Terms and Conditions for Business Customers – Non-U.S

Thank you for using Nium!

1. WHO ARE WE? 

1.1 Parties to these Term. These Terms and Condition for Business Customers (“Terms”) are between your organisation (“Customer”, or “You”), the relevant Nium entity as set out in Appendix A to these terms with whom you have opened a Nium account and, if applicable, NIUM, Inc., a Delaware corporation (file number 5702837) which is the provider of the Verify Service (collectively,“Nium”, “We” “Our,” “Us”).

2. WHY HAVE YOU RECEIVED THESE TERMS?

2.1. You applied for Pay In and Pay Out. You have received these Terms because you have signed up for one or more of the following services: 

1. The Pay In Service. Subject to payment of fees and these Terms, if permitted by the Platform Provider via the Platform, we agree to enable such payment service (“Pay In Service”) to you whereby you may (i) provide funds for the use of Pay Out Service; (ii) receive funds in a Supported Currency from a third party approved by us (“Payer”) (services described in (i) and (ii) are collectively referred to as "Pay In”); (iii) exchange funds from one type of currency that is permitted by Nium, in its sole discretion (“Supported Currency”) to another Supported Currency; and (iv) maintain funds in a Supported Currency.
2. The Pay Out Service. Subject to payment of fees and these Terms, if permitted by the Platform Provider via the Platform, we agree to enable such payment service (“Pay Out Service”) to you whereby you may transfer funds to yourself or a third party beneficiary located in a jurisdiction approved by us (“Pay Out”).
3. The Verify Service. Subject to payment of fees and these Terms, Nium will provide a hosted account verification service and any documentation related to such service, including any upgrades, modified versions, bug fixes, or updates to such service, that allows Customer to check account details and names of End User(s) before initiating or collecting a payment (the “Verify Service”). “End User” means the individual or business that your customer or prospective customer and the account holder whose details are being verified by you using the Verify Service.

2.2. Use of the Pay In, Pay Out or Verify Services Constitutes Your Agreement to these Terms. You are deemed to have consented to these Terms once you use the Pay In Services, Pay Out Services, and/or the Verify Service (“Services”). These Terms describe how you may use the Services via the Platform. The Platform Provider will determine which Services may be offered to you by Nium via the Platform.

2.3. Use of Pay In and/or Pay Out Services Is Facilitated by the Platform Provider. Your use of the Services is facilitated by a website, software and technology platform, or mobile software application (“Platform”) developed and operated by a third-party platform provider with which you have a separate and independent agreement (“Platform Provider”). Please see Section 4 below for more information regarding the Platform Provider and your use of the Platform.

2.4. Authority to Agree to these Terms on Behalf of the Organisation. By using Pay In or Pay Out services, which constitutes acceptance of these Terms on behalf of the organisation you represent (“Organisation”), you confirm that you have appropriate authority to enter into an agreement with us on these Terms and bind the Organization to these Terms. If you do not have appropriate authority, you will become personally liable for compliance with these terms. You must ensure that any person who will be permitted to use the Services complies with these Terms.

2.5. Services Are Offered by the Nium Entity in the Licensed Jurisdiction. The Pay In and Pay Out services are made available by the relevant Nium entity from its jurisdiction of incorporation (“Licensed Jurisdiction”). We do not intend to solicit, target or market the Services to you or any third party outside of our Licensed Jurisdiction.

3. WHY IS IT IMPORTANT FOR YOU TO READ THESE TERMS?

3.1. Please Read these Terms Carefully. These Terms set out the terms and conditions on which we provide the Services to you, what your obligations are in respect of the Services, how you should use the Services and other important information. They also inform you what to do if there is a problem, what our responsibilities are and how the Terms may be terminated. We recommend that you save a copy of these Terms. These Terms apply only to the Services which you have applied for through the Platform Provider and which are approved by us.

3.2. Precedence of Terms. These Terms consist of the following components: (a) these main terms and conditions (“Main Terms and Conditions”); (b) the International Jurisdiction Additional Terms and Conditions set forth in Appendix A; (c) the supplemental terms and conditions applicable to small charities and micro-enterprises in the EEA and UK set forth in Appendix B; and (d) the supplemental terms and condition applicable in Hong Kong Appendix C. If any terms in any components of these Terms 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 A); then (2) these Main Terms and Conditions.

3.3. Updates to these Terms. We reserve the right to change these Terms from time to time. We will only make changes to these Terms that are necessary to: (a) comply with applicable laws and regulations, (b) comply with applicable payment network rules, or (c) permit you to use new product capabilities offered by us. If we need to make any changes to these Terms we will ask the Platform Provider to publish a revised version of the Terms on the Platform at least 60 days before we implement the changes. If it is not possible for us to give you at least 60 days’ notice in advance (for example if there are urgent legislative changes), the notice period may be shorter, but we will do our best to give you as much notice as possible (“Change Notice”). If we need to introduce changes that are less favourable to you than the Terms to which you agreed when you applied for the Services, and you do not agree to such new Terms, you can notify us (usually via the Platform, but you can also contact the Platform Provider or us directly) that you reject the proposed new Terms before the expiry of the Change Notice, i.e. before the date when we propose to implement the new Terms. Your rejection will mean that you wish to terminate these Terms and the Services. You will not be charged anything by us for terminating these Terms in these circumstances. If we do not hear from you before such date, we will assume that you have accepted the changes, and you will be deemed to have accepted the new Terms.

3.4. Privacy Notice. We will collect some personal data about you as the user of the Services. For information regarding how we process personal data, please see our Privacy Policy at: https://www.nium.com/privacy/privacy-notice.

4. THE PLATFORM AND OUR SERVICES

4.1. Relationship with Platform Provider. The Platform Provider is your primary point of contact. If you have any questions or issues related to the Services, you should initially direct your queries to the Platform Provider, by such means as the Platform Provider makes available to you (for example email, in-Platform chat or telephone).

4.2. Transmission of Information from Platform Provider. By applying for the Services, you confirm that you have provided your authorisation and consent to the Platform Provider to do any of the following:

1. collect and pass on to us all information, communications and instructions submitted by you, any payments or other transaction instructions in connection with the Services. This includes information, communications and instructions submitted by any means accepted by the Platform Provider, for example in-Platform chat, telephone or email. We will rely on and will be entitled to act on any such information, communications and instructions received by us from the Platform Provider, as if the information, communications and instructions were given to us directly by you. Please note that we are not required to check the accuracy of any such information, communications and/or instructions; 
2. receive all information, communications, instructions provided by us in connection with the Services. We are entitled to rely on the Platform Provider to transmit such information, communications and instructions. We are not required to check that such information, communication or instructions have indeed been transmitted to you. We will not be liable to you for any losses caused to you if the Platform Provider subsequently fails to, or delays to, communicate such information, communications or instructions to you; and 
3. access, manage, deal with any account you maintain with us or use any information (whether received from us or not) in relation to such account in such manner as mutually agreed between you and the Platform Provider. We are not responsible to you for any losses suffered by you as a result of the Platform Provider performing such activities on your behalf. 

