a Refund must be requested from Nium’s Client Support team within eight (8) weeks of the Payment. Nium may require the Client to provide Nium with evidence to substantiate its claim. The Refund shall be equal to the amount of the Payment. Any such Refund will not be subject to any fee.

APPENDIX B-6

United States (US)

1. Interpretation. 
   1. In the context of Nium providing the Services in the United States: 
      1. the Parties agree that the Agreement is supplemented and/or amended (as applicable) as set out in this Appendix B-6 (including any annexures); and
      2. in the event of any inconsistency or conflict between the provisions in this Appendix B-6 and the Agreement, the provisions in this Appendix shall prevail to the extent of the inconsistency.
       
   2. Any capitalized terms used in this Appendix B-6 shall have the meanings given to them in the Agreement (including Appendix A) unless otherwise defined as follows:
      
       

      “"Cross River Bank" or "CRB"	means Cross River Bank, a New Jersey state-chartered commercial bank, member of the Federal Deposit Insurance Corporation (FDIC), which acts as the issuer of the Nium Cards and sponsor bank.
      "FBO Account"	means a "for the benefit of" omnibus deposit account maintained by Nium in its name at CRB, in which Client funds are held for the benefit of Clients collectively, with records maintained by Nium and CRB to reflect each Client's beneficial interest.
      "OFAC"	means the Office of Foreign Assets Control of the US Department of the Treasury.
      "Nium Account"	means a virtual account or wallet (as applicable) provided by Nium for the purposes of holding Collateral or Sufficient Funds for Payments, processing Load Instructions, reconciling Fees and Rewards, facilitating Redemptions and Returns (each as applicable to the Client), and any other transfers or activities permitted under this Agreement. A Nium Account is not a personal bank account, a bank account or a deposit account, and does not constitute a bank deposit with Nium or CRB
      “Nium Card(s)”	means either the Virtual Cards or Balanceless Cards (as applicable).
      "Sanctions"	means economic or trade sanctions administered or enforced by OFAC, the US Department of State, the United Nations Security Council, the European Union, His Majesty's Treasury, or any other applicable sanctions authority.

       
    
2. Service Provider and Regulatory Basis. 
   1. In the context of Nium providing the Services in the United States:
       
      1. Nium provides the Technology Services and acts as program manager; and
      2. CRB is the issuer of the Nium Cards and the sponsor bank.
       
   2. Regulatory Basis. The Client acknowledges and agrees that: 
      1. the Services are provided under a bank program agreement between Nium and CRB, pursuant to which CRB, as a federally regulated depository institution, is the regulated issuer of the Nium Cards and the entity through which the US Services are provided;
      2. CRB holds Card Scheme membership and licenses required to issue the Nium Cards in the United States; and
      3. the Client's use of the Services is subject to the terms and conditions of this Agreement and to such additional program requirements as CRB may impose from time to time, which Nium will communicate to the Client as soon as reasonably practicable.
       
    
3. Amendments to the Agreement. 
   1. Provision of the Services. Section 3 of the General Terms to the Agreement is amended to include the following new sub-sections immediately after Section 3(d):
      
      “e. Nium Account Acknowledgement. The Client acknowledges and agrees that:
       
      1. the Client's Nium Account does not constitute a personal bank account or deposit account. The Client will not earn any interest on the funds held in the Nium Account or on any Nium Cards;
      2. Client funds are held in one or more FBO Accounts maintained by Nium at CRB, for the benefit of Nium's clients. CRB has sole legal custody of the funds held in the FBO Accounts. Nium and CRB maintain records of each client's beneficial interest in the FBO Accounts;
      3. Client funds held in the FBO Accounts are not commingled with Nium's own operating funds. In the event of Nium's insolvency or bankruptcy, client funds held in the FBO Accounts are intended to be protected from Nium's creditors, as the beneficial interest in such funds belongs to clients. The Client acknowledges that this protection depends on proper account titling, recordkeeping, and applicable insolvency law;
      4. FDIC Pass-Through Insurance. CRB is a member of the Federal Deposit Insurance Corporation (“FDIC”). Funds held in the FBO Accounts at CRB may be eligible for pass-through deposit insurance provided by the FDIC, up to the applicable maximum deposit insurance limit per depositor, per insured depository institution (currently US$250,000 as of the date of this Agreement), provided that the applicable requirements for pass-through deposit insurance under the Federal Deposit Insurance Act and FDIC regulations are satisfied, including applicable account titling and recordkeeping requirements. Whether and to what extent FDIC pass-through deposit insurance applies will depend on the particular facts and applicable law. FDIC insurance coverage is not guaranteed and is subject to applicable law and FDIC regulations, as amended from time to time; and
      5. the foregoing provisions apply in place of any safeguarding, e-money, or electronic money provisions that may be applicable in other jurisdictions under Appendix B."
       
   2. Nium Account. Section 5(a) of the General Terms to the Agreement is deleted in its entirety and replaced with the following new Section 5(a):
      
      “a. Nium Account. When the Client applies to register with Nium to use the Services, upon being approved by Nium, Nium will provide a Nium Account to the Client.
      
