Merchant Terms and Conditions
Last Updated: March 1, 2024
If Company has ordered or purchased Services for its own use as a merchant or other end user, these Merchant Terms and Conditions (“Merchant 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 Merchant Terms, the term “Services” shall mean the Services identified in these Merchant Terms and applicable Service Terms. Company shall owe the fees as indicated in the applicable Fee Schedule or Order Form.
1. Service Terms
1.1. License Grant. Subject to Company’s compliance with the Agreement, NMI will provide the Services to Company in accordance with the Agreement and the applicable Service Terms. NMI grants to Company a limited, personal, revocable, non-exclusive, non-transferable, non-sublicensable right to access and use the Services solely in accordance with the specifications, application program interfaces (APIs), and other documentation provided by NMI for such purposes, as each may be updated from time to time by NMI in its sole discretion. 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 obtaining and maintaining any equipment, hardware, software, network connections, or ancillary services needed to connect to, access or otherwise use the Services. NMI may provide the Services or perform any of its other obligations under these Merchant Terms and any applicable Service Terms through its third party service providers, vendors, or agents.
1.2. Reseller Services. If Company has contracted for Services with a Reseller, Company acknowledges that such Reseller is an authorized reseller of NMI only and is not a joint venturer, partner, or agent of NMI. Any fees covered under any applicable Service Terms and these Merchant Terms and any applicable Fee Schedule apply only to those fees attributable to the Services delivered by NMI, and not to any other fees which may be charged by a Reseller for its own services (such as pursuant to a separate agreement between the Reseller and Company). Similarly, these Merchant Terms and any applicable Service Terms only govern the portion of the Reseller’s product or service that constitutes the Services, and not any third party enhancements, modifications, or other value-added products or services that a Reseller may bundle together with the Services. Company will contact the Reseller, not NMI, with any service inquiries.
1.3. Prohibited Transactions. Company may not request, introduce, or process transactions using the Services on behalf of any other person or entity. Any attempt by Company to use the Services on behalf of a third party may result in termination of these Merchant Terms, any applicable Service Terms, and the Agreement and/or additional fees, charges, fines, or assessments, for which Company will be solely liable.
1.4. Company Data. Company authorizes NMI to receive Company data from Third Party Service Provider or a Reseller, and to share Company transaction and other data with Third Party Service Provider as necessary to provide Company with the Services, which data may include transaction data and other data relating to Company’s use of the Third Party Service Provider Services, Personal Data, and/or Confidential Information. Furthermore, NMI may use, retain, and share any data it collects or receives in connection with the Services (including without limitation Confidential Information and Personal Data) with Third Party Service Provider, Resellers, NMI’s third party service providers, and other relevant third parties: (a) as necessary to provide Company with the Services; (b) as required or reasonably requested by the Resellers, Third Party Service Provider, Payment Networks, and service providers; (c) as required by the Rules or applicable law, regulation, order, or requirement of any governmental body, agency, or court having jurisdiction; or (d) to maintain the information as long as necessary or as required by law and used internally for record keeping, internal reporting, and support purposes, or to defend NMI’s rights in a legal dispute. NMI may use anonymized and statistical data on an aggregated basis (such as by calculating Company averages by region or industry) for any reason, and such information will be NMI’s Confidential Information and will not be deemed Personal Information, provided it cannot be used to identify Company or any individual.
1.5. Company’s Representations and Warranties. Company represents and warrants that: (a) it is engaged in a lawful business that includes the sale of products and/or services, and is duly licensed to conduct such business under the laws of all jurisdictions in which Company conducts business and will not change its type of business without the express written consent of NMI; (b) all statements and communications made by Company in connection with the Agreement are true, accurate, and complete in all material respects; (c) Company will comply with all applicable Rules, laws, and regulations to its use of the Services; (d) all transactions submitted in connection with the Services are for bona fide business operations compliant with applicable Rules, laws, and regulations; (e) Company is not engaged in any illegal or fraudulent business operation or any business operation prohibited by any applicable law, regulation, or Rule, or in any business identified on a prohibited activities list promulgated by any Third Party Service Provider or the Payment Networks; and (f) Company has all necessary right to any data or materials it uses in conjunction with the Services, and no such data or materials infringe the intellectual property rights of any third party.
