NIUM
Terms and Conditions for business customers
[Updated as at July 2023]
STRUCTURE OF THE TERMS AND CONDITIONS
1.
GENERAL
1.1
These Terms and Conditions consist of the following components:
(a) Schedule 1: Main Terms and Conditions
(b) Schedule 2: The Services (Additional Terms and Conditions)
(c) Schedule 3: International Jurisdictions (Additional Terms and Conditions)
1.2
In the event of any inconsistency or conflict between the provisions of Schedule 1, Schedule 2 and Schedule 3, the order of precedence is: (1) Schedule 3; (2) Schedule 2; and (3) Schedule 1.
SCHEDULE 1
MAIN TERMS AND CONDITIONS
1.
GENERAL
1.1.
These Terms are binding on the Organisation and the Representative. By applying for the payment services set out in Schedule 2 (Services), it constitutes acceptance of these Terms by the corporation, limited liability company, partnership, joint venture, association, joint-stock company and unincorporated organisation (Organisation,). If the Organisation grants its officers, directors, employees, agents, consultants, subcontractors, and advisors (each a Representative) access and use of the Services, and the Representatives must follow these Terms and you shall be responsible for their use of the Services on your behalf (subject to clause 1.2 below). In these Terms, the Organisation and the Representative are collectively referred to as “you” or “yours”.
1.2.
Authority of the Representative to act on behalf of the Organisation. If you apply or use the Services as a Representative, you confirm that you have the appropriate authority to use the Services and enter into an agreement with us on behalf of the Organisation on these Terms.
If you do not have the appropriate authority, you will become personally liable for compliance with these Terms.
1.3.
Service Provider. We are Nium. Details of our entities are described in Schedule 3 (we/our/us). The Services are made available by the relevant Nium entity from its jurisdiction of incorporation. We do not intend to solicit, target or market the Services to you or any third party outside of our jurisdiction of incorporation.
1.4.
The Platform Provider. Your use of the Services is facilitated by a website, software and technology platform, or mobile software application (Platform) developed and operated solely by a third party whose system is integrated with us (Platform Provider). Your access and use of the Platform is subject to such separate services provided to you independently and separately by the Platform Provider (Platform Services).
1.5.
No Authority to Act by Platform Provider. The Platform Provider is (a) neither licensed to provide any payment services nor authorised to act or perform any instruction on our behalf with respect to the Services nor (b) authorised to collect or receive any funds on our behalf. The Platform Provider solely facilitates the transmission of information, communication and instruction to us on your behalf in connection with the Services.
If you choose to provide us funds through the Platform Provider for the purpose of any Service, you hereby confirm that you have provided your irrevocable consent and authorisation to the Platform Provider to receive and provide funds to us on your behalf. Our responsibility to maintain and protect such funds only arises upon receipt of cleared funds by us.
2.
WHY IS IT IMPORTANT FOR YOU TO READ THESE TERMS?
2.1.
Please read these Terms carefully. These Terms set out the terms and conditions on which we provide the Services to you, what your obligations are in respect of the Services, how you should use it and other important information. They also inform you what to do if there is a problem, what our responsibilities are and how these Terms between you and us may be terminated. We recommend that you save a copy of these Terms.
2.2.
Updates to these Terms. We reserve the right to change these Terms from time to time. If we need to make any changes to these Terms, we will publish a revised version of these Terms through the Platform. If you do not agree to such new Terms, you can notify the Platform
Provider or us directly that you reject the proposed new Terms. Your rejection will mean that you wish to terminate these Terms and the Services.
2.3.
The Services are for business use only. You can use the Services for business purposes only and as authorised by the Organisation only. You must not use the Services for personal purposes.
2.4.
These Terms apply to those Services which you have applied for. These Terms apply only to the Services which you have applied for through the Platform Provider and which are approved by us.
2.5.
Privacy Policy. We will collect some personal data about you as the user of the Services. For information regarding how we process personal data, please see our Privacy Policy https://www.nium.com/policies-and-notices.
3.
THE PLATFORM AND OTHER THIRD PARTY SERVICES
3.1.
Third party services offered by the Platform. Other than the Services, we are not responsible for any other products or services offered by the Platform Provider as part of their Platform Services, for example if the Platform Provider offers any loyalty schemes, savings or lending products. The Platform Services and any other services or products, including any links to third party apps or websites, are arranged solely by the Platform Provider without our involvement, endorsement or recommendation.
3.2.
The Platform Provider is your primary point of contact. If you have any questions or issues related to the Services, you should initially direct your queries to the Platform Provider, by such means as the Platform Provider makes available to you (for example email, in-Platform chat or telephone).
3.3.
Authorisation granted to Platform Provider. By applying for the Services, you confirm that you have provided your irrevocable authorisation and consent to the Platform Provider to do any of the following:
(a) collect and pass on to us all information, communications and instructions submitted by you, any payments or other transaction instructions in connection with the Services. This includes information, communications and instructions submitted by any means accepted by the Platform Provider, for example in-Platform chat, telephone or email. We will rely on and will be entitled to act on any such information, communications and instructions received by us from the Platform Provider, as if the information, communications and instructions were given to us directly by you. You will be bound as though such information, communication or instruction. Please note that we are not required to check their accuracy;
(b) receive all information, communications, instructions provided by us in connection with the Services. We are entitled to rely on the Platform Provider to transmit such information, communications and instructions. We are not required to check that such information, communication or instructions have indeed been transmitted to you. We will not be liable to you for any losses caused to you if the Platform Provider subsequently fails to, or delays to, communicate such information, communications or instructions to you; and (
c) access, manage, deal with any account you maintain with us (Nium Account) or use any information (whether received from us or not) in relation to such Nium Account in such manner as mutually agreed between you and the Platform Provider. We are not 3 of 28
responsible to you for any losses suffered by you as a result of the Platform Provider performing such activities on your behalf.
The authorisation and consent in this clause 3.3, remains valid and binding on you for as long as you continue to use the Services.
3.4.
You are responsible for checking the completeness and accuracy of all information, communications and instructions. You must ensure that all information, communications and instructions submitted to the Platform Provider in connection with the Services is complete and accurate. Failure to provide complete information may cause delays, for example, we may be unable to process your instructions. If you notice any error in any information, communication or instruction provided to us via the Platform Provider, you should correct it as soon as possible via the Platform or by contacting the Platform Provider. We will not be responsible, and will not compensate you, if you suffer any losses as a result of incomplete or inaccurate information provided to us (whether directly by you or via the Platform Provider), or as a result of any delays caused by any errors, inaccuracies or late submission of any instructions or requests.
3.5.
We may screen instructions received from you. We have the right to screen any instructions received in respect of the Services. We may refuse to act on any instructions or request received from you. If we are allowed to do so, we will inform you of the reasons why we are unable to act on your instructions or requests.
3.6.
