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General Terms and Conditions for NMI

For Agreements entered into before March 1, 2024: please see the relevant terms in the Historical Terms and Conditions which apply if you have not received a notice updating the terms of your service.

Last Updated: March 1, 2024

Below are the General Terms and Conditions (“General Terms and Conditions“) that govern Company’s use of the Services. These General Terms and Conditions, together with the Partner Terms or Merchant Terms (as applicable), applicable Service Terms, mutually executed Order Form(s), and any incorporated documents and terms, form a legal agreement between NMI and Company (the “Agreement“).

1. Definitions; Interpretation

1.1. Definitions. Capitalized terms used but not elsewhere defined in this Agreement will have following meanings:

“Affiliate” of any party means any person or entity that controls, is controlled by, or is under common control with, such party.

“Company” means the person or entity identified on an applicable Order Form or who has otherwise agreed to obtain NMI’s services.

“Extensions” means those optional Services identified on the Extensions Terms, and any other service or product that may be offered by NMI now or in the future. The particular Extensions that apply will be set forth on the applicable Order Form.

“Fee Schedule” means the list of fees charged to Company for the Services ordered under the Agreement. The Fee Schedule may be included in an Order Form, made available on NMI’s website or within any Service portal or application, or otherwise provided to Company by NMI or its agent.

“Laws” means all applicable legal obligations including the Rules and federal, state, local, and international laws, statutes, rules, and regulations (including those governing privacy and protection of data), as amended from time to time, and any orders of any court, governing body, or agency having jurisdiction.

“Merchant” means (a) Company, if Company is a merchant end user of NMI’s Services; or (b) if Company is a Reseller: a merchant or other customer of Company who is boarded by Company or otherwise referred to NMI pursuant to this Agreement and who has entered into a Merchant Agreement for the provision of Services.

“Merchant Agreement” means the terms and conditions to be accepted by a Merchant for the provision of Services and/or any Extensions, in a form approved by NMI. If Company is a merchant end user of NMI’s services, then this Agreement will constitute the Merchant Agreement.

“NMI” is defined in Section 1.3 below.

“NMI Affiliate” means Network Merchants, LLC or any of its Affiliates that provide Services under this Agreement. The NMI Affiliate responsible for providing a given Service will be indicated on the applicable Service Terms. If no other NMI Affiliate is named on the applicable Service Terms, the provider will be Network Merchants, LLC.

“Order Form” means an order form or signature page associated with this Agreement which is signed or executed by the parties. An Order Form will list the Services provided under this Agreement and may also set forth commercial terms and/or other terms and conditions applicable to this Agreement or such Services.

“Personal Data” means any personal or non-public information about a person, including but not limited to the person’s name, address, telephone number, e-mail address, social security number and/or tax identification number, payment information (including card numbers and payment history), transaction data (including amounts, types, locations, and descriptions of purchases), and other financial data, or any other type of personally identifiable information covered by any applicable law or regulation concerning data privacy or security.

“Payment Network” means any network or entity associated with processing payment cards of a specific brand, including but not limited to American Express Company, Discover Financial Services, Mastercard Incorporated, Visa Inc., or any debit network, and each of their subsidiaries and successors.

“Processor” means the applicable NMI Affiliate (and/or its sponsoring financial institution, as applicable) providing the Processor Services pursuant to the Processing Service Terms and a Processing Agreement. NMI may update the Processor with written notice to Company and/or the applicable Merchants.

“Reseller” means a software vendor, reseller, or other third party authorized by NMI to use, resell and provide Merchants and other customers and end users with access to the Services.

“Rules” means the rules, requirements, policies, procedures, and standards issued by the Payment Networks or other industry regulatory authorities such as the PCI Security Standards Council LLC, and the National Automated Clearing House Association (NACHA), including the Payment Card Industry Data Security Standard (PCI DSS), the Visa Cardholder Information Security Program, the Mastercard Site Data Protection Program, the Mastercard Digital Enablement Service, the NACHA Rules and Guidelines, and any other program or requirement, as each may be amended from time to time.

“Services” means the services provided by NMI under this Agreement (including without limitation Extensions), as identified and described on the Order Form and on the applicable Service Terms associated with each ordered Service. In the context of any particular Service Terms, the term “Services” will refer to the Services (including Extensions) provided under such Service Terms.

“Service Terms” means the terms and conditions applicable to a Service (including Extensions) ordered under this Agreement (as indicated on an applicable Order Form), which are incorporated into and made part of this Agreement. Each Service Term supplements these General Terms and Conditions, the Partner Terms or Merchant Terms (as applicable), and any other applicable documents included in this Agreement, and govern Company’s use of the Services covered by such Service Terms.

“Third Party Service Provider” means any vendor, contractor, supplier, processor, Reseller, or other third party agent through which NMI may provide any portion of the Services or related products and services, or which are otherwise engaged to provide services to NMI or to Company (and Merchants, if applicable) in connection with the Services or the Agreement (including but not limited to billing, reporting, customer service, support, authorization, and settlement services).

“Trademarks” means a party’s customary names, logos, domain names, and all common law and registered trademarks, service marks, trade names, and trade dress rights, and any similar or related rights, under the laws of any jurisdiction.

1.2. Agreement; Conflicts. The Agreement includes: (1) the Order Form(s); (2) these General Terms and Conditions; (3) the Partner Terms or the Merchant Terms, as applicable; and (4) the applicable Service Terms associated with the Services ordered under this Agreement (as identified on an Order Form); as well as any other ancillary exhibits, attachments, documents, or terms referenced in or incorporated into any of the above documents, all of which are incorporated by reference and make up the Agreement. Except as otherwise expressly provided in this Agreement, in the event of a conflict between multiple parts of this Agreement, the terms of the applicable Service Terms will control over these General Terms, but only to the extent of the conflict. In the event of any inconsistency between terms set forth in the Order Form and any other parts of this Agreement, the Order Form will take precedence.

1.3. NMI Affiliates. Although an Order Form is executed by Network Merchants, LLC, the Services may be provided by various NMI Affiliates. Therefore, as used in this Agreement, the term “NMI” refers to whichever NMI Affiliate is providing a given Service. If an Order Form includes multiple Services which are provided by different NMI Affiliates, Company will be deemed to have a separate Agreement with each NMI Affiliate for the provision of the Service(s) that such NMI Affiliate is providing (where each such Agreement comprises the terms of the Order Form, these General Terms, the Partner Terms or Merchant Terms, as applicable, and the respective Service Terms associated with the Service(s) identified on the Order Form that are provided by such NMI Affiliate). If this Agreement or any Order Form involves Services provided by multiple NMI Affiliates, this Agreement or such Order Form may be accepted and/or executed by one NMI Affiliate on behalf of all other NMI Affiliates which are providing the Services ordered under this Agreement (or such Order Form). In such a case, the executing NMI Affiliate is a limited-purpose agent of the other NMI Affiliates for the purpose of executing this Agreement or the Order Form. However, one NMI Affiliate having authority to execute this Agreement or an Order Form on behalf of another NMI Affiliate will in no way be construed as an indication that the first NMI Affiliate has any liability for any obligations of the other NMI Affiliate. Each NMI Affiliate will be responsible only with respect to the Service(s) it provides under the applicable Service Terms, and throughout this Agreement the term “NMI” will refer to that NMI Affiliate only. Accordingly, any and all warranties, representations, indemnities, covenants, agreements, and obligations contained in this Agreement (whether in a Service Terms or in any other part of this Agreement) are made severally by each NMI Affiliate independently, and not jointly with any other NMI Affiliate (including Network Merchants, LLC). Each NMI Affiliate will be liable only for its own obligations or any breaches by it, and no NMI Affiliate (including Network Merchants, LLC) will have any liability for the obligations of any other NMI Affiliate or for any breach or default by any other NMI Affiliate.