      
   3. Nium Cards. Section 8 of the General Terms to the Agreement is amended to include the following new sub-sections immediately after Section 8(e):
      
      “f Acknowledgements. The Client acknowledges that:
       
      1. the Nium Cards are not credit cards and are not linked to a bank account held by or in the name of the Client;
      2. the Nium Cards are issued by CRB under CRB's Card Scheme licenses, and CRB is the regulated issuer of record. Nium acts as program manager and technology service provider;
      3. the Nium Cards are for business use only. The Services are provided exclusively to commercial entities for business purposes and are not available to individuals for personal, family, or household use; and
      4. the Services are not "consumer financial products or services" as defined in 12 U.S.C. § 5481. The Electronic Fund Transfer Act (15 U.S.C. § 1693 et seq.) and Regulation E (12 C.F.R. Part 1005) do not apply to the Services.
       
      g. Available Card Funds and Spending Limits. The Client or Nium may apply limits, including maximum transaction limits, on the Client's Nium Account and/or the Nium Cards via the Services. The Client may check the balance of its Nium Account and/or the Available Card Funds via the Technology Service.
      
      h. Transfer of Unused Balance. At the Client's request or on termination of the Agreement, Nium shall transfer any unused balance on a Virtual Card to the Client's Nium Account, subject to applicable deductions for Fees and other amounts due under the Agreement.
      
      i. Load Instructions. Subject to the terms and conditions of this Agreement, upon the Client’s selection of the goods and/or services from the relevant Merchant and the Client’s Load Instruction, a Virtual Card with the required balance for that Payment shall be generated by Nium to pay the Merchant. Under the terms and conditions of the Agreement, (subject to the availability of Sufficient Funds) the Client hereby grants to Nium irrevocable instructions to initiate the issue, activation and allocation of funds to each Virtual Card (each a “Load”) when the Client submits the data related to the proposed Payment to Nium via the Technology Service.
      
      j. Handling of Funds. The funds corresponding to the balance in the Virtual Cards will be held by Nium in accordance with Section 3(e) of the Agreement.
      
      k. Cancelling a Load Request. The Client may request the cancellation of any Load Instruction it has made by contacting Client Support provided the Payment has not yet been effected.
      
      l. Load Instruction Acknowledgments. The Client acknowledges and agrees that:
       
      1. in the event that any Payment or Load Instruction would cause any limits which may be set by Nium to be exceeded, Nium may at its discretion stop any further Load or the use of the Nium Cards. Nium shall give the Client as much notice as is practicable prior to the imposition or increase of any limits or related suspension of the use of Nium Cards (as applicable) and notify the Client of what the Client may do to correct the problem and promptly restore the use of the Nium Card(s) when the corrective action has been taken; and
      2. by facilitating Payments using the Nium Cards, Nium shall not be deemed to have assumed any liability of the Client or any Merchant or in any manner absolved them from any liability they may have incurred in relation to the Payment.”
       
   4. Redemption and Returns. Section 12 of the General Terms to the Agreement is amended to include the following new sub-sections immediately after Section 12(f):
      
      “g. Unclaimed Property. The Client's contractual right to redeem funds within six (6) years under Section 12(c) does not override any obligation imposed by applicable state unclaimed property or escheatment laws. State dormancy periods are typically shorter than this contractual period. Nium and CRB will comply with all applicable unclaimed property laws, including reporting and remitting abandoned funds to the relevant state authority. The Client is responsible for claiming funds before the applicable statutory dormancy period expires."
      
      
   5. Applicable Law. Section 18(b) of the General Terms to the Agreement is deleted in its entirety and replaced with the following new Section 18(b):
      
      “18(b) Applicable Law and Sanctions.
       
      1.  
         1. Each Party warrants that it will at all times comply, and will ensure that its personnel comply, with all Applicable Law in connection with the performance of this Agreement.
         2. In addition, the Client represents and warrants to Nium that, as at the date of this Agreement and throughout its term: 
            1. It is the subject or target of any Sanctions , including by being listed on any Sanctions list maintained by any of those authorities; and
            2. it will promptly notify Nium if this representation ceases to be accurate at any time during the term of this Agreement.”
             
          
       
   6. Termination. Section 22 of the General Terms to the Agreement is amended to include the following new sub-sections immediately after Section 22(g):
      
      “22(g) CRB Termination. Nium may, by written notice to the Client, immediately suspend all or part of the Services or terminate this Agreement in whole or in part, if CRB, in its sole discretion:
       
      1.  
         1. terminates or materially modifies its agreement with Nium under which CRB issues the Nium Cards; or
         2. terminates or suspends the Client's participation in the card issuing programme through which the Nium Cards are issued to the Client.”
          
       
   7. Changes to Agreement and Services. Section 23 of the General Terms to the Agreement is amended to include the following new sub-sections immediately after Section 23(e):
      
      “f. CRB-Required Changes. Nium may implement amendments to this Agreement with immediate effect, or on such shorter notice as is reasonably practicable, where CRB requires such amendments as a condition of continuing to provide issuing services in connection with the Services.”
      
      
   8. Governing Law and Jurisdiction. Section 30 of the General Terms to the Agreement is amended to include the following new sub-sections immediately after Section 30(a):
      
      “b. Binding Arbitration. Any dispute arising out of or in connection with the Agreement (a "Dispute") shall be finally resolved by binding arbitration administered by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules in force at the time the Dispute is submitted. The seat and place of arbitration shall be New York, New York. The tribunal shall consist of a single arbitrator, who shall be a person licensed to practise law in a US jurisdiction with experience in financial services. The award shall be final and binding, and judgment may be entered upon it in any court of competent jurisdiction. This Agreement evidences a transaction involving interstate commerce and any arbitration under this Section 30(b) shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1–16). The Parties waive any right to bring or participate in a Dispute as a class or representative proceeding.
      
      c. Exceptions — IP and Interim Relief. Notwithstanding Section 30(b), either Party may seek relief from any court of competent jurisdiction: (i) for disputes principally concerning either Party's intellectual property rights; (ii) to compel or stay arbitration; or (iii) for temporary or preliminary injunctive relief pending the constitution of the tribunal or the rendering of an award. For such purposes each Party irrevocably submits to the exclusive jurisdiction of the federal and state courts sitting in New York, New York.
      
      d. Jury Trial Waiver. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER SUCH ACTION SOUNDS IN CONTRACT, TORT, STATUTE OR OTHERWISE.”