Platform Misconduct

This statement outlines NMI’s operational stance on platform integrity involving merchants or other parties using payment flows that leverage NMI technology.

NMI may receive reports or allegations regarding merchants or other parties that allege involvement in fraudulent, deceptive, unlawful, or otherwise harmful activity. When NMI becomes aware of information concerning alleged misuse or misconduct, it evaluates the matter based on the information available to NMI, including the credibility, authority, and relevance to NMI’s platform, which may include consideration of:

• Direction or notification from an acquiring bank, sponsor bank, or payment processor;
• Card network communications, monitoring programs, or rule enforcement actions;
• Law enforcement inquiries, legal process, or regulatory requests;
• Credible technical or security indicators involving NMI systems (e.g., system abuse, malware, credential compromise, etc.); or
• Clear violations of NMI contractual terms, acceptable use provisions, or security requirements.

Unsubstantiated, anonymous, or speculative claims, without supporting evidence or appropriate authority, do not typically warrant direct action by NMI.

Where supported by applicable agreements, network rules, acceptable use considerations and/or posing a business, operational, or reputational risk to NMI (each, in NMI’s sole and absolute discretion), NMI may take appropriate action, including termination of any party’s usage of the NMI platform.

To ensure fairness and clarity, NMI does not:
• Act as a regulator, law enforcement authority, or adjudicator of legal disputes
• Restrict merchants solely based on unsupported accusations or competitive complaints
• Publish or maintain public lists of alleged “bad actors”

Any reports of suspected misuse or misconduct may be submitted to fraud@nmi.com. Submission of a report does not guarantee investigation or action by NMI.

Legal Process Guidelines

Government, Law Enforcement, and Civil Litigants within the United States

The purpose of this document is to provide guidance to law enforcement and civil litigants seeking records from Network Merchants, LLC (“NMI”). These Guidelines do not create any obligation or enforceable right against NMI, nor do they constitute legal advice or a waiver of any objection by NMI. These Guidelines and NMI’s policies may be updated in the future without further notice.

Protecting the privacy of all who rely on our services is paramount to us. To this end, NMI requires valid and binding legal process before disclosing data, except in emergencies, where lawful consent has been provided, or in other circumstances in NMI’s sole discretion and consistent with applicable law. We review all legal process for authenticity, facial validity, and legal sufficiency, including by ensuring the form of legal process is sufficient under applicable law to obtain the type of data requested. NMI reserves the right to object to requests that do not comply with applicable laws. 

1. About NMI

NMI is a global leader in embedded payment solutions – we are not a bank. Our payment software tools enable thousands of partners that serve merchants around the world and across the commerce ecosystem. Our products and solutions include industry-leading payment gateway technology and our seamless merchant underwriting, acquiring, onboarding and management platform and more. 

Because NMI is not a bank, we do not hold funds nor manage bank accounts, and we cannot freeze assets and cannot process garnishment requests. Banking services are provided by Merrick Bank, Member FDIC. 

2. General Requirements for Law Enforcement Requests and Civil Requests

All legal process must be:

• addressed to Network Merchants, LLC;
• dated and signed by an attorney, government official, or judicial officer (as applicable); 

• assembled in the complete form as issued by the competent authority and issued on government letterhead or with a caption that identifies the court that issued the process and the case/docket number; and

• issued under the authority of a court with jurisdiction over NMI. 
• State law enforcement and state civil litigants outside of Illinois and Delaware generally must domesticate their legal process in Illinois or Delaware, where the company is headquartered and incorporated, respectively. If you believe your request is binding on NMI and need not be domesticated, please identify the legal basis for your position.

 

Additionally, all legal process must identify: 

• Sufficient information for NMI to locate the relevant business and/or individual whose data is being requested. 
  • Names, dates of birth, and social security numbers alone cannot be used to accurately locate responsive data. Accordingly, please include additional identifying information, including but not limited to email address, physical address, Gateway IDs, and/or transaction IDs, to the extent available.
• The specific types of data requested (see Section 5) and the applicable date range for the request;

• The legal basis for the request; and
• How and to whom the responsive data should be produced.

3. Law Enforcement Requests

a. Service of Preservation Requests, Data Requests, and Testimony Requests

Preservation requests and requests seeking the production of data must be submitted in PDF format to NMI at legalnotices@nmi.com. Acceptance of legal process via email is for convenience only and does not waive any objections, including lack of jurisdiction or proper service. 

Requests that include a demand for witness testimony must be personally served on NMI at its Illinois offices. For more information about testimony requests, please see Section 6. 

b. Preservation Requests

NMI will preserve data for 90 days upon receipt of a formal preservation request from law enforcement in connection with an official criminal investigation and pending the issuance of a court order or other legal process. Law enforcement may request one extension of the preservation request for an additional 90 days. If law enforcement agents do not request an extension before the expiration of the initial 90-day preservation period and/or do not serve NMI with compulsory legal process before the expiration of the preservation period, the preserved information will be deleted after the preservation period expires. It is the responsibility of law enforcement to track the expiration date for a preservation request and notify NMI of any request to extend the preservation period.

Preservation requests must be sent on official law enforcement letterhead, signed by a law enforcement official and must include sufficient identifiers for the entity and/or individual whose data is requested to be preserved (see Section 2) and a statement that steps are being taken to obtain a court order or other legal process for the data sought to be preserved.

c. Emergency Disclosure Request Procedures

If law enforcement believes there is an ongoing emergency involving an imminent threat of death or serious bodily harm to a person, please complete the NMI Emergency Disclosure Request form and submit it to us at legalnotices@nmi.com. The subject line of the email should include “Emergency Request.” We review these requests on a case-by-case basis.

Please note that we will only review and respond to emergency requests from law enforcement. We will not respond to emergency requests sent to this address by non-law enforcement officials.

4. Civil Requests

a. Service and Jurisdiction Requirements

Except for requests related to bankruptcy proceedings, all civil requests, including requests for records and/or testimony, must be personally served on NMI at its Illinois offices. Civil requests related to bankruptcy proceedings may be submitted via email at legalnotices@nmi.com.

All state civil requests must be properly domesticated in Illinois or Delaware.

b. Bankruptcy Requests

Please note NMI is not a bank, and therefore we do not hold funds or manage bank accounts, and we cannot freeze assets and generally cannot process garnishment requests. Accordingly, please consider whether NMI is the appropriate recipient of your request or whether it should be directed to NMI’s sponsor bank, Merrick Bank (Member FDIC), or another entity. 

5. Information That May Be Available 

Our Privacy Policy sets forth the categories of information that may be available from us. However, the information we may have for a particular request depends on whose data is being requested and which of our services they have used. We cannot guarantee the availability of any information. We retain data in accordance with our Privacy Policy.

Absent exigent circumstances or other lawful exceptions, certain categories of information may only be obtained pursuant to a court order or a search warrant.

6. Witness Testimony Requests

NMI provides a business record certification with its productions, which generally eliminates the need for live testimony to authenticate records. Should you believe that a custodian of records is still necessary to provide testimony, we require domestication of all state subpoenas pursuant to, as applicable, the Uniform Act to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings, 735 Ill. Comp. Stat. 220/1, et seq., or the Uniform Interstate Depositions and Discovery Act, 735 Ill. Comp. Stat. 35/1, et seq. All subpoenas seeking witness testimony must be personally served on NMI at its Illinois offices.

