1. THE VIRTUAL ACCOUNT
1.1 The Virtual Account (as defined below) is issued by NIUM FINTECH LIMITED (“NIUM”) to such person approved by NIUM in writing from time to time (“You” or “Your”). NIUM is authorised and regulated by the Financial Conduct Authority as an Electronic Money Institution with Firm reference number (FRN) 901024. More information about the license can be found on the Financial Conduct Authority’s register by accessing this link:https://register.fca.org.uk/s/
1.2 Xprobanc is a trading name of XPROCARD UK LTD. The Xprocard and account are provided by Orenda Financial Services Limited. Orenda Financial Services Limited is an agent of NIUM (903023) (“Agent”) and is authorised by NIUM to provide services including Customer Services on behalf of NIUM to You. “Customer Services” means the primary direct support provided by the Agent to You through websites, desktops, e-mail, wireless devices, or from any other communications channel to address any queries and provide a response to any issues arising from the Programs.
1.3 The Customer and the User shall be collectively referred to as “You” or “Your” in these Terms and Conditions and shall be binding on the Customer and the User upon activation of the Virtual Account by the Customer or any User.
2. ELIGIBILITY AND OBLIGATIONS
2.1 You must meet all eligibility criteria stipulated by NIUM and satisfy any due diligence checks conducted by NIUM to be eligible for the Virtual Account.
2.2 Notwithstanding clause 2.1, NIUM may, in its sole discretion and without having to assign any reason, refuse to issue the Virtual Account to You or to recall, suspend or terminate any Virtual Account that has been issued to You.
2.3 You shall deliver or cause to be delivered, to NIUM such information as NIUM may reasonably request including but not limited to documents and/or information regarding Your financial affairs and/ or identity. You represent and warrant that all information provided by You or any third party on Your behalf is accurate in all material respect and You will not omit or withhold, any information which would make such information inaccurate in any material respect.
2.4 You shall notify the Agent immediately (a) when there are changes to any information pertaining to You, or any transaction which You have previously provided to the Agent or NIUM and (b) if You become aware of any event, suspicious activity, investigation or occurrence relating to Anti-Money Laundering/Combating the Financing of Terrorism, sanctions that implicate the Agent or NIUM or any of our respective officers, directors, employees or agents including, to investigations, enforcement actions or criminal actions and in the case where it affects You, provide details of transactions conducted through the relevant virtual account in the preceding twelve-month period.
3. AGENT APP
3.1 Your use of the Virtual Account is facilitated by the Agent’s mobile application, platform, or website (“Agent APP”).
3.2 Your use of the Agent APP is subject to the terms and conditions imposed by the Agent which are separate and independent of these Terms and Conditions. NIUM accepts no responsibility or liability in any way for Your access and use of the Agent APP. NIUM makes no representations or warranty as to the relevancy, adequacy, commercial value, completeness, or reliability of the Agent APP.
3.3 You authorise the Agent to (a) supply all information and give Instructions concerning You, any transaction and the Program to NIUM and (b) receive any information or Instructions in connection with the Program, You on Your behalf and in each case, You shall be bound as though You had given or receive the information, notices, instructions or communications. “Instruction” means an instruction provided by You or any third party on Your behalf to the Agent including any instruction made by telephone, letter, text message, email, or via the Agent APP. Any Instruction shall be binding upon You once it is submitted to the Agent.
3.4 You further authorise, NIUM to accept, rely and act upon any information and Instructions transmitted by the Agent to NIUM. Where NIUM receives any information or Instruction from the Agent, NIUM shall be entitled to treat such any information and instruction as having been received from You. NIUM is under no obligation to check the authenticity or accuracy of any instruction received from the Agent and shall not be liable for any losses incurred or suffered by You or any person for complying with such information or Instruction.
3.5 Prior to submitting an Instruction to the Agent, You shall ensure that all information contained in the Instruction is complete and accurate. If You subsequently learns of any error in the Instruction, You must immediately notify the Agent in writing.
3.6 If You fail to provide timely, accurate, and complete Instruction, NIUM may be unable to process such Instruction or may have to delay the processing of such Instruction. NIUM shall not be liable for any losses incurred or suffered by You or any person as a result of such delay or failure in processing such Instruction.
