The information contained herein is proprietary and confidential to Nexus Systems.
Table of contents:
Payment Services Agreement
- Nexus Payments Program Terms
- Commercial Payment Programs
- Participation Rights and Obligations of Payee
- General Rights and Obligations of Payee
- Nexus Rights and Obligations
- Term and Termination
- Payment Instructions, Receipt and Execution of Payment Instructions, and Settlement
- Funds Transfer Procedures for ACH Services
- Error Resolution Process
- Security Measures
- General Terms
- Rules of Interpretation
Payment Services Agreement
The Nexus Payments Program Terms in this Section 1 set forth terms that are specific to the Nexus Payments Program, and supplement the general terms applicable to the Nexus Payments Program set forth in Sections 2, 3, 4, 5 and 6 of this Agreement.
1.2 Authorized Representatives. Payee will include a list of Payee’s Authorized Representatives in the Enrollment Form provided to Nexus in connection with the Nexus Payments Program. Nexus is requested to honor, execute and process any instructions or requests transmitted or communicated by any of the Authorized Representatives. Payee agrees that changes to the Settlement Account may be initiated only by Payee’s Authorized Representative in accordance with the Program Documents.
2.1 Participation in Programs. Upon the mutual agreement of Payee and Nexus, as set forth in the Enrollment Form, Payee may participate in the Nexus Payments Program. Payee’s participation in the Nexus Payments Program will begin as of the Effective Date specified in the Program Documents. Unless terminated earlier pursuant to the Program Documents, Payee’s participation in the Nexus Payments Program will remain in effect until the earlier of (i) the expiration or termination of the Nexus Payment Program in accordance with the Program Documents or (ii) the expiration or termination of this Agreement. Payee agrees to abide by the requirements and restrictions set forth in the Program Documents in connection with Payee’s participation in the Nexus Payments Program.
2.2 Nexus Processing of Payment Instructions. In connection with the Nexus Payments Program, Nexus will facilitate the processing of Payment Instructions and facilitate Settlement in accordance with the Program Documents.
2.3 Payment Methods. Payee will have the right to designate which forms of payment that Payee will accept from each Payer from among the following options, to the extent supported by the applicable Payer: CPX Direct Service, EFT DD Service, EFT Early Service, Virtual Card Service, or Standard ACH. For the avoidance of doubt, Nexus shall only facilitate Settlement to Payee with respect to the EFT DD Service, the EFT Early Service, and the Standard ACH Service (collectively, the “ACH Services”).
2.4 Virtual Card and CPX Direct Services. Payments utilizing the CPX Direct Service or the Virtual Card Service shall be processed through Payee’s independent relationships with Payee’s credit card processor. None of the terms set forth in this Agreement with respect to the initiation of Settlement shall apply with respect to the CPX Direct Service or the Virtual Card Service.
2.5 Effect on Invoices and Agreements with Payers. Payee acknowledge that Payee’s acceptance of certain payment types in connection with the Nexus Payment Program may have the effect of altering or amending the agreement between you and the applicable Payer, including with respect to the payment terms for the applicable invoice. Payee hereby agree that, notwithstanding the foregoing, Nexus is not a party to any agreement between Payee and any Payer and shall in no way be responsible for, or required to resolve, any dispute between Payee and any Payer. In furtherance of the foregoing, Payee shall indemnify and hold Nexus harmless for any action brought against Nexus regarding the terms of any agreement or understanding or dispute between Payee and any Payer.
4.2 Representations, Warranties and Covenants.
4.2.1 Existence. Payee represents and warrants, at the time of execution of this Agreement, that it is duly organized, validly existing and in good standing in its jurisdiction of formation. Payee agrees to remain in good standing during the term of this Agreement.
4.2.2 Consents. Payee represents and warrants, as of the execution of the Program Documents, that it has obtained all material licenses, consents or permissions needed from any applicable governing authority or other Person to (i) participate as a Payee in the Nexus Payment Program and (ii) perform its duties in connection with this Agreement. Payee agrees to maintain such licenses, consents or permissions for the duration of this Agreement.
4.2.3 Accuracy of Information. Payee represents, warrants and covenants that the information Payee has provided to Nexus in connection with Payee’s participation in the Nexus Payments Program is complete and accurate. Further, Payee agrees that all information Payee will provide to Nexus in connection with Payee’s participation in a the Nexus Payments Program, including in any Enrollment Form, is complete and accurate, and that Nexus may rely on the completeness and accuracy of such information provided by Payee.
4.2.2 List of Participating Affiliates. Payee represents, warrants and covenants that the list of Participating Affiliates set forth in this Agreement is complete and accurate. Payee further represents, warrants and covenants that, upon any change to Payee’s Participating Affiliates, Payee shall promptly provide Nexus with notice of such change. Payee acknowledges and agrees that any change to the list of Participating Affiliates and the participation of such Participating Affiliates in the Nexus Payments Program shall be subject to Nexus’s consent, which consent shall not be unreasonably withheld.
5.1 Execution of Payment Instructions. Nexus will execute Payment Instructions and initiate Settlement subject to and in accordance with the Program Documents.
5.2 No Extension of Credit. Nexus is under no obligation to extend credit or make any credit accommodation for Payee in connection with this Agreement or the Nexus Payments Program.
