Balance Marketplace Agreement
This Marketplace Agreement (“Agreement”) is a binding legal agreement between Balance Payments, Inc, a company incorporated under the laws of Delaware (“Balance”, “us”, or “we”) and the entity or person (“Marketplace”, “you” or “your”) who commenced the registration as a Marketplace for use of Balance services as part of its marketplace in order to use the various Balance Services to provide payment processing to its Marketplace Vendors (each, a “Service”).
This Agreement describes the terms and conditions that apply to your use of the Services.
If you do not understand any of the terms of this Agreement, please contact us through the following address: email@example.com before using the Services.
You may not access or use any Services unless you expressly agree to be bound by and abide by all of the terms and conditions in this Agreement.
By Clicking “I Agree”, affixing your digital signature or otherwise affirmatively expressing your consent in the manners which are made available as part of our services, or by using the services, you hereby consent to all of the terms of this Agreement.
You hereby undertake that the Agreement is a binding legal contract between you, the Marketplace, and us, Balance.
Please be aware that for the abundance of caution we may require you to affect and sign certain documents in electronic form.
In this Agreement the following definitions shall apply:
1.1. “Marketplace Vendors’ Information” means all data and information about the Marketplace Vendors.
1.2. “Marketplace” means the website or online marketplace which offers Marketplace Services to its Marketplace Vendors.
1.3. “Marketplace EULA” means the end user license agreement, terms and conditions, terms of services or any similar document or agreement which the Marketplace has in place with its Marketplace Vendors.
1.4. “Marketplace Services” means any and all of the services the Marketplace provides to its Marketplace Vendors.
1.5. “Marketplace Vendors” means a merchant who offers goods or services on the Marketplace and who has either previously signed the Balance Merchant Agreement or who has been onboarded to the Marketplace under the terms of this Agreement.
1.6. “Balance Actions” means any actions, orders or request which are submitted or initiated through the Balance Services, including but not limited to, Transactions, Refunds, Chargebacks and Cancellations (as such terms are defined in section 1.1 to the Balance Merchant Agreement signed by and between the Marketplace and Balance).
1.7. “Balance Services” means any payment processing services, on boarding services, compliance services and payment terms services offered by Balance.
1.8. “Balance MA” means the Balance Merchant Agreement.
1.9. “Payout” means any transfer of funds from the relevant Balance account to Marketplace Vendor bank account or to Marketplace Provider bank account, or such other Payout facility as prescribed in the Balance Services as Balance Actions.
1.10. Unless stated otherwise, the word “including” means “including, without limitation”.
- Balance Services
The Balance Services allow the Marketplace Provider to use the Balance Services and software to provide payment processing, certain regulatory onboarding requirements and payment adjustments to its Marketplace Vendors as a whistle label offering. The Services include:
2.1. Accepting payments: Balance Services allow the Marketplace Provider to provide its Marketplace Vendors with supporting various payment options, including credit cards, wire transfers, ACH debit and credit and paper checks processing as well as APM;
2.2. Flexible Payment Terms: allows the Marketplace Vendors to extend flexible payment terms while making funds available for Payout within 2 business days.
2.3. Reconciliation and Settlement Services: automatic reconciliation of all payment methods, automatic invoice matching to payment
2.4. Vendor Management: Streamlined onboarding services for Marketplace Vendors, automatic vendors payout with adjustable Marketplace take-rates.
2.5. Regulatory Compliance for Onboarding: Balance provides anti-money laundering, KYC, KYB and risk assessment analysis based on the information provided by Marketplace Vendors to the Marketplace Provider.
- Integration of Marketplace
3.1. This Marketplace Agreement and the services which are enabled by it will allow the Marketplace Provider to integrate Balance Services into the Marketplace. The Marketplace Vendors shall be onboarded to the Marketplace and following completion of the onboarding process accept payments through the Marketplace, in consideration for goods and/or services they offer on the Marketplace.
3.2. Marketplace undertakes that it shall include in the Marketplace EULA information to the Marketplace Vendors detailing the Marketplace Services and the Balance Actions that Marketplace Provider shall conduct on their behalf in order to allow the use of the Balance Services through the Marketplace.