Monitor your use of the Services and keep your own records. The Platform Provider will provide you with records of transactions processed by us pursuant to the Services, whether via the Platform or by other means. You should monitor all your transactions and we recommend that you keep your own records. This will allow you to verify whether the transaction reports are accurate and enable you to inform the Platform Provider if you notice any errors. You should also enable the Platform to send you notifications of all transactions involving the Services. Please note that although transactions records pursuant to the Services are provided by us to the Platform Provider, we cannot be responsible for the accuracy of the records displayed by the Platform, unless any errors are as a result of our failure. You should report all inaccurate records or notifications of transactions to the Platform Provider no later than 7 days after any unauthorised, incorrect, disputed entry is entered on the Platform. Following the expiry of this period, any such entry will be deemed as agreed.
4.
ELIGIBILITY
4.1.
You must satisfy our eligibility criteria. You must meet all eligibility criteria stipulated by us and communicated to you by the Platform Provider.
4.2.
We will carry out customer identification and verification checks. We are required by law to carry out certain checks on all our customers before we agree to provide the Services. We may ask you to provide us with certain information and documentation to enable us to carry out our checks, for example to verify your identity, details of the Organisation you represent and its financial standing, and we may need to ask third party service providers (for example credit reference agencies) to verify certain information about you. All information provided by you must be accurate in all material respects and you shall not omit or withhold any information which would make such information inaccurate in any material respect. Failure to comply with our requests for information or documentation may result in the refusal of application for the Services or suspension or termination of the Services.
4.3.
Establishing a Representative. If the Organisation grants its Representative access and use of the Services, the Organisation must provide proof to us to establish to our satisfaction that such Representative is its officer, director, employee, agent, subcontractor, or advisor and is authorised to act on behalf of the Organisation.
4.4.
Keeping us updated. It is very important to keep us updated about any changes to the information provided as part of your application for the Services and any information and documentation submitted to us. It includes information about any sanctions applicable to you, or any other circumstances which would make your use of the Services illegal. You must inform us promptly about any changes to your circumstances affecting your eligibility for the Services and/or your ability to comply with these Terms.
4.5.
We will have the right to refuse any application. We have the right to refuse any application for any Services at any time for any reason and without providing any reason for our refusal.
5.
USING THE SERVICES
5.1.
Only a Representative of the Organisation is allowed to use any Services. The Organisation will ensure that only a Representative is allowed to access and use any Services for business purposes.
5.2.
You must keep your security credentials safe. You must ensure that: (a) any payment instrument (including any account or card) issued by us in connection with any Services is kept safe from loss or theft; (b) any security credentials used to authenticate any transactions in connection with any Services are known only you; and (c) the Platform can only be accessed by you and all devices used by you to access the Platform are appropriately protected from access by any unauthorised persons. We do not recommend writing down or storing any security credentials, or any login details to the Platform. However, if you have to store such details somewhere, you should use secure and safe storage solutions. Revealing any security credentials to anyone, or behaving carelessly with regards to the security of any payment instrument (including any account or card) issued by us in connection with any Services instrument may result in unauthorised transactions being processed. In these circumstances we will not refund any amounts lost by you as a result of such unauthorised transactions and you will be solely responsible for them.
5.3.
When you must suspend your Services and notify us. You must suspend your Services within the Platform and notify the Platform Provider or us immediately if: (a) you believe the security of any payment instrument (including any account or card) issued by us in connection with any Services has been compromised (for example, if an unauthorised Representative or a third party has gained access to any security credentials and/or the Platform); (b) any payment instrument (including any account or card) issued by us in connection with any Services is not working properly; and/or (c) you have identified an unauthorised transaction made using any payment instrument (including any account or card) issued by us in connection with any Services. You may be asked to provide details of the issues reported by you, and any supporting documentation, such as a copy of a police report to confirm the theft of your Nium Account. If you have not suspended your Nium Account through the Platform, we will suspend it after receipt of notification from the Platform Provider or you and successful verification of your identity.
5.4.
The Organisation is solely responsible for all acts and omissions of its Representatives. The Organisation is solely responsible for (a) all acts or omission of your Representatives, whether authorised by the Organisation or not. We are under no obligation to check the authenticity or accuracy of any Instruction or data received, or assumed to be received, from a Representative. We will not be liable for any losses incurred or suffered by you or any person as a result of acting on an Instruction, information or communication, received, or assumed to be received, from a Representative.
5.5.
Organisation’s responsibility to inform us of any change in its Representatives. The Organisation is solely responsible for notifying us of any change in its Representative or any information relating to a Representative. We are entitled to rely upon the Instruction, information or communication provided by a Representative until such time you have notified us that such Representative is no longer authorised by you and we have had a reasonable time to act upon the notification.
6.
FEES AND ANY AMOUNT OWED TO US
6.1.
What fees apply to your use of the Services? The fees that apply to the Services will be displayed on the Platform and which are incorporated and form part of these Terms. Changes to our fees will be made in accordance with clause 2.2 of these Terms.
6.2.
How will we charge all fees and payments due to us? All fees that apply to the Services and any other amounts due to us from you under these Terms will be deducted by us from (a) funds held by us on your behalf; or (b) funds provided to us as credit support for your obligations under these Terms. You agree to any such deductions made by us. If we do not hold sufficient funds to cover any sums due by you to us, we will issue a payment request and you must make the payment immediately. If we have to take additional steps to recover any such amounts due to us, we may charge you for the costs incurred by us in recovering such sums from you, and this may include costs of any third parties who support us in this process, for example debt collection agencies.
6.3.
You may opt to pay fees through the Platform Provider. If you opt to pay our fees through the Platform Provider, you hereby irrevocably consent and instruct us to invoice all fees that apply to the Services and any other amount due to us under these Terms to the Platform Provider, and to receive all fees and any other amount due to us under these Terms from the Platform Provider. If the Platform Provider fails to make payment to us within the due date stated in the invoice, we will deduct all outstanding fees in accordance with clause 6.2 above.
7.
PLATFORM SERVICE FEES CHARGED BY THE PLATFORM PROVIDER
7.1.
Platform Service and Third Party Fees. If you opt to pay fees in connection with the Platform Service and any other third party services provided on the Platform through us, you represent and agree that you have provided your authorisation and consent to the Platform Provider to instruct us to deduct any fees that arise from the Platform Service or any other third party services provided on the Platform (Third Party Fees) from (a) funds held by us on your behalf or (b) funds provided to us as credit support for your obligations under these Terms. Any dispute or losses suffered by you that arise in connection with any Third Party Fees are solely between you and the Platform Provider.
8.
NIUM ACCOUNT
8.1.
Setting up of Nium Account. We will issue you with a master account once you have satisfied all eligibility criteria to be onboarded as our customer. The master account may be denominated in a Supported Currency and allows you to view information relating to the Services such as transaction status and funds received by us in connection with the Services. You may also request to create any number of supplementary accounts linked to the Nium Account. Each Supplementary Account may be denominated in a Supported Currency and has the same functions as the master account. The master account and supplementary accounts are collectively referred to as the Nium Account.
8.2.
Our right to refuse to issue the Nium Account. We may refuse to issue any Nium Account to you at our sole discretion. To the extent permissible by applicable laws and if practicable, we will notify you the reason for such refusal.
9.