5.3 Permission to Use Information. Nexus shall have the right to use any information provided by Payee or any of its Agents, Authorized Representatives, officers, employees, directors or service providers in connection with Payee’s participation in the Nexus Payments Program. Nexus shall have the right to share any such information with its own or Payee’s Agents, Authorized Representatives, officers, employees, directors or service providers, as well as with Payees using the Nexus Payments Services, that have a reason to receive or know such information in connection with Nexus’s provision of, or Payee’s participation in, the Nexus Payments Program. Payee shall obtain any necessary or appropriate consents from its Agents, Authorized Representatives, officers, employees, directors or service providers sufficient to ensure that Nexus may exercise its rights under this Section 5.3.
5.4 Representations, Warranties and Covenants.
5.4.1 Existence. Nexus represents and warrants, at the time of execution of this Agreement, that it is duly organized, validly existing and in good standing in its jurisdiction of formation. Nexus agrees to remain in good standing during the term of this Agreement.
5.4.2 Compliance with Requirements of Law. Nexus represents, warrants and covenants that it does and will perform each obligation and exercise each right under or in connection with this Agreement in compliance with all applicable Requirements of Law.
5.4.3 Responsibility for Agents. Nexus will be responsible to Payee for any acts or omissions of authorized Agents used by Nexus to facilitate performance of its obligations in connection with the Nexus Payments Program.
5.4.4 Disclaimer. EXCEPT FOR REPRESENTATIONS, WARRANTIES AND COVENANTS EXPRESSLY MADE IN THIS AGREEMENT, NEXUS MAKES NO REPRESENTATIONS, WARRANTIES OR COVENANTS, EXPRESS OR IMPLIED, TO PAYEE OR TO ANY OTHER PERSON IN THIS AGREEMENT, INCLUDING ANY WARRANTIES REGARDING THE MERCHANTABILITY, SUITABILITY, ORIGINALITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR OTHERWISE (IRRESPECTIVE OF ANY PREVIOUS COURSE OF DEALINGS BETWEEN THE PARTIES OR CUSTOM OR USAGE OF TRADE), OR RESULTS TO BE DERIVED FROM THE USE OF ANY SOFTWARE, SERVICES, HARDWARE OR OTHER MATERIALS PROVIDED UNDER OR IN CONNECTION WITH THIS AGREEMENT.
6.1 Effectiveness of Agreement. Subject to the termination rights of the Parties set forth in the Program Documents, this Agreement will remain in effect for so long as Payee is participating the Nexus Payments Program.
6.2 Term. These Program Terms will commence on the Effective Date and will remain in effect until terminated in accordance with terms of this Agreement.
6.3 Termination. In addition to the termination provisions otherwise set forth in the Program Documents, these Program Terms shall terminate automatically in the event that Payee has not received a payment through participation in the Nexus Payments Program during any 365 day period.
6.3.1 Termination upon Third Party Claim. Either Party may, upon thirty (30) days’ written notice to the other Party, terminate Payee’s participation in the Nexus Payments Program, without penalty, in the event that a third party asserts claims arising out of, or directly related to, the Nexus Payments Program and such claims, in either Party’s reasonable judgment, would present material adverse economic or legal exposure to such Party and would materially impact the economic feasibility of the Nexus Payments Program; provided. Any written notice to terminate a Nexus Payments Program pursuant to this Section 6.3.1 must be accompanied by a detailed written explanation of such claims.
6.3.2 Termination for Cause.
184.108.40.206 Payee may terminate this Agreement or any affected Nexus Payments Services under this Agreement at any time during the Term:
- (i) Immediately upon written notice in the event of a breach, or series of breaches, by Nexus of its obligations under the Program Documents and such breach or breaches are material individually or in the aggregate; provided, however, that such termination shall be automatically rescinded if such breach or breaches are capable of cure and Nexus cures such breach or breaches within thirty (30) days of receiving written notice from Payee of such alleged breach; or
- (ii) Immediately upon written notice in the event that Nexus is the subject of any bankruptcy, conservatorship, receivership, wind down, dissolution, liquidation or reorganization proceedings and such proceedings are not dismissed within thirty (30) days.
220.127.116.11 Change in Law. Either Party may, upon written notice to the other Party, terminate this Agreement or Payee’s participation in the Nexus Payments Program, without penalty, in the event that (i) any material change in any Requirements of Law, any material change in the interpretation of any Requirements of Law, or any regulatory or audit inquiry or decision makes continued performance by either Party under this Agreement or the Nexus Payments Program illegal or otherwise causes a substantial risk of noncompliance with a Party’s obligations hereunder; or (ii) the acts or omissions by one Party causes the other Party to risk noncompliance with any Requirements of Law, and the Parties, using their reasonable best efforts, are unable to agree upon modifications to this Agreement or the affected Program Documents to avoid such illegality or risk of noncompliance. Notice of such termination shall be effective upon the earlier of (x) the ninetieth (90th) day following delivery of the notice to the other Party or (y) the effective date of such change; provided, however, that any written notice to terminate this Agreement or any Program Documents pursuant to this Section 18.104.22.168 must include a detailed explanation and evidence of the illegality or noncompliance created as a result of such change.
6.4 Effect of Termination or Expiration. Each Party will continue to be responsible for any obligations incurred in connection with the Program Documents prior to any expiration or termination of the Nexus Payments Program or this Agreement, including, but not limited to, the obligation to pay any amounts that accrued prior to termination or expiration of the Nexus Payments Program or this Agreement that remain owed to the other Party after such termination or expiration. Nexus shall facilitate the processing of Payment Instructions and facilitate Settlement for any such Payment Instructions accepted by Nexus prior to the effectiveness of any termination of the Nexus Payments Program or this Agreement
7.1 Third Party Beneficiaries. These Program Terms are for the sole and exclusive benefit of the Parties to this Agreement, and nothing in these Program Terms shall be construed to grant to any Person, other than the Parties to this Agreement and their respective successors and permitted assigns, any right, remedy or claim under these Program Terms.