2. Services

2.1. Order Forms. From time to time, Company may submit Order Forms to order Services pursuant to this Agreement, including Extensions or other optional services. An Order Form submitted by Company will not be effective until it is signed and accepted by NMI. Each Order Form, when fully executed, will become part of this Agreement and will be subject to these General Terms, the Partner Terms and/or Merchant Terms (as applicable), and the Service Terms applicable to the Services ordered. A particular Service listed within an Order Form may be independently terminated without termination of all Services, provided that the termination right is provided for in this Agreement.

2.2. Company Information. Company will provide accurate and complete information on any Order Form or otherwise in connection with the Services, or as requested by NMI. Company is responsible for updating and correcting any information previously submitted if such information changes. If Company is an organization, Company will be responsible for the acts and omissions of its representatives using the Services on its behalf, and Company is solely responsible for any activity that occurs while using the Services. NMI will not be liable for any loss of data or functionality caused directly or indirectly by Company’s users and representatives. NMI may assume that anyone using the Services is Company or Company’s authorized users and representatives. Therefore, Company will immediately notify NMI of any breach of security. Company will be solely liable for any unauthorized access or misuse of the Services and will reimburse and hold NMI harmless from any losses or damages caused by such unauthorized access or misuse. Company is solely responsible for managing, and is prohibited from using other disguised identities when using the Services. Company’s right to use the Services is non-transferrable and may not be sold, combined, transferred by operation of law or otherwise, and/or otherwise shared with any other person. In addition to any other remedies NMI may have, if NMI suspects Company has provided fraudulent or misleading information, or if Company has violated this Agreement or any applicable law or Rule, NMI may suspend or terminate Company’s use of the Services without notice and/or hold Company liable for any and all damages NMI may incur as a result of Company’s conduct.

2.3. NMI Marks. NMI grants to Company, subject to the conditions of Section 6.3, a limited, personal, revocable, non-exclusive, non-transferable, non-sublicensable license to use, reproduce, and display certain NMI Trademarks (which may include the brand names and logos associated with the Services) on Company’s website and marketing materials in connection with Company’s authorized use of the Services. NMI may from time to time modify its list of Trademarks that it permits Company to use in connection with this Agreement.

2.4. Updates. NMI reserves the right to amend or update its policies, procedures, and guidelines and Company will comply with all then-current policies, procedures, and guidelines governing the Services. NMI may, from time to time in its sole discretion, update or modify the specifications, features, functionality, or documentation of any portion of the Services.

3. Fees and Payment Terms

3.1. Fee Schedule. Company will pay the fees for the Services set forth in the applicable Fee Schedules. Except as otherwise expressly provided in this Agreement, NMI reserves the right to amend any Fee Schedule upon 30 days’ notice to Company. NMI may introduce additional Services which are not included in the Fee Schedule. If Company chooses to use the new Services, Company will be charged the then-current rate for those Services. Unless otherwise provided on the applicable Order Form, Fee Schedule or Service Terms, NMI will typically debit Company on the first business day of each month for all amounts owing under the Agreement; however, if fees accrue to more than $50.00 at any time in any given month, NMI may debit Company the full amount due on a more frequent basis at NMI’s discretion.

3.2. Payment Terms. Company authorizes NMI or its designees to initiate Automated Clearing House (“ACH“) debits and, to the extent any amounts are payable from NMI to Company under this Agreement, credits, from and to Company’s depository bank account as designated by Company for all payments and amounts due under this Agreement. Company will maintain such account at a financial institution which accepts ACH transactions and will at all times ensure that sufficient funds are in such account to pay all amounts due to NMI. Company will fill out, execute, and provide to NMI any additional ACH authorization form or other documentation requested by NMI. The foregoing ACH authorization will remain in full force and effect until all amounts owed to NMI have been paid, or until Company withdraws or cancels such ACH authorization by written notice to NMI. Company authorizes NMI to appoint third parties as NMI’s agent to bill Company and collect fees on behalf of NMI.

3.3. Account Changes. Company will give NMI at least 30 days prior written notice of any change in its account and will ensure that the ACH authorization is updated accordingly. Any change in account information may not be effective for up to 30 days following NMI’s receipt of Company’s notice of such change.

3.4. Payment Rejections and Charges. If NMI (or Processor or other third party provider designated by NMI) is unable for any reason to collect any amounts due from Company’s bank account via ACH, Company authorizes NMI to charge Company’s credit card NMI has on file for Company for all such amounts or NMI may submit and the Company agrees to pay an invoice for amounts owed to NMI, including late fees described herein. For each occurrence for which NMI is unable to collect owed amounts for any reason, including but not limited to an ACH transaction rejection for insufficient funds, closed account, or any other negative response, Company will incur a return payment fee in the amount of $25.00 USD or as otherwise set forth on the applicable Fee Schedule. If NMI has not received all amounts on or before the applicable due date, NMI may impose a late fee in an amount set forth on the Fee Schedule and an interest charge of one and one-half percent per month or the highest rate allowable by law (whichever is less) on the full outstanding balance, compounded daily until paid. Furthermore, NMI may, in its sole discretion and without liability of any kind, immediately suspend all Services and/or terminate this Agreement. NMI may, in its sole discretion, reactivate Services upon subsequent payment in full of all owing amounts (including late fees, finance charges, and return payment fees) and/or payment of a reactivation fee in an amount set forth on the Fee Schedule or as otherwise determined by NMI in its sole discretion. NMI reserves the right to set off and deduct amounts owed to NMI from any amounts owed to Company under this Agreement.

3.5. Taxes. All fees set forth on the Fee Schedule are exclusive of taxes, unless otherwise indicated. Company is solely responsible for, and will indemnify and hold NMI harmless from, payment of all applicable taxes and duties (only excluding taxes levied on NMI based on its own net income). Unless otherwise indicated, all fees must be paid in U.S. dollars.

3.6. Disputes. The parties will promptly investigate any billing disputes under this Agreement. Company disputes must be made in good faith and in writing within 30 days of the billing statement date. If written objections are not received by NMI within such 30-day period, all such fees billed will be deemed accepted, and all claims regarding such invoices will be deemed waived. All fees are to be paid by Company in full, without set-off or deduction. Company’s failure to pay invoiced amounts may result in termination of this Agreement and/or the suspension of Services.

4. Compliance

4.1. Compliance with Laws and Rules. Company will comply with, and will ensure that each of its vendors, agents, ISV’s, partners, sub-contractors, Sub-Affiliates (as defined in the Partner Terms), and the like, as applicable, comply with and that all of its and its vendors’, agents’ ISVs’, partners’, sub-contractors’, and Sub-Affiliates’, and the like’s servers, terminals, software, application, systems, and other programs or devices used by Company or its vendors, agents ISVs, partners, sub-contractors, and Sub-Affiliates, and the likes, applicable to this Agreement (collectively, “Company Systems“) comply with, all Laws and Rules. Company will comply with, and will ensure that its vendors, agents, ISVs, partners, sub-contractors, and Sub-Affiliates, and the like, comply with all NMI security protocols, policies, and notices as they may be updated from time to time by NMI.

4.2. Data Security. Company is solely responsible for the security of all data—including Personal Data—residing on, read by, or transmitted using servers owned or operated by Company or its vendors, including Processor, web hosting companies, or other service providers. Company will comply with, and will ensure that Company Systems comply with, all Rules and Laws governing the collection, retention, and use of Personal Data, and Company is fully responsible for its and its customers’ activities that occur under or by use of any Company Systems. Company will not use, disclose, sell, or disseminate any card, cardholder, or transaction data except as permitted or required by a court order, governmental agency request or subpoena, or Law. Company represents and warrants that it has taken all precautions necessary to ensure that all Confidential Information, and all transaction data and Company’s customer’s data—including any and all Personal Data—are protected and that Company’s electronic systems are secure from breach, intrusion, and unauthorized access. NMI will not be liable for any security breach on any systems not owned or controlled by NMI.