NMI does not provide expert witness testimony.

7. Notice Policy

We reserve the right to notify people who use our service of requests for their information prior to disclosure, unless we are prohibited by law from doing so or in exceptional circumstances as determined in our sole discretion. 

8. Cost Reimbursement

We reserve the right to seek reasonable reimbursement costs for responding to requests for information.

DMCA Notice

Network Merchants, LLC (dba NMI) strongly respects copyright protections. We will respond as promptly as possible to any reports of copyright infringement on our primary and supplemental websites. NMI works within the guidelines of the US Digital Millennium Copyright Act (“DMCA”) to address and rectify any and all reports and instances of copyright infringement.

Infringement Reporting Procedure. To report copyright infringement, please email all of the below required information, in written English, to ComplianceDepartment@nmi.com:

1. Signature (hand-signed or electronic) of the owner, or a person authorized by the owner, of a copyright that is allegedly infringed.
2. Identification of the original copyrighted work that is allegedly infringed, including website address / URL, location on the webpage, type of material (such as whether it is text, a photo, or both), a description of the work, and any other relevant information, sufficient for NMI to identify it.
3. Identification of the material in a NMI website or display that is allegedly infringing upon the work from point ii. above, including website address / URL, location on the webpage, type of material (such as whether it is text, a photo, or both), a description of the work, and any other relevant information, sufficient for NMI to identify it.
4. Statement that the complaining Party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
5. Contact information for the complaining Party, including email address, mailing address, and phone number.
6. Statement that the information in the notification is accurate, and under penalty of perjury, that the complaining Party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

 

Copyright Agent Contact. NMI’s Copyright Agent contact information is as follows. Email is our preferred method of communication.

Network Merchants, LLC

Attention: NMI DMCA/Copyright Designated Agent

PO Box 120

Portsmouth,  NH  03802

+1-847-352-4850

ComplianceDepartment@nmi.com

Take-Down Procedure. Upon receipt and verification of notice of infringement, NMI will remove the infringing materials, at its sole discretion. To the extent possible, NMI will notify the infringing party in writing after removal. Advance notice of removal is generally not possible.

Termination for Repeat Infringement. NMI reserves the right to terminate access, for any or all of our Software and Services, to any Party, if that Party is found to be repeatedly infringing copyrights.

Anti-Harassment and Bullying Policy

Network Merchants, LLC and all its subsidiaries and Affiliates (herewith referred to as NMI, we, our or us) are committed to providing a working environment free from harassment and bullying and ensuring all our employees are treated, and treat others, with dignity and respect. We recognize that harassment and bullying can occur not only among employees but also from Third Parties, and we take such incidents very seriously. 

Purpose

The purpose of this Policy is to set out our commitment to preventing and addressing harassment or bullying may occur by Third Parties such as partners, merchants, vendors, suppliers, visitors to our premises, and any other Third Party involved in our operations (herewith referred to as Third Parties). 

At NMI, we maintain a strict zero-tolerance policy towards harassment or bullying. Harassment, bullying or victimization of any kind will not be tolerated and failure to uphold the dignity and respect of all NMI employees may result in corrective action. All parties are encouraged to report any incident of harassment or bullying involving NMI’s employees. To address and prevent future complaints, we will focus on constructive measures such as providing feedback to customers, collaborating with them to resolve issues, and reporting any serious concerns to the authorities. 

What is Harassment by a third party

Harassment by a Third Party is any unwanted physical, verbal or non-verbal conduct that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. A single incident can amount to harassment.

It also includes treating someone less favorably because they have submitted or refused to submit to such behavior in the past.

Unlawful harassment may involve sexual harassment (unwanted behaviour of a sexual nature), or it may be related to age, disability, gender reassignment, marital or civil partner status, pregnancy or maternity, race, colour, nationality, ethnic or national origin, religion or belief, sex or sexual orientation. Harassment is unacceptable even if it does not fall within any of these categories.

Harassment may include, but is not limited to:

1. unwanted physical conduct or “horseplay”, including touching, pinching, pushing and grabbing;
2. continued suggestions for social activity after it has been made clear that such suggestions are unwelcome;
3. sending or displaying material that is pornographic or that some people may find offensive (including emails, text messages, video clips and images sent by mobile phone or posted on the internet);
4. unwelcome sexual advances or suggestive behavior (which the harasser may perceive as harmless);
5. racist, sexist, homophobic or ageist jokes, or derogatory or stereotypical remarks about a particular ethnic or religious group or gender;
6. outing or threatening to out someone as LGBTQ+;
7. offensive emails, text messages or social media content; 
8. mocking, mimicking or belittling a person’s disability; or
9. using your position of authority to offer job benefits or promotions in exchange for sexual favors.

A person may be harassed even if they were not the intended “target”. For example, a person may be harassed by racist jokes about a different ethnic group if the jokes create an offensive environment.

A person may be harassed even if the comments or behavior was not intended to cause harm or offense (i.e. if comments were meant to be a joke).

What is Bullying by a third party

Bullying is offensive, intimidating, malicious or insulting behavior involving the misuse of power that can make a person feel vulnerable, upset, humiliated, undermined or threatened. Power does not always mean being in a position of authority, but can include both personal strength and the power to coerce through fear or intimidation.

Bullying may include physical or psychological threats, overbearing and intimidating levels of supervision or inappropriate derogatory remarks about someone’s performance. Please be aware that harassment and bullying can take place in many forms, from face to face encounters to messages via text, social media platforms or through official communication channels or chats.

Preventing Harassment & Bullying

NMI takes a proactive approach to preventing harassment and bullying and as part of those efforts we offer regular training sessions to all employees about harassment and bullying, including what it is, how to recognise it and how to report it.

What should a third party expect

When we receive a report of Third-Party harassment, NMI’s People Team will carefully initiate an investigation to understand the situation fully. This will involve gathering important information, which may include conversations with the person making the report, any witnesses, and any other individual(s) involved in the incident. We will document all findings and consider any relevant evidence.

Once the investigation is complete, we will share the findings with the appropriate parties and take any necessary actions based on the outcome. Throughout this journey, our People Team is dedicated to creating a respectful and safe workplace for everyone.

Third Parties have a responsibility to conduct themselves in a manner that respects the rights and dignity of all NMI employees. If a Third Party is found to have engaged in harassment or bullying, NMI will take appropriate corrective actions, which may include:

• Issuing a formal written warning to the individual or entity. Banning the individual or entity from our premises or events.
• Termination of contracts or business relationships.
• Reporting the behavior to law enforcement authorities if it constitutes a criminal offense.  

In cases where harassment or bullying by a Third Party leads to emotional distress or damages for our employees, NMI reserves the right to seek restitution from the offending party. This may include claims for damages related to lost wages, emotional distress, or any other applicable remedies under the law.

Retaliation against a complainant will not be tolerated and NMI will take appropriate action against anyone who subjects a complainant to retaliatory conduct. NMI will offer the necessary assistance and support to its employees to protect or enforce the complainant’s rights.