7.2 Representation. Each Party acknowledges that it has been duly represented by counsel of its choice and fully understands these Program Terms.
7.3 Counterparts. These Program Terms may be executed in counterparts, each of which will be deemed an original and both of which together will constitute one instrument.
1.1.1 Authorized Jurisdiction. The Nexus Payments Services may be operated and used only in the Authorized Jurisdiction identified in Section 8 unless otherwise designated in the Program Documents.
1.1.2 Fraud Reporting. You agree to report fraudulent Settlements to us via e-mail [firstname.lastname@example.org] within twenty-four (24) hours of your discovery of such fraud.
1.2 Use of Nexus Payments Services for Payment Obligations. You may only use the Nexus Payments Services to facilitate commercial payments that relate to your own rights or obligations, and you may not receive Settlement for any Payment Instruction for the benefit of any third party, other than your Affiliate(s) designated in the Agreement or your Enrollment Information.
1.3 Systems Development and Maintenance.
1.3.1 Your Systems. You are responsible for installing and maintaining the systems necessary for you to connect to and participate in the Nexus Payments Program.
22.214.171.124 Data Security. You shall implement and maintain data security procedures and processes that comply with industry standards applicable to payments, including data encryption, network firewall protection, intrusion detection systems, up-to-date anti-virus software, and monitoring of remote user access, user authentication, and physical access, in each case, that permit access to the creation of and changes to Enrollment Information. You shall maintain logging and monitoring measures that comply with industry standards applicable to payments and that are designed to detect anomalies that have the ability to impact Payment Instructions and/or access to Enrollment Information.
1.3.2 Our Systems.
126.96.36.199 Nexus Responsibility. We are responsible for developing and maintaining the systems necessary to support our operation of the Nexus Payments Program and our obligations under the Program Documents.
188.8.131.52 Our Service Level Commitment. We will use commercially reasonable efforts to ensure that the Nexus Payments Services remains in operation 24 hours per day, 365 days per year, except for scheduled maintenance or implementation of new hardware or software.
2.1 Communication of Payment Instructions. Payers submit Payment Instructions to initiate Settlement and such Payment Instructions designate a Payee and the amount of Settlement. Subject to limitations in the Program Documents, you are solely responsible for all Settlement initiated on your behalf or for your benefit and for the relationship or transaction with a Payer that gives rise to your payment obligations.
2.2 Processing of Payment Instructions.
2.2.1 Payment Instructions. A Payer or its Agent are required to use electronic means to transmit each Payment Instruction in the format specified in the Program Documents, Reports or invoices provided by us shall indicate the amount of Fees that are payable by you on the date of such invoice or Report.
2.2.2 Notice of Rejected Payment Instructions. We will notify the Payer or its Agent of any rejected Payment Instructions.
2.2.3 Cancellation or Amendment of Payment Instructions. We shall not be obligated to honor any request to cancel or amend a Payment Instruction after we receive the Payment Instruction.
2.3 Our Obligations.
2.3.1 Receipt of Payment Instructions. We will use commercially reasonable efforts to execute Payment Instructions received by us in accordance with the Program Documents and may reject any Payment Instruction that does not comply with the requirements of the Program Documents; provided, that we shall not be obligated to examine any Payment Instruction for errors or for authenticity (except as set forth in the Security Procedure), including for the authority of your Agent to submit such Payment Instruction.
2.3.2 Exceptions to Settlement. We reserve the right to not complete the processing of Settlement with you and to reverse the execution of Payment Instructions in our sole discretion.
2.3.3 Transmission of Reports. We shall provide tools to you that will enable you to generate Reports that identify Payment Instructions executed by us or that indicate no activity, as applicable, by electronic means in accordance with the Program Documents. For the purpose of clarity, Fees as set forth in Appendix A-1 are reported monthly on the Reports made available by Nexus on the fifth day of each calendar month.
2.3.4 Nexus Not Responsible for Payer, Payee or Third Party Actions. We are not responsible or liable for the acts or omissions of any Payer or Payee or its Agent(s) or for any Person, including for any refusal or failure on your part to accept Settlement of a Payment Instruction, or for any costs or damages experienced by you as a result of the acts or omissions of a Payer or a Payer’s Agent. We are not responsible for any delays in the performance of any of our obligations attributable to the acts or omissions of a Payer or a Payer’s Agent. Further, we are not liable for the acts or omissions of any third party, including any Payer or Payee’s Settlement Bank, any automated clearinghouse, or any other electronic payment system related to the execution of a Payment Instruction, the processing or payment of Settlement.
2.4 Your Obligations.
2.5.1 Changes to Authorized Representatives and/or Enrollment Information. You agree to validate the accuracy of Enrollment Information and changes thereto prior to permitting your Authorized Representative or Agent to communicate such information to us. You shall notify us, in writing and at least fifteen (15) Banking Days in advance, of any proposed changes to your Authorized Representatives and/or other Enrollment Information, including Settlement Account information. You acknowledge and agree that such changes will be executed by us on the basis of the information contained in such directions, and that we shall not be liable for any errors in such directions, or for erroneous, unauthorized or fraudulent directions. You further acknowledge that our automated systems will process such directions without any independent verification of the contents thereto and you acknowledge that we may rely upon such directions without verification. We shall not be responsible for our reliance on directions provided by an Agent or Authorized Representative designated as such in our records, including during the transition period or due to your failure to notify us as set forth above.