4.3. Security Violations. If any Company System is breached or an unauthorized third party has or gains access to any Company System, Company’s credentials, or any Personal Data or transaction data, or if there is a reasonable risk or suspicion of any such breach or unauthorized access, Company will promptly: (a) notify NMI in writing of such occurrence by creating a ticket or sending an email to support@nmi.com; (b) notify any affected parties as required under any applicable laws or industry guidelines; (c) take all actions and precautions necessary to prevent any continuous or additional breach; and (d) commence all remedial efforts and other actions required under the Rules, Laws, or court order.

4.4. Company Credentials. In connection with Company’s use of the Services, Company may be issued a user name and password, or other credentials to enable Company to access Company’s account and use the Services. Company will restrict access to such credentials and the use of the account to Company’s employees and agents as may be reasonably necessary and consistent with the purposes of this Agreement and will ensure that each such employee and agent is aware of and complies with all applicable provisions of this Agreement and any applicable policies or guidelines issued by NMI relating thereto. Company will not access or attempt to access the information or user credentials of any other user or any third party. Company is solely responsible for maintaining all necessary security and control of all user names, passwords, and any other credentials issued in connection with the Services, and Company acknowledges and agrees that NMI will not be liable to Company or any third parties for any fraud, negligent acts, or any unintended use of the Services that may occur as a result of Company’s breach of its security and control obligations for such usernames, passwords, and other credentials. NMI will be entitled to rely on information transmitted to NMI by or on behalf of Company, including information received through the use of Company’s credentials or from an email address associated with Company’s business or account. Company’s use of the Services will be restricted to Company.

4.5. Data Retention. Company is solely responsible for compiling and retaining, in accordance with the Rules and in compliance with Laws, temporary and/or permanent records of all data, including all transaction data and Personal Data, and Company will implement and use proper controls and security procedures to limit access to and use of all such data, as required under the Rules or any applicable law or regulation. Except as otherwise provided in this Agreement, NMI will have no obligation to store, retain, report, or otherwise provide any copies of or access to any records of transactions, Personal Data, or other information collected or transferred by NMI. Upon termination of this Agreement, NMI will have no obligation to provide Company with any transaction data, Personal Data, or any other data. Prior to discarding, deleting, or destroying any data retained by Company, Company will render all such data unreadable as required by the Rules and Laws.

4.6. Company Collection of Personal Data. Company agrees to maintain a compliant privacy policy and will provide notice to its customers (including on Company’s web site, if applicable) that discloses how and why Company’s customers’ Personal Data are collected and used in accordance with applicable law, including the uses governed by this Agreement. Company represents and warrants that it has provided notice to, and obtained consent from, any third party individuals whose Personal Data it supplies to NMI through the Services with regard to: (a) the purposes for which such third party’s Personal Data has been collected; (b) the intended recipients or categories of recipients of the third party’s Personal Data; (c) which parts of the third party’s Personal Data are obligatory and which parts, if any, are voluntary; and (d) how the third party can access and, if necessary, rectify the Personal Data that Company holds about them. Company further agrees to provide such notice and obtain such consent with regard to any third party Personal Data that Company supplies to NMI in the future. NMI is not responsible for any consequences resulting from Company’s failure to provide notice or receive consent from such individuals nor for Company providing outdated, incomplete or inaccurate information.

4.7. Audit. NMI may, during the term of this Agreement and for a period of 12 months thereafter, conduct an audit of Company’s books, records, and operations to verify the accuracy of fees, Company’s proper use of the Services, and compliance with this Agreement and with applicable Laws and Rules. NMI will use reasonable efforts to provide at least five business days’ advance notice of any such audit, and NMI will use reasonable efforts to ensure that the audit does not unreasonably disrupt Company’s business. Company will provide all reasonable cooperation with any such audit and will provide all requested information and records and reasonable access to Company’s premises, computer systems, databases, equipment, and personnel. Each party will bear its own costs in connection with any such audit, except that if an audit reveals a material breach of this Agreement by Company, Company will reimburse NMI for its costs incurred in connection with such audit. If the audit identifies that Company has underpaid any fees due under this Agreement, Company will pay to NMI all such amounts within 15 days.

4.8. Privacy Policy; Data Protection Agreement. Where applicable, NMI shall process Personal Data pursuant to this Agreement as a Controller (as defined in the UK GDPR). Where NMI processes Personal Data as a Controller pursuant to this Agreement, it shall do so in accordance with data protection laws and its privacy policy located here (“Privacy Policy“). NMI, in its sole and absolute discretion, may modify or update its Privacy Policy from time to time. NMI will post such revised Privacy Policy on its website. In addition, to the extent required under the data protection laws of certain jurisdictions, the Data Processing Addendum accessible at Data Processing Addendum will apply to any processing of Personal Data which is disclosed or processed on the Company’s behalf in connection with the Services.

4.9. Country-Specific Terms. The below addenda will supplement the terms of this Agreement in the indicated countries or jurisdictions only. In the United Kingdom, the U.K. Country Addendum will apply to Services offered by Network Merchants, Limited (as the relevant NMI Affiliate), and the terms of the U.K. Country Addendum will prevail over these General Terms and Conditions where there is a case of conflicting terms.

5. Confidentiality

5.1. “Confidential Information” means any information, whether written or oral and in any form or medium, that either party (“Disclosing Party“) discloses to the other party (“Receiving Party“) that is either designated as proprietary or confidential or that, by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary or confidential. Confidential Information includes, without limitation: data, trade secrets, know-how, samples, equipment, facilities, research (whether past, present, or future), products, product plans, services, documentation, customers, customer lists, user data, revenue, markets, software, intellectual property, inventions, processes, formulas, technology, source code, object code, designs, drawings, engineering, hardware configuration, marketing, marketing materials, financial data, or other business information. The terms and conditions of this Agreement (including its financial terms) will be considered Confidential Information of NMI. However, Confidential Information does not include any information that: (a) the Receiving Party can document it had in its possession prior to disclosure by the Disclosing Party; (b) was in or entered the public domain through no fault of the Receiving Party; (c) is disclosed to the Receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality; or (d) is independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party. In addition, the Receiving Party will not be prohibited under this Agreement from making any disclosure required by valid law or court order, provided that before making any such required disclosure the Receiving Party will provide adequate advance written notice to the Disclosing Party, to the extent legally permissible, and will cooperate with the Disclosing Party in any efforts to obtain a protective order or similar mechanism to contest or limit such disclosure.

5.2. Use and Return of Confidential Information. The Receiving Party may not make any use whatsoever at any time of the Disclosing Party’s Confidential Information except as necessary to perform its obligations or exercise its rights under this Agreement, nor divulge the Disclosing Party’s Confidential Information to third parties except as permitted under this Agreement or with the express prior written consent of the Disclosing Party. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use with the same degree of care that it uses to protect its own non-public and confidential information, but in no event less than a reasonable amount of care. The Receiving Party may only disclose the Disclosing Party’s Confidential Information to employees or contractors on a “need to know” basis who are bound by confidentiality obligations at least as protective as this Agreement. Immediately upon request of the Disclosing Party, and in any case upon termination or expiration of this Agreement for any reason, the Receiving Party will promptly return—or, at the Disclosing Party’s option, destroy—all materials, in any medium, that contain, embody, reflect, reference, or are derived from any Confidential Information of the Disclosing Party or any portion thereof. Notwithstanding the foregoing, the Receiving Party will be permitted to retain a copy of the Disclosing Party’s Confidential Information if and solely to the extent required under applicable law or by the Rules. In such case, the Receiving Party will retain its confidentiality obligations in accordance with this Section 5 with respect to such Confidential Information. NMI will be permitted to retain any information or data it collects or receives in connection with this Agreement (including Confidential Information and Personal Data) as required or requested (or anticipated to be required or requested) by any of the parties with whom NMI may share information under this Agreement. Additionally, NMI may retain archival copies of all Confidential Information stored in accordance with NMI’s backup policies.

