Nium Direct Services Agreement

Welcome to Nium!

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

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

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

This Agreement consists of the following components:

1. The General Terms;

2. The Definitions set forth in Appendix A;

3. The International Jurisdiction Additional Terms and Conditions set out in Appendix B;

4. The Fee Schedule separately entered into between the Client and Nium (“Fee Schedule”);

5. The Pay Out Service Terms and Conditions;

6. The Pay In Service Terms and Conditions;

7. The Data Protection Agreement; and

8. Any other agreements or documents expressly referenced in this Agreement.

GENERAL TERMS

1. General. 

1. Definitions. Capitalized terms in this Agreement not defined inline are defined in Appendix A.

2. Interpretation. In the interpretation of this Agreement, the following provisions apply unless the context requires otherwise:

   1. headings are inserted for convenience only and do not affect the interpretation of this Agreement.

   2. a reference in this Agreement to any law, legislation or legislative provision includes any statutory modification, amendment or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision.

   3. a reference to a section, part, schedule or attachment is a reference to a section, part, schedule or attachment of or to this Agreement.

   4. a word which denotes the singular denotes the plural, a word which denotes the plural denotes the singular, and a reference to any gender denotes the other genders.

   5. unless the context indicates otherwise, a reference in this Agreement to “person” is deemed to include a natural person, corporation, company, firm, partnership, limited partnership, limited liability company or limited liability partnership or other similar organization.

   6. references to the word ‘include' or ‘including' are to be construed without limitation.

   7. in the event of any inconsistency between these terms and conditions and any Schedule or Appendix, the provisions of such Schedule or Appendix will prevail to the extent of such inconsistency.

3. Precedence of Terms. If any terms in any components of this Agreement conflict, then unless terms of lower precedence expressly state to the contrary, the order of precedence is:  (1) International Jurisdiction Additional Terms and Conditions (Appendix B); (2) these General Terms; (3) all other components; and (4) any other agreements or documents expressly referenced in this Agreement.

2. Term of Agreement. 

1. Initial Term. Unless otherwise terminated under Section 18, this Agreement comes into force on the Effective Date and shall continue for the Initial Term starting on the Effective Date.

2. Subsequent Term. Upon expiration of the Initial Term, this Agreement shall automatically continue for successive one (1) year terms (each a “Subsequent Term”), until either Party exercises its termination right under this Agreement.

3. Provision of the Services.

1. Services General Terms. Nium agrees to make available, and the Client agrees to accept, the Services in accordance with the terms of this Agreement.

2. Licensed Jurisdiction. The Services are offered and made available by Nium from its jurisdiction of incorporation (“Licensed Jurisdiction”). Nium does not intend to solicit, target or market the Services to any third party (including the Client) outside of its Licensed Jurisdiction.

3. Other Costs. Other than the Nium Platform, the Client shall be solely responsible, at its own cost, for the provision of all equipment, infrastructure, software, systems and facilities which are necessary to enable the Client to use the Services.

4. Integration.

1. Direct Integration. The Client will comply with all Documentation, instructions, guidelines and requirements relating to its use of the Services and its integration to the Nium Platform. The Client will ensure that its integration to and use of the Nium Platform does not create material technical problems, damage, interruption, or degradation of the Nium Platform.  Upon the occurrence, or Nium’s reasonable belief of the occurrence, of such an event, Nium may immediately suspend the Client’s use of the Nium Platform to the extent necessary to mitigate the consequences of the event, and the Client will take all necessary steps to remediate the event, including steps reasonably requested by Nium.

2. Approved Third Party Integration. The Client shall not integrate any API into the Services, Nium Platform or Nium Technology, unless Client has received the prior written approval of Nium for (i) the API to be an Approved Third-Party API and (ii) the party to be an Approved Third Party.  Nium may revoke its approval of any Approved Third Party or Approved Third Party API at any time, in Nium’s sole discretion. Unless otherwise agreed between the Parties in writing, this Agreement and the Services shall automatically terminate upon such revocation of approval by Nium.

   1. The Client will be responsible for its own development work and bear its own costs in relation to the integration of the Approved Third-Party API.

   2. The Client will comply, and will ensure that the Approved Third Party and the Approved Third-Party API comply, with all Documentation, instructions, guidelines and requirements for use of the Services via the Approved Third-Party API.

   3. The Client acknowledges that Nium has no responsibility or liability for the Client’s access to and use of the Approved Third-Party API or any system or platform provided by an Approved Third Party. Nium makes no representations or warranties as to the adequacy, commercial value, completeness or reliability of any Approved Third-Party API, or any system or platforms provided by the Approved Third Party.

   4. The Client will ensure that its use of the Approved Third-Party API and the Nium Platform does not create material technical problems, damage, interruption or degradation of the Nium Platform.  Upon the occurrence, or Nium’s reasonable belief of the occurrence, of such an event, Nium may immediately suspend the Client’s use of the Nium Platform to the extent necessary to mitigate the consequences of the event and the Client will take all necessary steps to remediate the event and as otherwise reasonably requested by Nium.

   5. The Client consents and authorizes the Approved Third Party to provide to and receive from Nium all information, communications, and Instructions in connection with the Services. The Client further consents and authorizes Nium to accept, rely and act upon any information, communications and Instructions transmitted by the Approved Third Party to Nium. Where Nium receives any information, communication or Instruction from the Approved Third Party, Nium shall be entitled to treat such information, communication or Instruction as having been received from the Client. The Client shall be bound as though the Client itself had given or received the information, communication or Instruction. Nium is under no obligation to check the authenticity or accuracy of any information, communication or Instruction received from the Approved Third Party and will not be liable for any Losses incurred or suffered by the Client, or any person, for complying with such information, communication or Instruction.

5. Nium Platform.

1. Client Access Codes. Nium will provide the Client with a unique identification number and/or password to enable the Client to access and use the Nium Platform (“Access Codes”). The security and confidentiality of the Access Codes will at all times remain the sole responsibility of the Client. The Client will ensure that none of the Access Codes is disclosed to any person, except on a need-to-know basis to Client Authorized Representatives. The Client will ensure that each Client Authorized Representative is aware of the requirement to keep the Access Codes secure and confidential. Breach of this Section constitutes a material breach incapable of being remedied and entitling Nium to terminate this Agreement immediately pursuant to Section 18.

2. Authorized Representatives. Nium is entitled to rely upon the Instructions provided by a Client Authorized Representative until such time as the Client notifies Nium in writing that the Client Authorized Representative is no longer authorized, and Nium has a reasonable opportunity to act upon the notification. Nium may at its sole discretion and without liability, decline to accept or cancel the authority of any Representative nominated by the Client as a Client Authorized Representative.

3. Instruction Information. Prior to submitting an Instruction to Nium, the Client must ensure that all information contained in the Instruction is complete and accurate. If the Client subsequently learns of any error in the Instruction, the Client must immediately notify Nium in writing. When Nium receives an Instruction from a person using an Access Code, Nium may assume that the Instruction has been given by a Client Authorized Representative. Nium is under no obligation to check the authenticity or accuracy of any Instruction or data received, or assumed to be received, from a Client Authorized Representative, and will not be liable for any Losses incurred or suffered by the Client or any other person as a result of Nium acting on an Instruction received, or assumed to be received, from a Client Authorized Representative.

4. Processing Delay or Failure. If the Client fails to provide a timely, accurate and complete Instruction, Nium may be unable to process, or may have to delay the processing of, such Instruction. Nium will not be liable for any Losses incurred or suffered by the Client or any person as a result of a delay or failure in processing an Instruction.

5. Refusal to Act. Nium may refuse to act upon any Instruction received from the Client that Nium believes: (i) may violate this Agreement or other agreements the Client or its Affiliates may have with Nium; (ii) is unauthorized, fraudulent or illegal; or (iii) expose the Client, Nium or others to risks unacceptable to Nium.

6. Unauthorized Use. The Client will notify Nium immediately in the event of any suspected or actual unauthorized use of the Access Codes or unauthorized access to the Nium Platform. Notwithstanding such notification, the Client is solely responsible for all acts or omissions of any person that accesses the Nium Platform through the Access Codes and agrees to be bound by the terms of all transactions or Instructions submitted through the Nium Platform using the Access Codes.

7. Records. The Client is responsible for maintaining its own records relating to the Services and for reconciling such records against any entries made available on the Nium Platform. The Client must notify Nium promptly, and in any event, no later than sixty (60) days (or any longer minimum period prescribed by Applicable Laws) after any unauthorized, incorrect or disputed transaction or entry is entered on the Nium Platform. Following the expiry of this period, any such entry in the Nium Platform will be deemed agreed.

6. Nium Account. 

1. Generally. The Client shall be granted one or more Nium Accounts for the purposes of the Services. Each Nium Account is denominated in a Supported Currency and facilitates the Client’s use of the Services including viewing the Available Balance in the relevant Supported Currency. Where foreign currency conversion is required in respect of any Available Balance, Nium shall apply the prevailing exchange rate, which at the Effective Date, is based on the rates published on the Reuters platform on a Business Day plus a percentage (recognized as a markup), as set out in the Fee Schedule for such conversion.