3.1 Designation of Settlement Accounts. You must designate a commercial deposit account at a financial institution located in the United States to serve as your Settlement Account for use with the ACH Services. You may not designate a consumer account as the Settlement Account.
3.1.1 Permission for Nexus to Access Settlement Account. You authorize us and our Agents to credit and debit the Settlement Account for Payment Instructions we receive and for fees pursuant to the Program Documents, and in accordance with the rules and procedures of the applicable clearinghouse association and/or other payment system and the Settlement institution. This authority will remain in effect until five (5) Banking Days after we receive written notice of your cancellation of such authorization.
3.1.2 Ownership of Settlement Account. You represent, warrant, and covenant (i) that you own the Settlement Account used to fund Settlement; (ii) that you have the right to use the funds in the Settlement Account to receive Settlement; and (iii) that the Settlement Account will not be subject to any lien, security interest, control agreement, or other limitation or restriction that may prevent us from accessing the funds in the Settlement Account.
3.1.3 Changes to Settlement Account Information. To ensure prompt Settlement of funds to your Settlement Account, you shall use the procedures specified to notify us, in writing and at least fifteen (15) Banking Days in advance, of any changes to your Settlement Account information. Such changes must be communicated to us by you, your Agents and/or your Authorized Representatives, and you agree that we may rely on information in our records regarding your designated Authorized Representatives. We will not be responsible for debits or credits to an incorrect bank account due to your failure to notify us or due to any errors in the information provided to us. If you enter into a loan agreement with a third party that seeks to affect or change Settlement directions, you must notify us. If the Settlement Account indicated in our records becomes inactive or Settlement Amounts directed to the Settlement Account are returned to us, we may hold Payment Instructions and/or Settlement Amounts until you contact us to establish a new Settlement Account.
3.2 Credits to Payee’s Settlement Account.
3.2.1 Payment by Payer of Principal Amount of Commercial Payment. We will debit Settlement Amounts from the Payer’s Settlement Account and such Settlement Amounts will be credited in accordance with Section 3.4.
3.2.2 Credits to Payee’s Settlement Account. We will initiate an electronic transfer of funds as a credit for Settlement Amounts to your Settlement Account on Banking Days in accordance with Section 3.4.
3.2.3 Provisional Settlement. We are not obligated to initiate Settlement with you for Payment Instructions unless and until we have received final, good, collected funds from the Payer, and any such Settlement is provisional until we have received final settlement of irrevocable funds from the Payer. If we do not receive related Settlement from the Payer or the Payer reverses its payment of Settlement, then you authorize us to debit your Settlement Account for the amount of Settlement.
3.2.5 Payee’s Failure to Accept Settlement. You will not be entitled to compensation or interest for lost funds availability due to your or your Agent’s inability to accept or receive a Settlement Amount. If you or your Agent, or the financial institution where your Settlement Account is located is unable to accept Settlement Amounts for any reason, we will, in our discretion, pay the amount due to the Payee upon receipt of bank account information or other payment directions from you or your Agent that we deem sufficient or return such Settlement Amounts to Payer less any applicable Fees payable by Payee and Payer.
3.4 Settlement Timing. We will pay Settlement Amounts to you according to the process detailed in this Section 3.4, unless we have notified you, in writing, of different Settlement Timing.
For Payment Instructions successfully received by us in electronic form and in compliance with the Program Documents at or before 9:00 a.m. ET on a Banking Day (“Payment Instruction Cut-Off”), we will use commercially reasonable efforts to initiate an electronic transfer of the Settlement Amount to the Payee’s Settlement Account on the second following Banking Day. Payment Instructions received after the Payment Instruction Cut-Off shall be deemed to be received on the next Banking day. If a Holding Period applies to the Settlement of Payment Instructions, we will notify you and will pay Settlement Amounts as set forth below. For Payment Instructions received on or before the Payment Instruction Cut-Off on the Processing Date before the first day of the Holding Period, we will use commercially reasonable efforts to initiate an electronic transfer of the Settlement Amount to the Payee’s Settlement Account on the first Banking Day after the Holding Period; provided, that if the Processing Date is a Saturday or Sunday, we will use commercially reasonable efforts to initiate an electronic transfer of the Settlement Amount to the Payee’s Settlement Account on the second Banking Day after the Holding Period.
3.4.1 Changes to Settlement Timing. We may change the schedule for Settlement timing upon five (5) Banking Days’ written notice to you. Our initiation of Settlement to you on a certain day does not mean you will receive Settlement Amounts on that day. Actual timing of your receipt of Settlement Amounts depends on a number of factors, and these time frames are subject to maintenance periods indicated in the Program Documents or in notices from us as set forth in Section 6.18. Payment Instructions received during maintenance periods will be processed after the end of the maintenance period. If the Program Documents provide that we will debit or credit Settlement Amounts by means other than those set forth in this Section 3.4.1, we will debit or credit Settlement Amounts in accordance with the Program Documents.
3.5 Settlement Adjustments. We may process Adjustments to you with respect to Payment Instructions and/or Settlement Amounts that have been improperly processed, including due to any error by us, our Agent, a Payer, or you.
3.6 Suspension of Settlement. We may, in our discretion, change the timing of your Settlement, or withhold or suspend processing of Payment Instructions, without prior notice to you, as required by law and/or in order to exercise our rights under the Program Documents.
