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Version 1.1, 28th June 2021
These Terms of Service govern the products and services ("Services") provided to you by Nomod Inc. and its subsidiaries and affiliates (collectively, "Nomod", "us" or "we"). We offer services that enable and facilitate merchants to manage businesses, conduct transactions and safely accept payments.
Nomod Inc. is incorporated in the British Virgin Islands under company number 2015545 and with its registered address at Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, VG 1110, British Virgin Islands.
If you do not understand any of these Terms of Service, please contact us before using the Services.
You may not access or use any Services unless you agree to abide by all of the terms and conditions in these Terms of Service.
1.1 In these Terms of Service, the following terms are defined below:
"Account Balance" means amounts showing in the Payment Account at any given time;
"Balance Currency" means the currency which you select for your Payment Account from the options provided in your Nomod Account settings;
"Bank Account" means your designated bank account to receive payouts from your Payment Account;
"Cards" means certain credit, debit, prepaid or gift cards bearing the trademarks of the Networks;
"Confidential Information" means information, whether written or oral, in any form, including without limitation, information relating to the development, products, trade secrets, business plans, suppliers, customers, finances, personnel data, and other material or information considered proprietary by the disclosing party;
"Customer" means an end customer who purchases the Product;
"Network" means, and their respective affiliates, American Express Travel Related Payment Services Company, Inc. ('American Express'), MasterCard International Inc. ('MasterCard'), Visa Inc. ('Visa'), Discover Financial Services ("Discover"), JCB Co., Ltd. ("JCB"), Diners Club International Ltd. ("Diners Club"), UnionPay International ("UnionPay"), or others as supported by our Payment Method Partners, as amended from time to time without prior notice;
"Network Rules" means all applicable bylaws, rules and regulations set forth by the Networks, as amended from time to time;
"Nomod Account" means the account associated with you on the Nomod platform;
"Payment Method" means any Card or other method of payment that can be used to conclude a Transaction;
"Payment Method Partner" means any regulated payment service provider, including any Network, that Nomod works with to provide the Services;
"Payout Threshold" means the amount that the Account Balance must be at least equal to in order to qualify for a payout in a given payout cycle, as described here;
"Product" means your product(s) and/or service(s) offered for sale to Customers;
"Reserve" means amounts in the Payment Account that may be retained by Nomod and if appropriate applied and/or set off against monies owing to Nomod;
"Sale Amount" means the amount in the Payment Currency that the Product is sold for;
"Secure Customer Authentication" means a form of two-factor authentication by a Customer for a Transaction, including PIN, password, or an additional authentication method, when prompted;
"Trademarks" means your trademarks, service marks, trade names and logotypes whether registered or otherwise;
"Transaction" means the sale of a Product to a Customer that is conducted via the Services;
"Payment Account" means the account set up to hold funds associated with your Nomod Account on your behalf.
1.2 In these Terms of Service, unless the context requires otherwise:
a. Any clause, schedule or other headings in these Terms of Service is included for convenience only and shall have no effect on the interpretation of these Terms of Service;
b. A reference to a 'party' includes that party's personal representatives, successors and permitted assigns;
c. A reference to a 'person' includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns;
d. A reference to a 'company' includes any company, corporation or other body corporate, wherever and however incorporated or established;
e. A reference to a gender includes each other gender;
f. Words in the singular include the plural and vice versa;
g. Any words that follow 'include', 'includes', 'including', 'in particular' or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
h. A reference to 'writing' or 'written' includes any method of reproducing words in a legible and non-transitory form (including email);
i. A reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time;
j. A reference to legislation is a reference to such legislation as amended or re-enacted includes all subordinate legislation made from time to time under that legislation as amended or re-enacted.
2.1 Only businesses and individuals conducting a legitimate business activity (including sole proprietors) are eligible to apply for an account with us (a "Nomod Account") and use the Services described in these Terms of Service, and you may only use the Services for legitimate Transactions with your Customers. You are fully responsible for all activity that occurs under your Nomod Account, including for any actions taken by persons to whom you have granted access to the Nomod Account either knowingly or unknowingly.
2.2 The Services are not directed to individuals under the age of eighteen (18). You may not use the Services if you are under eighteen (18) years of age.
2.3 To register for a Nomod Account, you or the person or people submitting the application (your "Representative") must provide us with your business or trade name, physical address, email, phone number, business identification number, URL, the nature of your business or activities, and certain other information about your business that we may require. We may also collect personal information (including name, birthdate, and government-issued identification number) about your beneficial owners, principals, directors, and your Nomod Account administrator. Until you have submitted, and we have reviewed and approved, all required information, your Nomod Account will be available to you on a preliminary basis only, and we may terminate it at any time and for any reason.
2.4 At any time during the term of these Terms of Service and your use of the Services, we may require additional information from you to verify beneficial ownership or control of the business, validate information you provided, verify you or your Representative's identity, and assess the risk associated with your business. This additional information may include business invoices, copies of government-issued identification, business licences, or other information related to your business, its beneficial owners or principals. We may also request that you provide copies of financial statements or records pertaining to your compliance with these Terms of Service, or require you to provide a personal or company guarantee. Your failure to provide this information or material may result in suspension or termination of your Nomod Account.
2.5 You authorise us to retrieve information about you from our service providers and other third parties, including credit reporting agencies and information bureaus and you authorise and direct such third parties to compile and provide such information to us. You acknowledge that this may include your name, addresses, credit history, and other data about you or your Representative. You acknowledge that we may use your information to verify any other information you provide to us, and that any information we collect may affect our assessment of your overall risk to our business. You acknowledge that in some cases, such information may lead to suspension or termination of your Nomod Account. Nomod may periodically update this information as part of our underwriting criteria and risk analysis procedures.
2.6 You agree to keep the information in your Nomod Account current. You must promptly update your Nomod Account with any changes affecting you, the nature of your business activities, your Representatives, beneficial owners, principals, or any other pertinent information. We may suspend your Nomod Account or terminate these Terms of Service if you fail to keep this information current. You also agree to promptly notify us in writing no more than three days after any of the following occur:
a. You are the subject of any voluntary or involuntary bankruptcy or insolvency application, petition or proceeding, receivership, or similar action (any of the foregoing, a "Bankruptcy Proceeding"); b. There is an adverse change in your financial condition; c. There is a planned or anticipated liquidation or substantial change in the basic nature of your business; d. You transfer or sell 25% or more of your total assets, or there is any change in the control or ownership of your business or parent entity; or e. You receive a judgment, writ or warrant of attachment or execution, lien or levy against 25% or more of your total assets. f. You become registered for VAT, or if you are already registered for VAT, you stop being registered for VAT, get a new VAT registration number or transfer your business as a going concern.
2.7 Responsibilities and disclosures to your Customers: When using the Services you agree to:
a. Accurately communicate, and not misrepresent, the nature of the Transaction, and the Sale Amount in the appropriate currency before Nomod concludes the sale; b. Provide Customers a meaningful way to contact you in the event that the product or service is not provided as described; c. Not use the Services to sell products or services in a manner that is, or engage in acts or practices that are, unfair, deceptive or abusive, exposes Customers to unreasonable risks, does not disclose material terms of a purchase in advance, or does not provide Customers disclosures required by Law; and d. Maintain and make available to your Customers a reasonable return, refund, cancellation, or adjustment policy, and clearly explain the process by which Customers can receive a refund.
2.8 Compliance with Applicable Laws: You must use the Services in a lawful manner, and must obey all laws, rules, and regulations ("Laws") applicable to your use of the Services and to Transactions. As applicable, this may include compliance with domestic and international Laws related to the use or provision of financial services, notification and consumer protection, unfair competition, privacy, and false advertising, and any other Laws relevant to Transactions.
2.9 Restricted Businesses and Activities: You may not use the Services to enable any person (including you) to benefit from any activities Nomod has identified as a restricted business or activity (collectively, "Restricted Businesses"). Restricted Businesses include use of the Services in or for the benefit of a country, organization, entity, or person embargoed or blocked by any government, including those on sanctions lists identified by the United States Office of Foreign Asset Control (OFAC), the European Commission, or United Kingdom. Please review the list of Restricted Businesses thoroughly before registering for and opening a Nomod Account. If you are uncertain whether a category of business or activity is restricted or have questions about how these restrictions apply to you, please contact us. We may add to or update the Restricted Businesses list at any time.
2.10 Other Restricted Activities: You may not use the Services to facilitate illegal Transactions or to permit others to use the Services for personal, family or household purposes. In addition, you may not allow, and may not allow others to:
a. Access or attempt to access non-public Nomod systems, programs, data, or services;
b. Copy, reproduce, republish, upload, post, transmit, resell, or distribute in any way, any data, content, or any part of the Services, documentation, or our website except as expressly permitted by applicable Laws;
c. Act as service bureau or pass-through agent for the Services with no added value to Customers;
d. Transfer any rights granted to you under these Terms of Service;
e. Work around any of the technical limitations of the Services or enable functionality that is disabled or prohibited;
f. Reverse engineer or attempt to reverse engineer the Services except as expressly permitted by Laws;
g. Perform or attempt to perform any actions that would interfere with the normal operation of the Services or affect use of the Services by our other users; or
h. Impose an unreasonable or disproportionately large load on the Service.
2.11 Suspicion of Unauthorised or Illegal Use: We may refuse, condition, or suspend any Transactions that we believe:
a. May violate these Terms of Service or other agreements you may have with Nomod;
b. Are unauthorised, fraudulent or illegal; or
c. Expose you, Nomod, or others to risks unacceptable to Nomod.
If we suspect or know that you are using or have used the Services for unauthorised, fraudulent, or illegal purposes, we may share any information related to such activity with the appropriate financial institution, regulatory authority, or law enforcement agency consistent with our legal obligations. This information may include information about you, your Nomod Account, your Customers, and Transactions made through your use of the Services.
2.12 Electronic consent: You agree to receiving electronic communications from Nomod. We may provide disclosures and notices required by Law and other information about your Nomod Account to you electronically, by posting it on our website, pushing notifications through the Services, or by emailing it to the email address listed in your Nomod Account. Electronic disclosures and notices have the same meaning and effect as if we had provided you with paper copies. Such disclosures and notices are considered received by you within twenty-four (24) hours of the time posted to our website, or within twenty-four (24) hours of the time emailed to you unless we receive notice that the email was not delivered. If you wish to withdraw your consent to receiving electronic communications, contact us. If we are not able to support your request, you may need to terminate your Nomod Account.
3.1 You appoint Nomod as your non-exclusive commercial agent for the sale of the Product, authorise Nomod to negotiate or conclude the sale of the Product on your behalf across all territories supported by Nomod and will ensure that your Customers are made explicitly aware that Nomod is acting as your commercial agent.
4.1 With respect to the Appointment, Nomod will provide the following Services to you:
a. Setting you up as a merchant on Nomod's platform with a Nomod Account and establishing a Payment Account;
b. Acting as your non-exclusive commercial agent for the sale of the Product across all territories supported by Nomod from time to time during the term of these Terms of Service (for the avoidance of doubt nothing in these Terms of Service creates an obligation for Nomod to sell across all territories); and
c. Negotiating or concluding the sale of the Product, including conducting Transactions and facilitating the acceptance of payments;
d. Binding you to provide or deliver the Product to the Customer in connection to a concluded Transaction; and
e. Receiving, holding, and disbursing to you any funds received on your behalf in connection with a Transaction in accordance with Section 7 Payout terms.
5.1 Nomod will provide the Services to you at the rates and for the fees ("Fee" or "Fees") described on the Pricing page, linked here and incorporated into these Terms of Service. The Fees include charges for Transactions and for other events connected with your Nomod Account (such as handling a disputed charge or Chargeback (as defined below)). The Fees are shown exclusive of any value added tax ("VAT") and Nomod reserves the right to charge VAT should there be a change in tax law or in the approach of the relevant tax authorities. You will ensure that VAT on Fees is correctly recorded and accounted for in accordance with the relevant VAT rules in your jurisdiction (for example, via the reverse charge mechanism), and you will contact us in the event you require additional information, invoices or materials in order to fulfill these obligations. We may revise the Fees at any time. However, we will provide you with at least 30 days' advance notice before revisions become applicable to you (or a longer period of notice if this is required by applicable Law).
5.2 In addition to the Fees, you are also responsible for any penalties or fines imposed in relation to your Payment Account on you or Nomod by Nomod or any Payment Method Partner resulting from your use of the Services in a manner not permitted by these Terms of Service or a Payment Method Partner's rules and regulations.
5.3 In accepting these Terms of Service, you confirm that we will provide you with a single blended rate Fee and not fees that may differ across Payment Method Partners, categories and brands of Cards. Furthermore, you confirm that we do not need to set out in these Terms of Service individually specified information about the different Payment Method Partner fees that may apply.
6.1 You acknowledge and agree that once payment for a Transaction has been successfully accepted as indicated by the Services, and Nomod has received payment for the Transaction on your behalf as your commercial agent, such receipt constitutes settlement of the Customer's obligation to you. You shall provide or deliver the Product to the Customer, whether or not Nomod has yet credited your Bank Account with the corresponding funds.
6.2 If Nomod fails to remit to you any amounts in connection with a completed Transaction, Nomod is solely liable to you for the funds, and the Customer shall not have liability thereof.
6.3 You shall provide a receipt that accurately describes each Transaction at the option of the Customer as required by the Network Rules. Nomod provides you with the option to create and send a receipt electronically for each Transaction.
6.4 Nomod will have no responsibility to provide ongoing customer service, complaints handling technical or other continuing support for the Product with the Customers, the responsibility for which lies entirely with you and you undertake to indemnify Nomod in full from and against any such claims or liability.
7.1 Upon a completed sale of the Product, Nomod shall credit your Payment Account an amount equal to the Sale Amount less:
a. The Fees; and
b. Any other charges payable by you pursuant to these Terms of Service.
7.2 Nomod will report to you in the Balance Currency, however you will be able to access data on individual Transactions in the Payment Currency. If a Transaction requires currency conversion into your Balance Currency, Nomod will convert the amount at the prevailing exchange rate at the time the payment is received from the Customer plus a foreign exchange fee as described on the Pricing page.
7.3 For the purpose of these Terms of Service, you explicitly authorise us and any financial institution that we work with to hold, receive and disburse funds as set forth in this Section 7 on your behalf. The above authorisation will remain in full force and effect until your Nomod Account is closed or terminated. Payouts to your Bank Account are executed, at least in part, by third party financial institutions (for example, the banks where you and us hold our bank accounts), therefore we shall not be responsible for the ultimate credit of funds to your Bank Account once we have paid out the funds to your bank.
7.4 While you have funds in your Payment Account (your "Account Balance"), your Account Balance may be co-mingled and held with other Users' funds in one or more pooled accounts in our name at one or more authorised credit institutions on your behalf and for the benefit of you and others holding balances (each a "Pooled Account"). Where available, your Account Balance will be safeguarded in accordance with industry best practice. We have sole discretion over the establishment and maintenance of any pooled accounts. We will not use your funds for our corporate purposes (including the granting of any security or similar interest), will not voluntarily make your funds available to our creditors in the event of bankruptcy or for any other purpose and will not knowingly permit our creditors to attach your funds. You will not receive any earnings on any funds that we handle for you. As consideration for using the Services, you irrevocably assign to us all rights and legal interests to any and all earnings that may accrue or are attributable to our holding of your Account Balance in a Pooled Account or Reserve.
7.5 Payouts will take place according to the payout schedule described here.
7.6 Payout of the Account Balance to your Bank Account may incur a fee imposed by the third party financial institutions involved, in particular if the payment is made via the SWIFT network. To the extent any fees are required to be charged, you will be responsible for them. Where available, if you opt to receive payment in a currency different to the Balance Currency, then we reserve the right to charge a foreign exchange fee as described on the Pricing page.
7.7 For any returns, refunds or Chargebacks (as defined below) of Products sold, you will be debited your portion of the sale. Nomod will charge you a Fee per Chargeback as described on the Pricing page.
7.8 Any payments or charges under this clause will be debited from your Payment Account and if at any point your Payment Account goes into debit Nomod may suspend all Services until the deficit is paid by you.
8.1. By accepting Transactions with the Services, you shall process returns of and provide refunds for your Products through your Nomod Account in accordance with these Terms of Service and the Network Rules.
8.2. Network Rules require that you disclose your return or cancellation policy to Customers at the time of purchase. If your refund policy prohibits returns or is unsatisfactory to the Customer, you may still receive a Chargeback relating to such sales.
8.3. The amount of the refund/adjustment must include any associated Taxes required to be refunded and cannot exceed the amount shown as the total on the original sales data except, if applicable, by the exact amount required to reimburse the Customer for postage that the Customer paid to return the Product.
8.4. In case of an exchange, partial return or erroneous Transaction or Transaction amount you shall always refund the total amount of the original Transaction first and then initiate a new Transaction for any new goods and/or services sold or amounts actually chargeable.
8.5 You can process a refund through your Nomod Account up to one hundred twenty (120) days from the day you accepted the payment.
8.6 Fees are not refunded by Nomod when processing a refund, so you will need to ensure that your Account Balance is sufficient for the full purchase amount to always be returned to your Customer.
8.7 If your available Account Balance is insufficient to cover the refund, Nomod will restrict certain features of your Nomod Account and may withdraw up to the requested refund amount from a payment instrument registered with your Nomod Account or any connected Nomod Account and credit it back into your Customer's card.
8.8 You must issue Customer refunds to the card account used to make the original purchase and only in the original amount of the corresponding charge for which you are submitting the refund. You may not submit a refund when there is no corresponding purchase on a card. Subject to applicable Law, you may not give cash refunds to Customers for goods or services they purchase using Card Transactions.
8.9 You understand and agree that a Customer may be entitled to a refund from their payment provider of the full amount of any authorised Transaction you initiate if: the authorisation did not specify the exact amount of the Transaction when the authorisation was given; and the amount of the Transaction exceeded the amount that the Customer could reasonably have expected, taking into account the Customer's previous spending pattern, the conditions of the authorisation and the particular circumstances of the case.
8.10 If we determine that you are processing an excessive amount of refunds, we may restrict certain features of your Nomod Account.
9.1 The amount of a Transaction may be reversed or charged back to your Payment Account if the Transaction (a) is disputed, (b) is reversed for any reason by a Network, a Payment Method Partner, a Customer or a financial institution, (c) was not authorised or Nomod has any reason to believe that the Transaction was not authorised, or (d) is allegedly unlawful, suspicious or in violation of these Terms of Service ("Chargeback").
9.2 You agree that you will assist us when requested, at your expense, to investigate any of your Transactions processed through the Services and acknowledge that your failure to assist us in a timely manner, including providing necessary documentation within five (5) days of a request, may result in an irreversible Chargeback. We reserve the right to charge a Fee for investigating and/or mediating any Chargebacks, as disclosed on our Pricing page.
9.3 You agree to comply with the Chargeback process and to the liability associated with such Chargebacks. Each Chargeback, and associated Fees, represents a debt immediately due and payable by you to Nomod, notwithstanding any termination of these Terms of Service. If a Chargeback is contested successfully, we will release the corresponding reserved funds back to your Payment Account. If a Chargeback dispute is not resolved in your favour by the Network or Payment Method Partner, or you choose not to contest the Chargeback, we reserve the right to recover from you the Chargeback amount plus associated Fees.
9.4 You understand that you have no right to bill and/or otherwise collect from any Customer for any purchase or payment made unless we have exercised our Chargeback services and you otherwise have the legal right to do so.
9.5 You shall operate your Nomod Account in such a way that your Payment Account always has a nil or positive balance and is not put at risk of having a negative balance (taking into account any actual or potential Chargebacks to which your Nomod Account is likely to be subject as determined by analysis of the types, volumes, patterns and nature of your Transactions in the context of the Products that you sell). If you breach this condition, or where we determine that you are incurring a Chargeback rate greater than one percent, we reserve the right to implement additional conditions governing your Nomod Account, including but not limited to:
a. Establishing new Fees;
b. Creating a Reserve to cover anticipated Chargebacks and related fees
c. Delaying payouts from your Payment Account to your Bank Account;
d. Imposing a Transaction limit on your Nomod Account; or
e. Suspending the Services and/or terminating the Terms of Service with you.
10.1 Nomod reserves the right to retain and if appropriate apply and/or set off some or all of the funds that are in your Payment Account against monies owing to Nomod if:
a. We reasonably consider that it may be required to cover future refunds, Chargebacks, charges against the Payment Account or other liabilities you may owe to us;
b. We believe that the funds do not adhere to these Terms of Service; and/or
c. We consider, acting reasonably, that the Services are being used in a fraudulent or illegal manner or that the sale of the Product is fraudulent or illegal under any relevant Law or regulation.
10.2 We shall communicate to you amounts retained as the Reserve and where appropriate and where we are legally able to do so, the reason for retention of funds.
10.3 We will keep any retained amounts only for a reasonable time as determined at our sole discretion, and will promptly pay over to you any remaining retained amounts after any available set off. For the avoidance of doubt, Nomod is not obliged to pay any revenues associated with activities or Products which it considers in its reasonable discretion to be fraudulent or illegal under any relevant Law or regulation.
10.4 If you do not have sufficient funds in your Reserve, we may fund the Reserve from any funding source associated with your Nomod Account, including any (a) funds credited to your Nomod Accounts, (b) funds due to you, (c) funds available in your Bank Account linked to your Nomod Account or (d) other payment instrument registered with Nomod for this purpose. You grant us a security interest in and lien on and/or a set-off right against any and all funds held in any Reserve and also authorise us to make any withdrawals or debits from the Reserve without prior notice to you or any bank account linked to any of your Nomod Accounts using your Direct Debit Instruction (or equivalent), to collect amounts that you owe Nomod. You will execute any additional documentation required for us to perfect our security interest in any funds in the Reserve. This security interest survives for as long as we hold funds in your Reserve.
10.5 Notwithstanding any funds retained by us for such circumstances, all amounts due under these Terms of Service shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law) and you agree to pay us, upon demand, any monies owed to us due to refunds, Chargebacks, commissions, or fees for services rendered.
11.1 Where you have no sales for a period of six (6) consecutive months (the "Dormancy Period" ) and there is a positive Account Balance, Nomod reserves the right to write off the Account Balance, bring it back to zero (0) and deactivate your Payment Account. Before doing so, Nomod will attempt to contact you in order to pay you the Account Balance.
12.1 You are responsible for determining any and all taxes assessed, incurred or required to be collected, paid or withheld for any reason for your use of the Services ("Taxes"). You also are solely responsible for collecting, withholding, reporting and remitting correct Taxes to the appropriate tax authority. We are not obligated to, nor will we determine whether Taxes apply or calculate, collect, report or remit any Taxes to any tax authority arising from any transaction. Nomod specifically disclaims any liability for Taxes.
13.1 Fair Use:
a. Subject to applicable Law and Network Rules, you will honour all valid and current Cards without discrimination when properly presented by a Customer for payment and not establish a minimum or maximum transaction amount as a condition for honouring Cards.
b. You will provide your full range of Products to Customers at prices no greater than normal cash prices or as otherwise permitted by the Networks.
c. If you indicate a price to a Customer that is not a price applicable to all methods of payment you accepted (whether due to a charge or a reduction), then before you accept a Card Transaction, you must display a statement explaining any methods of payment to which an indicated price does not apply and the difference in price either as an amount or a percentage as required by the Network Rules.
d. You will only use the Services to submit Transactions in respect of Products that you provide to your Customers. Any differences in prices must not exceed the costs borne by you for the use of that specific Card.
13.2 Restricted, Unauthorised or Illegal Use:
a. You will comply with all applicable Law and only accept Cards for transactions that are allowed by applicable Law.
b. You will not:
i. Process transactions for anything other than the genuine purchase of your Products;
ii. Split a transaction into two or more transactions, unless explicitly permitted by the Network Rules;
iii. Accept a transaction or present transaction data that was not undertaken directly between you and your Customer;
iv. Process cash advances or otherwise accept or process transactions in order to give your Customer cash;
v. Refund transactions to a Card that was not originally used to make such transactions;
vi. Accept money from a Customer in connection with processing a refund to the Customer's account;
vii. Request a Customer to disclose their Card's personal identification number ('PIN') at any point in a transaction; viii. Act as a payment processor, payment facilitator or otherwise resell the Services to any third party; or
ix. Use the Services to handle, process or transmit funds for any third party.
c. We may decide not to authorise or settle any transaction that you submit to us if we believe that the transaction is in violation of these Terms of Service or any other agreement with Nomod or that it exposes you, your Customers, other Nomod users, our Payment Method Partners or Nomod to harm. Harm includes fraud and other criminal acts, including submitting transaction data that you know or ought reasonably to have known is illegal.
d. If we suspect that your Nomod Account has been used for an unauthorised, illegal or criminal purpose, you give us express authorisation to share information about you, your Nomod Account and any of your transactions with law enforcement and, as deemed necessary by Nomod or our Payment Method Partners.
e. You agree and acknowledge that you may be liable for fraudulent transactions that could have been prevented if you had properly allowed your Customer to use Secure Customer Authentication. To this end, you agree to allow Customers to enter their PIN, password, or utilise an additional authentication method, when prompted.
13.3 Recurring Billing or Subscription Charges:
a. If you elect to process recurring Customer transactions ("Subscription Charges"), you must:
i. Obtain the Customer's consent to charge their card for the same or different amounts at specified or different times; and
ii. Notify the Customer that they are able to discontinue such recurring payments at any time, provided they do so prior to the end of the business day preceding the payment day.
b. You must discontinue processing the recurring transactions of a Customer immediately upon such Customer's request that you do so.
c. You must retain evidence of the Customer's consent for 18 months from the date you process the last recurring transaction.
d. If these Terms of Service are terminated for any reason, you must notify all Customers for whom you process recurring transactions of the date on which you will no longer be accepting recurring payments.
e. You accept any recurring Card payment transactions from your Customers at your own risk.
13.4 Assignment of Receivables: With the exception of your participation in a merchant cash advance or other similar merchant financing program offered by Nomod or its affiliates or unless required by applicable Law, you will not assign Card receivables or proceeds due to you under these Terms of Service to any third party.
13.5 Applicable Network Rules:
a. By using the Services, you agree to comply with all applicable bylaws, rules and regulations set forth by the Networks, as amended from time to time ("Network Rules").
b. The Networks amend their rules and regulations from time to time. Nomod may be required to change these Terms of Service in connection with amendments to the Network Rules. Significant portions of the Network Rules are available to the public at https://www.visa.com, https://www.mastercard.com and https://www.americanexpress.com/merchantopguide.
c. In the event of inconsistency between a Network Rule and these Terms of Service and except as otherwise agreed between Nomod and the Network, the Network Rule will take precedence.
d. The Networks have the right to enforce any provision of the Network Rules and to prohibit you from engaging in any conduct the Networks deem could injure or could create a risk of injury to the Networks, including reputational injury or that could adversely affect the integrity of the interchange system, information the Networks deem to be confidential or both. You agree not to take any action that could interfere with or prevent the exercise of this right by the Networks.
e. You agree to cooperate with Nomod and the Networks in respect of any issues arising out of a breach of security in relation to the holding of any confidential data.
f. Before prompting your Customer to provide card information, you will prominently and clearly disclose to your Customers, at all points of interaction, your physical address.
13.6 Network Logos and Marks: Your use of Network logos and marks ("Marks") is governed by the Network Rules; you must familiarise yourself with and comply with these requirements. The Networks are the sole and exclusive owners of their respective Marks. You will not contest the ownership of the Marks for any reason and any Network may at any time, immediately and without advance notice, prohibit you from using its Marks for any reason. Nomod may require you to make modifications to your website or other advertising and signage in order to comply with Network Rules related to the Marks.
13.8 Failure to Comply with Network Rules or Security Standards: You understand that your failure to comply with the Network Rules or the PCI-DSS security standards, including the compromise of any Card information, may result in fines or other losses to Nomod. You will indemnify us and reimburse us immediately for any fines or losses directly or indirectly caused by your and your agents' actions or omissions. You must have in place appropriate technical and organisational measures that ensure an appropriate level of security for the processing of Customers' Personal Data and that protects Customers' Personal Data against accidental or unlawful destruction, accidental loss or alteration, or unauthorised disclosure access or processing.
14.1 You represent and warrant to Nomod that:
a. You are the owner of each Product in connection with the use of the Services or that you are legally authorised to act on behalf of the owner of such Product for the purposes of these Terms of Service;
b. The Product is free from defect and fit for purpose;
c. You have all necessary right, power and authority to enter into these Terms of Service and to perform the acts required of you hereunder and to permit Nomod to perform the Services contemplated under these Terms of Service;
d. Your use of the Services, the delivery and performance by you of the terms and conditions under these Terms of Service does not and will not conflict with or violate any agreement or other instrument with a third party applicable to you or otherwise infringe upon the rights of any third party;
e. You have complied and will continue to comply with all applicable Laws, statutes, ordinances, and regulations (including, without limitation, any relevant data protection or privacy laws); and
f. You will at all times comply with all applicable Nomod policies.
14.2 In addition to Section 14.1 of these Terms of Service, with each Card Transaction you conduct through the Services, you represent, warrant and covenant to Nomod that:
a. The Card Transaction represents a bona fide sale;
b. The Card Transaction accurately describes the goods and/or services provided to the Customer;
c. You will fulfil all of your obligations to the Customer and will resolve any dispute or complaint directly with the Customer;
d. You and the Card Transaction comply with all applicable Law, rules and regulations applicable to you and your business, including any applicable Tax, wage and hour and tip laws and regulations;
e. Except in the ordinary course of business, you are not submitting a Transaction that represents a sale to any principal, partner, proprietor or owner of your entity or business; and
f. You are not submitting a Transaction involving your own Cards (except for reasonable test swipes).
14.3 You agree to indemnify, defend and hold harmless Nomod, its employees, consultants, officers and directors, or users from and against any and all claims, costs, expenses, losses, damages, liabilities, penalties, interest, settlements, judgments and fees (including reasonable legal fees) arising from:
a. Any information that you or anyone using your account may submit or access in the course of using the Services;
b. Your breach of any representation or warranty in, or violation of the terms of these Terms of Service or any agreement or other instrument with a third party applicable to you;
c. Any violation or failure by you to comply with all Laws and regulations in connection with your use of the Services, whether or not described herein
d. Any claim, action, audit, investigation, inquiry or other proceeding instituted by a person or entity that arises out of or relates to any Transaction submitted by you through the Services (including the accuracy of any content or product, service or Transaction information that you provide or any claim or dispute arising out of products or services offered or sold by you); and
e. Any disputes in respect of the Product.
15.1 Nomod disclaims any and all warranties, express, implied or statutory regarding the Services to the full extent permitted by law. Without limiting the generality of the foregoing, the Services are provided "as-is" and without warranties of any kind, including, without limitation, any warranties of performance or implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Further, Nomod does not make, and has not made, any representation or warranty that the Services are accurate, complete, reliable, current, error-free, or virus-free or that the operation of the Services will be uninterrupted. Some jurisdictions do not allow exclusion of an implied warranty, so this disclaimer may not apply to you.
15.2 To the fullest extent permitted by applicable Law, in no event will Nomod, its partners, service providers, affiliates or any of their respective directors, officers, employees, consultants or agents be liable to you for any special, incidental, indirect, punitive, exemplary or consequential damages, whether foreseeable or unforeseeable, which may arise out of or in connection with these Terms of Service, regardless of whether either party has been apprised of the possibility or likelihood of such damages occurring, or whether claims are based or remedies are sought in contract or tort otherwise. To the fullest extent permitted by applicable Law, Nomod's aggregate (i.e., not per-claim) liability under, arising from, or related to these Terms of Service will be limited, in respect of each event or series of connected events, to the greater of: (a) the total of all amounts payable by you under these Terms of Service in the three-month period immediately preceding the event giving rise to such liability (or, in the case of a series of connected events, the first such event); and (b) USD 500.
16.1 If any provision of these Terms of Service is held to be invalid or unenforceable by a court of competent jurisdiction, the parties nevertheless agree that the court should endeavour to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. Nomod's acquiescence in the breach of a provision of these Terms of Service or failure to act upon such breach does not waive Nomod's right to act with respect to subsequent or similar breaches. Likewise, the delay or failure of Nomod to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
17.1 All Confidential Information provided by one party to any other party under these Terms of Service is deemed to be confidential. The receiving party shall not use, disclose, or otherwise take any advantage of such Confidential Information.
17.2 Each party shall exercise the same degree of care to avoid the publication or dissemination of the Confidential Information of the other party as it affords to its own Confidential Information of a similar nature which it desires not to be published or disseminated, which in any event shall not be less than reasonable care.
17.3 Confidential Information disclosed under these Terms of Service shall only be used by the receiving party within the purpose of these Terms of Service or the performance of its obligations hereunder. The receiving party agrees not to use the disclosing party's Confidential Information except in the course of performing hereunder and will not use such Confidential Information for its own benefit or for the benefit of any third party.
17.4 The obligation of the parties not to disclose Confidential Information shall survive the termination or cancellation of these Terms of Service. However, no party shall be obligated to protect Confidential Information of the other party which:
a. Is rightfully received by the receiving party from another party without confidential obligation to such party; or
b. Is known to or developed by the receiving party independently without use of the Confidential Information; or
c. Is, or becomes generally known to the public by other than a breach of duty hereunder by the receiving party; and
d. Furthermore, a receiving party may disclose Confidential Information that is required to be disclosed pursuant to a requirement of a government agency or law so long as the receiving party provides prompt notice to the disclosing party of such requirement prior to disclosure.
19.2 You will not upload or provide Content or otherwise post, transmit, distribute, or disseminate through the Services or Sites any material that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory; (b) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (c) breaches or infringes any duty toward or rights of any person or entity, including rights of publicity, privacy or intellectual property; (d) contains corrupted data or any other harmful, disruptive, or destructive files; (e) advertises products or services competitive with Nomod's or its partners' products and services, as determined by us in our sole discretion; or (f) in our sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Services or Sites, or which may expose Nomod, its affiliates or its Users to harm or liability of any nature.
19.3 Although we have no obligation to monitor any Content, we have absolute discretion to remove Content at any time and for any reason without notice. Nomod may also monitor such Content to detect and prevent fraudulent activity or violations of Nomod's Terms of Service. You understand that by using the Services or Sites, you may be exposed to Content that is offensive, indecent, or objectionable. We take no responsibility and assume no liability for any Content, including any loss or damage to any of your Content.
20.1 These Terms of Service are effective upon the date you first access or use the Services and continue until terminated by you or Nomod.
20.2 You may terminate these Terms of Service at any time by closing your Nomod Account and ceasing to use the Service. If you use the Services again or register for another Nomod Account, you are consenting to these Terms of Service.
20.3 We may terminate these Terms of Service or close your Nomod Account at any time for any reason by providing you advance Notice (the period of notice as required by applicable Law).
20.4 We may suspend your Nomod Account and your ability to access funds in your Payment Account, or terminate these Terms of Service, if:
a. We determine in our sole discretion that you are ineligible for the Services because of significant fraud or credit risk, or any other risks associated with your Nomod Account;
b. You use the Services in a prohibited manner or otherwise do not comply with any of the provisions of these Terms of Service;
c. Any Law or Payment Method Partner requires us to do so; or
d. We are otherwise entitled to do so under these Terms of Service.
20.5 A Payment Method Partner may terminate your ability to accept a Payment Method, at any time and for any reason, in which case you will no longer be able to accept the Payment Method under these Terms of Service.
20.6 Termination or expiry of these Terms of Service shall not affect any accrued rights and liabilities of either party at any time up to the date of termination.
21.1 Termination or expiration of these Terms of Service shall not release either party from the obligation to make payment of all amounts then or thereafter due and payable.
22.1 The parties agree that these Terms of Service constitute the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
22.2 Each party acknowledges that it has not entered into these Terms of Service in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in these Terms of Service. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in these Terms of Service.
22.3 You may not assign, subcontract or encumber any right or obligation under these Terms of Service, in whole or in part, without Nomod's prior written consent. Any assignment in violation of this Section 22.3 is void.
22.4 A party shall not be in breach of these Terms of Service nor liable for delay in performing, or failure to perform, any of its obligations under these Terms of Service if such delay or failure result from an event, circumstance or cause beyond a party's reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. However, nothing in this section will affect or excuse your liabilities in relation to or your obligation to pay fees, fines, disputes, refunds, reversals, Chargebacks or returns under these Terms of Service.
22.5 Unless otherwise expressly agreed, no delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
22.6 Except as expressly provided in these Terms of Service, the rights and remedies provided under these Terms of Service are in addition to, and not exclusive of, any rights or remedies provided by law or in equity.
22.7 If any provision or part-provision of these Terms of Service is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Terms of Service.
22.8 Each party shall comply with all laws, enactments, regulations, regulatory policies, guidelines and industry codes applicable to it and shall maintain such authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with these Terms of Service.
22.9 The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.
22.10 Any notice (save for notices given in legal proceedings or arbitration) given to a party under or in connection with these Terms of Service shall be by email or in writing (by courier delivery or given by hand) to the address given for the relevant party herein or such other address that a party notifies the other party of at any time and shall be given and deemed received on delivery.
22.11 We have the right to change or add to the terms of these Terms of Service at any time, solely with prospective effect, and to change, delete, discontinue, or impose conditions on use of the Services by posting such changes on our website or any other website we maintain or own. We will provide you with Notice of any changes through the Nomod Services, via email, or through other reasonable means. If you are an existing Nomod user, the changes will come into effect on the date we specify in the Notice, and your use of the Services after a change has taken effect, constitutes your acceptance of the terms of the modified Terms of Service. You can access a copy of the current terms of these Terms of Service on our website at any time. You can find out when these Terms of Service were last changed by checking the date at the top of the Terms of Service.
23.1 These Terms of Service shall be governed by and construed in accordance with the laws of England & Wales, and the parties irrevocably agree that the English courts shall have exclusive jurisdiction over any claim or matter arising under or in connection with these Terms of Service.
24.1 If you have any questions or wish to make a complaint about the Services we provide, please contact us.