Conclusion

NMI is dedicated to maintaining a work environment free from harassment and bullying, including Third Party harassment. By following this policy and working together, we can create a safe and respectful workplace for all employees. This Policy will be reviewed at regular intervals and will be monitored for effectiveness.

For any inquiries related to the policy, or to report an incident of harassment or bullying, please email NMI’s People Team at peopleteam@nmi.com. We’re here to help and ensure you have all the information you need.

Legal Test

Legal Page

Extension Term

Extension Term

Value Added Solutions Terms

Certain services and functionalities made available by or through NMI are classified as “Value Added Solutions,” including but not limited to those listed below. The individual or business signing up for a Value Added Solution (“Company“) agrees to the following terms and conditions and any other terms and conditions that may be specified for particular Value Added Solutions (collectively, “Value Added Solution Terms“).

1. Value Added Solutions are subject to additional fees, as set forth in an applicable fee schedule or Proposal.

2. Value Added Solutions may supplement or be connected with other products, services, platforms, or portals offered by NMI (collectively, “Services“), each of which may be subject to a separate agreement or terms and conditions of use (“Service Terms“). If a Value Added Solution is associated with one or more Services, then, in addition to the applicable Value Added Solution Terms, the Service Terms for such Services will also apply to and govern the use of the associated Value Added Solution. Except as expressly provided otherwise, Value Added Solutions Term do not replace or supersede any applicable Service Terms, which remain in full force and effect.

3. In the event of a conflict between these Value Added Solution Terms (which apply to all Value Added Solutions) and more specific Value Added Solution Terms identified for a particular Value Added Solution, the specific Value Added Solution Terms will control to the extent of the conflict. If there are any conflicting terms between the Service Terms and the applicable Value Added Solution Terms, the Value Added Solution Terms will control to the extent of the conflict. However, if Company is receiving Value Added Solutions in connection with other Services, then if the Service Terms governing the underlying Services terminate for any reason, Company’s right to use the associated Value Added Solutions will also automatically terminate.

4. Some Value Added Solutions may be provided by third parties (“Third Party Value Added Solutions“), which may be subject to additional terms and conditions set by those third parties (“Third Party Terms“). Any such Third Party Terms will constitute an agreement solely between Company and the relevant third party provider, even if the Third Party Terms are presented to Company by NMI or if Company’s acceptance of such Third Party Terms is recorded by NMI (and in such cases Company authorizes NMI to communicate such acceptance to the applicable third party provider). NMI will not be a party to any Third Party Terms and will not be responsible for the operation of any Third Party Value Added Solutions. NMI makes no representations or warranties regarding any Third Party Value Added Solutions and will have no liability for any losses incurred in connection with their use.

5. Value Added Solution Terms may be updated from time to time by NMI in its sole discretion. Third Party Terms may be updated by the applicable third party providers in accordance with such Third Party Terms.

6. If Company is an authorized reseller of NMI, then Company may select Value Added Solutions to be offered to its merchants and other customers or end users (each, a “Merchant“). If permitted by NMI, Company will have the ability to enroll its Merchants directly in the Value Added Solutions that Company has selected for them. Company will be responsible and fully liable for its Merchants’ use of the Value Added Solutions and their compliance with the applicable Value Added Solution Terms and/or Third Party Terms.

7. Company represents, warrants, and covenants that its (and if Company is a Reseller, its Merchants’) use of the Value Added Solutions and any information submitted in connection with the Value Added Solutions: (i) will be fully compliant with all applicable laws, payment network rules, and security requirements; (ii) will be in accordance with all documentation and specifications applicable to such Value Added Solutions; 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 a Value Added Solution; (b) Company will be solely responsible for its (and, if Company is a Reseller, its Merchants’) use of the Value Added Solutions including, without limitation, configuring, maintaining, and updating any applicable settings; and (c) to the extent a Value Added Solution 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 Value Added Solutions, as applicable.

8. Under certain circumstances, it may be necessary for NMI or the applicable third party provider to adjust Company’s (or any Merchant’s) Value Added Solution 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.

9. As used in these Value Added Solution Terms, “NMI” refers to the affiliate of Network Merchants, LLC (each, an “NMI Affiliate“) that provides a given Value Added Solution. If no NMI Affiliate is named, then the applicable NMI Affiliate will be (and “NMI” will refer to) Network Merchants, LLC. If Company uses Value Added Solutions from multiple NMI Affiliates, Company will be deemed to have a separate agreement with each one. Each NMI Affiliate will be liable only for the Value Added Solutions and services that it provides and 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.

 

Available Value Added Solutions include the following (which list may be updated at any time):

• 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 (additional Value Added Solution Terms apply)
• Account Updater (additional Value Added Solution Terms apply)
• Authvia TXT2Pay (additional Value Added Solution Terms apply)
• Mastercard tap 2 mobile (T2M) (additional Value Added Solution Terms apply)
• Shopify (additional Value Added Solution Terms apply)
• Network Tokenization
• Open Banking (additional Value Added Solution Terms apply)

Value Added Solution — Kount Advanced Fraud Prevention Terms

Definitions

1.1. Definitions. Capitalized terms used but not defined in these Value Added Solution Kount Advanced Fraud Prevention Terms (“Value Added Solution 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 Value Added Solution 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 Proposal” 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 Proposal 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.

Value Added Solution – Account Updater Terms

1. Definitions

1.1. Definitions. Capitalized terms used but not defined in these Value Added Solution Account Updater Terms (“Value Added Solution 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 Value Added Solution Account Updater Terms only.

“Account Updater Services” or “AUS” means the updating services provided pursuant to these Value Added Solution 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 Value Added Solution 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 Value Added Solution 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.

Value Added Solution — TXT2Pay Terms

1. Definitions

1.1. Definitions. Capitalized terms used but not defined in these Value Added Solution TXT2Pay Terms (“Value Added Solution 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 Value Added Solution 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 Value Added Solution 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.

Value Added Solution — Tap to Pay (“TTP”) Terms

1. Definitions; Interpretation

1.1. Definitions. Capitalized terms used but not defined in these Value Added Solution Tap to Pay Terms (“Value Added Solution TTP 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 Value Added Solution TTP 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 TTP Solution (“TTP” refers to NMI’s Tap to Pay solution, also known as Tap to Mobile, Tap to Phone, Tap on Phone, TTM, ToP, or SoftPOS).

“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 TTP Solution.

2. Scope of Services

2.1. NMI, in connection with various Payment Networks, will provide a contactless tap to pay payment solution and associated services (“TTP 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 TTP Solution.

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

2.3. If Company is a Reseller, Company shall refer its Merchants to NMI for the TTP 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 TTP 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 TTP Solution, including (where applicable) providing reasonable training to Merchants on the use of the TTP 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 TTP 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 TTP 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.

Value Added Solution — Shopify Terms

Definitions; Interpretation

1. Definitions. Capitalized terms used but not defined in these Value Added Solution Shopify Terms (“Value Added Solution 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 Value Added Solution 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.

