Terms of Service
Last updated: Feb 12, 2025
Please read these New Money Company Terms of Service (the “Terms”) and our Privacy Notice (“Privacy Notice”) carefully because they govern your use of the website located newmoneycompany.com (the “Site”) and services accessible via the Site offered by The NMC Company of San Francisco, Inc.. (“NMC”). To make these Terms easier to read, the Site, and our services are collectively called the “Services.” Any person, company, or other entity that sells its products and/or services, and/or any person or entity that purchases products and services are referred to as “Users” where applicable.
IMPORTANT NOTICE REGARDING ARBITRATION FOR CUSTOMERS WHO ARE INDIVIDUALS: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND NMC THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 20 “DISPUTE RESOLUTION FOR INDIVIDUALS” BELOW FOR DETAILS REGARDING ARBITRATION. HOWEVER, IF YOU ARE RESIDENT OF A JURISDICTION WHERE APPLICABLE LAW PROHIBITS ARBITRATION OF DISPUTES, THE AGREEMENT TO ARBITRATE IN SECTION 20 WILL NOT APPLY TO YOU BUT THE PROVISIONS OF SECTION 19 (GOVERNIN LAW AND FORUM CHOICE) WILL APPLY INSTEAD.
1. Agreement to Terms.
By using our Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that entity to these Terms. In that case, “you” and “your” will refer to that entity.
2. Privacy Notice.
Please review our Privacy Notice, which also governs your use of the Services, for information on how we collect, use and share your information.
3. Changes to these Terms or the Services.
We may update the Terms from time to time in our sole discretion. If we do, we’ll let you know by posting the updated Terms on the Site and/or may also send other communications. It’s important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms it means that you accept and agree to the changes. If you don’t agree to be bound by the changes, you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
4. Our Services.
a. Payment Services. We provide software services through which service professionals (“Service Professionals”) working with businesses (“Businesses”) may connect online, communicate with each other and transact payments for services performed by Service Professionals to Businesses. We do not directly engage or employ Service Professionals, and we are not responsible for services provided by Service Professionals to Businesses or payments due by Businesses to Service Professionals.
On the platform, we define payment services to encompass the NMC platform's ability to open virtual accounts in your name or the name of your business to facilitate the collection of payments.
Additional services include payouts or withdraws, which transfers money from your profile on the platform to an external account in your name. We may leverage certain third parties that are specifically authorized to provide certain payment functionalities by holding a money services business registration and corresponding state licenses, or otherwise partnering with a regulated financial institution (collectively, “payment services”). The payment services in the US are powered by NIUM Inc. and the program is sponsored by CFSB to which NIUM is a service provider. NMC is not licensed, nor exempt to provide any payment services in the US.
b. Additional Terms. We may use third parties as payment processing service providers. banking service providers directly or as service providers to NMC to offer certain services or products. By using these Services, you will be subject to the terms of use and privacy policies of the third-party service providers used to facilitate your transaction. We may change its third-party payment processing service providers without notice to you. We expressly disclaim any liability for any such transactions, and you agree that your sole remedy regarding such transactions (including bank-related charges) is from or through the applicable service provider. If your transaction is not successful then your purchase will not be fulfilled by NMC, or NMC may promptly terminate the use of our Services.
c. Supplemental Distribution Services. Eligible Users can transact directly with NMC via our reseller distribution services (“Distribution Services”). Your use of the Distribution Services is subject to the applicable Distribution Service Term provided here [insert link].
5. Who May Use the Services?
a. You may use the Services only if you are (i) 18 years or older and capable of forming a binding contract with NMC, or (ii) a business in good standing with the laws of the jurisdiction in which you are incorporated, and, in each case, you are not otherwise barred from using the Services under applicable law.
b. For certain features of the Services, you’ll need an account. It’s important that you provide us with accurate, complete and current account information and keep this information up to date. If you don’t, we might have to suspend or terminate your account. To protect your account, keep the account details and password confidential, and notify us right away of any unauthorized use. You’re responsible for all activities that occur under your account.