3.3. Balance does not have a direct contractual relationship with Marketplace Vendors and the Marketplace Vendors do not sign the Balance MA. Accordingly Marketplace Provider is responsible for relationship with the Marketplace Vendors including but not limited to receipt of all required consents in order to allow the use of the Balance Services, and the performance of all Balance Actions, in connection with the Marketplace.
3.4. In addition, Marketplace undertakes that the Marketplace EULA shall include all required undertakings, obligations, representations and covenants which are included in the Balance MA so as to allow Balance and the Marketplace to provide the Balance Services to the Marketplace Vendors. Marketplace shall remain solely and exclusively liable at all times for any deficiencies or omissions in the Marketplace EULA which result in the inability to provide the Balance Services or which result in any claim by and third party, including but not limited to the Marketplace Vendors, that the Balance Services or any Balance Actions violate any right or legal or regulatory requirement which, but for such failure of the Marketplace to properly address in the Marketplace EULA, would not have been brought.
3.5. Marketplace acknowledges and agrees that:
3.5.1. Balance is a payment intermediary and is neither a bank nor a seller, agent or merchant in relation to the Marketplace Provider’s services and/or products of any kind; and
3.5.2. any dispute with Marketplace Vendor or other third party regarding any Marketplace Vendor products and/or service is between the Marketplace Provider, the Marketplace Vendor and such customer or third party, and the Marketplace shall indemnify Balance in respect of any loss, liability, claim, expenses of any kind (including legal and professional costs) suffered or incurred by Balance in relation to such dispute of the Marketplace Vendor’s products or services.
- Marketplace Undertakings
4.1. Marketplace shall provide Balance with all of the information reasonably required by Balance in order to provide the Balance Services. Failure to provide all information required and requested through the Balance Services will result in the inability to use all or part of the Balance Services.
4.2. Marketplace Provider hereby approves and consents to Balance sharing of all required information received from Marketplace about Marketplace, Marketplace Vendors and Transactions, with any:
4.2.1. Card or Transaction Scheme (as such term is defined in Section 1.5 to the Balance MA), including any alternative payment method (other than Cards) (“APM”) used by Balance from time to time and disclosed in writing to Marketplace, APM providers, and
4.2.2. any other financial institution (i.e. any third party credit or financial institution, risk assessment, credit information or service provider, which may be involved, or which Balance in its sole and absolute discretion involve, in the course of provision of any of the Balance Services), and
4.2.3. any other service provider of Balance which is required in order to allow the provision of the Balance Services to the Marketplace and to the Marketplace Vendors.
4.3. Marketplace Provider hereby undertakes to obtain and hereby represents that it has obtained all necessary rights and consents under any applicable law to disclose to Balance and allow Balance to collect, use, retain, and disclose, any and all information that Marketplace Provider provides Balance, including information that Balance may collect directly by various means.
4.4. Marketplace EULA shall include, at a minimum, the following: (1) detail all of the Marketplace Services; (2) detail how the Marketplace Provider accesses and uses the Marketplace Vendors information, and the Balance Actions which the Marketplace Provider performs; (3) clear and affirmative approval and right to perform the Marketplace Services, and to transfer the Marketplace Vendors Information to Balance as third party services provider; (4) any and all other requirements detailed in Section 2.4 above.
4.5. Marketplace Provider undertakes that Balance is not responsible to any third party, including but not limited to the Marketplace Vendors, to any of the Marketplace Services or their performance and Marketplace Provider is
solely responsible for providing the Marketplace Services to all Marketplace users as described in the Marketplace EULA.
4.6. Marketplace Provider shall only engage in Balance Actions for a Marketplace Vendors to the extent that Marketplace Provider is doing so on behalf of the Marketplace Vendors, in accordance with the authority granted to Marketplace Provider under Marketplace EULA.