3.7 No Defenses to Payment. You agree that you shall fully, completely, and timely satisfy your payment obligations in accordance with the Program Documents, without offset or deduction and without asserting any defense to payment (including any defenses you may have at law, in equity, or otherwise against a Payee).
3.8 Disclaimer of Nexus Responsibility for Funding Settlement. We are not liable for any delays in receipt of funds or errors in debit and credit entries caused by third parties. You agree to any the outstanding amounts you owe, including any Fees we may assess, and you agree to immediately transmit such amounts to us upon demand.
3.9 No Settlement for Virtual Card and CPX Direct Services. PAYMENTS UTILIZING THE CPX DIRECT SERVICE OR THE VIRTUAL CARD SERVICE SHALL BE PROCESSED THROUGH YOUR INDEPENDENT RELATIONSHIPS WITH YOUR CREDIT CARD PROCESSOR. NONE OF THE TERMS SET FORTH IN THIS AGREEMENT WITH RESPECT TO THE INITIATION OF SETTLEMENT SHALL APPLY WITH RESPECT TO THE CPX DIRECT SERVICE OR THE VIRTUAL CARD SERVICE.
4.1 Limited Right of Payee to Assert Errors. You may only challenge or dispute a Payment Instruction or Settlement for our failure to execute such Payment Instruction and initiate Settlement in accordance with the Program Documents. You have no other rights to dispute, otherwise challenge, or attempt to reverse any Payment Instruction or Settlement once submitted. The foregoing does not limit your rights at law or in equity to dispute or challenge a payment or an alleged obligation to make a payment to a third party; provided, however, that any such dispute or challenge and its resolution must occur outside of the Nexus Payments Program.
You shall send us written notice promptly upon becoming aware of any error or discrepancy in initiation of Settlement. Such notice must include a description of the affected Payment Instruction or Settlement. If, following receipt of compelling evidence that reflects an error or discrepancy, you fail to provide notice of such error or discrepancy within fourteen (14) days, we will not be liable for any loss or cost relating to such error or discrepancy.
4.2 Payee’s Obligation to Fund Settlement Reversals. Upon our determination that we have committed an error in processing a Payment Instruction or associated Settlement, we will use our commercially reasonable efforts to remedy such error and you agree to cooperate with us in our efforts to resolve any such error.
You agree to use the Nexus Payments Services in accordance with the relevant Security Procedures. You acknowledge that the purpose of the Security Procedures is to verify that a Payment Instruction has been authorized by the Payer, not to detect errors in the transmission or content of Payment Instructions. You represent and warrant that the Security Procedures are a commercially reasonable method of (a) processing Payment Instructions and initiating Settlement, including as set forth in Section 2; (b) limiting Nexus’s access to your Settlement Account, and changes thereto, including as set forth in Section 3.1.3; and (c) confirming the validity of proposed changes to the Enrollment Information, including as set forth in Section 2.5.1.
6.1.1 Updates. In the event of any change to, clarification, or interpretation of the Program Documents, we will provide you with at least thirty (30) calendar days advance notice of such change, as described in Section 6.18; provided, however, that we may implement as soon as reasonably practicable any changes to the Program Documents that we reasonably believe are necessary to address our or your compliance with Requirements of Law or an imminent or ongoing material adverse threat to the Nexus Payments Program or other payers or Payees in the Nexus Payments Program.
6.3 Disclaimer of Warranties. We make no warranty, express or implied, with respect to (i) the availability or timeliness of the Nexus Payments Services; (ii) the availability of the systems, links, lines, and/or services provided by third parties in connection with the Nexus Payments Services; or (iii) the content or accuracy of any Payment Instruction issued by a Payer.
We may be required to obtain information regarding you, your Affiliates, and/or other Persons under your control that are involved in the operation of the Nexus Payments Program. You shall promptly provide all such information that is reasonably requested by us to ensure compliance with Requirements of Law. We reserve the right to refuse to provide the Nexus Payments Services to any you, any Payer or any other payee if such Person is a Sanctioned Person and/or if such action would cause our noncompliance with Requirements of Law.
6.5 No Other Rights or Obligations. Your rights and our obligations in connection with the Nexus Payments Program are solely as set forth in the Program Documents, and we are not bound by, and you may not enforce against us, any rules, regulations, or agreements, except as otherwise explicitly provided in the Program Documents. We shall not perform collection activities or collect any debts owed by any Party or Person, including any Payee, to another Party; provided, however, that the foregoing shall not limit or restrict our ability to pursue collection of amounts owed to us by any Party.
6.6 Waiver of Rights. Any waiver by a Party of a breach of any provision of the Program Documents shall not be construed as a waiver of any other prior, concurrent, or subsequent breach of such provision or of any other provision of the Program Documents. Any waiver must be in writing and signed by the Party to be charged. A Party’s decision to not assert any of its rights under the Program Documents shall not be construed as a waiver of such Party’s rights.
6.7 Suspension of the Nexus Payments Services. Upon prompt notification, we may suspend the Nexus Payments Services if we determine that executing Payment Instructions in connection with the Nexus Payments Services may (a) violate Requirements of Law, (b) violate the Program Documents, or (c) pose a material risk of loss or harm to us, any of our Affiliates or Agents, or any Payee or other Payer. Additionally, we may suspend provision of the Nexus Payment Services during an investigation to determine whether any of the forgoing conditions are present.