3.7 NIUM may in its sole discretion screen all instructions are given by You in relation to the Virtual Account before carrying out such Instructions.
3.8 NIUM may, at its sole discretion, without providing any explanation or liability, refuse to act upon any Instruction received from the Agent. NIUM shall, to the extent permitted by applicable laws and practicable, inform You via the Agent of the reason for such refusal.
3.9 You are responsible for maintaining Your own records related to any transactions and for reconciling such records against any entries made available on the Agent APP. You must notify the Agent immediately, and in any event, no later than thirteen (13) months after the transaction date, any unauthorised, incorrect, disputed entry is entered on the Agent APP or upon You becoming aware of the same. Following the expiry of this period, any such entry in the agent APP shall be deemed as agreed
4. THE VIRTUAL ACCOUNT
4.1 Subject to these Terms and Conditions, You may open and maintain one or more multi-currency virtual accounts (“Virtual Account”) with NIUM to:
(a) receive and maintain the Available Balance in a Supported Currency. “Available Balance” means the total balance of funds received by NIUM from You or a third party approved by NIUM which are no longer subject to a right of recall initiated by the payment provider or financial institution from which the funds are sent; “Supported Currency” means Pounds (GBP), United States Dollars (USD) or any other currencies as supported by NIUM from time to time;
(b) convert a Supported Currency into a currency of choice made available by NIUM from time to time, and facilitate the transfer of funds to Yourself or to a third party approved by NIUM.
4.2 Your Virtual Account is a payment account and is not a bank (deposit) account. You acknowledge that the Financial Compensation Scheme does not apply to Your Virtual Account.
4.3 You shall be responsible for all risks (including without limitation, fluctuations in the value of currency held) associated with maintaining the funds in one or more foreign currencies.
4.4 You acknowledge and agree:
(a) the Virtual Account is not a bank account and does not offer the features and benefits of a traditional bank account and the funds held in the virtual Account do not constitute deposits and do not earn any interest; and
(b) funds received by NIUM on your behalf shall be credited and held in a Customer Money Account. “Customer Money Account” means a non-interest-bearing bank account established and maintained by NIUM with a financial institution in accordance with Applicable Laws for the purpose of maintaining funds held on behalf of any third party which is held separately from any other funds of NIUM.
4.5 You represent and undertake that:
(a). You own all titles, interest, and rights to all funds deposited into the Virtual Account. No person or entity other than You have any rights in and to such funds;
(b) You are solely responsible for reporting to all applicable government tax authorities in respect of funds deposited into any Virtual Account and for the payment of any applicable taxes that apply to such funds as well as any other applicable reporting requirements, including but not limited to, any customs or foreign currency controls. You represent and warrant that it is in compliance with any applicable tax legislation and will remain compliant during the term of these Terms and Conditions.; and
(c) (where the Depositor is located in India) it is a merchant offering (i) digital content or services or (ii) online travel services (“Import Services”).
4.6 You may not:
(a) request NIUM to initiate a reversal of any amount received in the Virtual Account;
(b) assign, charge, declare a trust over or transfer the benefit of all or any part of any funds held in the Virtual Account; or
(c) accept or request NIUM to accept any funds made via over-the-counter checks or cash deposit to the Virtual Account or does not originate from the bank account of the Depositor.
4.7 NIUM shall not be required to provide services in relation to any Virtual Account unless:
(a) the Depositor is located in an Approved Jurisdiction. “Approved Jurisdictions” means those countries as notified by the Partner to You from time to time being where NIUM has the ability to facilitate the provision of services pursuant to the Programs and “Approved Jurisdiction” shall be construed accordingly;
(b) with respect to each Depositor, a deposit of funds into any Virtual Account (i) is not made via over-the-counter checks or cash deposit and (ii) originates from the bank account of the Depositor. “Depositor” means You or any individual, company, or organisation located in an Approved Jurisdiction that deposits funds into any Virtual Account;
(c). (where the Depositor is located in India) such deposit relates to an Import Service; and
(d) the result of any due diligence checks on any Transaction is satisfactory.