DIRECT DEBIT
9.1.
Direct Debit function provided by us. If you have been notified by the Platform Provider that direct debit has been made available to you by us, you may enable and use such function via the Platform in accordance with this Clause:
(a) Bank account details. You must provide us your bank account details as specified to you by the Platform Provider, which may include, but is not limited to, the name of your bank, the bank account number, routing number for your bank account, and the type of account (for example, checking or savings). You represent and undertake that your bank account is a legitimate and active account;
(b) Bank account eligibility. Your bank account must be able to accept debits denominated in the currency indicated in the direct debit request. You confirm that you are the only person required to authorise debits from your bank account or, if more than one person is required to authorise debits from your bank account, you confirm that you have obtained the authorisation of all required parties;
(c) Sufficient funds in the bank account. It is your responsibility to ensure that there are sufficient clear funds available in your bank account to allow a debit payment to be made in accordance with the direct debit request. The debited amount will be reflected in the Nium Account several days after a successful debit;
(d) Fees Chargeable. We may charge you applicable fees if your bank rejects a direct debit transaction or if a direct debit transaction is subsequently disputed by you or your bank for any reason;
(e) Direct debit authorisation. Each time you choose to enable direct debit on the Platform, you authorise us to debit your bank account up to such amount indicated in your instruction plus any applicable taxes and fees. Your authorisation under this Clause 7.1(b) will remain in full force and effect until (i) your Nium Account is closed or (ii) all fees and other amounts you owe under these Terms are paid, whichever occurs later.
(f) Collection of amounts owed through direct debit. You also authorise us to debit your bank account to collect amounts you owe under these Terms, each as a separate debit or aggregated into a single debit or multiple debits at the same time or different times;
(g) Notification and correction of error. In addition to authorising debits to the bank account, you also authorise us to credit your bank account, if necessary, to correct an erroneous debit, in the amount necessary to correct the error. If there is any missing or erroneous information regarding your bank account, then you authorise us to verify and correct such information. You also agree to update your bank account information with us by contacting the Agent;
(h) Disabling direct debit. You may disable the direct debit at any time (a) through such means as notified to you by the Agent or (b) notification to your bank;
(i) Revoking direct debit. We may revoke your ability to use the direct debit function at any time if (a) Nium was unable to debit your bank account for any reason not solely attributable to Nium, (b) you have requested a refund of any amount properly paid to Nium through direct debit; (c) you have breached any of these Terms or (d) upon receipt of a request from the Agent;
(j) No Liability. We are not liable to you for any losses suffered by you due to a direct debit failing to be processed for any reason.
9.2.
Direct Debit function provided by third party. You may fund the Available Balance through a third party direct debit service provider if such direct debit service is provided to you through the Platform Provider. Such third party direct debit service is facilitated by the Platform Provider separately and independently from us. Our responsibility to maintain and protect such funds only arises upon receipt of cleared funds by us.
10.
UNAUTHORISED TRANSACTIONS
10.1.
You must notify the Platform Provider of unauthorised transactions. You must notify the Platform Provider no later than 30 days from the date of transaction (Notification Deadline) for any transaction that has not been authorised by you or unauthorised transaction that has been recorded to you.
10.2.
We may investigate unauthorised and incorrectly executed transactions. We will have the right to investigate any transaction reported by you as unauthorised or executed incorrectly. We may ask you to provide us with supporting information and documentation to help us with our investigation and you agree to cooperate with us and provide to us all information and documentation we reasonably require for this purpose. You also agree to cooperate with any authorities involved in our investigation. We will treat any payment instruction given via the Platform or Platform Provider as evidence of authorisation of the payment, and in this case you will need to provide us with evidence to show that the transaction was not authorised in accordance with these Terms.
10.3.
When will we not make a refund? We will not make a full refund and you will be responsible for the unauthorised transactions, in the following circumstances:
(a) you have acted fraudulently, or we have good reasons to believe you have acted fraudulently. However, if our investigation reveals that you have not acted fraudulently, we will immediately issue a full refund;
(b) we are not notified by you about the unauthorised transaction, or we are notified after the applicable Notification Deadline specified in Clause 9.1;
(c) we are not notified, or are notified late of any security issues with any account you maintain with us or and/or your Platform, about the loss, theft or misappropriation of any Services – you will be responsible for all transactions that occurred before the date when you notify us and we will not issue a refund for any unauthorised transactions that occurred before we were notified;
(d) you deliberately or with gross negligence (i.e. extremely carelessly) compromise the security of any account you maintain with us or fail to use any Services in accordance with these Terms; and
(e) any account you maintain with us or any Services was misappropriated (i.e. used by someone else).
10.4.
Can we take back the refund? If, as a result of our investigation, we discover that the transaction was authorised appropriately and executed by us correctly, that you have acted fraudulently or that you have acted deliberately or with gross negligence (i.e. extremely carelessly), we will deduct from (a) funds held by us on your behalf or (b) funds provided to us as credit support for your obligations under these Terms all sums previously refunded to you. If you do not have sufficient funds, we will make a request for immediate payment. You shall immediately transfer an amount which equals the shortfall to a bank account nominated by us.
11.
YOUR RIGHTS TO SUSPEND OR TERMINATE THE SERVICES
11.1.
You can suspend or terminate the Services at any time. You may suspend or terminate the Services, in whole or in part, at any time by providing a written notice to us through the Provider. Where you are the Organisation, you may also suspend or terminate any Representative’s ability to access or use the Services, in whole or in part, by providing a written notice to us through the Platform Provider.
12.
OUR RIGHTS TO SUSPEND OR TERMINATE THE SERVICES
12.1.
We can suspend or terminate the Services. We can suspend or terminate the Services, in whole or in part, in exceptional circumstances, including (but not limited to);
(a) if we have reason to suspect that you are behaving fraudulently, you or the Organisation is involved in any unlawful or illegal activity (for example money laundering or terrorist financing), or you are using the Services for any other unlawful purpose;
(b) if you commit a serious breach of these Terms (serious breach includes persistent breaches of the requirements of these Terms) and you have not corrected your breach when we asked you to do so and within the timeframe we reasonably requested;
(c) our agreement with the Platform Provider has been suspended or terminated or your access to the Platform is suspended or terminated by the Platform Provider;
(d) if we have asked you to pay us money you owe us under these Terms and you have failed to do so despite our efforts to remind you about it (normally via email or post, including any communications sent by the Platform Provider on our behalf);
(e) you are subject to any insolvency-related proceedings, you suspend your business, your financial position deteriorates to justify the opinion that you will be unable to meet your obligations under these Terms;
(f) if any information provided by you (or someone on your behalf) is false, or if you fail to provide us with information that we reasonably request from you;
(g) if we have good reason to believe this is necessary for security reasons (for example any security issues affecting the Platform Provider);
(h) the results of any “know your customer” or other similar checks or screenings under applicable laws or regulations conducted on you are unsatisfactory or if we determine in our reasonable discretion, or continuing any Services could cause reputational, regulatory, financial or operational harm to us; or
(i) if we believe it is necessary to comply with any law, regulation, guidance, court order or instructions of any regulator or government authority.