The authorisation and consent in this Clause 4.2, remains valid and binding on you for as long as you continue to use the Services.

4.3. Restrictions on Authority of Platform Provider. Unless we otherwise notify you in writing, the Platform Provider is neither (i) licensed to provide payment services nor authorised to act or perform any instruction on our behalf with respect to the Services, nor (ii) authorised to collect or receive funds on our behalf. The Platform Provider solely facilitates the transmission of information, communication and instruction to us on your behalf in connection with the Services.

4.4. You Are Responsible for Checking the Completeness and Accuracy of All Information, Communications and Instructions. You must ensure that all information, communications and instructions submitted to the Platform Provider, via the Platform or by any other means is complete and accurate. Failure to provide complete information may cause delays, for example, we may be unable to process your instructions. If you notice any error in any information, communication or instruction provided to us via the Platform Provider, you must correct it as soon as possible via the Platform or by contacting the Platform Provider. We will not be responsible, and will not compensate you, if you suffer any losses as a result of incomplete or inaccurate information provided to us (whether directly by you or via the Platform Provider), or as a result of any delays caused by any errors, inaccuracies or late submissions of any instructions or requests by you.

4.5. We May Screen Instructions Received from You. We have the right to screen any instructions received in respect of the Services. We may refuse to act on any instructions or requests received from you. Except to the extent restricted by law or contract, we will inform the Platform Provider of the reasons why we are unable to act on your instructions or requests.

4.6. Monitor Your Use of the Services and Keep Your Own Records. The Platform Provider will provide you with records of transactions processed by us pursuant to the Services, whether via the Platform or by other means. You should monitor and keep a record of all of your transactions. This will allow you to verify whether the transaction reports are accurate and enable you to inform the Platform Provider if you notice any errors. You are responsible for checking the completeness and accuracy of all information, communications and instructions. Where you have been notified by the Platform Provider to do so, you should also enable the Platform to send you notifications of all transactions involving the Services. We are not responsible for the accuracy of any records displayed by the Platform.

5. ELIGIBILITY

5.1. We Will Carry Out Customer Identification and Verification Checks. We are required by law to carry out certain checks on all Customers before we agree to provide Services. We may ask you to provide us with certain information and documentation to enable us to carry out our checks, for example to verify your identity, details of the customer you represent and its financial standing, and we may need to ask third party service providers (for example credit reference agencies) to verify certain information about you. All information provided by you must be accurate in all respects and you shall not omit or withhold any information which would make such information inaccurate in any respect. Failure to comply with our requests for information or documentation may result in the denial of your application for the Services or suspension or termination of the Services.

5.2. Keeping Us Updated. It is very important to keep us updated about any changes to the information provided as part of your application for the Services and any information and documentation submitted to us. It includes information about any sanctions applicable to you, or any other circumstances which would make your use of the Services illegal. You must inform us promptly about any changes to your circumstances affecting your eligibility for the Services and/or your ability to comply with these Terms.

5.3. We Will Have the Right to Refuse Any Application. We will have the right to refuse any application. We have the right to refuse any application for any Services at any time (including where we are required to do so under any applicable law, regulation or guidance). We shall, to the extent permitted by applicable laws and practicable, inform you about the reason of any such refusal.

6. PAY IN AND PAY OUT SERVICES; VERIFY SERVICE

6.1. Use of Pay In and/or Pay Out Services Solely for Your Own Business Purposes. You can use the Services for business purposes only and as authorised by the Customer only. You must not use the Services for personal, family or household purposes.

6.2. We Do Not Make Any Representations and Warranties with Respect to Any Underlying Transaction. Where a Pay In arises from an underlying transaction between you and a Payer, we do not have any control of, nor any liability for, such underlying transaction or any goods, products or services provided to the Payer by you.

6.3. We May Decline to Provide the Pay In Service and Pay Out Service. We may, in our sole discretion and for any reason, refuse to provide Pay In Service or Pay Out Service to you. We shall, to the extent practicable and permitted by applicable laws, inform the Platform Provider about the reason of any such refusal.

6.4. Restrictions to Pay In Service and Pay Out Service. You may not use the Pay In Service or Pay Out Service, and we are not required to provide the applicable Services, if:

1. the total balance of Cleared Funds in the Nium Account available for your use in connection with the Pay In and Pay Out services (“Available Balance”) is insufficient to cover the Pay Out transaction (plus any applicable fees);
2. the Pay In or Pay Out is not in a Supported Currency and the Payer or beneficiary, as applicable, is not located in a jurisdiction approved by us as set out in the list published on https://playbook.nium.com;
3. the Pay In or Pay Out is connected with an activity (A) set out in the prohibited list published on https://www.nium.com/regulatory-disclosures/prohibited-business-categories, or (B) inconsistent with applicable laws or our internal compliance policy;
4. the result of any due diligence checks or screening in relation to the Pay In or Pay Out is unsatisfactory; 
5. the Pay In or Pay Out is not within the transaction limit set by the Platform Provider from to time; 
6. the Pay In (A) is made via over-the-counter checks or cash deposits, or (B) does not originate from your bank account or the bank account of a Payer; or 
7. where notified by us as a requirement for the Pay In, we have received an instruction to receive a Pay In (“Pay In Instruction”) and the result of any checks performed on such Pay In Instruction and the Payer are unsatisfactory.

6.5. Additional Verify Service Terms. If you use the Verify Service, the following additional terms shall apply:

1. Licence. Nium hereby grants to you a limited, non-exclusive, non-sublicensable (other than to third-parties authorized to act on your 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 your own business purposes, and (ii) make a limited number of copies of the documentation for internal use and only as necessary to support your use of the Verify Service, provided that all copies retain Nium’s original proprietary legends and logos.
2. Your Obligations. You shall comply with all applicable laws, including those applicable to sharing and processing of Customer Data via the Verify Service.  You represent and warrant that you have obtained any and all applicable and necessary authorizations and consents and provided all necessary notices to share and process the Customer Data in connection with the use of the Verify Service. Further, you agree that your use of the Verify Service, including the provision and processing of any Customer Data in connection with the use of the Verify Service, shall be subject to our Privacy Policy. You are responsible for the accuracy, quality, and integrity of Customer 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 Customer Data. For the purpose of this section, “Customer Data” means any electronic data and information submitted by you in the course of accessing and using the Verify Service, which for the avoidance of doubt may include personal data.
3. Customer Acknowledgement. You acknowledge and agree that:
   1. We  are not facilitating the provision of any kind of consolidated account information service (which may be regulated in certain countries where you are receiving the Verify Services);
   2. We do 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 are we a “consumer reporting agency” or a “furnisher” of information to consumer reporting agencies, and the Verify Service 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 Customer in connection with the Verify Service does not result in us providing credit information services or credit references pursuant to applicable law; and
   3. our provision of the Verify Service (a) does not constitute a regulated activity and (b) is completely separate and independent of any regulated payment services that you may receive from time to time from us or our affiliates.
4. Customer Representations and Warranties. You represent and warrant that:
   1. You 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. You 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 you or any relevant third party holds the requisite authorization pursuant to applicable laws to provide credit information services and/or credit references.