Value Added Solution — Open Banking

Definitions; Interpretation

1. Capitalized terms not otherwise defined below have the meaning set forth in the Agreement.
2. Definitions.

“Explicit Consent” means an electronic communication with a Person that: (a) provides sufficient notice to such Person regarding how User Data associated with that person will be used, including access, usage, storage, retention, and disposal of such Person’s User Data (including any use of anonymized data derived from the User Data) and the process for the revocation of consent (which process shall enable a Person to readily revoke such consent); and (b) obtains from such Person permission for a specific action that is maintained in a system log or database that ensures completeness, and integrity and permits verification of the consent upon request of the records. Explicit Consent must be consistent with applicable Laws.

“Finicity” is Finicity Corporation, an entity who provides the Open Banking Services as described within the Proposal.

“Finicity Materials” means any data or materials provided by or on behalf of Finicity to Company, other than User Data.

“Finicity Technology” means all of the following (including all Intellectual Property Rights therein): (a) the Finicity Services and the Finicity System, (b) the Finicity Materials, and (c) any and all technology, information, data, know-how, ideas, designs, software, inventions, documentation, resources and all other tangible and intangible items included therein and as provided to Company by Finicity, made, conceived, or received or reduced to practice by Finicity alone, excluding NMI Services and related technology.

“Finicity Services” means Finicity’s products and services as expressly subscribed to by Company pursuant to a Proposal.

“Finicity System” means the equipment, APIs, interfaces, and all software and administrative platforms necessary to provide the Finicity Services.

“Information Security Incident” means any actual or suspected unauthorized processing, loss, use, disclosure, acquisition of, or access to any Personal Information or User Data.

“Intellectual Property Rights” means, on a worldwide basis, any and all: (a) rights associated with works of authorship and literary property, including copyrights, moral rights of an author of a copyrightable work, and mask-work rights; (b) trademarks, service marks, logos, trade dress, trade names, whether or not registered, and the goodwill associated therewith; (c) rights relating to know-how or trade secrets, including ideas, concepts, methods, techniques, inventions (whether or not developed or reduced to practice); (d) patents, designs, algorithms and other industrial property rights; and (e) other intellectual and industrial property rights of every kind and nature, however designated, whether arising by operation of law, contract, license or otherwise.

“Onboarding Procedures” means the approval, due diligence requirements and vetting procedures established by Finicity (as the same may be amended from time to time) in order to onboard and approve the Company for the delivery of the Services.

“Person” means any individual, partnership, joint venture, corporation, company, bank, trust, unincorporated organization, government or any department, agency or instrumentality thereof.

“Provider” means a financial institution or other entity that possesses account information regarding a User.

“Registration Data” means User account access information and registration information as provided by Users to NMI or Finicity for the purpose of accessing User Data from a Provider.

“Representatives” means a Party’s Affiliates, directors, officers, employees, agents, contractors, subcontractors, partners, and third-party service providers.

“Territory” means the United States of America.

“User” means any customer of Company that meets the requirements set forth in Section 4.

“User Data” means data pertaining to a User obtained by Finicity directly as part of the Services provided to Company, and includes Personal Data.

3. Services. As described within the Proposal.
4. Users. The Parties agree that a Person is not to be a User until such Person has provided Explicit Consent to Finicity to be legally bound by the Finicity terms and conditions and privacy notice presented through the user experience before accessing the Services in accordance with Finicity Documentation. For the avoidance of doubt, Finicity will be responsible for obtaining and managing the Explicit Consent provided by Users to Finicity for the User Data, including authorizations, revocations, permissions, consents, agreements, and approvals necessary for Finicity to access, use, and disclose the User Data as contemplated by this Agreement. In support of the foregoing, NMI agrees to comply with Finicity Documentation with respect to consents provided by Users. The Parties further agree that the Finicity/Mastercard brand will always be present to the User during the account linking and open banking experiences. NMI is not permitted to provide any technical means or other instruction to any Person to circumvent such requirements to become a User, or to perform the requirements of this Section on behalf of any Person for any reason.

5. Company Obligations.

1. Company shall fulfill its obligations in accordance with all applicable Laws, including the Foreign Corrupt Practices Act, the UK Bribery Act, and all other applicable anti-corruption and anti-bribery laws. In connection with Company use of Services and cross-border transfer of the Finicity Technology, Company will comply with all applicable export, re-export, and import control laws and regulations of all applicable jurisdictions, and will not export or re-export Finicity Technology. Company will not engage in any activities related to this Agreement or Services with a Person who is identified on a list maintained by the U.S. Treasury Department’s Office of Foreign Assets Control of specially designated nationals and blocked persons subject to financial sanctions. Such list is currently accessible at: www.treasury.gov/ofac.
2. Company shall use commercially reasonable efforts to prevent unauthorized access to or use of the Finicity Technology, and notify NMI promptly of any such unauthorized access or use;
3. Except as otherwise explicitly provided in these terms or as may be expressly required by applicable Laws, Company and Users shall (i) use the Finicity Technology only pursuant to these terms; (ii) not attempt to gain unauthorized access to the Finicity Technology or their related systems or networks; (iii) not access and/or engage in any use of the Finicity Technology in a manner that abuses or materially disrupts Finicity’s networks, security systems, and/or websites; (iv) not interfere with or disrupt the integrity or performance of the Finicity Technology or third-party data contained therein; (v) not access or use the Finicity Technology in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party; (vi) not access or use the Finicity Technology for purposes of competitive analysis of the Finicity Technology, the development, provision or use of a competing software service or product or any other purpose that is to Finicity’s detriment or commercial disadvantage, except as explicitly permitted by Finicity in writing; (vii) not use the Finicity Technology for fraudulent purposes or otherwise in violation of applicable Laws; (viii) except for Users saving their own User credentials, not retain, save or otherwise maintain any User credentials or other Personal Data that could be used to access such User’s financial information and other data; and (x) not use any “screen scraping” process(es) to obtain User Data directly or indirectly from any of Provider from which Finicity obtains User Data on behalf of User through the use of Registration Data (and not APIs or data feeds provided by or on behalf of Finicity as part of the Finicity Technology). If Company becomes aware of any actual or threatened activity prohibited by this Section 4 (c), Company shall immediately: (I) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Finicity Technology); and (II) notify Finicity of any such actual or threatened activity;
4. Except to the extent prohibited by applicable legal, regulatory or law enforcement requirements, Company will promptly inform NMI, in each case in writing if any competent authority, regulator or public authority of with jurisdiction over Company requests disclosure of, or information about, the Personal Data that is processed in connection with the Services. Company will, without limiting its rights under applicable Laws, cooperate with Finicity as reasonably necessary to comply with any direction or ruling made by such authorities;
5. Except to the extent prohibited by applicable Laws or law enforcement requirements, Company will inform NMI in writing of any Information Security Incident within 48 hours of its discovery. For purposes of this provision, “discovery” will mean the first day the Information Security Incident is known to have occurred by any employee, officer or agent of the impacted party. Such notice will summarize in reasonable detail the effect on the other party, if known, of the Information Security Incident and the corrective action taken or to be taken. The applicable party will promptly take all necessary corrective actions, and will cooperate fully with the other in all reasonable and lawful efforts to mitigate the effects such Information Security Incident;

i.    notwithstanding anything contained herein or otherwise, except to the extent prohibited by applicable legal, regulatory or law enforcement requirements, Company must obtain the approval of Finicity prior to the publication or communication of any filings, communications, notices, press releases or reports related to any Information Security Incident that expressly mentions Finicity or its Affiliates.