1.6. Transaction Data. Company is solely responsible for verifying the accuracy and completeness of all transactions submitted and/or processed by NMI associated with Company’s account and verifying that all corresponding funds are accurately processed. NMI will not be liable for any improperly processed or unauthorized transactions or illegal or fraudulent access to Company’s account, data, or transaction data. If Company uses any application programming interfaces (APIs) provided in connection with the Services, Company is solely responsible for such use of the API, the security of Company’s credentials associated with the API, and the security of information and data submitted through the API. Company acknowledges that the fees associated with any and all transactions and associated data submitted to NMI are earned by NMI and shall not be reimbursed. NMI and its Resellers and Third Party Service Providers will not be liable for any transactions, including without limitation those that are unauthorized, improperly processed or approved, wrongfully declined, or otherwise, or for any access to any transaction or account data or Company’s customers’ Personal Data, including without limitation any unauthorized, illegal, or fraudulent access.
1.7. Credit Checks and Beneficial Owner. Company consents and agrees, as a condition of Company’s enrollment in and use of the Services, that NMI, its Resellers, or its Third Party Service Providers may obtain various consumer reports regarding Company and its principals from third parties, run credit checks, and obtain other Personal Data or credit information about Company and its principals or Beneficial Owners associated with Company, including for the purposes of evaluating Company’s eligibility for the Services, verifying the identities of such individuals and evaluating the fraud and credit risk associated with Customer in connection with a business transaction, and for the provision and administration of the Services. Company expressly authorizes NMI, prior to the creation of Company’s account and from time to time thereafter, to investigate Company’s individual and business history and background, consumer-identifying and credit information (and that of any of Company and Company’s authorized representatives, directors, officers, partners, proprietors, owners, etc.), and to obtain credit or consumer reports or other background investigation reports on each of them that NMI considers necessary to review the acceptance of Company’s application and continuation of the Services. Company also authorizes any person or credit reporting agency that issues consumer reports to answer those credit inquiries and to furnish that information to NMI. Company represents and warrants to NMI that it has obtained, and will provide to NMI upon request, written instructions and all authorizations, consents, and disclosures necessary from each such individual for NMI to obtain (and for a consumer reporting agency to provide) such information including consumer reports of such individual to NMI. Company represents and warrants that it will ensure that such individual shall also authorize NMI’s sharing of information of such individual in connection with obtaining such consumer reports from the consumer reporting agencies and other third party service providers who conduct background and identification screening. Company agrees to cooperate with and provide NMI with any information or documentation needed for the Company to obtain such information from consumer reporting agencies, and agrees that it will comply with all applicable requirements under all applicable state and federal laws and regulations. For purposes of these Merchant Terms, “Beneficial Owner” means any person who either directly or indirectly owns or controls at least 25% or more of Company’s ownership interests as well as a person who exercises substantial control over Company. There must be at least one Beneficial Owner identified.
2. Liability
2.1. Limitation on Liability. In addition to any other limitations on liability or warranty disclaimers contained in the General Terms and Conditions, the following terms will apply: NMI will have no liability for, and Company will indemnify, defend, and hold NMI harmless from, any unauthorized or fraudulent transactions submitted or processed using Company’s identification number, Company’s systems, any security credentials issued to Company, or Company’s account, including but not limited to transactions in connection with credit return fraud. NOTWITHSTANDING ANY OTHER PROVISION IN THE AGREEMENT, NMI PROVIDES NO WARRANTY, AND WILL BEAR NO RISK OR LIABILITY, WITH RESPECT TO COMPANY’S OR ITS CUSTOMERS’ DATA (INCLUDING WITHOUT LIMITATION PERSONAL DATA, COMPANY CREDENTIALS, AND TRANSACTION DATA), OR TO COMPANY’S SALE OF PRODUCTS OR SERVICES (INCLUDING WITHOUT LIMITATION ANY RISK ASSOCIATED WITH CREDIT CARD FRAUD, ACH FRAUD, CHECK FRAUD, CHARGEBACKS, TRANSACTION RATING, IMPROPERLY AUTHORIZED TRANSACTIONS, LEGITIMATE BUT UNAUTHORIZED TRANSACTIONS, DATA TRANSMISSION ERRORS, OR ANY ACTION OR OMISSION BY A THIRD PARTY). NMI DOES NOT WARRANT THAT PERSONAL DATA OR TRANSACTION DATA WILL NOT BE SUBJECT TO UNAUTHORIZED INTERCEPTION OR MODIFICATION. NMI WILL NOT BE LIABLE FOR ANY TRANSACTIONS SUBMITTED, INCLUDING WITHOUT LIMITATION THOSE THAT ARE UNAUTHORIZED, IMPROPERLY PROCESSED OR APPROVED, WRONGFULLY DECLINED, OR OTHERWISE, OR FOR ANY UNAUTHORIZED, ILLEGAL, OR FRAUDULENT ACCESS OF COMPANY OR CUSTOMER DATA.
