Partner Terms and Conditions

Last Updated: March 1, 2024

If Company is signing up to market and promote the NMI Services to Company’s merchants or other customers, these Partner Terms and Conditions (“Partner Terms“) will apply, in addition to the Order Form(s), General Terms and Conditions, the applicable Service Terms, and any other terms set forth in the Agreement. For the purpose of these Partner Terms, the term “Services” shall mean the Services identified in these Partner Terms and applicable Service Terms. Company shall owe the fees and/or receive residual payments as indicated in the applicable Fee Schedule or Order Form.

1. Definitions; Interpretation

1.1. Definitions. Capitalized terms used but not defined in these Partner Terms or applicable Service Terms will have the meanings given to them in the General Terms and Conditions or elsewhere in the Agreement. In addition, the following definitions will apply to these Partner Terms.

“Company Products” means Company’s products and services that NMI expressly permits in each instance to be integrated with the Services in accordance with the Agreement.

“Commissions” means those residual commissions paid to Company under the Agreement for revenue NMI receives and retains from Merchants in connection with the Services provided to such approved Merchants.

“Merchant Losses” means any and all losses and liabilities arising under a Merchant Agreement, including without limitation Merchant fraud, chargebacks, unpaid fees, bankruptcy, data and security breaches, unauthorized use of a Merchant’s credentials or other credential fraud, and any Payment Network assessments, fines, or penalties attributable to a Merchant or its processing activity.

2. Partner Activities

2.1. Grant of License. Subject to the terms and conditions of the Agreement, NMI grants to Company a limited, personal, revocable, non-exclusive, non-transferable, non-sublicensable (unless otherwise permitted by NMI in writing) right to access and use the Services and all reference materials and associated materials solely to: (a) integrate the Company Products with the Services; and (b) market and resell the Services to Company’s Merchant customers.

2.2. Sub-Affiliates. Subject to the terms and conditions of the Agreement, Company may sublicense to its sub–affiliates (“Sub-Affiliates“) the rights granted in 2.1 by NMI to Company. Prior to any sublicense by Company to Sub-Affiliates, Company will ensure it enters into a sublicense agreement with its Sub-Affiliate (“Sub-Affiliate Agreement“), and ensure that each Sub-Affiliate Agreement will: (a) be consistent with, and be subject to the restrictions, exceptions, obligations (including payment of fees), representations and warranties, and other terms and conditions of this Agreement; (b) prohibit Sub-Affiliates from further granting a sublicense to third parties; and (c) automatically terminate effective thirty [30] days after this Agreement terminates for any reason without necessity of any notice from NMI to Sub-Affiliate. Company acknowledges and agrees that NMI is not a party to the Sub-Affiliate Agreement, and NMI and has no liability to and disclaims all liability to Company, Sub-Affiliate, or Merchants solicited by Sub-Affiliate with respect to Company’s sublicense of rights to a Sub-Affiliate, the Sub-Affiliate Agreement, or other terms within this Section 2.2. Company is solely responsible for, and assumes all liability, including any loss, penalty, fine, settlement, cost, damage, injury or expense, associated with: (x) the Sub-Affiliate between Company and its Sub-Affiliate(s); (y) Sub-Affiliates compliance with these Partner Terms and General Terms, and other applicable terms, including compliance with all Laws and Rules and NMI security protocols, policies, procedures and notices as may be updated by NMI from time to time; (z) the performance of its Sub-Affiliate(s), including all acts and omissions of its Sub-Affiliate(s), regardless of whether Company delegated those obligations to its Sub-Affiliates. Upon NMI’s request, Company will provide NMI with a copy of its Sub-Affiliate Agreement.

2.3. Integration. Subject to and in accordance with the terms and conditions of the Agreement, an integration permitted under this Agreement must conform to the specifications, application program interfaces (APIs), and other documentation provided by NMI for such purposes, as each may be updated at any time by NMI in its sole discretion. In addition, Company will at all times comply with NMI’s then-current policies, procedures, and guidelines governing the Services, as updated from time to time in NMI’s sole discretion. Company is solely responsible for, assumes all liability, , including any loss, penalty, fine, settlement, cost, damage, injury or expense, associated with the integration between the Company Products and the Services.

2.4. Marketing. Subject to and in accordance with the terms and conditions of the Agreement, NMI hereby appoints Company on a nonexclusive basis to market and promote the Services, solicit orders for Services, and refer Merchants to NMI for potential enrollment in the Services, including Extensions and Gateway Services. Company will use its best efforts to solicit and refer its customers to NMI for the Services. Company will not knowingly refer any Merchant to NMI which is engaged in a business that violates any applicable law or Rule, or is prohibited from using the Services by the Payment Networks, or which Company has reason to believe is operating in a fraudulent manner. Company shall accurately describe the Services to each Merchant. Without limiting the generality of the foregoing, Company will make no representation, warranty or description regarding the performance, functional characteristics or other aspects of any Service that is beyond those stated in NMI’s then current and officially approved marketing and promotional materials. Company is not authorized to, and will not, make any representation or warranty on behalf of NMI except as NMI may expressly consent to in writing. Company will provide true, accurate and current information in connection with Merchants referred for the Services, as requested by NMI. The rights granted to market, promote, offer, sell and otherwise distribute Services hereunder are subject to any and all applicable rights of third parties or Third Party Service Providers. Company will comply with all applicable third party and Third Party Service Provider restrictions and limitations.

2.5. No Exclusivity. These Partner Terms are non-exclusive, and NMI will be entitled to appoint other sales agents, ISVs, and partners to market the Services; and Company may represent or market other services of third parties.

2.6. Passwords. NMI may issue credentials to Company (such as a user name and password) to enable Company and its employees and agents to access a Company account for purposes of referring Merchants to NMI. For each Merchant, Company will: (a) submit to NMI using the forms and tools provided on NMI’s website all information required by NMI for each referred Merchant including but not limited to the pricing terms offered to, and agreed by, the Merchant; and (b) if the Merchant is approved, guide the Merchant through the login and enrollment process on the NMI website for activating its account, including but not limited to execution by the Merchant of a Merchant Agreement, as applicable (which may be accomplished via electronic signature).

2.7. Approval. Activation of a Merchant’s account is subject to NMI’s approval in its sole discretion, and NMI reserves the right to refuse to activate or provide Services to any Merchant submitted by Company. In addition, activation of any third-party services will be subject to approval and acceptance by the applicable third party, and NMI makes no guarantees regarding such approval and acceptance. Notwithstanding any other provision in the Agreement, NMI may reject a Merchant if such entity had an existing contractual relationship with NMI as of the date of such referral or had previously been in contact with NMI or another sales representative of NMI concerning any of the Services.

2.8. Enrollment. If a Merchant is accepted and all information required to activate the Merchant’s account has been submitted, NMI will send an email message to the Merchant at the email address provided by Company, instructing the Merchant to take steps to activate its account, including but not limited to entering into a Merchant Agreement (which will identify the Services to be provided to such Merchant). Alternatively, with NMI’s written approval, Company may be permitted to enter into a Merchant Agreement on behalf of the referred Merchant. In such case, Company represents and warrants to NMI that: (a) Company has obtained all legal authority from the Merchant necessary to accept such terms on behalf of the Merchant; (b) has obtained all legal authority necessary to authorize Company or NMI to debit such Merchant’s bank account for fees and amounts owed to Company; and (c) Company is an agent for such Merchant.

2.9. Company Responsibilities. Company shall provide customer service and technical support to Merchants, in accordance with the applicable Merchant Agreement, and to its Sub-Affiliates, if applicable. For its Sub-Affiliates, Company will provide all customer service and technical support needs to its Sub-Affiliates; however, Company may look to NMI for account portal issues (such as login and generic support). Company shall not delegate performance of any of its obligations under these Partner Terms, other than to its own employees, without NMI’s prior written authorization. Company will ensure that all authorized persons performing such obligations are properly qualified and experienced to perform the same. Company shall be fully liable to NMI for any act or omission of its employees or any person with actual or apparent authority to act on behalf of Company.

2.10. NMI Marks. NMI grants to Partner, subject to the trademark terms and conditions set forth in the General Terms and Conditions, 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 Partner’s website and marketing materials in connection with Partner’s authorized use of the Services. NMI may from time to time update, supplement, or modify its list of Trademarks that it permits Partner to use in connection with these Partner Terms.

2.11. Marketing Materials. Company will submit to NMI any advertising and marketing materials Company proposes to use in connection with promoting the Services, and all such materials are subject to NMI’s prior written consent prior to use. Company’s performance of these Partner Terms and the Agreement will be at its own expense, and NMI will not be responsible to reimburse Company for any marketing materials created by Company or any marketing activities undertaken by Company.

2.12. Company Products and Agreements. Company will handle all service inquiries from Merchants relating to the Company Products. Upon notice of any updates to the Services or related APIs, Company will promptly implement the appropriate changes to the integration and/or Company Products that may be necessary as a result of such updates. Company’s provision of Company Products to Merchants will be subject to a separate agreement between Company and each Merchant, and NMI will have no obligations under any such agreement or in any way relating to the Company Products.

3. Fees

Company shall pay to NMI fees according to the applicable Order Form and subject to the terms of the General Terms and Conditions of this Agreement. Company will be responsible for the payment to NMI of all fees payable by any Sub-Affiliate under a Sub-Affiliate Agreements or a sublicense granted by Company.

3.1 Consumer Price Index Increases. At the sole discretion of NMI, effective on or subsequent to each successive anniversary of the date Services are initiated (the “Anniversary Date”), NMI may increase fees by the cumulative effect of the Consumer Price Index increase, as measured by the U.S. Bureau of Labor Statistics, over the twelve (12) month period preceding the Anniversary Date. Fee increases made pursuant to this Section 3.1 shall not be considered amendments under the General Terms and Conditions of this Agreement and a notice shall not be required prior to such increase.

3.2 General Increases. Separate from any increases outlined above in Section 3.1, effective on or subsequent to each successive Anniversary Date, NMI may increase fees at its discretion, provided that NMI will provide thirty (30) days written notice to Company. Company may terminate this Agreement by providing written notice within thirty (30) days following a fee increase made pursuant to this Section 3.2.