4.8 NIUM may cancel, reverse, demand refund, debit the Virtual Account, cause any amount of the funds to be unavailable for withdrawal, or treat the Virtual Account as overdrawn and make corresponding adjustments to any entry at no liability to You if:
(a) NIUM needs to correct any error or omission;
(b). NIUM is required to return the funds to the Depositor;
(c). NIUM has not received cleared and unconditional funds or in time; or
(d) where NIUM has reasonable grounds to do so for any other legitimate reasons.
4.9 NIUM shall not be liable to make up for any shortfall in any amounts received by You in the Virtual Account unless such shortfall is due to the negligence or default of NIUM.
4.10 Notwithstanding Clause 4.1, NIUM may, in its sole and absolute discretion and without liability to You, refuse to open the Virtual Account for You.
5. SAFEGUARDING THE AVAILABLE BALANCE
5.1 NIUM adheres to the requirements under the Electronic Money Regulations 2011 to ensure the safety and liquidity of the Available Balance held on Your behalf.
6.1 The availability of the Programs is subject to You paying the fees (a) as set out in the pricing schedule made available to You by the Agent and (b) displayed on the Agent APP.
6.2 With respect to the Programs, NIUM charges the following fees:
(a) a fixed transaction fee;
(b) a margin on the currency exchange rate. All currency is converted at NIUM then current rate of exchange. NIUM calculates its rate of exchange based on reference rates provided by Reuters (“Reference Rates Provider”) plus a margin. NIUM may change our Reference Rates Provider from time to time without notice to You. Most currency exchange rates are adjusted several times daily in line with the relevant closing rates of global financial markets. With respect to a Withdrawal Request, the currency exchange rate is displayed on the Agent APP once desired destination and the amount intended to transfer is selected. The currency is converted at the time of the transfer.
6.3 All amounts charged in connection with any transactions, fees and any amounts due and owing under the Programs shall be deducted from any Available Balance.
6.4. If the outstanding fees and any other amounts due under these Terms and Conditions exceed the Available Balance, such shortfall represents a debt immediately due and payable under the Programs on-demand (“Demand Date”).
6.5 A late interest of 2% each month shall be charged on any unpaid amounts owed under the Programs for the period beginning on the Demand Date and ending on the date such outstanding amounts are paid in full.
6.6 The Agent shall provide a statement of fees which provides an overview of the fees You have paid in respect of the Programs over the year upon request.
7. SECURITY OF THE VIRTUAL ACCOUNT
7.1 You shall be solely responsible for the security of the Virtual Account and for all transactions and charges incurred under the Virtual Account.
7.2 You must take all steps to safeguard the Virtual Account and any security-related details (“Access Details”) relating to the Virtual Account which at the minimum include all of the following:
(a) updating Your device browser to the latest version available;
(b) patch Your device’s operating system with regular security updates provided by the operating system provider;
(c) install and maintain the latest anti-virus software on Your device; and
(d) use strong passwords, such as a mixture of letters, numbers and symbols.
7.3 You undertake and never disclose Your Access Details to a third party. If You disclose any of Your Access Details to a third party, You will be liable for all losses incurred in connection with the Virtual Account.
7.4 You undertake to provide and update NIUM from time to time, with complete and accurate contact details.
7.5 You shall enable transaction notification alerts on any device which You have communicated to NIUM that such device would be used to receive transaction notifications from NIUM and monitor all transaction notifications sent by NIUM.
7.6 If You have any indication or suspicion that the Access Details have been stolen, misappropriated, used without authorization or otherwise compromised, You must notify NIUM immediately. Any delay in or failure to notify NIUM promptly may result in You being liable for all transactions and losses incurred in connection with the Virtual Account.
7.7 You authorise NIUM to accept, rely and act upon any instruction received, or purported to be received from You. Where NIUM receives any instruction from a person using the Access Details, NIUM shall be entitled to treat such instruction as having been received from You. NIUM is under no obligation to check the authenticity or accuracy of any instruction received from You and shall not be liable for any losses incurred or suffered by You or any third party for complying with such instruction.
7.8 NIUM may in its sole discretion screen all instructions are given by You in relation to the Virtual Account before carrying out such instructions.