2.2. 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, employees, agents, Third Party Service Providers, or Resellers (collectively, “NMI Indemnitees“) 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 through the Services; (b) transactions submitted through the Services; or (c) claims by Company’s customers, including without limitation claims relating the goods or services sold by Company or relating to any disclosure of Personal Data or other consumer data.
2.3. Penalties and Assessments. If Company or its employees or agents, directly or indirectly, cause any fees, fines, or assessments to be charged to NMI or any NMI Indemnitee by a Payment Network or any other entity, Company will immediately reimburse NMI or the NMI Indemnitee for all such fines and penalties. All such obligations and amounts incurred will be deemed direct, not indirect or consequential, damages, and will be collectible notwithstanding any provision in the Agreement to the contrary.
Gateway Service Terms (Merchant)
Omni, Cardease, and/or USAePay
1. Interpretation; Definitions
1.1. Gateway Services. If the Order Form includes gateway Services, which may refer to each of Omni, Cardease, and/or USAePay, as applicable (jointly referred to as the “Gateway Services“), the following Service Terms (“Gateway Service Terms“) will apply in addition to the other terms and conditions set forth in the Agreement.
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).
In the U.K.:
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 Merchant 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 services are engaged by the Company, with which the Company uses for the acceptance of Transactions.
“Company Device” means the device used by the Company 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.
“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 Payment Network or issuing a payment card directly.
“Portal” means the platform operated by NMI which allows Company to manage the Services.
“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 the Gateway Services indicated on the Order form, as set forth in these Gateway Service Terms.
2.2. Company shall comply with all PCI Security Standards applicable to Company, including any PCI DSS, PCI P2PE, PA DSS, or applicable policies and procedures provided to it by NMI.
2.3. Company understands that Company may not process orders on behalf of any other entity or individual and that the use of the Transaction processing services is provided herein as a service license for a single Company account. Any attempt to use the Transaction processing services provided herein for more than one merchant account without additional service licenses may result in additional fees and charges and/or the revocation of the service license and termination of these Gateway Service Terms.
3. Boarding. This Section will apply in all cases where boarding is provided.
3.1. Company must submit boarding requests in accordance with the merchant boarding procedure established by NMI from time to time.
3.2. 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).
3.3. 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.
3.4. 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.
3.5. SDK License. If the Order Form includes a software development kit (“SDK“), NMI will provide such SDK and associated documentation with the Services. For this option, the following terms apply:
3.5.1. Subject to the other terms and conditions of the Agreement, NMI 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 to: (a) develop Company Interface and make a limited and reasonable number of copies of the SDK for such purpose; and (b) use the SDK to the extent that such is incorporated into Company Interface to benefit from the Services.
4. Transaction Processing
4.1. NMI shall receive Transactions from the Company 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 Company Device.
5. Portal
5.1. NMI shall provide a website that allows Company to access Transaction history and perform the following basic functions:
5.1.1. generate and download reports;
5.1.2. perform refunds; and
5.1.3. process ad hoc card-not-present authorizations and refunds.
6. TERMINAL MANAGEMENT SYSTEM (TMS)
6.1. NMI shall provide a TMS that enables the Company Device to download configuration data and firmware for the Company Device.
Provisions specific to SDK
6.2.If so indicated on the Order Form, NMI shall provide Company a SDK, which shall comprise of the:
6.2.1. software development kit; and
6.2.2. associated documentation (which may include technical specifications, files format documentation and API information).
6.3. Company acknowledges and accepts that NMI is not responsible for and shall have no liability to Company (or any Company) for:
6.3.1. Company Devices (including all software, firmware and operating systems located on the Company Device and its processing capacity, and including any certifications and configurations (including online PIN key loading arrangements where applicable));
6.3.2. any change (including updates and new releases) to Company Devices and/or PEDs (including where such change results in the SDK becoming unusable (in full or in part));
6.3.3. Company Device’s ability to connect to public networks and/or bluetooth (as applicable);
6.3.4. availability of public networks (including where unavailability results in failure to send communications related or connected to the SDK); and/or
6.3.5. functions connected or related to the processing of transactions (including transaction authorization) provided by acquiring banks, payment processors or payment facilitators.