4. Compliance

4.1 Legal Compliance. Company shall comply at all times with, and shall require its Sub-Affiliates, if applicable, and Merchants to comply with, Laws and Rules. Company agrees to notify NMI of any changes to the Rules that it becomes aware of that may affect the Services. Company shall comply with, and shall ensure that its Merchants comply with, all NMI security protocols, notices and safeguards in effect during the term of these Partner Terms and any applicable Service Terms and the applicable Merchant Agreement. Company represents and warrants that it has taken such precautions as are necessary to ensure that its Data are protected and that its electronic systems are secure from breach, intrusion, or compromise by any unauthorized third parties. If Company’s or its third-party service provider’s system is breached or an unauthorized third party gains access to or has accessed data, Company shall notify the designated parties as required under the Laws and Rules and shall immediately notify NMI of such breach and take prompt action and precautions as necessary to prevent any further breach.

4.2 Company Conduct. Company will: (a) perform its obligations under these Partner Terms and any applicable Service Terms in the highest professional manner and in compliance with applicable law and Rules; (b) conduct its business in a manner that at all times reflects favorably on NMI and its reputation and goodwill; (c) avoid deceptive, misleading, abusive, and unethical practices and marketing material; (d) avoid disparaging NMI or its directors, officers, vendors, suppliers, and customers; and (e) not engage in any act or omission which may damage NMI’s reputation, business, data security, or goodwill, or which are otherwise detrimental to the achievement of NMI’s business objectives, in NMI’s sole discretion.

4.3 Prohibited Merchants. Company will not knowingly refer any Merchant which is engaged in a business that violates any applicable law or Rule or is otherwise prohibited from using the Services by the Payment Networks or a Third Party Service Provider, or which Company has reason to believe is operating in a fraudulent manner. Company will not store any nonpublic personal information related to these Partner Terms or any applicable Service Terms or any prospective, current, or former Merchant, including but not limited to transaction information or card numbers, without NMI’s prior written consent and then only in compliance with applicable Laws and Rules.

4.4 Company Personnel. Company shall not subcontract any of its obligations under the Agreement or these Partner Terms, other than to its own employees, without NMI’s prior written consent. Company will ensure that all of its employees and any other authorized person performing any obligation in connection with the Agreement or the Services (“Company Personnel“) is properly qualified and experienced. The acts and omissions of Company Personnel in connection with the Agreement or in performance of Company’s obligations under the Agreement will be deemed Company’s acts and omissions, and Company will be fully liable for all such acts and omissions of any Company Personnel. To the extent required by the Rules, NMI may conduct background checks on and obtain criminal and credit history reports for Company and/or any of Company’s owners, principals, directors, managers, or officers. NMI may require that Company conduct and submit to NMI background checks and criminal and credit history reports (including consumer reports) for its employees and authorized agents. NMI will have no responsibility for any cost or expense incurred by Company in connection with its operations or in performance of the Agreement. Company is solely responsible for paying (and NMI has no responsibility to withhold on Company’s behalf) any and all required federal, state and local taxes, including, but not limited to income taxes, FICA (Social Security), unemployment insurance, and disability insurance or workers’ compensation insurance with respect to Company’s employees and agents, as applicable.

4.5 Data Security. Company will be solely responsible for the Company Products, including the proper, error-free, and secure integration of such Company Products with the Services and all security of data (including without limitation cardholder and transaction data) accessed, stored on, or sent through such integration or Company’s networks and servers. Company represents and warrants that it has taken all precautions necessary to ensure that all Merchant data, cardholder data, and Personal Data are adequately protected and that the Company Products and Company’s networks, servers, and other electronic systems are secure from access, breach, intrusion, or compromise by any unauthorized third parties (including but not limited to those networks, servers, and electronic systems of any vendors or third parties used by Company). Company agrees not to use, disclose, sell, or disseminate any card, cardholder, or transaction data except as permitted or required by the Rules, a court order, governmental agency request or subpoena, or applicable law. NMI will not be liable for any security breach on any systems not owned by, or controlled by, NMI.

4.6 Hosting and Technical Support. The Services shall be hosted on servers owned or operated by NMI and/or its Third Party Service Providers. NMI will provide technical support to Company and its Merchants to assist Company in carrying out its obligations under these Partner Terms and any applicable Service Terms, as set forth on the Partner Support Schedule or as otherwise provided on the applicable Order Form or Fee Schedule.

4.7 U.K. Addendum. For Services offered by Network Merchants Limited or other NMI Affiliates in the United Kingdom, the obligations set forth in the U.K. Addendum (as referenced in the General Terms and Conditions) are applicable and Company is responsible for ensuring that each Merchant agrees to and complies with such obligations.

5. Liability

5.1 Company Warranties. Company represents and warrants that any Company Products: (a) will be compliant with the Rules and certified under PCI-DSS and any other security standards required under the Agreement or the Rules; (b) do not contain, and will not introduce into NMI’s or any Merchant’s systems or networks, any virus or other malicious code; (c) do not contain any “copyleft” code that, if integrated with the Services, would require NMI to disclose software code included in the Services or distribute any intellectual property rights of NMI under a reciprocal license; and (d) do not and will not violate or infringe any intellectual property rights of any third party. Company understands and agrees that errors in the Company Products or integrations may result in fees, Merchant chargebacks, declined transactions, failed transactions, data breaches, and other liabilities, all of which will be Company’s sole responsibility. Furthermore, for each Merchant boarded or to whom Company grants access to the Services, Company represents and warrants that to the best of its knowledge: (i) such Merchant will only use the Services in connection with such bona fide business operation and in accordance with all applicable laws, regulations, and Rules; and (ii) such Merchant is not engaged in any fraudulent business operation or any business operation prohibited by any applicable law, regulation, or Rule. Lastly, for any sublicenses granted by Company to Sub-Affiliates, Company represents and warrants that it will comply with the requirements set forth in 2.2 of these Partners Terms for such Sub-Affiliates.

5.2 Merchant Losses. Except as otherwise provided in the Agreement, Company will not be responsible for Merchant Losses arising under Merchant Agreements. Notwithstanding the foregoing, however, Merchant Losses do not include, and in all cases Company will remain liable for, any Merchant Losses and other amounts incurred by NMI under the Agreement that are attributable in whole or in part to: (a) intentional misrepresentation, fraud, willful or intentional acts or omissions or negligence of Company or its agents, or the failure of any of such persons to comply with applicable Laws and Rules; (b) Company’s breach of any provision of the Agreement; (c) any Merchant Application submitted by Company that Company knows or should have known contains inaccuracies and/ or omissions; (d) any data or security breach caused by the actions of Company or any of its agents or service providers; or (e) any assessments, fines, penalties or other amounts (however labeled) imposed by a Payment Network or any governmental or regulatory body as a result of any action or inaction by Company or any of its employees or agents. Such obligations and amounts incurred will be deemed direct, not indirect or consequential, damages, and will be collectible notwithstanding any provision in the Agreement to the contrary.

5.3 Indemnification. In addition to any other indemnities set forth in the General Terms and Conditions, Company agrees to 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 any of the following: (a) the reliability, accuracy, or legitimacy of payment Data or purchase orders submitted by Company or its Merchants to NMI; (b) transactions submitted by Company or its Merchants to NMI and rejected by NMI or an issuing bank; (c) any claims by Company’s Merchants, including, without limitation, claims relating to the disclosure of consumer Data; (d) any Merchant Agreement, including any breach thereof by Company or a Merchant; (e) any violation of NMI’s then current policies or guidelines applicable to Company or any Merchants. In the event Company causes fines, assessments, or penalties to be charged to NMI by the Payment Networks or any other entity, Company agrees to immediately reimburse NMI for said fines and penalties; or (f) the performance of Company’s Sub-Affiliates, including all acts and omissions of Sub-Affiliates, and the terms and conditions of the Sub-Affiliate Agreement entered into between Company and each Sub-Affiliate. The parties agree that any such Payment Network charge, assessment, fine or penalty are direct, and not indirect, special or consequential damages.

6. Termination

6.1 Transition Assistance. Upon termination of these Partner Terms, the parties will work together in good faith to devise a mutually acceptable wind-down strategy so as to minimize disruption to Merchants. Where a data transfer from NMI’s systems to Company or a third party is requested, NMI shall propose to Company standard pricing fees and terms to be agreed upon by Company and NMI prior to execution of the data transfer. Notwithstanding the termination of the Service(s), for a transition period of up to one hundred eighty (180) days as requested by either party following the termination of the Agreement or any part thereof, each party shall continue to have the same rights and obligations under the Agreement as such party had under the Agreement during the Term, and the parties will cooperate in good faith to ensure the orderly wind down or transition of the Services, including providing such other transition support as reasonably requested by the other party.

6.2 Non-Solicitation. Company will not, during the term of the Agreement and for three (3) years after termination of the Agreement, Company and each principal, affiliate, employee, and agent of Company will not, directly or indirectly (a) induce or attempt to induce any Merchant to modify or terminate its business association with NMI; (b) offer (or induce or facilitate the making of any such offer) employment to, enter into a contract for services of, or attempt to solicit away from NMI any employee of NMI; or (c) interfere with NMI’s relationship with any Merchant, vendor, or agent. The parties acknowledge that any breach of these non-solicitation provisions will cause immediate, irreparable and continuing damage to NMI for which there is no adequate remedy at law. Consequently, the parties acknowledge and agree that in the event of any breach or threatened breach of these non-solicitation provisions, NMI shall be entitled to temporary, preliminary, and permanent injunctive relief enjoining such breach or threatened breach and such other legal and equitable remedies as may be provided by applicable law, without the necessity of posting any bond or other security, including damages, costs of suit and attorney’s fees. This Section will survive termination of the Agreement.

 

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Gateway Service Terms (Partner)

OMNI, CARDEASE, and USAePay

1. Interpretation; Definitions

1.1 Gateway Services. If Company is signing up to market, promote and offer the NMI gateway services, which may individually be referred to as OMNI, CARDEASE, and USAePay, as applicable (collectively referred to as the “Gateway Services” or “Services“) to Merchants, the following Gateway Service Terms (“Gateway Service Terms“) will apply in addition to the Agreement, and any other applicable terms and conditions.

1.2 NMI Affiliate. The NMI Affiliate providing the Gateway Services is set forth below. For the purposes of these Gateway Service Terms, references to “NMI” will refer to such NMI Affiliate.

(a) In the U.S.:

i. Network Merchants, LLC (for all Gateway Services other than the USAePay Gateway); or

ii. Gor Corporation d/b/a USAePay (for USAePay Gateway).