6. Feedback.
We appreciate feedback, comments, ideas, proposals and suggestions for improvements to the Services (“Feedback”). If you choose to submit Feedback, you agree that we are free to use it without any restriction or compensation to you.
7. Terms Specifics to Service Professionals.
If you are using the Services as a Service Professional, you acknowledge and agree to the following terms:
a. The Services are only a medium for you to connect with businesses seeking to engage your services and manage and streamline your service engagements. YOU CONTRACT DIRECTLY WITH BUSINESSES AND ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH BUSINESSES AND THE SERVICES YOU PROVIDE TO THEM, INCLUDING ANY DISPUTES THAT RESULT FROM SUCH SERVICES. WE ARE NOT A PARTY TO ANY AGREEMENTS BETWEEN YOU AND BUSINESSES. YOU ARE NOT AN EMPLOYEE OR AGENT OF NMC.
b. As between you and NMC, you have sole control over the services you provide to Businesses, including how and when you perform the services and how you price them. However, you agree to comply with all applicable laws and regulations (including any permits and licenses you must obtain and maintain to provide your services), and to use your best efforts to perform your services in the manner agreed upon between you and the Businesses.
8. Terms Specific to Businesses.
Unless otherwise provided by the Distribution Services, the Services are only a medium for you to connect with and engage providers of various professional services. YOU CONTRACT DIRECTLY WITH SERVICE PROFESSIONALS AND ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH SERVICE PROFESSIONALS AND ALL PAYMENTS DUE FOR SERVICES THEY PROVIDE TO YOU, INCLUDING ANY DISPUTES THAT RESULT FROM SUCH SERVICES. WE ARE NOT A PARTY TO ANY AGREEMENTS BETWEEN YOU AND SERVICE PROFESSIONALS. WE DO NOT DELIVER, AND ARE NOT RESPONSIBLE FOR ANY SERVICES PROVIDED BY SERVICE PROFESSIONALS. SERVICE PROFESSIONALS ARE NOT EMPLOYEES OR AGENTS OF NMC.
9. Payments.
a. NMC requires payment of fees for use of the Services (or certain portions thereof) as set forth in newmoneycompany.com/pricing and you agree to pay such fees.
b. Our Services may facilitate payments by Businesses to Service Professionals for services provided by Service Professionals to Businesses, but all transactions conducted via the Services and agreements are between Service Professionals and Businesses.
c. If you are using the Services’ payment functionality as a Service Professional, you acknowledge and agree to the following terms:
· NMC may use third parties to process payments, refunds or payouts through the Services, which NMC may change or replace in its sole discretion upon notice to you.
· Any fee due by you to NMC under these Terms may be deducted and retained by NMC from the transaction amount paid by the Business to you.
· You authorize NMC, and NMC hereby agrees to act, as your agent for the purposes of holding, receiving and disbursing funds on your behalf. To the extent required by applicable law, each of NMC and you hereby agrees to and acknowledges the following: (1) NMC will comply in all respects with instructions originated by you, meaning that you assume sole and complete responsibility, without recourse to NMC, for the transmission of funds from the moment a Business initiates a payment transaction until you receive the transaction funds or the Business receives the refund, as applicable; (2) there is no risk of loss to the Business initiating the payment transaction if NMC fails to remit the transaction funds to you; (3) receipt of transaction funds by NMC is deemed receipt of transaction funds by you; (4) NMC may not provide money transmission or equivalent activity, as defined under applicable law, outside the scope of activity permissible under these Terms except to the extent that NMC is licensed to do so or is operating as an agent for another person or entity; and (5) persons or entities doing business with NMC are aware that NMC acts as an agent for the purposes of the holding, receiving and disbursing of funds.
d. If you are using the Services’ payment functionality as a Business, you acknowledge and agree to the following terms:
· By initiating a payment through the Services to the Service Professional for services provided to you, you agree to the pricing and other terms communicated to you by the Service Professional and to pay all such amounts.