5.3. Remedies. Each party acknowledges that any breach of this Section 5 would result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore the other party will be entitled to seek injunctive relief to enforce the provisions of this Section 5 without the need to prove harm.

6. Intellectual Property

6.1. Ownership. As between Company and NMI, NMI (or its licensors and suppliers) owns and retains all right, title, and interest in and to the Services and related technology, and all intellectual property rights associated therewith. No title to or ownership of any of the foregoing is granted or otherwise transferred to Company or any other entity or person under this Agreement. All rights granted hereunder are licensed, not sold, even if for convenience terms such as “purchase” or “sale” are used. Company will not reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code or trade secrets for any of Services or related technology, nor will Company use such Confidential Information to build any product or service that competes with the Services. Company agrees to promptly report to NMI any unauthorized use or infringement of the Services or any NMI intellectual property which comes to Company’s attention.

6.2. Restrictions. Company will not, and will not enable or permit any other person to: (a) use the Services in any manner other than as expressly permitted under this Agreement; (b) do anything to contest or impair the Services or NMI’s rights therein; (c) modify, copy, sell, lease, loan, sub-license, distribute, timeshare, transfer, create derivative works of (expect as expressly provided in this Agreement), disassemble, de-compile, or reverse engineer the Services; (d) attempt to extract the source code or source listings or any algorithm, data, process, procedure, or any other portion of the Services, or access any part of the Services in order to build a competing product or service; (e) remove, alter, distort, cover, or otherwise modify any legal notices, including any notice of proprietary rights, appearing on or included in any materials furnished or otherwise made available by NMI. Company will immediately notify NMI if it becomes aware of any unauthorized use of the Services; (f) circumvent any of the technical limitations of the software development kit (SDK), or decompile or otherwise reconstruct the Services; (g) use the Services in a way that could damage, disable, overburden, impair or compromise the Services; (h) collect or harvest any information or data from the Services or attempt to decipher any transmissions to or from the Services; (i) use the Services to provide services to third parties or allow third parties to use the Services. The parties agree that all improvements, enhancements, modifications, or derivative works made from the Services by any party will be the exclusive property of NMI, even if suggested, designed, or submitted to NMI by Company. Company may not modify the Services in any way without NMI’s prior written consent. Company will immediately notify NMI if Company becomes aware of any unauthorized use or copying of the Services or any portion thereof.

6.3. Trademarks. Company will comply with all then-current policies, standards, and guidelines governing the use of NMI’s Trademarks, which are all subject to modification by NMI from time to time. Any use of NMI’s Trademarks must include a statement of ownership and attribution as directed by NMI. Each party acknowledges and agrees that the Trademarks identified by the other party as its own or its licensors belong to such party or its licensors, and neither party will obtain any right, title, or interest in or to the other party’s Trademark under this Agreement. All Trademark usage will inure to the benefit of the party owning such Trademark, and each party agrees to assign any right, title, and interest (other than the licenses granted under this Agreement) that it may obtain in the other party’s Trademark to such other party. Except as otherwise provided in this Agreement, Company will not use, register, or attempt to register any of NMI’s Trademarks, or any other marks or domain names that are confusingly similar thereto or that may dilute any of NMI’s Trademarks, nor will Company create any combination mark which consists of or incorporates one or more of NMI’s Trademarks. Except as expressly authorized in this Agreement, Company will not take any actions inconsistent with NMI’s or its licensors’ ownership of their respective Trademarks and any associated registrations, or attack the validity thereof. Company will not sublicense or transfer the right to use NMI’s Trademarks to any third party without NMI’s express prior written consent, which may be granted or withheld in NMI’s sole discretion. Company will not use (nor assist or permit any third party to use) NMI’s Trademarks in any manner that would indicate Company is using such NMI Trademarks other than as a licensee, or in any degrading, insulting, obscene, unlawful, or otherwise inappropriate manner. NMI reserves the right to revoke Company’s license to its Trademarks at any time, in its sole discretion, and upon receipt of notice of such revocation, Company agrees to immediately cease all use of NMI’s Trademarks.

6.4. Third Party Services. The Services may operate in conjunction with or be provided through software, hardware, or services provided by third parties (collectively, “Third Party Services“). Such Third Party Services may be subject to additional terms and conditions established by the applicable third party providers. Without limiting the foregoing, the privacy policies of such third parties may dictate how they may use information they receive from or about Company (which in some instances could include Personal Data). NMI will have no obligation with regard to, and makes no representation or warranty related to, Third Party Services or any third party terms, conditions, or agreements. Company will look solely to the providers of such Third Party Services with regard to warranty, maintenance, or other support. If the Third Party Services involve the processing of Company’s Personal Data, NMI will ensure that compliance to data protection Laws are adhered to, in line with NMI’s Data Processing Addendum.

6.5. Feedback. Company may from time to time provide suggestions, ideas, comments for enhancements or functionality or other feedback to NMI with respect to the Services. NMI will have the full, unencumbered right to copy, distribute, transmit, display, perform, create derivative works of, use, and otherwise fully exploit such feedback in connection with its products and services, with no obligations of any kind to Company, whether respect to compensation, confidentiality, or otherwise.

7. Representations and Warranties; Limitations on Liability

7.1. Mutual Representations and Warranties. Each party represents and warrants to the other that: (a) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms; (b) its obligations under this Agreement do not violate any law or breach any other agreement to which it is bound; (c) it has all necessary right, power, and ability to execute this Agreement and to perform its obligations therein; and (d) no authorization or approval from any third party is required in connection with the execution, delivery or performance of this Agreement.

7.2. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7 OR IN THE APPLICABLE SCHEDULE, SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. NMI DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR FREE. NMI SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE WITH RESPECT TO THE SERVICES AND ALL OTHER SERVICES OR GOODS PROVIDED UNDER THIS AGREEMENT. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, NMI MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY SOFTWARE OR SERVICES, INCLUDING THOSE PORTIONS OF THE SERVICES CREATED, PROVIDED, OR OWNED BY ANY THIRD PARTY SERVICE PROVIDERS OR PAYMENT NETWORKS. COMPANY MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY REGARDING THE SERVICES BY ANY THIRD PARTY IN CONTRAVENTION OF THE FOREGOING, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS BY THIRD PARTIES.

7.3. LIMITATIONS OF LIABILITY. UNDER NO CIRCUMSTANCES WILL NMI OR ANY AFFILIATED ENTITIES, OR ANY OF ITS OR THEIR THIRD PARTY SERVICE PROVIDERS OR PLATFORMS, VENDORS, SUPPLIERS, OR ANY OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS OF ANY OF THE FOREGOING BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, HOWEVER OR WHENEVER ARISING, INCLUDING DAMAGES FOR LOST REVENUE, LOST PROFITS, LOST BUSINESS, INJURY TO BUSINESS REPUTATION, OR COST OF SUBSTITUTE SERVICES ARISING OUT OF OR RELATED TO THE SERVICES, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NMI’S TOTAL AND AGGREGATE LIABILITY UNDER THIS AGREEMENT TO COMPANY OR ANY THIRD PARTY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, WILL NOT EXCEED THE AGGREGATE COMPENSATION THAT IS PAYABLE OR PAID TO NMI FOR PROVIDING THE SERVICES DURING THE THREE (3)-MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AT ISSUE AROSE, OR $1,500.00 USD, WHICHEVER IS LESS.