12.2.
We will notify you about the reasons for the suspension or termination. If we have to suspend or terminate any Services, we will notify you of the reason(s), as long as we are allowed to do so in compliance with applicable laws. We will only re-activate the Services if we are satisfied that the reason(s) for suspension is/are no longer applicable.
12.3.
When can we terminate these Terms without a reason? Please refer to Schedule 3 for our termination right applicable in each jurisdiction.
13.
LIABILITY
13.1.
When we will not be liable to you. We will not be liable to you for any loss or damage which:
(a) was not foreseeable at the time these Terms became binding on us. By ‘foreseeable’ we mean that, it is something we and you could predict would happen or that is a normal consequence of our non-compliance with these Terms or our failure to use reasonable skill and care;
(b) was not caused by our breach of these Terms or our failure to use reasonable skill and care;
(c) is related to any business or commercial activity you carry on, and includes any business losses, loss of profit and loss of business opportunity;
(d) was caused by events outside of our control (or the control of our agents or subcontractors) which we could not have avoided (for example natural disasters, civil unrest, pandemics or other force majeure events);
(e) was caused by your breach of these Terms or any laws or regulations;
(f) was caused by the Platform, the Platform Provider or the Platform Services;
(g) was caused by any Representative (whether authorised by the Organisation or not);
(h) was caused by any third parties unless we are contractually responsible for the actions of such third parties; or
(i) was caused by any goods or services purchased or sold using any Services.
13.2.
Our liability is limited. Please refer to Schedule 3 for limitation of liability applicable in each jurisdiction.
13.3.
Our liability for deductions made by us in error. If we make any deductions from your (a) funds held by us on your behalf or (b) funds provided to us as credit support for your obligations under these Terms in error, our liability to you will be limited to an obligation to refund to you the incorrectly deducted amount.
13.4.
Time limit to bring claims. You must notify us of your intention to make a claim against us within 12 months from the date of the event giving rise to your claim. If you fail to notify us, and subject to Clause 13.7, we will have no liability to you in respect of such event.
13.5.
Your indemnity to us. You will indemnify us on demand and in full for any loss or damage we suffer (including any expenses and costs incurred by us, such as legal fees) as a result of:
(a) your use of or access to the Services,
(b) your breach of these Terms, if we have to enforce any provisions of these Terms against you (for example if you fail to pay us any sums due to us), or
(c) any acts and/or omissions of the Platform Provider with respect to the Platform or any services independently and separately provided to you, or facilitate by, the Platform Provider.
13.6.
Your liability to us. You will compensate us for any loss or damage we suffer (including any applicable tax obligation, payment of interest and penalty assessments and any expenses and costs incurred by us, such as legal fees or as a result of your use of the Services. You will remain liable even after these Terms are terminated.
13.7.
Liability which we do not exclude or limit. Nothing in these terms excludes or limits our liability for any death or personal injury caused by our gross negligence, liability for fraud or fraudulent misrepresentation, or any other liability that the law does not allow us to exclude or limit.
14.
COMPLAINTS AND DISPUTES
14.1.
How to submit complaints. If you are unhappy with the Services, you should submit your complaints to the Platform Provider in the first instance. The Platform Provider will reach out to us with respect to your complaint. If the complaint is not resolved to your satisfaction, you can contact us and we will do our best to respond to your complaint as soon as possible, or we will inform you if we need more time or more information from you to help us investigate your complaint. Please refer to Schedule 3 for our contact details.
15.
SERVICES AND MULTIPLE NIUM ENTITIES
15.1.
Multiple entities of Nium and Services. Where there is more than one entity of Nium providing Services under these Terms, each entity of Nium:
(a) makes available its own Services as an independent contractor and not as a partner or jointly with the other entity of Nium, and shall not be liable for the Services provided by any other entity of Nium, whether jointly or severally;
(b) shall not require the consent, agreement or participation of any other entity of Nium to (a) vary the terms or its rights or obligations under these Terms or its own Services; or (b) exercise or enforce its rights under these Terms or the relevant Services. .
15.2.
Any entity of Nium may suspend or terminate any Services, in whole or in part, in accordance with these Terms. Any suspension or termination shall affect only such portion of these Terms relates to the Services under suspension or termination, and shall not suspend, terminate, affect, impair, invalidate or render unenforceable any other provisions in these Terms in connection with any other Services.
16.
MISCELLANEOUS
16.1.
Notices and communications. Please refer to Schedule 3 for how you can send us notices and communications in in each jurisdiction.
16.2.
Transfer of rights and obligations under these Terms. You are not allowed to transfer your rights or obligations under these Terms to anyone without our prior written consent. We may transfer our rights and obligations under these Terms to another business without your consent, but we will notify you of the transfer and make sure that your rights are not adversely affected as a result.
16.3.
Invalid provisions. If any provision of these Terms (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of these Terms will not be affected.
16.4.
Taking action when you are in breach of these Terms. If you breach these terms and we take no action, we will still be entitled to use our rights and remedies in any other situation where you breach these Terms.
16.5.
Entire agreement. These Terms set out the entire agreement between us.
16.6.
Nobody else has any rights under these Terms. These Terms is between you and us and nobody else has any rights to rely on or enforce any of these Terms.
16.7.
These Terms replace any previous agreements between us. These Terms supersede (i.e. replace) any previous agreements between us in respect of the Services including any written or oral agreements relating to the subject matter of these Terms.
16.8.
Laws that apply to these Terms. Please refer to Schedule 3 for details on the laws that govern these Terms in each jurisdiction.
SCHEDULE 2
THE SERVICES. ADDITIONAL TERMS AND CONDITIONS
PART A: PAY OUT SERVICE AND PAY IN SERVICE
1.
GENERAL
1.1.
The Pay Out Service. Subject to payment of fees and these Terms, we agree to enable such payment service (Pay Out Service) to you whereby you may transfer funds to yourself or a beneficiary located in a jurisdiction approved by us (Pay Out ).
1.2.
The Pay In Service. Subject to payment of fees and these Terms, we agree to enable such payment service (Pay In Service) to you whereby you may (a) provide funds for the use of Pay Out Service; (b) receive funds in a currency supported by us (Supported Currency) from a third party approved by us (Payer) (services under paragraph (a) and (b) are collectively referred to as "Pay In”); and (c) exchange funds from one Supported Currency to another Supported Currency; and (d) maintain funds in a Supported Currency.
1.3.
We may decline to provide the Pay Out Service and Pay In Service. We may, in our sole discretion and for any reason, refuse to provide Pay Out Service or Pay In Service to you. We shall, to the extent permitted by applicable laws and practicable, inform you about the reason of any such refusal.
1.4.
Additional terms and conditions may apply for certain jurisdictions. The use of the Pay Out Service and/or Pay In Service is subject to additional terms and conditions specific to certain jurisdictions. Please refer to Schedule 3 for details.
2.
THE VBAN
2.1.