6.8 Termination of the Nexus Payments Services. We may, upon notice to you, immediately terminate or suspend our provision of the Nexus Payments Services to you upon the occurrence of any of the following events (each, a “Termination Event”):
• In the event of a breach or series of breaches by Payee of its obligations under the Program Documents that are material, either individually or in the aggregate; provided, however, that such termination shall be automatically rescinded if such breach or breaches are capable of cure, and Payee cures such breach or breaches, within fifteen (15) days after receipt of Nexus’s termination notice;
• If a condition specified in Section 6.7 persists for at least fifteen (15) days after Nexus’s right to suspend provision of the Nexus Payments Services first arose;
• In the event Payee (a) has failed to make funds available in the Settlement Account to satisfy payment of Settlement Amounts when due or (b) disputes or returns, or has returned, any debit or credit entry submitted by Nexus or its Agent to the Settlement Account where made in material conformance with a Payment Instruction received by Nexus or its Agents;
• Upon the occurrence of a Triggering Event; or
• In the event that (a) Nexus ceases to generally provide the Nexus Payments Services; (b) Nexus determines that continuing to offer the Nexus Payments Services to Payee has resulted in, or may reasonably be expected to result in, an imminent and material risk of loss or threat to Nexus, any Payers or any other payees.
6.9 Anti-Bribery Compliance Requirement. You agree that neither you nor your employees, Agents, or Affiliates will cause us or our Affiliates to violate Requirements of Law, including the U.S. Foreign Corrupt Practices Act of 1977 (FCPA), any other applicable anticorruption regulation, or our Anti-Bribery Policy.
6.10 Cooperation on Investigations of Suspected Illegal or Suspicious Activity. You shall cooperate, to the extent permitted by law, with us in the investigation of any suspected money laundering, terrorist financing, fraud, or other suspicious activity related to any product or service offered or provided by or through us. You shall acknowledge our inquiry within five (5) days from the date of our request, and a satisfactory response to the inquiry shall be provided within fifteen (15) days of the date of our request unless an extension is granted by us. We may assess noncompliance Fees and/or exercise our right to terminate the Agreement immediately if you do not respond to our inquiries within the timeframes set forth above.
6.11 Sanctions Compliance. You shall comply with all U.S. economic sanctions laws, regulations, and orders administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) whether or not you are obligated by Requirements of Law to comply with such laws, regulations, and orders. Your compliance process shall be commensurate with the risks for violations of these laws, regulations, and orders posed by your customers, products, services, and geographic locations (“OFAC Risk Profile”). You shall promptly inform us of any enforcement actions or penalties issued by OFAC against you and/or any failure to comply with any OFAC laws, regulations, or orders.
6.12 Consents. As a condition of your receipt of the Nexus Payments Services, you agree to obtain and maintain all necessary rights and consents to share all information, including you or your employees’ personally identifiable information, that is necessary for us (a) to provide the Nexus Payments Services; and (b) to re-disclose such information to third parties (including Nexus’s Agents) that have a need to know such information in connection with the services provided by such third parties to Nexus, you or any Participants.
6.13 Liability and Indemnification.
6.13.1 Limitation of Liability. Our responsibility and liability to you, your officers, directors, employees, and Agents is limited to the actual and documented losses, costs, expenses, or damages experienced by you as a direct result of documented gross negligence or willful misconduct by us, our employees, or Agents in connection with the performance of our obligations under the Program Documents. Neither we, nor any of our employees or Agents, shall be responsible or liable to you or any of your officers, directors, employees, or Agents if you and they have not otherwise complied with your and their respective obligations under the Program Documents or if you or they have contributed to the gross negligence or willful misconduct. In no event shall we be responsible or liable to you or any of your officers, directors, employees, or Agents for any indirect, consequential, or punitive damages or lost profits, or for any similar damages experienced or alleged by you or they, including due to our termination of your Agreement.
6.13.2 Indemnification. You, on behalf of yourself, your officers, directors, employees and each of your Agents (collectively, the “Payee Indemnifying Party”) shall indemnify and hold us, our officers, directors, employees, and Agents (collectively, the “Nexus Indemnified Party”) harmless from and against any and all third-Party claims, actions, demands, losses, costs, expenses, fines, penalties, liabilities and other amounts, including legal fees, costs, and expenses in connection with litigation and appeals, that are imposed upon, incurred by, or asserted against the Nexus Indemnified Party and that arise out of the fault, negligence or breach of representation, warranty, or obligation of the Payee Indemnifying Party in connection with your or its performance or failure to perform your or its obligations under the Program Documents.
We, on behalf of ourselves, our officers, directors, employees and each of our Agents (collectively, the “Nexus Indemnifying Party”) shall indemnify and hold Payee, its officers, directors, employees, and Agents (collectively, the “Payee Indemnified Party”) harmless from and against any and all third-Party claims, actions, demands, losses, costs, expenses, fines, penalties, liabilities, and other amounts, including legal fees, costs, and expenses in connection with litigation and appeals, that are imposed upon, incurred by, or asserted against the Payee Indemnified Party and that arise out of the fault, negligence or breach of representation, warranty, or obligation of the Nexus Indemnifying Party in connection with our or its performance failure to perform our or its obligations under the Program Documents.
6.13.3 Defense of Claims. If we receive any claim or demand or are subject to any suit or proceeding in which we may make a claim against you for indemnification, we shall give prompt written notice to you and you will be entitled to participate in the settlement or defense and, if you so elect, to take over and control the settlement or defense with counsel satisfactory to us. In any case, we and you shall cooperate at no cost to us in the settlement or defense of any such claim, demand, suit, or proceeding.