2. Client Responsibility. The Client shall be solely responsible for keeping, and shall take all steps to keep, any Nium Account opened and maintained with Nium safe at all times. The Client undertakes to notify Nium immediately upon becoming aware of or reasonably suspecting that any Nium Account has been misappropriated, used without authorization or otherwise compromised. Any delay in or failure to notify Nium shall result in the Client being liable for any Losses that arise in connection therewith.

3. Access and Use. The Nium Account shall be operated and accessed solely by the Client or a Client Authorized Representative. The Client shall be fully liable for any acts and omissions of any Client Authorized Representative or persons acting or purported to act on its behalf. If the Client allows any other third party (other than a Client Authorized Representative) to have access to or to operate any Nium Account for whatever reason, the Client shall be deemed to have authorized such use and shall be liable for all Losses and fees incurred by such use.

4. Funding. The Client or, if approved in writing by Nium, an authorized third party, may fund the Available Balance in any Supported Currency into a Settlement Account.  In order to facilitate the provision of the Services, except to the extent prohibited by Applicable Laws, the Client instructs and authorizes Nium to hold funds on behalf of the Client in one or more Settlement Accounts maintained by Nium and its Affiliates that are located outside of the Licensed Jurisdiction for the purpose of acting on the Client's Instructions provided to Nium pursuant to the Pay Out Service.

5. Acknowledgement of Risks. The Client acknowledges and agrees that:

   1. maintaining an Available Balance in multiple currencies carries foreign exchange risks, for example it is possible that the exchange rate improves over time and the Client will not receive the benefit of such fluctuations. The Client agrees to assume the aforementioned foreign exchange risks and waive all claims against Nium with respect to such risks; and

   2. it does not own or operate any Settlement Account or have any other interest in any Settlement Account and any interest earned on monies held in any Settlement Account is not payable to the Client.

6. Shortfall. Nium shall not be liable to make up for any shortfall in any Available Balance received by Nium (including due to bank or payment network charges) unless such shortfall is due to the gross negligence or wilful default of Nium.

7. Reserves. The Client agrees that Nium may, from time to time, establish and withhold from the Available Balance such reserve amounts (“Reserves”), to cover any obligations of the Client (including, but not limited to, outstanding Fees, Pay In Reversals, Pay In Refunds, or Assessments) under this Agreement or any other agreement that Client or its Affiliates may have with Nium or its Affiliates.  Nium may additionally fund the Reserves through: (i) the funds provided by the Client at Nium’s request; (ii) any amount owed by Nium or an Affiliate of Nium to the Client or an Affiliate of the Client; and/or (iii) debiting the bank account of the Client. Nium may, at its option, vary the rate or terms of the Reserves.  Nium’s rights with respect to the Reserves shall survive the termination of this Agreement.  Nium will notify the Client in the event that it establishes the Reserves.

8. Termination. Upon the termination or expiry of this Agreement, the Client may request for the return of any Net Available Balance by way of a written notice to Nium. Within thirty (30) days of receipt of such written notice and subject to satisfactory due diligence checks and Applicable Laws, Nium will initiate a refund of the Net Available Balance to the Client (“Available Balance Refund”).Where foreign currency conversion is required, Nium shall apply the prevailing exchange rate at the time such Available Balance Refund is made. In the event Nium is not able to return the funds to the Client, Nium shall, to the extent permissible by Applicable Laws and to the extent practicable for Nium, notify the Client of the reason(s) it is unable to return the funds.

7. Direct Debit Services. 

If direct debit services have been made available to the Client by Nium, the Client agrees to the Direct Debit Terms.

8. Unauthorized Transactions.

1. Notification. Unless stated otherwise in this Agreement, the Client must notify Nium no later than 60 days from the date of transaction or any longer minimum period prescribed by applicable laws (“Notification Deadline”) of any transaction recorded to the Client’s Nium Account that has not been authorized by the Client or has been otherwise incorrectly executed by Nium (each an “Unauthorized Transaction”). If notification is not provided by the Notification Deadline, such transaction will be deemed as agreed.

2. Suspension of the Services. The Client must suspend its use of the Services and notify Nium immediately if (i) the Client believes the security of any payment instrument (including any Nium Account or associated payment card) issued by Nium in connection with any Services has been compromised (for example, if an unauthorized Representative or a third party has gained access to any security credentials); and/or (ii) the Client has identified an Unauthorized Transaction. The Client may be asked to provide details of the reported issues, and any supporting documentation, such as a copy of a police report, to confirm the theft of the Nium Account.

3. Investigation. Nium will have the right to investigate any transaction reported by the Client as an Unauthorized Transaction. Nium may ask the Client to provide it with supporting information and documentation to help it with its investigation and the Client agrees to cooperate with Nium and provide all information and documentation it reasonably requires for this purpose. the Client also agree to cooperate with any regulatory authorities involved in Nium’s investigation.

4. Liability for Unauthorized Transactions:

   1. Nium will not be liable for any Unauthorized Transaction that has resulted from (A) the Client’s Nium Account being misappropriated or the security of the Client’s Nium Account otherwise being compromised, except to the extent that such misappropriation or compromise is caused by a security breach of the Nium Platform not caused by the Client’s acts or omissions, (B) the Client failure to use the Services in accordance with this Agreement or (C) the Client’s fraudulent acts or omissions.

   2. Nium will not be liable for any Unauthorized Transaction that has been notified to Nium after the applicable Notification Deadline.

   3. Nium will not be liable for any Unauthorized Transaction (other than a transaction that was incorrectly executed by Nium in accordance with a valid Instruction provided by the Client) that occurred prior to Nium being notified by the Client that one or more Unauthorized Transactions have been recorded to its Nium Account. Once the underlying issue (for example a compromise of the Client’s security credentials) causing the Unauthorized Transactions has been resolved and Nium has advised the Client that it can resume use of the Services, Nium will not be liable for any future Unauthorized Transactions unless and until the Client has notified Nium of the occurrence of additional Unauthorized Transactions in accordance with this Section 8.

5. Reversal of Refund. If Nium refunds the Client for a transaction that the Client reported as an Unauthorized Transaction and Nium subsequently determines that such transaction was not an Unauthorized Transaction or Nium was not otherwise liable to refund the Client for such Unauthorized Transaction in accordance with section 8(d). above, Nium will deduct the amount refunded to the Client from (i) the Client’s Nium Account, or (ii) funds provided to Nium as financial assurance for the Client’s obligations under this Agreement. If there are not sufficient funds in the Client’s Nium Account or otherwise available to Nium to reverse the applicable refund, the Client shall immediately transfer such amount to Nium upon its request.

9. Representations and Warranties.

1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that:

   1. it is duly organized, registered and validly existing under the Applicable Laws of its jurisdiction of organization;

   2. it has all the requisite corporate power, approvals and authority to execute, deliver, receive and perform its obligations under this Agreement;

   3. it has obtained and shall maintain all governmental, regulatory and other third-party licenses, authorizations, approvals, consents or permits required to perform its obligations under this Agreement and to use or provide the Services;

   4. it is not identified on any of the OFAC Lists or in any Sanctions, and none of its directors, officers, employees, or holders of equity or debt securities, are identified on, or are 50% or more owned, directly or indirectly, by any person identified on any of the OFAC Lists or in any Sanctions;

   5. neither Party has received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value from an employee or agent of the other Party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business that comply with Applicable Laws do not violate the above restriction; and

   6. it will provide the other Party with reasonable assistance as the other Party may require, from time to time, in connection with this Agreement and the activities contemplated hereunder.

2. Client Representations and Warranties. The Client represents and warrants that it will:

   1. use the Services only for lawful purposes and in compliance with all Applicable Laws;

   2. use the Nium Platform in accordance with the terms of this Agreement and the Documentation and in compliance with all Applicable Laws;

   3. and previously has, accurately identified itself, and it has not provided any inaccurate information about itself or its End Customers to or through the Services, and that it has the right to use and disclose such information to Nium;

   4. comply with all applicable Sanctions and export control laws and will not provide the Services, End Customer Services or any other services provided to an End Customer to any parties that, at the time such Services or End Customer Services are provided, are (A) located or resident in any country or territory that is subject to a U.S. trade embargo or other applicable Sanctions prohibiting such services, including but not limited to, the Crimea, Donetsk and Luhansk regions of Ukraine, Cuba, Iran, North Korea, and Syria; and (B) included on any U.S. lists of prohibited parties including, the OFAC Lists or any other applicable Sanctions list prohibiting such services;

   5. not (directly or indirectly) sell, export, reexport, transfer, divert or otherwise dispose of any Services received from Nium in contradiction with the laws and regulations described in subpart (iv) above;

   6. provide Nium with all information in relation to this Agreement, the Services, and/or where applicable, any End Customer promptly and in any event not more than seventy-two (72) hours following the receipt of a request from Nium or such other longer period as agreed between Nium and the Client, and that all such information provided to Nium by the Client, or any third party on behalf of the Client, is accurate in all material respects, and that such information does not, and the Client will not, omit or withhold any information which would make such information inaccurate in any material respect;

   7. notify Nium in writing immediately (A) when there are changes to any information (including but not limited to information pertaining to the Client, (where applicable) End Customers or in connection with any Services) which the Client has previously provided to Nium; and (B) if the Client becomes aware of any event, suspicious activity, investigation or occurrence relating to Anti-Money Laundering/Combating the Financing of Terrorism Laws, or Sanctions that potentially involves or implicates Nium, any of Nium’s officers, directors, employees or agents, or any Services (and, where applicable, provide details of transactions processed in connection with such Services in the preceding twelve (12) month period);

   8. ensure that any payments or transactions made pursuant to any Services are not in any way associated with the activities, entities or industries listed in the prohibited list provided by Nium to the Client from time to time or as set out on www.nium.com/legal/prohibited-business-categories (as amended from time to time) (“Prohibited Business Categories”);

   9. comply with all Applicable Laws and Nium’s anti-money laundering policies as provided to Client from time to time;

   10. to the extent permitted by Applicable Laws, immediately notify Nium if it detects any suspicious, fraudulent or other form of criminal activity relating to any payments or transactions made pursuant to any Services and cooperate with Nium to investigate and/or prevent such further activity;

   11. establish, apply and maintain robust security systems and procedures to effectively monitor access to and use of the Access Codes and the Nium Platform;

   12. ensure that any data that has been accessed, printed or otherwise downloaded from the Nium Platform is retained securely at all times; and

   13. provide to Nium such information or documents in such format and within such time limit as Nium may reasonably require in connection with this Agreement or the Services.