8. Indemnification

8.1. By Company. Company will defend, indemnify, and hold NMI and its officers, directors, agents, and employees, harmless from and against any and all claims, actions, proceedings, investigations and suits and all related internal costs, liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys’ fees and other litigation expenses) incurred by the above parties, arising out of or relating to: (a) Company’s breach or alleged breach of any representation, warranty, or obligation set forth in this Agreement; (b) negligence, fraud, dishonesty, or willful misconduct by Company or any of Company’s employees, agents or customers; (c) any alleged or actual violation by Company or its employees and agents of any Rules or Laws; (d) Company’s misuse or unauthorized use of the Services or any related software, hardware, equipment, or systems, including improper integration, configuration, or interfacing of Company’s or any third party’s system, software, or service with the Services; (e) any fees, fines, or assessments resulting from Company’s actions or omissions or Company’s use or misuse of the Services; (f) any data breach or any unauthorized access, use, or disclosure of Confidential Information of NMI, Personal Data, card information, or Merchant credentials from systems and networks controlled by Company or its Affiliates or service providers; or (g) any alleged infringement of a patent, copyright, trademark or other intellectual property right by Company or arising from any data or other materials or technology supplied by Company or from Company’s use of the Services in unauthorized manner. If Company or its employees or agents, directly or indirectly, cause fees, fines, or assessments to be charged to NMI by the Payment Networks, Third Party Service Providers, or any other entity, Company will immediately reimburse NMI for all such fines and penalties. All such obligations and amounts incurred will be deemed direct, not indirect or consequential, damages, and will be collectible notwithstanding any provision in this Agreement to the contrary.

9. Term and Termination

9.1. Term. This Agreement and any applicable Order Form will be effective against Company on the earlier of the date that Company signed the Order Form, clicked an “Accept” or similar button, checked a box captioned with acceptance language, or used any Services, and is effective against NMI on the date NMI accepts and countersigns such Order Form, and the Agreement shall continue until terminated by the parties in accordance with the terms of this Agreement.

9.2. Termination. Unless a term is otherwise specified in an Order Form, either party may terminate this Agreement, any individual Order Form, or Service within an Order Form for any reason or no reason with 30 days’ prior written notice. NMI may terminate this Agreement or any Order Form (or any or all Services thereunder) with or without prior notice if: (a) Company breaches any obligation of this Agreement, or any representation or warranty of Company is or becomes untrue in any respect; (b) changes in Laws or Rules renders it impossible or commercially unreasonable, in NMI’s opinion, for NMI to continue to provide the Services; (c) Company engages in conduct that NMI, in its sole discretion, determines to present a legal, financial or reputational risk; (d) Company fails to pay any amounts owed to NMI when due; (e) Company fails to maintain a current and valid ACH authorization authorizing NMI or its designees to credit or debit Company’s bank account as provided in this Agreement; (f) Company files for bankruptcy, receivership, dissolution, liquidation or a similar proceeding, has such a proceeding instituted against it, makes an assignment for the benefit of creditors, or a trustee, conservator, or receiver is appointed for; or (g) NMI stops providing the Services generally.

9.3. Effect of Termination; Survival. Upon termination of this Agreement for any reason whatsoever, all rights and interests under this Agreement will be extinguished and Company will immediately cease all use of the Services, NMI’s Trademarks, and all other intellectual property of NMI. Company will return or destroy such Confidential Information as required under Section 5. Termination of this Agreement will automatically terminate all Order Forms, Service Terms, and Services hereunder. Termination of an Order Form will terminate all Service Terms and Services thereunder. However, termination of any individual Order Form will not affect the validity of this Agreement as a whole or any other Order Form. Notwithstanding any other provision of this Agreement, all of Company’s payment obligations accrued or owed under this Agreement will survive termination or expiration of this Agreement for any reason. Sections 3–8, this Section 9.3, and Section 10 of these General Terms and Conditions will survive termination of this Agreement, as well as the data protection provisions in the Data Processing Addendum to the extent NMI continues to process personal data.

10. General

10.1. Entire Agreement. This Agreement, including General Terms and Conditions, the Partner Terms or Merchant Terms (as applicable), Service Terms, Order Form(s), all of NMI’s policies and procedures referenced in this Agreement, and other exhibits, attachments, and documents referenced in any of the foregoing (all of which are incorporated into this Agreement by reference), sets forth the entire understanding and agreement of the parties, and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the parties as to the subject matter of this Agreement. Company acknowledges that this Agreement reflects an informed, voluntary allocation between NMI and Company of all risks (both known and unknown) associated with Services. All terms of use and privacy policies made available on NMI’s website, as modified from time to time in NMI’s sole discretion, will apply to Company’s use of the Services, as applicable, provided that in the event of any conflict between this Agreement and such website terms, this Agreement will control.

10.2. Governing Law; Jury and Class Action Waiver. The Agreement will be governed by, construed and enforced in accordance with the laws of the State of Delaware without reference to conflict of laws principles. The parties agree that any controversy and all matters of dispute arising under this Agreement or relating to the subject matter thereof will be resolved exclusively in the state or federal courts located in Delaware. Such state and federal courts will have exclusive jurisdiction over any dispute concerning this Agreement, and the parties hereby submit to the personal jurisdiction of such courts. NMI AND COMPANY HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY MATTER UNDER, RELATED TO, OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTIONS OR RELATIONSHIPS CONTEMPLATED UNDER THIS AGREEMENT. ALL PARTIES TO ANY ACTION BROUGHT IN CONNECTION WITH THIS AGREEMENT MUST BE INDIVIDUALLY NAMED. THERE WILL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE LITIGATED ON A CLASS ACTION, JOINT, OR CONSOLIDATED BASIS OR ON A BASIS INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER CLIENTS, OR PERSONS. NO COURT PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED PROCEEDINGS.

10.3. Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive of any other rights or remedies that may be available to the parties at law or in equity. Payment of late fees and finance charges will not excuse or cure any breach or default for late payment. Company agrees to pay all costs and expenses of whatever nature, including attorneys’ fees and litigation costs, incurred by or on behalf of NMI in connection with the collection of any unpaid charges and fees.

10.4. Relationship of the Parties; Non-Exclusivity. The parties are independent contractors and nothing in this Agreement will make them joint venturers, partners, employees, agents, or other representatives of the other party. Neither party will make any representation that suggests otherwise. This Agreement is non-exclusive, and nothing in this Agreement will be deemed or construed to prohibit either party from participating in similar business arrangements with any third party as those described herein.

10.5. Notices. Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such address or, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial carrier, on the date and at the time that the carrier’s delivery receipt is signed, or if sent by electronic communication channels (through website or portal) or email, on the next Business Day after transmission. This clause shall not apply to the service of any proceedings or other documents in any legal action.

10.6. Assignment. Company may not assign this Agreement or any of Company’s rights or delegate the performance of any of Company’s obligations under this Agreement without the prior written consent of NMI, including by operation of law or in connection with a merger, sale of assets, or change of control. NMI may assign any of its rights or delegate the performance of any of its obligations under this Agreement and may assign the Processing Agreement to NMI or to that third party designated by NMI, all in its sole discretion, without consent from or prior notice to Company. Any attempted assignment or transfer of any rights or obligations in violation of the foregoing will be null and void. Subject to the foregoing, this Agreement will inure to each party’s respective permitted successors and assigns.

10.7. No Third-Party Beneficiaries. Except as expressly provided in this Agreement, there are no third-party beneficiaries under this Agreement. The rights granted to Company under this Agreement are granted to Company only, and will not be considered granted to any subsidiary or holding company of Company.