6.4. For the purposes of this Section, Company shall be permitted to upload Company Interface to applicable app stores.
7. SECOND LINE COMPANY SUPPORT
7.1. The following definitions shall apply in this Section:
|
First Line Reseller Support Team |
Reseller’s personnel (or a third party on behalf of Reseller) providing the first line support, assistance and guidance to Company. |
|
Respond / Response |
an acknowledgement by email or telephone of a Support Request. |
|
Support Request |
a valid request for support made in accordance with these Gateway Service Terms. |
7.2. NMI shall provide second line support to the First Line Reseller Support Team on issues relating to the Company’s use of the Services reported to NMI in accordance with this Section. Company acknowledges and accepts that such second line Reseller support shall not include support:
7.2.1. provided by NMI directly to Company (save where NMI (in its sole) discretion requests the same);
7.2.2. where the First Line Reseller Support Team has not used every effort to resolve the issue;
7.2.3. where the First Line Reseller Support Team has not undertaken a reasonable level of diagnosis and reasonable steps to resolve the issue; and
7.2.4. on issues not directly related to the Services (including support on the PED and public network).
7.3. Reseller is responsible for providing first line support, assistance and guidance to Company.
7.4. Reseller must make a request for support in accordance with NMI’s procedures, which may be modified from time to time.
8. COMPANY BOARDING AND SET UP
This Section shall only apply where boarding is provided.
Scope of Portal boarding
8.1. The Reseller acknowledges and accepts that the Portal boarding method is only recommended by NMI for low volume boarding (under 20 users/month or for the purposes of a limited pilot).
8.2. Reseller acknowledges and accepts that Portal boarding shall not include:
8.2.1. verification by NMI of any Company information submitted in the boarding process; or
8.2.2. test transactions.
Company boarding procedure
8.3. Company must submit boarding requests in accordance with the relevant boarding procedures provided.
9. COMPANY BOARDING AND SET UP: API boarding
9.1. This Section only applies where API boarding is provided.
9.2. API boarding shall provide the Company with a web service interface or application programming interface that allows access to the Portal for boarding purposes.
9.3. Company acknowledges and accepts that API boarding shall not include:
9.3.1. verification by NMI of any Company information submitted in the boarding process; or
9.3.2. test transactions.
Processing Service Terms (Merchant)
1. Definitions; Interpretation
1.1. Processing Services. If Company has ordered payment processing / acquiring services, these Processing Service Terms will apply to Company’s Agreement, in addition to the General Terms and Conditions, the Merchant Terms, and the Order Form(s) (and any schedules or other documents referenced in any of the foregoing). The Processing 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 d/b/a NMI Payments 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 Processing Service Terms will have the meanings given to them in the General Terms and Conditions, the Merchant Terms, or elsewhere in the Agreement. In addition, the following definitions will apply to these Processing Service Terms only.
“Processing Agreement” means an agreement between Company 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 Company 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 pursuant to these Processing Service Terms and a Processing Agreement. NMI may update the Processor with written notice to Company. As of the date of these Service Terms, the designated Processor is Anovia Payments, LLC d/b/a NMI Payments.
“Processor Services” means the payment processing services provided by the Processor pursuant to a Processing Agreement. The Processor Services are integrated with and accessible through gateway or other Services provided by NMI.
2. Service Terms
2.1. Processing Agreement and Processor Services. The Services are used to facilitate payment transactions processed by Processor. Accordingly, use of the Services requires that Company agrees to be bound by the Processing Agreement and a valid merchant account with the Processor. By accepting these Processing Service Terms, Company also accepts and agrees to the terms of the Processing Agreement (including any additional terms as may be instructed by the Processor), which are incorporated into the Agreement by reference.
2.2. Approval Process. Company understands that its application for the Services and the Processor Services are subject to review and approval by NMI and the Processor (and its Third Party Service Providers, as applicable), which approval may be granted or denied in their sole discretion. Such application can be found in the Processing Agreement. Accordingly, any Services which Company may be granted access to prior to such approval will be on a provisional basis only. If the Processor declines Company, or if at any time Company’s Processing Agreement terminates, NMI may immediately suspend access to the Services.