Nium Platform Services Agreement

Welcome to Nium!

This Nium Platform Services Agreement, any applicable Schedule(s) and any Fee Schedule(s) (together, this "Agreement") sets out the terms and conditions for the Client to receive the Services (defined below) that may be offered by Nium.

In this Agreement, the "Client" is the entity 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 Nium entity described in the applicable Fee Schedule (defined below), and the Client and Nium are each a "Party," and together, the "Parties".

The Client will access and use Services offered by Nium strictly in accordance with this Agreement, any Fee Schedule and the Documentation (defined below).

This Agreement consists of the following components:

1. The General Terms;
2. The Definitions set forth in Appendix A;
3. The International Jurisdiction Additional Terms and Conditions set out in Appendix B;
4. The Fee Schedule separately entered into between the Client and Nium (“Fee Schedule”);
5. The End Customer Fee Schedule (if applicable) separately entered into between the Client and Nium (“End Customer Fee Schedule”);
6. The Pay Out and Pay In Service Additional Terms and Conditions;
7. The Card Issuing Additional Terms and Conditions;
8. The Data Protection Agreement; and
9. Any other agreements or documents expressly referenced in this Agreement.

GENERAL TERMS

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 or Appendix, the provisions of such Schedule 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) these General Terms; (3) all other components; and (4) any other agreements or documents expressly referenced in this Agreement.
2. Term of Agreement.
   1. Initial Term. Unless otherwise terminated under Section 16, this Agreement comes into force on the Effective Date and shall continue for the Initial Term starting on the Effective Date.
   2. Subsequent Term. Upon expiration of the Initial Term, this Agreement shall automatically continue for successive one (1) year terms (each a “Subsequent Term”), until either Party exercises its termination right under this Agreement.
3. Provision of the Services.
   1. Services General Terms. Nium agrees to make available, and the Client agrees to accept, the Services in accordance with the terms of this Agreement and the End Customer Terms & Conditions.
   2. Licenced Jurisdiction. The Services are offered and made available by Nium from its jurisdiction of incorporation (“Licenced Jurisdiction”). Nium does not intend to solicit, target or market the Services to any third party (including the Client or any End Customer) outside of its Licenced Jurisdiction.
   3. Other Costs. Other than the Nium Platform, 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. End Customers.
      1. Referral of Potential End Customers. During the term of this Agreement, the Client shall refer Potential End Customers to Nium. The Client will not make any commitment on behalf of, or representations, guarantees or warranties about, Nium or any services provided by Nium other than those contained in the End Customer Terms & Conditions provided by Nium.
      2. No Obligation to Approve Potential End Customers. Nium does not have any obligation to establish any relationship with any Potential End Customer referred to by the Client.
      3. Nium’s Relationship with End Customers. Nium may in its sole discretion, at any time, and without the Client’s consent:
         1. determine the terms on which, if any, it will conduct business with any Potential End Customer or End Customer;
         2. terminate any agreement, written or otherwise, that it has entered into with any Potential End Customer or End Customer; or
         3. assign, transfer or otherwise dispose of any agreement it has entered into with any Potential End Customers or End Customers.
      4. End Customer Terms & Conditions. The Client shall ensure that each End Customer provides Nium with acceptance to the End Customer Terms & Conditions (“End Customer Acceptance”) in the form provided, from time to time, by Nium to the Client.  The Client may not amend the End Customer Terms & Conditions without the prior written consent of Nium. The End Customer Terms & Conditions (but not the Nium Travel Card and Payment Services Agreement) may be incorporated by reference into an independent and separate agreement entered into between the Client and an End Customer (“Client Services Agreement”), such that acceptance of the Client Services Agreement by each End Customer also constitutes an Acceptance of the End Customer Terms & Conditions. The Client shall provide records of End Customer Acceptance to Nium on a monthly basis. Nium will notify the Client if it modifies the End Customer Terms & Conditions. The Client must notify the End Customers of the modification promptly after it receives the modification notice from Nium.
      5. End Customer Fees. Nium has the sole right to set the amount of the End Customer Fees. The Client may request  a change to the End Customer Fees (“Request for Change of End Customer Fees”) by either submitting to Nium (A) a new completed and signed End Customer Fee Schedule or (B) an Instruction through the Nium Platform to change the End Customer Fee.  Nium agrees to implement the Request for Change of End Customer Fees if the change (A)  complies with Applicable Laws, (B) is permitted in accordance with the terms of this Agreement and Nium Policies, and (C) does not otherwise conflict with the End Customer Terms & Conditions.
      6. Client as an End Customer. If the Client would like to (A) use the Pay In Service, (B) use the Pay Out Service or (C) have Nium issue Cards to it or its own employees, the Client will be deemed to be an End Customer for purposes of using the applicable Service and will be deemed to have agreed to the applicable End Customer Terms & Conditions in respect of its use of such Service.
   5. Complaints.
      1. Notification of a Complaint. Upon the Client becoming aware of any complaint in connection with the Services or Nium by any third party, including an End Customer or a Regulatory Body (“Complaint”), the Client will notify Nium immediately in writing and will forward to Nium copies of any Complaint within three (3) days of the Client's receipt of such Complaint. Unless otherwise instructed or permitted by Nium, the Client may not respond to any third party (including any End Customer) on Nium's behalf with respect to any Complaint. Any Complaint will be managed, recorded and reported by the Client in accordance with the procedure prescribed by Nium to the Client. All Complaints are Confidential Information of Nium and the Client may not disclose, discuss or publicize any Complaint save in accordance with the terms of this Agreement.
      2. Response to a Complaint. The Client authorizes Nium to speak or write to any End Customer where a Complaint relates to the Services and shall provide all necessary assistance including access, information, records and documents as Nium or any Regulatory Body may request in the conduct of any investigation relating to any Complaint made to, about or in any way involving the Client (whether before or after the termination of this Agreement).
   6. End Customer Support.
      1. Client Is Point of Contact. The Client shall provide End Customer Support to each End Customer in accordance with terms and conditions agreed to separately between the Client and each such End Customer. The Client acts as the point of contact between Nium and any End Customer with respect to any Complaints, issues or disputes (including refunds and recalls) in relation to the Services.
      2. End Customer Consent. The Client represents and undertakes that each End Customer has authorized and provided its consent to the Client to provide and receive from Nium all information, communications, and Instructions in connection with this Agreement and any Services. Where Nium receives any information, communication, or Instruction from the Client, Nium shall be entitled to treat such information, communication, or Instruction as having been received from the relevant End Customer. The Client shall be bound as though such End Customer itself had given or received the information, communication, or Instruction to or from Nium. Nium is under no obligation to check the authenticity or accuracy of any information, communication or Instruction received from the Client and shall not be liable for any Losses incurred or suffered by the Client, the relevant End Customer or any person for complying with such information, communication, or Instruction.
      3. Refusal of Instruction. Nium may refuse to act upon any Instruction received from the Client without any liability to the Client or the relevant End Customer. Nium will, to the extent permitted by Applicable Laws and practicable, inform the Client of the reason of any such refusal.
      4. Change In End Customer Support. If there is any material change to End Customer Support as it relates to the Services, the Client shall provide prompt notice in writing to Nium.
      5. Reasonable Assistance to Client. Upon request by the Client, Nium shall provide reasonable assistance to the Client to facilitate the Client's provision of the End Customer Support. The Client shall deliver or cause to be delivered to Nium such information and documents in such format and within such time limit as Nium may stipulate for the purposes of such assistance.
      6. Due Diligence Information and Documents. The Client will enable End Customers to provide to Nium and/or provide, on behalf of End Customers (A) all documentation and other evidence or information as requested by Nium, and (B) all necessary assistance to Nium on an ongoing basis, in each case, in order for Nium to carry out and be satisfied with the results of all of the necessary End Customer due diligence that Nium is required to carry out under any Applicable Law (“End Customer Due Diligence”), including, but not limited to, End Customer identification and verification, Sanctions compliance verification, and deposit account verification.  The Client will secure any necessary consents from the End Customers to share any information related to End Customer Due Diligence with Nium. At Nium’s request, the Client will execute or procure the execution of such documents and such further acts on behalf of the End Customers as Nium may reasonably require for the purpose of the End Customer Due Diligence.
   7. Client Platform.
      1. Client Platform. The Client shall be responsible for maintaining and operating the Client Platform to facilitate the provision of Services by Nium to the End Customers in accordance with this Agreement.
      2. Disclosure that Services Provided Solely by Nium. The Client shall incorporate a statement on the Client Platform and communicate in all dealings with third parties (including any End Customer) that the Services are provided solely by Nium.
      3. Client Content. Nium shall have the right to require the removal from the Client Platform of any Content which Nium determines, in its sole discretion, (i) is unacceptable or inconsistent with the attributes, goodwill or trust associated with the Services or Nium’s brand, (ii) is in conflict with, interfering with or is detrimental to Nium’s interests, reputation or business, or (iii) may subject Nium to unfavourable regulatory action or liability.
      4. Independent Platform Fees Disclosed on Client Platform.
         1. Upon Client’s request, Nium may agree to deduct from an End Customer’s Available Balance any fees payable by such End Customer to the Client with respect to any services independently and separately provided by the Client to such End Customer (“Independent Platform Fees”) and transfer such Independent Platform Fees to the Client, provided that the Client has performed each of the following:
            