6.13.4 Payment of Attorney’s Fees. You acknowledge your obligation to pay, including through offsets to amounts otherwise payable by you, attorneys’ fees and expenses incurred by us in connection with the collection of amounts payable by you and attorneys’ fees incurred by us in connection with any judicial or administrative proceeding and any bankruptcy court proceeding filed by or against you.
6.14 Taxes. You are solely responsible for remitting to any federal, state, or local tax authority with jurisdiction over you or your participation in the Nexus Payments Program (in each case, a “Tax Authority”) any applicable taxes and duties payable by you or us based on payments made to or by us pursuant to your Program Documents, excluding taxes based upon net income payable by us. You are solely liable for any fees, charges, fines, or assessments attributable to or levied against us without offset or deduction (including any offset or deduction for taxes). You shall indemnify and hold us harmless from and against any and all tax liabilities paid, payable, or incurred by us, including penalties and interest, costs and expenses, to any Tax Authority relating in any way to the taxes and/or tax treatment of payments made under the Program Documents. You acknowledge and agree that we may withhold taxes from any payments made by us to you if we determine that such tax withholding is required by applicable law. If you are not a United States Person (as determined under applicable United States federal income tax principles), you agree that: (a) you shall complete any applicable tax forms as requested by us; and (b) payments with respect to the products and/or services provided by you to us under the Program Documents or otherwise in connection with any other agreement between us and you will not be treated as being from a United States source, as determined under United States federal income tax principles.
All payments to be made by you to us under the Program Documents shall be made without set-off, compensation, deduction, or counterclaim and without deduction for any taxes, levies, duties, fees, deductions, withholdings, restrictions, or conditions of any nature whatsoever. If any Requirements of Law require you to make any such deduction or withholding from any such payment, the sum due from you with respect to such payment shall be increased to the extent necessary to ensure that, after the making of such deduction or withholding, we receive a net sum equal to the sum which we would have received had no deduction or withholding been required.
6.15 Assignment. You may not assign your obligations under your Agreement without our express written consent. You shall use the procedures specified below to request our written approval, at least thirty (30) days in advance, of any proposed assignment by you, in whole or in part, of your obligations hereunder. You shall remain responsible for any obligations incurred by you until such time as we agree to the assignment of your Agreement. We reserve the right to not approve any entity as a Participant.
6.16 Governing Law. The terms of your Program Documents shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia in the United States, excluding its choice of law principles. Any final judgment against you in any action, suit, or proceeding shall be conclusive and may be enforced in any other jurisdiction by suit on the judgment, a certified copy of which shall be conclusive evidence of the fact and amount of the obligation arising from such judgment; provided, that nothing contained in this Section
6.15 shall be deemed to constitute a waiver by you of any right you may otherwise have to appeal any such judgment.
6.17 Severability. If any provision included in the Program Documents is held to be illegal, unenforceable or invalid under the Requirements of Law, the laws of the Authorized Jurisdiction, and/or the governing law set forth in Section 6.15, the legality, enforceability, and validity of the remaining provisions hereof shall not, in any way, be affected or impaired, and such provision will be deemed to be restated to reflect the original intentions of the parties as nearly as possible in accordance with applicable law.
6.18 Notices. Notices to us required under the Program Documents should be sent to the address indicated below:
6400 Arlington Boulevard, Suite 1000
Falls Church, VA 22042
Attn: Chief Financial Officer
We may send notices to you, including notices of the publication on our website, of updates to the Program Documents as described in Section 6.1, using any method of transmission we deem appropriate, including U.S. mail, courier, overnight service, facsimile and/or electronic mail. Without limiting the foregoing, any notice sent to your last known Agent at the address, including electronic mail address, indicated in our records shall constitute effective notice to you under the Program Documents.
Document, the terms and conditions of such Appendix or Exhibit will prevail.
As used in the Program Documents, the following capitalized terms shall have the following meanings (which in the case of capitalized terms used in such definitions shall incorporate the defined meanings of such capitalized terms). All other terms used herein and not otherwise defined shall have the meanings commonly ascribed thereto in general business practice.
ACH Services: Any of the direct Settlement payment options offered by Nexus that are effectuated via ACH, specifically including Standard ACH, EFT Early, DD EFT, and CPX Direct.
Adjustment: A change to Settlement because the amount originally paid was incorrect.
Affiliate: With respect to a Person, any other Person who, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, that Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
Agent: Any Person, approved by us, including an Affiliate of a Payee, to the extent that such Person performs any or all of our obligations under the Program Documents.
Authorized Jurisdiction: The 50 states of the United States, the District of Columbia, and Puerto Rico, unless otherwise designated in the Agreement or any Program Documents.
Authorized Representative: A Person designated by a Participant as an individual or natural person that is authorized to (i) create, approve and submit Payment Instructions; (ii) request that Nexus initiate Settlement from the Participant’s Settlement Account; and (iii) complete and make changes to the Participant’s Enrollment Information, including the Participant’s corporate information, Settlement Account, and other Participant information, or otherwise interface with Nexus on the Participant’s behalf.
Banking Day: Any day, beginning at 12:00:01 a.m. Eastern Time (ET) and ending at 12:00:00 a.m. ET, other than a Saturday, a Sunday or a Federal banking holiday.
Business Entity: A corporation, partnership, joint venture, association, limited liability company, joint stock company, business trust, unincorporated organization or governmental entity.
Certification: Verification by us in writing of your ability to interface with our systems.