3. Nium Representations and Warranties. Nium represents and warrants that it will:

   1. comply with all Applicable Laws in fulfilling its obligations under this Agreement and the provision of the Services;

   2. implement, maintain and comply with policies and procedures that are designed to detect and prevent money laundering, terrorist financing, fraud and/or other crimes or Sanctions and shall review and update such policies as necessary to reflect any changes in Applicable Laws; and

   3. have in place reasonable business continuity and disaster recovery policies and at all times, maintain, test and comply with such policies.

4. DISCLAIMER FOR ALL OTHER WARRANTIES FOR SERVICES. The Services are provided “AS IS”. Except as otherwise expressly provided under this Agreement, Nium makes no representations or warranties of any kind, whether express, implied, statutory or otherwise regarding the Services, including any warranty that the Services or Nium Platform will be uninterrupted, error free or free of harmful components, or that any data or information, including Client or End Customer confidential information or data, will be secure or not otherwise lost or damaged. Client acknowledges that Nium does not control or monitor the transfer of data over the internet, and that internet accessibility carries with it the risk that Client’s (or End Customer’s) privacy, confidential information and property may be lost or compromised. Except to the extent prohibited by Applicable Laws, Nium disclaims all warranties, including any implied warranties of merchantability, title, fitness for a particular purpose, non-infringement and any warranties arising from a course of dealing, usage or trade practice.

10. End Customer Authorization.

The Client authorizes Nium to, and where applicable, shall procure the necessary authorization from any End Customer for Nium to, directly or through third parties, make any inquiries Nium considers necessary for the purpose of this Agreement and/or any Services, including to validate the Client’s or, where applicable, any End Customer’s identity. This may include making periodic searches of, and providing information (including Confidential Information) about the Client, or where applicable, an End Customer to, (i) a Network, (ii) a credit reference, market research, customer feedback, or a fraud prevention agency, (iii) an Affiliate of Nium, (iv) its Representatives, or (v) any other third parties involved in the provision of services under any Services for any purpose in connection with this Agreement.

11. Fees and Other Amounts Payable to Nium.

1. Payment of Fees. The Client will pay the Fees as set out in the Fee Schedule and any other amounts due and payable to Nium under this Agreement. Amounts payable to Nium will be debited from the Client’s Nium Account in full seven (7) days following the date of each invoice issued by Nium to the Client (“Payment Date”). If the Client’s Nium Account does not hold sufficient funds to satisfy its payment obligations to Nium in full on the Payment Date, the Client will immediately fund its Nium Account with an amount equivalent to such shortfall. If any amount due to Nium pursuant to this Agreement is not paid by the Client in full on or before the Payment Date for whatever reason, the Client shall pay Nium a finance charge equal to two per cent (2%) per month (or the highest rate permitted by Applicable Laws, whichever is lower) on any unpaid amount from the date such payment was due until the date paid. Client will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Nium in collecting past due amounts.

2. Setoff. Nium may from time to time, without notice, set-off or deduct by whatever means, the whole or any part of the liabilities of the Client or its Affiliates under this Agreement or any other agreement between Nium and/or its Affiliates and the Client and/or its Affiliates (whether such liabilities are present, future, actual or contingent or potential, liquidated or unliquidated and irrespective of the currency of their denomination) against any amounts (i) held by Nium on behalf of the Client or by an Affiliate of Nium on behalf of another Affiliate of the Client, or (ii) owed by Nium to the Client under this Agreement or by any Affiliate of Nium to any Affiliate of the Client under the relevant agreement.

3. Taxes. All Fees, and any other amounts due under this Agreement shall be paid by the Client in full without any deductions (including deductions in respect of applicable Taxes, charges and/or duties). Any Tax payable in respect of any payments made under this Agreement (other than Tax payable on Nium’s net income, profits or gains) shall be borne by the Client.

4. Changes In Third Party Fees. In the event that any third-party fees that apply to the Services are imposed or changed after the date of this Agreement, Nium may charge the Client for such third-party fees on a pass-through basis by giving written notice to the Client of such fees.

12. Right of Audit. 

1. 1. Audits. 

      1. If Nium reasonably suspects that there has been a breach of this Agreement by the Client, the Client will provide Nium (or its third-party auditor) with access to the Client’s systems and records related to the Client’s use of the Services and its compliance with this Agreement and Applicable Laws.

      2. If requested by a Regulatory Body in connection with its regulatory oversight of Nium, the Client will provide Nium or that Regulatory Body (or their third-party auditors) with (A) access to the Client’s systems and records related to the Client’s use of the Services and (B) access to the Client’s locations where it accesses the Services.

   2. Audit Costs. Where an audit is undertaken pursuant to a request by any Regulatory Body related to the Client or pursuant to an event giving rise to a breach of this Agreement by the Client (including security breach), the Client shall pay any cost and expense incurred by Nium or its Representatives with respect to such audit.

13. Additional Security for Client Obligations. 

In connection with the provision of the Services, Nium may, from time to time, require the Client to provide Nium with additional collateral, cash reserves, guarantees, indemnity, and/or other security (collectively, “Security”), in such form and amounts that are reasonably required to secure the performance of the Client’s existing or potential obligations under this Agreement.  Client must provide Nium with the Security no later than thirty (30) days after receipt of a written request for such Security.

14. Confidential Information.

1. Confidentiality Obligations. Each Party will, and will cause its Representatives to, keep confidential and not use or disclose the other Party’s Confidential Information except as permitted by this Agreement. Each Party agrees to limit access to the other Party’s Confidential Information to such of its personnel, agents, subcontractors, suppliers and/or consultants, if any, who have a need to access such information in accordance with the terms of this Agreement. Both Parties agree that all Confidential Information is proprietary to the disclosing Party and shall remain the sole property of the disclosing Party. The receiving Party will be liable to the disclosing Party for any unauthorized disclosure by its Representatives, or by the Representatives of its Affiliates.

2. Exceptions. This Section is not breached by uses or disclosures of Confidential Information that are (i) authorized in writing by the disclosing Party prior to the receiving Party’s use or disclosure; or (ii) required by Applicable Laws, or by a Regulatory Body (“Compelled Disclosure”) provided that, such Party will use reasonable efforts to provide the other Party with prior notice (to the extent legally permitted) in order to afford the other Party an opportunity to seek a protective order or otherwise challenge the Compelled Disclosure. The non-disclosing Party is solely responsible for any expenses incurred in seeking to prevent a Compelled Disclosure. After provision of such legally permissible prior notice, the disclosing Party will not be liable if such Party complies with the disclosure after giving the other Party a reasonable amount of time to respond.

3. Expiration or Termination of Services Agreement. Unless expressly permitted under this Agreement, on expiry or termination of this Agreement, at the written request of the disclosing Party, all Confidential Information must either be returned to the disclosing Party or destroyed by the receiving Party and its Representatives no later than fifteen (15) days after the written request; provided, however, that (i) the receiving Party and its Representatives, subject to the obligations of this Agreement, shall not be required to destroy electronic copies of any computer records or files containing the Confidential Information which have been created pursuant to automatic archiving or back-up procedures on secured central storage servers and which cannot reasonably be deleted, and (ii) the receiving Party may retain one (1) electronic copy of the Confidential Information (the “Retained Copy”), but the Retained Copy shall be accessed and used by the receiving Party solely for the purposes of (A) ensuring compliance with Applicable Laws and record retention policies, and (B) defending or maintaining any litigation with respect to the terms of this Agreement. At the request of the disclosing Party, the receiving Party will furnish a certificate, signed by the receiving Party, certifying that any Confidential Information not returned to the disclosing Party has been returned or destroyed by the Receiving Party in accordance with this Section 14.