Generation of Virtual Account Numbers (VBAN). We may generate one or more virtual bank account numbers (VBAN) on your behalf. The VBAN enables you to provide funds to us for the use of the Pay Out Service or receive funds from a Payer pursuant to the Pay In Service.
2.2.
About the VBAN. You acknowledge and agree that, and shall also ensure that any third party is aware and understands that:
(a) each VBAN is created for record keeping, reporting and administrative purposes. A VBAN (i) is a notional representation of the associated physical bank account maintained by us or our affiliate with a licensed financial partner (Settlement Account); (ii) it does not hold funds or generate any actual credits and debits independently from the associated Settlement Account; (iii) is not a separate payment account, deposit account or bank account owned and operated by you; and (iv) no interest is payable on any funds received via the VBAN; and
(b) funds transferred by you or a Payer are credited into the Settlement Account and no financial partner where the Settlement Account is maintained has any contractual duty or relationship with you under any circumstances with respect to the VBAN.
2.3.
Inactive VBAN. If a VBAN remains inactive for a period of twelve (12) months, meaning no transaction has taken place via the Nium Account or VBAN or zero balance has been associated with the VBAN, we may designate the VBAN to be “Inactive”. Once the VBAN has been designated as Inactive, we may close the Nium Account or VBAN by giving you seven (7) days’ notice.
3.
AVAILABLE BALANCE
3.1.
The Available Balance. Only cleared Pay Ins received by us from you or a Payer could constitute “Available Balance”. “Cleared funds” refers to funds which have been unconditionally received by us and cannot be recalled by you or the payment services provider used by you to send funds to us.
3.2.
You instruct and authorise us to receive any funds. You irrevocably instruct and authorise us to receive any funds from yourself or a Payer and maintain the Available Balance in one or more Supported Currencies.
3.3.
Conversion of Available Balance. If any funds received by us as Available Balance is not in a Supported Currency, we will convert such funds to a Supported Currency at the prevailing exchange rate.
3.4.
Maintaining of Available Balance. The Available Balance are held by us in one or more Settlement Account. Each Settlement Account is maintained by us with a licensed financial institution in the relevant jurisdiction and the Available Balance will be kept by us in accordance with applicable legislation, which ensure that any Available Balance are segregated from our operating funds and held safely. Please note that (a) Available Balance is not protected by any insurance scheme and (b) you do not have any right or control over the Settlement Account. Any interest earned on monies held in the Settlement Account is not payable to you.
3.5.
We are not liable for any shortfall in Available Balance. We are not liable to make up for any shortfall in any Available Balance unless such shortfall is due to our gross negligence or wilful default.
3.6.
Funding of Available Balance. You may fund the Available Balance by (a) transferring the funds to us via your bank account; (b) sending funds to us through a Payer; or (c) any other method as notified by the Platform Provider from time to time.
3.7.
Representations and undertakings with respect to Available Balance. You represent and undertake that:
(a) you own all title, rights and interest to the entire Available Balance. No person or entity other than you have any rights in relation to any Available Balance and funds received pursuant to the Pay In service;
(b) you will not request us to correct any error pertaining to any Available Balance or initiate a reversal of Available Balance to the Payer at any point in time;
(c) you will not assign, charge, declare trust over or transfer the benefit of all or any part of any Available Balance; and
(d) you are solely responsible for the reporting all tax matters to the relevant tax authority and payment of applicable taxes in respect of all Available Balance assigned to any Nium Account. You are also responsible for any other applicable reporting requirements, including but not limited to, any customs or foreign currency controls. You represent and warrant that You are in compliance with any applicable tax legislation and will remain compliant during the term of these Terms.
3.8.
When we may cancel, reverse, demand a refund or debit Available Balance. We may cancel, reverse, demand a refund, or, cause any amount of the Available Balance to be unavailable for Pay Out and make corresponding adjustments to any entry if:
(a) we need to correct any error or omission;
(b) we are required to return the funds to the Payer;
(c) we have not received cleared and unconditional funds or in time; or
(d) we have reasonable grounds to do so for any other legitimate reasons.
3.9.
Foreign exchange risk. You acknowledge and agree that maintaining Available Balance in multiple currencies carry foreign exchange risks, for example it is possible that the exchange rate improves over time and you will not receive the benefit of such fluctuations. You agree to assume the aforementioned foreign exchange risks and waive all claims against us with respect to such risks.
3.10.
We will return any Net Available Balance upon termination of these Terms. When these Terms are terminated for any reason, we will return to you an amount equivalent to any remaining Available Balance, net of any amounts owed to us under these Terms or otherwise, applicable bank charges and taxes (Net Balance) to a bank account in your name within sixty (60) business days of receipt of a request from you. If you do not provide us with a valid bank account details to make the transfer or request the return of the Net Balance within twelve (12) months from the date of termination of these Terms, we will not be required to return your funds.
Please note that any fund transfers are subject to due diligence checks and we are not required to return the Net Balance to you if (i) the result of due diligence checks is unsatisfactory, (ii) we are prohibited by an order or directive of an applicable regulator, or (iii) doing so might otherwise put us in breach of any applicable laws.
4.
THE PAY OUT SERVICE
4.1.
Restrictions to Pay Out Service. You may not use the Pay Out Service, and we are not required to provide the Pay Out Service if:
(a) you have insufficient Available Balance to cover the transaction (plus any applicable fees);
(b) the Pay Out is not in a Supported Currency and the beneficiary is not located in a jurisdiction approved by us;
(c) the Pay Out is connected with an activity (i) set out in the prohibited list published on www.nium.com or (ii) inconsistent with applicable laws or our internal compliance policy;
(d) the result of any due diligence checks or screening in relation to the Pay Out is unsatisfactory;
(e) the Pay Out is not within the transaction limit notified to you by the Platform Provider from to time
4.2.
No Standing Arrangement. Each Pay Out instruction received by us through the Platform constitutes (i) a separate, binding and independent instruction to us to perform a Pay Out that and (ii) a fresh confirmation of your acceptance to comply with and be bound by these Terms. We do not accept any instruction to make Pay Out based on a recurring or standing arrangement.
4.3.
You are liable to us for shortfall. Notwithstanding Clause 5.1, if a Pay Out has been processed despite there being insufficient Available Balance, you shall reimburse us the shortfall plus any applicable fees, along with any cost incurred by us on recovering or attempting to recover such shortfall from you. You shall immediately transfer an amount which equals to the shortfall to a bank account nominated by us.
4.4.
Currency of Pay Out. If we receive a Pay Out for processing:
(a) in a currency other than a Supported Currency, we will convert such currency into the Supported Currency at the applicable exchange rates plus a mark up. The Available Balance will be debited by the amount of funds after currency conversion and any administrative costs incurred by us in connection with the conversion; and
(b) where the funding currency and payout currency are different from those published on the Platform, we may apply such transaction fee and foreign exchange rate at our sole discretion.
4.5.