· When you make a payment through the Services (each payment, a “Transaction”), you expressly authorize us (or our third-party payment processor) to charge you for such Transaction. We (or our third-party payment processor) may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card, your email and postal addresses and your phone number for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the Transaction (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). All payments for Transactions are non-refundable and non-transferable. All fees and applicable taxes, if any, are payable in United States dollars.
10. Your Content.
a. Posting Content. Our Services may allow you to store or share content such as text (in posts or communications with others), files, documents, graphics, images, music, software, audio and video. Anything (other than Feedback) that you post or otherwise make available through the Services is referred to as “User Content”. NMC does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to your User Content.
b. Permissions to Your User Content. By making any User Content available through the Services you hereby grant to NMC a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your User Content in connection with operating and providing the Services.
c. Your Responsibility for User Content. You are solely responsible for all your User Content. You represent and warrant that you have (and will have) all rights that are necessary to grant us the license rights in your User Content under these Terms. You represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by NMC on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
d. Removal of User Content. You can remove your User Content by specifically deleting it. You should know that in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. To the maximum extent permitted by law, we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
e. NMC's Intellectual Property. We may make available through the Services content that is subject to intellectual property rights. We retain all rights to that content.
11. General Prohibitions and NMC's Enforcement Rights
You agree not to do any of the following:
· Post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
· Use, display, mirror or frame the Services or any individual element within the Services, NMC's name, any NMC trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without NMC's express written consent;
· Access, tamper with, or use non-public areas of the Services, NMC's computer systems, or the technical delivery systems of NMC's providers;
· Attempt to probe, scan or test the vulnerability of any NMC system or network or breach any security or authentication measures;
· Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by NMC or any of NMC's providers or any other third party (including another user) to protect the Services;
· Attempt to access or search the Services or download content from the Services using any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by NMC or other generally available third-party web browsers;
· Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
· Use any meta tags or other hidden text or metadata utilizing a NMC trademark, logo URL or product name without NMC's express written consent;
o Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
· Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
· Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
· Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
· Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
· Impersonate or misrepresent your affiliation with any person or entity;
· Violate any applicable law or regulation; or
· Encourage or enable any other individual to do any of the foregoing.
NMC is not obligated to monitor access to or use of the Services or to review or edit any content. However, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any content, including User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider it objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
12. Copyright and IP Policy.
NMC respects copyright law and expects its users to do the same. It is NMC's policy to terminate in appropriate circumstances account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please contact our support team for information.
13. Links to Third Party Websites or Resources.
The Services (including the App) may allow you to access third-party websites or other resources. We provide access only as a convenience and are not responsible for the content, products or services on or available from those resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party resources.
14. Termination
We may suspend or terminate your access to and use of the Services, including suspending access to or terminating your account, at our sole discretion, at any time and without notice to you. You may cancel your account at any time by sending us an email at premier@newmoneycompany.com. Upon any termination, discontinuation or cancellation of the Services or your account, the following Sections will survive: 8, 9, 11, and 14 - 21.
15. Warranty Disclaimers.
THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any information or content on the Services.
16. Indemnity
You will indemnify and hold NMC and its officers, directors, employees and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (a) your access to or use of the Services, (b) your User Content, or (c) your violation of these Terms.
17. Limitation of Liability.
a. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER NMC NOR ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT NMC OR ITS SERVICE PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
b. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL NMC's TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID OR ARE PAYABLE BY YOU TO NMC FOR USE OF THE SERVICES OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO NMC, AS APPLICABLE.
c. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NMC AND YOU.
18. Governing Law and Forum Choice.
These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of Illinois, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 20 “Dispute Resolution for Individuals,” the exclusive jurisdiction for all disputes, claims or controversies arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) that you and NMC are not required to arbitrate will be the state and federal courts located in Cook County, and you and NMC each waive any objection to jurisdiction and venue in such courts.