4. Survival. The obligations set forth under this Section 14 will survive termination of this Agreement.

15. Intellectual Property Rights.

1. Ownership and Retention. Nium reserves all right, title, and interest in and to any materials produced by Nium including, without limitation, all of Nium’s Intellectual Property Rights.  Nium shall own and retain all right, title and interest in the Services, the Nium Technology, and all other Intellectual Property Rights of Nium, and shall own and retain all improvements thereon.  Other than the license granted during the term of this Agreement, as set forth in Section 15(b), Client shall not acquire any rights, title, or interest, express or implied, to the Services, Nium Technology, or other Intellectual Property Rights of Nium, nor to any derivative works, modifications, enhancements, improvements, translations or other alterations thereto (“Nium Derivative Works”). To the extent any assignment is necessary to evidence the intent of this Section, Client agrees to assign to Nium all of its right, title, and interest in and to such Nium Derivative Works, and any part thereof, and in and to all copyrights, patents and other proprietary rights they may have in such Nium Derivative Works.

2. Access and Use. Nium grants the Client during the term of this Agreement a limited, non-exclusive, worldwide, royalty-free, non-transferable, non-sublicensable license to electronically access and use the Nium Platform and the Services solely in compliance with this Agreement. Except as expressly permitted by Applicable Laws, the Client must not: (i) work around any of the technical limitations of the Nium Platform or the Services or enable functionality that is disabled or prohibited; (ii) reverse engineer or attempt to reverse engineer the Nium Platform or the Services; or (iii) perform or attempt to perform any actions that interfere with the normal operation of the Nium Platform or the Services or affect use of the Nium Platform or the Services by Nium’s other customers.

3. Marketing Materials. Client consents to Nium’s use of Client’s name and logos in marketing materials, and Nium may disclose the relationship with the Client (i) in customer reference lists and sales presentations, and (ii) via public disclosures (including but not limited to social media sites or on Nium’s website). Nium and the Client may issue a mutually agreed press release on execution of this Agreement.

16. Indemnification. 

1. Client Indemnification. The Client will, to the fullest extent permitted by Applicable Laws, indemnify, defend and hold harmless Nium, its Affiliates, subcontractors and its and their Representatives (each a “Nium Party”) from and against any and all Claims brought against a Nium Party by a third party, and for any and all Losses incurred in connection with such third party Claims, based upon or arising out of:

   1. any breach of this Agreement by Client;

   2. the Client’s (or any End Customer’s) access to and/or use of the Services, the Nium Technology, the Nium Platform and/or the Documentation, whether or not such access or use was authorized or whether it was due to any act or omission on its part, including any fees, penalties or fines imposed on Nium or its Affiliate by any payment network or any government entity;

   3. the Client’s (or its End Customer’s) noncompliance with Applicable Laws, including with respect to the Client’s (or its End Customer’s) access to and/or use of the Services;

   4. the Client’s (or its End Customer’s) gross negligence or intentional misconduct;

   5. use of Client’s Intellectual Property Rights or any information provided by the Client in connection with this Agreement or the Services;

   6. any request, Instruction or information given by the Client or where applicable, by an Approved Third Party or through an Approved Third-Party API; or

   7. any transaction pursuant to the Services.

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

b. Nium Indemnification. Subject to Section17(b), Nium will, to the fullest extent permitted by Applicable Laws, indemnify, defend and hold harmless the Client, its Affiliates, and their Representatives (each a “Client Party”) from and against any and all Claims brought against a Client Party by a third party, and any and all Losses incurred in connection with such third party Claims, based upon or arising out of:

1. any breach of this Agreement by Nium;

2. Nium’s noncompliance with Applicable Laws;

3. Nium’s gross negligence or intentional misconduct; or

4. claims that Nium’s Intellectual Property Rights infringe on the Intellectual Property Rights of any third party.

If Nium receives information about an infringement or misappropriation Claim related to the Services, Nium may in its discretion, and at no cost to Client, (A) modify the applicable Service so that it is no longer claimed to infringe or misappropriate the Intellectual Property Rights of a third party, (B) obtain a license for Client’s continued use of the applicable Service in accordance with this Agreement, or (C) terminate this Agreement, in whole or in part, with respect to the applicable Service upon thirty (30) days’ written notice to the Client. The indemnification obligations set forth in this Section 16(b) do not apply if (I) the allegation does not state with specificity that the Service is the basis of the Claim against the Client Party, (II) a Claim against a Client Party arises from the use or combination of the Service or any part thereof with software, hardware, data, or processes not provided by Nium, if the Service or use thereof would not infringe without such combination, (III) the alleged infringement arises from third-party materials or data, (IV) the alleged infringement arises from a modification of the materials other than by or on behalf of Nium, (V) the alleged infringement arises from a failure to timely implement modifications, upgrades, replacements, or enhancements made available to the Client by or on behalf of Nium, or (VI) the Claim ultimately arises from Client’s breach of this Agreement or Client’s gross negligence or intentional misconduct.

17. Exclusion and Limitation of Liability.

1. DAMAGES WAIVER. In no event will Nium or any Nium Party have any liability arising out of or related to this Agreement or the Services for any lost profits, revenues, goodwill, or indirect, special, incidental, consequential, cover, business interruption or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if the Client or any Client Party has been advised of the possibility of such damages or if the Client’s or any Client Party’s remedy otherwise fails of its essential purpose.

2. LIABILITY CAP. In no event shall the aggregate liability of Nium, or any Nium Party, arising out of or related to this Agreement, exceed the total Fees paid by the Client to Nium under this Agreement for the preceding twelve (12) months from the date giving rise to such Claim (or, if such event occurs within the first twelve (12) months after the Effective Date, the average monthly Fees paid by the Client to Nium during the term of this Agreement multiplied by twelve (12)); provided, however, that this limitation of liability shall not apply to (i) the obligations of Nium to repay the Client’s Net Available Balance under Section 3 of the Pay Out Service Terms and Conditions or (ii) any act of willful misconduct or fraud by Nium. The foregoing limitation will apply whether an action is in contract or tort and regardless of the theory of liability.

3. Acknowledgment. The Parties acknowledge and agree that the exclusion and limitation of liability in this Section 17 is reasonable having regard to all relevant factors, including the nature and cost of the Services provided and the allocation of risk and liability between the Parties; provided, however, that nothing in this Agreement shall exclude or limit any liability that cannot be excluded or limited under Applicable Laws, and any such liability shall not be subject to the exclusions, limitations, or liability caps set out in this Section 17.

18. Termination and Consequence of Termination.

1. Termination Without Cause by Either Party.

   1. In addition to the other rights set forth in this Section 18, either Party may terminate this Agreement at any time by giving the other Party at least thirty (30) days’ written notice of termination.

   2. Notwithstanding the foregoing, the Client may not exercise its rights under Section 18(a)(i) unless, where applicable, the Client has paid Nium an early termination fee as set out in the Fee Schedule (“Early Termination Fee”). The Parties agree that the Early Termination Fee constitutes a fair and reasonable determination of the amount of actual damages which would be suffered by Nium in such event, and that the Early Termination Fee does not constitute a penalty, but is liquidated damages, compensatory in nature.

2. Termination for Cause by Client. Without prejudice to any other rights and remedies under this Agreement, the Client may at any time immediately terminate this Agreement, in whole or in part, by written notice to Nium if:

   1. Nium commits a material breach of this Agreement, which is not capable of remedy, or if capable of remedy, is not remedied to the Client’s reasonable satisfaction within thirty (30) days of service of a notice requiring such remedy; or

   2. Nium becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors (“Insolvency Proceeding”); or

   3. There is a termination or withdrawal, in whole or in part, of any license, registration, permission or authorization required for Nium to operate its business in connection with the Services.

3. Termination for Cause by Nium. Without prejudice to any other rights or remedies under this Agreement, Nium may at any time immediately suspend or terminate this Agreement or the Client’s access to the Services, in whole or in part, if:

   1. the Client commits a material breach of this Agreement, which is not capable of remedy, or if capable of remedy, is not remedied to Nium’s reasonable satisfaction within thirty (30) days of service of a notice requiring such remedy;

   2. the Client files, or has filed against it, an Insolvency Proceeding;

   3. the Client is not paying its debts as they become due and payable;

   4. an Affiliate of Nium becomes entitled to terminate any agreement it has with an Affiliate of the Client;

   5. (A) Nium is required to terminate this Agreement pursuant to an order from any Regulatory Body or the Network or otherwise pursuant to Applicable Laws; (B) Nium reasonably believes that any Service is being used for a purpose contrary to Applicable Laws or for an unauthorized or fraudulent use; or (C) the security of any Service, the Nium Technology or the Nium Platform has been compromised due to the actions or omissions of the Client;

   6. the results of any “know your customer” or other similar checks or screenings under Applicable Laws (including Sanctions) or regulations conducted on the Client are unsatisfactory to Nium in its sole discretion or continuing any Service could cause reputational, regulatory, financial or operational harm to Nium;

   7. there is a withdrawal or termination, in whole or in part, of any license, permission or authorization required to operate the Client’s business;

   8. the Client undergoes a change of Control, or a sale or other disposal of any substantial division or part of the Client’s business without the prior written consent of Nium; or

   9. Nium has provided Client with a written revocation of its approval of an Approved Third Party or Approved Third-Party API.

4. Termination of Services by Financial Partner of Nium. Nium may, at any time immediately terminate this Agreement or the Client’s access to the Services, in whole or in part, if the Financial Partner that offers services to Nium, in connection with the Services, has either (i) terminated or suspended the performance of its services to Nium or (ii) has directed Nium to no longer permit the Client to utilize the Financial Partner’s services.

