1. Provision of Pay In Service

1. 1. Services. In consideration of the Client paying Fees, Nium shall provide the Pay In Service to the Client in accordance with the terms of this Agreement and the Client agrees to use the Pay In Service solely for itself in accordance with the terms of this Agreement.  The Client hereby irrevocably instructs and authorizses Nium to receive and maintain all of the Available Balance, including any Pay In, in a Settlement Account prior to paying out the Net Available Balance to the Client Bank Account or a Beneficiary in accordance with the terms of the Pay Out Service Terms & Conditions.
   2. No Representations. Nium makes no representation or warranty with respect to, nor does Nium have any control of or liability for, any Underlying Transaction or any goods, products or services provided by the Client to any Payer pursuant to any Underlying Transaction. Nium does not guarantee or ensure that any Payer will complete an Underlying Transaction made with the Client. The Client understands and agrees that Nium is not liable for any underpayment or overpayment by a Payer in respect of any Underlying Transaction and that Nium is not required to take any actions to correct such underpayment or overpayment (and that the Client will be responsible for taking any such actions directly with the Payer).
   3. Conditions to Service. Nium shall only provide the Pay In Service if:
      1. the Payer is located in an Approved Jurisdiction and such Pay In is (A) not made via over the counter checks or cash deposit, and (B) originated from the Payer Bank Account;
      2. where notified by Nium as being a requirement for the Pay In Service, the Client has submitted a Pay In Request to Nium and the results of any due diligence checks on such Pay In Request and/or Pay In are satisfactory; and
      3. where the Pay In originates from the United States and is paid to a VBAN issued by a Financial Partner in the United States.
   4. Additional Representations and Warranties. The Client represents and warrants that:
      1. it owns all right, title and interest in and to the Available Balance including all Pay Ins. No person or entity other than the Client has any rights in relation to any Available Balance;
      2. all information provided in connection with a Pay In Request is accurate in all material respects, and the Client shall not omit or withhold any information which would make such information inaccurate in any material respect, and each Pay In received by Nium relates to the Client or an Underlying Transaction;
      3. it shall not assign, charge, declare trust over or transfer the benefit of all or any part of any Available Balance; and
      4. all Underlying Transactions related to Pay Ins submitted to Nium for processing are in compliance with Applicable Laws.
   5. Special Provisions for Japan. Where the Pay In is received in Japan, the Client:
      1. irrevocably authorizes and consents to Nium receiving the Pay In on its behalf via an Affiliate of Nium, Nium Japan Kabushiki Kaisha (“Nium Japan”) as part of the collection agency services (“Shūnō Daikō”);
      2. irrevocably agrees and accepts that upon Nium Japan’s receipt of such Pay In from a Payer, such Payer’s obligation to pay the Client shall be satisfied in full and any claim the Client has against such Payer will be extinguished;
      3. will make it clear in the agreement between the Client and the Payer that (A) Nium Japan acts as a collection agent, and (B) a Payer’s obligation to pay the Client with respect to an Underlying Transaction shall be satisfied in full and any claim the Client has against such Payer will be extinguished upon Nium Japan’s receipt of the relevant Pay In from such Payer;
      4. shall deliver the applicable goods and/or services to such Payer;
      5. shall not use the Pay In Service for receiving funds unrelated to Underlying Transactions;
      6. shall, upon the request of Nium, provide Nium with relevant documents which establish the Underlying Transaction between the Client and an End Customer, and the Pay In relates to goods or services supplied by the Client itself; and
      7. acknowledges and agrees that:
         1. Nium Japan shall not be deemed to be providing Pay In Service to the Client by virtue of it receiving a Pay In on behalf of Nium and owes no obligation or liability to the Client under this Agreement. The Client does not have any right to enforce the terms of this Agreement against Nium Japan. In the event that Nium Japan suffers any Losses due to the acts or omissions of the Client or any End Customer, such Losses shall be treated as if suffered by Nium and Nium shall be entitled to seek remedy directly from the Client; and
         2. neither Nium nor Nium Japan engages in any service that is considered to be “funds transfer transaction” (kawase torihiki) as defined in the Banking Act of Japan (Law No. 59 of 1981, as amended) and the Payment Services Act of Japan (Law No. 59 of 2009, as amended).
   6. Special Provisions for India. Where the Pay In is received in India, the Client:
      1. represents and warrants that it is a merchant offering digital content or services or online travel services, as applicable;
      2. irrevocably appoints Nium India Pvt Ltd (“Nium India”) as its collection agent to receive funds from the relevant Payer located in India and remit such funds received by Nium India to Nium (minus all amounts which Nium India is entitled to deduct including: (a) any amount owed to Nium India by the Client (whether such amount are present, future, actual or contingent or potential, liquidated or unliquidated and irrespective of the currency of their denomination); (b) Pay in Refunds and Pay In Reversals; (c) amounts equal to the Reserves and (d) taxes  (“Net Settlement Amount”);
      3. undertakes to pay any agreed Fees to Nium India as consideration for Nium India acting as its collection agent; and
      4. understand and agree that this Agreement constitutes a direct agreement between the Client and Nium India with respect to to the Pay In Service received in India, and that Nium India shall be a third-party beneficiary to these Terms and the Agreement and shall have the right to enforce these Terms and the Agreement directly against the Client or any third party to the extent it may deem such enforcement necessary or advisable to protect its rights.