(b) In the U.K.:

i. Network Merchants, Ltd (and in such case, the UK Country Addendum referenced in the General Terms and Conditions will apply).

1.3 Additional Definitions. Capitalized terms used but not defined in these Gateway Service Terms will have the meanings given to them in the General Terms and Conditions, the Partner Terms, or elsewhere in the Agreement. In addition, the following definitions will apply to these Gateway Service Terms:

“Authorization” means a validation of a Transaction by Issuer.

“Acquirer” means a bank, processor, financial institution, or NMI itself, as applicable when such acquiring services are engaged by the Company, with which the Company uses for the acceptance of Transactions.

“Company Interface” means the interface properly developed by Company using the SDK.

“Failure” means a correction of a Transaction by Issuer.

“Issuer” means a bank or other financial institution issuing a payment card on behalf of a Card Brand or issuing a payment card directly.

“Merchant Device” means the device used by a Merchant to process Transactions, which may include (as applicable and as supported by NMI): (a) mobile phones, smartphones, tablets, PDAs, computers and other devices; and/or (b) merchant terminals, including a machine in which a PIN entry device (PED) is installed or linked to.

“Merchant Portal” means the platform operated by NMI which allows Merchants to access the Services.

“Partner Portal” means the platform operated by NMI which allows Company to manage the Services and Merchant Portals of its respective Merchants.

“Transaction” means any billable occurrence completed, evaluated, submitted, or facilitated through or using the Services (regardless of whether approved or declined), including but not limited to any sale, void, refund, credit, offline force, capture, authorization, validate, update, or settlement.

2. The Services

2.1 NMI shall, during the Term, provide to Company for the distribution to Merchants in accordance with the Agreement, the Gateway Services set forth in these Gateway Service Terms, and any Extensions or other optional services (as applicable) as indicated on the Order Form.

2.2 PCI. Company shall comply with and shall ensure that each Merchant complies with all PCI Security Standards applicable to Company and/or the Merchant, as applicable, and any PCI DSS,PCI P2PE, PA DSS, or applicable policies and procedures provided to it by NMI.

2.3 White Label. If NMI has agreed to white label its Services (as indicated on the applicable Order Form), Company will be required to enter into a Merchant Agreement with each Merchant boarded by Company, and Company has the following 2 options for the Merchant Agreement pursuant to this White Label section:

a) Company may use the White Label template provided by NMI, as may be updated by NMI from time to time to address legal, regulatory or contractual requirements. Although Company may use the White Label Template for Partner/Merchant Terms provided to it by NMI, any such White Label template provided by NMI for purposes of this section is only a suggested template and NMI disclaims any liability for the contents of the White Label template and Company’s use of or Merchant’s agreement to such White Label template terms. Company is the party responsible for ensuring that its Merchant Application, whether or not Company uses the White Label template, complies with the Rules and Laws and is updated accordingly with any changes to applicable Rules and Laws.

b) Company may generate its own Merchant Agreement, as required pursuant to this section, and Company represents and warrants that such Merchant Agreement will contain, at a minimum, provisions at least as protective of NMI and NMI’s Intellectual Property as the White Label Template for Partner/Merchant Terms.

For certain Services, as determined by NMI in its sole discretion, NMI must be a party to the Merchant Agreements. For other Services, each Merchant Agreement will be an agreement between the Merchant and Company only.

2.4 Card Testing. If Company requests to opt out of NMI’s Card Testing Prevention Tool, the Card Testing Opt Out terms will apply.

2.5 Special Requests. NMI’s policy is to truncate financial account numbers and to not process unmatched credits. Company may request exceptions to these policies, which may be granted or denied in NMI’s sole discretion. In the event NMI grants an exception, the Special Request Terms will apply.

3. Merchant and Partner Portals

3.1 NMI shall provide Merchants with access to the Merchant Portal to allow Merchant to receive Transactions and send the required data related to the Transaction to an Acquirer. NMI shall then receive the response from the Acquirer and confirm the related Authorization or Failure.

3.2 Merchant Portal shall also provide Merchants with access to additional core and Extensions via Merchant Portal as more fully described on the NMI website. The Company acknowledges that the Merchant can access the available functionality (such as, but not limited to, currencies and cards accepted) of the Services via the Merchant Portal and that any features not offered through the Merchant Portal will not be available to Merchants.

3.3 NMI shall provide Company with access to the Partner Portal. Partner Portal allows the Company to access information relating to the Merchant, review transactions conducted by Merchants, make service selections for Merchants, make Services available to Merchants through the Merchant Portal and manage the Services on the Merchant’s behalf.

3.4 Subject to the terms of these Gateway Service Terms, NMI shall permit Company to brand the Partner Portal and that Company’s respective Merchant Portals with its own branding and intellectual property.

3.5 Company is responsible for ensuring that any data added to the Partner Portal and Merchant Portal (either by Company or by any Merchant) is correct. NMI has no responsibility for and shall have no liability to the Company (or any Merchant) in respect of or connected to incorrect, inaccurate, or incomplete data added to the Partner Portal and/or Merchant Portal.

4. Fees

4.1 Platform Monthly Minimum Fee. If the Order Form specifies an amount as the Platform Monthly Minimum Fee, the following shall apply. Unless otherwise noted on the Order Form, after ninety (90) days, the lesser of (a) the Platform Monthly Minimum Fee or (b) the Platform Monthly Minimum Fee less the prior month’s gateway fees will be charged if the Company has not generated the Platform Monthly Minimum in gateway fees in the previous month. The fee shall not result if the Platform Monthly Minimum Fee has been met in gateway fees that have been generated in the prior month.

For OMNI and USAePay

4.2 Referral Fees/Commissions. NMI shall collect fees for the above Services in one of the following two ways set forth below in this Fees section, or a combination thereof, in each case as mutually agreed to by NMI and Company.

4.2.1 Merchant Debiting. If the Merchant Debiting option is selected, NMI will debit fees directly from Merchants, pursuant to the payment terms set forth in the applicable Merchant Agreement, for Services provided to such Merchants, and pay Company Commissions on such fees collected from such Merchants, less fees charged to Company under the Agreement (as set forth in the Fee Schedule/Order Form). Commissions will be paid to Company on the twenty-fifth (25th) day of each month following the month NMI collects the applicable fees from the Merchant. For clarity, Company will only receive Commissions on fees that are actually collected and retained by NMI from the Merchants. Commissions will not be owed where payments owed from Merchants are overdue and require collection efforts by NMI. If NMI is unable to collect fees from Merchants for any reason, such fees shall be deducted from Company’s earned Commission or withdrawn from Company’s depository account. NMI reserves the right to terminate Commissions to Company without prior notice if Company is in breach of the Agreement. The minimum Commission payment will be $50.00. If the minimum $50.00 has not been earned in a given month, the Commissions are not lost but are carried over to the next month and will be paid when the aggregate amount in Commissions due equals or exceeds $50.00. If the amount collected from Merchants does not equal or exceed the amounts due from Company, Company will be responsible to reimburse NMI for the shortfall.

4.2.2 Company Debiting. If the Company Debiting option is selected, NMI will debit fees directly from Company, pursuant to the General Terms, for Services provided to Company’s Merchants, in the amounts set forth in the Fee Schedule/Order Form. 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. Company authorizes NMI to initiate transaction entries to Company’s depositories account. This authority will remain in full force and effect until NMI receives written notification from Company of its request for termination in such time as to afford NMI and Company’s depository institution a reasonable opportunity to acknowledge and respond to the request. Company shall owe the amounts invoiced regardless of whether Company is able to collect its fees from its Merchants.

4.3 Default Fee Increases. Fees applicable to Merchants and sub-affiliates may be automatically adjusted from time to time by a proportion equal to the percentage fee increase applied by NMI to Company pursuant to the Agreement. The price increase described herein is controlled and set as the “Default” option in the Partner Portal. The Company shall, in its sole discretion, set the fees applied to its Merchants and sub-affiliates and may opt out of the Default setting by contacting support@nmi.com or changing their pricing to customers within the portal.

5. Merchant Agreements / Sublicenses

5.1 Company may sub-license the rights granted to it to Merchants under a Merchant Agreement between Company and the Merchant, provided that Company shall ensure that the terms of any sub-license are: (a) enforceable and in writing; (b) provide at least the same level of protection to NMI as set out in the Agreement; and (c) the Merchants shall not have the right to sub-license its rights.

5.2 Company shall promptly provide NMI with a copy of the Merchant Agreement on request.

5.3 Company shall be liable for all acts and omissions of all Merchants and shall indemnify NMI against all losses, liabilities, costs, expenses, and damages incurred or suffered by NMI, or for which NMI may become liable, arising out of any act or omission of any Merchant.

6. Transaction Processing

6.1 NMI shall receive Transactions from the Merchant Device and send the required data related to the Transaction to an Acquirer. NMI shall then receive the response from the Acquirer and send the related Authorization or Failure to the Merchant Device.

7. Merchant Portal

7.1 NMI shall provide a website that allows Merchants to access Transaction history and perform the following basic functions: (a) generate and download reports; (b) perform refunds; and (c) process ad hoc card-not-present authorizations and refunds.

8. Terminal Management System (TMS)

8.1 In some instances, NMI may provide a terminal management system that enables the Merchant Device to download configuration data and firmware for the Merchant Device (and any associated terminal).

8.2 NMI is not responsible for and shall have no liability to Company in respect of any and all information, data and/or updates provided by a third party and sent through the TMS.

9. Software Development Kit

9.1 If so indicated on the Order Form, NMI shall provide Company a software development kit (“SDK“), which shall comprise of the:

9.1.1 software development kit; and

9.1.2 associated documentation (which may include technical specifications, files format documentation and API information).

9.2 Subject to the terms of the Agreement, NMI hereby grants to Company a non-exclusive and non-transferable license for the Term, to use the SDK in accordance with the written materials provided by NMI (including any technical specifications, file format documentation and API information), strictly as follows to:

9.2.1 develop Company Interface and make a limited and reasonable number of copies of the SDK for such purpose; and

9.2.2 subject to this Section, use the SDK to the extent that such is incorporated into Company Interface to provide services to Merchants.