4.7. Marketplace Provider is solely responsible for any Balance Actions initiated by it or on its behalf, on any Marketplace Vendors through the Balance dashboard available through the Balance Service. Should Balance or a Marketplace Vendor incur any losses based on unauthorized Balance Actions initiated by Marketplace Provider or on its behalf, Marketplace Provider will be fully liable for all losses and damages incurred to it, Balance and any third party. Balance may deduct such losses and damages from Marketplace Provider’s Balance Account, or require immediate payment in accordance with a duly issued written notice and invoice.
4.8. Marketplace Provider shall require its Marketplace Vendors to provide their customers with a clear and fair return and refund policy as customary and as required under applicable laws.
4.9. Marketplace Provider shall immediately and fully cooperate with Balance to investigate any suspected illegal, fraudulent, or improper activity on the part of the Marketplace Provider, any Marketplace Vendor or any other third party.
4.10. Marketplace Provider shall comply with reasonable instructions of Balance from time to time, including (but not limited to) as set out in any technical or operational documentation which may be provided and/or updated.
- Limitations and Restrictions
5.1. Marketplace Provider shall not use the Balance Services:
5.1.1. to access any Marketplace Vendors’ information or conduct any Balance Actions, or attempt to do either, for which a Marketplace Vendor has not given express authorization or for which such authorization has been withdrawn;
5.1.2. for any fraudulent, unlawful, deceptive, or abusive purposes, or in any manner harmful to, or intended to harm, a Marketplace Vendor, Balance, or any third party; or
5.1.3. to circumvent Balance’ intended limitations for any feature of its Services or in a manner inconsistent with the Balance’ published documentation.
5.3. Without derogating from the generality of the foregoing, Marketplace Vendor shall ensure that no Marketplace Vendor or any of their customers offer or receive payments on the Marketplace as consideration for any of the following:
5.3.1. prescription or non-prescription drugs;
5.3.2. pornographic content or services;
5.3.3. illegal downloads;
5.3.4. illegal gambling;
5.3.5. goods or services infringing intellectual property rights of a third parties;
5.3.6. tobacco products, alcohol or firearms;
5.3.7. purchase of digital currencies, loading of other e-money accounts;
5.3.8. Ponzi schemes or similar fraudulent investment operations; or
5.3.9. any goods or services prohibited by applicable law.
- Marketplace Provider’s Representations and Warranties
6.1. In addition to the representations and warranties set out in the Balance MA signed by Marketplace Provider and Balance, Marketplace Provider represents and warrants that:
6.1.1. Marketplace Provider shall obtain authorization from the Marketplace Vendors for all Balance Actions initiated on its behalf, and for the use of any Marketplace Vendors Information obtained through or used with Balance Services by Marketplace;
6.1.2. Comply with the obligations set out in Sections 3 above and 6 below; and
6.1.3. not use Balance Services or knowingly permit the use of Balance Services by Marketplace Vendors in a manner that is fraudulent, unlawful, deceptive or abusive.
6.2. To the maximum extent permitted by law, except as expressly provided in this Marketplace Agreement, Balance provides its services hereunder to the Marketplace Provider on an “as is” and “as available” basis, without any additional warranties, whether express, implied or statutory.
- Connecting Marketplace Vendors
7.1. Balance Discretion
7.1.1. Balance requires the Marketplace Provider to establish certain criteria for accepting Marketplace Vendors consistent with Balance’s screening under the Balance MA. Balance has ultimate discretion regarding its underwriting, risk and compliance decisions, including but not limited any decision of whether to provide Balance Services to any Marketplace Vendors and in each Transaction whether to approve it in whole or in part based on the required and requested terms.
7.1.2. Balance reserves the right to suspend or terminate provision of Balance Services to any Marketplace Vendors at any time if Balance determines that a Marketplace Vendor’s activities either: (a) violate Balance’ policies or the Balance MA; or (b) otherwise reflects negatively on the brand or reputation of Balance, any Card or Transaction Scheme, APM or other service provider of Balance.
7.1.3. To the extent that Marketplace Provider is aware or later becomes aware of a Marketplace Vendor being engaged in any fraudulent, unlawful, deceptive or abusive activity, Marketplace Provider must notify Balance as soon as practically possible. Following notification Balance will use commercially reasonable efforts to determine whether to terminate or suspend any such account’s access to the Balance Services.