6. Company shall comply with all applicable Laws, relating in any way to the confidentiality of Personal Data, including applicable laws regulating banking secrecy and outsourcing requirements, to the extent applicable to its business or the Services received under its agreement with NMI;
7. Company shall develop, maintain and implement a comprehensive written information security program that: (i) complies with the requirements of Section f above; (ii) includes, without limitation, technical, physical, and administrative/organizational safeguards designed to (x) ensure the security and confidentiality of Personal Data; (y) protect against any anticipated threats or hazards to the security and integrity of Personal Data; and (z) protect against any Information Security Incident; and (iii) include, without limitation, regular testing or otherwise monitoring of the effectiveness of each Party’s information safeguards;
8. Company shall comply at all times with all Applicable Law related to its use of the Services. Without limitation, but only where applicable, Company shall comply with the federal Fair Credit Reporting Act, 15 U.S.C. §1681 et seq. (“FCRA”), and any applicable analogous state law, as well as all applicable regulations and administrative requirements thereunder. Company acknowledges that use of the Services or data obtained or processed using the Services may be subject to the FCRA or analogous state laws. If Company uses or provides through NMI Services any Services that are not labeled as for FCRA use or authorized by Finicity for use in accordance with the FCRA, or obtains through Services data that is not subject to the FCRA, Company shall not use or provide through NMI Services such Services or data for an FCRA-related purpose. Finicity may from time-to-time request additional information from Company regarding its use of Services and/or compliance with the FCRA, and Company agrees to reasonably cooperate with any such requests. Such requests may include, but not be limited to, the examination of Company’s policies and/or procedures for: (a) confirming and documenting “permissible purpose” for FCRA-scoped Services, including due diligence efforts conducted for such confirmation; (b) verifying the identity of end users for FCRA-scoped Services; and (c) processing and resolving FCRA reinvestigations of consumer disputes;
9. If Company is obtaining Services as the user of a “consumer report” as defined in the FCRA, Company shall use Services solely in connection with the FCRA Permissible Purposes outlined in the Proposal, and for no other purpose. Company acknowledges that it has received notice of legal obligations of users of consumer reports through the following hyperlink: https://www.finicity.com/federal-fair-credit-reporting-act/. Finicity is providing the Services only as requested by and with the Explicit Consent of the User;
10. Company shall not use or disclose User Data or Registration Data for any purpose that is not expressly permitted under these terms or by an Explicit Consent given to Company by the User to whom such data relates. Without limiting the foregoing, Company shall not sell, license, transfer, or otherwise disclose the User Data or Registration Data to any other party;
11. Company shall not allow a Person to be a User unless such Person has: (i) agreed to the terms presented through the Finicity Services; (ii) provided Explicit Consent to Finicity to be legally bound by the Finicity terms; and (iii) provided Explicit Consent to Company and/or its Representatives consenting to Company’s specific business purpose;
12. Unless prohibited by applicable Laws, Company will not permit any person to have access to Finicity Technology or User Data when such person has been convicted of a crime or has agreed to or entered into a pretrial diversion or similar program with: (i) a dishonest act or a breach of trust, as set forth in Section 19 of the Federal Deposit Insurance Act; or (ii) a felony.
13. Company shall only use, store, host, or process User Data within the Territory. Notwithstanding the foregoing, Company may allow read-only access to such data subject to terms’ confidentiality and security requirements;
14. Company shall maintain customary insurance with industry standard limits and terms, at its own expense, to cover potential losses and liabilities which may arise in connection with or in any way related to its performance of obligations as described in these terms and promptly provide evidence of such insurance if requested by Finicity or NMI; and
15. Company shall maintain all necessary documentation to evidence its compliance with these terms and applicable Laws in connection with its use of the Services for a period of six (6) years after the expiration or termination of these terms, or for such longer period as otherwise may be required by applicable Laws. Company shall provide Finicity and NMI with access to such documentation upon request. Finicity or its authorized representative may, on reasonable notice no more than once every year, audit (i) Company’s activities related to its use of the Services; and (ii) Company’s products and services and the use of such products and services that utilizes Finicity Technology, for compliance with applicable Laws and these terms.

6. Minimum System Security Requirements

Company will, at a minimum, implement the types of security measures set forth below. In no event shall any technical requirement be less protective than the corresponding exemplary requirement in this Section 6. In the event of any potential breach or actual breach of security which has the potential to expose and/or impact information such as User Data, Registration Data, Finicity data, API certificates, tokens or other sensitive data, Company (and Company customers) must immediately advise NMI and Finicity by emailing soc@mastercard.com and calling (636) 722-3600, to notify NMI please refer to clause 4.3 of the General Terms and Conditions. These requirements herein are mandatory for Company, Company’s customers, and any other expressly permitted party that have an API account or that receive User Data and/or Registration Data for any purpose.

1. Physical access control. Technical and organizational measures to prevent unauthorized persons from gaining access to the data processing systems available in premises and facilities (including, without limitation, databases, application servers and related hardware), where Personal Information is processed, including, without limitation:
   • Establishing security areas, restriction of access paths;
   • Establishing access authorizations for employees and third parties;
   • Access control system (ID reader, magnetic card, chip card);
   • Key management, card-keys procedures;
   • Door locking (electric door openers etc.);
   • Security staff, janitors;
   • Surveillance facilities, video/CCTV monitor (as permitted under local law), alarm system; and
   • Securing decentralized data processing equipment and personal computers.
2. Virtual access control. Technical and organizational measures to prevent data processing systems from being used by unauthorized persons including, without limitation:
   • User identification and authentication procedures;
   • ID/password security procedures (special characters, minimum length, change of password);
   • Automatic blocking (e.g., password or timeout);
   • Monitoring of break-in-attempts and automatic turn-off of the user ID upon several erroneous passwords attempts; and
   • Creation of one master record per user, user master data procedures, per data processing environment.
3. Data access control. Technical and organizational measures to ensure that persons entitled to use a data processing system gain access only to such Personal Information in accordance with their access rights, and that Personal Information cannot be read, copied, modified or deleted without authorization, including, without limitation:
   • Internal policies and procedures;
   • Control authorization schemes;
   • Differentiated access rights (profiles, roles, transactions and objects);
   • Monitoring and logging of accesses;
   • Disciplinary action against employees who access Personal Information without authorization;
   • Reports of access;
   • Access procedure;
   • Change procedure; and
   • Deletion procedure.
4. Disclosure control. Technical and organizational measures to ensure that Personal Information cannot be read, copied, modified or deleted without authorization during electronic transmission, transport or storage on storage media (manual or electronic), and that it can be verified to which companies or other legal entities Personal Information is disclosed, including, without limitation:
   • Tunneling;
   • Logging; and
   • Transport security.
5. Entry control. Technical and organizational measures to monitor whether data have been entered, changed or removed (deleted), and by whom, from data processing systems, including, without limitation:
   • Logging and reporting systems;
   • Audit trails and documentation; and
   • Rate limiting or reduction in the amount of sub-accounts that can be created or linked to (max 8 recommended).
6. Availability control. Technical and organizational measures to ensure that Personal Information is protected against accidental destruction or loss (physical/logical) including, without limitation:
   • Backup procedures;
   • Mirroring of hard disks (e.g., RAID technology);
   • Uninterruptible power supply (UPS);
   • Remote storage;
   • Antivirus/firewall systems; and
   • Disaster recovery plan.
7. Separation control. Technical and organizational measures to ensure that Personal Information collected for different purposes can be processed separately including, without limitation:
   • Separation of databases;
   • “Internal client” concept / limitation of use;
   • Segregation of functions (production/testing); and
   • Procedures for storage, amendment, deletion, transmission of data for different purposes.
8. End Point control. Technical and organizational measures to ensure that end points involved in touching, storing or accessing Personal Information are protected against unauthorized access or penetration, including, without limitation:
   • Industry standard anti-malware solutions;
   • Encryption of data at rest using AES256 bit as a minimum; and
   • Routing penetration testing and/or vulnerability management and review.