You must ensure details of your bank account and the bank account of any beneficiary is correct and complete. You must ensure that the details of your bank account and the bank account of any beneficiary are correct and complete and shall notify us (through the Platform Provider) of any change to your bank account or the bank account of any third party beneficiary. Until we have been notified of such change and has had a reasonable opportunity to act on it, we shall be entitled to process the Pay Out to your existing bank account or the existing bank account of the beneficiary. We are not liable for any losses arising from any Pay Out due to incorrect or incomplete details provided by you or the Platform Provider or if you or the Platform Provider fail to inform us in advance of any change to your existing bank account or the existing bank account of the beneficiary.
4.6.
Remittance taxes may be applicable to a Pay Out. You acknowledge and agree that the tax authorities of certain countries and/or jurisdictions may deduct certain tax, fee and/or tariff (Remittance Taxes) from a Pay Out. If any Pay Out is subject to Remittance Tax, the amount you or the beneficiary actually receives may be different from the amount stated in the the instruction to process Pay Out (Shortfall). We are not required to make up for such Shortfall under any circumstances.
4.7.
Cancellation of Pay Out instruction. You may cancel a Pay Out through the Platform Provider before such Pay Out was approved by our compliance team.
4.8.
Recall of Pay Out instruction. If you wish to recall a Pay Out after we have process such Pay Out, please reach out to the Platform Provider.
4.9.
No guarantee of successful cancellation or recall. We do not guarantee a successful cancellation or recall. Any request for cancellation or recall is processed by us on best effort basis. All bank charges and administrative cost relating to such cancellation or recall are borne by you.
4.10.
Refunds to your Available Balance made in error. If any refund, or any other amount has been credited to the Available Balance in error (for example if a refund is issued more than once for the same transaction, if it is higher than the transaction value or if you have not requested refund at all), we will be entitled to deduct such amount from the Available Balance. You agree to any such deductions being made by us.
5.
THE PAY IN SERVICE
5.1.
Restrictions to Pay In Service. You may not use the Pay In Service, and we are not required to provide the Pay In Service, if:
(a) the Pay In is not in a Supported Currency and the Payer is not located in a jurisdiction approved by us;
(b) the Pay In (i) is made via over-the-counter checks or cash deposits or (ii) does not originate from your bank account or the bank account of a Payer;
(c) the Pay In is connected with an activity (i) set out in the prohibited list published on www.nium.com or (ii) inconsistent with applicable laws or our internal compliance policy;
(d) the result of any due diligence checks or screening in relation to the Pay In is unsatisfactory;
(e) the Pay In is not within the transaction limit notified to you by the Platform Provider from to time; and
(f) (where notified by us as a requirement for the Pay In) we have received an instruction to receive a Pay In (Pay In Instruction) and the result of any checks performed on such Pay In Instruction and the Payer are satisfactory.
5.2.
We do not make any representations and warranties with respect to any underlying transaction. Where a pay in arises from an underlying transaction between you and a Payer, we do not have any control of, or any liability for, such underlying transaction or any goods, products or services provided to the Payer by you. You shall inform the relevant Payer of the foregoing and that we do not guarantee you will complete any underlying transaction made with such Payer.
5.3.
Additional requirements with respect to Pay In received in the United States. Where a pay in is received in the United States, the following limits have been complied with:
(a) the amount of Pay In has not exceeded the single limit of USD6 million; and
(b) the total amount of Pay In received by us on your behalf has not exceeded USD12 million in a year.
5.4.
Additional requirements with respect to Pay In received in Japan. Where a Pay In is received in Japan, you:
(a) irrevocably authorise and consent to us receiving the Pay In on your behalf via an entity of Nium, Nium Japan Kabushiki Kaisha (Nium Japan) as part of the collection agency services (Shūnō Daikō);
(b) irrevocably agree and accept that upon Nium Japan’s receipt of such Pay In from a Payer, such Payer’s obligation to pay you shall be satisfied in full and any claim you have against such Payer will be extinguished;
(c) will make it clear in the agreement between you and the Payer that (A) Nium Japan acts as a collection agent, and (B) a Payer’s obligation to pay you shall be satisfied in full and any claim you have against such Payer will be extinguished upon Nium Japan’s receipt of the relevant Pay In from such Payer;
(d) shall deliver the applicable goods and/or services to such Payer and shall not use the Pay In service to receive funds unrelated to goods and/or services provided by you;
(e) shall provide us with relevant documents which establish the commercial relationship between you and the Payer, and the Pay In relates to goods or services supplied by the you; and
(f) acknowledge and agree that: (i) Nium Japan shall not be deemed to be providing Pay In Service to you by virtue of it receiving a Pay In on our behalf and owes no obligation or liability to you under these Terms. You do not have any right to enforce the terms of these Terms against Nium Japan. In the event that Nium Japan suffers any losses due to your acts or omissions or any Payer, such losses shall be treated as if suffered by us and we shall be entitled to seek remedy directly from you; and (ii) neither us 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)
5.5.
Additional requirements with respect to pay in received in India. Where a Pay In is received in India, you:
(a) represent and warrant that you are a merchant offering digital content or services or online travel services, as applicable;
(b) irrevocably appoints an entity of Nium, 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 us (minus all amounts which Nium India is entitled to deduct including: (a) any amount owed to Nium India by you (whether such amount are present, future, actual or contingent or potential, liquidated or unliquidated and irrespective of the currency of their denomination); (b) reversed pay in; (c) amounts equal to the Reserves and (d) taxes (Net Settlement Amount);
(c) undertake to pay such service fee to Nium India as consideration for Nium India acting as your collection agent; and
(d) understand and agree that these Terms constitute a direct agreement between you and Nium India with respect to services provided pursuant to any Pay In received in India. Nium India shall be a third-party beneficiary to these Terms and shall have the right to enforce these Terms directly against you or any third party to the extent it may deem such enforcement necessary or advisable to protect its rights.
5.6.
Reserves. You agree that we may from time to time, establish and withhold from any funds received pursuant to the Pay In Service, such reserve amounts (Reserves) to cover amounts owed to us under these Terms (including but not limited to fees, refunds or reversals). We may additionally fund the Reserves through: (a) funds provided by you at our request or (b) debiting your bank account. Our rights with respect to the Reserves shall survive termination of these Terms. We will notify you in case we establish any Reserves.
SCHEDULE 3
INTERNATIONAL JURISDICTIONS. ADDITIONAL TERMS AND CONDITIONS
Schedule 3 is jurisdiction specific, and these additional terms and conditions apply to the extent that Services are provided from any of the following countries:
Jurisdiction
Nium Entity
Services under Schedule 2
European Economic Area
UAB Nium EU
• Part A
United Kingdom
Nium Fintech Limited
• Part A
PART B – EUROPEAN ECONOMIC AREA
1.
GENERAL
1.1.
Service Provider. UAB “NIUM EU”, a private limited liability company incorporated in Lithuania (legal entity code 304548794) (Nium EU), provides Services under Part A of Schedule 2 in the European Economic Area (EU Services). Nium EU has its principal office at Konstitucijos pr. 21B, Vilnius, Lithuania. Nium EU holds an electronic money institution licence No. 14, issued by the Bank of Lithuania and is also authorised to issue the payment cards in the Territory as a member of the Network.
1.2.
