Verify Terms of Service

1. “Affiliate” means any entity which Controls or is Controlled by or under common Control with or by a Party.
2. “Applicable Laws” means any of the following to the extent that it applies to this Agreement and/or the provision or receipt of the Verify Service to or by a Party (including, without limitation, any regulatory obligations applicable to one Party with which the other Party is required to comply):
   1. any law or regulation in the relevant jurisdiction applicable to a Party and/or the Verify Service from time to time; or
   2. the operating rules, regulations and guidelines and technical standards promulgated from time to time by any organization; and
   3. the Data Protection Laws.
3. “Business Day” means a day, other than a Saturday or Sunday or public or bank holiday, when banks are open for the transaction of business in the country where Nium is located.
4. “Claim” means any claim, demand, lawsuit, sanction, judgment, all foreseeable or unforeseeable and alleged or actual action, causes of action or other similar proceeding.
5. “Confidential Information” means all information, data, practices, and techniques relating to a Party’s or its Affiliates‘ clients, competitors, business, operations, strategies, computer systems, marketing systems and Intellectual Property Rights or other property, of which the other Party becomes aware in negotiating or performing this Agreement, but does not include information which is publicly available or was lawfully known at the time of disclosure or later becomes part of the public domain through no breach of this Agreement. This Agreement and the Fees are Nium’s Confidential Information.
6. “Client Data” means any electronic data and information submitted by Client in the course of accessing and using the Verify Service, which for the avoidance of doubt may include Personal Data.
7. “Data Protection Laws” means:
   1. the Personal Data Protection and Electronic Documents Act, S.C. 2000, c. 5 of Canada;
   2. the Personal Data Protection and Electronic Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), Act, S.C. 2000, c. 5 of Canada;
   3. the Singapore Personal Data Protection Act 2012;
   4. the Data Protection Act 2018 in the UK and the ‘UK GDPR’, as defined in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018;
   5. the California Consumer Privacy Act of 2018 and the California Privacy Rights Act of 2020;
   6. the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) any laws or regulations implementing the Privacy and Electronic Communications Directive 2002/58/EC;
   7. any laws and regulations that replace, extend, re-enact, consolidate or amend any of the foregoing whether or not before or after the date of the Agreement from the date they come into force; and
   8. the guidance and codes of practice issued by any relevant data protection regulator and applicable to a Party.
8. “Documentation” means Nium’s product support documentation, API documentation, and applicable pages on its website, as updated by Nium from time to time.
9. “Effective Date” means the “Effective Date” stated in the Fee Schedule.
10. “End User” means the individual or business that is a customer or prospective customer of the Client and the account holder whose details are being verified by the Client using the Verify Service.
11. “Fees” means the amounts payable by the Client as set out in the Fee Schedule.
12. “Fee Schedule” means the Nium fee schedule for the account verification service entered into between the Parties, which these Verify Terms of Service form part of.
13. “Intellectual Property Rights” means any patent, right to invention, copyright, trademark, service mark, trade secret, trade dress, mask work, moral right, right of attribution or integrity, business names and domain names, goodwill and the right to sue for passing off or unfair competition, rights in computer software, database rights, right to use and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property or proprietary rights arising under the laws of any jurisdiction (including, without limitation, all claims and causes of action for infringement, misappropriation or violation thereof and all rights in any registrations and renewals), which subsist or will subsist in the future in any part of the world, and whether registered or unregistered (including any applications and rights to be granted, renewals or extensions of, and right to claim priority from, such rights).
14. “Party” means a party to this Agreement and “Parties” means both parties to this Agreement.
15. “Personal Data” means any information that (a) identifies or relates to an individual or an End User who can be identified directly or indirectly from that data alone or in combination with other information in a Party’s possession or control or that such Party is likely to have access to, or (b) any other information that is defined as “personal information” or “personal data” under all applicable Data Protection Laws.
16. “Representatives” means with respect to a Party, the officers, directors, employees, agents, subcontractors and advisors of such Party.
17. “Tax” means and includes, in relation to any jurisdiction, whether levied during or after the expiry of the term, any applicable national, state, local or foreign income, gross receipts, license, payroll, employment, excise, business, corporate income, severance, occupation, premium, windfall profits, capital gains tax, entertainment tax, registration fees or stamp duties, works contract tax, advertising/sponsorship-related taxes, luxury tax, environmental, customs duties, tariffs, octroi, capital stock, wealth, land, franchise, profits, withholding taxes, fringe benefits, payroll, unemployment, disability, real property, personal property, sale, use, consumption, lease, research and development, service, transfer, recording, documenting, registration, sales tax, alternative or add-on minimum, estimated or other tax or duty of any kind whatsoever and includes any surcharge, excess, charge, levy, interest, fee, penalty, related to or in addition thereto (whether direct or indirect and wherever and whenever imposed or potentially imposed or any deposit of tax with the authorities by way of a guarantee or security pursuant to or without any tax claim (whether disputed or not, whether by way of withholding or deduction for or on account of tax or otherwise, on a normative or deemed basis or by applying any other method, and includes for the purpose of clarity, any tax levied pursuant to audit by the tax authorities under any of the processes prescribed under the relevant law) by any authorities).
18. “Term” means the duration of this Agreement, as set out in Section 8.
19. “User” means any person employed or engaged by the Client or its Affiliates or their subcontractors from time to time to access the Verify Service on behalf of the Client.
20. “Verify Service” any hosted account verification service provided by Nium and any Documentation related to such service, including any upgrades, modified versions, bug fixes, or updates to such service, that allows Client to check account details and names of End User(s) before initiating or collecting a payment.