            1. The Client has notified the relevant End Customer that the Independent Platform Fees are payable in connection with services independently and separately provided by the Client to such End Customer.
            2. The Client does not indicate to any End Customer in any manner that the Independent Platform Fees are paid in exchange for any Services provided by Nium to such End Customer.
            3. The Client obtains written consent and authorisation from the relevant End Customer for Nium to deduct such Independent Platform Fees from such End Customer’s account and, upon Nium’s request, the Client promptly provides Nium written proof of such written consent and authorisation.
         2. The Client is solely liable to the End Customers with respect to any dispute or issue arising in connection with the Independent Platform Fees.
      5. End Customer Fees Disclosed on the Client Platform. The Client shall display on the Client Platform, or otherwise communicate in writing to each End Customer, the End Customer Total Fee Amount in such amounts as are approved by Nium and formatted to satisfy requirements pursuant to Applicable Laws, or as otherwise advised by Nium from time to time. The Client shall not, without Nium's prior written consent, display on the Client Platform or otherwise communicate to End Customers any End Customer Total Fee Amount that is different from those set out in either (A) the End Customer Fee Schedule, or (B) Instructions provided by the Client to Nium through the Nium Platform.
      6. Product Offers on the Client Platform. Nium acknowledges and agrees that (A) the Client shall have the right to offer other products or services to End Customers on the Client Platform, and (B) Promotional Materials may include references to other products offered by or through the Client.  The Client shall not make any express or implied statement in the Client Platform or the Promotional Materials that Nium provides or endorses any such other products or services.  The Client shall state in the Promotional Materials and the Client Platform that Client is solely responsible to the End Customers with respect to such other products or services.
   8. Advertising and Promotion.
      1. The Client shall ensure that any advertising, promotion or marketing activities in relation to the Services shall be conducted as follows:
         
         1. Client shall not hold itself out as the provider of the Services or an agent of Nium in respect of the Services on any website, social media sites, mobile applications, streaming services, written, printed, graphic, electronic, audio or video, including but not limited to journal advertisements, e-mails, admission letters, invoices, reprints, direct mail, direct-to-consumer advertising, internet postings and media broadcast advertisements ("Promotional Materials").
         2. No Promotional Material shall claim or imply that Nium is targeting or soliciting any customers or marketing any Services in a jurisdiction where Nium does not have the relevant regulatory licence to provide such Services.
      2. The Client must withdraw and cease to use any Promotional Materials relating to the Services or this Agreement when requested to do so by Nium. Upon termination of this Agreement, all materials that include any references to Nium, Nium's Intellectual Property Rights or the Services shall be destroyed or returned to Nium in accordance with Nium's direction.
4. Integration.
   1. Direct Integration. The Client will comply with all Documentation, instructions, guidelines and requirements relating to its use of the Services and its integration of the Client Platform with the Nium Platform. The Client will ensure that its integration to and use of the Nium Platform does not create material technical problems, damage, interruption, or degradation of the Nium Platform.  Upon the occurrence, or Nium’s reasonable belief of the occurrence, of such an event, Nium may immediately suspend the Client’s use of the Nium Platform to the extent necessary to mitigate the consequences of the event, and the Client will take all necessary steps to remediate the event, including steps reasonably requested by Nium.
   2. Information Security and Business Continuity and Disaster Recovery. Each Party agrees to:
      1. Establish, implement and maintain security, processes and plans which shall ensure the confidentiality and security of the Confidential Information and End Customer Personal Data ("Security Program").
      2. Adopt and use good development and coding practices in line with industry standards and ensure that any application code or other materials developed are sufficiently tested to confirm that common security flaws and vulnerabilities are not introduced into each other's systems or websites.
      3. With respect to the Client, upon request from Nium, provide all necessary assistance and submit any reports to Nium and any Regulatory Body with respect to the security and control environment of the Client and its Subcontractors.
      4. Upon the occurrence of any actual or suspected Security Incident, within twenty-four (24) hours (A) after becoming aware of such Security Incident, or (B) after having a reason to believe that a Security Incident has occurred, inform the other Party of such Security Incident specifying the extent to which Confidential Information or End Customer Data has been compromised or disclosed.
      5. Perform a diligent investigation of a Security Incident and, to the extent permissible by Applicable Laws and such Party’s internal procedures, provide the other Party with its findings as soon as reasonably practicable.
5. Nium Platform.
   1. Client Access Codes. Nium will provide the Client with a unique identification number and/or password to enable the Client to access and use the Nium Platform (“Access Codes”). 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 is disclosed to any person, except on a need to know basis to Client Authorised Representatives.  The Client will ensure that each Client Authorised Representative is aware of the requirement to keep the Access Codes secure and confidential. Breach of this Section constitutes a material breach incapable of being remedied and entitling Nium to terminate this Agreement immediately pursuant to Section 16.
   2. Authorised Representatives. Nium is entitled to rely upon the Instructions provided by a Client Authorised Representative until such time as the Client notifies Nium in writing that the Client Authorised Representative 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 Representative nominated by the Client as a Client Authorised Representative.
   3. Instruction Information. Prior to submitting an Instruction to Nium, the Client must ensure that all information contained in the Instruction 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 a Client Authorised Representative. Nium is under no obligation to check the authenticity or accuracy of any Instruction or data received, or assumed to be received, from a Client Authorised Representative, 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 Authorised Representative.
   4. Processing Delay or Failure. If the Client fails to provide a timely, accurate and complete Instruction, Nium may be unable to process, or may have to delay the processing of, such Instruction. Nium will not be liable for any Losses incurred or suffered by the Client or any person as a result of a delay or failure in processing an Instruction.
   5. Refusal to Act. Nium may refuse to act upon any Instruction received from the Client that Nium believes: (i) may violate this Agreement or other agreements the Client or its Affiliates may have with Nium; (ii) is unauthorized, fraudulent or illegal; or (iii) expose the Client, Nium or others to risks unacceptable to Nium.
   6. Unauthorized Use. The Client will notify Nium immediately in the event of any suspected or actual unauthorized use of the Access Codes or unauthorized access to the Nium Platform. Notwithstanding such notification, the Client is solely responsible for all acts or omissions of any person that accesses the Nium Platform through the Access Codes and agrees to be bound by the terms of all transactions or Instructions submitted through the Nium Platform using the Access Codes.
   7. Records. The Client is responsible for maintaining its own records relating to the Services and for reconciling such records against any entries made available on the Nium Platform. The Client must notify Nium promptly, and in any event, no later than sixty (60) days (or any longer minimum period prescribed by Applicable Laws) after any unauthorized, incorrect or disputed transaction or entry is entered on the Nium Platform. Following the expiry of this period, any such entry in the Nium Platform will be deemed agreed.
6. Nium Account.
   1. End Customers’ Nium Accounts. Each End Customer may be granted one or more Nium Accounts for the purposes of the Services. Each Nium Account is denominated in a Supported Currency and facilitates the End Customer’s use of the Services including viewing the Available Balance in the relevant Supported Currency. Where foreign currency conversion is required in respect of any Available Balance, Nium shall apply the prevailing exchange rate, which at the Effective Date, is based on the rates published on the Reuters platform on a Business Day plus a percentage (recognised as a markup), as set forth in (1) the Fee Schedule and (2) End Customer Fee Schedule (if applicable) or Instructions provided by the Client to Nium through the Nium Platform for such conversion.
   2. Responsibility of Client for the Nium Accounts of End Customers. The Client is responsible and liable to Nium for all activity on End Customers’ Nium Accounts, whether initiated by the Client or not, including all transactions, disputed transactions, refunded transactions, reversed transactions, associated fines and any use of the Services in a manner prohibited under this Agreement or the End Customer Terms & Conditions. Nium may attempt to collect amounts owed from End Customers before Nium collects these amounts from the Client. However, the Client remains jointly and severally liable to Nium for these amounts, and Nium may collect these amounts from the Client in accordance with this Agreement.
   3. Available Balance.
      1. The Client and each End Customer is solely responsible for ensuring that a sufficient Available Balance is received by Nium. Nium shall not be liable to make up for any shortfall in the Available Balance unless such shortfall is due to the gross negligence or willful default of Nium.
      2. The Client may not collect or receive any Available Balance on behalf of Nium.
      3. The Client may not collect or fund any Available Balance on behalf of an End Customer unless:
         
         1. it has obtained the irrevocable consent and authorization of such End Customer to collect and fund the Available Balance on behalf of such End Customer;
         2. any collection or funding of Available Balance does not violate any Applicable Laws or the terms of this Agreement and will not cause Nium to violate any Applicable Laws or the terms of this Agreement; and
         3. it makes up for any deficit in the Available Balance to the extent it is due to a shortfall in funds collected or funded by the Client on behalf of such End Customer.
      4. The Client may request the return of any remaining Available Balance to an End Customer if such request is in accordance with the authorization of such End Customer and the End Customer Terms & Conditions. Nium shall comply with such return of any remaining Available Balance to such End Customer in accordance with the End Customer Terms & Conditions. Where Nium exercises its right of termination under this Agreement, the Client cannot request the return of any remaining Available Balance on behalf of an End Customer. In such case, Nium shall retain and deal with any remaining Available Balance for the benefit of the applicable End Customer in accordance with the End Customer Terms & Conditions.
7. Representations and Warranties.
   1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that:
      
      1. it is duly organised, registered and validly existing under the Applicable Laws of its jurisdiction of organization;
      2. it has all the requisite corporate power, approvals and authority to execute, deliver, receive and perform its obligations under this Agreement;
      3. it has obtained and shall maintain all governmental, regulatory and other third party licences, authorisations, approvals, consents or permits required to perform its obligations under this Agreement and to use or provide the Services;
      4. it is not identified on any of the OFAC Lists or in any Sanctions, and none of its directors, officers, employees, or holders of equity or debt securities, are identified on, or are 50% or more owned, directly or indirectly, by any person identified on any of the OFAC Lists or in any Sanctions;
      5. neither Party has received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value from an employee or agent of the other Party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business that comply with Applicable Laws do not violate the above restriction; and
      6. it will provide the other Party with reasonable assistance as the other Party may require, from time to time, in connection with this Agreement and the activities contemplated hereunder.
   2. Client Representations and Warranties. The Client represents and warrants that:
      