19. Dispute Resolution for Individuals.
a. Mandatory Arbitration of Disputes. We each agree that any Dispute will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and NMC agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and NMC are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
b. Exceptions. As limited exceptions to Section 20(a) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
c. Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
d. Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
e. injunctive and Declaratory Relief. Except as provided in Section 20(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
f. Class Action Waiver. YOU AND NMC AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
g. Severability. With the exception of any of the provisions in Section 20(f) of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
20. General Terms
a. Reservation of Rights. NMC and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You acknowledge that the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
b. Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between NMC and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between NMC and you regarding the Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. Except where provided by applicable law in your jurisdiction, you may not assign or transfer these Terms, by operation of law or otherwise, without NMC's prior written consent. Any attempt by you to assign or transfer these Terms absent our consent or your statutory right, without such consent, will be null. NMC may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
c. Notices. Any notices or other communications provided by NMC under these Terms will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
d. Waiver of Rights. NMC's failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of NMC. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
21. Contact information
If you have any questions about these Terms or the Services, please contact NMC at premier@newmoneycompany.com.
Distribution Services Terms and Conditions
NMC makes the Distribution Services pursuant to these Distribution Services Terms and Conditions (“Distribution Services Terms”) and any corresponding Order Form. The New Money Company Terms of Service are incorporated herein by reference. For purposes of these Distribution Service Terms, Businesses are “Purchasers” and Suppliers are “Sellers,” and Purchasers and Sellers are collectively referred to as “Users.” Capitalized terms used, but not defined, in these Distribution Services Terms have the meanings set forth in the New Money Company Terms of Service.
1. Transactions. An offer to purchase a product submitted by a Purchaser through a Seller’s ecommerce website represents an offer to purchase the product from NMC. If NMC accepts the offer from the Purchaser, NMC will contract directly with the Purchaser for the products and will identify itself, and be identified by Seller, as a reseller of the products (the “merchant” for purposes of the sales transaction). NMC will purchase the product that the Purchaser has offered to purchase from Seller, and you will sell and transfer title to that product to NMC for our resale of the product to the Purchaser. As the authorized reseller and merchant, NMC is entitled to retain the full amount of the purchase price, including any related taxes and fees, for the products sold to Purchasers by NMC, net of any amounts owed by NMC to Seller for NMC’s initial purchase of that product for resale or as otherwise set forth in this Agreement.
2. Terms Specific to Sellers
a. Transaction Taxes and Regulatory Fees. Sellers will collect and remit the appropriate taxes and regulatory compliance fee(s) for sellers, if any are applicable on behalf of NMC. For certain jurisdictions where it is relevant, Sellers will provide services to collect tax identifiers from Purchasers to determine the tax treatment for the Order. Seller will calculate the appropriate taxes a Purchaser is responsible for paying on an order. If a jurisdiction audits the tax related to sales to a Purchaser, we will be the subject of the audit as the reseller to the Purchaser but may request reasonable information from Seller in addition to the data we already possess which may be necessary for us to respond to these inquiries.
b. Payment Transaction Processing. We will use NMC-owned merchant accounts and our payment service provider will process the payment transaction as set forth herein and in accordance with the specific payment methods and costs for accepting the payment methods, as well any local currencies, and if necessary, currency conversions, defined in the Order Form. If we request, you will provide Purchaser order validation and authorization information to us. You will immediately inform us if there is any reason to believe that any information and/or instructions you provided to us have been incorrectly processed or sent to us (including, but not limited to, incorrect instructions about refunded payments).
c. Payment Instrument Validation. We use a payment service to determine if the payment instrument can be validated or authorized and if the Order’s payment type cannot be settled until further action is taken by the Purchaser, we will hold the order pending that action.
d. Billing Optimization. We will leverage our proprietary billing optimization tools and our network of global and local payment partners to reduce the number of transactions declined by payment processors.
e. Process Authorizations, Refunds and Chargebacks. We will process authorization(s), capture, refund and chargeback transactions through one of our payment processing relationships.
f. Refunds. We may use a payment service to initiate a refund if you have generated a refund through our payment service provider.
g. Payment Method Availability. We may, upon notice to you, disable and/or remove a payment method that (i) experiences excessive levels of fraud or chargeback rates, (ii) is no longer supported by our payment processing relationships, or (iii) we no longer accept as an authorized payment method across our client base.
h. Order Orchestration.