Interpretation. In the context of the EU Services and EU Travel Services, the Terms are supplemented and/or amended (as applicable) as set out in this Part B of Schedule 3.
2.
AMENDMENTS TO SCHEDULE 1
2.1.
Clause 1 of is amended by inserting the following new Clause 1.6 immediately after the existing Clause 1.5:
1.6 Organisations that do not qualify as small charities and micro-enterprises will have different rights. Certain provisions of these Terms will apply differently to small charities and micro-enterprises, and differently to Organisations that do not qualify as such. This will be indicated in the relevant paragraphs of these Terms. If the provisions of these Terms do not mention different application of its provisions depending on the status of your Organisation, such provisions will apply to all types of Organisations. If you are an Organisation that is not a small charity or a micro-enterprise, you hereby agree to contract-out of (i.e. disapply) certain terms applicable only to small charities and micro-enterprises, as indicated in the relevant provisions of these Terms. A “small charity” is one with an annual income of less than EUR 2 million and “micro-enterprise” is an enterprise (in whatever legal form, including self-employed individuals, family businesses, partnerships or associations engaged in an economic activity) whose annual turnover and/or balance sheet total does not exceed EUR 2 million and employs fewer than 10 people
2.2.
Clause 2.2 is deleted in its entirety and replaced with the following new Clause 2.2:
2.2 Updates to these Terms. We reserve the right to change these Terms from time to time. If you are a small charity or a micro-enterprise, we will notify you at least 60 days before we implement the changes. In exceptional circumstances, where it is impossible for us to give you at least 60 days’ notice in advance (for example if there are urgent legislative changes), the notice period may be shorter, but we will do our best to give you as much notice as possible (Change Notice). If you are not a small charity or a micro-enterprise, we will use reasonable endeavours to provide our Change Notice to you before we implement the changes. Whether or not you are a small charity or micro- enterprise, if we need to introduce changes that are less favourable to you than the Terms to which you agreed when you applied for the Services, and you do not agree to such new Terms, you can notify us (usually via the Platform but you can also contact the Platform Provider or us directly) that you reject the proposed new Terms. Your rejection will mean that you wish to terminate these Terms and the Services. You will not be charged anything for terminating these Terms in these circumstances. You must notify us before the expiry of the Change Notice, i.e. before the date when we propose to implement the new Terms. If we do not hear from you before such date, we will assume that you have accepted the changes, and you will be deemed to have accepted the new Terms.
2.3.
Clause 10.1 is deleted in its entirety and replaced with the following new Clause 10.1:
10.1 You must notify the Platform Provider of unauthorised transactions. If you are not a small charity or a micro-enterprise, the Notification Deadline is shorter - You must notify the Platform Provider no later than 7 days from the date of transaction (Notification Deadline) for any transaction that has not been authorised by you or unauthorised transaction that has been recorded to you. If you are a small charity or a micro-enterprise, you must notify us no later than 13 months after the transaction date.
2.4.
Clause 10.3 (e) is deleted in its entirety and replaced with the following new Clause 10.3(e):
(e) any account you maintain with us or any Services was misappropriated (i.e. used by someone else): (i)
(ii) if you are a small charity or micro-enterprise, you will be liable for all unauthorised transactions up to EUR50 and we will refund the rest of the unauthorised transactions. However, we will refund the full amount if: (i) it was not possible for you to detect the loss, theft or misappropriation before the payment was made (unless you acted fraudulently); (ii) it was caused by our employee or any entity that carried out the payment processing on our behalf; or (iii) the unauthorised transaction occurred after you notified us that the security of your Card had been compromised; and
(ii) if you are not a small charity or micro-enterprise, we will not issue any refunds. We will have the right to investigate any transaction reported by you as unauthorised or executed incorrectly. We may ask you to provide us with supporting information and documentation to help us with our investigation and you agree to cooperate with us and provide to us all information and documentation we reasonably require for this purpose. You also agree to cooperate with any authorities involved in our investigation. We will treat any payment instruction given via the Platform or Platform Provider as evidence of authorisation of the payment, and in this case you will need to provide us with evidence to show that the transaction was not authorised in accordance with these Terms.
2.5.
The following new Clause 10.5 is inserted immediately after the existing Clause 10.4:
10.5 Will we make a refund? If you are a small charity or a micro-enterprise, and if we receive a notification of an unauthorised transaction, we will normally refund to you the unauthorised amount by the end of the next business day following the date of your notification. We will also refund any transaction fees or charges deducted by us in connection with such unauthorised transaction, so that your Available Balance is to the extent possible returned to the same state as it would have been had the unauthorised transaction not taken place. Any refund received by you is your only remedy and we will not be liable to you for any other losses you suffer as a result of an unauthorised transaction.
2.6.
Clause 12.3 is deleted in its entirety and replaced with the following new Clause 12.3:
12.3 When can we terminate these Terms without a reason? We can terminate these Terms and any Services without giving you any reason if we provide you with at least 60 days’ advance notice. If you are not a small charity or a micro-enterprise, we can terminate these Terms and terminate the Services by providing you with at least thirty (30) days’ advance notice.
2.7.
Clause 13.2 is deleted in its entirety and replaced with the following new Clause 13.2:
13.2 Our liability is limited. Subject to Section 13.7, if you have suffered losses and we are found to be liable to you, our total aggregate liability to you under these Terms will not exceed EUR 100,000. This does not extend to our obligation to return funds held by us on your behalf upon termination in accordance with these Terms.
2.8.
Clause 16.1 of Schedule 1 is deleted in its entirety and replaced with the following new Clause 16.1:
16.1 Notices and communications. All notices and communications between you and us will be in English. If we need to notify you of anything, we will normally communicate with you via the Platform or through the Platform Provider. We may also use your email address or business address to send you any notifications or communications. You should send all notices or communications via Platform or contact the Platform Provider in the first instance. If you need to send a notice or communication to us directly, you can do so by email at [email protected] by post at Konstitucijos pr. 21B, Vilnius, Lithuania or via our website at https://www.nium.com/contact-us
2.9.
Clause 16.8 is deleted in its entirety and replaced with the following new Clause 16.8:
16.8 Laws that apply to these Terms. These Terms and any dispute or claim arising out of these Terms will be governed by, and interpreted in accordance with, the laws of Lithuania and you and us agree any dispute between you and us may be brought in the courts of Lithuania
2.10.
The following new Clause 16.9 is inserted immediately after the existing Clause 16.8:
16.9 Complaining to the Bank of Lithuania. If you are not happy with how we have handled your complaint, you can bring your complain to the Bank of Lithuania (by post at the Bank of Lithuania Supervision Service at Žalgirio str. 90, LT-09303, Vilnius, Lithuania, or by e-mail [email protected]). The details can be found at https://www.lb.lt/en/dbc- settle-a-dispute-with-a-financial-service-provider
PART E – UNITED KINGDOM
1.
GENERAL
1.1.