2. VBANs 

1. 1. Generally. Nium may generate one or more VBANs to the Client upon request from the Client. Notwithstanding the foregoing, Nium may, at its sole discretion, refuse to comply with such request without any liability to the Client. Nium shall, to the extent permitted by Applicable Laws and to the extent practicable for Nium, inform the Client of the reason for such refusal.
   2. Acknowledgments. The Client acknowledges and agrees, and shall ensure that a Payer is aware and understands, that:
      1. a VBAN (A) is a notional representation of the associated Settlement Account created for record keeping, reporting and administrative purposes, (B) it does not hold funds or generate any actual credits and debits independently from the associated Settlement Account, and (c) is not a separate payment account or bank account owned or operated by the Client. It is associated with a Settlement Account. Funds transferred by the Client or a Payer would be credited into the Settlement Account; and
      2. the Financial Partner that maintains the Settlement Account has no contractual duty or obligation to, or relationship with the Client under any circumstances.

3. Transfer of Available Balance

1. 1. Transfer Instructions. The Client may provide an Instruction to Nium to send any Net Available Balance (“Transfer Instruction”) to (i) the Client Bank Account in accordance with the terms in these Term, or (ii) a Beneficiary in accordance with the Pay Out Service Terms & Conditions and any other applicable terms of this Agreement provided that such Transfer Instruction would not result in a negative Available Balance after deducting all Fees and any other amounts due and owing to Nium. Notwithstanding the foregoing, Nium may elect to send the Net Available Balance to the Client Bank Account or a Beneficiary at the Instruction of the Client before Nium has received cleared and unconditional funds from a Payer. If Nium has sent such Net Available Balance to the Client Bank Account or a Beneficiary, but Nium does not receive cleared and unconditional funds in full from a Payer for whatever reason, the Client shall reimburse Nium immediately upon demand. Any overpaid Available Balance represents a debt due and payable to Nium immediately on demand. The Client acknowledges and agrees that Nium’s execution of a  Transfer Instruction will fully satisfy Nium’s obligation and/or liability to pay out the Net Available Balance to the Client and shall constitute good receipt by the Client of such Net Available Balance.
   2. Client Bank Accounts. The Client shall ensure that the details of any Client Bank Account are correct and complete and shall provide at least thirty (30) days prior written notice to Nium of any change to the Client Bank Account. Until Nium has been notified of such change and has had a reasonable opportunity to act on it, Nium shall be entitled to continue to process any Transfer Instruction to the existing Client Bank Account. Nium shall not be liable for any Losses arising from any Transfer Instruction due to incorrect or incomplete details provided by the Client or the Client’s failure to inform Nium in advance of any change to the Client Bank Account.
   3. Negative Available Balance. If the Client’s Available Balance becomes negative for any reason (including (1) Nium paying out funds to, or on behalf of, the Client exceeding the Client’s then available Net Available Balance, (2) Nium not receiving cleared and unconditional funds in full from a Payer, (3) any unpaid Fees, or (4) any other reason whatsoever):
      1. Nium may deduct such amount from any funds subsequently received on behalf of the Client or any Available Balance or any other amount held by (A) Nium on behalf of the Client or an Affiliate of the Client or owed by Nium to the Client or an Affiliate of the Client, or (B) held by an Affiliate of Nium on behalf of the Client or an Affiliate of the Client or owed by an Affiliate of Nium to the Client or an Affiliate of the Client under this Agreement, any Affiliate Agreement or any other agreement, or (C) any Reserves or Security; or
      2. the Client shall on demand transfer an amount equal to the Client’s negative Available Balance to a bank account notified by Nium.
   4. Nium’s Rights. Nium may defer or withhold the payment of the Net Available Balance if the Net Available Balance is lower than the applicable minimum threshold (as may be notified to the Client from time to time). Nium may also cancel, reverse, demand, refund or cause any Available Balance to be unavailable for pay out to the Client and/or make corresponding adjustments to any entry on the Nium Platform if:
      1. Nium needs to correct any error or omission;
      2. In the event of a Pay In Reversal, Pay In Refund, or if Nium was otherwise required to return the funds received to the relevant Payment Method Provider for any reason;
      3. Nium reasonably believes that the Available Balance is associated with activities that violates this Agreement, Nium’s internal policies, Applicable Laws or Network Rules;
      4. Nium has not received the cleared and unconditional funds; or
      5. Nium has reasonable grounds to do so for any other legitimate reason.