5. Effect of Termination.

   1. General. Upon termination or expiration of this Agreement, Client will (i) immediately discontinue or disable the integration of any Approved Third-Party API developed hereunder; (ii) remove any reference to Nium from any websites, software applications, marketing or advertising materials; and (iii) return and/or destroy any Nium property (including intellectual property) or Nium Confidential Information in accordance with the terms of this Agreement.

   2. Survival. Upon termination of this Agreement, all rights and obligations of any Party will cease to have effect immediately, save that the Sections which expressly or by implication have effect after termination will continue to be enforceable notwithstanding such termination (including Sections 1, 6(h), 12, 14 to 27, and any applicable Section set forth in Appendix B) and termination will not affect accrued rights, obligations and liabilities of any Party under this Agreement as at the date of termination.

   3. Effect of Termination for Cause by Nium. If this Agreement is terminated by Nium in accordance with the terms of Section 18(c), Client will pay Nium the Minimum Monthly Commitment Fees (indicated in the Fee Schedule) for the remainder of the applicable Initial Term or Subsequent Term. In no event will termination relieve Client of its obligation to pay any fees Fees payable to Nium for the period prior to the effective date of termination.

19. Notice. 

All notices, requests, demands, or other communications under this Agreement (“Notices”) must be in writing and sent by email to the Party’s email address on the Fee Schedule (or any new email address that has been provided by the Party, by written Notice), and will be deemed to have been given on the date on which it has been sent.  In the event that the sender receives a machine-generated notification that the email was not received by the recipient, Notice may be given by personal delivery, certified mail, or reputable overnight or international delivery service to the Party’s address on the cover page of the Fee Schedule (or any new address that has been provided by the Party by written Notice) and shall be deemed have been given (i) in the case of personal delivery, when received, (ii) if sent domestically, the next Business Day, or (iii) if sent internationally, five (5) Business Days after it is sent.

20. Force Majeure. 

Nium will not be liable for any delay or failure to perform under this Agreement due to circumstances beyond Nium’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, pandemics, epidemics, quarantines, acts of terror, strikes or other labor problems, regional shortage of adequate power or telecommunications or transportation, internet or other service disruptions involving hardware, software or power systems not within Nium’s possession or reasonable control, and denial of service attacks.

21. Amendment; Changes In Services and Applicable Laws.

1. Amendment. Except for changes to the Fee Schedule and End Customer Fee Schedule, which shall be agreed to in writing by the Parties, Nium may modify all or any part of this Agreement at any time by posting a modified version of this Agreement (including any terms incorporated by reference into this Agreement) on the Nium website or by notifying the Client. Any modification made by Nium shall be communicated by posting the updated Agreement on the Nium website or by notifying the Client, and shall take effect following a reasonable notice period, or such other notice period as required by Applicable Laws. If the Client objects to any of the modified terms in the Agreement, the Client may terminate this Agreement in accordance with Section 18. By continuing to use the Services after the effective date of any modification to this Agreement, the Client agrees to be bound by the modified Agreement. It is the Client's obligation to check the Nium website regularly for modifications to this Agreement. Nium last modified this Agreement on the date listed at the top of this Agreement. Except as this Agreement (including this Section) otherwise allows, this Agreement may not be modified except in writing by the Parties.

2. Changes in Services. Nium may from time to time, make changes to the Services. If such changes lead to a material change in the Nium Technology affecting the Client, Nium will notify the Client as soon as reasonably practicable.

22. Assignment and Subcontracting.

1. Assignment by Client. The Client may not subcontract, assign, novate, charge, declare a trust over or transfer the benefit of all or any part of this Agreement without the prior written consent of Nium.

2. Assignment by Nium. Nium may, without prior consent or notice, novate or assign any or all of its rights and obligations under this Agreement to any:

   1. of its Affiliates; or

   2. in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

3. Subcontracting by Nium. Nium may subcontract its obligations under this Agreement to third parties.

23. Multiple Entities. 

1. Multiple Nium Entities. Where there is one or more Affiliates of Nium providing services to the Client or its Affiliates, each Affiliate of Nium will enter into a separate agreement with Client to provide services not as a partner or jointly with Nium or the other Affiliates of Nium, and such Affiliate of Nium shall not be liable in connection with the Services provided by Nium, whether jointly or severally;

2. Effect of Suspension or Termination. Any Affiliate of Nium or Affiliate of the Client may suspend or terminate any Service, in whole or in part, in accordance with the terms of the applicable agreement. Any suspension or termination shall affect only such portion of that agreement which relates to the Service under suspension or termination, and shall not suspend, terminate, affect, impair, invalidate or render unenforceable any provisions of this Agreement in connection with any other Services.

24. Dispute Resolution.

1. Dispute Notice. Without prejudice to either Party’s rights or remedies under this Agreement, if any Party (each a “Disputing Party”) brings a dispute against the other Party arising out of or in connection with this Agreement (“Dispute”), such Disputing Party shall give to the other Party a written notice of the Dispute, setting out the nature and full particulars of such Dispute (“Dispute Notice”). Following service of the Dispute Notice, the parties shall attempt to resolve the Dispute in good faith.

2. Resolution Period. If the parties are unable to resolve the Dispute within twenty (21) days of service of the Dispute Notice or such other period as mutually agreed between the Parties (“Period”), either Party shall be entitled to commence proceedings in court, subject to Section 25.

3. Settlement. If the Dispute is resolved within the Period, any settlement shall be recorded in writing and signed by the authorized representative of each Party.

25. Governing Law and Jurisdiction. 

This Agreement shall be governed by and construed in accordance with the laws of the jurisdiction where Nium is incorporated (“Governing Jurisdiction”) and the parties submit to the exclusive jurisdiction of the courts of the Governing Jurisdiction for any dispute which may arise out of or in connection with this Agreement.

26. Miscellaneous.

1. Entire Agreement. This Agreement, and all of its Appendices and Schedules, contain the entire understanding of the parties hereto with respect to activities contemplated by this Agreement and supersede all prior agreements and understandings, whether written or oral.  Failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.

2. Equitable Remedies. Each Party acknowledges and agrees that, notwithstanding any other provisions of this Agreement, breach of this Agreement by a Party may cause the other Party irreparable damage for which recovery of money damages would be inadequate, and that the Party that has suffered the breach shall, therefore, be entitled to institute a suit and without posting bond, obtain an injunction against such Party, whether interlocutory or preliminary, and to any other equitable relief, before any court, restraining any such breach.

3. Further Assurances. The Client shall, at Nium’s request, execute or procure the execution of such documents and do or procure the doing of such acts or things as Nium may reasonably require for the purpose of this Agreement.

4. Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.

5. Independent Contractors. Unless expressly indicated otherwise in this Agreement, the relationship between the parties to this Agreement shall be that of independent contractors.  Nothing in this Agreement shall be construed to create the relationship of employer and employee, a joint venture, a partnership or joint association between the parties to this Agreement and or any of their respective Affiliates.

6. No Third-Party Beneficiaries. Except for any Nium Party or Client Party, no other person will have any right whatsoever to enforce this Agreement or have the benefit of any of its terms.

7. Specific Jurisdiction. To the extent that Services are provided from Australia, Brazil, Canada, EEA, Hong Kong, Japan, Malaysia, New Zealand, Singapore, the United Kingdom, or the United States, refer to Appendix B for certain jurisdiction-specific terms and conditions.

27. Data Protection Agreement. 

The Parties acknowledge and agree that each Party shall act as an independent controller with respect to any Personal Data collected or processed in connection with the Services. The Parties understand and agree that they (a) are acting, and shall act, independently of one another in their respective processing of such Personal Data, and are not and shall not be ‘joint controllers’ of such Personal Data within the meaning of Article 26(1) of the GDPR; (b) shall provide reasonable cooperation and assistance to the other Party as necessary for the other Party’s compliance with Applicable Laws (at the other Party’s reasonable expense) with respect to such Personal Data; and (c) shall be bound by the terms of the Data Protection Agreement, which is incorporated herein by reference. Each Party will comply with the terms of the Data Protection Agreement and will be responsible for its compliance with Applicable Laws.

APPENDIX A

DEFINITIONS

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

APPENDIX B

INTERNATIONAL JURISDICTIONS
ADDITIONAL TERMS AND CONDITIONS

The table below specifies for each applicable jurisdiction where the Services are provided: the Nium entity that provides the Services; the governing law for this Agreement; the venue where any disputes may be brought; any specific methods for making complaints; and the Error Notification Deadline.

Appendices B-1 to B-9 contain additional terms and conditions that apply to the extent that the Services are being provided in the jurisdiction specified in the appendix.