9.3 The provisions set out in this Section shall apply where NMI provides the SDK to Company.

9.4 Company acknowledges and accepts that NMI is not responsible for and shall have no liability to Company (or any Merchant) for:

9.4.1 Merchant Devices (including all software, firmware and operating systems located on the Merchant Device and its processing capacity, and including any certifications and configurations (including online PIN key loading arrangements where applicable));

9.4.2 any change (including updates and new releases) to Merchant Devices (including where such change results in the SDK becoming unusable (in full or in part));

9.4.3 Merchant Device’s ability to connect to public networks and/or Bluetooth (as applicable);

9.4.4 availability of any public network, internet, or wireless and mobile technologies (including where unavailability results in failure to send communications related or connected to the SDK); and/or

9.4.5 functions connected or related to the processing of transactions (including transaction authorization) provided by acquiring banks, payment processors or payment facilitators.

9.5 For the purposes of this Section, Company shall be permitted to upload Company Interface to applicable App Stores.

10. SECOND LINE MERCHANT SUPPORT

10.1 The following definitions shall apply in this Section:

First Line Merchant Support Team	Company’s personnel (or a third party on behalf of Company) providing the first line support, assistance, and guidance to Merchants.
Respond / Response	an acknowledgement by email or telephone of a Support Request.
Support Request	a valid request for support made in accordance with this Section.

 

10.2 NMI shall provide second line support to the First Line Merchant Support Team on issues relating to the Merchant’s use of the Services reported to NMI in accordance with Section. Company acknowledges and accepts that such second line merchant support shall not include support:

10.2.1 provided by NMI directly to Merchant(s) (save where NMI (in its sole) discretion requests the same);

10.2.2 where the First Line Merchant Support Team has not used every effort to resolve the issue;

10.2.3 where the First Line Merchant Support Team has not undertaken a reasonable level of diagnosis and reasonable steps to resolve the issue; and

10.2.4 on issues not directly related to the Services (including support on the Merchant Device and public networks).

10.3 Company is responsible for providing first line support, assistance, and guidance to Merchants and not NMI.

10.4 Company may make a request for support in accordance with NMI’s procedures, as may be modified from time to time.

11. MERCHANT BOARDING AND SET UP

11.1 This Section will apply in cases where boarding is provided.

11.2 Company must submit boarding requests in accordance with the merchant boarding procedure established by NMI from time to time.

11.3 Company will assist Merchants in completing all documentation required for use of the Services.

11.4 In addition to the fees set forth on the Fee Schedule, where Company requests NMI assistance with the boarding process, NMI will charge to Company and Company will pay to NMI all reasonably incurred costs and expenses (including employee time).

11.5 Company acknowledges and accepts that it is solely responsible for ensuring that all information and data provided in the boarding and set-up process is complete and accurate, and for the provision of the merchant identification and Acquirer TIDs (or equivalent) to NMI. NMI will have no responsibility for any incorrect, inaccurate, or incomplete data provided by Company or any other third party in the boarding and set-up process.

11.6 NMI is not responsible for and shall have no liability to Company in respect of any and all information, data and/or updates provided by a third party and sent through the Services.

11.7 Partner Portal Boarding. If the Order Form includes Partner Portal boarding, the following terms apply.

11.7.1 Company acknowledges and accepts that the Partner Portal boarding method is only recommended by NMI for low volume boarding (under 20 users/month or for the purposes of a limited pilot)).

11.7.2 Company acknowledges and accepts that Partner Portal boarding shall not include:

11.7.2.1 verification by NMI of any Merchant information submitted in the boarding process;

or

11.7.2.2 test transactions.

11.8 API Boarding. If the Order Form includes API boarding, the following terms apply:

11.8.1 API boarding shall provide Company with a web service interface or application programming interface that allows access to Partner Portal for boarding purposes.

11.8.2 Company acknowledges and accepts that API boarding shall not include:

11.8.2.1 verification by NMI of any Merchant User information submitted in the boarding process; or

11.8.2.2 test transactions.

Gateway Services — Card Testing Prevention Opt Out Request Form

If Company Personnel has requested to opt out of NMI’s Card Testing Prevention Tool, Company agrees the following will apply:

Company requests that NMI deactivate the Card Testing Prevention Tool on Company’s and/or its agent’s or Merchant’s account. Company understands that by opting-out of the Card Testing Prevention Tool, Company and its agents and Merchants will no longer have access to an additional layer of security that may prevent a card testing attack.

For the avoidance of doubt, NMI is not responsible for any fraudulent activity, including but not limited to card testing on any Company or its agents’ or Merchants’ accounts. NMI shall still maintain the right to restrict or otherwise suspend access to the Services, if necessary to comply with all Laws necessary to protect the Services.

Company represents and warrants that it is authorized to opt-out of the Card Testing Prevention Tool for Company and its agents and Merchants. Company agrees to assume any and all risk, loss and liability incurred by Company or its agents and Merchants on whose behalf Company is authorizing NMI to opt-out of the Card Testing Prevention Tool.

Notwithstanding anything to the contrary contained in any agreement between Company and NMI or any agreement NMI has with any Merchant or agent, to the maximum extent permitted by law and in addition to any indemnification obligations Company may otherwise have, Company will defend, indemnify and hold NMI and any of its officers, directors, agents and employees harmless from and against any third party claims, actions, proceedings, suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses including reasonable costs and attorneys’ fees and other legal expenses incurred by NMI arising out of or relating to Company opting-out Company or its agents and Merchants from the Card Testing Prevention Tool. For the avoidance of doubt, any Company direct charges, third party charges, fines, fees or other expenses incurred in connection with a card testing attack or any other unauthorized or fraudulent card activity which could have been prevented by utilizing the Card Testing Prevention Tool, whether billed directly by such third party or through NMI shall be the sole responsibility of Company and any such Merchant or agent. This provision shall not be subject to a limitation of liability. If there is any inconsistency between any rights NMI may be entitled to under any existing agreement and this Opt Out Form, the terms of this Opt Out Form shall control.

I, the undersigned, hereby request to opt out of the Card Testing Prevention Tool provided by NMI. I understand that by opting out, I may lose access to certain features or services. I acknowledge that this action is voluntary and that I have read and understood the terms and conditions related to opting out.

Company:
Signature:
Name:
Title:
Date:

Gateway Services — Special Request Terms

1. Unmatched Credit Acknowledgment

In the event that Company requests NMI to process credit transactions that do not correspond to identified sales transactions in the same amount and at the same merchant (“Unmatched Credits“), these Unmatched Credit terms shall apply. Company understands that initiating Unmatched Credits removes the verification check that otherwise would be present if such credit transaction could be matched to a sales transaction, and that NMI advises not to initiate such Unmatched Credit transactions. Therefore, Company agrees to assume all risk of loss on and liability arising out of Unmatched Credits incurred by NMI or by Company or by any Merchant on whose behalf Company is authorizing NMI to initiate Unmatched Credits. Company represents and warrants that it is authorized by Merchant to initiate Unmatched Credits for the subject Merchant. Notwithstanding anything to the contrary contained in any agreement Company has or any agreement any Merchant has with NMI, to the maximum extent permitted by law and in addition to any indemnity obligations Company may otherwise have under the Agreement or otherwise, Company will completely defend, hold harmless and indemnify NMI and its employees and agents from and against any claim, threat of claim, and Losses incurred by NMI or brought by any third party against NMI arising out of any Unmatched Credit initiated by Company or on Company’s behalf. The obligations of Company under this Section shall not be subject to any limitation of liability. If there is any inconsistency between these Unmatched Credits terms and the terms of any agreement Company has entered into, these Unmatched Credits terms will prevail.

2. Unmasked Sensitive Processor Information Acknowledgment

In the event Company requests NMI to unmask certain sensitive processor information, including but not limited to merchant identification numbers or related merchant identifying information, terminal identification numbers, and passwords (collectively, “Processor Information“), that NMI routinely truncates in order to protect such information from fraudulent use, Company understands that (i) these unmasked Processor Information terms shall apply and (ii) revealing Processor Information in the clear removes the protection afforded such information that otherwise would be present if Processor Information was masked, and that NMI advises not to unmask such Processor Information. Therefore, Company agrees to assume all risk of loss on and liability incurred by it or by any Merchant on whose behalf it is requesting NMI unmask Processor Information. Company represents and warrants that it is authorized to make such request for the subject Merchant. Notwithstanding anything to the contrary contained in any agreement Company has or any agreement any Merchant has with NMI, to the maximum extent permitted by law and in addition to any indemnity obligations Company may otherwise have, Company will defend, hold harmless and indemnify NMI and its employees and agents from and against any claim, threat of claim, and Losses incurred by NMI or brought by any third party against NMI arising out of complying with Company’s request to unmask Processor Information. The previous sentence shall not be subject to any limitation of liability. If there is any inconsistency between these unmasked Processor Information terms and the terms of any agreement Company has entered into, these unmasked Processor Information terms will prevail.

Gateway Services – Paid Support Service Terms

Company may offer Paid Support Services, as indicated on the Order Form, which are subject to this Agreement.

 

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Processing Service Terms (Partner)

1.Definitions; Interpretation

1.1. Processing Services. If Company is signing up to market, promote, and offer NMI Payments processing / acquiring services to Merchants, these Processing Service Terms will apply to Company’s Agreement, in addition to the General Terms and Conditions, the Partner Terms, and the Order Form(s) (and any schedules or other documents referenced in any of the foregoing). As applicable, the Processor Services described in these Processing Service Terms will be integrated and provided together with NMI’s gateway or other Services, which Services will be subject to separate Service Terms.

1.2. NMI Affiliate. Anovia Payments, LLC is the NMI Affiliate providing the Processing Services under these Processing Service Terms, and for purposes of these Processing Service Terms, all references to “NMI” will refer to such NMI Affiliate only.

1.3. Additional Definitions. Capitalized terms used but not defined in these Service Terms will have the meanings given to them in the General Terms and Conditions, the Partner Terms, or elsewhere in the Agreement. In addition, the following definitions will apply to these Service Terms only.

“Processing Agreement” means an agreement between a Merchant and the Processor (and/or its sponsoring financial institution or other applicable Third Party Service Provider) pursuant to which the Processor (and/or the Third Party Service Provider) provides the Merchant with a merchant processing account and payment processing services. The Processing Agreement is available at NMI Payments Merchant Processing Agreement or such other location as provided by NMI or the Processor/Third Party Service Provider, as the same may be amended or updated from time to time. In the event Company is signing up for Gateway Services in addition to Processing Services, the Processing Agreement shall be the following NMI Payments Merchant Processing and Gateway Agreement. 