      1. it is not regulated, and does not hold any payment institution, electronic money institution, or money transmitter licence, in the jurisdiction where Nium is providing the Services from and does not (A) provide any Services on its own, or (B) arrange to provide any Services on behalf of Nium;
      2. it solely facilitates the transmission of payment information from an End Customer to Nium to enable such End Customer to receive Services from Nium and it is not authorized to, and does not, accept or perform any instruction on behalf of Nium in respect of any Services;
      3. it shall not and does not, at any time, collect, receive or come into possession of any funds on behalf of any End Customer for the purpose of the Services save that this Section 7(b)(iii) does not prevent the Client, in connection with the Stablecoin Pay In Service, from generating, displaying or transmitting to an End Customer a Stablecoin Deposit Address or related payment instruction on Nium’s behalf, or where it holds the appropriate regulatory license to do so, remitting the Digital Assets to Nium on behalf of the End Customer;
      4. it shall use the Nium Platform in accordance with the terms of this Agreement and the Documentation and in compliance with all Applicable Laws;
      5. it previously has accurately identified itself, has not provided any inaccurate information about itself or its End Customers to or through the Services, and has the right to use and disclose such information to Nium;
      6. it has complied with, and will continue to comply with, all applicable Sanctions and export control laws and will not provide any services to any parties that, at the time such services are provided, are (A) located or resident in any country or territory that is subject to a U.S. trade embargo, or other applicable Sanctions prohibiting such services, including but not limited to, the Crimea, Donetsk and Luhansk regions of Ukraine, Cuba, Iran, North Korea, and Syria; and (B) included on any U.S. lists of prohibited parties, including the OFAC Lists or any other applicable Sanctions list prohibiting such services;
      7. it will not (directly or indirectly) sell, export, reexport, transfer, divert or otherwise dispose of any Services received from Nium in contradiction with the Applicable Laws described in Section 7(b)(vi);
      8. it will provide Nium with all information in relation to this Agreement, the Services, and/or where applicable, any End Customer, promptly and in any event not more than seventy-two (72) hours following the receipt of a request from Nium or such other longer period as agreed between Nium and the Client, and that all such information provided to Nium by the Client, or any third party on behalf of the Client, is accurate in all material respects, and that such information does not and the Client will not, omit or withhold any information which would make such information inaccurate in any material respect;
      9. it will notify Nium in writing immediately (A) when there are changes to any information (including but not limited to information pertaining to the Client, End Customers (where applicable), or in connection with any Services) which the Client has previously provided to Nium; and (B) if the Client becomes aware of any event, suspicious activity, investigation or occurrence relating to Anti-Money Laundering/Combating the Financing of Terrorism Laws, or Sanctions that potentially involves or implicates Nium, any of Nium’s officers, directors, employees or agents, or any Services (and, where applicable, provide details of transactions processed in connection with such Services in the preceding twelve (12) month period);
      10. it will comply with (A) all Applicable Laws with respect to the Client Platform Services and (B) Nium Policies with respect to anti-money laundering and Sanctions compliance, as provided to the Client from time to time;
      11. to the extent permitted by Applicable Laws, immediately notify Nium if it detects any suspicious, fraudulent or other form of criminal activity relating to any payments or transactions made pursuant to any Services and cooperate with Nium to investigate and/or prevent such further activity;
      12. it will ensure that any data that has been accessed, printed or otherwise downloaded from the Nium Platform is retained securely at all times; and
      13. it will provide to Nium or an End Customer (on behalf of Nium) such information or documents in such format and within such time limit as Nium may reasonably require in connection with this Agreement or the Services.
   3. Nium Representations and Warranties. Nium represents and warrants that it will:
      
      1. comply with all Applicable Laws in fulfilling its obligations under this Agreement and the provision of the Services;
      2. implement, maintain and comply with policies and procedures that are designed to detect and prevent money laundering, terrorist financing, fraud and/or other crimes or Sanctions and shall review and update such policies as necessary to reflect any changes in Applicable Laws; and
      3. have in place reasonable business continuity and disaster recovery policies and at all times, maintain, test and comply with such policies.
   4. DISCLAIMER FOR ALL OTHER WARRANTIES FOR SERVICES. The Services are provided “AS IS”. Except as otherwise expressly provided under this Agreement, Nium makes no representations or warranties of any kind, whether express, implied, statutory or otherwise regarding the Services, including any warranty that the services or Nium Platform will be uninterrupted, error free or free of harmful components, or that any data or information, including Client or End Customer confidential information or data, will be secure or not otherwise lost or damaged. Client acknowledges that Nium does not control or monitor the transfer of data over the internet, and that internet accessibility carries with it the risk that Client’s (or End Customer’s) privacy, confidential information and property may be lost or compromised. Except to the extent prohibited by Applicable Laws, Nium disclaims all warranties, including any implied warranties of merchantability, title, fitness for a particular purpose, non-infringement and any warranties arising from a course of dealing, usage or trade practice.
8. End Customer Authorization.The Client authorizes Nium to, and where applicable, shall procure the necessary authorisation from any End Customer for Nium to, directly or through third parties, make any inquiries Nium considers necessary for the purpose of this Agreement and/or any Services, including to validate the Client’s or, where applicable, any End Customer’s identity. This may include making periodic searches of, and providing information (including Confidential Information) about the Client, or where applicable, an End Customer to, (i) a Network, (ii) a credit reference, market research, customer feedback, or fraud prevention agency, (iii) an Affiliate of Nium, (iv) its Representatives or (v) any other third parties involved in the provision of services under any Services for any purpose in connection with this Agreement.
9. Fees and Other Amounts Payable to Nium; Client Revenue
   
   1. Fees and Other Amounts Payable to Nium
      
      1. Payment of Fees. The Client will pay the Fees as set out in the Fee Schedule and any other amounts due and payable to Nium under this Agreement to Nium in full within seven (7) days (“Payment Date”) from the date of invoice. If any amount due to Nium pursuant to this Agreement is not paid by the Client in full on or before the Payment Date for whatever reason, the Client shall pay Nium a finance charge equal to two per cent (2%) per month (or the highest rate permitted by Applicable Laws, whichever is lower) on any unpaid amount from the date such payment was due until the date paid. Client will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Nium in collecting past due amounts.
      2. Setoff. Nium may from time to time, without notice, set-off or deduct by whatever means the whole or any part of the liabilities of the Client or its Affiliates under this Agreement or any other agreement between Nium and/or its Affiliates and the Client and/or its Affiliates (whether such liabilities are present, future, actual or contingent or potential, liquidated or unliquidated and irrespective of the currency of their denomination) against any amounts (i) held by Nium on behalf of the Client or by an Affiliate of Nium on behalf of another Affiliate of the Client, or (ii) owed by Nium to the Client under this Agreement or by any Affiliate of Nium to any Affiliate of the Client under the relevant agreement.
      3. Taxes. All Fees, and any other amounts due under this Agreement shall be paid by the Client in full without any deductions (including deductions in respect of applicable Taxes, charges and/or duties). Any Tax payable in respect of any payments made under this Agreement (other than Tax payable on Nium’s net income, profits or gains) shall be borne by the Client.
      4. Changes In Third-Party Fees. In the event that any third-party fees that apply to the Services are imposed or changed after the date of this Agreement, Nium may charge the Client for such third-party fees on a pass through basis by giving written notice to the Client of such fees.
   2. Client Revenue.
      1. General. In consideration of the Client acquiring End Customers, Nium shall pay the Client the Client Revenue on either a monthly or quarterly basis.  The Total TX Fees, Total FX Rates, and Total Cards Program Fees that are used to calculate the Client Revenue shall be provided by Client to Nium through either (A) an executed End Customer Fee Schedule that is in full force and effect, or (B) Instructions provided by Client to Nium through the Nium Platform.  The Client Revenue shall be calculated in accordance with the terms and conditions for payment that are set forth in this Section 9(b).
      2. Calculation of Client Revenue. Client understands and agrees that, subject to the additional terms and conditions for payment that are set forth in this Section 9(b), the Client Revenue shall be calculated as follows: (A) the sum of Total TX Fees, Total FX Rates, and Total Cards Program Fees collected from End Customers during the calendar month or calendar quarter, minus, (B) the sum of the Nium FX Base Rates, Nium TX Base Fees and Nium Cards Program Base Fees collected from End Customers during the calendar month or calendar quarter, plus (C) the sum of the Client Net Interchange Amount collected from applicable payment card merchant acquirers during the calendar month or calendar quarter, minus (D) any additional Fees that are owed by Client to Nium, minus (E) any additional accrued amounts that Client otherwise owes to Nium under the terms of this Agreement.
      3. Conditions for Payment of the Client Revenue from Each End Customer.  During the term of this Agreement, Nium shall pay the Client Revenue to the Client, only if all of the following conditions for payment have been met:
         