7. Company Consent.

1. Company consents to:

i. Finicity display of Company’s name, marks, and services (including logo) within Finicity’s User consent and disclosure platform currently called “Finicity Connect” and share the name, marks, and services of Company to Provider to identify Company as a NMI of Services; and

ii. Providers’ (and their authorized technology service providers) display of Company’s name, marks, and services (including logo) within their user authentication and consent management platforms.

8. Representations and Warranties, and Disclaimers.

1. Company hereby represents and warrants to NMI that the documents, information, responses, and materials provided to NMI and/or Finicity by Company in connection with Finicity’s On-Boarding Procedures/ Finicity Services are true and accurate in all material respects. Company agrees that Finicity may provide such information to Providers.

 

Value Added Solution — Axium SmartPOS Terms

1. Definitions; Interpretation

1.1. Definitions. Capitalized terms used but not defined in these Value Added Solution Axium SmartPOS Terms (“Axium 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 Axium Terms only.

“Axium SmartPOS” means the Value Added Solution offered by NMI that enables Company (and, if Company is a Reseller, its Merchants or Sub-Affiliates) to develop, sign, and deploy software applications for use on Axium SmartPOS Devices, made available in connection with Ingenico’s signing and device-management infrastructure.

“Axium Device” means a payment-capable terminal or device on which a Company Application may be installed, activated, whitelisted, or otherwise enabled through Axium SmartPOS.

“Company Application” means any application, software, firmware, or code that Company (or, if Company is a Reseller, any of its Merchants or Sub-Affiliates) develops, submits, uploads, configures, or otherwise makes available for signing or deployment through Axium SmartPOS, regardless of who authored it.

“Ingenico” means Ingenico Group SA and its applicable affiliates, as the third party provider of the Web Signing Portal and Estate Manager infrastructure used to deliver Axium SmartPOS.

“Ingenico Portals” means, collectively, the Ingenico Web Signing Portal (“eSign Portal“) and the Ingenico Estate Manager device management platform (“Estate Manager“), and any successor or replacement portals made available by Ingenico for the signing or management of applications and devices in connection with Axium SmartPOS.

“Sub-User Access” means access provisioned to Company as a sub-user under NMI’s own account with Ingenico for purposes of using the Ingenico Portals, as described in Section 4 below.

2. Scope

2.1. NMI provides Company with access to the Ingenico Portals to facilitate Company’s own signing and deployment of Company Applications onto Axium Devices. Axium SmartPOS is a facilitation and access service only. NMI does not develop, author, co-author, or contribute to any Company Application.

2.2. Company (and, if Company is a Reseller, its Merchants or Sub-Affiliates) is solely responsible for developing, testing, securing, and maintaining each Company Application, and for all decisions regarding what functionality any Company Application performs and how it is configured for use on an Axium Device.

2.3. Axium SmartPOS may be enabled by Company on a self-service basis, subject to completion of any application review, security review, approval or other onboarding requirements specified by NMI from time to time. NMI’s provision of access to the Ingenico Portals, and any presentation or facilitation of signing, publication, distribution, whitelisting or deployment steps within those portals, does not transfer to NMI responsibility for the development, functionality, maintenance, security or compliance of any Company Application, except to the extent expressly stated in these Axium Terms.

2.4. Company will comply, and will ensure that each Company Application complies, with all program requirements, technical requirements, and policies that Ingenico imposes from time to time in connection with Axium SmartPOS. Without limitation, no Company Application may disable, bypass, break, hack, or otherwise interfere with, and Company will not enable any third party to disable, bypass, break, hack, or otherwise interfere with, any security, signing, authentication, or payment feature implemented in or by the Ingenico Portals, any Axium Device, or any other Ingenico software, service, or technology. Company will ensure that each Company Application is free of malicious, harmful, or disruptive code and does not violate any applicable law or the rights of any third party.

3. No Ownership; Security Review; No Certification or Endorsement

3.1. As between Company and NMI, Company retains all right, title, and interest in and to each Company Application. NMI does not own, and does not claim any ownership interest in, any Company Application, notwithstanding that NMI facilitates its signing, publication, distribution, whitelisting, or deployment under this Section 3.

3.2. Before NMI signs or otherwise enables a Company Application for deployment through Axium SmartPOS, Company must complete NMI’s applicable third-party application security review process and provide such information, application packages, questionnaires, supporting evidence and other materials as NMI may reasonably require. NMI may review, test or otherwise assess a Company Application for the limited purposes of determining whether it satisfies NMI’s applicable security, technical and program requirements for signing and deployment on an Axium Device. NMI may approve, conditionally approve, reject or require changes to a Company Application as a result of that review and may decline to sign or enable deployment of any Company Application that has not successfully completed the applicable review. Any review or approval by NMI is limited in scope and does not relieve Company of its responsibility for the Company Application or constitute a comprehensive security, functionality, legal, regulatory or compliance assessment of the Company Application.

3.3. Company acknowledges and agrees that NMI’s completion of a security or technical review, or its approval, conditional approval, signing, publication, distribution, whitelisting, deployment or other enablement of a Company Application, means only that the Company Application has satisfied the requirements applied by NMI for that purpose at the time of review. It does not constitute, and Company must not represent it as, a certification, endorsement or warranty by NMI that the Company Application is secure, error-free, fit for any particular purpose, compliant with all applicable Laws or Rules, or free from vulnerabilities. Except for NMI’s performance of the review process expressly described in these Axium Terms, Company remains solely responsible for the Company Application and its operation, security, functionality and compliance.

3.4. Company represents and warrants that it has the lawful right to submit each Company Application for signing or deployment through Axium SmartPOS, and that, to Company’s knowledge, no Company Application infringes or violates any patent, copyright, trademark, trade secret, or other proprietary right of any third party, including Ingenico. Company is solely responsible, at its own cost, for obtaining any certification or approval from any certification body, payment scheme, or other authority that may be required for a Company Application to be signed, distributed, or deployed on an Axium Device.

3.5. An approval applies only to the specific version or build of the Company Application submitted to and reviewed by NMI. Company must submit each new version or build for review before it is signed or deployed through Axium SmartPOS. Company will notify NMI of any material change to a Company Application’s functionality, data handling, permissions, third-party software components or security characteristics and will provide such information and supporting materials as NMI reasonably requests in connection with that change. NMI may require a Company Application to undergo a new or additional review at any time where NMI reasonably considers this necessary for security, compliance or risk-management purposes.

4. Sub-User Access to the Ingenico Portals

4.1. Company’s use of the Ingenico Portals is provisioned as a sub-user of NMI’s own account with Ingenico.

4.2. Company will restrict Sub-User Access to its own employees and agents on a need-to-use basis, consistent with Section 4.4 of the General Terms and Conditions, and is solely responsible for all activity conducted under its Sub-User Access, including all signing, publication, distribution, whitelisting, and deployment actions taken through it.

4.3. NMI may maintain logs or records that distinguish Company’s activity under its Sub-User Access from NMI’s own activity and from that of other Companies. Company acknowledges that any such logging is maintained for NMI’s own operational and risk-management purposes and does not alter Company’s responsibility for its own activity under this Section 4, nor does such logging create any obligation on NMI to monitor Company’s use of the Ingenico Portals, except for any application review expressly required under Section 3.

4.4. Company will comply with all applicable terms of use, policies, and technical requirements imposed by Ingenico with respect to the Ingenico Portals, as communicated to Company by NMI from time to time. NMI may suspend or revoke Company’s Sub-User Access at any time, with or without notice, including if required by Ingenico or if NMI reasonably believes such action is necessary to protect NMI, Ingenico, any Axium Device, or any cardholder data.

4.5. Company will treat as confidential, and will not disclose to any third party without NMI’s prior written consent, any non-public documentation, specifications, credentials, or other materials Ingenico makes available in connection with the Ingenico Portals or Sub-User Access. Company will not, and will not permit any third party to, sublicense, resell, transfer, modify, reverse engineer, or create derivative works of any Ingenico software, API, or development tool made available to Company through Axium SmartPOS. Company will reasonably cooperate with any audit or review Ingenico conducts in connection with Company’s Sub-User Access, including by providing access to relevant records upon request.

4.6. Company has no authority to act as an agent or representative of, or otherwise bind, NMI or Ingenico in any way, and will not represent to any third party that it has any such authority.

4.7. Upon any suspension or revocation of Company’s Sub-User Access, or termination of the Agreement, Company will immediately cease using any Ingenico trademark, trade name, or logo, cease representing itself as having any relationship with Ingenico, and, at NMI’s request, return or destroy any Ingenico materials in Company’s possession.

5. Company Responsibility for Data and Device Security

5.1. Company is solely responsible, at its own cost, for ensuring that each Company Application and its use on any Axium Device complies with the PCI Data Security Standard and all other applicable Rules and Laws, including with respect to the protection of cardholder data and other Personal Data accessed, processed, or stored in connection with the Company Application.

5.2. Company is solely responsible for the security of each Axium Device on which a Company Application is deployed, installed, or enabled, including physical security, secure configuration, and timely application of any security updates made available by NMI, Ingenico, or the device manufacturer. NMI has no obligation to monitor the security posture of any Axium Device.

5.3. Nothing in this Section 5 limits Company’s obligations under Section 4 (Compliance) of the General Terms and Conditions, which continue to apply in full.

6. Indemnification

6.1. In addition to, and without limiting, Company’s indemnification obligations under Section 8.1 of the General Terms and Conditions, Company will defend, indemnify, and hold harmless NMI and its officers, directors, agents, and employees from and against any and all claims, actions, proceedings, investigations, fines, penalties, and related costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any Company Application, regardless of whether NMI facilitated, approved, signed, published, distributed, whitelisted, deployed, or otherwise enabled that Company Application through the Ingenico Portals, Sub-User Access, or otherwise, and regardless of whether the claim relates to the functionality, security, compliance, or content of the Company Application, or to its installation or operation on an Axium Device.

6.2. Company will not enter into any settlement of a claim subject to this Section 6 that imposes any obligation on, or otherwise affects the rights of, NMI or Ingenico, without NMI’s prior written consent.

7. Feedback

7.1. To the extent Company provides NMI with any feedback regarding Axium SmartPOS, the Ingenico Portals, or a Company Application’s performance on an Axium Device, and NMI shares that feedback with Ingenico, Company grants NMI and Ingenico a royalty-free, worldwide, irrevocable right to use, reproduce, and incorporate that feedback for any purpose. Company will not disclose such feedback to any other third party.

8. Third Party Terms; Disclaimer

8.1. NMI is not a party to, and has no liability arising from, any terms Ingenico may impose directly on Company or on device manufacturers in connection with the Ingenico Portals.

8.2. Axium SmartPOS, including the Ingenico Portals and Sub-User Access, is provided on an “as is” and “as available” basis, subject to Section 7.2 of the General Terms and Conditions. Without limiting that disclaimer, NMI does not warrant that the Ingenico Portals will be uninterrupted, error-free, or available at any particular time, and NMI will have no liability for any unavailability, delay, or malfunction of the Ingenico Portals, any Axium Device, or any other Ingenico infrastructure used to deliver Axium SmartPOS, regardless of cause.

8.3. Company acknowledges that NMI’s ability to provide Axium SmartPOS depends on NMI’s own agreement and account standing with Ingenico. If that agreement or account is suspended, terminated, or not renewed by Ingenico for any reason, NMI may suspend or discontinue Axium SmartPOS, including Company’s Sub-User Access, without liability to Company, provided NMI will give Company such notice as is reasonably practicable in the circumstances, without penalty.

9. Survival

9.1. Sections 3, 4, 5, 6, 7 and 8 of these Axium Terms will survive termination or expiration of Company’s use of Axium SmartPOS or of the Agreement, in addition to those General Terms and Conditions provisions identified as surviving in Section 9.3 thereof.

Value Added Solution – Surcharge Terms

1. Company agrees to be solely responsible for any acts or omissions of its Merchants, including any fines, fees, or penalties incurred. Company is liable for all losses arising from such acts or omissions, including any merchant non-compliance with applicable laws or card brand rules. To the extent NMI has expressly agreed in writing to provide an indemnity to Company, such indemnity applies only to specified types of non-compliance (and not, for example, non-compliance with state or local law) and is subject to any stated limits; as between Company and NMI, Company remains liable for any losses that fall outside the scope of, or exceed, any such indemnity. 
2. Company and its Merchants are required to comply with both state/local laws (“Local Laws”) and card brand rules pertaining to surcharge fees added for credit card acceptance. Company is responsible for its Merchants’ compliance with all applicable laws while using this feature, and NMI shall bear no responsibility. Within these Value Added Solution Terms you will be asked to agree that you understand your responsibility to comply with Local Laws for the jurisdiction of transaction acceptance. In these Value Added Solution Terms, you will be asked to agree that you understand your responsibility to comply with rules regarding surcharging for accepted card brands, hereinafter collectively referred to as “Card Brand Rules”. Additionally, according to these Value Added Solution Terms, Company is responsible for ensuring Merchants both understand and adhere to Local Laws and Card Brand Rules. Both Local Laws and Card Brand Rules are subject to change without notice; Company is responsible for ensuring Merchants remain compliant with the most up-to-date regulatory requirements. Company must contractually require its Merchants to comply with Local Laws and Card Brand Rules and to be responsible for losses arising from non-compliance. Company must also make NMI a third-party beneficiary of any agreement between Company and its merchant for purposes of enforcing the merchant terms and for liability purposes. 
3. If applicable, Merchants are emailed a copy of VALUE ADDED SOLUTION: SURCHARGE PLUS & PREMIUM PROGRAM GUIDE upon product enablement; Company is responsible for ensuring receipt. This document may also be downloaded in the merchant portal within the Customer Fees configuration menu for future access. 