“Processor” means the applicable Third Party Service Provider (which may be an NMI Affiliate), and/or its sponsoring financial institution, as applicable, providing the Processor Services to Merchants pursuant to these Processing Service Terms and a Processing Agreement. NMI may update the Processor with written notice to Company or the applicable Merchants. As of the date of these Service Terms, the designated Processor is Anovia Payments, LLC. 

“Processor Services” means the payment processing services provided by the Processor to Merchants pursuant to a Processing Agreement. The Processor Services are integrated with and accessible through the Services.

2. Marketing Activities

2.1. Merchant Enrollment. Prior to allowing any prospective Merchant to access or use the Processor Services, Company will ensure that each such Merchant has completed NMI’s registration process and has executed a valid Merchant Agreement and Processor Agreement, as applicable. For the avoidance of doubt, a Merchant Agreement is only required if Merchant is receiving one (or more) of NMI’s gateway offerings, in addition to Processing Services. Company must use and present to Merchants the forms of Merchant Agreement and Processor Agreement as communicated to Company by NMI (which forms are subject to change from time to time in NMI’s sole discretion with written notice to Company). Company may not make any changes to the Merchant Agreements or Processor Agreements without NMI’s prior written approval.

2.2. Merchant Review and Approval. NMI and its sponsoring financial institution will review prospective Merchants submitted by Company and may accept or reject a prospective Merchant in their sole and absolute discretion. Company agrees to use best efforts to promptly collect any information reasonably requested by NMI for purposes including, but not limited to, underwriting Merchants, researching transactions, or resolving chargebacks. Company will not attempt to onboard a Merchant located outside of supported territories or that operates in a prohibited industry as listed in the Processor Agreement or on any other such list promulgated by the Processor or the Payment Networks. Company will notify NMI of any material changes to Company’s business, including the types of services it provides, the kinds of payments it processes, the types of Merchants it serves, or Company’s financial stability or solvency. NMI may, in its sole discretion, modify or terminate any Merchant Agreement or Processor Agreement in accordance with the terms of such Merchant Agreement or Processor Agreement.

2.3. Merchant Agreements. For the purposes of these Partner Terms, the Merchant Agreement will be between the Merchant and NMI only. Company will not be a party to the Merchant Agreement. The Merchant Agreement will include the provision of one (or more) of NMI’s gateway offerings and will require Merchant to also enter into a Processor Agreement with NMI and its sponsoring financial institution. Notwithstanding any other provision of the Agreement, NMI may assign any Merchant Agreement to any third party designated by NMI, and may cause the assignment of any Processing Agreement to NMI or to any third party designated by NMI, all in NMI’s sole discretion, without consent from or prior notice to Company.

2.4. Merchant Consents. Company represents that it has obtained all required consents from Merchants to share Merchant information and data with NMI and its sponsoring financial institution and that such consent allows NMI and its sponsoring financial institution to share such information with Company and third parties in connection with the provision of the Services and Processor Services. Company shall enter into an agreement with each Merchant that (a) accurately explains the services offered, including the role of all parties; (b) clearly and accurately describes all fees that Company is charging; (c) allows relevant Merchant data and payment method data to be shared with NMI and its sponsoring financial institution, as well as exported to Company or Company’s designee at any time; and (d) requires Merchant to agree to the Processing Agreement, including the right for NMI to amend the terms at any time on notice.

2.5. Processor Integration. The Services are integrated with the Processor Services provided by NMI and are used to facilitate Merchant transactions processed by NMI and its sponsoring financial institution. Accordingly, use of the Services requires that Merchants have a current Processing Agreement and a valid merchant account with Processor. Processor will provide transaction processing to Merchants in accordance with such Processing Agreement. Processor will perform Merchant onboarding, underwriting, and ongoing monitoring on behalf of Company, and NMI has no control over whether Processor accepts or rejects a prospective Merchant solicited by Company. NMI is not the provider of any Processor Services and is not a party to any Processing Agreement or any other agreement between any Merchant and Processor. Company acknowledges and agrees that Processor may, in its sole discretion, suspend or terminate any Merchant at any time, upon notice, if: (a) the Merchant or Company has violated (or if continuing to process transactions would violate) the Agreement, the Processor Agreement, applicable law, Rules, or other program standards; (b) the Merchant or Merchant’s transactions create increased reputational or unreasonable financial risk for Processor; or (c) a Payment Network or sponsoring bank terminates or asks Processor to terminate the Merchant; Processor’s exercise of any of these rights will be without recourse to Processor or NMI. Company further acknowledges and agrees that as a necessary part of Processor’s risk monitoring services, Processor retains the right, in its sole discretion, to limit transaction size and types, limit Merchant processing volume or ability to process transactions, hold payments or payouts for manual review, or hold Merchant payouts in reserve.

2.6. Updates. Company agrees to make all reasonably required updates to the technical integration needed to resolve security issues, decrease financial risk, or comply with applicable law, Rules, or other program standards. NMI will use reasonable efforts to provide reasonable advance notice of any required integration updates (including without limitation involving integration with the Processor Services), but Company acknowledges that this may not be possible in all cases due to more immediate security, risk, compliance, or regulatory concerns.

3. Payment Terms

3.1. Commissions and Fees. Company appoints NMI (or such other third party designated by NMI) as its agents for the limited purpose of billing and collecting fees from Merchants in accordance with the Agreement (provided, however, that the parties expressly agree that no fiduciary relationship, partnership, or joint venture is created by this limited agency, and that Company and NMI remain at all times in an arm’s length commercial relationship). Processor (or another third party designated by NMI) will remit Commissions to Company on a monthly basis (on or before the end of each subsequent month) with respect to prior month’s activity, after netting fees and other amounts charged by NMI (as set forth on the Fee Schedule), which Processor will remit to NMI. Commissions will be based on net revenues actually received and retained by NMI attributable to Merchants and NMI will have no obligation to pay any Commissions if NMI has not received its corresponding revenue from Processor. NMI may amend the Fee Schedule upon thirty (30) days’ notice to Merchant, provided that fees imposed by the Payment Networks and other third parties and passed through to Company or Merchants may be updated at any time without prior notice. NMI will use reasonable efforts to provide written notice of changes to third-party fees but prior notice may not always be possible. Without liming the foregoing, Company understands and agrees that certain risk management fees may be updated by NMI at any time to account for increased costs or exposure based on the actual performance of one or more of Company’s Merchants. Changes in such risk management fees will be applied prospectively from when the change is implemented, and not retrospectively. The obligation to pay Commissions will cease immediately if Company: (a) violates the non-solicitation obligations under the Agreement; (b) fails to remain in compliance with all terms and conditions of the Agreement, the Rules, the policies, standards or procedures of NMI or applicable law or regulation; or (c) violates any confidentiality or intellectual property rights of NMI protected by the Agreement.

3.2. Merchant Fees. Merchant fees will be set by NMI in consultation with Company. Company may request the rates to be charged to Merchants, but NMI reserves the right to make adjustments to such pricing in its sole discretion. NMI also reserves the right to subsequently modify Merchant pricing from time to time in its sole discretion. In such case, NMI will use reasonable efforts to give Company advance notification of such pricing change (and the Merchant will be notified as provided in the applicable Merchant Agreement). However, Company will not be permitted to reprice a Merchant (up or down) once pricing is set for such Merchant, without NMI’s express written consent.

3.3. Payment Terms. NMI will net amounts owed to it under the Agreement from payment transaction amounts owed to Merchants under the Processing Agreement, and NMI will remit amounts owed to it under this Agreement. Company authorizes NMI and/or its designees to initiate Automated Clearing House (“ACH“) debits and/or credits to and from Company’s depository bank account as designated by Company for payment and collection of all Commissions, fees, and other amounts due under the Agreement. NMI reserves the right to offset from the Commissions or any funds credited to or owing to Company: (a) any amounts owed by Company to NMI ; and (b) any revenue paid to Company but that is uncollected from the Merchant. NMI will set off and deduct amounts owed to NMI from any amounts owed to Company under the Agreement. In the event that Company owes NMI more than NMI owes to Company in Commissions, Company authorizes NMI and/or its designees to collect all amounts owed via ACH.

 

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Merchant Relationship Management

(Agreement Express) Service Terms

1. Definitions; Interpretation

1.1 Additional Definitions. Capitalized terms used but not defined in these Agreement Express Service Terms will have the meanings given to them in the General Terms and Conditions, the Partner Terms, or elsewhere in the Agreement. In addition, the following definitions will apply to these Service Terms only.

“AEX Platform” means the online proprietary platform hosted by AEX and comprised of proprietary algorithms, software, and other technologies that allow Company to remotely integrate, distribute, digitally sign, and track documents.

“AEX Services” or “Services” means either or both of the Subscription Services and/or Professional Services.

“AEX Technology” means the AEX Platform, Subscription Services, the Documentation and all AEX and its Affiliate’s Intellectual Property Rights therein or associated therewith

“Content” means text, images, documents, materials, and all other forms of data or communication.

“Company Content” means all Content made available by Company or its Users to AEX for use in connection with the Services or generated by Company via use of the Services and includes, without limitation, all of Company’s contracts and agreements to be digitally signed in connection with the Subscription Service.

“Documentation” means any written documentation provided to Company by AEX which are related to and describe any AEX Services.

“NMI Content” means all Content made available by NMI to Company in connection with Company’s use of the Subscription Service.

“Professional Services” means those installation, set-up, integration, configuration, consulting, and/or training services to be provided by AEX as may be specified in an applicable Order Form.

“Subscription Service” means the services offered through the AEX Platform provided by AEX as described in, and pursuant to, an Order Form, for the benefit of Company.

“Users” means each employee or contractor of Company who has been granted access to the Subscription Service with the right to publish documents, Company Content or access the “Agreement Workspace” portion of the Subscription Service.

1.2 NMI Affiliate. Agreement Express Inc. (“AEX“) is the NMI Affiliate providing the Agreement Express Services under these Agreement Express Service Terms, and for the purposes of these Agreement Express Service Terms, references to “NMI” will refer to such NMI Affiliate only.