         1. Valid End Customer. As a result of the Client's referral, (i) Nium has provided Client with its prior approval of each End Customer, in accordance with the terms of this Agreement, (ii) the End Customer has electronically accepted or signed the End Customer Terms & Conditions and they remain in full force and effect, and (iii) the End Customer has successfully submitted transactions to Nium for processing.
         2. End Customer Fee Schedule in Effect or Instructions provided through Nium Platform. Either (i) there is an End Customer Fee Schedule that has been executed by Nium and Client and is in full force and effect, or (ii) the Client has provided Nium with Instructions through the Nium Platform of applicable Total TX Fees and Total FX Rates to be applied.
         3. Receipt of Fees. Nium has received all outstanding Fees from the relevant End Customer or the Client, as applicable. If payment from an End Customer or the Client is received in instalments, the associated Client Revenue shall be calculated and paid by Nium to the Client on instalments.
      4. Payment of Client Revenue in a Supported Currency. Any Client Revenue payable to the Client under this Agreement shall be paid by Nium to the Client in a Supported Currency that is either (i) specified in the End Customer Fee Schedule or (ii) mutually agreed upon between the parties in writing.  If the Client requests that payment of the Client Revenue be converted into any currency other than a Supported Currency, such conversion shall be made at the relevant exchange rate as determined by Nium at the time of conversion. Nium shall be entitled to deduct any cost, loss or liability arising out of or as a result of such conversion from such Client Revenue prior to settlement to the Client.
      5. Effect of Termination for Cause by Nium. If Nium exercises its termination rights under Section 16(d), the Client shall not be entitled to any Client Revenue under this Agreement, regardless of whether such Client Revenue arises or accrued prior to the date of termination.
10. Right of Audit.
    1. Audits.
       1. If Nium reasonably suspects that there has been a breach of this Agreement by the Client, the Client will provide Nium (or its third-party auditor) with access to the Client’s systems and records related to the Client’s use of the Services and its compliance with this Agreement and Applicable Laws.
       2. If requested by a Regulatory Body in connection with its regulatory oversight of Nium, the Client will provide Nium or that Regulatory Body (or their third-party auditors) with (A) access to the Client’s systems and records related to the Client’s use of the Services and (B) access to the Client’s locations where it accesses the Services.
    2. Audit Costs. Where an audit is undertaken pursuant to a request by any Regulatory Body related to the Client or pursuant to an event giving rise to a breach of this Agreement by the Client (including security breach), the Client shall pay any cost and expense incurred by Nium or its Representatives with respect to such audit.
11. Reserve. In connection with the provision of the Services, Nium may at any time require that the Client procures, within thirty (30) days (or such longer period as Nium may determine is reasonable) after receiving Nium’s written request, that a person (or persons) reasonably satisfactory to Nium provide Nium with a guarantee, indemnity, cash reserve or other security (including the replacement of any existing security) in such form and over such assets as Nium may reasonably require to secure to Nium’s reasonable satisfaction the performance of the Client’s obligations (including contingent or potential obligations) from time to time under this Agreement (“Reserve”).
12. 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; or (ii) required by Applicable Laws, or by a Regulatory Body (“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 Services 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 Laws 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 12.
    4. Survival. The obligations set forth under this Section 12 will survive termination of this Agreement.
13. Intellectual Property Rights.
    1. Ownership and Retention. 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, the 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 13(b), 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, 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 licence to electronically access and use the Nium Platform and the Services solely in compliance with this Agreement. Except as expressly permitted by Applicable Laws, the Client must not: (i) work around any of the technical limitations of the Nium Platform or the Services or enable functionality that is disabled or prohibited; (ii) reverse engineer or attempt to reverse engineer the Nium Platform or the Services; or (iii) perform or attempt to perform any actions that interfere with the normal operation of the Nium Platform or the Services or affect use of the Nium Platform or the Services by Nium’s other customers.
    3. Marketing Materials. Client consents to Nium’s use of Client’s name and logos in marketing materials, and Nium may disclose the relationship with the Client (i) in 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 this Agreement.
14. Indemnification.
    1. Client Indemnification. The Client will, to the fullest extent permitted by Applicable Laws, indemnify, defend and hold harmless Nium, its Affiliates, subcontractors and its and their Representatives (each a “Nium Party”) from and 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. any breach of (A) this Agreement by Client or (B) the End Customer Terms & Conditions by any End Customer;
       2. the Client’s or any End Customer’s access to and/or use of the Services, the Nium Technology, the Nium Platform and/or the Documentation, whether or not such access or use was authorized or whether it was due to any act or omission on its part, including any fees, penalties or fines imposed on Nium or its Affiliate by any payment network or any government entity;
       3. the Client’s (or its End Customer’s) noncompliance with Applicable Laws, including with respect to the Client’s (or its End Customer’s) access to and/or use of the Services;
       4. the Client’s (or its End Customer’s) gross negligence or intentional misconduct;
       5. use of Client’s Intellectual Property Rights or any information provided by the Client in connection with this Agreement or the Services;
       6. the Client Platform, the Client Platform Services, Content or Promotional Materials;
       7. any request, Instruction or information given by the Client (or its End Customer); or
       8. any transaction pursuant to the Services.
          
          

       The above defence and indemnification obligations do not apply to the extent of a Claim arising from Nium’s gross negligence or intentional misconduct.

    2. Nium Indemnification. Subject to Section 15(b), Nium will, to the fullest extent permitted by Applicable Laws, indemnify, defend and hold harmless the Client, its Affiliates, and their Representatives (each a “Client Party”) from and against any and all Claims brought against a Client Party by a third party, and any and all Losses incurred in connection with such third party Claims, based upon or arising out of:
       
       1. any breach of this Agreement by Nium;
       2. Nium’s noncompliance with Applicable Laws;
       3. Nium’s gross negligence or intentional misconduct; or
       4. claims that Nium’s Intellectual Property Rights infringe on the Intellectual Property Rights of any third party.
          
          

       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, (A) modify the applicable Service so that it is no longer claimed to infringe or misappropriate the Intellectual Property Rights of a third party, (B) obtain a license for Client’s continued use of the applicable Service in accordance with this Agreement, or (C) terminate this Agreement, in whole or in part, with respect to the applicable Service upon thirty (30) days’ written notice to the Client. The indemnification obligations set forth in this Section 14(b) do not apply if (I) the allegation does not state with specificity that the Service is the basis of the Claim against the Client Party, (II) a Claim against a Client Party 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, (III) the alleged infringement arises from third-party materials or data, (IV) the alleged infringement arises from a modification of the materials other than by or on behalf of Nium, (V) the alleged infringement arises from a failure to timely implement modifications, upgrades, replacements, or enhancements made available to the Client and/or End Customer by or on behalf of Nium, or (VI) the Claim ultimately arises from Client’s or End Customer’s breach of this Agreement or Client’s or End Customer’s gross negligence or intentional misconduct.

15. Exclusion and Limitation of Liability.
    1. DAMAGES WAIVER. In no event will Nium, its affiliates or its or their representatives have any liability arising out of or related to this Agreement or the Services for any lost profits, revenues, goodwill, or indirect, special, incidental, consequential, cover, business interruption or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if the Client or any Client Party has been advised of the possibility of such damages or if the Client’s or any Client Party’s remedy otherwise fails of its essential purpose. 
    2. LIABILITY CAP. In no event shall the aggregate liability of Nium, its Affiliates, and its or their representatives, arising out of or related to this Agreement, exceed the total Fees paid by the Client to Nium under this agreement for the preceding twelve (12) months from the date giving rise to such claim (or, if such event occurs within the first twelve (12) months after the Effective Date, the average monthly fees paid by the Client to Nium during the term of this Agreement multiplied by twelve (12)). The foregoing limitation will apply whether an action is in contract or tort and regardless of the theory of liability.
    3. Acknowledgment. The Parties acknowledge and agree that the exclusion and limitation of liability in this Section 15 is reasonable having regard to all relevant factors, including the nature and cost of the Services provided and the allocation of risk and liability between the Parties; provided, however, that nothing in this Agreement shall exclude or limit any liability that cannot be excluded or limited under Applicable Laws, and any such liability shall not be subject to the exclusions, limitations, or liability caps set out in this Section 15.
16. Termination and Consequence of Termination.
    1. Termination Without Cause by Either Party.
       1. In addition to the other rights set forth in this Section 16, either Party may terminate this Agreement at any time by giving the other Party at least thirty (30) days’ written notice of termination.
       2. Notwithstanding the foregoing, the Client may not exercise its rights under Section 16(a)(i) unless, where applicable, the Client has paid Nium an early termination fee as set out in the Fee Schedule (“Early Termination Fee”). The Parties agree that the Early Termination Fee constitutes a fair and reasonable determination of the amount of actual damages which would be suffered by Nium in such event, and that the Early Termination Fee does not constitute a penalty, but is liquidated damages, compensatory in nature.
    2. Termination for Cause by Client. Without prejudice to any other rights and remedies under this Agreement, the Client may at any time immediately terminate this Agreement, in whole or in part, by written notice to Nium if:
       
       1. Nium commits a material breach of this Agreement, which is not capable of remedy, or if capable of remedy, is not remedied to the Client’s reasonable satisfaction within thirty (30) days of service of a notice requiring such remedy;
       2. Nium becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors (“Insolvency Proceeding”); or
       3. There is a termination or withdrawal, in whole or in part, of any licence, registration, permission or authorization required for Nium to operate its business in connection with the Services.
    3. Termination by Client for 20% Increase of Cards Program Fees. Without prejudice to any other rights and remedies under this Agreement, the Client may terminate this Agreement, in whole or in part, by thirty (30) days  prior written notice to Nium, if (i) the Client is receiving Cards Program Services under this Agreement, (ii) Nium has provided written notice to the Client of a revision of Cards Program Fees, (iii) Nium has increased the aggregate amount of Cards Program Fees by greater than twenty percent (20%), and (iv) the Client provides written notice of termination no later than thirty (30) days after the receipt by the Client of the written notice from Nium of the revision of such Cards Program fees.
    4. Termination for Cause by Nium. Without prejudice to any other rights or remedies under this Agreement, Nium may at any time immediately suspend or terminate this Agreement or the Client’s or an End Customer’s access to the Services, in whole or in part, if:
       