10.8. Construction. The names of the parts of this Agreement and all headings are for convenience only and will be ignored when construing this Agreement. Words referring to “persons” shall include natural persons, organizations, incorporated entities, unincorporated associations, partnerships, and the like, unless otherwise indicated. Words importing the singular shall include the plural and vice versa. The phrases “including,” “for example,” “in particular,” and words of similar effect will not be deemed to limit the general effect of the words which precede or follow them. References to any agreement (including this Agreement), statute, regulation, rule, document, or deed will be construed as a reference to it as amended or novated from time to time in accordance with its terms. This Agreement will be interpreted in accordance with its terms and without any strict construction in favor of or against either party.

10.9. Amendments. Except for changes in accordance with Sections 2.4 and 4.8, no amendment, modification, or change to any provision of this Agreement, nor consent to any departure by either party therefrom, will in any event be effective unless the same will be in writing and signed by the other party, and then such consent will be effective only in the specific instance and for the specific purpose for which given. Notwithstanding the foregoing, NMI may amend this Agreement or any Schedules under this Agreement which amendment shall become automatically effective thirty (30) days after the posted date. NMI also reserves the right to amend, modify or change its policies, procedures, and guidelines and Company will comply with all then-current policies, procedures, and guidelines governing the Services. If Company does not agree to any such amendments, Company’s sole remedy is to immediately terminate this Agreement with written notice to NMI. Accordingly, Company’s continued use of the Services after notice to Company of any amendments or changes will constitute consent to such amendments or changes.

10.10. Waiver. The failure of any party to insist on or enforce strict performance of any provision of this Agreement or to exercise any right or remedy under this Agreement or applicable law will not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such provision, right, or remedy in that or any other instance. Waiver by either party of a breach of any provision contained herein must be in writing, and no such waiver will be construed as a waiver of any other and/or succeeding breach of such provision or a waiver of the provision itself.

10.11. Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision.

10.12. Force Majeure. Neither party will be liable for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any acts of God, endemic or pandemic, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, or network provider services, or other catastrophes or any other occurrences which are beyond such parties’ reasonable control, provided that the party delayed will provide the other party notice of any such delay or interruption as soon as reasonably practicable, and will use commercially reasonable efforts to minimize any delays or interruptions resulting therefrom. This section will not apply to or excuse any failure to pay any monetary sum due under this Agreement.

United Kingdom Country Addendum

This United Kingdom Addendum (“U.K. Addendum“) supplements the Agreement and applies solely to Services offered by Network Merchants, Limited (as the relevant NMI Affiliate), regardless of the location of Company and regardless of where Services are performed. Capitalized terms used in this U.K. Addendum, and not otherwise defined, shall have the meanings set forth in the General Terms and Conditions or elsewhere in the Agreement. By using a Service provided by Network Merchants, Limited, Company acknowledges receipt of, and agrees to be bound by, the Agreement and this U.K. Addendum, each as may be amended or supplemented from time to time.

1. Anti-Bribery and Corruption. Either party shall comply with the UK Bribery Act 2010 (“Bribery Act“). Either party shall ensure that its employees, personnel, sub-contractors and all other persons associated with it does not, by any act or omission, place the other party in breach of the Bribery Act or any other applicable anti-bribery laws and shall ensure that it has adequate procedures in place to prevent any breach of Bribery Act or any other applicable anti-bribery laws. Both parties shall immediately notify the other party if it becomes aware of any breach of suspected breach of this section. Any breach of this section shall be deemed a material breach of this Agreement that is not remediable and shall entitle either party to immediately terminate this Agreement for cause. For the purposes of this section, the terms “adequate procedures” and “associated with” shall be construed in accordance with the Bribery Act 2010.

2. Anti-Slavery. Either party warrants, undertakes and represents that neither party nor any of its officers, employees, agents or subcontractors has: (i) committed an offence under the Modern Slavery Act 2015 (“Modern Slavery Act“); (ii) been notified that it is subject to an investigation relating to an alleged offence or prosecution under the Modern Slavery Act; or (iii) become aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged offence or prosecution under the Modern Slavery Act. Either party shall comply with the Modern Slavery Act and NMI’s modern slavery policy as notified by NMI to Company from time to time. Either party shall notify the other party immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or sub-contractors have breached or potentially breached any of the obligations in this section. Any breach by either party of this section shall be deemed a material breach of this Agreement and shall entitle the other party to immediately terminate this Agreement for cause.

3. Third Party Rights. A person who is not a party to the Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.

4. Governing Law. The Services provided by Network Merchant, Limited and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales. The courts of England and Wales shall have exclusive jurisdiction to settle any dispute.

5. Data Protection. All applicable data protection and privacy legislation in force from time to time in the United Kingdom, including and without limitation to, the UK GDPR; the Data Protection Act 2018 (and the regulations made thereunder) (“DPA 2018”); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and all other legislations and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including and without limitation, the privacy of electronic communications).

6. UK GDPR. Has the meaning given to it in Section 3(10) (as supplemented by section 205(4)) of the DPA 2018

7. VAT and Taxation. The parties shall comply with all applicable UK Value Added Tax (VAT) and taxation laws and regulations.

Gateway Services — Extensions Terms

In the event Company enrolls in any Extensions, such Extensions will be subject to additional Services Terms applicable to such Extensions, including the terms and conditions as set forth below or those provided to Company during enrollment, in each case as may be updated or supplanted by NMI from time to time in its sole discretion. The Service Terms and other terms and conditions applicable to a selected Extension are incorporated into the Agreement.

1. If Company is a Reseller, then it may select the Extensions to be offered to its Merchants or enroll its Merchants in such Extensions. Company will be responsible for its Merchant’s use of the Extensions, in accordance with the applicable Service Terms.

2. Extensions will be subject to additional fees, as set forth in an updated Fee Schedule.

3. Company represents, warrants, and covenants that its (and if Company is a Reseller, its Merchants’) use of the Extensions and any information submitted in connection with the Extensions: (i) will be fully compliant with all applicable Laws and Rules; (ii) will be in accordance with all documentation and specifications applicable to such Extensions; and (iii) will not be used for any purpose other than as authorized. In addition, Company agrees that (a) Company will be solely responsible for all transactions processed through Company’s account (including by its Merchants, if Company is a Reseller), regardless of whether such transactions are monitored by an Extension; (b) Company will be solely responsible for its (and its Merchants’, if applicable) use of the Extensions including, without limitation, configuring, maintaining and updating any applicable settings; (c) to the extent an Extension relates to transaction processing, Company is solely responsible for determining the appropriate action for each such transaction (i.e., approve, void, decline, reject), regardless of any data, analysis, or information generated or not generated by the Extensions, as applicable; and (d) under certain circumstances, it may be necessary for NMI or its Third Party Service Providers to adjust Company’s (or any Merchant’s) Extension security settings, with or without notice, to guard against fraudulent activity, and Company acknowledges that such actions may inadvertently cause legitimate transactions to expire, be rejected or delayed, and that NMI will have no liability for the foregoing.

4. Company understands and agrees that Extensions may be provided by Third Party Service Providers. Without limiting any other disclaimer or limitation of liability contained in the Agreement, Company expressly agrees that NMI will have no liability under any theory of law, including negligence, for any loss associated with any Extension, and NMI disclaims all representations and warranties (express, implied, or statutory) regarding any Extension.

5. If the Agreement is terminated for any reason, any right or license to any Extensions, and any applicable Service Terms, will automatically terminate.

The following list may be updated by NMI at any time. Additional terms and conditions may apply to certain Extensions, and such additional terms and conditions will supplement and be incorporated into the Agreement.

Fraud Prevention
Customer Vault
Automatic Card Updater
Payer Authentication
Card Present Device
iProcess Mobile Payments
Electronic Checks
Electronic Invoicing
QuickBooks® Plug-In
Level III Advantage
CertifyPCI
DataDecryption /Encrypted Devices
Invoicing
Kount® Advanced Fraud Prevention
Account Updater
Authvia TXT2Pay
Mastercard tap 2 mobile
Shopify®
Network Tokenization

Extension— Kount Advanced Fraud Prevention Terms

Definitions

1.1. Definitions. Capitalized terms used but not defined in these Extension Kount Advanced Fraud Prevention Terms (“Extension Kount Terms“) will have the meanings given to them in the General Terms and Conditions, the Partner Terms or Merchant Terms (as applicable), or elsewhere in the Agreement. In addition, the following definitions will apply to these Extension Kount Terms only.

“Merchant Communications” means the data exchanged among Company, Merchant (if applicable), NMI, and NMI’s Third Party Service Provider in connection with the provision of the Kount Services, which may include Personal Data.

“Kount Services” means the Kount Central fraud detection service.

“Merchant Order Form” means any webpage where Company (or Merchant) enters information for the purpose of: (a) initiating a payment; (b) submitting an application; (c) opening a new account; (d) accessing an existing account; or (e) initiating any action for which Company may request a risk control opinion.

“RIS Update” means updated transaction information transmitted by Company (or Merchant) for the Kount Services , which may include any data elements that are provided to NMI.

“Risk Inquiry” means any transaction initiated by NMI in which the Risk Inquiry System is queried, including, but not limited to, for the purposes of obtaining an authorization code or risk control opinion.

“Risk Inquiry System” means the primary Kount technical interface through which NMI initiates Risk Inquiries and RIS Updates on behalf of Company (and Merchants, if applicable), and through which Kount delivers an authorization code or risk control opinion as part of the Kount Services.

2. Services

2.1. NMI, along with its Third Party Service Provider, will provide the Kount Services, which allow Company to monitor the risk status of previously authorized transactions, in accordance with the Kount Technical Specification Guide provided for or associated with the Kount Services, as may be updated from time to time (“Kount Technical Specification Guide“).

3. Company Responsibilities

3.1. Company will initiate a real-time Risk Inquiry to NMI, who will use Kount’s Risk Inquiry System, as described in the Kount Technical Specifications Guide, for each Order Form for which a risk opinion is requested. If Company is a Reseller, then Company will initiate such Risk Inquiries on behalf of its Merchants.

3.2. If Company is a Reseller, or if Company is a Merchant receiving the Kount Services through a Reseller, then both the Reseller and the Merchant agree that the Reseller (and not NMI or another Third Party Service Provider) will provide the Merchant with first line Merchant-facing customer support with respect to the Kount Services.

4. Company and Merchant Consent

4.1. The Kount Services requires access to the contents of Merchant Communications. Company expressly consents and grants NMI permission to access any Merchant Communication to the extent necessary to process a Risk Inquiry and return a response or report regarding Company or a Merchant (an “Indication“). If Company is a Merchant, then Company consents and grants NMI permission to provide the Indication to its Reseller.

4.2. Company shall obtain any and all consents necessary disclosures for NMI and its Third Party Service Provider to access the pertinent Merchant Communication to which Company (and its Merchants, if applicable) are a party. If Company is a Reseller, Company shall be solely liable for the legal adequacy of and the means used to obtain each Merchant consent.

5. No Guarantee of Kount Services

5.1. Company acknowledges and agrees that Kount Services do not constitute a guarantee, warranty or representation that a particular transaction is: (a) entered into by the actual authorized account holder; or (b) enforceable against the actual authorized account holder. Neither NMI nor its Third Party Service Provider will have any liability to Company (or any Merchant, if applicable) for any reversals, refunds, fraud losses or chargebacks related to the Kount Services.

6. Indications

6.1. Company acknowledges and agrees that Indications: (a) do not constitute consumer reports as defined within the Fair Credit Reporting Act (“FCRA”) or credit references; (b) are only to be used in relation to determining the likelihood of a customer’s identity and not in any determination of a customer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living; (c) represent a combination of factors that refer to a customer’s possible identity and not a representation that a particular transaction is (i) entered into by the actual authorized account holder; or (ii) enforceable against the actual authorized account holder.

Extension – Account Updater Terms

1. Definitions

1.1. Definitions. Capitalized terms used but not defined in these Extension Account Updater Terms (“Extension Account Updater Terms“) will have the meanings given to them in the General Terms and Conditions, the Partner Terms or Merchant Terms (as applicable), or elsewhere in the Agreement. In addition, the following definitions will apply to these Extension Account Updater Terms only.

“Account Updater Services” or “AUS” means the updating services provided pursuant to these Extension Account Updater Terms to be provided through NMI’s third party’s relationship with the Payment Networks.

2. Scope of Services

2.1. NMI, along with its Third Party Service Provider, will provide Account Updater Services by which Company (and if Company is a Reseller, its Merchants) may submit to NMI a file of current limited and permitted cardholder information so that such cardholder information may be transmitted by NMI to the Payment Networks to allow such cardholder information to be matched and verified against information currently on file with the Payment Networks. Company shall, at its sole expense, provide all inquiry files to NMI in a format designated by NMI and in accordance with NMI’s standards and timeframes, and Company will cooperate with NMI in connection with any Payment Network third party registration requirements related to the AUS.

3. Representations and Warranties, and Disclaimers

3.1. Company represents and warrants that its (and if Company is a Reseller, its Merchants’) use the AUS solely for the purpose of updating applicable cardholder information in order to complete future pre-authorized applicable transactions in accordance with the Rules and Laws, and shall not use AUS data for any other purpose

3.2. If Company is a Reseller, Company shall enter into a Merchant Agreement with each Merchant that authorizes the Merchant to use AUS and obligates the Merchant to comply with the merchant requirements of these Extension Account Updater Terms, including the Agreement.

3.3. Company hereby assumes all risk associated with its (and if Company is a Reseller, its Merchants’) use of the AUS, and neither NMI nor its third parties shall have any liability whatsoever to NMI for any liability associated with the AUS or these Extension Account Updater Terms and the Agreement, including but not limited to the accuracy or completeness of the information provided via the AUS.

3.4. Neither NMI nor its Third Party Service Provider make any guarantee for any rate or number of matched transactions or verified transactions.

3.5. Company understands and agrees that only merchants who are located in the United States and who do not have excessive chargebacks (as determined in NMI’s sole discretion) may participate in and receive the Account Updater Services. NMI reserves the right to decline or terminate Company’s (or any Merchant’s, as applicable) participation in and use of the Account Updater Services for excessive chargebacks or for any other reason, in NMI’s sole discretion.

Extension — TXT2Pay Terms

1. Definitions

1.1. Definitions. Capitalized terms used but not defined in these Extension TXT2Pay Terms (“Extension TXT2Pay Terms“) will have the meanings given to them in the General Terms and Conditions, the Partner Terms or Merchant Terms (as applicable), or elsewhere in the Agreement. In addition, the following definitions will apply to these Extension TXT2Pay Terms only.

“Company Data” means all data provided to NMI by Company, including Merchant Data.

“End User” means Company’s (or, if applicable, a Merchant’s) end-user customers who (a) may use the Services to make electronic payments to Company or its Merchants (as applicable), and (b) are identifiable by a unique identifiable number, such as a mobile phone number.