· Fulfillment Responsibility. We are responsible for fulfillment of products we resell to Purchasers. We may appoint you or a third-party to act as our fulfillment agent.
· Fulfillment Information Required. You may select in the Order Form to use our optional Fulfillment Service or alternative services for fulfillment of products we resell. If you select alternative fulfillment services, you are responsible for an integration between our payment service provider and those services to enable our payment service provider to receive and respond to fulfillment requests or notices. If you are using our optional Fulfillment Service, the optional Fulfillment Terms will apply.
· Fulfillment Status. You are solely responsible for sending a fulfillment request or notice in a timely manner in accordance with our Guidelines and Best Practices.
· Notifications. Our payment service provider is configured to enable transactional notifications related to Purchaser and order events, including order confirmation, cancellation, and refunds. You are responsible for all notifications required in the Guidelines & Best Practices.
i. Buyer Support Services.
· Sole Responsibility. As the reseller we are subject to strict oversight on controlling who has access to Purchaser data (including payment card details) so you agree that you will not subcontract your access to the Distribution Services for the sale and fulfillment of product(s) offered on our payment service provider to a third party without our express prior written approval to do so, such approval not to be unreasonably withheld, delayed or conditioned.
· Online Order Support. We will provide you with access to our administration interface and/or APIs for you to provide support to Purchasers in connection with the sale and fulfillment of product(s).
· Additional Order Support. If you would like us to support resolution of an escalated Purchaser service inquiry in connection with the sale or fulfillment of a product, we will provide escalated Purchaser service support at rates set forth in the Order Form or a Statement Of Work (“SOW”).
· Warranty and Recalls. You are solely responsible for all warranty and recall obligations relating to product(s) in accordance with your warranty policy, but in no event inconsistent with the laws and regulations of the jurisdictions in which the product(s) are sold. You will notify us of any public or private recall or claim of infringement, or of any other liability or claims involving or relating to a product we offer for resale through our payment service provider. We will provide reasonable assistance in such cases, so long as you will pay all our related expenses.
· Financial Dashboard. We will provide you access to a financial dashboard which lists all payments made to you within the past two years. You will have access through the financial dashboard to a periodic sales summary which represents aggregate payment information for a defined period of time as well as access to individual sales transactions. If you believe the financial dashboard has errors, you must notify us of the error(s) within sixty (60) days of when the data was made available to you in order to be able to dispute the error(s). Older payments-related data will be available through a portal to which we will provide you access.
· Payments to You. Once we have received notification of fulfillment for processed transactions, we will collect and reconcile the funds paid by the Purchaser pursuant to the Payment Services in the Terms for the purchase of your product, and payments to you will be aggregated into a payment to you in accordance with the Order Form.
· Net 120 Payment. You agree that any payments to you are Net 120 from the Purchaser purchase date as reflected in the Order Form. NMC has to pay you sooner. You agree to not to call any invoices due to you in advance of the Net 120 Payment period unless otherwise provided in the Order Form.
· Payment Calculations. Our payments to you are computed by taking the amounts collected from Purchasers net of third-party costs related to the transaction that we remit (such as taxes, regulatory fees, or shipping costs we are obligated to pay), and offsetting refunds, chargebacks and penalties and our charges in accordance with the Order Form. If the collected amounts are not enough to cover the offsets, we will invoice you for the difference in accordance with the payment terms in the Order Form.
· Treatment of Refunds & Cancellations. We are entitled to retain our charges earned on transactions processed by us, even if the transactions cannot be successfully settled, or become subject to refund or cancellation.
· Authorization or Receipt of Payment Does Not Equal Payment. The issuance of an authorization for a transaction or the payment for a transaction is not an assurance of that transaction’s validity. Any transaction may be subject to a reversed payment if permissible under the regulations or guidelines imposed by banks, card associations or legal or regulatory payment authorities. We will have complete discretion regarding the settlement of any kind of reversed payments and/or disputes with partner banks, including but not limited to, the settlement of disputes regarding reversed payments.