       1. the Client commits a material breach of this Agreement, which is not capable of remedy, or if capable of remedy, is not remedied to Nium’s reasonable satisfaction within thirty (30) days of service of a notice requiring such remedy;
       2. In any ninety (90) day period, more than 1% of the total End Customers commit a material breach of the End Customer Terms & Conditions, which is not capable of remedy, or if capable of remedy, is not remedied to Nium’s reasonable satisfaction within thirty (30) days of service of a notice requiring such remedy;
       3. the Client files, or has filed against it, an Insolvency Proceeding;
       4. the Client is not paying its debts as they become due and payable;
       5. an Affiliate of Nium becomes entitled to terminate any agreement it has with an Affiliate of the Client;
       6. (A) Nium is required to terminate this Agreement pursuant to an order from any Regulatory Body or the Network or otherwise pursuant to Applicable Laws; (B) Nium reasonably believes that any Service is being used for a purpose contrary to Applicable Laws or for an unauthorized or fraudulent use; or (C) the security of any Service, the Nium Technology or the Nium Platform has been compromised due to the actions or omissions of the Client or End Customer;
       7. the results of any “know your customer”, Sanctions or other similar checks or screenings under Applicable Laws or regulations conducted on the Client are unsatisfactory to Nium in its sole discretion or continuing any Service could cause reputational, regulatory, financial or operational harm to Nium;
       8. there is a withdrawal or termination, in whole or in part, of any licence, permission or authorisation required to operate the Client’s business; or
       9. the Client undergoes a change of Control, or a sale or other disposal of any substantial division or part of the Client’s business without the prior written consent of Nium.
    5. Termination of Services by Financial Partner of Nium. Nium may, at any time immediately terminate this Agreement or the Client’s and/or any End Customer’s access to the Services, in whole or in part, if the Financial Partner that offers deposit account services to Nium, in connection with the Services, has either (i) terminated or suspended the performance of its services to Nium or (ii) has directed Nium to no longer permit the Client or the applicable End Customers to utilise the Financial Partner’s deposit account services.
    6. Effect of Termination.
       1. General. Upon termination or expiration of this Agreement, Client will (i) immediately discontinue or disable the integration of the Nium Platform with the Client Platform; (ii) remove any reference to Nium from any websites, software applications, marketing or advertising materials; and (iii) return and/or destroy any Nium property (including intellectual property) or Nium Confidential Information in accordance with the terms of this Agreement.
       2. Survival. Upon termination of this Agreement, all rights and obligations of any Party will cease to have effect immediately, save that the sections which expressly or by implication have effect after termination will continue to be enforceable notwithstanding such termination (including Sections 1, 10, 12 to 25, and any applicable Section set forth in Appendix B). Termination will not affect accrued rights, obligations and liabilities of any Party under this Agreement as at the date of termination.
       3. Effect of Termination for Cause by Nium. If this Agreement is terminated by Nium in accordance with the terms of Section 16(d), Client will pay Nium the Minimum Monthly Commitment Fees (indicated in the Fee Schedule) for the remainder of the applicable Initial Term or Subsequent Term. In no event will termination relieve Client of its obligation to pay any Fees payable to Nium for the period prior to the effective date of termination.  If Nium exercises its termination rights under Section 16(d), the Client shall not be entitled to any additional Client Revenue under this Agreement, regardless of whether such Client Revenue arises or accrued prior to the date of termination.
17. Notice. 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 in 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 in 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.
18. 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, 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.
19. Amendment; Changes In Services and Applicable Laws.
    1. Amendment Except for changes to the Fee Schedule and End Customer Fee Schedule, which shall be agreed to in writing by the Parties, 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. Any modification made by Nium shall be communicated by posting the updated Agreement on the Nium website or by notifying the Client, and shall take effect following a reasonable notice period, or such other notice period as required by Applicable Laws. If the Client objects to any of the modified terms in the Agreement, the Client may terminate this Agreement in accordance with Section 16. By continuing to use the Services after the effective date of any modification to this Agreement, the Client agrees to be bound by the modified Agreement. It is the Client's obligation to check the Nium website regularly for modifications to this Agreement. Nium last modified this Agreement on the date listed at the top of this Agreement. Except as this Agreement (including this Section) otherwise allows, this Agreement may not be modified except in writing by the Parties.
    2. 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.
20. 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 any 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.
21. Multiple Entities.
    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 enter into a separate agreement with 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.
22. Dispute Resolution.
    1. Dispute Notice. Without prejudice to either Party’s rights or remedies under this Agreement, if any Party (each a “Disputing Party”) brings a dispute against the other Party arising out of or in connection with this Agreement (“Dispute”), such Disputing Party shall give to the other Party a written notice of the Dispute, setting out the nature and full particulars of such Dispute (“Dispute Notice”). Following service of the Dispute Notice, the Parties shall attempt to resolve the Dispute in good faith.
    2. Resolution Period. If the parties are unable to resolve the Dispute within twenty (21) days of service of the Dispute Notice or such other period as mutually agreed between the Parties (“Period”), either Party shall be entitled to commence proceedings in court, subject to Section 23.
    3. Settlement. If the Dispute is resolved within the Period, any settlement shall be recorded in writing and signed by the authorized representative of each Party.
23. Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the applicable jurisdiction specified in Appendix B and the parties submit to the exclusive jurisdiction of the applicable courts specified in Appendix B for any dispute which may arise out of or in connection with this Agreement.
24. Miscellaneous.
    1. Entire Agreement. This Agreement, and all of its Appendices and Schedules, contain the entire understanding of the parties hereto with respect to activities contemplated by this Agreement and supersede all prior agreements and understandings, whether written or oral.  Failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.
    2. Equitable Remedies. Each Party acknowledges and agrees that, notwithstanding any other provisions of this Agreement, breach of this Agreement by a party may cause the other party irreparable damage for which recovery of money damages would be inadequate, and that the party that has suffered the breach shall, therefore, be entitled to institute a suit and without posting bond, obtain an injunction against such party, whether interlocutory or preliminary, and to any other equitable relief, before any court, restraining any such breach.
    3. Further Assurances. The Client shall, at Nium’s request, execute or procure the execution of such documents and do or procure the doing of such acts or things as Nium may reasonably require for the purpose of this Agreement.
    4. Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
    5. Independent Contractors. Unless expressly indicated otherwise in this Agreement, the relationship between the parties to this Agreement shall be that of independent contractors.  Nothing in this Agreement shall be construed to create the relationship of employer and employee, a joint venture, a partnership or joint association between the parties to this Agreement and or any of their respective Affiliates.
    6. No Third Party Beneficiaries. Except for any Nium Party or Client Party, no other person will have any right whatsoever to enforce this Agreement or have the benefit of any of its terms.
    7. Specific Jurisdiction. To the extent that Services are provided from Australia, Canada, Brazil, EEA, Hong Kong, Japan, Malaysia, New Zealand, Singapore, the United Kingdom, or the United States, refer to Appendix B for certain jurisdiction-specific terms and conditions.
25. Data Protection Agreement. The Parties acknowledge and agree that each Party shall act as an independent controller with respect to any Personal Data collected or processed in connection with the Services. The Parties understand and agree that they (a) are acting, and shall act, independently of one another in their respective processing of such Personal Data, and are not and shall not be ‘joint controllers’ of such Personal Data within the meaning of Article 26(1) of the GDPR; (b) shall provide reasonable cooperation and assistance to the other Party as necessary for the other Party’s compliance with Applicable Laws (at the other Party’s reasonable expense) with respect to such Personal Data; and (c) shall be bound by the terms of the Data Protection Agreement, which is incorporated herein by reference. Each Party will be responsible for its compliance with Applicable Laws.

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 where the Services are provided: the Nium entity that provides the Services; the governing law for this Agreement; and the venue where any disputes may be brought.

Appendices B-1 to B-8 contain additional terms and conditions that apply to the extent that the Services are being provided in the jurisdiction specified in the appendix.

APPENDIX B-1 - AUSTRALIA

The additional terms and conditions in this Appendix B-1 apply to Services provided by Nium AU in Australia.

1. Definitions
   
   

   “AFS Licensee”	means a holder of an AFS License.
   “Corporations Act”	means the Corporations Act 2001 (Cth) and any regulations made pursuant to that legislation.
   “Financial Product Advice”	has the meaning given in Chapter 7 of the Corporations Act.
   “Eligible Data Breach”	has the meaning given to it in the Privacy Act.
   “Personal Information”	means personal information as defined in the Privacy Act, which is collected by each Party in the course of performing its obligations under this Agreement.
   “Privacy Act”	means the Privacy Act 1988 (Cth).
   “Privacy Obligations”	means the obligations of either party which arise under the Privacy Act, any applicable guidelines or applicable information directives issued by a Federal, State or Territory privacy commissioner, any of the party's privacy policies, statements or procedures or any other applicable law in respect of privacy and protection of Personal Information about an individual.

   
   
   
2. Appointment of the Client as Authorised Representative in respect of Services provided to End Customers.
   1. Appointment. With respect only to the provision of Services by Nium AU to the End Customers under this Agreement, Nium AU authorises the Client under section 916A of the Corporations Act to provide the following financial services on behalf of Nium AU (collectively, the “Authorised Financial Services”):
      