7.2. Process and Requirements
7.2.1. When the Marketplace Provider wishes to onboard a new Marketplace Vendor to allow it to use the Balance Services the following steps shall be followed:
184.108.40.206. Marketplace Provider can use the Balance Services to create Balance accounts for the Marketplace Vendors. Marketplace Provider is responsible for ensuring Marketplace Vendor’s information regarding the Marketplace Vendor account is passed to Balance.
220.127.116.11. Marketplace Provider will have access to Marketplace Vendors Information and may initiate Balance Actions in accordance with the Marketplace EULA. Marketplace is responsible for ensuring the accuracy of any Marketplace Vendor Information at all times which it provides as part of this process.
18.104.22.168. Balance may decline to create a Balance account for a Marketplace Vendor or limit the functionality available to it until Balance is satisfied that it has received sufficient information about the Marketplace Vendor. Marketplace Provider is responsible for the accuracy and completeness of any information about the Marketplace Vendor provided to Balance as part of the onboarding process.
22.214.171.124. Once a Marketplace Vendor goes through the standard onboarding process, Marketplace Provider undertakes that it is solely responsible for use of any Marketplace Vendor Information accessed and any Balance Actions performed, and for any inaccurate or incomplete information provided to Balance by Marketplace Provider.
126.96.36.199. Marketplace Provider is responsible and liable to Balance for all Transactions, Remittances, Disputes, Refunds, fines, or use of the Balance Services in a manner prohibited under the Balance MA.
7.2.2. The process detailed in 7.2.1 above shall be affected either using the API which is made available to the Marketplace Provider or using a standalone whitelabeled UI link.
7.2.3. Marketplace Provider is responsible at all times for ensuring that its Marketplace Vendors do not use Balance Services in violation of the Balance MA or for any activity that is expressly prohibited.
- Payments, Pricing and Fees
8.1. Once Transactions (as defined in the Balance MA) are settled the funds shall be made available to the Marketplace Vendor within 2 business days, and with regard to Factored Transactions (as such is defined in the Balance MA), within 2 business days of the approval of the transaction by Balance, by Payout to the Marketplace Vendors less any Adjustments or Assessments (as such terms are defined in the Balance MA) (together the “Transaction Deductions”).
8.2. Unless otherwise agreed in writing by the Parties, Transaction value, after deduction of the Transaction Deductions (the "Settlement Amount"), will be settled and transferred to the Marketplace Vendor Bank Account in US$ (“Redemption Currency”). If the Redemption Currency differs from the currency in which the Transaction was executed, the funds due to the Marketplace Vendor hereunder shall be transferred to the Marketplace Vendor after being converted into the Redemption Currency at the then current exchange rate of Balance’s bank service provider.
8.3. Balance shall have the right, and Marketplace Provider shall ensure in the Marketplace EULA that Balance has the right, to exercise a lien over any Settlement Amount in the event of any dispute relating to an Adjustment. Once such dispute is resolved Balance shall discharge the lien and transfer the Settlement Amount (or part of the Settlement Amount, as appropriate) to the Marketplace Vendor Bank Account.
8.4. Balance shall be responsible for the collection of all applicable fees from the Marketplace Vendors. The Fees to be collected shall be those set out in Schedule 1 “Pricing and Fees”. The “Pricing and Fees” shall also be included in the Marketplace EULA. Balance shall transfer to the Marketplace Provider its share of the amounts actually received and collected from the Marketplace Vendor and shall retain the amounts due to Balance. All Balance fees charged and payable are detailed in the “Pricing Schedule” attached as Schedule 1.
8.5. Balance may deduct fees from the Marketplace’s Balance Account balance and from the Balance Account balances of the Marketplace Vendors. Fees may be applied on a per transaction basis, or aggregated over a period of time.
8.6. Marketplace Provider is solely responsible for communicating any fees charged to Marketplace Vendors for their use of Marketplace Services and Marketplace must clearly communicate any such Marketplace fees to Marketplace Vendors prior to imposing such fees.