1. Licence. Subject to the terms of this Agreement, during the Term, Nium hereby grants to Client a limited, non-exclusive, non-sublicensable (other than to third-parties authorized to act on Client’s behalf), and non-transferrable license to: (i) use the Verify Service in accordance with the Documentation (and subject to any other guidelines relating to the Verify Service as may be provided by Nium from time to time) solely for Client’s own business purposes, and (ii) make a limited number of copies of the Documentation for internal use and only as necessary to support Client’s use of the Verify Service, provided that all copies retain Nium’s original proprietary legends and logos.
2. Access. Client is responsible for its Users’ performance under this Agreement and for all acts and omissions with respect to access or use of the Verify Service which occur via Client’s account. Client shall:
   1. protect any login credentials used to access the Verify Service from unauthorized access, use, and disclosure;
   2. not share any login credentials with any third party, share login credentials across multiple Users, enable multiple Users to access the Verify Service through a single User account, or falsify User information, impersonate any person or entity, or provide misleading information about itself or a User; and
   3. promptly notify Nium in writing of any unauthorized access to or use of any of its accounts or credentials.
3. Client Obligations. Client shall comply with all Applicable Laws, including those applicable to sharing and processing of Client Data via the Verify Service. Client represents and warrants that it has obtained any and all applicable and necessary authorizations and consents and provided all necessary notices to share and process the Client Data in connection with the use of the Verify Service.
4. Client Data. Client agrees that its use of the Verify Service, including the provision and processing of any Client Data in connection with the use of the Verify Service, shall be subject to Nium’s Global Privacy Policy. Client is responsible for the accuracy, quality, and integrity of Client Data provided in connection with the use of the Verify Service. Nium shall not be responsible for or undertake to verify the accuracy or completeness of the Client Data.
5. Restrictions. Client shall not directly or indirectly (including through any third party):
   1. modify, adapt, translate, decompile, disassemble, reverse engineer, copy, reproduce, duplicate, incorporate into or with other software, create a derivative work or an improvement of, or attempt to reconstruct, identify, or discover the source code, underlying ideas or algorithms of any part of the Services;
   2. impact the quality of other users’ experience when using Nium products and services;
   3. introduce malicious programs, viruses, malware, or other software or mechanisms into the Verify Service, including robots, spiders, scrapers, or any software designed to interfere with its proper operation or that accesses (or attempts to access) a computer, network, or data without authorization;
   4. attempt to circumvent authentication or security of any host, network, or account or use or permit others to use any security or testing tools in order to probe, scan, or attempt to penetrate or ascertain the security of the Verify Service;
   5. work around any of the technical limitations of the Verify Service or enable functionality that is disabled or prohibited;
   6. submit any Client Data to the Verify Service that infringes or misappropriates the intellectual property rights of any third party or violates the privacy or other proprietary right of any third party;
   7. sell, sublease, or resell any aspect of the Verify Service or otherwise make the Verify Service available for any use other than the Client’s internal business purposes or to any third party for a fee.
6. Client Acknowledgement. Client acknowledges and agrees that:
   1. Nium is not facilitating the provision of any kind of consolidated account information service (which may be regulated in certain countries where the Client is receiving the Verify Services);
   2. Nium does not provide credit information services and/or credit references pursuant to regulations 89A and 89B of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001, nor is Nium a “consumer reporting agency” or a “furnisher” of information to consumer reporting agencies, and the Verify Service provided by Nium is not a “consumer report,” as those terms are defined in the Fair Credit Reporting Act (“FCRA”), 15 USC 1681 et seq., its implementing regulations, and relevant state consumer reporting laws and regulations. The Verify Service may not be used in whole or in part as a factor in determining a consumer's eligibility for credit, insurance, employment, or any other permissible purpose under the FCRA; and any information about an End User disclosed to the Client in connection with the Verify Service does not result in Nium providing credit information services or credit references pursuant to Applicable Law; and
   3. the provision by Nium of the Verify Service (a) does not constitute a regulated activity and (b) is completely separate and independent of any regulated payment services the Client may receive from time to time from any Nium Affiliates.