      1. provide general Financial Product Advice for non-cash payment products to retail and wholesale clients;
      2. deal in non-cash payment products by issuing, applying for, acquiring, varying or disposing of non-cash payment products to retail and wholesale clients; and
      3. deal in non-cash payment products by applying for, acquiring, varying or disposing of non-cash payment products on behalf of another person to retail and wholesale clients.
   2. Acceptance of Appointment. The Client accepts the appointment in Section 2(a) in accordance with the terms of this Agreement. The Client acknowledges and understands that by accepting such appointment, it is subject to the supervision, examination, and regulation of any applicable Regulatory Body, including ASIC. The Client shall use the number allocated by ASIC to the Client on the Client Platform and any material that identifies the Client as an authorised representative of Nium AU.
   3. Relationship. The relationship that exists between Nium AU and the Client is of principal and agent. The Client is not in any way a partner or employee of Nium AU and must not represent itself as such under any circumstances.
   4. Scope of Appointment. The Client:
      1. may only provide the Authorised Financial Services and is not authorised to provide any other financial services on behalf of Nium AU;
      2. may not contract out or delegate any of its obligations or responsibilities under this agreement, other than in accordance with this Agreement; and
      3. may not act as an authorised representative of another AFS Licensee without prior written consent from Nium AU, such consent not to be unreasonably withheld.
   5. Indemnification with respect to appointment by other AFS Licensee. Where Nium AU consents to the appointment of the Client as an authorised representative of another AFS Licensee, or where the Client has disclosed to Nium AU, prior to entering into this Agreement, that it is an authorised representative of another AFS Licensee, the Authorised Representative agrees, from the date that consent is granted or the date this Agreement is entered into (as applicable), to indemnify Nium AU against any Losses incurred by Nium AU arising directly or indirectly from any negligent or wilful act, error or omission of the Client (whether inside or outside the authority given to the Client by the other AFS Licensee), in the Client’s capacity as authorised representative of the other AFS Licensee. This Clause shall survive termination of this Agreement.
   6. Warranty. The Client warrants that it has disclosed to Nium AU all relevant material information and circumstances which would be likely to affect Nium AU’s decision to enter into this Agreement. Without limiting the generality of the foregoing. the Client warrants that it has fully disclosed to Nium AU whether the Client acts as an authorised representative of any other AFS Licensee.
   7. Sub-authorised Representatives. Pursuant to section 916B(3) of the Corporations Act, the Client may, with the written consent of Nium AU, appoint appropriately qualified and skilled employees of the Client to provide some or all of the Authorised Financial Services on behalf of Nium AU. The Client shall provide Nium AU with all information reasonably necessary for Nium AU to assess the provision of its consent for the appointment of such persons (“Sub-authorised Representatives”). Any such consent may be subject to any conditions as Nium sees fit (acting reasonably). Nium AU may terminate the appointment of a Sub-authorised Representative at any time by giving written notice to the Client and/or the Sub-authorised Representative.
   8. Responsibility for Sub-authorised Representatives. Unless the contrary intention appears in this Agreement: (i) the acts and omissions of Sub-authorised Representatives are deemed to be acts and omissions of the Client; and (ii) each obligation of the Client to do or refrain from doing something includes an obligation on the Client to ensure that each Sub-authorised Representative does or refrains from doing such thing. The Client shall ensure that Sub-authorised Representatives are aware of and comply with the Client’s obligations under this Agreement, and shall make all Sub-authorised Representatives available, at the request of Nium AU, for training, education or any other purpose connected with Nium AU’s AFS Licence
   9. Obligations as Authorised Representative. In providing the Authorised Financial Services, the Client shall:
      1. comply with – (A) Applicable Laws; (B) this Agreement; (C) the Nium Policies; and (D) Nium’s instructions provided to the Client from time to time;
      2. act in good faith;
      3. exercise reasonable care, diligence, and skill;
      4. engage in fair, efficient, and honest conduct with respect to End Customers;
      5. use best efforts to protect and promote the interests of Nium AU with respect to the Authorised Financial Services, and not act in any manner that could reasonably prejudice the reputation, business or goodwill of Nium AU; and
      6. at Nium AU’s request, make all Representatives available for training, education or any other purpose in connection with the Client’s provision of the Authorised Financial Services.
   10. Additional End Customer Support Obligations. In providing the End Customer Support:
       1. the Client shall always refer to Nium AU as the sole provider of the Authorised Financial Services in any communication, and bring to the End Customers’ notice any information, documents, and disclosures required by Nium AU and Applicable Laws;
       2. the Client shall ensure that its Representatives involved in the performance of End Customer Support are appropriately trained with knowledge of the Services and compliance with Applicable Laws in respect of the Authorised Financial Services. Where required, Nium AU shall use commercially reasonable efforts to work with the Client in providing training to the Client and its Representatives involved in the performance of End Customer Support; and
       3. the Client shall maintain adequate resources and put in place adequate measures to monitor compliance of the End Customer Support with this Agreement and Applicable Laws.
       4. Nium AU may monitor the Client’s End Customer Support practices through onsite and remote monitoring or such other reasonable means as Nium AU may determine;
       5. the Client shall provide Nium AU with records of End Customer Support activities (including Complaint reports and call recordings) in such frequency and format as specified by Nium AU from time to time, and to cooperate with Nium AU in assessing and evaluating the frequency, nature or underlying causes for any Complaints; and
       6. the Client shall retain all information relating to the Complaints for the minimum amount of time required by Applicable Law and shall provide the same to Nium AU periodically on request.
   11. Insurance. The Client must maintain at its expense, during and seven years after the term of this Agreement, professional indemnity insurance (“AR Insurance”) and will provide evidence of such AR Insurance to Nium AU as requested. Nium AU may, by written notice to the Client, require the Client to increase the maximum limits of the AR Insurance cover to amounts which are reasonable in the circumstances which exist at the time. The contract of AR Insurance must:
       
       1. comply with the requirements under Applicable Laws in relation to the terms and conditions and limitations for professional indemnity insurance for AFS Licensees and their representatives;
       2. cover the Client and any Sub-authorised Representative against any liability arising out of or in connection with the performance of the Client’s obligations under this Agreement; and
       3. note the interest of Nium AU as a party entitled to benefit under the policy.
          
          In the event the Authorised Representative is unable to comply with its obligations under this clause, Nium AU may, in its discretion, obtain and maintain such AR Insurance. The Client shall fully reimburse Nium AU all costs and expenses (including without limitation any premium payable under the AR Insurance) incurred by Nium AU in obtaining the AR Insurance within thirty (30) days of receipt of a written request from Nium AU.
   12. Privacy Obligations. Each Party will:
       1. comply with the Privacy Obligations in relation to any Personal Information including and in respect of any notification that may be required in the event of a data breach described in subclause (n) below; and
       2. provide the other Party with all reasonable assistance that may be required for that other Party to comply with the Privacy Obligations.
   13. Client shall Obtain Consent. The Client must ensure that in dealing with information collected from End Customers, Card Users, and any other persons dealing with Nium AU, it will obtain all necessary consents (including regarding use, storage and disclosure of Personal Information) from any of the aforementioned persons so that Nium AU and the Authorised Representative is each able to comply with its respective obligations under this Agreement and the Privacy Act.
   14. Data Breach. In the event that a data breach or any event that amounts, or may amount, to an Eligible Data Breach occurs that has, or could reasonably impact Personal Information, the Client must:
       
       1. immediately notify, and keep updated, Nium AU of all known details relating to the breach or incident, including what Personal Information has been accessed or compromised, the nature of the breach or incident, whether the breach or incident has ceased or is ongoing, the location and cause of the breach or incident and whether any data has been lost or corrupted;
       2. comply with its obligations under the Privacy Act in relation to that event;
       3. provide Nium AU with all information requested by it about the event;
       4. retain all data critical to identifying the nature, extent and cause of the breach or incident and preserve all logs that detail access to and interactions with relevant Personal Information; and
       5. if requested, allow Nium AU to participate in the Client’s assessment of the event, including whether it amounts to an Eligible Data Breach, and any remediation activities.
   15. Disclosure of Personal Information outside of Australia. The Client acknowledges that Nium AU may disclose Personal Information about an individual and disclosed to a party under this agreement to a person who is not in Australia or an Australian external territory.
   16. Scope of Disclosure. For the avoidance of any doubt disclosure includes access by, or outsourcing functions to, an entity based overseas which will result in access to Personal Information.”
3. Direct Debit Scheme Compliance
   1. Where the Client initiates or facilitates direct debit transactions, the Client must:
      1. ensure that a valid Direct Debit Request is obtained from each End Customer before any debit is initiated from that End Customer's account, and that such authorisation complies with the requirements of the applicable scheme, including any required wording and disclosures;
      2. where End Customers authorise third parties to initiate debits from their Nium Account, ensure that End Customers are made aware that such third parties are responsible for the underlying goods or services and for the amount, timing, and frequency of any debit request, and that End Customers retain the right to manage, suspend, or cancel any such authorisation; and
      3. maintain records of End Customer authorisation and provide such records to Nium upon request.
   2. The Client acknowledges that direct debit returns and dispute rights in Australia are governed by the rules of the applicable direct debit scheme, and that End Customers' entitlement to refunds or returns in respect of direct debit transactions is determined by those scheme rules. Where an End Customer raises a dispute in respect of a direct debit transaction, the Client agrees to immediately notify Nium and to cooperate with Nium in managing any scheme investigation or return process, including by providing relevant mandate authorisation records within any timeframe prescribed by the applicable scheme rules.

APPENDIX B-2 - BRAZIL

The additional terms and conditions in this Appendix B-2 apply to Services provided by Nium BZ in Brazil.

1. Clean Company Act. The Client represents and warrants it is in compliance with all applicable anti-corruption and anti-bribery laws and regulations, including those of Brazil, and neither the Client nor any of its directors, officers, employees, agents, or representatives has engaged in any conduct that would result in a violation of such laws; further, it maintains policies and procedures reasonably designed to prevent, detect, and remediate acts of corruption and bribery.

APPENDIX B-3 - CANADA - QUEBEC

The additional terms and conditions in this Appendix B-3 apply to Services provided by Nium CA in Quebec.

1. Consumer Duty. The Client agrees to comply, at its own cost, and shall provide all assistance, information, records, consents and cooperation reasonably requested by Nium to enable Nium to comply with any obligations imposed on Nium under the Consumer Protection Act (CQLR c. P-40.1) (Québec), as amended from time to time. The Client shall be responsible for implementing and maintaining all customer-facing disclosures, notices, consents and processes required in connection with its use of the Services and shall promptly take any actions reasonably requested by Nium to address compliance requirements arising under such legislation. Failure by the Client to provide such assistance or to implement such actions shall constitute a material breach of this Agreement.

APPENDIX B-4 - EUROPEAN ECONOMIC AREA

The additional terms and conditions in this Appendix B-4 apply to Services provided by Nium NL from the Netherlands or Nium LT from Lithuania or Nium MT from Malta in the EEA.