4. Suspension and Closure of the VBAN

1. 1. Inactive VBAN. If for a period of twelve (12) consecutive months no Pay In or Pay Out has taken place via a VBAN or a zero balance has been associated with such VBAN for such period, Nium may designate such VBAN to be “Inactive”. Once the VBAN has been designated as Inactive, Nium may close such VBAN by giving seven (7) days’ notice to the Client (“Inactive Termination Notice”).
   2. Client Termination. Subject to the Client providing Nium seven (7) days’ prior written notice, the Client may request that any VBAN be closed or suspended at any time.
   3. Nium Termination. Nium may close or suspend any VBAN, or limit the Client’s access to the Available Balance associated with such VBAN, without prior notice to the Client (i) if the Client breaches this Agreement, (ii) pursuant to any proprietary fraud and risk modeling used by Nium when assessing the risk associated with the Client’s use of the Pay In or Pay Out Service, (iii) pursuant to Applicable Laws, Sanctions or the instructions of any Regulatory Body, or (iv) pursuant to an Inactive Termination Notice.

5. Taxes

1. 1. Client Responsibility. The Client is solely responsible for determining, assessing, collecting, paying, remitting, and/or reporting the correct Tax to the applicable tax authority (“Tax Authority”) in respect of any Pay In as well as any other applicable reporting requirements, including, but not limited to, customs or foreign currency controls, in compliance with all Applicable Laws. Nium is not obligated to, and will not determine whether Taxes apply, and unless required to do so by any Tax Authority, Nium will not calculate, collect, pay or remit any Taxes to any Tax Authority arising from any Pay In, which is strictly the Client’s sole responsibility.
   2. Client Cooperation. If a Tax Authority and/or Applicable Laws require Nium to make any form of deduction or payment in respect of Tax for which the Client is liable, Nium may make such deduction from the Available Balance and/or payment to the Tax Authority and Client shall provide Nium with such information needed.
   3. Pay In Indemnity. The Client shall indemnify, defend and hold Nium harmless for all Taxes imposed in connection with any Pay In and any action, cost, damage, disbursement, expense, liability, loss, deficiency, diminution in value, obligation, penalty or settlement of any kind or nature, including, but not limited to, interest or other carrying costs, penalties, legal, accounting and other professional fees and expenses reasonably incurred in the investigation, collection, prosecution and defense of claims and amounts paid in settlement, that may be imposed on or otherwise incurred or suffered by Nium.