2. Agreement Express Services

2.1 AEX Services. During the Term, NMI will provide to Company the AEX Service, as set forth in the Order Form. Subject to the terms and conditions of this Agreement, AEX hereby grants to Company while the Order Form is in effect, a non-sublicensable, non-transferable and non-exclusive right to access and use the Subscription Service(s). AEX reserves all rights not expressly granted to Company hereunder.

2.2 Use of Subscription Services. The Subscription Services may only be used pursuant to these Agreement Express Service Terms. The license and permitted use terms with respect to the Subscription Services will be set forth in the applicable Order Form. NMI reserves all rights not expressly granted to Company under these Agreement Express Service Terms. NMI shall be free to use the ideas, concepts, techniques and know-how used and developed in connection with NMI’s offering of the Subscription Services.

2.3 Restrictions on Use. In addition to any restrictions set forth in the General Terms, Company further agrees that neither it, nor its employees, agents or contractors will: (a) use any of the AEX Services in a manner that violates any applicable law or regulation; (b) decompile, reverse engineer, disassemble or otherwise reduce the AEX Technology to a human perceivable form or permit any other party to do so; (c) copy, modify, adapt, translate, rent, lease, sublicense, loan, resell, distribute, time-share, or create and derivative work of the AEX Technology; (d) permit works based on the AEX Technology; (e) create derivative works based on the AEX Technology; (f) copy, frame, or mirror any part of the NMI Content or Subscription Services, other than copying or framing on Company’s own intranets or otherwise for its own internal business purposes as specifically authorized by AEX; or (g) use, provide access to, adapt, copy or otherwise exploit any AEX Technology or AEX Confidential Information (including any features, functions or graphics) in any way that would replace or obviate Company’s need for the AEX’ products or services, or directly or indirectly compete with AEX’ products and services. Company also may not permit or enable any other Person to do any of the foregoing. No Person other than Company and its Users may use or access the Subscription Services. All payments due NMI are based on the use of the applicable Services solely by Company and the authorized Users.

3. Proprietary Rights

3.1 Proprietary Rights. As between the NMI and Company, (a) each Party retains ownership to its Confidential Information, (b) NMI shall exclusively own all right, title and interest in and to the AEX Technology (and all of the underlying technology, software and analytics) and NMI Content, any models, methods, algorithms, discoveries, inventions, modifications, customizations, derivatives, materials, ideas and other work product that is conceived, originated or prepared in connection with the Services, AEX Technology or related to the Agreement, and all related Intellectual Property Rights, and (c) Company shall exclusively own all right, title and interest in and to any Company Content provided by Company. Company shall not remove or obscure any trademarks, copyright notices or other notices contained on materials accessed through the Subscription Services or AEX Technology.

3.4 Right to Use of Company Content. Company hereby grants to NMI a worldwide, non-exclusive, nontransferable (except as expressly provided herein), fully-paid license and right to use the Company Content to provide, improve or extend the AEX Technology and Subscription Services and other Services, including the right to perform research and development activities and to develop, provide and improve the Subscription Services and to offer additional services if allowed by Company and applicable law

4. Limited Warranties

4.1 Subscription Services Warranties. AEX warrants that while any Order Form is in effect for the Subscription Service, the Subscription Service will conform, in all material respects, to its Documentation from and after the Contract Effective Date. AEX does not warrant that it will be able to correct all reported defects or that use of the Subscription Service will be uninterrupted or error free. AEX makes no warranty regarding features or services provided by third parties. For any breach of the above warranty, Customer’s sole and exclusive remedy and the entire liability of AEX, in sole discretion by AEX, either: (a) correction of the defect or error that caused the breach of warranty; (b) replacement of the nonconforming item of the Subscription Service; or (c) in the event AEX reasonably determines that it is unable to cure such breach, termination of Customer’s right to use the Subscription Service and refund to Customer any prepaid unused fees paid for the Subscription Service (if any).

4.2 Professional Services Warranties. All warranties applicable to the Professional Services will be set forth in the applicable Order Form.

Merchant Relationship Management

(IRIS CRM) Service Terms

1.Definitions; Interpretation

1.1. Definitions. Capitalized terms used but not defined in these IRIS CRM Service Terms will have the meanings given to them in the General Terms and Conditions, the Partner Terms, or elsewhere in the Agreement. In addition, the following definitions will apply to these IRIS CRM Service Terms only.

“Account” means a merchant or other business that wishes to or has agreed to procure Account Services or Processor Services as a result of the direct or indirect solicitation by Company or any of its Users.

“Account Agreement” shall mean an agreement between any of Acquiring Bank, Processor, Gateway, and Company, on the one hand, and Account on the other hand, pursuant to which the Account receives Account Services.

“Account Portal” is a means of accessing the Service supplied by NMI and available to certain Accounts of the Company as per the terms of the Agreement and an Order Form.

“Account Services” means services supplied to Merchants by Processor, Acquiring Bank, Gateway, or Company, such as, for example purposes only, payment processing services for payment card transactions.

“Acquiring Bank” means any financial institution acting as part of a Payment Network and sponsor of Company or Company’s Affiliates.

“Company Data” means any and all electronic data or information submitted or transferred by Company, a User, an Acquiring Bank or a Processor, to NMI through the use of the Services, including, as it relates to an Account or any Account Principal/Customer, name, address, date of birth, social security number, driver’s license number, account number, credit or debit card number, or a personal identification number or password. Company Dialer Data is, without limitation, Company Data. Company Data does not include data that has been deleted from the Services or any data or libraries used by NMI to operate the Services or that is otherwise provided to NMI other than by Company or its Users or Processor in relation to Company. For the avoidance of doubt, Company Data is confidential and proprietary information of Company.

“Company Dialer Data” means data and other information made available to NMI through the use of the Dialer Services under these IRIS CRM Service Terms, including call records, audio recordings, recording transcriptions, SMS records, and SMS message content

“Company System” means the servers or computing systems owned, operated or controlled by the Company or otherwise used by the Company, its Affiliates, Users or Accounts in conjunction with the business of the Company.

“Fees” shall mean those fees and expenses for which Company is liable to pay NMI in consideration of the Services for itself and all its Users. Fees are defined herein and are posted from time to time on NMI’s website. In the event of any inconsistency between the Fees set out herein and those posted on the website, the latter shall prevail. All Fees charged on a per-Account basis are charged only on Active Accounts. All Fees indicated are exclusive of applicable taxes.

“IRIS Instance” means the NMI-hosted and managed instance of the Services supplied to Company under these IRIS CRM Service Terms through which Company may access the Services.

“Users” means individuals or entities who: (i) are authorized by Company to use the Services; (ii) for whom Subscriptions have been purchased by Company; (iii) who have agreed to the terms hereof; and who have been supplied user identifications and passwords for the Services by Company. Users may include, at the discretion of Company, Company employees, consultants, contractors and agents, Accounts; or other third parties with which Company transacts business for which the Services are a suitable complement. Company has the right to initiate and remove access to the Services for each of its Users. As between Company and each of its Users, Company shall dictate which of the Services herein each User may be entitled to use at any given time, if any.

“Subscription” shall mean the entitlement of an individual User to use the Services for a Term specified on the Order Form.

1.2. NMI Affiliate. Integrated Reporting is Simple LLC (“IRIS“) is the NMI Affiliate providing the Services under these IRIS CRM Service Terms, and for the purposes of these IRIS CRM Service Terms, references to “NMI” will refer to such NMI Affiliate only.

2. Service Terms

2.1 Services. NMI shall make the Services available to Company and Users selected by Company pursuant to these IRIS CRM Service Terms and applicable Order Form(s). Services are provided subject to, without limitation (the “Company Conditions“): (i) payment by Company of all applicable Fees; (ii) adherence of the Company to the terms of these IRIS CRM Service Terms; (ii) no prohibition on NMI providing the Services in respect of Company, its Processor, its Acquiring Bank or Payment Networks; (iii) adherence of the Company to the terms and conditions of the Processor Site; and (iv) adherence of the Company to the terms of the Processor Agreement. Company agrees that the Services are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by NMI regarding future functionality or features or the Services. NMI reserves the right to modify the Services by notice through the Services or by email to the Company. NMI also reserves the right to cease providing the Services on at least thirty (30) days’ notice through the Services or by email to the Company. Company will have the right to activate or deactivate the Services in respect of any given User at any time, subject to the terms of these IRIS CRM Service Terms.

2.1.1 Submitting Account Applications or Updating Account Information. To use the Services, there is required submission of Account information to an Acquiring Bank, Processor, and/or Gateway through NMI, which is a multi-stage process that requires the close attention of the Company and each User so as not to submit false or erroneous information to the Acquiring Bank, and/or Processor, and/or Gateway. Whether in good faith or not, the submission of false, erroneous or misleading information on an Account Application (defined below) or when updating Account information could result in grave and irreparable damages to the Company under its Processor Agreement, the Rules or otherwise. Any and all mistakes or fraud in the submission of such information by Company or any User shall be the sole and exclusive responsibility of Company and Users. Company and Users shall indemnify and hold NMI harmless from and against any and all liability in respect of the foregoing.

2.2. TurboApp. If Company has elected to use TurboApp, then NMI shall allow Users to access, complete, inspect and modify certain Account information fields within electronic facsimiles of Account Applications presented to the User through the Services. In so doing, the Company covenants that all of its Users shall input only Account information that is complete and accurate and that the applicable Acquiring Bank and, as applicable, Processor permits to be incorporated into the Services. NMI shall assume no liability in respect of any Account Information that is incorrect, either through Company, User or Processor error or otherwise, all of which information Company undertakes to scrutinize and review prior to submission to the Processor through TurboApp or otherwise. Without limitation to any of the other obligations of the Company and each User under these IRIS CRM Service Terms, when a User clicks “Submit Application” in relation to given Account Information for an Account Application for use of TurboApp it shall be required, at every instance, to agree with additional terms, which shall form part of these IRIS CRM Service Terms (the “User Submission Certification“).

2.2.1 Account Application Facsimile. As part of the setup of TurboApp, Company will be asked to assist in accepting or creating a facsimile of an account application (“Account Application“). Company hereby licenses to NMI the right to use the information, names and logos that it is instructed to include or that Company accepts to be included in the TurboApp and shall indemnify and hold NMI harmless for any claims by Processor, Acquiring Bank, Payment Networks or any other third party in respect of the use thereof within the Services for Company. Company assumes sole and exclusive responsibility for any discrepancies that may occur between the TurboApp Account Application and that which may be mandated by an Acquiring Bank and, as applicable, Processor.