8.7. All fees are exclusive of any applicable sales or value-added tax, except as expressly stated to the contrary. Marketplace Provider is solely responsible for determining what, if any, taxes or fees apply in connection with Marketplace Provider’s, and Marketplace Vendors’, use of Balance Services (“Taxes”). Marketplace Provider is responsible for assessing, collecting, reporting, and remitting Taxes to the appropriate tax and revenue authorities. If Balance is required to withhold any Taxes, it may deduct such Taxes from amounts otherwise owed and pay them to the appropriate taxing authority. If Marketplace Provider is exempt from payment of such Taxes, Marketplace Provider must provide Balance with a certificate to its satisfaction to that effect.
9.1. In addition to indemnification obligations under the Balance MA, Marketplace Provider agrees to defend, indemnify, and hold harmless Balance, any Card or Transaction Scheme, APM and other service providers, and their respective employees and agents (each a “Indemnified Entity”) from and against any claim, suit, demand, loss, liability, damage, action, or proceeding arising out of or relating to (a) Marketplace Provider’s breach of any provision of this Marketplace Agreement; (b) any disputes between Marketplace Provider and Marketplace Vendors, including those arising from use of Marketplace Vendors Information or Balance Actions by Marketplace or on its behalf; (c) Marketplace Provider’s use of Balance Services in a manner that is illegal or inconsistent with the Balance documentation or instructions; (d) and claim by any third party or service provider which is based on or arising from Balance being regarded to, considered or construed as “Merchant of Record” and which is not based on any action, omission or negligence of Balance, including but not limited to any Balance Actions which are initiated by Platform Provider or the failure of Platform provider to initiate any Balance Action; or (e) any claim arising form or which is based on failure of Platform Provider to adhere to and meet all requirements under section 2.4 above.
9.2. Balance agrees to defend, indemnify, and hold Marketplace Provider harmless from and against any claim, suit, demand, action, or proceeding instituted by a non-affiliated third party to this Marketplace Agreement to the extent that such arises out of Balance Services infringing the third party’s intellectual property rights.
- Limitation of Liability
10.1. Balance is not responsible for and disclaims all liability for Balance’ officer, its employees’ and agents’ (“Disclaiming Entity”) (a) acts or omissions in providing Marketplace Services to Marketplace Vendors, which includes delivery of goods or services to Marketplace Vendors’ customers or any other third parties, or properly describing Marketplace Services; (b) compliance with applicable laws and obligations related to Marketplace Services; and (c) any other actions or omission related to the Marketplace Services.
10.2. In no event will a Disclaiming Entity be liable for any lost profits, or any indirect, punitive, incidental, special, consequential, or exemplary damages arising out of, in connection with, or relating to this Marketplace Agreement or Balance Services, including the use of, inability to use, or unavailability of Balance Services.
10.3. The Disclaiming Entities have no liability or responsibility for any (a) personal injury or property damage, of any nature whatsoever, resulting from use of Balance Services; (b) damage, loss, or injury resulting from hacking, tampering, or other unauthorized access to, or use of, Balance Services, including any unauthorized access to or use of third-party servers used in connection with Balance Services and/or any personal information stored therein; (c) interruption or cessation of Balance Services; (d) software bugs, viruses, trojan horses, or other harmful code that may be transmitted to or through Balance Services; (e) errors, inaccuracies, or omissions of information, or any damages or losses incurred as a result of such errors inaccuracies or omissions, resulting from the use of Balance Services; and/or (f) conduct of any third party.
10.4. Without limiting the foregoing provisions of this Section 9, to the maximum extent permitted by law, and regardless of the legal theory on which the claim is based (including contract, tort (including negligence, product liability, or otherwise), strict liability, or any other basis), the Disclaiming Entities’ cumulative and aggregate liability in connection with Balance Services under this Marketplace Agreement will be limited to direct damages and in all events will not exceed in the aggregate the amount of fees paid by Marketplace Provider to Balance during the three (3) month period immediately preceding the event giving rise to the claim for liability. The limitations apply even if the Disclaiming Entities have been advised of the possibility of such damage.