7.9 NIUM may, at its sole discretion, without providing any explanation or liability, refuse to act upon any instruction received from You.
8. WITHDRAWAL FROM VIRTUAL ACCOUNT
8.1 You may withdraw the funds in the Virtual Account (“Withdrawal Request”) at any time in accordance with these Terms and Conditions.
8.2 You may not withdraw funds from the Virtual Account if:
(a) the amount is less than the minimum withdrawal threshold, which at the date of these Terms and Conditions is USD 100 or currency equivalent. NIUM may, in its sole discretion, vary the minimum withdrawal threshold from time to time upon notice to You; or
(b) after deducting all fees and any other amounts due and owing to NIUM, such withdrawal would result in a negative balance in the Virtual Account.
8.3 Upon receipt of a Withdrawal Request, NIUM shall initiate a Remittance to Your bank account (“Customer Bank Account”) or a bank account in the name of any Payee or such other third party (“Third Party Bank Account”) as may be approved by NIUM in writing from time to time in such amount and currency as indicated in the Withdrawal Request.
8.4 You shall ensure that the details of any Customer Bank Account or Third Party Bank Account are correct and complete and shall notify NIUM in writing in advance of any change to the Customer Bank Account or Third Party Bank Account. Until NIUM has been notified of such change and has had a reasonable opportunity to act on it, NIUM shall be entitled to process the Withdrawal Request to the existing Customer Bank Account or Third Party Bank Account. NIUM shall not be liable for any losses arising from any Remittance due to incorrect or incomplete details provided by You or Your failure to inform NIUM in advance of any change to the Customer Bank Account or Third Party Bank Account.
8.5 You acknowledge and agree that the tax authorities of certain countries and/or jurisdictions may deduct certain tax, fees, and/or tariffs (“Remittance Taxes”) from the Transactions. If any Remittance is subject to Remittance Tax, the amount You or the Beneficiary actually receive may be different from the amount stated in the Instruction (“Shortfall”). NIUM shall not be required to make up for such Shortfall under any circumstances. You further acknowledge and agrees that Remittance Taxes are subject to changes from time to time and NIUM is under no obligation to notify You of any such changes.
8.6 Where a foreign currency conversion is required pursuant to any Withdrawal Request, NIUM shall apply the prevailing exchange rate, as displayed on the Agent APP.
8.7 NIUM may, in its sole discretion, suspend, cancel, or refuse to complete a Withdrawal Request at any time without assigning any reason and without liability to You. In the event, NIUM is unable to complete a Withdrawal Request for any reason, to the extent permissible under Applicable Laws and if practicable, it shall notify You promptly and provide reasonable details why such Transaction was not processed.
8.8 You may cancel any Withdrawal Request by sending a clear Instruction to the Agent provided that the Instruction for recall or cancellation is sent by the Agent to NIUM before NIUM has transmitted the Withdrawal Request to our Service Provider for processing.
8.9 Where the Withdrawal Request has been sent to our Service Provider for processing, NIUM shall use its reasonable effort to procure the recall or cancellation of such Withdrawal Request. NIUM does not guarantee that any recall or cancellation of the Withdrawal Request would be successful.
8.10 Any funds returned may be subject to charges and expenses and foreign exchange losses when converted at the prevailing exchange rate and You agree to indemnify NIUM in full against any and all Losses incurred by NIUM in connection with such recall or cancellation.
9. UNAUTHORISED USE AND LOSS OR THEFT OF THE CARD
9.1 You must suspend the Virtual Account via the Agent APP and notify Agent immediately if any of the following events has occurred (each an “Unauthorised Transaction”):
(a) the security of the Virtual Account has been compromised; or
(b) any unauthorised transactions.
9.2 You shall provide the following information when requested by Agent:
(a) details of the Virtual Account;
(b) Your identification information;
(c) the type of authentication device, access code and device used to perform the Unauthorised Transaction;
(d) whether the Virtual Account, authentication device, or Access Details was lost, stolen or misused;
(e) the date and time of the loss or misuse and the date, time and method that the loss or misuse was reported to the police;
(f) how You safeguard Your Access Details and whether You had disclosed the Access Details to a third party; and
(g) any other information about the Unauthorised Transaction known to You.
9.3 You must make a police report upon request by Agent and provide a copy of such report to Agent.
9.4 If You are not able to notify the Agent of an Unauthorised Transaction as soon as You become aware of such incident, You must provide the Agent with the reasons for the delayed report, for example, it would be unreasonable for You to monitor a transaction notification during certain time or circumstances.
9.5 NIUM or Agent shall suspend the Virtual Account upon receipt of notification from You of a failure to do so in accordance with Clause 13.1 above until appropriate measures are taken to restore security to the Virtual Account.
9.6 You shall be liable for all transactions made via the Virtual Account prior to the notification. Any delay in or failure to notify Agent immediately may result in You being liable for all transactions and losses incurred in connection with the Virtual Account.
9.7 All communications and notifications to NIUM or Agent in connection an Unauthorised Transaction shall be in accordance with Clause 23.2
10. INVESTIGATION OF CLAIMS OF UNAUTHORISED TRANSACTIONS
10.1 Where the Investigation outcome is decided in Your favor, NIUM shall credit the Virtual Account with the amount charged on the Virtual Account due to the Unauthorised Transaction (“Unauthorised Loss“ You acknowledge and agree that the Unauthorised Loss credited to the Virtual Account may be different to the amount originally processed on the Virtual Account due to exchange rates fluctuations or the Unauthorised Loss received may only be a partial refund of the original amount.
10.2 While NIUM endeavors to resolve each Relevant Claim in a fair and reasonable manner if You do not agree with the Investigation Outcome, you may either mutually agree with NIUM to resolve the Relevant Claim through some other dispute resolution procedure such as mediation or You may commence proceedings under Clause 26.
11. LIABILITY FOR UNAUTHORISED TRANSACTIONS
11.1 You are solely liable for all losses arising from any Unauthorised Transaction that occurs under the Virtual Account unless any of the circumstances described in clause 14.2 or 15.2 applies.
11.2 You shall not be liable for losses arising from any Unauthorised Transaction if such losses are due to any act or omission of NIUM or any of NIUM’s employees, agents, outsourcing service provider (“Representatives”) to provide the services in connection with the Virtual Account.
12. SUSPENSION AND TERMINATION OF THE VIRTUAL ACCOUNT
12.1 NIUM may suspend or terminate Your use of the Virtual Account and the Terms and Conditions at any time without assigning any reason upon notice to You.
12.2 You may suspend or terminate the Virtual Account at any time via the Agent APP or by notifying NIUM in accordance with Clause 23.2.
12.3 Upon termination, Your access to the Virtual Account shall be disabled.
13. SUSPENSION AND TERMINATION OF THE PROGRAM
13.1 You or NIUM may terminate Your subscription to the Programs upon expiry of the Minimum Term by giving 60 days prior written notice to the Agent. “Minimum Term” means a period of 3 years from the date of You activating an account on the Agent App.
13.2 You may at any time immediately terminate Your subscription to the Programs, in whole or in part, by written notice to NIUM if:
(a) NIUM or the Agent commits a material breach of these Terms and Conditions, which is not capable of remedy, or if capable of remedy, is not remedied to Your reasonable satisfaction within thirty (30) days of service of a notice requiring such remedy;
(b) NIUM or the Agent becomes insolvent; or
(c) there is a withdrawal or termination of any license, permission or authorisation required by NIUM to act as a principal and to operate all its business in connection with the Programs.
13.3 NIUM may at any time immediately suspend or terminate the Programs in whole or in part, by written notice to You if:
(a) You or any User commits a material breach of these Terms and Conditions which is not capable of remedy, or if capable of remedy, is not remedied to NIUM’s reasonable satisfaction within thirty (30) days of service of a notice requiring such remedy;
(b) You become Insolvent;
(c) NIUM is (i) required to do so pursuant to an order from regulatory authorities, or applicable laws or (ii) reasonably believe that the Program is used for any purpose contrary to applicable laws or any unauthorized or fraudulent use; or (iii) the security of any of the Program has been compromised or (iv) pursuant to a request from the Agent;
(d) NIUM has terminated the appointment of the Agent;
(e) the results of any “know your customer” or other similar checks or screenings under applicable laws or regulations conducted on You are unsatisfactory or if NIUM determines in its reasonable discretion, continuing the Program could cause reputational, regulatory, financial or operational harm to NIUM;
(f) there is a withdrawal or termination of any license, permission or authorisation required to operate the Customer’s business; or
(g) the Customer undergoes a Change of Control, or a sale or other disposal of any substantial division or part of the Customer’s business provided that NIUM shall not exercise its suspension or termination right if the Customer has notified NIUM of the Change of Control, sale, or disposal of Your business and NIUM has determined that NIUM may continue to provide the Program to the Customer.
13.4 Upon termination of the Programs and subject to clause 16.5, NIUM shall initiate a refund of any unused Available Balance (less applicable taxes, charges and fees payable by You under the Programs) (“Remaining Balance”) to a bank account as instructed by the Customer (“Customer Bank Account”) within sixty (60) Business Days of NIUM’s receipt of the Customer’s written request. Any initiation of refund of such Remaining Balance to the Customer Bank Account shall constitute a good discharge of NIUM’s obligation under this clause.
13.5 NIUM’s obligation to refund the Remaining Balance is subject to satisfactory due diligence checks. In the event NIUM is not able to refund the Remaining Balance to the Customer, NIUM shall to the extent permissible by applicable laws and practicable, notify the Customer of the reasons.
13.5 The rights conferred on NIUM under these Terms and Conditions shall survive termination.
14. INACTIVE VIRTUAL ACCOUNT
14.1 If for a period of twelve (12) consecutive months no transactions and no payments have taken place via the Virtual Account or You have maintained a zero balance in the Virtual Account, NIUM may designate such Virtual Account to be “Inactive”. Once the Virtual Account has been designated as Inactive, NIUM may disable certain features or charge a monthly fee to maintain the Virtual Account. Such monthly fee shall be deducted from the Available Balance.
14.2 NIUM may terminate a Virtual Account after it has been designated as Inactive upon sixty (60) days prior written notice to You.
14.3 In the event there are funds held in the Inactive Virtual Account, the Partner shall inform You to obtain a refund of the remaining balance.
15. PERSONAL DATA AND CONSENT TO DISCLOSURE
15.1 You agree that any information provided by You to NIUM or the Agent or otherwise collected during the duration of Your use of the Programs (“Personal Data”). You agree that any Personal Data may be disclosed to: (i) the Agent; (ii) NIUM’s or the Agent Representatives; (iii) companies within NIUM or the Agent’s group of companies; (v) the providers of services and benefits associated with the Virtual Account; (vi) consumer credit bureaus, collection agencies and lawyers; (viii) parties who accept the transfer of funds from the Virtual Account in payment for goods and/or services purchased by You; (x) banks, financial institutions, government agencies, statutory boards or authorities in the United Kingdom or elsewhere; (xii) anyone to whom NIUM may transfer contractual rights; and (xi) any other party approved by You or to whom NIUM consider it is necessary to make such disclosure for the purpose of performing our obligations or exploiting our rights under the Terms and Conditions.
15.3 NIUM may use your Personal Information to identify goods and services in which You may be interested; and market offers to you (by mail, e-mail, telephone, SMS, via the internet, or using other electronic means) in relation to such goods and services. You agree that Your consent will remain in place until You withdraw it or until 12 months after You cease using the Virtual Account. If you wish to opt-out of receiving marketing information from NIUM, You may do so in accordance with clause 23.
16. INTELLECTUAL PROPERTY
16.1 You agree that the NIUM and the Agent web-pages (including service marks, logos and trademarks), applications, process and systems, and deliverables produced by NIUM and the Agent for purposes in connection with these Terms and Conditions (including without limitation, reports, compilations and databases in any and all media) and the Virtual Account (collectively, NIUM IP) are and shall remain the exclusive property of NIUM and the Agent and are protected by copyright law or other intellectual property laws. You agree that no copyright or other intellectual property rights, title or interest, whether express or implied, in any of NIUM IP shall be acquired by You, except to the extent expressly contemplated in these Terms and Conditions. You shall not distribute, disclose, sell NIUM IP or permit the use of NIUM IP by, any third party whether in whole or in part without the express written consent of NIUM. You shall not, directly or indirectly, copy, modify, decompile, disassemble, reverse engineer or otherwise attempt to derive or discern the source code or internal workings of NIUM IP. You may not: (i) reproduce any part(s) of NIUM IP in any form; (ii) create any derivative work based thereon; (iii) incorporate the site into other websites, electronic retrieval systems, publications or otherwise.
17.1 You agree to indemnify, defend and hold harmless NIUM, the Agent and its respective Representatives from and against any and all losses whatsoever and howsoever arising which NIUM or the Agent may sustain, incur, suffer or pay in connection with these Terms and Conditions, any use of the Virtual Account and any other services provided in related thereto.
18. EXCLUSION AND LIMITATION OF LIABILITY
18.1 NIUM and the Agent make no representations or warranties, express or implied, as to:
(a) the satisfactory quality, fitness for a particular purpose, no infringement and performance or otherwise of the Virtual Account and any other services provided in related thereto; and
(b) any products and services provided by a Service Provider or any other third party and shall not be liable for (i) the delivery, quality, safety, legality or any other aspect of goods or services that You purchase from third party merchants using the Virtual Account; (ii) if certain merchants refuse to accept payments made via the Virtual Account.
18.2 To the extent permitted under applicable laws, NIUM and the Agent shall not be liable to You for any damages or losses of any kind whatsoever (however arising, regardless of the nature of the claim or the form of the cause of action) in connection with these Terms and Conditions, the Virtual Account and any other services provided in related thereto. You acknowledge and agree that the exclusion and limitation of liability in this section are reasonable having regard to all relevant factors, including the nature of the services provided and the allocation of risk and liability between the parties.
19.1 Notices may be provided to You in the English language by NIUM or the Agent via (i) electronic mail, (ii) short message service (“SMS”), (iii) personal delivery or ordinary post to Your address last known to NIUM or the Agent or the Customer, (iv) through NIUM’s or the Agent’s website, the statement of account or any electronic medium determined by NIUM; or (v) Agent APP (“Communication Mode”) and You consent and agree to receive notices via any of such Communication Mode. All notices in electronic format shall be considered to be “in writing,” and shall be deemed to have been received by You no later than one (1) Business Day after posting or dissemination, whether or not You have actually received or retrieved such communication. NIUM and the Agent reserve the right to provide notices in paper format. Your consent to receive notices electronically is valid until you revoke Your consent by notifying NIUM or the Agent. If You revoke your consent to receive notices electronically, NIUM may terminate your right to use the Virtual Account, and You accept sole liability for any consequence resulting from such revocation of consent.
19.2 You may contact the Agent via the contact details displayed in the Agent APP or as notified by the Agent to You from time to time and NIUM via the following contact details. Any notice given to NIUM shall be in the English language:
Address: 05-132 1 Poultry, London, EC2R 8EJ
Agent:Orenda Financial Services Limited
Address: 9 Brenton Business Complex, Bond Street, Manchester, BL9 7BE, UNITED KINGDOM
20. VARIATIONS TO TERMS AND CONDITIONS
20.1 NIUM may vary the Terms and Conditions from time to time. Any amendments or variations shall come into effect upon the Agent publishing a revised version on the Agent APP or NIUM publishing a revised version on NIUM website or platform. Your continued subscription to the Programs or use of the Virtual Account shall constitute acceptance of the revised Terms and Conditions.
21.1 You may not assign or transfer any rights under these Terms and Conditions, the Programs, any Virtual Account to any third party.
21.2 NIUM may assign and transfer any of its rights and obligations under these Terms and Conditions.
22. DISPUTE RESOLUTION
22.1 Without prejudice to either party’s rights or remedies under these Terms and Conditions, if any dispute between You, the Agent and NIUM (each a “Disputing Party”) arises out of or in connection with these Terms and Conditions (“Dispute”), either Disputing Party shall give to the other a written notice of the Dispute, setting out the nature and full particulars of such Dispute, together with any relevant supporting documents (“Dispute Notice”). Following service of the Dispute Notice, the Disputing Parties shall attempt to resolve the Dispute in good faith.