APPENDIX B-1

AUSTRALIA

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

1. Nature of the Available Balance; Bank Guarantee.
   1. Nature of Available Balance. When funds are credited to the Available Balance the Client acquires an interest in (or an increased interest in) a non-cash payment product (being the Nium Account). Those funds are therefore not monies which are subject to the client money protections in the Corporations Act 2001 (Cth).
   2. Bank Guarantee. The Available Balance is supported by a bank guarantee (the “Bank Guarantee”). The Bank Guarantee is issued by an Australian authorized deposit-taking institution (the “Issuer”) in favor of Global Loan Agency Services Australia Nominees Pty Ltd (the “Trustee” or “GLAS”) who holds the benefit of the Bank Guarantee on trust for Nium’s customers, including the Client. The Client agrees to be bound by the Security Trust Deed between Nium and GLAS dated 24 November 2023 which sets out the parties’ rights and obligations with respect to the Bank Guarantee. Nium is required to ensure that, at any point in time, the amount of the Bank Guarantee is greater than the aggregate Available Balances of all customers of the Services. If an insolvency event occurs with respect to Nium AU or Nium AU is found by any court or tribunal in Australia or the Australian Financial Complaints Authority (“AFCA”) to be in breach of any obligation owed to the Client in connection with the Nium Account or Available Balance which breach is not remedied within 10 Business Days following receipt by Nium AU of the final non-appealable judgement or determination of the court, tribunal or AFCA, the Trustee must make a demand on the Bank Guarantee. The Client acknowledges that if a demand is made on the Bank Guarantee, the Trustee will apply the proceeds of the Bank Guarantee to satisfy Available Balances of affected customers held (i) in Australian Dollars, in Australian Dollars and (ii) in any other currency, in Australian Dollars using an exchange rate determined by the Trustee (acting reasonably). In these circumstances the Client can contact the Trustee at: GLAS, Level 26, 1 Bligh Street, Sydney NSW 2000 Australia (Re: NIUM); Phone: +61 2 82268728; Website: https://glas.agency/aus/ and Email: apac@glas.agency (Re: NIUM). The Bank Guarantee referenced in this Section has been issued with the intention of satisfying an exemption published by the Reserve Bank of Australia under section 25 of the Payment System (Regulations) Act 1998 (Cth) on 4 March 2004 (the “Exemption”). The Client acknowledges and agrees that (i) if Nium AU no longer relies on the Exemption in respect of the Available Balance, such as where Nium AU is granted an authorised deposit taking institution license, neither Nium AU nor the Trustee need maintain the Bank Guarantee; and (ii) for the purposes of establishing the Bank Guarantee arrangements, Nium AU is authorized to transfer free and clear title to all relevant balances held in the Settlement Account (or otherwise received to be credited to the Available Balance) to the Issuer as collateral for performance of the Bank Guarantee.
2. PayTo Services. If PayTo services have been made available to the Client by Nium, the Client agrees to the PayTo Terms located at PayTo Terms.

APPENDIX B-2

BRAZIL

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

1. Clean Company Act. The Client represents and warrants it is in compliance with all applicable anti-corruption and anti-bribery laws and regulations, including those of Brazil, and neither the Client nor any of its directors, officers, employees, agents, or representatives has engaged in any conduct that would result in a violation of such laws; further, it maintains policies and procedures reasonably designed to prevent, detect, and remediate acts of corruption and bribery.
2. Direct Debit. The Client acknowledges and agrees that, where Direct Debit services are used in Brazil, such services may involve Pix (the instant payment system operated by the Central Bank of Brazil (Banco Central do Brasil – BACEN) and/or boleto bancário and may therefore be subject to Applicable Laws, and requirements governing payment arrangements and payment systems, including BACEN Resolution No. 96 of 19 May 2021, as amended, and applicable Pix rules, standards, and operational requirements.

APPENDIX B-3

CANADA

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

RPAA Trust Arrangement – Nium Client Agreement Addendum

1. Definitions
   
   

   "Trust Beneficiary"	means (i) Client, (ii) any other end-user (within the meaning of the RPAA), in each case from whom, or for whom, Nium receives and holds funds where such funds are transferred to Nium with the intention that they be held in trust and (iii) any income beneficiary designated under the Declaration of Trust;
   "Client Funds"	means Client's funds that Nium receives and holds in accordance with this Agreement;
   "Declaration of Trust"	means the declaration of trust dated as of September 5, 2025 entered into between Nium, as initial settlor, and the Trustee, as such declaration of trust may be amended, modified, supplemented and replaced from time to time;
   "Financial Institution"	means a Canadian regulated entity referred to in one of paragraphs 9(a) to (d) or (f) to (h) of the RPAA;
   "Income"	means any interest or other investment income or earnings that may be earned on the Client Funds held in a Trust Account;
   "In-Transit"	means the period commencing at the point in time Nium receives an instruction to immediately transfer or withdraw funds to or from an account, including the Trust Account, until the point in time at which such transfer or withdrawal is complete;
   "Nium Trust"	means the trust established by the Declaration of Trust to hold Trust Property in trust for the benefit of the Trust Beneficiaries;
   "RPAA"	means the Retail Payment Activities Act (Canada);
   "Trust Account"	means a segregated omnibus trust account maintained by and in the name of the Trustee as trustee on behalf of the Trust Beneficiaries at a Financial Institution;
   "Trustee"	means the person or entity appointed by Nium pursuant to the Declaration of Trust as trustee of the Nium Trust and any successor or replacement trustee;
   "Trust Property"	means (i) all Client Funds, and (ii) any other property held in trust pursuant to the Declaration of Trust.

   
   
   
   
   
2. Trust Arrangement; Safeguarding of Funds
   1. Nium has established the Nium Trust for purposes of holding and safeguarding end-user funds in trust, including Client Funds. By using the Services, Client intends for its Client Funds to be held in the Nium Trust in trust for Client's benefit and Nium agrees to hold Client's Funds in the Nium Trust, in accordance with this Agreement and the Declaration of Trust. Nium has been appointed as the initial Trustee of the Nium Trust. Client acknowledges that Nium has the right to replace the Trustee with one or more successor Trustees at any time, in each case, in its sole discretion, and, except where prohibited by applicable law, without prior notice to or consent from Client.
   2. Once Client's Funds are received by Nium and have cleared and settled and all applicable hold periods have expired, Client's Funds will be deposited and held in the Nium Trust, in trust, by the Trustee in one or more Trust Accounts with a Financial Institution designated by the Trustee in its sole discretion. The Trustee will deposit and hold Client's Funds in such Trust Account separate and apart from the Trustee's own property and Nium's property. The Trustee will record the Client Funds beneficially owned by Client in the ledger maintained by the Trustee for this purpose. Neither Nium nor the Trustee may use Client's Funds in the conduct of its business. Neither Nium nor the Trustee may loan, hypothecate, pledge, or otherwise encumber Client' Funds.
   3. Until Client's Funds are received by Nium and have cleared and settled and all applicable hold periods have expired, Client's Funds are In-Transit. In-Transit funds are not held in trust by the Trustee.
   4. Subject to any payment instructions Client provides to Nium, Client authorizes Nium and the Trustee to: (a) transfer Client's  Funds to and from Trust Accounts, and to and from Nium settlement accounts in its discretion without notice to Client; and (b) in connection with such transfers to submit instructions and disclose Client's personal information (including electronic transaction information) to: (i) the Financial Institutions; (ii) third party service providers; and (iii) Nium and/or the Trustee, as applicable.
   5. Once Client authorizes a withdrawal or transfer from Client's Nium Account: (a) the withdrawn or transferred funds will become In-Transit funds and will no longer be Client Funds; (b) the withdrawn or transferred funds will be immediately debited from Client's Nium Account; and (c) Client will not be able to further transact with such funds until the withdrawal or transfer transaction has been completed.
   6. Client acknowledges and agrees that:
      1. Nium is not a bank or a Financial Institution and is not itself a Canada Deposit Insurance Corporation member institution;
      2. Nium is not a professional trustee and funds held in a Trust Account are not eligible for Canada Deposit Insurance Corporation insurance protection at the beneficiary level; and
      3. funds In-Transit are not Trust Property, are not held in trust and are not held in a Trust Account.
   7. Client also acknowledges and agrees that any interest or other investment income or earnings that may be earned on the Client Funds held in a Trust Account ("Interest") are owned by Nium and do not form part of the Trust Property. Client hereby assigns, transfers and conveys over to Nium any and all rights to such Interest and acknowledges and agrees that Client has received good and sufficient consideration (with nominal value) for such assignment. Neither Nium nor the Trustee will have any duty to invest the Client Funds other than the obligation to deposit the Client Funds into one or more Trust Accounts in accordance with Section 2(b) above.

APPENDIX B-4

EUROPEAN ECONOMIC AREA (EEA)

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

1. Strong Customer Authentication. Where the Client is a Financial Institution and provides End Customer Services, the Client shall be responsible for implementing Strong Customer Authentication procedures compliant with Applicable Laws, including the Commission Delegated Regulation (EU) 2018/389 of 27 November 2017 supplementing Directive (EU) 2015/2366 of the European Parliament and of the Council Laws regarding regulatory technical standards for strong customer authentication and common and secure open standards of communication. A copy of the Strong Customer Authentication procedures and the confidentiality and integrity measures relating to the personalized security credentials implemented shall be submitted by the Client to Nium upon request.
2. Exclusion of relevant statutory provisions. The following applies only to the NL Services:
   1. The following provisions of the Netherlands Civil Code do not apply in the relationship between Nium Europe and the Client under these Terms: articles 7:516, 7:517, 7:518 and 7:519, article 7:520(1), article 7:522(3), article 7:527, articles 7:529 to 7:531, article 7:534 and articles 7:543, 7:544 and 7:545 Netherlands Civil Code and all legislation pursuant to and/or based on such articles. Furthermore, if not already covered by the articles referred to in the preceding sentence, the rules regarding provision of information in the Market Conduct Supervision (Financial Institutions) Decree (Besluit gedragstoezicht financiële ondernemingen Wft) that follow from Title III PSD 2 do not apply.
   2. The above contains the exclusion of the relevant provisions of PSD 2 as implemented in Dutch law. Consequently, all rules with regard to the content and provision of the information required by Title III of PSD 2 and the following provisions of Title IV of PSD 2 do not apply to the Services that Nium Europe provides under the Terms: article 62(1), article 64(3), article 72, article 74, article 76, article 77, article 80 and article 89 of PSD 2 and all legislation pursuant to and/or based on such articles.
      