· We may charge you for each payment transaction reversal as set forth in the Order Form. Further, any sale where the fulfillment of that product was initiated pursuant to a valid payment authorization but is subsequently rejected or cancelled prior to settlement by us, the merchant bank or payment processor, will not be treated as a completed sale to a Purchaser by us for the purposes of calculating payments due to you.
j. Physical Product(s). The following sections apply if the product(s) we resell include physical product(s) The type of product(s) (digital, physical, or services) we offer for sale to Purchasers under the Agreement will be specified in an Order Form.
· Shipping Methods and Rates. our payment service provider receives available shipping method(s) and relevant respective shipping rates from the fulfillment service (which may be our Fulfillment Service).
· Delayed Payment Type Management. Orders using payment types that cannot be settled until further action is taken by the Purchaser will be held by us pending that action.
· Order Cancellation. Upon your instruction to our payment service provider, we will communicate to the fulfillment service (which may be our Fulfillment Service) to withhold fulfillment of a physical product order if you cancel the order prior to it being sent for fulfillment (and upon confirmation, our payment service provider will instruct the payment service to release any holds on the associated payment instrument(s)).
k. Physical Products Delivered by You as Our Fulfillment Agent.
· Inventory Controlled by You for Resale by Us. We will only accept for resale (i) inventory you own (which you will continue to own while in your warehouse) that is customs cleared (duty/tax paid) in free circulation available for resale, and (ii) inventory of the latest version of each product, appropriately labeled for use in the approved locations set forth in an Order Form, including all certifications, approvals and authorizations needed for use in each jurisdiction.
· Inventory Fulfilled by You. You accept the limited appointment as our fulfillment agent for the express purpose of warehousing and delivering products to Purchasers for us. You will deliver products or cancel delayed orders within timeframes required by law. You are responsible for all costs associated with the provision of warehousing and delivery services. You may use a third-party fulfillment agent approved by us (not to be unreasonably withheld or delayed) to perform your fulfillment obligation. Any third-party fulfillment agent must be defined in an Order Form, and any changes to the third-party fulfillment agent must be approved by us and defined in a new Order Form. You are responsible for the acts and omissions (and will be responsible for the acts and omissions of your third-party fulfillment agent) related to your obligations to fulfill orders for products purchased from us. You will provide us with timely proof of shipment for a given shipment upon our request. For all shipments of physical products to your warehouse, you will be importer of record (where applicable), will be responsible for all expenses associated with shipment, and will bear the risk of loss.
· Shipping Costs; Discounts. You will use your own or your agent’s shipping account for the shipment of physical products and are responsible for all risk of loss for your products while in your, or your agent’s, possession or control, and during shipment to the Purchaser. You will provide us with your warehousing and shipping fees, and we will collect from the Purchaser and remit to you those fees for each product fulfilled by you on our behalf.
· Delivery Delays Caused by You. We will have no liability for any delays to Purchasers created by the delivery of products by you, or the delivery of any non-conforming product to the description you provided to us.
· Additional Shipping Requirement. You agree that for products sold and fulfilled as our agent using the Solution, you will prohibit any change to the delivery address unless initiated by us.
l. Product Listing and Compliance.
· Product and Content Compliance. You acknowledge and agree to: (i) abide by any presently existing or future developed NMC’s product guidelines and to refrain from making available any prohibited products identified in NMC’s product guidelines; (ii) comply with all applicable laws, rules and regulations, including safety, labeling, testing, warning, import/export and other consumer protection law requirements; (iii) not infringe upon or misappropriate the intellectual property, publicity or other rights of others; (iv) not provide any false, inaccurate or misleading information about your products; and (v) ensure that you have all necessary rights, licenses, permissions and consents to offer for sale and sell the products through the Services, including (a) that they are allowed to be sold from your jurisdiction and into the Purchaser’s jurisdiction and (b) if you are a distributor, that you are properly authorized to do so by the applicable third party brand(s). You acknowledge and agree that NMC is not responsible for determining whether you meet the above requirements, you hereby release NMC from any liability with respect thereto and agree to indemnify NMC as set forth in the Indemnification section set forth below. Failure to comply with NMC’s products guidelines may result in the temporary suspension or permanent termination of your Seller account, in our sole discretion.