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. Breach of any provision of this Section 3 constitutes a material breach entitling Nium to terminate this Agreement in accordance with Section 8. 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 interest 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. Set-off. 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 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.

1. Disclaimer for the Verify Service. The Verify Service is 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 Verify Service, including any warranty that the Verify Service will be uninterrupted, error free or free of harmful components, or that any data or information, including Client Data, Confidential Information or any other data that may result from the Client’s use of the Verify Service, will be complete, accurate, up-to-date, 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 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.
2. Client Representations and Warranties. Client represents and warrants that:
   1. Client will only use the Verify Service (including End User information derived therefrom) to verify the End User’s account details and for no other purpose, including to provide the End User with consolidated payment account information.
   2. It will not and will not permit or enable any third party to: (i) use the Verify Service (including End User information derived therefrom) in order to provide credit information services and/or credit references pursuant to Applicable Laws; or (ii) otherwise use the Verify Service and End User information such that they would be deemed to be providing credit information services and/or credit references under Applicable Laws, unless the Client or any relevant third party holds the requisite authorization pursuant to Applicable Laws to provide credit information services and/or credit references.

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 Verify Service 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, Client shall not acquire any rights, title, or interest, express or implied, to the Verify Service 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. 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 Client reference lists and sales presentations, 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.

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 this Agreement by Client;
   2. the Client’s access to and/or use of the Verify Service 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 by any payment network or any government entity;
   3. the Client’s non-compliance with Applicable Laws, including with respect to the Client’s access to and/or use of the Verify Service;
   4. the Client’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 Verify Service;
   6. any request, instruction or information given by the Client; or
   7. Client’s use of the Verify Service.

The above defense 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 7(b), Nium will, to the fullest extent permitted by Applicable Laws, indemnify, defend and hold harmless the Client from and against any and all Claims brought against the Client by a third party, and any and all Losses incurred in connection with such third-party Claims, based upon or arising out of:
   1. any breach of this Agreement by Nium;
   2. Nium’s non-compliance 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, subject to Section 6(c).

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

3. If Nium receives information about an infringement or misappropriation Claim related to the Verify Service, Nium may in its discretion, and at no cost to Client, (i) modify the Verify Service so that it is no longer claimed to infringe or misappropriate the Intellectual Property Rights of a third party, (ii) obtain a license for Client’s continued use of the Verify Service in accordance with this Agreement, or (iii) terminate this Agreement, in whole or in part, with respect to the Verify Service upon thirty (30) days’ written notice to the Client. The indemnification obligations set forth in this Section 6(b) do not apply if (iv) the allegation does not state with specificity that the Verify Service is the basis of the Claim against the Client, (v) a Claim against the Client arises from the use or combination of the Verify Service or any part thereof with software, hardware, data, or processes not provided by Nium, if the Verify Service or use thereof would not infringe without such combination, (vi) the alleged infringement arises from third-party materials or data, (vii) the alleged infringement arises from a modification of the materials other than by or on behalf of Nium, (viii) the alleged infringement arises from a failure to timely implement modifications, upgrades, replacements, or enhancements made available to the Client by or on behalf of Nium, or (ix) the Claim ultimately arises from Client’s breach of this Agreement or Client’s gross negligence or intentional misconduct.