      
3. Fund Segregation and Protection by Nium LT. Where services are being provided by Nium LT, the Client acknowledges and agrees that:
   
   1. Funds received into the Client's Nium Account are held in accordance with Applicable Law. Such funds remain the Client's property and are not available for Nium's own use, except as permitted by Applicable Laws.
   2. The Nium Account is not a personal bank or deposit account, and electronic money issued by Nium does not constitute a deposit. The Client will not earn any interest on the funds held in the Nium Account.
   3. Any deposit guarantee or insurance scheme does not apply to electronic money issued or to any claims arising in connection with the issuance of such electronic money.
   4. Nium safeguards the Client's funds using the segregation method. Nium shall safeguard all funds received into the Client's Nium Account and/or in exchange for electronic money that has been issued, and shall hold such relevant funds in one or more segregated bank accounts which Nium holds with one or more authorised credit institutions or other permitted third parties; or invest them in low-risk assets that have been approved by the applicable regulatory authority, which are also kept in dedicated client accounts with financial institutions.
   5. Safeguarding accounts may be pooled accounts holding funds for multiple clients but remain separate from Nium's own funds;
   6. funds received by Nium for the Client will be safeguarded and allocated to the Client as soon as practicable and, in any event, by the end of the Business Day following receipt, in accordance with Applicable Laws. The Client's ability to use funds may be subject to the completion of safeguarding, reconciliation and operational processes, and applicable cut-off times. For the purposes of this sub-Section (f) the end of business day means 16:00 CET on a day that is not a weekend or public holiday in the country where Nium is located;
   7. If Nium receives funds that cannot be immediately allocated to the Client (for example due to missing or incorrect information), Nium will hold such funds in accordance with Applicable Law until it has identified the correct recipient; and
   8. In the event of Nium's insolvency, an insolvency practitioner would handle the process and, once any costs related to the insolvency are paid out, the Client will be paid from the pooled safeguarded accounts before any other creditors, subject to any potential proportionate share of any shortfall, in accordance with applicable insolvency laws.
4. Fund Segregation and Protection by Nium NL. Where services are being provided by Nium NL, the Client acknowledges and agrees that:
   
   1. Funds received into the Client's Nium Account are held in accordance with Applicable Laws. Such funds remain the Client's property and are not available for Nium's own use, except as permitted by Applicable Laws.
   2. The Nium Account is not a personal bank or deposit account, and electronic money issued by Nium does not constitute a deposit. The Client will not earn any interest on the funds held in the Nium Account.
   3. Any deposit guarantee or insurance scheme does not apply to electronic money issued or to any claims arising in connection with the issuance of such electronic money.
   4. Nium safeguards the Client's funds using the segregation method. Nium shall safeguard all funds received into the Client's Nium Account and/or in exchange for electronic money that has been issued, by holding such relevant funds in one or more segregated bank accounts held in the name of Stichting Custodian Nium Europe, a foundation incorporated under the laws of the Netherlands for the purpose of holding and safeguarding Client funds (the "Foundation"), separate and independent from Nium's own corporate assets.
   5. Safeguarding accounts held by the Foundation may be pooled accounts holding funds for multiple clients but remain separate from the Foundation's own assets (if any) and from Nium's own funds;
   6. Funds received by Nium for the Client will be transferred to the Foundation's safeguarding account and allocated to the Client as soon as practicable and, in any event, by the end of the Business Day following receipt, in accordance with Applicable Laws. The Client's ability to use funds may be subject to the completion of safeguarding, reconciliation and operational processes, and applicable cut-off times. For the purposes of this sub-Section (f), the end of business day means 16:00 CET on a day that is not a weekend or public holiday in the country where Nium is located;
   7. If Nium receives funds that cannot be immediately allocated to the Client (for example due to missing or incorrect information), Nium will hold such funds in the Foundation's safeguarding account in accordance with Applicable Law until it has identified the correct recipient; and
   8. In the event of Nium’s insolvency, funds duly held by the Foundation in accordance with this Section do not form part of Nium’s insolvency estate and are not available to Nium’s general creditors. An insolvency practitioner appointed over Nium would not have a claim over such funds, and the Client will be paid out from the relevant pooled safeguarding account in accordance with the Foundation’s governing documents and applicable Dutch insolvency law, subject to (i) any potential proportionate share of any shortfall, and (ii) the time required to verify and reconcile the safeguarded funds attributable to the Client.

APPENDIX B-5

HONG KONG

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

1. No stored value facility. The Pay Out Service and/or the Pay In Service do not constitute a stored value facility. All funds received by us pursuant to the Pay In Service are held by Nium HK at the Client’s instruction pending its Pay Out Instruction.
2. Automatic Sweep. This Section 2 applies to the Client if it is not a Financial Institution:
   1. Client Bank Account. The Client shall open a bank account denominated in USD or HKD with a licensed financial institution in Hong Kong (“Client Bank Account”) and shall maintain such bank account for (i) as long as it is receiving the Services from Nium HK, and (ii) such period as may be required after cessation of the Services for the purposes.
   2. Client Bank Account Details. The Client must ensure that details of the Client Bank Account are correct and complete and shall notify Nium HK in advance of any change to the Client Bank Account. Until Nium HK has been notified of such change and has had a reasonable opportunity to act on it, it shall be entitled to process any Pay Out instruction to the existing Client Bank Account. Nium HK is not liable for any Losses arising from any Pay Out instruction due to incorrect or incomplete details provided by the Client or if it fails to inform Nium HK in advance of any change to the Client Bank Account.
   3. Automatic transfer of funds received by us. If the Client has not submitted any Pay Out Instruction to Nium HK for processing for a period of thirty (30) consecutive days or more, all funds received by Nium HK on the Client’s behalf for the purpose of the Pay Out Service for the past thirty (30) days (net of applicable fees, bank charges and taxes) will automatically be paid out by Nium HK to the Client Bank Account on the day that falls on the 30th day from the date that the last Instruction for a Pay Out was submitted by the Client to Nium HK (“Automatic Sweep”). Nium HK is not liable to the Client or any third party for any Losses suffered by the Client 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 Nium HK is not required to sweep any funds to the Client if (i) the result of a due diligence check is unsatisfactory, (ii) Nium HK is prohibited by an order or directive of an applicable regulator, or (iii) doing so might otherwise put Nium HK in violation of Applicable Laws.
   4. Failed Automatic Sweep. If Nium HK is unable to perform the Automatic Sweep for reasons other than those stated in Section 4 above, the Client authorizes and instructs Nium HK to maintain the funds on its behalf pending further Instruction from the Client.

APPENDIX B-6

NEW ZEALAND

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

1. Nium Account; Nature of the Available Balance. When Nium NZ receives funds that are credited to the Available Balance, those funds are not monies which are subject to the client money protections in the Financial Markets Conduct Act 2013. The Client acknowledges and agrees and shall ensure that any Payer is aware and understands that the funds transferred by the Client or a Payer and credited into the Settlement Account, are held by Nium NZ on bare trust for the Client. Any funds in the Settlement Account are kept separate from funds used to operate Nium NZ’s business.
2. Nium NZ’s Rights to Suspend or Terminate the Services. In addition to Nium NZ’s rights under Section 18 of the General Terms, Nium NZ can suspend or terminate the Services immediately, in whole or in part, at any time, for any reason, including but not limited to, the following: the Client is subject to the appointment of a voluntary administrator, a receiver and manager or a statutory manager (including being subject to a recommendation by the New Zealand Financial Markets Authority) or the Client is declared a corporation at risk under the Corporations (Investigations and Management) Act 1989.
3. Consumer Guarantees Act. The Client confirms that it is 'in trade' within the meaning of the Consumer Guarantees Act 1993, and the Services are supplied to the Client in trade for a business purpose. The provisions of that Act are excluded to the fullest extent permitted by law and will not apply.
4. No Third-Party Beneficiaries. Except for any Nium Party or Client Party, no other person will have any right whatsoever under the Contract and Commercial Law Act 2017 to enforce this Agreement or otherwise have the benefit of any of its terms.

APPENDIX B-7

SINGAPORE

The additional terms and conditions in this Appendix B-7 apply to Services provided by Nium SG in Singapore.

1. Safeguarding of Client Funds. The Available Balance will be safeguarded by Nium SG in Settlement Account(s) in accordance with the Payment Services Act 2019, which ensures that such funds are segregated from Nium SG’s operating funds and held safely. The Client acknowledges and agrees that the Settlement Account(s) may contain funds which Nium receives from Nium's other customers.