m. Commitment to Quality and Service. Seller and Purchaser satisfaction is of utmost importance to the long-term health and success of the NMC community. Accordingly, Sellers are subject to the following minimum standards in connection with the Services:
· To accurately list and describe available products;
· To comply with any governmental guidelines related to product labeling;
· To timely accept or cancel an order from a Purchaser;
· To timely fulfill and ship orders to Purchasers using a reputable shipping provider;
· To promptly and effectively respond to Purchaser inquiries; and
· To promptly resolve missing or damaged orders with a Purchaser.
3. Terms Specific to Purchasers
a. Placing an Order. When we offer Distribution Services, we are inviting you to make an offer to buy the products and services shown. When you place an order by clicking or activating the appropriate button or hyperlink on the Site or via the Seller platform, you are making us a legally binding offer to buy the products and services you have selected as identified in any Order Form. We accept your offer only when we have received approval by your chosen payment method and when we have shipped your product or otherwise made it available to you. At our discretion, we reserve the right to decline your offer and cancel your order. Any system generated order confirmation we send when you complete your order is an acknowledgement of your offer only and is not an acceptance of your offer, which is subject to correction before shipment of your physical products or delivery of your services. Upon successful verification of your order and payment information, NMC will buy the merchandise you ordered from our Supplier for the purpose of reselling it to you. By placing an order, you are consenting to our use of electronic communications related to your transaction and the electronic delivery of notices, policies, and records of the transaction. You agree that we may keep pertinent contract records, including communications and acknowledgements, as permitted by law.
b. Product Description and Pricing. We make every attempt to ensure that the products and services offered for sale on the Site are described and represented as accurately and as completely as possible. However, mistakes may occur and if there are errors, we reserve the right to correct and revise. Prices are subject to change. The prices payable are those prices in effect at the time of our acceptance of your offer and are in the currency presented on the Site. Unless otherwise indicated on the Site, prices for products and services do not include VAT, other taxes, delivery, export, or other charges.
c. Payment Terms. You agree to pay for the product through the payment methods offered on this Site via the Payment Services. Those payment methods may be subject to their own terms and conditions. We may use third-party service providers to process and authorize your payment. By placing an order, you are authorizing us and our third-party service provider(s) to charge you for your purchase using your selected payment method. You further agree that we may charge the total amount of the purchase—including any applicable taxes, delivery, and customs charges—to your designated payment method. If we have delivered your product or service to you and your payment method fails for any reason, you agree to pay us the full amount due upon demand.
d. Failure to Make Payment & Payment Plan Program. You acknowledge and agree that if you fail to make timely payment for any goods you ordered through the Payment Services, MNC may, at its option and without notice to you, demand immediate payment of all outstanding invoices, cancel or suspend orders, suspend or revoke your line of credit, offset monies that may be owed to you, assess late payment penalties at the highest rate allowed by law and/or temporarily suspend or permanently terminate your Purchaser Account. MNC reserves the right to turn your account over to a collection agency, or other applicable third party, or seek any other legal or equitable remedies available to collect any outstanding debt.
e. Security Interest and Collateral Pledged. Purchaser grants NMC a continuing security interest (the “Security Interest”), which will remain in full force and effect until the Order Form is satisfied and all other amounts due to NMC under these Distribution Services Terms have been remitted or paid. This Security Interest is granted in all Purchaser proceeds and products (the “Collateral”), including without limitation: all equipment, furniture, artwork, inventory, instruments, investment property, documents, general intangibles, deposits, contract rights, tradenames, trademarks, patents, supporting obligations, payment intangibles, chattel paper, commercial tort claims, licenses, permits, franchise agreements, payments due from credit card and bank card companies or processors, accounts receivable, accounts, leases, deposit accounts, refunds of bonds, and, to the extent not listed above as original collateral, all products and proceeds of all of the Collateral in whatever form, including, without limitation, all payments under insurance, whether or not NMC is the loss payee thereof, all proceeds of any governmental taking, and any indemnity, warranty, letter of credit (including the right to draw on such letter of credit), or guaranty payable by reason of any default under, loss of, damage to or otherwise with respect to, any of the foregoing.