4. Local laws apply. Company is responsible for ensuring that its Merchants adhere to specific surcharge regulations for any state or country in which its Merchants’ credit card acceptance may occur. These regulations are subject to change, and while changes typically occur during scheduled legislative sessions, special sessions could result in change without notice. Fines for non-compliance with Local Laws can occur independently of and in addition to fines for non-compliance with Card Brand Rules. 

   1. United States

      1. Surcharging is currently prohibited in Connecticut, Massachusetts, and Maine.
      2. NMI does not support surcharging in New York due to specific disclosure requirements. 
      3. NMI only supports surcharging up to 2% in Oklahoma and Colorado.
      4. Colorado requires specific disclosure verbiage for each scenario defined in SB21-091. Per Colorado SB21-091, a merchant can surcharge either “(I) AN AMOUNT NOT TO EXCEED TWO PERCENT OF THE TOTAL COST TO THE BUYER OR LESSEE FOR THE SALES OR LEASE TRANSACTION. (II) AN AMOUNT NOT TO EXCEED THE MERCHANT DISCOUNT FEE THAT THE SELLER OR LESSOR INCURS IN PROCESSING THE SALES OR LEASE TRANSACTION.”

NMI does not support surcharging outside of the United States at this time.  According to NMI’s Portal Terms of Use (Section 5.2, Indemnification) and these Value Added Solution Terms, use of NMI’s services in violation of the law constitutes misuse and NMI will not be liable for damages. NMI reserves the right to terminate services if violations of federal law, Local Laws, and/or Card Brand Rules are reported. 

5. Outside terms may apply. Company may support digital payment methods provided by third parties other than NMI, and such third parties (“Vendors”) may have their own terms and conditions relating to surcharging. Both Company and its Merchants are responsible for adhering to such terms with any other payment Vendor to ensure compliance. Common Vendor examples include, but are not limited to, Cash App, PayPal, Venmo, and Klarna. NMI is not responsible for Company’s compliance with any Vendor agreements.

6. Card brand rules apply. Company and its Merchants are responsible for adhering to Card Brand Rules for all card types accepted. Individual brand rules are subject to change without notice with changes typically occurring twice per annum. Examples of Card Brand Rules documents may include, but are not limited to:

   1. Visa Core Rules and Visa Product and Service Rules
   2. Mastercard Rules
   3. American Express Merchant Regulations
   4. Discover Network Program Agreement and Operating Regulations

7. Important Notes about surcharging:

   1. In accordance with Card Brand Rules, NMI prohibits surcharging on debit or prepaid card transactions.
   2. Visa’s April 15, 2023, surcharge rules update caps surcharging at 3% on Visa credit card transactions. As other card brands require equal surcharging across all brands, the overall cap supported by NMI cannot exceed the 3% set by Visa.
   3. Card Brand Rules prohibit surcharging in excess of the merchant’s cost to process a credit card payment
8. Each card brand sets unique disclosure requirements for different card acceptance channels and processing environments. Company and its Merchants must always reference updated Card Brand Rules to confirm disclosure requirements for all cards accepted. For brick-and-mortar merchant environments, compliant physical signage disclosing the surcharge amount must be presented at point of entry and customer checkout according to Card Brand Rules. Visa’s site generally hosts a sample PDF for download, but requirements are subject to change. 

Credit Card Surcharge Disclosure Requirements – Canada, US Region, and US Territories (“Visa Core Rules,” 2026, p. 393)

Transaction Type	Point-of-Entry	Point-of-Transaction
Face-to-Face Transaction	Main entrance(s) of the Merchant Outlet, in a minimum 32-point Arial font, but in any case no smaller or less prominent than surrounding text	Every customer checkout or payment location, in a minimum 16-point Arial font, but in any case no smaller or less prominent than surrounding text
Electronic Commerce Transaction	The first page that references credit card brands accepted, in a minimum 10-point Arial font, but in any case no smaller or less prominent than surrounding text	Checkout page, in a minimum 10-point Arial font, but in any case no smaller or less prominent than surrounding text
Mail Order Transaction	The first page of the catalog that references credit card brands accepted, in a minimum 8-point Arial font, but in any case no smaller or less prominent than surrounding text	Mail order form, in a minimum 10-point Arial font, but in any case no smaller or less prominent than surrounding text
Telephone Order Transaction	The first page of the catalog that references credit card brands accepted, in a minimum 8-point Arial font, but in any case no smaller or less prominent than surrounding text	Verbal notice from the telephone order clerk, including Credit Card Surcharge amount
Unattended Cardholder-Activated Terminal	Main entrance(s) of the Merchant Outlet (if applicable) (for example: gas [petrol] station store) in a minimum 32-point Arial font, but in any case no smaller or less prominent than surrounding text	On the Unattended Cardholder-Activated Terminal or virtual disclosure on the payment terminal screen, in a minimum 16-point Arial font, but in any case no smaller or less prominent than surrounding text

9. Other card brand rules include, but not be limited to:

   1. Customers must be able to cancel/void surcharged transactions once a surcharge has been disclosed and before the completion of the transaction.
   2. Full refunds on surcharged transactions must include the surcharge amount. If a partial refund is issued, the prorated amount of the original surcharge must also be refunded. 
   3. In some jurisdictions, Merchants are required to offer alternative non-surcharged payment methods in order to surcharge credit card transactions. Company is responsible for its Merchants’ understanding and implementing surcharging according to Local Laws.
   4. Merchants cannot describe the surcharge as assessed by card brands or financial institutions.

   5. In the US, Merchants may assess a credit card surcharge by applying the same fixed or variable credit card surcharge to either:

      1. Brand Level – All credit card transactions for brands accepted.*
      2. Product Level – All credit card transactions of the same credit product type
   6. Due to American Express merchant parity requirements, only American Express OptBlue Merchants are able to surcharge American Express transactions. Surcharging is not allowed for AMEX ESA accounts.

Above are only examples of other card brand requirements that are likely to impact surcharge support for Merchants. Company and its Merchants are responsible for ensuring compliance with all surcharge regulations that apply to their specific processing environment.

Historical Terms and Conditions

• Agreement Express
  • General Terms & Conditions
  • Terms of Use
  • Terms of Use Free Trial
• IRIS (CRM)
  • Master Subscription Agreement (2/8/21)
  • Master Subscription Agreement (12/3/19)
  • Master Subscription Agreement (7/2/19)
  • Privacy Statement
  • Website Terms & Conditions
  • Data Sharing Addendum
  • Marketplace
  • Vulnerability Disclosure Program