1. Damages Waiver. In no event will Nium have any liability arising out of or related to this Agreement or the Verify Service 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 has been advised of the possibility of such damages or if the Client’s remedy otherwise fails of its essential purpose. The foregoing disclaimer will not apply to the extent prohibited by Applicable Laws.
2. Liability Cap. In no event shall the aggregate liability of Nium, 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)); provided; however, that this limitation of liability shall not apply to any act of willful misconduct or fraud by Nium. 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 7 is reasonable having regard to all relevant factors, including the nature and cost of the Verify Service provided and the allocation of risk and liability between the Parties.

1. Term. This Agreement shall take effect from the Effective Date and shall continue thereafter for the Initial Term (as set out in the Fee Schedule) unless terminated earlier by either Party in accordance with the terms of this Agreement. At the end of the Initial Term, this Agreement shall automatically renew for a further period of one (1) year (each a “Renewal Term”) unless either Party gives notice to the other Party to terminate pursuant to Section 8(b).
2. Termination Without Cause by Either Party. In addition to the other rights set forth in this Section 8, either Party may terminate this Agreement at any time by giving the other Party at least thirty (30) days’ written notice of termination.
3. Notwithstanding the foregoing, the Client may not exercise its rights under Section 8(b) unless, where applicable, the Client has paid Nium an Early Termination Fee (as set out in the Fee Schedule). 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.
4. Termination for Cause by Either Party. Without prejudice to any other rights or remedies it may have in this Agreement, either Party may serve a notice in writing on the other Party terminating this Agreement (in whole or part as specified in such notice), with effect on and from the date of service of such notice (or such later date as specified in such written notice) if the other Party commits a material breach of this Agreement (including a persistent breach which by reason of its persistence becomes material) and such breach:
   1. is not capable of remedy; or
   2. if capable of remedy, has not been remedied to the reasonable satisfaction of the other Party within 30 days (or such other period as is reasonably specified by the other Party) after receipt by the defaulting Party of a notice from the other Party requiring such remedy.
5. 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 access to the Verify Service, in whole or in part, if:
   1. the Client files, or has filed against it any petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors;
   2. the Client is not paying its debts as they become due and payable;
   3. an Affiliate of Nium becomes entitled to terminate any agreement it has with an Affiliate of the Client;
   4. Nium is required to terminate this Agreement pursuant to Applicable Laws;
   5. Nium reasonably believes that the Verify Service is being used for a purpose contrary to Applicable Laws or for an unauthorized or fraudulent use;
   6. the security of the Verify Service has been compromised due to the actions or omissions of the Client;
   7. the results of any “know your customer” 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 to provide the Verify 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 license, permission or authorization required to operate the Client’s business;
   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; or
   10. a third-party service provider offering services to Nium in connection with the Verify Service, has either (A) terminated or suspended the performance of its services to Nium or (B) has directed Nium to no longer permit the Client to utilize or benefit from their services.
6. Effect of Termination.
   1. General. Upon termination or expiration of this Agreement, Client will (A) remove any reference to Nium from any websites, software applications, marketing or advertising materials; and (B) return and/or destroy any Nium property (including Intellectual Property Rights) 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 and 6 to 15), and termination will not affect accrued rights, obligations and liabilities of any Party under this Agreement as at the date of termination.

1. Amendment. Except for changes to the 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. The modified Agreement is effective upon posting or, if Nium notified the Client, as stated in the notice. If the Client objects to any of the modified terms in the Agreement, the Client may terminate this Agreement in accordance with Section 8. By continuing to use the Verify Service 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 and Applicable Laws. Nium may from time to time, make changes to the Verify Service. In addition, Nium may vary the terms of this Agreement to the extent required to comply with any change in Applicable Laws, without notice to the Client.

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.

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-one (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 accordance with Section 14.
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.

1. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California without reference to the conflicts of laws principles thereof. 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, this Agreement.
2. Binding Arbitration. With respect to any Dispute between the Client and Nium, the following arbitration provisions shall apply.
   1. Any Dispute (except for a Dispute related to either Party’s Intellectual Property Rights), which cannot otherwise be resolved as provided in Section 13, 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 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 14(b)(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. 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.
   4. Subject to the exclusions, disclaimers and limitations of liability set forth in this 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 this Agreement. 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.
   5. 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.

1. Entire Agreement. This Agreement, including the applicable Fee Schedule(s), the Nium Global Privacy Policy (which is incorporated by reference hereto) and any annexes, 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 Nium or the Client, no other person will have any right whatsoever to enforce this Agreement or have the benefit of any of its terms.