2.2.3 Company Third Party Beneficiary of User Certification. The parties hereto agree that the Company is deemed to be a third party beneficiary in respect of each User Submission Certification. NMI shall, however, have no liability to Company, any User or any other third party in respect of any dispute between the two as to a User Submission Certification or otherwise and Company shall indemnify and hold NMI harmless from and against any claims related to a User Submission Certification.

2.2.4 Keeping Account Pricing Up to Date. From time to time, Processors and other third parties involved in Account Agreements and Processor Services, will increase or otherwise amend the pricing applicable to Accounts and Company for their services (each a “Account Price Change“). Company acknowledges and agrees that: (i) once a given Account Application has been submitted through TurboApp, the only means by which to implement an Account Price Change for the Account is for the Company to instruct the Processor/Acquiring Bank directly to make such change; and (ii) if the Company fails to implement an Account Price Change through direct communication with its Processor (and not through NMI) the change will not necessarily be implemented for Accounts and the Company may be liable to pay for the change byway of a direct and potentially material reduction in its compensation under a Processor Agreement. NMI does not provide any Account Price Change functionality.

2.2.5 E-Sign Service. The U.S. Federal Electronic Signatures in Global and National Commerce Act (“E- Sign Act“), provides that, subject to certain conditions, electronically executed documents are legally binding in the same manner as are hard copy documents executed by hand signature. Subject to payment of the applicable Fees, NMI shall provide the E-Sign Service (“E-Sign Service“) to Company. Subject to the parameters of the E-Sign Service, the E-Sign Service allows Company to facilitate in the presentation of its documents to third parties, such as, for example, Accounts, collect electronic signatures and create electronic records (each, an “Company Electronic Records“).

2.2.6 Company shall assume sole and exclusive responsibility for the content of each Company Electronic Record. For example, if Company wishes to create a contract using the E-Sign Service, Company shall provide the whole content of the contract as well as all fields that the parties to the contract are required to complete (each a “Record Field“).

2.2.7 In the event that Company wishes to ask third parties to enter sensitive or confidential personal information into an Company Electronic Record, such as tax ID numbers, EIN numbers, SSN numbers, bank account or routing numbers, then Company must use only the secure field option within the E-Sign Service for such records. Company shall ensure that it shall use the E-Sign Service in a manner that is consistent with the Company’s privacy policy.

2.2.8 When Company has completed an Company Electronic Record form with all disclosure, terms and Record Fields, the Company will be able to grant third parties access to the Company Electronic Record and obtain signatures on it through the E-Sign Service.

2.2.9 NMI makes no representation and assumes no liability for the legal effectiveness of any Company Electronic Record or related signature, all of which is the exclusive responsibility of the Company. NMI recommends that the Company consult legal counsel if it wishes to use the E-Sign Service to create legally binding agreements, as the enforceability of such agreements is the sole and exclusive responsibility of the Company and not NMI.

2.2.10 As and when the Company makes Company Electronic Records available for signature by third parties, such third parties will be presented with disclosure that applies to the E-Sign Services, which disclosure is incorporated herein by reference.

2.2.11 The E-Sign Service may require the use of third party applications or services, including those made available by Adobe or other third parties, and may be subject to additional terms and conditions established by the applicable third party provider. Company must agree to such terms and conditions to use those third party applications or services, and NMI will have no obligation with regard to, and makes no representation or warranty related to, those third party applications or services or any third party terms, conditions, or agreements.

2.2.12 After an Company Electronic Record is signed through the E-Sign Service, depending on the preferences selected by the Company, an electronic copy of the record may be sent by email to the Company or the third party or may be available for access through the E-Sign Service on the Site. Company is required to download and store on Company Systems copies of any and all Company Electronic Records, both signed and unsigned.

2.2.13 Company shall not use the E-Sign Services nor shall it permit any User to use them to create contracts other than with the full and enlightened consent of all parties thereto and in a manner consistent with the Company Privacy Policy.

2.3. Dialer Services

2.3.1 Provision of Services. NMI will make the Dialer Services available to Company and to its Users in accordance with these IRIS CRM Service Terms.

2.3.2 Company Dialer Data. Company Dialer Data shall be part of Company Data and shall be governed accordingly. Company shall use the Dialer Service in a manner that is consistent with the Company Privacy Policy.

2.3.3 Use of Dialer Services. If Company elects to purchase the Dialer Services, Company will be solely responsible for all use (whether or not authorized) of the Dialer Services under its Account, including for the quality and integrity of Company Dialer Data. Company is responsible for compliance of all its Users with the terms hereof including but not limited to those concerning restrictions on use, protection of proprietary rights, disclaimer of warranties and limitations of liability. Company will promptly notify NMI if it becomes aware of any breach of the terms of these IRIS CRM Service Terms that may affect NMI. Company will take all reasonable precautions to prevent unauthorized access to or use of the Dialer Services and notify NMI promptly of any such unauthorized access or use.

2.3.4 Restrictions. Except as expressly provided herein in respect of Users, Company will not transfer, resell, lease, license or otherwise make available the Dialer Services to third parties. In any event, the Company will not offer the Dialer Services on a standalone basis. Company will not use the Dialer Services to access or allow access to Emergency Services. Company will ensure that the Dialer Services provided hereunder are used in accordance with all Laws and third party rights, as well as the terms of these IRIS CRM Service Terms, including NMI’ Acceptable Use Policy, set out below. Specifically, and without limitation, Company will ensure that NMI is entitled to use the Company Dialer Data as needed to provide the Dialer Services and will not use the Dialer Services in any manner that violates the Company Privacy Policy or any data protection statute, regulation, order or similar Law.

2.3.5 Limitations. The Dialer Services are deemed part of the Services and are subject to all the limitations of liability, restrictions and obligations applicable to the Services in the Agreement.

2.3.6 Dialer Acceptable Use Policy. This Dialer Services acceptable use policy (the “Dialer Acceptable Use Policy“) describes actions that NMI prohibits when any party uses the Dialer Services. The Dialer Services may not be used in any illegal, abusive or other manner that interferes with the business or activities of any other party. The following list gives examples of prohibited uses cases. Each item on the list below, and similar activities are also prohibited in respect of the Services, more generally. This list is provided by way of example and should not be considered exhaustive:

(a) Attempting to bypass or break any security mechanism on any of the Dialer Services or using the Dialer Services in any other manner that poses a security or service risk to NMI or any of its users.

(b) Testing or reverse-engineering the Dialer Services in order to find limitations, vulnerabilities or evade filtering capabilities.

(c) Launching or facilitating, whether intentionally or unintentionally, a denial of service attack on any of the Dialer Services or any other conduct that adversely impacts the availability, reliability or stability of the Dialer Services.

(d) Transmitting any material that contains viruses, trojan horses, worms or any other malicious, harmful, or deleterious programs.

(e) Using the Dialer Services in any manner that violates any applicable industry standards, Intellectual Property Right in the Services, any third party policies or requirements or other requirements that NMI may communicate to its users, including marketing association or any other accepted industry associations, carrier guidelines or other industry standards.

(f) Engaging in any unsolicited advertising, marketing or other activities, including, without limitation, any activities that violate anti-spam laws and regulations including, but not limited to, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, and the Do-Not-Call Implementation Act.

(g) Using the Dialer Services in connection with any unsolicited or harassing messages (commercial or otherwise) including but not limited to unsolicited or unwanted phone calls SMS or text messages, voice mail, or faxes.

(h) Using Dialer Services to engage in fraudulent activity with respect to third parties.

(i) Violating or facilitating the violation of any local or foreign Law, including Laws regarding the transmission of data or software.

(j) Taking any action to encourage or promote any activity prohibited under this Acceptable Use Policy.

(k) Transmitting any material that infringes the intellectual property rights or other rights of third parties.

(l) Transmitting any material that is libelous, defamatory, discriminatory or otherwise malicious or harmful to any person or entity.

(m) Creating a false identity or forged email address or header, or phone number, or otherwise attempting to mislead others as to the identity of the sender or the origin of a message or phone call.

(n) Using the Dialer Service to carryout debt collection or other telemarketing activities that are illegal or aggressive.

2.4. Subscriptions. Unless otherwise specified in an Order Form, the Services are purchased by the Company as Subscriptions; (ii) additional Subscriptions may be added during the Subscription Term at the pricing of the current applicable tier that is specified in relation to the Subscriptions on the Order Form.

2.5. Company Security. Company shall maintain the security of the Company Site and Company Systems so that it is up to or exceeding industry customs and norms. Without limitation, Company shall obtain and maintain a Secure Sockets Layer certificate (“SSL Certificate”) in respect of the Company Site. Lack of an SSL Certificate or other shortfalls in Company security, as determined by NMI, shall be grounds for NMI to suspend Company and User access to the Services. Company shall monitor the use of the Services to verify that none of the Company Site or Company Systems are being used by any User or any third party to interfere in NMI system operations or to obtain any information or data to which they are not entitled.

2.6. Agency. Company hereby appoints NMI its lawful agent and attorney in fact for the purpose of retrieving Company Data from Processors and, through TurboApp, or otherwise, submitting Account Information to Processors, Acquiring Banks, and other third parties, each as specified through the Services. In so doing, NMI shall collect, store and disclose Company Data from and between Processor, Company and Users, as instructed by Company and Users through the Services. If requested by a Processor or other relevant third party, Company will confirm in writing the agency granted in this provision which agency shall be in force for the Term hereof. Company is wholly responsible for any wrongful disclosure of Company Data that occurs through the Services but on instructions from Company or a User. NMI shall use commercially reasonable efforts to not disclose Company Data other than as instructed through the Services.

2.7. Account Portal. If provided for in an Order Form, Company may grant its Accounts access to the Account Portal. The Account Portal will enable each Account that is designated as a User by Company to access certain Account Data related their individual Account and such other information as Company may wish to share with the Account and that the Service can accommodate. An Account that is granted access to the Account Portal shall be a User and shall be bound by all the terms of these IRIS CRM Service Terms, as applicable to Users. NMI will follow Company instructions as to who can and cannot be a User in respect of a given Account, but Company assumes responsibility for errors in identifying and granting access to Account Users.