7. THE NIUM ACCOUNT NUMBERS (VBAN) AND AVAILABLE BALANCE

7.1. Generation of Virtual Bank Account Numbers. We may generate one or more virtual bank account numbers (“VBAN") on your behalf. The VBAN enables you to provide funds to us for the use of the Pay Out Service or receive funds from a Payer pursuant to the Pay In Service.

7.2. About the VBAN. You acknowledge and agree that, and shall also ensure that any third party is aware and understands that:

1. each VBAN is created for record keeping, reporting and administrative purposes. A VBAN (A) is a notional representation of the pooled physical bank account maintained by us or our affiliate with a licensed financial partner (“Settlement Account”); (B) does not hold funds or generate any actual credits and debits independently from the associated Settlement Account; (C) is not a separate payment account, deposit account or bank account owned or operated by you; and (D) no interest is payable on any funds received via the VBAN; and
2. funds transferred by you or a Payer are credited into the Settlement Account. You do not own or operate the Settlement Account or have any other interest in the Settlement Account (or the funds in that account) and no financial partner where the Settlement Account is maintained has any contractual duty or relationship with you under any circumstances with respect to the VBAN or the Settlement Account. 

7.3. Inactive VBAN. If a VBAN remains inactive for a period of twelve (12) months, meaning no transaction has taken place via the Nium Account or VBAN or zero balance has been associated with the VBAN, we may designate the VBAN to be “Inactive”. Once the VBAN has been designated as Inactive, we may close the Nium Account or VBAN by giving you seven (7) days’ notice.

7.4. Available Balance - Generally. The Available Balance represents the funds available to you for use in connection with the Services. Only Cleared Funds received by us from you or a Payer are credited to the Available Balance.

7.5. You Instruct and Authorise Us to Receive Any Funds. You instruct and authorise us to receive any funds from you or a Payer and credit the same to the Available Balance in one or more Supported Currencies.

7.6. Supported Currencies. The Available Balance can only be maintained in one or more Supported Currencies. If any funds received by us from you or a Payer are not in a Supported Currency, we will credit the Available Balance with the equivalent amount of a Supported Currency at the applicable exchange rate plus any applicable mark-up.

7.7. Maintenance of Available Balance. The Available Balance will be maintained by us in accordance with applicable laws. Unless Appendix A states otherwise for a jurisdiction, you acknowledge and agree that (i) the Available Balance is not protected by any depositor or insurance scheme, and (ii) you do not have any right or control or other interest in any funds we have received from you or a Payer other than a right to use the Available Balance as described in these Terms. For the avoidance of doubt, this Clause does not prevent you from requesting for the return of Available Balance in accordance with Clause 3(i).

7.8. Funding of Available Balance. You may fund the Available Balance via a Pay In. We reserve the right to decline any funds provided by you if you are in breach of these Terms or if doing so may cause us to violate applicable laws. Only Cleared Funds received by us will constitute the Available Balance. “Cleared Funds” means funds which have been unconditionally received by us and cannot be recalled by (1) you or the Payer, as applicable, or (2) the payment services provider used by you or the Payer, as applicable, to send funds to us.

7.9. Representations and Warranties. You represent, warrant and agree that:

1. you own all title, rights and interest to the funds received by us for crediting to the Available Balance and your rights in relation to the Available Balance. No person or entity other than you have any rights in relation to the Available Balance and funds received pursuant to the Pay In Service; 
2. you will not assign, charge, declare trust over or transfer the benefit of all or any part of any rights in relation to the Available Balance; and
3. you are solely responsible for reporting all tax matters to the relevant tax authority and payment of applicable taxes in respect of the Available Balance. You are also responsible for complying with any other applicable reporting requirements, including but not limited to, any customs or foreign currency controls. 

7.10. When We May Cancel, Reverse, Demand a Refund or Debit Available Balance. We may cancel, reverse, demand a refund, or, cause any amount of the Available Balance to be unavailable for Pay Out and make corresponding adjustments to any entry if:

1. we need to correct any error or omission; 
2. we are required to return the funds to the Payer; 
3. we have not received cleared and unconditional funds; or
4. we have reasonable grounds to do so under applicable law. 

7.11. Foreign Exchange Risk. You acknowledge and agree that maintaining the Available Balance in multiple currencies carries foreign exchange risks. You agree to assume all foreign exchange risks and waive all claims against us with respect to such risks.

7.12. We Will Return Any Net Available Balance upon Termination of these Terms.

1. Subject to subpart (b) below, when these Terms are terminated for any reason, we will return to you an amount equivalent to any remaining Available Balance, net of (A) any amounts owed to us under these Terms or otherwise, (B) applicable bank charges, and (C) taxes (such amount the “Net Balance”) to a bank account in your name within 60 business days of receipt of a request from you. 
2. All fund transfers are subject to due diligence checks and we are not required to return the Net Balance to you if (A) the result of due diligence checks is unsatisfactory, (B) we are prohibited by an order or directive of an applicable regulator, or (C) doing so might otherwise put us in breach of any applicable laws. 

7.13. Only a Representative of the Customer Is Allowed to use any Services. The Customer will ensure that only its officers, directors, employees, agents, subcontractors or advisors (“Representatives”) are allowed to access and use any Pay In and Pay Out services for business purposes. If the Customer grants its Representative access and use of the Services, the Customer must, upon our request, provide satisfactory proof to establish that such person is a Representative of the Customer and is authorised to act on behalf of the Customer.

7.14. The Customer Is Solely Responsible for All Acts and Omissions of its Representatives. You are solely responsible for (i) all acts or omission of your Representatives, whether authorised by you or not. We are under no obligation to check the authenticity or accuracy of any instructions or data received, or purportedly received, from a Representative. We will not be liable for any losses incurred or suffered by you or any person as a result of acting on an instruction, information or communication, received, or purportedly received, from a Representative.

7.15. Customer’s Responsibility to Inform Platform Provider or Us of Any Change in its Representatives. You are solely responsible for notifying the Platform Provider, or failing which, us of any change in your Representative or any information relating to a Representative. We are entitled to rely upon the instruction, information or communication provided by a Representative until such time we have been notified of the change in writing and we have had a reasonable time to act upon the notification.