1. Definitions.
   
   

   “Strong Customer Authentication”	means an authentication method based on the use of two or more elements categorized as knowledge (something only the user knows), possession (something only the user possesses) and inherence (something the user is). These must be independent from one another, in that the breach of one does not compromise the reliability of the others, and is designed in such a way as to protect the confidentiality of the authentication data.
   “Unauthorized Transaction”	means a transaction which has been processed by Nium to the Nium Account of an End Customer pursuant to any Services provided by Nium to such End Customer but such End Customer has alleged that the transaction was not authorized by such End Customer (including as a result of a misappropriated Card belonging to such End Customer).
   “Unauthorized Transaction Loss”	means Loss suffered by an End Customer in connection with an Unauthorized Transaction.

   
   
   
2. Refunds due to Unauthorized Transactions.
   1. Client’s Obligations with respect to Unauthorized Transactions. Upon being notified of an Unauthorized Transaction by an End Customer, the Client shall:
      
      1. immediately notify Nium of such Unauthorized Transaction and shall manage and record such Unauthorized Transaction in accordance with the procedures agreed between the Client and Nium; and
      2. provide Nium with all necessary information in such format and within the time period agreed with Nium and shall assist Nium with the investigation of such Unauthorized Transaction; and
      3. immediately transfer to Nium an amount equal to the Unauthorized Transaction Loss and ensure that Nium receives such amount no later than 24 hours after the Client has been notified of the Unauthorized Transaction by the applicable End Customer.
   2. Client’s Agreement to Provide Reserve. Upon request by Nium, the Client agrees to provide a Reserve to secure the performance of its obligations under this Section 2. Where the amount of the Reserve that is provided is insufficient to cover any Unauthorized Transaction Loss, the Client shall immediately (i) transfer to Nium an additional Reserve amount equal to such Unauthorized Transaction Loss (“Additional Reserve”) and (ii) ensure that Nium receives such Additional Reserve within the time period stipulated by Nium.
   3. Investigation Outcome in Favour of End Customer. Where the investigation outcome is decided in favour of the affected End Customer, Nium shall return such amount received from the relevant third party merchant or payment service provider to the Client (“Unauthorized Transaction Refund”). The Client acknowledges and agrees that the amount of Unauthorized Transaction Refund may be different from the Unauthorized Losses or the amount originally paid by the End Customer, as applicable, due to exchange rates fluctuation or the amount received may constitute only a partial refund of the Unauthorized Losses or the original amount.
   4. Investigation Outcome Against End Customer. Where the investigation outcome is decided against the affected End Customer for an Unauthorized Transaction, upon request from the Client and provided that there are sufficient funds held by Nium on behalf of the affected End Customer, Nium shall deduct an amount equivalent to the Unauthorized Losses from the End Customer’s Available Balance (if sufficient) and transfer such amount to the Client.
   5. Nium’s Liability with respect to Losses. Nium shall not be liable to make up for any Losses suffered by the Client due to any Unauthorized Transaction unless such Losses are due to the gross negligence or wilful default of Nium.
3. Client’s Obligations with respect to Strong Customer Authentication. The Client shall implement Strong Customer Authentication procedures which are compliant with Applicable Laws and the terms of the outsourcing agreement to be entered into between Nium and the Client (“Outsourcing Agreement”). The Client shall ensure that the Outsourcing Agreement is executed between the Parties prior to submitting the first transaction to Nium for processing on behalf of any End Customer.

APPENDIX B-5 - HONG KONG

The additional terms and conditions in this Appendix B-5 apply to Services provided by Nium HK in Hong Kong.

1. No stored value facility.
   1. The Pay Out Service and/or the Pay In Service do not constitute a stored value facility. All funds received by us pursuant to the Pay In Service are held by Nium HK at the End Customer’s instruction pending its Pay Out Instruction.
   2. If an End Customer has not submitted a Pay Out Instruction to Nium for processing for a period of thirty (30) consecutive days or more, any Pay In funds received by Nium on behalf of such End Customer shall automatically be paid out to a HKD or USD bank account maintained by such End Customer with a licensed Financial Institution in Hong Kong (“Automatic Sweep”). Nium shall not be liable to the Client or such End Customer for any Losses suffered by either the Client or End Customer arising from or in connection with the Automatic Sweep.

APPENDIX B-6 - NEW ZEALAND

The additional terms and conditions in this Appendix B-6 apply to Services provided by Nium NZ in New Zealand.

1. Nium NZ’s Rights to Suspend or Terminate the Services. In addition to Nium NZ’s rights under Section 16(b)(ii) of the Agreement Terms, Nium NZ can suspend or terminate the Services immediately, in whole or in part, at any time, for any reason, including but not limited to, the following: the Client is subject to the appointment of a voluntary administrator, a receiver and manager or a statutory manager (including being subject to a recommendation by the New Zealand Financial Markets Authority) or the Client is declared a corporation at risk under the Corporations (Investigations and Management) Act 1989.
2. No Third Party Beneficiaries. Except for any Nium Party or Client Party, no other person will have any right whatsoever under the Contract and Commercial Law Act 2017 to enforce this Agreement or otherwise have the benefit of any of its terms.

APPENDIX B-7 - UNITED KINGDOM

The additional terms and conditions in this Appendix B-7 apply to Services provided by NFL, Nium Solutions Limited and Nium Payments UK Limited in the United Kingdom.

1. Definitions.
   
   

   “Consumer Duty”	means the FCA’s Consumer Duty in the UK together with any rules and any binding and non-binding industry code, guidelines, guidance, direction, policy, recommendation, order or standard given by the FCA from time to time relating to consumer duty and including without limitation the requirement to act to deliver good outcomes for retail customers.
   “FCA"	means the Financial Conduct Authority in the UK.
   “Nium Customer Protection Principles” or “Principles”	means the Nium Customer Protection Principles available at Nium’s website at https://www.nium.com/legal/customer-protection-principles which are incorporated into and form part of the Agreement (as they may be updated from time to time pursuant to the provisions in the Nium Customer Protection Principles) together with any other guidance, procedures or policies of Nium and its Affiliates, in relation to Nium’s compliance with the Consumer Duty (as may be communicated to the Client from time to time).
   “Strong Customer Authentication”	means an authentication method based on the use of two or more elements categorized as knowledge (something only the user knows), possession (something only the user possesses) and inherence (something the user is). These must be independent from one another, in that the breach of one does not compromise the reliability of the others, and is designed in such a way as to protect the confidentiality of the authentication data.
   “Unauthorized Transaction”	means a transaction which has been processed by Nium to the Nium Account of an End Customer pursuant to any Services provided by Nium to such End Customer but such End Customer has alleged that the transaction was not authorized by such End Customer (including as a result of a misappropriated Card belonging to such End Customer).
   “Unauthorized Transaction Loss”	means Loss suffered by an End Customer in connection with an Unauthorized Transaction.

   
   
   
2. Consumer Duty.
   1. The Client agrees to comply, at its own cost, (and provide assistance as necessary to enable Nium to comply) with the obligations imposed on Nium by the Consumer Duty, including but not limited to complying with Nium’s Customer Protection Principles and the “cross-cutting rules and “customer outcomes” promulgated by the FCA, which can be found at https://www.fca.org.uk/publications/policy-statements/ps22-9-new-consumer-duty.
   2. In particular the Client acknowledges that it is a relevant party in Nium’s distribution chain for the purposes of the Consumer Duty and agrees that it shall:
      1. design and build products and services which incorporate the Services with due consideration of End Customer needs;
      2. provide End Customers with clear, fair and transparent communications and suitable information regarding the goods or services it provides;
      3. ensure that it carries out an appropriate “fair value assessment” in relation to the products and services it offers to End Customers; and
      4. ensure it provides adequate support to End Customers.
   3. The Client shall accurately identify its target market(s) of End Customers for the goods or services it provides (“Target Market”) in accordance with the requirements of Nium’s Customer Protection Principles and communicate with such Target Market accordingly. The Client further agrees to take into account the characteristics of vulnerability, such as age, disability, or financial hardship, when communicating with the identified Target Market.
   4. The Client agrees that all communications for End Customers issued or provided by the Client pursuant to this Agreement will be compliant with the Nium Customer Protection Principles.
   5. If the Client becomes aware of, or suspects that, any act, matter or thing has arisen or occurred which constitutes or gives rise to or is likely to constitute or give rise to a contravention of any Consumer Duty requirements, Nium’s Customer Protection Principles, and/or a risk of causing harm to End Customers, the Client shall, without delay, and in any case within two (2) Business Days of it first becoming aware of such event or development:
      
      1. notify Nium and provide any additional information reasonably requested by Nium;
      2. inform Nium of the remedial action it proposes to take; and
      3. use its best endeavours to remedy and/or mitigate the situation to Nium’s reasonable satisfaction.
   6. Nium reserves the right to request that the Client provides information to Nium from time to time in relation to the Client’s compliance with Nium’s Customer Protection Principles. Where requested by Nium, the Client shall, without delay, and in any case within ten (10) Business Days from Nium’s request, provide Nium with all information reasonably requested by Nium to enable Nium to comply with, or to demonstrate its compliance with the Consumer Duty.
   7. The Client agrees to fully indemnify, defend and hold harmless Nium, from and against any and all Losses that Nium incurs or suffers arising out of or in relation to:
      
      1. any breach by the Client of any Consumer Duty requirements or Nium’s Customer Protection Principles and/or breach by Nium of Consumer Duty to the extent that such breach results from any breach of this Agreement by the Client;
      2. Nium suspending or terminating the provision of a regulated product to the End Customers, to the extent that such termination or suspension results from any breach of this Agreement by the Client; and
      3. the information provided by the Client pursuant to Section 3(i). of the General Terms not being true or accurate.
   8. Nium may terminate this Agreement immediately on written notice to the Client if Nium reasonably considers termination is necessary in connection with compliance with its Consumer Duty requirements.
3. Refunds due to Unauthorized Transactions.
   1. Client’s Obligations with respect to Unauthorized Transactions. Upon being notified of an Unauthorized Transaction by an End Customer, the Client shall:
      