3. Use of Services

Company Compliance. Company shall: (i) be responsible for its own and its Users’ compliance with these IRIS CRM Service Terms, without relieving the obligation of each User to honor the terms hereof; (ii) be solely responsible for the accuracy, quality, integrity and legality of Company Data and of the means by which Company acquired Company Data in so far as NMI is instructed to obtain, store or submit that data from or to Processors; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify NMI promptly of any such unauthorized access or use; (iv) use the Services only in accordance with the User Guide, published on the Site, and the Rules; and (v) regularly monitor for Account Price Changes and implement them directly with Processor and Accounts as per the procedures of the Processor and the Rules. Company shall assume exclusive responsibility for any and all information provided by the Company through the Services to Accounts.

4. Third Party Providers

4.1. Acquisition of Third-Party Products and Services. NMI may offer Third Party Services for sale under Order Forms. Company use of any Third Party Services and implementation, customization and other consulting services, and any exchange of Company Data or other data between Company and any third-party provider, is solely between Company and the applicable third-party provider. NMI do not warrant or support any Third Party Services, whether or not they are designated by NMI as “certified” or otherwise, except as specified in an Order Form that has been expressly accepted by NMI.

4.2. Third Party Services and Company Data. If Company installs or enables Third Party Services for use with Services, Company acknowledges that NMI will be notified in writing prior to any development. NMI may allow providers of those Third Party Services to access Company Data as required for the interoperation of such Third Party Services with the Services. NMI shall not be responsible for any disclosure, modification or deletion of Company Data resulting from any such access by Third Party Services providers. The Services shall allow Company to restrict such access by restricting Users from installing or enabling such Third Party Services for use with the Services. The Service has been designed to perform optimally with current versions of Internet Explorer, Google Chrome, Safari and Mozilla Firefox; no commitments are made to upgrade the Services or make them compatible with any third party product or service. Use of the Service with any other Third Party Services or plug-ins may be functional but is not guaranteed in anyway by NMI.

4.3. Processor Compatibility. The Services may not always be compatible with Processor systems. Changes in Processor systems will interrupt the Services. It is recommended that despite your use of the Services, you maintain familiarity with Processor Company Data access sites so that you can retrieve necessary Company Data from Processors notwithstanding any interruption in the Services.

4.4. Relationship Between Company and User. The Rules require that any sales agent of an Company be a party to a written agreement with the Company. Company represents to NMI that is has executed written agent agreements with all of its Agents and that such agreements are valid and legally enforceable. Nothing in these IRIS CRM Service Terms shall amend or interfere in any of the terms and conditions of agreements in place between Company and any User or any other third party. Without limitation, Company and each User shall indemnify and hold NMI harmless from and against any and all claims, losses or other liabilities arising in respect of any claim made against NMI that relates to a dispute between Company or any User and any other party. NMI reserves the right to immediately suspend the Services to Company in respect of which a claim is made against NMI that relates to any such dispute. For example, but without limitation, if a User seeks an injunction against NMI to gain access to the Services in relation to a dispute with Company or otherwise, NMI reserves the right to terminate this Agreement or suspend the Services to Company and all its Users. Without limitation, Company shall be responsible for NMI’s legal fees incurred in responding to any such injunction or related claim.

5. Fees and Payment Terms

5.1. Fees. In consideration of the Services, Company shall pay Fee, subject to the terms of the General Terms and Conditions of this Agreement. In addition and except as otherwise specified herein or in an Order Form: (i) Fees are based on Services purchased and not usage; (ii) payment obligations are non-cancelable and Fees paid are non-refundable, Fees are based on periods that begin on the Subscription Term start date and each billing anniversary thereof; and (iii) in the event that this Agreement is terminated prior to the end of the then current Term, other than for material and uncured default by NMI, Company shall remain liable for all Fees that would apply through to the end of the current Term. At the time of termination NMI will calculate the effective monthly average of the Fees that were paid to NMI by Company per month for the past 3 consecutive months and multiply the result by the remaining time left in Company’s Subscription Term which is the “Early Termination Fee” and will be paid by Company to NMI within thirty (30) days of Termination. Fees for the Dialer Services that are based on minutes used, are rounded to the nearest minute, for example, a call lasting ten (10) minutes and fifteen (15) seconds will be considered eleven (11) minutes of billable talk-time.

5.2. Start of Fees. NMI will perform an ACH debit to Company DDA for the amount specified as due on the Order Form and at the time specified on the Order Form.

5.3.Invoicing and Payment. NMI will provide invoices to Company based on the billing term specified on the Order Form. Company is responsible for maintaining complete and accurate billing and contact information with NMI. In the event of a dispute regarding any invoice, Company and NMI agree to work together in good faith to resolve such dispute. Company shall pay all taxes applicable to Fees.

6. Use of Data

6.1. Company Data.NMI is not responsible for: (i) the loss or destruction of any Company Data by any means other than by the gross negligence of NMI; (ii) breach of Company Data due, in whole or in part to an unsecure connection being used by Company, a User, Account, or Processor, or any of their authorized or unauthorized designees; or (iii) breach of Company Data on account of a breach in Company Systems. Company acknowledges that it is an industry best practice to backup Company Data onto its own secure Company Systems on a regular basis.

6.2. Aggregated Data. Notwithstanding the foregoing, NMI may collect, use and disclose aggregated data concerning Company, Users, their Accounts, Processors and other information processed through the Services (“Aggregated Data“) provided, however, that no such use shall or may be likely to facilitate in NMI or any third party being able to access any information concerning any individual Account or Agent of the Company or in any way damage the business of the Company. Aggregated Data will not permit any user thereof to identify the Company or its individual portfolio of Accounts with any individual Processor. Aggregated Data, if any, shall be the sole property of NMI.

6.3. Permitted Disclosures. Without limitation, Company shall indemnify NMI for any and all attorney fees and other costs associated with responding to any subpoena for Company Data. Notwithstanding any provision herein to the contrary, it shall not be a breach of the terms of this Agreement for NMI to delivery Company Data to a third party upon receipt by NMI of a subpoena for such Company Data, or if NMI reasonably believes that use or disclosure is necessary to protect the NMI’s rights and/or to comply with a judicial proceeding, court order, or legal process.

7. Representations, Warranties, and Covenants

7.1. Company represents and warrants that the Processor Agreement remains valid and in force; Company is not in breach of the Processor Agreement. Neither Company nor any User is in breach of any of the Company Conditions.

7.2. Company represents and warrants that performance by the Company under this Agreement does not constitute a breach of the Processor Agreement, Rules or Laws. Company has verified that none of the Processor Agreement or the terms and conditions applicable to the Processor Site prohibit or are inconsistent, in letter or spirit, with the use by the Company and its Users of the Services. NMI does not have access to the Processor Agreement and shall not verify the Processor Site terms and conditions to verify whether Company would be in breach thereof in using the Services. Company shall, from time to time, verify that it is not in breach of the Processor Agreement or the terms and conditions applicable to the Processor Site, as they may change from time to time. Nothing in this Agreement shall be deemed to amend or alter the terms of the Processor Agreement, nor shall this Agreement be deemed to be a part of or in any way associated with the Processor Agreement, Account Agreement or Agent Agreement. Company acknowledges that, as between Company and Processor, some Company Data may belong to the Processor and Company represents that Company performance hereunder does not breach the Company’s obligations in that regard.

7.3. Company shall not enter or cause to be entered any data or information into the Service unless and to the extent that Company has the right to such information. For example, but without limitation, Company will not use the Service to store data that is stolen or that has been otherwise misappropriated from a third party.

7.4. Company represents and warrants that Company’s performance of this Agreement will not violate any Law or any agreement or Rule to which that party may now be bound. Company will comply with the terms of this Agreement, with all applicable Rules.

7.5. Neither Company, nor its officers and directors are a party to any pending litigation that would have an impact on this Agreement and have never been fined or penalized by Payment Networks, NACHA or any other association in the credit, payments or banking industry.

7.6. Company represents and warrants that in entering into and performing under this Agreement, Company is doing so as a business enterprise and not as an individual consumer.

8. Limitations. In addition to any other limitations on liability or warranty disclaimers contained in elsewhere in the Agreement, the following terms will apply:

8.1. Dialer Service. Without limitation, NMI makes no representation as to the continued availability of the Dialer Service on an uninterrupted or error free basis. Without limitation, NMI shall not be liable for any interruptions in the Dialer Service that, or other Services, that: (i) are caused by factors outside of NMI’s reasonable control, including, without limitation, any force majeure event, carrier related problems or issues, or Internet access or related problems beyond the demarcation point of NMI or its direct hosting subcontractors (i.e beyond the point in the network where NMI maintains access and control over the Dialer Services); (ii) result from any actions or inactions of Company or any third party (other than NMI’s direct hosting subcontractor); (iii) result from applications, equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within NMI’s direct control); or (iv) arise from NMI’s suspension and termination of Company’s right to use the Dialer Services in accordance with these IRIS CRM Service Terms, (v) scheduled maintenance; or (vi) problems or issues related to alpha, beta or not otherwise generally available NMI features or products.

8.2. Legal Enforceability Disclaimer. WITHOUT LIMITATION, NMI ASSUMES NO LIABILITY FOR THE LACK OF LEGAL ENFORCEABILITY OF ANY AGREEMENT FORMED OR THAT COMPANY ATTEMPTS TO FORM THROUGH THE SERVICES OR ANY PART THEREOF SUCH AS TURBOAPP, E-SIGNATURE SERVICES OR DIALER SERVICES.

9. Data Transfer. If the Company needs to have its data exported from NMI, it must give notice to NMI of no less than twenty (20) days prior to termination of these IRIS CRM Service Terms. Company will provide to NMI with express written instructions (“Deconversion Instructions“) as to what Company Data the Company wishes to export prior to termination (such data being the “Deconversion Data“). Deconversion Data may contain only those elements of Company Data that are present in the Services on receipt by NMI of the Deconversion Instructions. NMI shall provide Company with access to a copy of the Deconversion Data in a reasonably useful format, as determined by NMI in its sole but reasonable discretion until 11:59pm on the last day of the Subscription Term. ON THE EXPIRATION OF THE SUBSCRIPTION TERM, NMI SHALL IRRETRIEVABLY DELETE DECONVERSION DATA AND COMPANY DATA THAT ARE IN ITS POSSESSION OR CONTROL. Company may, however, at its discretion, retain a record of Company contact information, any part of the Agreement, including the Order Form(s), correspondence with NMI under these IRIS CRM Service Terms and Fees paid or owing hereunder.