Balance Marketplace Provider Services Agreement
BALANCE MARKETPLACE PROVIDER SERVICES AGREEMENT
Last updated: April 17, 2023
Thank you for choosing Balance.
This Balance Marketplace Provider Services Agreement (“Agreement”) is a contract between Balance Payments, Inc., a Delaware corporation with its principal office at 2261 Market Street #4149 San Francisco, CA 94114 (“Balance”) and the entity described in the signed document (“Proposal Letter”) that links to and incorporates this Agreement (“Marketplace Provider”).
Marketplace Provider wishes to access and use Balance’s software solution and services (as detailed below), for its own purposes and in order to provide an improved experience on its online platform or marketplace (“Marketplace”) to its users selling goods or services on or through the Marketplace (“Vendors” and “Vendor Products”, respectively) and Vendors’ customers buying goods or services from Vendors via the Marketplace (“Buyers”).
By accessing or using the Services (as defined below) Marketplace Provider agrees to be bound by this Agreement. Marketplace Provider’s access to and use of the Balance Platform and Services must at all times be in compliance with this Agreement. THIS AGREEMENT HAS AN ARBITRATION PROVISION IN SECTION 18.10; PLEASE REVIEW IT CAREFULLY AS IT AFFECTS YOUR RIGHTS.
- SERVICES AND BALANCE PLATFORM.
1.1 Balance Platform. Balance has developed an online platform (the “Balance Platform”) which provides access to (a) the Balance Marketplace Services (defined in Section 2.1); (b) the Balance Merchant Services (defined in Section 2.2); and (c) such other services as Balance may offer from time to time, (collectively, the “Services”).
1.3 Balance Dashboard and Balance API. Balance will provide Marketplace Provider with access to a dashboard (the “Balance Dashboard”) and application programming interfaces (the “Balance API”) from which Marketplace Provider may access and provide information related to the Services.
1.4 Modifications. Balance may modify the Services and Balance Platform from time to time at Balance’s sole discretion for any purpose deemed appropriate by Balance. Balance will notify Marketplace Provider of any change that Balance deems material.
- BALANCE MARKETPLACE SERVICES.
2.1 Balance Marketplace Services. Balance makes available technology and related services that enable marketplace providers to integrate the Balance Merchant Services, and other services offered by Balance, into marketplace providers’ marketplaces (“Balance Marketplace Services”).
2.2 Balance Merchant Services. Balance also (a) facilitates Payment Processing Services, enabling merchants to accept payments from Buyers, as further described in the Balance Payment Services Terms; and (b) enables merchants to offer extended payment terms to its Buyers via Balance’s purchase of receivables, as further described in the Balance Receivables Purchase Terms (collectively, the “Balance Merchant Services”).
*Please note, that in both the Balance Payment Services Terms and the Balance Receivables Purchase Terms, the entity wishing to access payment processing services or offer extended payment terms for its customers by selling receivables is referred to as “Merchant”
2.3 Marketplace Provider Onboarding. Marketplace Provider’s access to the Balance Marketplace Services is conditional on Marketplace Provider successfully completing Balance’s onboarding process. Marketplace Provider may, once successfully onboarded, integrate Balance’s services into its Marketplace, in order to facilitate the provision of the Balance Merchant Services to its Vendors. The Balance Marketplace Services also permit Marketplace Provider to take certain actions and provide certain instructions through the Balance Platform in connection with, or for the purpose of facilitating, the Balance Merchant Services, both on its own behalf and on behalf of Vendors.
2.4 Marketplace Provider as Agent of Vendor. The Balance Vendor Services Agreement states that Vendor appoints Marketplace Provider as Vendor’s agent, and authorizes Marketplace Provider to perform actions on Vendor’s behalf, as may be required for the purpose of enabling Vendor to use and comply with its obligations with respect to the Services and the Balance Platform, including to initiate and manage payments and pay-outs, and to provide all information requested by Balance. Marketplace Provider acknowledges and accepts this appointment, which will continue for the term of the Balance Vendor Services Agreement.
2.5 Reliance and Disclaimer. Balance may rely upon the accuracy, timeliness and completeness of information and instructions that Marketplace Provider provides to Balance on Vendor’s behalf, and on Marketplace Provider’s accurate and timely delivery of information that Balance requests Marketplace Provider to provide to Vendor. Balance may also assume that Vendor has authorized all actions that Marketplace Provider makes, and instructions that Marketplace Provider gives, on Vendor’s behalf, which includes any actions that Marketplace Provider initiates on Vendor’s behalf via the Balance Platform. Marketplace Provider will defend, indemnify and hold harmless Balance, its Affiliates, and their respective Representatives from and against damages and losses of any kind connected to, resulting or arising from errors, omissions, negligence, Actions, failure to take action or delays by Marketplace Provider, including untimely, inaccurate or incomplete information provided by Marketplace Provider to Balance or by Marketplace Provider to Vendor, and unauthorized instructions given by Marketplace Provider to Balance (collectively, “Marketplace Activity”). Marketplace Provider will have no claim, demand or action against Balance arising from the Marketplace Activity, or from any related action or failure to act by Balance.