7.16. No Standing Arrangement. Each Pay Out instruction received by us through the Platform constitutes a separate, binding and independent instruction to us to perform a Pay Out. We do not accept any instruction to make a Pay Out based on a recurring or standing arrangement.

7.17. You Are Liable to Us for Shortfall. In the event that a Pay Out has been processed despite there being insufficient Available Balance, you shall reimburse us the shortfall plus any applicable fees, along with any cost incurred by us on recovering or attempting to recover such shortfall from you. You shall immediately transfer an amount equal to the shortfall to a bank account nominated by us.

7.18. Currency of Pay Out. If we receive a Pay Out for processing:

1. where the Pay Out currency is not a Supported Currency, we will debit the Available Balance in an amount equal to the Pay Out converted into the applicable Supported Currency at the applicable exchange rate plus any applicable mark-up; and 
2. where the Pay Out currency does not have corresponding pricing published on the Platform, we may apply our then prevailing standard transaction fees and foreign exchange rate to such transaction. 

7.19. You Must Provide Us Correct and Complete Bank Account Details. You must ensure that the details of your bank account and the bank account of any beneficiary are correct and complete and shall notify the Platform Provider of any change to your bank account or the bank account of any third party beneficiary. Until we have been notified of such change and have had a reasonable opportunity to act on it, we shall be entitled to process the Pay Out to the bank account details previously provided to us. We are not liable for any losses arising from any Pay Out due to incorrect or incomplete details provided by you or the Platform Provider or any failure to inform us in advance of any change to your existing bank account or the existing bank account of the beneficiary.

7.20. Remittance Taxes May Be Applicable to a Pay Out. You acknowledge and agree that the tax authorities of certain countries and/or jurisdictions may deduct certain tax, fee and/or tariff (“Remittance Taxes”) from a Pay Out. If any Pay Out is subject to Remittance Tax, the amount you or the beneficiary actually receives may be different from the amount stated in the instruction to process Pay Out. We are not liable for any losses resulting from the beneficiary receiving such reduced amount under any circumstances.

7.21. No Guarantee of Successful Cancellation or Recall. Please notify the Platform Provider if you wish to cancel a Pay Out instruction (before we process such Pay Out) or recall a Pay Out instruction (after we have processed the Pay Out). We do not guarantee a successful cancellation or recall. All bank charges and administrative cost relating to such cancellation or recall are borne by you.

7.22. Refunds to your Available Balance Made in Error. If any refund, or any other amount has been credited to the Available Balance in error (e.g., if a refund is issued more than once for the same transaction), we will be entitled to deduct such amount from the Available Balance. You agree to any such deductions being made by us. 

7.23. Reserves. You agree that we may from time to time, establish and withhold from any funds received pursuant to the Pay In Service such reserve amounts (“Reserves”) to cover amounts owed to us under these Terms (including but not limited to fees, refunds or reversals). Additionally, you agree the Reserves may be funded through: (i) funds provided by you at our request, or (ii) debiting your bank account. Our rights with respect to the Reserves shall survive termination of these Terms. We will notify the Platform Provider in case we establish any Reserves.

7.24. Payments to the United States. Transactions transmitted through an automated clearing house (“ACH”) (“ACH Transaction”) shall be subject to the applicable laws of the United States (“Applicable US Law”) and ACH Operating Rules (the “ACH Rules”) of the National Automated Clearing House Association (“NACHA”). You acknowledge that you have access to a current version of the ACH Rules. Unless otherwise defined in this Agreement, all capitalized terms in this subsection have the meanings assigned in the ACH Rules. You agree to comply with and be bound by the ACH Rules.

When you submit an ACH Transaction to us, you assume the responsibilities of an Originator under the ACH Rules and authorize us and our ODFI Bank Partner (“ODFI”) to process your ACH Transactions on your behalf in accordance with the instructions you provide.  You may not originate ACH Transactions on behalf of, or for the benefit of, any entity other than yourself, unless you have received prior written authorization from us or the ODFI to do so. You agree to obtain proper authorizations and maintain proper confidential records of such authorizations from the Receiver for ACH Transactions and to provide us with timely, accurate, and complete information as required by the ACH Rules. You agree that such records are confidential information, you will safeguard such information, and you will be jointly and severally liable with us to the ODFI for the failure to comply with such obligations.

We may limit your ACH Transaction and we may establish exposure transaction limits related to the amount of ACH Transactions transmitted by you and we may review and adjust periodically. We or the ODFI may block or reject any ACH Transaction that exceeds a limit we have established and can reject an ACH Transaction if it does not comply with these Terms, the ACH Rules, or Applicable Law. You agree to provide information we or the ODFI may request from you to confirm your compliance with these Terms, the ACH Rules, and Applicable US Law.

8. FEES

8.1. What Fees Apply to Your Use of the Pay In and/or Pay Out Services? The fees that apply to the Pay In and Pay Out services will be displayed on the Platform or otherwise communicated to you by the Platform Provider and are incorporated and form part of these Terms.

8.2. How Will We Charge All Fees and Payments Due to Us? All fees that apply to the Services and any other amounts due to us from you under these Terms will be deducted by us from your Available Balance. You agree to any such deductions made by us. If you do not have sufficient Available Balance to cover any sums due to us, we will issue a payment request and you must make the payment immediately. If we have to take additional steps to recover any such amounts due to us, we may charge you for the costs incurred by us in recovering such sums from you, and this may include costs of any third parties who support us in this process, for example debt collection agencies.

9. NIUM ACCOUNT

9.1. Setting up of Nium Account. We may issue you one or more primary account(s) once you have satisfied all eligibility criteria to be onboarded as our customer. Each primary account facilitates the use of Services, such as holding your Available Balance in a Supported Currency. You may also create any number of sub-accounts linked to the primary account. Each sub-account may be denominated in a Supported Currency and has the same functions as the applicable related primary account. Each primary account and its sub-accounts are collectively referred to as the “Nium Account”.

9.2. Our Right to Refuse to Issue the Nium Account. We may refuse to issue any Nium Account to you at our sole discretion. We will notify the Platform Provider the reason for such refusal as long as permitted under applicable laws.

9.3. You Must Keep Your Security Credentials Safe. You must ensure that: (i) any payment instrument (including any account or card) issued by us in connection with the Services is kept safe from loss or theft; (ii) any security credentials used to authenticate any transactions in connection with the Services are known only you; and (iii) the Platform can only be accessed by you and all devices used by you to access the Platform are appropriately protected from access by any unauthorised persons. We do not recommend writing down or storing any security credentials, or any login details to the Platform. However, if you have to store such details somewhere, you should use secure and safe storage solutions. Revealing any security credentials to anyone, or behaving carelessly with regards to the security of any payment instrument (including any account or card) issued by us in connection with any Services may result in unauthorised transactions being processed. In these circumstances we will not refund any amounts lost by you as a result of such unauthorised transactions and you will be solely responsible for them.