“Merchant Data” means all data, information and other content of any type and in any format, medium or form, including Personal Information, that is (i) uploaded, submitted, posted, transferred, transmitted, or otherwise provided or made available, by or on behalf of Company, a Merchant (if applicable) or its End Users to NMI and its Third Party Provider through their use of the Services, or (ii) collected, downloaded, or otherwise received by NMI and its Third Party Provider from Company, a Merchant (if applicable) or its End Users pursuant to their use of the Services. Merchant Data may include, but is not limited to, name, email address, phone number, financial account information, transaction value and volume, and invoice data.

2. Services Offered:

2.1. Authvia APIs (Application Programing Interfaces): Services include the following primary functions documented at https://developer.authvia.com:

(a) Messaging And Conversations – used to create and deliver message-based conversations of an advisory or transactional nature. Conversations shall fall into one of the following categories:

Payment Conversations
Approval Conversations
Welcome Conversations
Card Capture Conversations
Additional Conversation types as available in the portal listed above

(b) Platform And Application Management – used to manage Company’s account and sub-accounts (and if Company is a Reseller, those of its Merchants). This includes boarding, account configuration, authentication and sending and receiving API requests.

(c) Data And Analytics – offers the capability of collecting and reporting certain transactional and conversation data through APIs, documented in the portal listed above.

(d) Hosted Payment Page – allows Company (or its Merchants, if applicable) to manage and customize a hosted payment page which allows End Users to complete secure credit card, debit card and ACH transactions on a website or mobile application environment.

2.2. Authvia TXT2PAY

(a) TXT2PAY – mobile optimized HTML application that allows businesses or organizations to send text-based payment requests to their customers, receive payments, and report results. Each user or agent of TXT2PAY requires a license, internally defined as an agent account. Agents can be grouped together inside of a company or organization.

3. Company Responsibilities

3.1. Company hereby acknowledges and agrees that it shall (i) provide or obtain all consents that may be required in order for NMI and its Third Party Service Provider to provide the Service hereunder (including consents from Company’s Merchants, if Company is a Reseller); (ii) be solely responsible for all Company Data that Company provides to NMI and the means by which Company acquired such data, and ensure it has all rights to make available, transfer and provide any Merchant Data to NMI and its Third Party Provider for the purposes hereunder, including under applicable data privacy and data security laws; (iii) to the extent applicable, employ physical administrative and technical controls, screening and security procedures and other safeguards designed to maintain and protect any Merchant Data that is processed via the Services from unauthorized access or use; (iv) promptly document and report any known issues with the Service and any known misuse of the Service; (v) cooperate with NMI where reasonably required in order to facilitate the provision of the Services.

3.2. Company may use the Services provided under Extension TXT2Pay Terms only for Company’s own internal business purposes (which would include any provisioning to its End Users). Company shall not be permitted to resell or otherwise market or make commercially available the Services to any other third party.

3.3. If Company is a Reseller, Company must enter into a Merchant Agreement with each Merchant for the Services hereunder and Company agrees that the Merchant Agreement will be at least as restrictive as those hereunder. Company will ensure that its Merchant Agreements require Merchants only use the Services for Merchant’s own internal business purposes (which would include any provisioning to its End Users) and state that Merchants shall not be permitted to resell or otherwise market or make commercially available the Services to any other third party.

3.4. If Company is a Reseller, or if Company is receiving the Services through a Reseller, then both the Reseller and the Merchant agree that the Reseller (and not NMI or another Third Party Service Provider) shall provide first level support to the Merchant for the Services hereunder.

Extension — T2M Terms

1. Definitions; Interpretation

1.1. Definitions. Capitalized terms used but not defined in these Extension T2M Terms (“Extension T2M Terms“) will have the meanings given to them in the General Terms and Conditions, the Partner Terms or Merchant Terms (as applicable), or elsewhere in the Agreement. In addition, the following definitions will apply to these Extension T2M Terms only.

“Third Party Technology” means the products, services or software provided to Payment Networks by Third Party Technology Providers in connection with the provision of the T2M Solution.

“Third Party Technology Providers” means any third-party technology company that any Payment Network may independently contract with to provide services for the purpose of enabling and providing the T2M Solution.

2. Scope of Services

2.1. NMI, in connection with various Payment Networks, will provide a contactless tap to mobile payment solution and associated services (“T2M Solution“) to Company (and its Merchants, if applicable). Company acknowledges and agrees that NMI is reliant on the Payment Networks, Third Party Technology and Third Party Technology Providers to provide this T2M Solution.

2.2. NMI will provide, in combination with the Payment Networks, the T2M Solution to Company (and its Merchants, if applicable).

2.3. If Company is a Reseller, Company shall refer its Merchants to NMI for the T2M Solution, and Company will be responsible for training its Merchants. Upon reasonable written request, NMI will provide training to Company to enable it to resell the T2M Solution to Merchants. The scope of the training provided shall be at NMI’s sole discretion (acting reasonably and in good faith). Company will assist potential Merchants in completing all documentation required to receive the T2M Solution, including (where applicable) providing reasonable training to Merchants on the use of the T2M Solution. For the avoidance of doubt, NMI shall not be required to provide additional training to Merchants.

3. Third Party Technology

3.1. Company acknowledges the T2M Solution is designed for use with certain third party programs, including, without limitation, certain Internet browser software programs. Company will look solely to the developers and manufacturers of such programs with regard to warranty, maintenance or other support regarding the same. NMI makes no warranty, express or implied, with regard to any such third party software or services. Without limitation, NMI specifically disclaims all representations and warranties, express or implied, with respect to any Third Party Technology Provider or Third Party Technology. NMI shall have no express or implied obligation to provide, or continue to provide, support or maintain any or all Third Party Technology. Company acknowledges and agrees that at any time, all or any portion of Third Party Technology may be subject to modifications, suspension or termination by the Payment Networks or Third Party Technology Provider, with or without notice, and with immediate effect. NMI may be required to implement any such modifications, suspension or termination of the T2M Solution, and as this is outside of NMI’s reasonable control, (to the fullest extent permitted by law) NMI shall not be liable for any actions required by a Payment Networks or Third Party Technology Provider.

Extension — Shopify Terms

Definitions; Interpretation

1. Definitions. Capitalized terms used but not defined in these Extension Shopify Terms (“Extension Shopify Terms“) will have the meanings given to them in the General Terms and Conditions, the Partner Terms or Merchant Terms (as applicable), or elsewhere in the Agreement. In addition, the following definitions will apply to these Extension Shopify Terms only.

“Customer” means any individual that visits or transacts via the Merchant Store.

“Customer Data” means information (including Personal Information) relating to a Customer, including order information, payment information, or account information.

“Merchant Data” means information (including Personal Information) relating to a Merchant Store, including business, financial, and product information and any Customer Data.

“Merchant Store” means Company’s or a Merchant’s (as applicable) commerce presence hosted by Shopify, including their online store and Point of Sale (POS). For clarity, Company or a Merchant may have more than one Merchant Store.

2. Scope of Services

a. NMI will provide a payments application service by which Company (and if Company is a Reseller, its Merchants) may facilitate transactions through Shopify’s payments platform (“Shopify Application“).

3. Representations and Warranties, and Disclaimers

a. NMI represents and warrants that:

i. NMI is solely responsible for the Shopify Application;

ii. Shopify is not liable for any fault in the Shopify Application or any harm that may result from its installation or use;

iii. Except where expressly stated by Shopify, Shopify cannot provide assistance with the installation or use of the Shopify Application; and

iv. NMI is solely responsible for any liability which may arise from Company’s (or, as applicable, its Merchant’s) access to or use of the Shopify Application, including: (A) the development, use, marketing or distribution of or access to the Shopify Application, including support of the Shopify Application; or (B) NMI’s access, use, distribution or storage of Merchant Data.

b. NMI maintains a Privacy Policy located at Privacy Policy that discloses how and why customers’ Personal Data are collected and used in accordance with applicable law, including the uses governed by this Agreement.