APPENDIX B-8

UNITED KINGDOM

The additional terms and conditions in this Appendix B-8 apply to Services provided by NFL in the United Kingdom.

1. Strong Customer Authentication. Where the Client is a Financial Institution and provides End Customer Services, the Client shall be responsible for implementing Strong Customer Authentication procedures compliant with the Applicable Laws, including PSR 2017 regarding regulatory technical standards for strong customer authentication and common and secure open standards of communication. A copy of the Strong Customer Authentication procedures and the confidentiality and integrity measures relating to the personalized security credentials implemented shall be submitted by the Client to Nium upon request.
2. Funds Type and Protection. The Client acknowledges and agrees that
   1. Funds received into the Client's Nium Account are held as "relevant funds" in accordance with the Financial Conduct Authority Client Assets Sourcebook (CASS 15). Such funds remain the Client's property and are not available for Nium's own use, except as permitted by Applicable Laws.
   2. The Nium Account is not a personal bank or deposit account, and electronic money issued by Nium does not constitute a deposit. The Client will not earn any interest on the funds held in the Nium Account.
   3. The UK Financial Services Compensation Scheme (and any other equivalent scheme in any other jurisdiction) does not apply to the funds in the Client's Nium Account.
   4. Nium safeguards the Client's funds using the segregation method. Nium shall safeguard all funds received into the Client's Nium Account and/or in exchange for electronic money that has been issued, and shall hold relevant funds corresponding to electronic money in one or more segregated bank accounts which Nium holds with one or more authorised credit institutions or other permitted third parties; or invest them in low-risk assets that have been approved by the Financial Conduct Authority, which are also kept in dedicated client accounts with financial institutions.
   5. Safeguarding accounts may be pooled accounts holding funds for multiple clients but remain separate from Nium's own funds.
   6. Funds received by Nium for the Client will be safeguarded and allocated to the Client as soon as practicable and, in any event, by the end of the Business Day following receipt, in accordance with Applicable Laws. The Client's ability to use funds may be subject to the completion of safeguarding, reconciliation and operational processes, and applicable cut-off times. For the purposes of this sub-Section (f), the end of business day means 16:00 (UK time) on a day that is not a weekend or public holiday in the UK.
   7. If Nium receives funds that cannot be immediately allocated to the Client (for example due to missing or incorrect information), Nium will hold such funds in accordance with Applicable Law until it has identified the correct recipient, and
   8. In the event of Nium's insolvency, an insolvency practitioner would handle the process and once any costs related to the insolvency are paid out, the Client will be paid from the pooled safeguarded accounts, subject to any potential proportionate share of any shortfall, in accordance with applicable insolvency laws.

APPENDIX B-9

UNITED STATES

The additional terms and conditions in this Appendix B-9 apply to Services provided by Nium US in the United States.

1. Definitions.
   1. “Payment Service Bank” means CRB or CFSB (each defined below); each a “Payment Service Bank”.
   2. “US Payment Services” means any Services provided by the Payment Service Bank in connection with its provision of the Settlement Accounts, Nium Accounts, Pay In Service and Pay Out Service.
2. Payment Service Banks. Nium US works with the Payment Service Banks listed below to provide the US Payment Services. Nium US will notify the Client regarding which Payment Service Bank is providing the US Payment Services to the Client.
   
   1. Cross River Bank, a New Jersey state-chartered commercial bank and member of the Federal Deposit Insurance Corporation (FDIC) (“CRB”).
   2. Community Federal Savings Bank, a federal savings bank chartered in the United States (“CFSB”).
3. Binding Arbitration; Waiver of Jury Trial.
   1. Binding Arbitration. Solely with respect to any dispute between the Client and Nium US, the following arbitration provisions shall apply:
      
      1. Any disputes or claims (except for a dispute principally related to either Party’s intellectual property rights, which will be resolved in litigation before state or federal courts located in San Francisco, California) shall be resolved by arbitration conducted in accordance with the rules of the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules, currently available at https://www.adr.org/rules-forms-and-fees/commercial/, s such rules may be revised by the AAA, and judgment upon the award rendered by the arbitral tribunal may be entered in any court having jurisdiction thereof. The arbitral tribunal shall consist of a single arbitrator. The Party initiating the arbitration proceeding shall, in the notice of arbitration, nominate an arbitrator duly qualified to preside, and if the other Party does not object to the nominated arbitrator, such arbitrator shall preside. If the other Party objects by giving written notice to the other Party, and if the Parties do not agree on an arbitrator within ten (10) calendar days of such notice of objection, then a qualified arbitrator shall be appointed by the AAA. “Qualified” for purposes of this Section 3(a)(i) means a person licensed to practice law in a U.S. jurisdiction, with experience advising Financial Institutions or arbitrating disputes involving Financial Institutions, and with expertise in financial services laws and regulations. The place of arbitration shall be in San Francisco, California, unless the Parties agree to another location, and all proceedings and written submissions shall be in English. The arbitration award shall be final and binding. The Parties waive any right to appeal the arbitration award, to the extent a right to appeal may be lawfully waived.
      2. Each Party retains the right to seek judicial assistance: (A) to compel arbitration, (B) to seek temporary injunctive relief in any court with jurisdiction over the Party against which the relief is sought (with such relief to extend only until the propriety of permanent relief can be decided by the arbitrator), (C) to obtain other interim measures of protection prior to or pending arbitration, and (D) to enforce any decision of the arbitrator, including the final award. Judicial assistance pursuant to this Section 3(a)(ii) may be sought in and of the state or federal courts located in San Francisco, California (and for purposes of subsections (B) and (C), exclusively in such courts), and the Parties submit to the jurisdiction thereof. Injunctive relief shall be granted without the requirement of posting a bond.
      3. The Parties acknowledge and agree that the Services evidence a transaction involving interstate commerce and will be governed by the Federal Arbitration Act (9 U.S.C.1-16).
      4. No demand for arbitration may be made after the date when the institution of legal or equitable proceedings based on such claim or dispute would be barred by the applicable statute of limitation.
      5. Subject to the exclusions, disclaimers and limitations of liability set forth in the Agreement (including those set forth in Section 17 of the General Terms), the arbitrator may award damages and any other remedies allowed by the laws of the State of California. In making a determination, the arbitrator will not have the authority to modify any term of this Agreement. The arbitrator shall issue to the Parties a reasoned and written decision with respect to the dispute. Judgment upon the arbitrator's award may be entered in any court having jurisdiction.
      6. The Parties will keep confidential the existence of the arbitration, the arbitration proceeding, the hearing and the arbitrator’s decision, except (A) as necessary to prepare for and conduct the arbitration hearing on the merits, (B) in connection with a court application for a preliminary remedy, or confirmation of an arbitrator’s decision or its enforcement, (C) as disclosed in confidence to their respective attorneys, accountants and other professional advisors that are subject to a duty of confidentiality, or (D) as otherwise required by applicable laws or court order.
   2. Waiver of Jury Trial. If for any reason a claim or dispute proceeds in court rather than through arbitration, each Party hereby waives trial by jury in any court action or proceeding to which they may be Parties, arising out of, in connection with or in any way pertaining to, this Agreement.
4. Services Offered by Nium US.
   1. Payment Service Bank. The Client understands and agrees to the following with respect to Settlement Accounts that are located in the United States and any Nium Accounts, Pay In Services and Pay Out Services that are offered by Nium US to the Client:
      
      1. Nium US does not offer Nium Accounts, Pay In Services or Pay Out Services in the United States as a licensed money transmitter. Instead, Nium US provides the Client access to the US Payment Services under a program sponsored by the Payment Services Bank, to which Nium US is a service provider.
      2. Nium US operates a software and services platform that permits the Client to utilize Nium Accounts, Pay In Services and Pay Out Services provided by the Payment Service Bank.
      3. The Payment Service Bank will have sole custody over the funds in the Settlement Account, and will perform all US Payment Services. The Payment Service Bank, with respect to its performance of US Payment Services, will have the same rights as Nium that are set forth in this Agreement, with respect to (A) funds held in the Settlement Account and (B) the provision of the Nium Accounts, Pay In Services or Pay Out Services.
      4. The Client’s use of the US Payment Services is subject to the additional terms and conditions of the Payment Service Bank, as provided by Nium US in writing from time to time (the “US Payment Services Terms”). The US Payment Services Terms may be amended by the Payment Service Bank at any time and in its sole discretion. If the US Payment Services are provided by CFSB, the CFSB Payment Services Terms located at https://www.nium.com/legal/cfsb-terms govern the US Payment Services.
   2. UCC Article 4A Disclosure. If Nium permits the Client to credit a Nium Account (“credit entry”), the credit entry may be transmitted through the ACH network.  The Client’s 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 the Client and the originating depository institution have agreed that the laws of another jurisdiction govern the Client’s respective 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.
   3. Additional Termination Right of Nium US. In addition to the rights of termination set forth in Section 18 of the General Terms, Nium US may immediately terminate the Services, at any time, in the event that the Payment Service Bank has, in its sole discretion, terminated the Client’s use of any of the US Payment Services.