10. DIRECT DEBIT SERVICES

10.1. Generally. If you have been notified by the Platform Provider that direct debit has been made available to you by us, you may enable and use such function via the Platform in accordance with this Clause.

10.2. Bank Account Details. You must provide us with your bank account details as provided to you by the Platform Provider, which may include, but is not limited to, the name of your bank, the bank account number, routing number for your bank account, and the type of account (for example, checking or savings). You represent and undertake that your bank account is a legitimate and active account.

10.3. Bank Account Eligibility. Your bank account must be able to accept debits denominated in the currency indicated in the direct debit request. You confirm that you are the only person required to authorise debits from your bank account or, if more than one person is required to authorise debits from your bank account, you confirm that you have obtained the authorisation of all required parties.

10.4. Sufficient Funds in the Bank Account. It is your responsibility to ensure that there are sufficient clear funds available in your bank account to allow a debit payment to be made in accordance with the direct debit request. The debited amount will be reflected in the Nium Account several days after a successful debit.

10.5. Fees Chargeable. If your bank rejects a direct debit transaction or if a direct debit transaction is subsequently disputed by you or your bank for any reason, we may charge you additional fees.

10.6. Direct Debit Authorisation. Each time you choose to enable direct debit on the Platform, you authorise us to debit your bank account up to such amount indicated in the direct debit request plus any applicable taxes and fees. Your authorisation under this Clause will remain in full force and effect until (i) your Nium Account is closed, or (ii) all fees and other amounts you owe under these Terms are paid, whichever occurs later.

10.7. Collection of Amounts Owed through Direct Debit. You also authorise us to debit your bank account to collect amounts you owe under these Terms, each as a separate debit or aggregated into a single debit or multiple debits at the same time or different times.

10.8. Notification and Correction of Error. In addition to authorising debits to the bank account, you also authorise us to credit your bank account, if necessary, to correct an erroneous debit, in the amount necessary to correct the error. If there is any missing or erroneous information regarding your bank account, then you authorise us to verify and correct such information. You also agree to promptly update your bank account information with us.

10.9. Disabling Direct Debit. You may disable the direct debit at any time through such means as notified to you by the Platform Provider or notifying your bank.

10.10. Revoking Direct Debit. We may revoke your ability to use the direct debit function at any time if (i) we were unable to debit your bank account for any reason, (ii) you have requested a refund of any amount properly paid to us through direct debit, (iii) you have breached any of these Terms, or (iv) upon receipt of a request from the Platform Provider.

10.11. Liability. We are not liable to you for any losses suffered by you due to a direct debit failing to be processed for any reason. 

10.12. Third Party Services Offered by the Platform. Other than the Services, we are not responsible for any other products or services offered by the Platform Provider as part of their Platform. The Platform and any other services or products, including any links to third party apps or websites, are arranged solely by the Platform Provider without our involvement, endorsement or recommendation and we have no liability to you arising out of your use of such third-party services. 

11. UNAUTHORISED TRANSACTIONS

11.1. You Must Notify the Platform Provider of Unauthorised Transactions or Inaccurate Records. Unless stated otherwise in these Terms, you must notify the Platform Provider with the notification period set out in Appendix A or any longer minimum period prescribed by applicable laws (“Notification Deadline”) for any transaction that has not been authorised by you or any unauthorised transaction that has been identified as recorded to you. If notification is not provided by the Notification Deadline, such transaction will be deemed as agreed.

11.2. When You Must Suspend Your Services and Notify Platform Provider or Us. You must suspend your Services within the Platform and notify the Platform Provider immediately if: (i) you believe the security of any payment instrument (including any account or card) issued by us in connection with any Services has been compromised (for example, if an unauthorised Representative or a third party has gained access to any security credentials and/or the Platform); (ii) any payment instrument (including any account or card) issued by us in connection with any Services is not working properly; and/or (iii) you have identified an unauthorised transaction made using any payment instrument (including any account or card) issued by us in connection with any Services. You may be asked to provide details of the issues reported by you, and any supporting documentation, such as a copy of a police report, to confirm the theft of your Nium Account. If you have not suspended your Nium Account through the Platform, we will suspend it after receipt of notification from the Platform Provider and successful verification of your identity.

11.3. We May Investigate Unauthorised and Incorrectly Executed Transactions. We will have the right to investigate any transaction reported by you as unauthorised or executed incorrectly. We may ask you to provide us with supporting information and documentation to help us with our investigation and you agree to cooperate with us and provide to us all information and documentation we reasonably require for this purpose. You also agree to cooperate with any authorities involved in our investigation. We will treat any payment instruction given via the Platform or Platform Provider as evidence of authorisation of the payment, and in this case you will need to provide us with evidence to show that the transaction was not authorised in accordance with these Terms.

11.4. When Will We Not Make a Refund? We will not make a full refund and you will be responsible for the unauthorised transactions, in the following circumstances:

1. you have acted fraudulently, or we have good reasons to believe you have acted fraudulently. However, if our investigation reveals that you have not acted fraudulently, we will immediately issue a full refund; 
2. we are not notified about the unauthorised transaction, or we are notified after the applicable Notification Deadline specified in Clause 11.1; 
3. if we are notified by the Notification Deadline, you are still responsible for all transactions that occurred before the date we are notified of the loss, theft or misappropriation of any Services and we will not issue a refund for any unauthorised transactions that occurred before we were notified; 
4. you deliberately or with gross negligence or extreme carelessness compromise the security of any account you maintain with us or fail to use any Services in accordance with these Terms; and 
5. any account you maintain with us or any Services was misappropriated (i.e., used by someone else), other than due to our gross negligence, wilful default or fraud. 

11.5. Can We Take Back the Refund? If, as a result of our investigation, we discover that the transaction was authorised appropriately and executed by us correctly, that you have acted fraudulently or that you have acted deliberately or with gross negligence or extreme carelessness, we will deduct all sums previously refunded to you from (i) funds held by us on your behalf, or (ii) funds provided to us as financial assurance for your obligations under these Terms. If you do not have sufficient funds, we will make a request for immediate payment. You shall immediately transfer an amount which equals the shortfall to a bank account nominated by us.

12.  CONFIDENTIALITY

12.1. 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 these Terms. 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 these terms. 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 unauthorised disclosure by its representatives, or by the representatives of its affiliates.

12.2. Exceptions. This clause is not breached by uses or disclosures of confidential information that are (i) authorised 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.

12.3. Expiration or Termination of these Terms. Unless expressly permitted under these Terms, on expiry or termination of these terms, 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 these terms, 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 these terms. 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 C lause 12.

12.4. Survival. The obligations set forth under this C lause 12 will survive termination of these terms.

13. CANCELLATION RIGHTS

13.1. Your Rights to Terminate the Services. You may terminate the Services, in whole or in part, at any time by notifying the Platform Provider. You may also suspend or terminate any Representative’s ability to access or use the Services, in whole or in part, by notifying the Platform Provider.