      1. immediately notify Nium of such Unauthorized Transaction and shall manage and record such Unauthorized Transaction in accordance with the procedures agreed between the Client and Nium; and
      2. provide Nium with all necessary information in such format and within the time period agreed with Nium and shall assist Nium with the investigation of such Unauthorized Transaction; and
      3. immediately transfer to Nium an amount equal to the Unauthorized Transaction Loss and ensure that Nium receives such amount no later than 24 hours after the Client has been notified of the Unauthorized Transaction by the applicable End Customer.
   2. Client’s Agreement to Provide Reserve. Upon request by Nium, the Client agrees to provide a Reserve to secure the performance of its obligations under this Section 26.  Where the amount of the Reserve that is provided is insufficient to cover any Unauthorized Transaction Loss, the Client shall immediately (i) transfer to Nium an additional Reserve amount of  equal to such Unauthorized Transaction Loss (“Additional Reserve”) and (ii) ensure that Nium receives such Additional Reserve within the time period stipulated by Nium.
   3. Investigation Outcome in Favour of End Customer. Where the investigation outcome is decided in favour of the affected End Customer, Nium shall return such amount received from the relevant third party merchant or payment service provider to the Client (“Unauthorized Transaction Refund”). The Client acknowledges and agrees that the amount of Unauthorized Transaction Refund may be different from the Unauthorized Losses or the amount originally paid by the End Customer, as applicable, due to exchange rates fluctuation or the amount received may constitute only a partial refund of the Unauthorized Losses or the original amount.
   4. Investigation Outcome Against End Customer. Where the investigation outcome is decided against the affected End Customer for an Unauthorized Transaction, upon request from the Client and provided that there are sufficient funds held by Nium on behalf of the affected End Customer, Nium shall deduct an amount equivalent to the Unauthorized Losses from the End Customer’s Available Balance (if sufficient) and transfer such amount to the Client.
   5. Nium’s Liability with respect to Losses. Nium shall not be liable to make up for any Losses suffered by the Client due to any Unauthorized Transaction unless such Losses are due to the gross negligence or wilful default of Nium.
4. Client’s Obligations with respect to Strong Customer Authentication. The Client shall implement Strong Customer Authentication procedures which are compliant with Applicable Laws and the terms of the outsourcing agreement to be entered into between Nium and the Client (“Outsourcing Agreement”). The Client shall ensure that the Outsourcing Agreement is executed between the Parties prior to submitting the first transaction to Nium for processing on behalf of any End Customer.
5. Direct Debit Scheme Compliance
   1. Direct Debit Initiation. Where the Client initiates or facilitates direct debit transactions, the Client must:
      1. ensure that all direct debit mandates obtained from End Customers comply with the requirements of the applicable direct debit scheme, including required authorisation wording and any applicable payer protections;
      2. ensure that any mandatory payer protections (including any applicable direct debit guarantee) are clearly presented to End Customers at the point of mandate creation;
      3. provide End Customers with advance notice of the amount and timing of any direct debit collections, and any changes to such collections, where required by applicable direct debit scheme rules; and
      4. maintain records of End Customer authorisation and provide such records to Nium upon request.
   2. Direct Debit Guarantee: The Client acknowledges that, under applicable direct debit scheme rules, End Customers may be entitled to immediate refunds in respect of direct debit transactions, including in cases of unauthorized or incorrectly processed payments. The Client agrees that it will immediately notify Nium of any refund request by an End Customer under the direct debit scheme.

APPENDIX B-8 - UNITED STATES

The additional terms and conditions in this Appendix B-8 apply to Services provided by Nium US in the United States.

1. Definitions.
   
   

   “Payment Service Bank”	means CRB or CFSB (each defined below); each a “Payment Service Bank”.
   “US Payment Services”	means any Services provided by the Payment Service Bank in connection with its provision of the Settlement Accounts, Nium Accounts, Pay In Services and Pay Out Services.

   
   
   
2. Payment Service Banks. Nium US works with the Payment Service Banks listed below to provide the US Payment Services. Nium US will notify the Client regarding which Payment Service Bank is providing the US Payment Services to the End Customers.
   
   1. Cross River Bank, a New Jersey state-chartered commercial bank and member of the Federal Deposit Insurance Corporation (FDIC) (“CRB”).
   2. Community Federal Savings Bank, a federal savings bank chartered in the United States (“CFSB”).
3. Services Offered by Nium US.
   1. Payment Service Bank. The Client understands and agrees that with respect to Settlement Accounts that are located in the United States and any Nium Accounts, Pay In Services and Pay Out Services that are offered by Nium US to End Customers:
      
      1. Nium US does not offer Nium Accounts, Pay In Services or Pay Out Services in the United States as a licensed money transmitter. Instead, Nium US operates under a program sponsored by the Payment Service Bank, to which Nium US is a service provider.
      2. Nium US operates a software and services platform that permits the End Customers to utilize Nium Accounts, Pay In Services and Pay Out Services provided by the Payment Service Bank.
      3. The Payment Service Bank will have sole custody over the funds in the Settlement Account, and will perform all US Payment Services. The Payment Service Bank, with respect to its performance of US Payment Services, will have the same rights of Nium that are set forth in the General Terms, the Pay Out and Pay In Service Additional Terms and Conditions and the Card Issuing Additional Terms and Conditions , with respect to (A) funds held in the Settlement Account and (B) the provision of the Nium Accounts, Pay In Services or Pay Out Services.
      4. The Client’s use of the US Payment Services is subject to the additional terms and conditions of the Payment Service Bank, as provided by Nium US in writing from time to time (the “US Payment Services Terms”). The US Payment Services Terms may be amended by the Payment Service Bank at any time and in its sole discretion.
         (A) If the US Payments Services are provided by CRB, the CRB Payment Services Terms located at https://www.nium.com/legal/crb-terms, govern the US Payment Services.
         (B) If the US Payment Services are provided by CFSB, the CFSB Payment Services Terms located at https://www.nium.com/legal/cfsb-terms, govern the US Payment Services.
   2. Additional Termination Right of Nium US. In addition to the rights of termination set forth in Section 16, Nium US may immediately terminate this Agreement (or its Affiliate Agreement) at any time, in the event that the Payment Service Bank has, in its sole discretion, terminated Client’s use of any of the US Payment Services.
4. Binding Arbitration; Waiver of Jury Trial.
   1. Binding Arbitration. Solely with respect to any dispute between the Client and Nium US, the following arbitration provisions shall apply:
      1. Any disputes or claims (except for a dispute principally related to either Party’s intellectual property rights, which will be resolved in litigation before state or federal courts located in San Francisco, California) shall be resolved by arbitration conducted in accordance with the rules of the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules, currently available at https://www.adr.org/rules-forms-and-fees/commercial/, as such rules may be revised by the AAA, and judgment upon the award rendered by the arbitral tribunal may be entered in any court having jurisdiction thereof. The arbitral tribunal shall consist of a single arbitrator. The Party initiating the arbitration proceeding shall, in the notice of arbitration, nominate an arbitrator duly qualified to preside, and if the other Party does not object to the nominated arbitrator, such arbitrator shall preside. If the other Party objects by giving written notice to the other Party, and if the Parties do not agree on an arbitrator within ten (10) calendar days of such notice of objection, then a qualified arbitrator shall be appointed by the AAA. “Qualified” for purposes of this Section 4(a)(i) means a person licensed to practice law in a U.S. jurisdiction, with experience advising Financial Institutions or arbitrating disputes involving Financial Institutions, and with expertise in financial services laws and regulations. The place of arbitration shall be in San Francisco, California, unless the Parties agree to another location, and all proceedings and written submissions shall be in English. The arbitration award shall be final and binding. The Parties waive any right to appeal the arbitration award, to the extent a right to appeal may be lawfully waived.
      2. Each Party retains the right to seek judicial assistance: (A) to compel arbitration, (B) to seek temporary injunctive relief in any court with jurisdiction over the Party against which the relief is sought (with such relief to extend only until the propriety of permanent relief can be decided by the arbitrator), (C) to obtain other interim measures of protection prior to or pending arbitration, and (D) to enforce any decision of the arbitrator, including the final award. Judicial assistance pursuant to this Section 4(a)(ii) may be sought in and of the state or federal courts located in San Francisco, California (and for purposes of subsections (B) and (C), exclusively in such courts), and the Parties submit to the jurisdiction thereof. Injunctive relief shall be granted without the requirement of posting a bond.
      3. The Parties acknowledge and agree that this Agreement evidences a transaction involving interstate commerce and will be governed by the Federal Arbitration Act (9 U.S.C.1-16).
      4. No demand for arbitration may be made after the date when the institution of legal or equitable proceedings based on such claim or dispute would be barred by the applicable statute of limitation.
      5. Subject to the exclusions, disclaimers and limitations of liability set forth in these Terms (including those set forth in Section 15 of the Agreement), the arbitrator may award damages and any other remedies allowed by the laws of the State of California. In making a determination, the arbitrator will not have the authority to modify any term of these Terms. The arbitrator shall issue to the Parties a reasoned and written decision with respect to the dispute. Judgment upon the arbitrator's award may be entered in any court having jurisdiction.
      6. The Parties will keep confidential the existence of the arbitration, the arbitration proceeding, the hearing and the arbitrator’s decision, except (A) as necessary to prepare for and conduct the arbitration hearing on the merits, (B) in connection with a court application for a preliminary remedy, or confirmation of an arbitrator’s decision or its enforcement, (C) as disclosed in confidence to their respective attorneys, accountants and other professional advisors that are subject to a duty of confidentiality, or (D) as otherwise required by applicable laws or court order.
   2. Waiver of Jury Trial. If for any reason a claim or dispute proceeds in court rather than through arbitration, each Party hereby waives trial by jury in any court action or proceeding to which they may be Parties, arising out of, in connection with or in any way pertaining to, these Terms.