Service Provider. NIUM FINTECH LIMITED, a private limited company incorporated in England (company number 09039850) (Nium UK), provides Services under Part A of Schedule 2 (UK Services). Nium UK has its principal office at 3rd Floor, 18 St. Swithin's Lane, London, EC4N 8AD Nium UK is an electronic money institution regulated by the Financial Conduct Authority, with firm reference number 901024, and is also authorised to issue the payment cards in the United Kingdom as a member of the Network.
1.2.
Interpretation. In the context of the UK Services, the Terms are supplemented and/or amended (as applicable) as set out in this Part E of Schedule 3.
2.
AMENDMENTS TO SCHEDULE 1
2.1.
Clause 1 of is amended by inserting the following new Clause 1.6 immediately after the existing Clause 1.5:
1.6 Organisations that do not qualify as small charities and micro-enterprises will have different rights. Certain provisions of these Terms will apply differently to small charities and micro-enterprises, and differently to Organisations that do not qualify as such. This will be indicated in the relevant paragraphs of these Terms. If the provisions of these Terms do not mention different application of its provisions depending on the status of your Organisation, such provisions will apply to all types of Organisations. If you are an Organisation that is not a small charity or a micro-enterprise, you hereby agree to contract-out of (i.e. disapply) certain terms applicable only to small charities and micro-enterprises, as indicated in the relevant provisions of these Terms. A “small charity” is one with an annual income of less than GBP 1 million and “micro-enterprise” is an enterprise (in whatever legal form, including self-employed individuals, family businesses, partnerships or associations engaged in an economic activity) whose annual turnover and/or balance sheet total does not exceed GBP equivalent of EUR 2 million and employs fewer than 10 people.
2.2.
Clause 2.2 is deleted in its entirety and replaced with the following new Clause 2.2:
2.2 Updates to these Terms. We reserve the right to change these Terms from time to time. If you are a small charity or a micro-enterprise, we will notify you at least 60 days before we implement the changes. In exceptional circumstances, where it is impossible for us to give you at least 60 days’ notice in advance (for example if there are urgent legislative changes), the notice period may be shorter, but we will do our best to give you as much notice as possible (Change Notice). If you are not a small charity or a micro-enterprise, we will use reasonable endeavours to provide our Change Notice to you before we implement the changes. Whether or not you are a small charity or micro- enterprise, if we need to introduce changes that are less favourable to you than the Terms to which you agreed when you applied for the Services, and you do not agree to such new Terms, you can notify us (usually via the Platform but you can also contact the Platform Provider or us directly) that you reject the proposed new Terms. Your rejection will mean that you wish to terminate these Terms and the Services. You will not be charged anything for terminating these Terms in these circumstances. You must notify us before the expiry of the Change Notice, i.e. before the date when we propose to implement the new Terms. If we do not hear from you before such date, we will assume that you have accepted the changes, and you will be deemed to have accepted the new Terms.
2.3.
Clause 10.1 is deleted in its entirety and replaced with the following Clause 10.1:
10.1 You must notify the Platform Provider of unauthorised transactions. If you are not a small charity or a micro-enterprise, the Notification Deadline is shorter - You must notify the Platform Provider no later than 7 days from the date of transaction (Notification Deadline) for any transaction that has not been authorised by you or unauthorised transaction that has been recorded to you. If you are a small charity or a micro-enterprise, you must notify us no later than 13 months after the transaction date.
2.4.
Clause 10.3 (e) is deleted in its entirety and replaced with the following new Clause 10.3 (e):
(a) any account you maintain with us or any Services was misappropriated (i.e. used by someone else):
(i) if you are a small charity or micro-enterprise, you will be liable for all unauthorised transactions up to £35 and we will refund the rest of the unauthorised transactions. However, we will refund the full amount if: (i) it was not possible for you to detect the loss, theft or misappropriation before the payment was made (unless you acted fraudulently); (ii) it was caused by our employee or any entity that carried out the payment processing on our behalf; or (iii) the unauthorised transaction occurred after you notified us that the security of your Card had been compromised; and
(iii) if you are not a small charity or micro-enterprise, we will not issue any refunds. We will have the right to investigate any transaction reported by you as unauthorised or executed incorrectly. We may ask you to provide us with supporting information and documentation to help us with our investigation and you agree to cooperate with us and provide to us all information and documentation we reasonably require for this purpose. You also agree to cooperate with any authorities involved in our investigation. We will treat any payment instruction given via the Platform or Platform Provider as evidence of authorisation of the payment, and in this case you will need to provide us with evidence to show that the transaction was not authorised in accordance with these Terms.
2.5.
The following new Clause 10.5 is inserted immediately after the existing Clause 10.4:
10.5 Will we make a refund? If you are a small charity or a micro-enterprise, and if we receive a notification of an unauthorised transaction, we will normally refund to you the unauthorised amount by the end of the next business day following the date of your notification. We will also refund any transaction fees or charges deducted by us in connection with such unauthorised transaction, so that your Available Balance is to the extent possible returned to the same state as it would have been had the unauthorised transaction not taken place. Any refund received by you is your only remedy and we will not be liable to you for any other losses you suffer as a result of an unauthorised transaction.
2.6.
Clause 12.3 is deleted in its entirety and replaced with the following new Clause 12.3:
12.3 When can we terminate these Terms without a reason? We can terminate these Terms and any Services without giving you any reason if we provide you with at least 60 days’ advance notice. If you are not a small charity or a micro-enterprise, we can terminate these Terms and terminate the Services by providing you with at least thirty (30) days’ advance notice.
2.7.
Clause 13.2 is deleted in its entirety and replaced with the following new Clause 12.2:
13.2 Our liability is limited. Subject to Section 12.7, if you have suffered losses and we are found to be liable to you, our total aggregate liability to you under these Terms will not exceed GBP 100,000. This does not extend to our obligation to return funds held by us on your behalf upon termination in accordance with these Terms.
2.8.
Clause 16.1 of Schedule 1 is deleted in its entirety and replaced with the following new Clause 16.1:
16.1 Notices and communications. All notices and communications between you and us will be in English. If we need to notify you of anything, we will normally communicate with you via the Platform or through the Platform Provider. We may also use your email address or business address to send you any notifications or communications. You should send all notices or communications via Platform or contact the Platform Provider in the first instance. If you need to send a notice or communication to us directly, you can do so by email at [email protected] by post at 3rd Floor, 18 St. Swithin's Lane, London, EC4N 8AD or via our website at https://www.nium.com/contact-us
2.9.
Clause 16.8 is deleted in its entirety and replaced with the following new Clause 16.8:
16.8 Laws that apply to these Terms. These Terms and any dispute or claim arising out of these Terms will be governed by, and interpreted in accordance with, the laws of England and Wales and you and us agree any dispute between you and us may be brought in the courts of England.
2.10.
The following new Clause 16.9 is inserted immediately after the existing Clause 16.8:
16.9 Complaining to the Financial Ombudsman Service. If you are not happy with how we have handled your complaint, you can bring your complain to the Financial Ombudsman Service (by post at Exchange Tower, London E14 9SR, or by telephone at 0800 023 4567). The details about the service offered by the Financial Ombudsman Service can be found at www.financial-ombudsman.org.uk