14. OUR RIGHTS TO SUSPEND OR TERMINATE THE SERVICES

14.1. We Can Suspend or Terminate the Services. We can suspend or terminate the Services, in whole or in part, at any time, in the following circumstances:

1. if we have reason to suspect that you are behaving fraudulently, you are involved in any unlawful or illegal activity (for example money laundering or terrorist financing), or you are using the Services for any other unlawful purpose; 
2. if you breach any of these Terms and you have not corrected your breach within the timeframe we requested; 
3. our agreement with the Platform Provider has been suspended or terminated or your access to the Platform is suspended or terminated by the Platform Provider; 
4. if we have asked you to pay us money you owe us under these Terms and you have failed to do so; 
5. you are subject to a petition for bankruptcy (or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors), you suspend your business, or, in our opinion, your financial position deteriorates or we reasonably believe you will be unable to meet your obligations under these Terms; 
6. if any information provided by you (or someone on your behalf) is false, or if you fail to provide us with information that we reasonably request from you; 
7. if we have good reason to believe this is necessary for security reasons (for example any security issues affecting the Platform Provider); 
8. the results of any “know your customer” or other similar checks or screenings under applicable laws or regulations conducted on you are unsatisfactory or if we determine that continuing any Services could cause reputational, regulatory, financial or operational harm to us; 
9. if we believe it is necessary to comply with any law, regulation, guidance, court order or instructions of any regulator or government authority; or 
10. if any of our banking partners require us to stop providing services to you. 

14.2. We Will Notify the Platform Provider of the Reasons for the Suspension or Termination. If we suspend or terminate any Services, we will notify the Platform Provider of the reason(s), as permitted under applicable laws. We will only re-activate the Services if we are satisfied that the reason(s) for suspension is/are no longer applicable. 

14.3. Termination Upon Termination or Expiration of Your Platform Provider Agreement. These Terms and the Services will automatically terminate upon the termination or expiry your agreement with the Platform Provider.

14.4. Effects of Termination of these Terms. These Terms are separate to and independent of the agreement you have with the Platform Provider. Any suspension of Pay In services, the Pay Out services, the VBAN or the Nium Account, or Termination of these Terms for any reason shall not affect your agreement with the Platform Provider.

15. LIABILITY

15.1. When we will not be liable to you. We will not be liable to you for any loss or damage which:

1. arises out of or is related to these Terms, the Pay In or Pay Out 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 you or we have been advised of the possibility of such damages or if your remedy otherwise fails of its essential purpose. The foregoing disclaimer will not apply to the extent prohibited by applicable laws; 
2. was not caused by our breach of these Terms or our failure to use reasonable skill and care; 
3. was caused by events outside of our control (or the control of our agents or subcontractors) which we could not have avoided (for example natural disasters, civil unrest, pandemics or other force majeure events); 
4. was caused by your breach of these Terms or any laws or regulations; 
5. was caused by any third parties including the Platform Provider (unless we are contractually responsible for the actions of such third parties); or 
6. was caused by any goods or services purchased or sold using any Services. 

15.2. Our Liability for Deductions Made by Us in Error. If we make any deductions from your (i) funds held by us on your behalf, or (ii) funds provided to us as financial assurance for your obligations under these Terms in error, our liability to you will be limited to an obligation to refund to you the incorrectly deducted amount.

15.3. Your Indemnity to Us. You will, to the fullest extent permitted by applicable laws, indemnify, defend and hold harmless us and our affiliates, subcontractors and our and their Representatives (each a “Nium Party”) from and against all losses (including any expenses and costs incurred by us, such as legal fees) incurred in connection with any claim arising out of, related to, or in connection with:

1. your breach of your representations, warranties or obligations under these Terms; 
2. us acting on your instructions to use or access to the Services, 
3. your noncompliance with applicable laws; 
4. your gross negligence or intentional misconduct; 
5. any transaction pursuant to the Services. 

15.4. You will remain liable even after these Terms are terminated.

15.5. DISCLAIMER OF WARRANTIES FOR SERVICES. The Services are provided “AS IS”. Except as otherwise expressly provided under these Terms, we make no representations or warranties of any kind, whether express, implied, statutory or otherwise regarding the Services, including any warranty that the Services will be uninterrupted, error free or free of harmful components. You acknowledge that we do not control or monitor the transfer of data over the internet, and that internet accessibility carries with it the risk that your privacy, confidential information and property may be lost or compromised. Except to the extent prohibited by applicable laws, we disclaim all warranties, including any implied warranties of merchantability, title, fitness for a particular purpose, noninfringement and any warranties arising from a course of dealing, usage or trade practice. 

15.6. LIABILITY CAP. Subject to Clauses 15.2 and 15.7:

1. Other than the Customer’s liability to indemnify Nium under Clause 15.3 (which is separately limited in sub-clause b. below), in no event shall the aggregate liability of either (A) Nium, its affiliates, and its or their Representatives, or (B) the Customer, its affiliates, and its or their Representatives, arising out of or related to these Terms and the Services, exceed the lesser of (i) the total fees paid for the Services 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 you paid for the Services during the term multiplied by twelve (12)), or (ii) USD 100,000.
2. In no event shall the aggregate liability of the Customer to indemnify Nium under Clause 15.3 exceed the greater of (i) five times the total fees paid for the Services 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 you paid for the Services during the term multiplied by twelve (12)), or (ii) USD 500,000.
3. The foregoing limitations will apply whether an action is in contract or tort and regardless of the theory of liability. These limits do not extend to (1) Nium’s obligation to return your Available Balance upon termination, in accordance with these Terms, or (2) the Customer’s obligation to reimburse Nium for any shortfall in the Customer’s Available Balance, including under Clauses 7.13 and 11.5.

15.7. Liability Which Is Not Excluded or Limited. Nothing in these terms excludes or limits either party’s liability for any death or personal injury caused by its gross negligence, liability for fraud or fraudulent misrepresentation, or any other liability that applicable law does not allow to be excluded or limited.

15.8. Liability for Confidentiality and Failure to Make Payments. We assume responsibility in full for any direct losses arising from (a) our breach of any confidentiality or data security provisions contained in these Terms or (b) our failure to pay monies to a designated beneficiary pursuant to a valid instruction that we have received from you, except to the extent that such non-payment is the result of Nium exercising its rights under these Terms not to process such payment.

16. COMPLAINTS AND DISPUTES

16.1. How to Submit Complaints. If you are unhappy with the Services, you should submit your complaints to the Platform Provider. The Platform Provider will communicate your complaint to us. If the complaint is not resolved to your satisfaction, you can contact us and we will do our best to respond to your complaint as soon as possible, or we will inform you if we need more time or more information from you to help us investigate your complaint. Please refer to Appendix A for our contact details.

17. MULTIPLE NIUM ENTITIES PROVIDING SERVICES

17.1. Multiple Entities of Nium and Services. Where there is more than one Nium entity providing Services under these Terms, each Nium entity:

1. makes available its own Services as an independent contractor and not as a partner or jointly with the other Nium entity, and shall not be liable for the Services provided by any other Nium entity, whether jointly or severally; and 
2. shall not require the consent, agreement or participation of any other Nium entity to (A) vary the terms or its rights or obligations under these Terms or its own Services; or (B) exercise or enforce its rights under these Terms or the relevant Services. 

17.2. Any Nium Entity May Suspend or Terminate Any Services, in Whole or in Part, in Accordance with these Terms. Any suspension or termination shall affect only such portion of these Terms relates to the Services under suspension or termination, and shall not suspend, terminate, affect, impair, invalidate or render unenforceable any other provisions in these Terms in connection with any other Services.

18. GENERAL

18.1. Transfer of Rights and Obligations under these Terms. You are not allowed to transfer your rights or obligations under these Terms to anyone without our prior written consent. We may transfer our rights and obligations under these Terms to another business without your consent, but we will notify the Platform Provider. We may subcontract our obligations under these Terms to third parties.

18.2. Force Majeure. We will not be liable for any delay or failure to perform under these Terms due to circumstances beyond our 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 our possession or reasonable control, and denial of service attacks.

18.3. Invalid Provisions. If any provision of these Terms (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of these Terms will not be affected.

18.4. Entire Agreement. These Terms set out the entire agreement between us and supersede all prior agreements and understandings, whether written or oral. Failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. The parties intend these Terms 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.

18.5. Nobody Else Has Any Rights under these Terms. Except for the Nium Parties, these Terms are between you and us and nobody else has any rights to rely on or enforce any of these Terms.

18.6. Laws that Apply to these Terms. These Terms and any dispute or claim arising out of these Terms will be governed by, and interpreted in accordance with, the laws set out in Appendix A and any dispute between you and us shall be brought in the courts of set out in Appendix A, in each case based on the location of the contracting Nium entity.

18.7. Specific Jurisdictions. To the extent that Services are provided from Australia, EEA, Hong Kong, Singapore, or the United Kingdom, refer to Appendix A for certain jurisdiction-specific terms and conditions.

18.8. Notices and Communications. All notices and communications between you and us will be in English. If we need to notify you of anything, we will normally communicate with you through the Platform Provider. We may also use your email address or business address to send you any notifications or communications. You should send all notices or communications via Platform or contact the Platform Provider in the first instance. If you need to send a notice or communication to us directly, you can do so by email at customer.success@nium.com or via our website at https://www.nium.com/contact-us.

APPENDIX A

INTERNATIONAL JURISDICTIONS ADDITIONAL TERMS AND CONDITIONS

The following sections of this Appendix A are jurisdiction specific. These additional terms and conditions apply to the following approved countries, to the extent that Services are provided to you from any of the following countries:

APPENDIX B

SUPPLEMENTAL TERMS APPLICABLE TO CUSTOMERS THAT QUALIFY AS SMALL CHARITIES AND MICRO-ENTERPRISES

Customers That Qualify as Small Charities and Micro-Enterprises Will Have Different Rights. Certain provisions of these Terms will apply differently to small charities and micro-enterprises, and differently to Customers that do not qualify as such. This will be indicated in the relevant paragraphs of these Terms. If the provisions of these Terms do not mention different application of its provisions depending on the status of your Customer, such provisions will apply to all types of Customers.

APPENDIX B PART 1

EUROPEAN ECONOMIC AREA

The additional terms and conditions in this Appendix B Part 1 apply to small charities and micro-enterprises provided Services by Nium EU in the European Economic Area (“EEA”).

1. Small Charities and Micro-Enterprises. 

A “small charity” is a registered EEA charity with an annual income of less than EUR 2 million and “micro-enterprise” is an enterprise (in whatever legal form, including self-employed individuals, family businesses, partnerships or associations engaged in an economic activity) whose annual turnover and/or balance sheet total does not exceed EUR 2 million and employs fewer than 10 people.

2. Amendments to Main Terms and Conditions

2.1 Clause 11.4(e) of the Main Terms and Conditions is deleted in its entirety and replaced with the following:

(e) if you are a small charity or micro-enterprise, you will be liable for all unauthorised transactions up to EUR50 and we will refund the rest of the unauthorised transactions. However, we will refund the full amount if: (1) it was not possible for you to detect the loss, theft or misappropriation before the payment was made (unless you acted fraudulently); (2) it was caused by our employee or any entity that carried out the payment processing on our behalf; or (3) the unauthorised transaction occurred after you notified us within the Notification Deadline that the security of your payment instrument (including any account or card) issued by us in connection with the Services had been compromised. We will normally refund to you the unauthorised amount by the end of the next business day following the date of your notification. We will also refund any transaction fees or charges deducted by us in connection with such unauthorised transaction, so that your Available Balance is to the extent possible returned to the same state as it would have been had the unauthorised transaction not taken place. Any refund received by you is your only remedy and we will not be liable to you for any other losses you suffer as a result of an unauthorised transaction.

APPENDIX B PART 2

UNITED KINGDOM

The additional terms and conditions in this Appendix B Part 2 apply to small charities and microenterprises provided Services by Nium UK in the United Kingdom.

1. Small Charities and Micro-Enterprise Terms. 

A “small charity” is a registered UK charity with an annual income of less than GBP 1 million and “micro-enterprise” is an enterprise (in whatever legal form, including selfemployed individuals, family businesses, partnerships or associations engaged in an economic activity) whose annual turnover or annual balance sheet does not exceed GBP equivalent of EUR 2 million and employs fewer than 10 people.

2. Amendments to Main Terms and Conditions 

2.1 Clause 11.4(e) of the Main Terms and Conditions is deleted in its entirety and replaced with the following:

(e) if you are a small charity or micro-enterprise, you will be liable for all unauthorised transactions up to £35 and we will refund the rest of the unauthorised transactions. However, we will refund the full amount if: (1) it was not possible for you to detect the loss, theft or misappropriation before the payment was made (unless you acted fraudulently); (2) it was caused by our employee or any entity that carried out the payment processing on our behalf; or (3) the unauthorised transaction occurred after you notified us that the security of any payment instrument (including any account or card) issued by us in connection with any Services had been compromised. If we receive a notification within the Notification Deadline of an unauthorised transaction, we will normally refund to you the unauthorised amount by the end of the next business day following the date of your notification. We will also refund any transaction fees or charges deducted by us in connection with such unauthorised transaction, so that your Available Balance is to the extent possible returned to the same state as it would have been had the unauthorised transaction not taken place. Any refund received by you is your only remedy and we will not be liable to you for any other losses you suffer as a result of an unauthorised transaction.