CPX Direct Service: the buyer-initiated business-to-business payments solution offered by Priority Payments LLC.
EFT DD Service: An ACH-based payments service whereby a Payer agree to effect an automatic payment to you in satisfaction of an invoice within a certain number of days as established by you, and you agree to provide a variable discount based on the number of days prior to the date on prior to the date on which the invoice would ordinarily become due.
EFT Early Service: An ACH-based payments service whereby a Payer agrees to effect an automatic payment to you with respect to an invoice on a date specified by you (which date is generally prior to the date that the associated invoice is due), and the you agree to provide a fixed discount in return.
Enrollment Information: Information regarding a Participant and requested by us in an Enrollment Form, including, without limitation, the Participant’s corporate information, company name, address, employer identification number, contact name and phone number, type of business, ownership structure, Authorized Representative(s), and Settlement Account information, that is provided by the Participant to enroll in the Nexus Payments Program and to receive the Nexus Payments Services, as amended or revised from time to time by an Authorized Representative of a Participant during the term of the Agreement, as indicated in the records of Nexus.
Fees: The amounts payable by Payer in connection with participation in the Nexus Payments Program and/or Payer’s receipt of the Nexus Payments Services, including such amounts set forth in Appendix A-1.
Foreign Official: means (i) a director, officer, employee, Agent, or representative of any government, military, or state-owned or affiliated entity or organization; (ii) any department, agency, corporate entity, instrumentality or political subdivision of any government or military; (iii) any Person acting in an official capacity for or on behalf of any government or military; (iv) any candidate for political office, any foreign political Party or any official of a political Party; or (v) any officer, employee, Agent, or representative of any public international organization such as the United Nations.
Fraud: The furnishing of false or fraudulent information for the purpose of obtaining money, goods, or services in connection with a Payment Instruction, including collusion with a thief and/or the use of duplicate Payment Instructions.
Holding Period: Where applicable, the number of days immediately following our receipt of Payment Instructions and prior to our initiation of Settlement.
Nexus (or “we”, “our”, or “us”): means Nexus Systems, LLC, includes our officers, directors, and employees and the network, systems, and processes, including hardware, software, and personnel, maintained by us to support the Nexus Payments Program.
Nexus Payments Program: The program operated by Nexus to facilitate commercial payments between Payers and Payees.
Nexus Payments Services: The services provided by Nexus in connection with the Nexus Payments Program, including, as applicable, the execution of Payment Instructions, the initiation of Settlement, and/or the Virtual Card Service.
Participant: A Person who has entered into an agreement with Nexus for participation in the Nexus Payments Program. .
Party: means Nexus or you and Parties means both Nexus and you, as a Payer.
Payee (or “you” or “your”): The entity designated as “Payee” on the Enrollment Form.
Payer: A Person who participates in the Nexus Payments Program that submits Payment Instructions.
Payment Instruction: A request in the form and format specified in the Program Documents, including in a Payment Instruction File, that is delivered by a Payer or its Agent to Nexus and that authorizes and directs Nexus to debit a Payer’s Settlement Account and to credit a Payee’s Settlement, in accordance with the Program Documents.
Payment Instruction File: A data file consisting of Payment Instructions received from a Payer or its Agents.
Person: Any Business Entity, individual, natural person, or any other entity of every nature, kind, and description whatsoever.
Processing Date: The date upon which we process the Payment Instruction File.
Program Identification Number: A unique number assigned by Nexus to you or a Payee for the purpose of participation in Nexus Payments Program.
Report: The document(s) in electronic form that identify each Payment Instruction executed by us in connection with your participation in the Nexus Payments Program.
Requirements of Law: Any law, ordinance, statute, treaty, rule, judgment, decree, regulation, official directive, consent, approval, authorization, order, or other determination or finding of any governmental authority applicable to or binding upon any Person or to which such Person is subject, whether federal, state, county, local, foreign or otherwise, including the Bank Secrecy Act, as amended by the USA PATRIOT Act, the Trading With the Enemy Act, the International Emergency Economic Powers Act and related Executive Orders, the Foreign Corrupt Practices Act, the Federal Trade Commission Act, the Sarbanes-Oxley Act, the regulations administered by the Office of Foreign Assets Control of the U.S. Department of Treasury and the Program Documents.
Sanctioned Person: Any individual person, group, regime, entity or thing listed or otherwise recognized as a specially designated, prohibited, sanctioned or debarred person, group, regime, entity or thing, or subject to any limitations or prohibitions (including but not limited to the blocking of property or rejection of transactions), under any program administered by OFAC or other regulatory requirements.
Settlement: The transfer, using a Settlement Account or as otherwise agreed by Nexus and you in writing, of Settlement Amounts due to or from Payer in connection with Payment Instructions.
Settlement Account: The commercial bank account(s) designated by Payer for use by Nexus as contemplated in the Program Documents.
Settlement Amount: The amount of Settlement set forth in a Payment Instruction, including, as applicable, all Fees and other amounts due to or from Payer in connection with such Payment Instruction.
Settlement Bank: The commercial bank at which the Settlement Account is located.
Settlement Date: The Banking Day on which Nexus initiates Settlement.
Standard ACH: An ACH-based payments service whereby a Payer agrees to effect an automatic payment to you with respect to an invoice on a date specified by you upon standard payment terms.
U.S. or United States: The United States of America, including the 50 states, the District of Columbia, and Puerto Rico.
The information contained herein is proprietary and confidential to Nexus Systems.