f. Export. The products and services sold on this Site are subject to the import, export, and re-export laws and regulations of the United States and other countries. By completing a sale on the Site, you agree to comply with these import and export laws and regulations, including laws and regulations that place restrictions on the destinations, user, and end use of the products and services. You agree that you will not purchase or use any products or services offered for sale on this Site if any applicable laws in your country prohibit you from doing so. Accessing or using any products or services sold on this site in a location where their use is illegal is strictly prohibited. No party that is designated on the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons (“SDN List”), available at https://www.treasury.gov/resource-center/sanctions/sdn-list/pages/default.aspx, has or shall have any property interest whatsoever in the products purchased on this site. By completing a sale on the Site, you warrant that you are not on and are not 50% or more owned by one or more persons or companies identified on the SDN List. You further warrant that you are not acting on behalf of and will not divert any products purchased on this Site to (1) any restricted party identified by the U.S. Government; (2) any party blocked by operation of law; or (3) any prohibited end-use or destination as set forth in the U.S. Export Administration Regulations.
g. Your use of the products and services we offer may be subject to the additional terms of our Sellers which will be presented to you at the time of your purchase or which may be delivered to you with your product or service. Prior to completing your purchase, carefully read any additional terms and conditions that are presented to you. Do not complete the sale if you do not agree to those terms. Where additional terms are delivered with your product or service, you must review them immediately. If you do not agree to those terms, you must not use the product or service and contact customer service to begin a return.
h. Where the product or service we offer for sale is software, we are offering you a license to use the software. Except where permitted by law or by the license terms presented, the software may not be copied, adapted, translated, made available, distributed, varied, modified, disassembled, decompiled, reverse engineered, or combined with any other software. With respect to your purchase of a right to use a service, such as with a warranty, software-as-a-service, or a digital admission for an offering operated and offered by our Supplier or a third party, we are selling you an intangible right to access, use, or participate in that third-party service for a specified period of time. We are not the operator of service and make no representations or guarantees as to the availability of that service.
i. Shipping and Delivery. If we accept your offer, we will use commercially reasonable efforts to ship via the Seller and deliver physical products to the destination you specified in the ordering process and indicated on the order acknowledgment we send you. You must check the delivery address you provided during the ordering process (“Delivery Address”). If there are any errors or omissions, you must contact us to correct the Delivery Address as soon as possible. We cannot change the shipping address after your order has been processed and fulfilled. We reserve the right to cancel your order and/or charge you for any extra costs that arise as a result of any change in the delivery address on your part. Any delivery time frames we provide during the checkout process are estimates only and are not guaranteed and subject to the Order Form. Where we deliver product in installments, each installment constitutes a separate contract. Any defect in one or more installment does not entitle you to repudiate the contract as a whole or cancel any subsequent installment.
j. Returns and Refunds. Purchaser return policies will govern the returns process including any eligibility limitations.
k. Title and Risk of Loss. Provided your designated payment method has been honored, (1) title to physical products transfers to you when we deliver the physical products to the Delivery Address; (2) title of digital products and services transfers when we make the product available for download. Risk of loss for physical products transfers to you when we or the designated third party delivers the physical goods to the delivery address; and for digital products and services when we make the product available for download where applicable. If no signature is required for the delivery of physical goods, you accept all risk of loss for theft or loss when we deliver the product to the delivery address.
l. Failure to Accept Delivery. If you refuse delivery when our designated carrier attempts to make delivery of any physical products, you assume any risk of loss or damage to the products when the carrier attempts delivery. In that event, (1) you are still liable for the full payment for the products that the carrier attempted to deliver; (2) you are liable for any additional costs attributable to your failure to take delivery, including storage costs; and (3) after 30 days, we shall be entitled to dispose of the products in a manner we deem appropriate and may set off any proceeds of a sale against any sums you owe us.