- Term and Termination
11.1. This Marketplace Agreement shall commence on the Effective Date and will continue for a period of one (1) year thereafter (the "Initial Term"); thereafter, the Agreement shall renew for additional successive twelve (12) periods (each a "Renewal Term", and together with the Initial Term, the "Term"), unless either party provides notice of termination in writing at least 30 days prior to the end of the then current Term.
11.2. Either party may terminate this Agreement immediately by giving written notice to the other party if: (i) the other party breaches a material provision of this Agreement and fails to cure the breach within thirty (30) days after being given written notice thereof; (ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party; or any petition by or on behalf of such party is filed under any bankruptcy or similar laws.
11.3. Without derogating from the above, Balance may withhold or setoff Settlement Amounts due to the Marketplace in connection with or against amounts which are due or may be due to Balance in connection with the Marketplace’s:
11.3.1. material breach of this Agreement; or
11.3.2. illegal or fraudulent conduct.
11.4. Upon termination of this Agreement, Marketplace will immediately cease use of the Balance Services, each party shall at the disclosing party’s written request return to the other party or destroy (at disclosing party’s option) all of the other party's Confidential Information in its possession and any outstanding undisputed Fees shall become due and payable. Balance shall have the right upon termination for any reason to disconnect the Marketplace from the Balance Services and discontinue providing any services to Marketplace.
- Relationship of Documents
12.1. This Marketplace Agreement supplements the Balance MA, which generally governs the use of the Balance Services, and which is incorporated into this Marketplace Agreement by reference.
12.2. To the extent that there is a conflict between the Balance MA and this Marketplace Agreement, this Marketplace Agreement will prevail. Nothing in this Marketplace Agreement alters the terms and conditions of the Balance MA as they apply to use of the Balance Services for Marketplace’s own purposes (such as to receive payment for goods or services).
- General Terms
13.1. Marketplace Provider and Balance are independent contractor and entities, and this Marketplace Agreement does not create any partnership, agency, or employment relationship between Marketplace Provider and Balance, or the employees or agents of either party. Marketplace may not, and may not attempt to, make any representation, warranty or commitment on behalf of Balance.
13.2. The provisions of the Balance MA governing applicable law, jurisdiction and venue, and any method for dispute resolution are incorporated into this Marketplace Agreement by reference.
13.3. Headings are included for convenience only, and should not be considered in interpreting this Connect Marketplace Agreement. No provision of this Marketplace Agreement will be construed against any party on the basis of that party being the drafter. This Marketplace Agreement does not limit any rights of enforcement that Balance may have under trade secret, copyright, patent, or other laws.
13.4. Balance’ delay or failure to assert any right or provision under this Marketplace Agreement does not constitute a waiver of such right or provision. No waiver of any term of this Marketplace Agreement will be deemed a further or continuing waiver of such term or any other term.
13.5. Balance may amend this Marketplace Agreement upon notice to Marketplace, which may be provided through email or Balance dashboard. Marketplace agrees that any changes to this Marketplace Agreement will be binding 7 days after the amendment is made by Balance (or, if a longer period is required by applicable law, such longer period). If Marketplace elects not to accept the changes to this Marketplace Agreement, it must (a) provide notice to Balance and (b) immediately cease using Balance Services.
13.6. Marketplace Provider may not assign or attempt to assign this Marketplace Agreement without the express consent of Balance in advance. Balance may assign this Marketplace Agreement at its discretion so long as the assignee undertakes to uphold all rights of the Marketplace Provider as prescribed in this Marketplace Agreement.
13.7. This Marketplace Agreement constitutes the entire agreement between the parties with respect to use of the Balance Services on and as part of the Marketplace. This Marketplace Agreement describes the entire liability as between the parties, and sets forth the exclusive remedies, with respect to use of the Balance Services on and as part of the Marketplace. If any provision of this Marketplace Agreement (or portion thereof) is held to be invalid or unenforceable under applicable law, then it should be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect.