Terms and Conditions for Business Customers – United States of America

Thank you for using Nium! 

1. WHO ARE WE? 

1.1. Parties to the Terms.These Terms and Condition for Business Customers (“Terms”) are between your Organisation (“Customer”, or “you”) and NIUM, Inc., a Delaware corporation (file number 5702837) (“Nium”), with a principal office address at 85 Second Street, Fl. 2, San Francisco, California 94105. Nium operates a software and services platform that permits you to receive the payment services as set out in these Terms. Nium is referred to as “we, our, us”. 

1.2. Nium Is Not Licensed as a Money Transmitter in the United States and Does Not Offer the Payment Services.Nium provides you access to the payment services through a partnership with Column National Association, a depository institution (“Payment Service Bank”). The Payment Service Bank provides the payment services to you in the United States as set forth in the Payment Service Bank’s terms with you (“Wallet Accountholder Agreement”), which is incorporated herein by reference. Nium is the Payment Service Bank’s service provider, and shall administer the payment services set out in these Terms on behalf of the Payment Service Bank.

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 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 you to deposit United States Dollars (“USD”) into a custodial account held by the Payment Service Bank in accordance with these Terms (“Settlement Account”). You agree that Payment Service Bank may hold your USD in the Settlement Account with that of other customers, and we will always associate your USD balance with you through a sub-ledger we maintain on your behalf. The Settlement Account will be held for the benefit of you and such other customers. Your sub-ledger balance of cleared USD funds in the Settlement Account shall be referred to as your “Available Balance,” and such service shall be referred to in these Terms as the “Pay In Service”. 
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 facilitate services (“Pay Out Service”) for the transfer of the Available Balance to yourself or to 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 Clause 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 Organization. By using Pay In or Pay Out services, which constitutes acceptance of these Terms on behalf of the organization you represent (“Organization”), 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. Pay In and Pay Out Services are Offered by the Payment Service Bank in the United States.The Pay In and Pay Out services are offered by the Payment Service Bank in the United States pursuant to the Wallet Accountholder Agreement. Neither Nium nor the Payment Service Bank intend to solicit, target or market Pay In or Pay Out services to any customers outside of the United States through these Terms.

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. 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 Nium or the Payment Service Bank. 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.

3.3. 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 www.nium.com/privacy/privacy-policy.

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 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.We May Carry Out Verification of Your Bank Account through ACH Micro-Entries. We may verify your bank account through micro-entries into your bank account of ACH credits, or offsetting ACH credits and debits, that are each in an amount of less than $1.00. You authorize us to conduct this process as part of our customer identification and verification check.

5.3. 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.

5.4. 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. You instruct and authorize the Payment Service Bank to receive any Pay In.You irrevocably instruct and authorize the Payment Service Bank to receive any Pay In from yourself or a third party nominated by you (“Payer”) and maintain such Pay In funds as the Available Balance.

6.3. 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.

6.4. 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.

6.5. 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 currency permitted by Nium (“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.

6.6. UCC Article 4A Disclosure.Your credit entry may be transmitted through the ACH network. Your rights or obligations, as an originator, concerning the credit entry are governed by and construed in accordance with the laws of the State of New York, unless you and the originating depository institution have agreed that the laws of another jurisdiction govern their rights and obligations. Credit given by the receiving depository financial institution (“RDFI”) to the receiver for the entry is provisional until the RDFI has received final settlement through a Federal Reserve Bank or through a funds transfer system in accordance with Section 4A-403(a) of UCC Article 4A. If the RDFI does not receive such payment for the entry, the RDFI is entitled to a refund from the receiver in the amount of the credit to the receiver’s account, and the originator will not be considered to have paid the amount of the credit entry to the receiver.

6.7. 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 ensure that a Payer is aware and understands that:

(a) Each VBAN: (i) is a notional representation of the Settlement Account, which is created for record keeping, reporting and administrative purposes; (ii) does not hold funds or generate any actual credits and debits independently from the associated Settlement Account; (iii) is not a separate payment account or bank account owned and operated by you and (iv) no interest is payable on any funds received via the VBAN. No VBAN by itself creates a separate account or other contractual relationship between you and Payment Service Bank, other than your beneficial interest in the Settlement Account.

(b) 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).

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 Funding your Available Balance.Only cleared funds received by the Payment Service Bank from you or a Payer will constitute the Available Balance for Pay Outs. “Cleared funds” means that the funds have been unconditionally received by the Payment Service Bank and cannot be recalled by you or the payment services provider used by you to send funds to the Payment Service Bank which may include Pay In funds received by the Payment Service Bank. The Payment Service Bank will have sole custody over your funds in the Settlement Account.

7.6 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. 

7.7 When We May Cancel, Reverse, Demand Refund or Debit the Available Balance.We may cancel, reverse, demand 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. 

7.8 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.

7.9 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.

7.10 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.

7.11 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.

7.12 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.

7.13 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.

7.14 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. 

7.15 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.

7.16 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.

7.17 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.

7.18 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.

7.19 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.

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. The Nium Account.You may be granted one or more accounts denominated in USD (“Nium Account”) once you have satisfied all eligibility criteria to be onboarded as our customer to facilitate the use of the Services.

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. ACH DEBIT AUTHORIZATION AGREEMENT

10.1. ACH Rules.Transactions transmitted through an automated clearing house (“ACH”) shall be subject to the ACH Operating Rules (the “ACH Rules”) of the National Automated Clearing House Association (“NACHA”). You agree to comply with and be bound by the ACH Rules. We can reject an ACH transfer if it is not in compliance with the ACH Rules.

10.2. Funding the Available Balance through Direct Debit.Each time you choose on the Platform to fund the Available Balance through a direct debit, you authorize us to debit your bank account in an amount up to the amount of USD you authorize for that debit on the Platform, plus any applicable taxes and fees. After you authorize the debit on the Platform, you will not receive any separate notice from us of the amount or timing of the debit (or any other information about the debit) before we debit your bank account. Before you may begin funding your Available Balance through direct debits on a standing basis to your bank account, you must provide us 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 acknowledge that your bank account is a legitimate, open, and active account. Your authorization under this Clause 10.2 will remain in full force and effect until (a) your Nium Account is closed or (b)all fees and other amounts you owe under these Terms are paid, whichever occurs later.

10.3. Collection of Amounts Owed through Direct Debit.You also authorize us to debit your bank account, without any notice other than this notice provided in this Clause 10.3, to collect amounts you owe under these Terms, including, each as a separate debit or aggregated into a single debit or multiple debits at the same time or different times, amounts owed under Clause 7.14(b), 7.15, 8.1, 8.2, 10.6, and 11.5.

10.4. Reinitiation of Debit Entries.If we are unable to collect the amount of any debit to your bank account due to insufficient funds in your bank account, then we may reinitiate that debit in the same amount up to a maximum of two additional times, in accordance with the ACH Rules.

10.5. 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 authorize debits from your bank account.

10.6. Sufficient Funds in the Bank Account.It is your responsibility to ensure that there are sufficient cleared 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.

10.7. Fees Chargeable.We may charge you applicable fees 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.

10.8. Notification and Correction of Error; Updates.You must report any incorrect debits processed by Nium to your bank account to the Platform Provider as soon as possible after the debited amount is reflected in the VBAN. To make such a report, you will need to provide us your Nium Account information, bank account information, and date and time of the debit you believe is incorrect. Following the expiration of this period, any such entry will be deemed as agreed. In addition to authorizing debits to the bank account, you also authorize 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 authorize us to verify and correct such information. You also agree to update your bank account information with us by contacting the Platform Provider.

10.9. Revoking Direct Debit.We may revoke your ability to fund the Available Balance through direct debit at any time if (a) Nium was unable to debit your bank account for any reason not solely attributable to Nium, (b) you have requested a refund of any amount properly paid to Nium through direct debit; or (c) you have breached any of these Terms. You may disable the direct debit function at any time by notifying the Platform Provider, through such means made available to you by the Platform Provider, or by notifying your bank.

10.10. No Liability.Nium is not liable to you for any losses suffered by you due to a direct debit failing to be processed for any reason.

11. UNAUTHORIZED TRANSACTIONS

11.1. You Must Notify the Platform Provider of Unauthorized Transactions or Inaccurate Records.You must notify the Platform Provider immediately and no later than seven (7) days from the date of the transaction date or any longer minimum period prescribed by applicable laws. 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 Unauthorized 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) you Nium Account, 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. We may also debit from your bank account for such sums in accordance with Clause 10.3 of the ACH Debit Authorization Agreement. We also may issue a request for immediate repayment.

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 Clause 12.

12.4. Survival.The obligations set forth under this Clause 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; 
10. if any of our banking partners require us to stop providing services to you; or 
11. any of the transaction limits applicable to the Pay In or Pay Out services have been exceeded. 

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 (a) any charges or assessments imposed by NACHA as a result of a breach by you of the ACH Rules and (b) 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; or 
6. any breach by you of the ACH Rules. 

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.

17. GENERAL

17.1. 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.

17.2.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.

17.3. 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.

17.4. 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.

17.5. 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.

17.6. Laws that Apply to these Terms.These Terms shall be governed by and construed and enforced in accordance with the laws of the State of New York, without reference to the conflicts of laws principles. Each Party irrevocably agrees that the state and federal courts located in the State of New York shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with its these Terms. Each party hereby waives trial by jury in any court action or proceeding to which they may be parties, arising out of, in connection with or in any way pertaining to, these Terms.

17.7. 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.