22.2 If the Disputing Parties are unable to resolve the Dispute within fourteen (14) Business Days of service of the Dispute Notice or such other period as mutually agreed between the Disputing Parties (“Period”), either Disputing Party shall be entitled to commence proceedings under clause 27.
22.3 If the Dispute is resolved within the Period, any settlement shall be recorded in writing and signed by the authorised representative of each Disputing Party.
22.4 Nothing in this clause shall prevent either Disputing Party from making any application for injunctive relief it considers necessary to protect its position.
22.5 If You are a micro-enterprise or a small business, You have the right to apply to the Financial Ombudsmen for the settlement of a dispute with NIUM or the Agent, which is an alternative dispute resolution institution between financial service providers and the consumers in accordance with the following terms and procedures:
(a) before applying to the Financial Ombudsmen for dispute settlement, You must apply to NIUM, specifying the circumstances of the dispute and your claim within six years of the problem happening;
(b) in the event You are not satisfied with NIUM’s response or You have failed to receive a response from NIUM within the time-frame indicated in 26.5, You shall have the right to apply to the Financial Ombudsmen to resolve this dispute provided You do so within six months after You have first contacted NIUM. Upon expiration of this term, You lose the right to apply to the Financial Ombudsmen for such dispute except where there are exceptional circumstances;
22.6 If You are a micro-enterprise or a small business, You may apply to the Financial Ombudsmen for a dispute with NIUM:
(a) by filling out the online complaint form online on the Financial Ombudsman website at https://sme.financial-ombudsman.org.uk/complain/can-help
(b) by telephone by calling the Financial Ombudsmen helpline on 0800 032 8000.
22.7. If You are a micro-enterprise or a small business and You have determined that NIUM or the Agent has violated the legislation regulating the financial market, You have the right to file a complaint with the Financial Ombudsmen regarding possible violations of financial market legislation. Your complaint to the Financial Ombudsman can be submitted as follows:
(a) by filling out the online complaint form online on the Financial Ombudsman website at https://www.financial-ombudsman.org.uk/contact-us/complain-online;
(b) by telephone by calling the Financial Ombudsmen helpline on 0800 023 4567.
23. GOVERNING LAW AND JURISDICTION
23.1 The Terms and Conditions are governed by the laws of England and Wales and You hereby irrevocably submit to the exclusive jurisdiction of the English courts for all disputes arising from, as a result of or in connection with these Terms and Conditions (“Proceedings”) and waive any objections to Proceedings in any court on the grounds that the Proceedings have been brought in an inconvenient forum. Such submission shall however not affect the right of NIUM to take Proceedings in any other jurisdiction and NIUM shall be at liberty to initiate and take actions or proceedings or otherwise against You in the English courts and/or elsewhere as NIUM may deem fit, whether concurrently or not.
24. FORCE MAJEURE
24.1 Non-performance of NIUM and the Agent shall be excused to the extent that performance is rendered impossible by strike, fire, flood, other natural disasters, governmental acts, acts of terror or orders or restrictions, failure of suppliers, market disturbance, or act of God, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing party (“Force Majeure Event”).
25.1 Except by a person who is NIUM’s assignee pursuant to clause 25.2 above, a person who is not a party to these Terms and Conditions shall not have any rights to enforce any term of these Terms and Conditions.
25.2 In the event any provision or part of the Terms and Conditions is found to be invalid or unenforceable, only that particular provision or part so found, and not the entire Terms and Conditions will be inoperative.
25.3 Any delay in enforcing NIUM’s or the Agent’s rights under these Terms and Conditions or any waiver as to a particular default or other matter shall not constitute a waiver of NIUM’s or the Agent’s rights to the future enforcement of its rights under the Terms and Conditions, except with respect to an express written and signed waiver relating to a particular matter for a particular period of time.
25.4 NIUM and the Agent are independent contractors for all purposes and are in no way Your agent or trustee nor the agent or trustee of any person from which payments are received through the Virtual Account.