APPENDIX C

SUPPLEMENTAL TERMS AND CONDITIONS APPLICABLE TO – HONG KONG

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

1. Amendments to the Main Terms and Conditions. 

1.1. Pay In Service. Clause 2.1(a) of the Main Terms and Conditions shall be deleted in its entirety and replaced with the following:

(a) The Pay In Service. Subject to payment of fees and these Terms, we agree to enable such payment service (“Pay In Service”) to you whereby you may (i) provide funds for the use of Pay Out Service; and (ii) receive funds in a currency supported by us (“Supported Currency”) from a third party approved by us (“Payer”) for the use of Pay Out Service (services described in (i) and (ii) are collectively referred to as "Pay In”). 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 us at your instruction pending your Pay Out instruction.

1.2. The Nium Account Numbers (VBAN) and Available Balance. Clauses 7.4 to 7.12 of the Main Terms and Conditions shall be deleted in their entirety and replaced with the following:

7.4 You Instruct and Authorise Us to Receive Any Funds Pursuant to the Pay In Service. You instruct and authorise us to receive any funds from yourself or a Payer in one or more Supported Currencies for the purpose of the Pay In Service. Only Cleared Funds received by us from you or a Payer are available for use for the Pay Out Service.

7.5 Receipt of Funds Pursuant to Pay In Service. Funds received by us pursuant to the Pay In Service are held in one or more Settlement Account(s). Each Settlement Account is maintained by us with a licensed financial institution in the relevant jurisdiction and the funds will be kept by us in accordance with applicable laws, which ensure that such funds are segregated from our operating funds and held safely. Please note that (i) funds received pursuant to the Pay In Service are not protected by any insurance scheme, and (ii) you do not have any right or control over the Settlement Account. Any interest earned on monies held in the Settlement Account is not payable to you. For the avoidance of doubt, this Clause does not prevent you from requesting for the return of Pay In funds in accordance with Clause 3.

7.6 Conversion of Funds Received Pursuant to Pay In Service. If any funds received by us pursuant to the Pay In Service is not in a Supported Currency, we will convert such funds to a Supported Currency at the applicable exchange rate plus any applicable mark-up.

7.7 Methods of Receiving Funds through the Pay In Service. We may receive funds pursuant to the Pay In Service via (i) transferring the funds to us via your bank account; (ii) sending funds to us through a Payer; or (iii) any other method as notified by the Platform Provider from time to time.

7.8 Representations and Warranties. You represent and warrant that: 

1. you own all title, rights and interest to the entire funds. No person or entity other than you have any rights in relation to any funds received by us pursuant to the Pay In service; 
2. you will not request us to correct any error pertaining to any funds received by us pursuant to the Pay In Service or initiate a reversal of any funds to the Payer at any point in time; 
3. you will not assign, charge, declare trust over or transfer the benefit of all or any part of any funds received by us pursuant to the Pay In Service; and 
4. you are solely responsible for the reporting of all tax matters to the relevant tax authority and payment of applicable taxes in respect of all funds received by us pursuant to the Pay In Service. You are also responsible for any other applicable reporting requirements, including but not limited to, any customs or foreign currency controls. You represent and warrant that you are in compliance with applicable tax legislation and will remain compliant during the term of these Terms. 

7.9 When We May Cancel, Reverse, Demand Refund or Debit Any Funds Received by Us Pursuant to the Pay In Service. We may cancel, reverse, demand refund, or cause any funds received by us pursuant to the Pay In Service to be unavailable for the Pay Out Service and make corresponding adjustments to any entry if:

1. we need to correct any error or omission; 
2. we are required to return the funds to the Payer; 
3. we have not received cleared and unconditional funds; or 
4. we have reasonable grounds to do so under applicable law. 

7.10 Foreign Exchange Risk. You acknowledge and agree that maintaining funds for the purposes of Pay Out Service in multiple currencies carry foreign exchange risks, for example it is possible that the exchange rate improves over time and you will not receive the benefit of such fluctuations. You agree to assume the aforementioned foreign exchange risks and waive all Claims against us with respect to such risks.

7.11 Customer Bank Account. You shall open a bank account denominated in USD or HKD with a licensed financial institution in Hong Kong (“Customer Bank Account”) and shall maintain such bank account for (i) as long as you are receiving the Services from us, and (ii) such period as may be required after cessation of the Services for the purposes.

7.12 Customer Bank Account Details. You must ensure that details of the Customer Bank Account are correct and complete and shall notify the Platform Provider, or failing which, us in advance of any change to the Customer Bank Account. Until we have been notified of such change and have had a reasonable opportunity to act on it, we shall be entitled to process any Pay Out instruction to the existing Customer Bank Account. We are not liable for any losses arising from any Pay Out instruction due to incorrect or incomplete details provided by you or the Platform Provider or if you or the Platform Provider fail to inform us in advance of any change to the Customer Bank Account.

7.12A Automatic Transfer of Funds Received by Us. If you have not submitted any Pay Out instruction to us for processing for a period of thirty (30) consecutive days or more, all funds received by us on your behalf for the purpose of the Pay Out Service for the past thirty (30) days (net applicable fees, bank charges and taxes) will automatically be paid out by us to the Customer Bank Account on the day that falls on the 30th day from the date the last instruction for Pay Out was submitted by you to us through the Platform Provider (“Automatic Sweep”). We are not liable to you or any third party for any losses suffered by you or any third party arising from or in connection with the Automatic Sweep. Please note that any funds sweeping is subject to due diligence checks and we are not required to sweep any funds to you if (i) the result of a due diligence check is unsatisfactory, (ii) we are prohibited by an order or directive of an applicable regulator, or (iii) doing so might otherwise put us in violation of applicable laws.

7.12B Conversion of Funds into USD or HKD. If any funds are received by us in a currency other than USD or HKD, we will convert such funds to USD or HKD, as applicable, at such exchange rate determined by us at the time of conversion. We are entitled to deduct any cost, loss or liability arising out of or as a result of such conversion from such funds prior to the Automatic Sweep.

7.12C Failed Automatic Sweep. If we are unable to perform the Automatic Sweep for reasons other than those stated in Clause 7.12A above you authorise and instruct us to maintain the funds on your behalf pending further instruction from you.

7.12D We Will Return Any Remaining Funds upon Request. You may, at any time or upon termination of these Terms, request for, either through the Platform Provider or us, the return of any remaining funds received by us (net of any amount due to us or applicable bank charges or taxes) (“Net Balance”) to a bank account in your name.

7.12E Any Return of Funds Is Subject to Satisfactory Due Diligence Checks. We are not required to return the Net Balance to you if (i) the result of a due diligence check is unsatisfactory, (ii) we are prohibited by an order or directive of a regulatory body, or (iii) doing so might otherwise put us in breach of applicable laws.