2.6 Responsibility for Marketplace Services. Balance is not responsible to Vendors for any products or services that Marketplace Provider provides through its Marketplace (“Marketplace Services”), and Marketplace Provider is solely responsible for providing the Marketplace Services to Vendors as set forth in an agreement between Marketplace Provider and Vendor (the “Marketplace Vendor Agreement”). This Section 2.6 applies despite any inconsistent terms (if any) that are present in the Marketplace Vendor Agreement.
2.7 Third Party Providers. Balance may use third party products and services (collectively, “Third Party Products”) as part of its delivery of the Services. We have no control over Third Party Products. Third Party Products may be subject to additional terms between you and the provider of the Third Party Product, as disclosed to you by Balance or the provider. Your continued use of the Services after any such terms have been disclosed to you constitutes your acceptance of the terms. Balance may terminate this Agreement immediately if you breach any Third Party Product terms. Balance provides no warranty or other guarantee related to any Third Party Products.
- VENDOR ONBOARDING AND MANAGEMENT.
3.1 Acceptance Criteria. Balance may require Marketplace Provider to establish certain processes for onboarding Vendors and Buyers to the Balance Merchant Services, consistent with Balance’s screening processes in force from time to time. Despite anything to the contrary, Balance has ultimate discretion regarding its underwriting, risk and compliance decisions, including the decision of whether to provide Balance Merchant Services to any Vendor. Balance may in its sole discretion decline to create a Balance Account for a Vendor, decline to provide the Balance Merchant Services to a Vendor, or limit the functionality available to a Vendor, at any time, until Balance is satisfied that it has received sufficient information about Vendor.
3.2 Vendor Onboarding Process. Marketplace Provider must follow this process when onboarding a new Vendor to the Balance Merchant Services:
(a) Marketplace Provider must ensure that each Vendor is made aware that the Services are provided by Balance and enters into, and is legally bound by, the Balance Vendor Services Agreement;
(b) Marketplace Provider must ensure that any information pertaining to Vendor requested by Balance as part of the on-boarding process is obtained from Vendor and delivered to Balance (“Vendor Onboarding Data”); and
(c) following a Vendor’s entrance into the Balance Vendor Services Agreement and the completion of the onboarding process, Marketplace Provider may, through the Balance Marketplace Services, submit and initiate Actions on behalf of the Vendor.
3.3 Vendor Bank Account. As part of the onboarding process, Vendor must provide the details of an account with a U.S. depository institution (or a different bank account approved by Balance) held in the name of Vendor or a third party nominated by Vendor (and in each case as acceptable by Balance) linked to Vendor’s use of the Balance Merchant Services (“Vendor Bank Account”). In the event of any change to the Vendor Bank Account, Marketplace Provider will notify Balance in writing, immediately upon notice from Vendor and no later than 14 days in advance of any change to the Vendor Bank Account (other than general administrative changes) which it or a third party (including the relevant bank) wishes to make.
3.4 Vendor Suspension and Termination. Balance may suspend or terminate provision of Balance Merchant Services to any Vendor at any time if Balance becomes aware of or suspects, in its sole discretion, that: (a) Vendor has breached the Balance Vendor Services Agreement or any Balance policy; (b) Vendor is engaged in acts or practices that are unfair, deceptive, abusive or unlawful; (c) Vendor is, or is likely to become, bankrupt or insolvent; (d) Vendor’s use of the Balance Merchant Services places an unreasonable burden on the Balance Platform or Services or reflects negatively on the brand or reputation of Balance or any partner of Balance (including card schemes and financial services providers); or (e) any credentials associated with the Balance Merchant Services have or may have been compromised. In such an event Balance will provide either Marketplace Provider or Vendor, in its sole discretion, with a written notice upon suspension or as soon as reasonably practicable thereafter, and such suspension will remain in place until the cause of the suspension is remedied to Balance’s satisfaction. If the cause is not remedied within the time period determined by Balance, Balance may terminate Vendor’s Balance Account.
3.5 Vendor Misconduct. To the extent that Marketplace Provider is aware or later becomes aware of a 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 Merchant Services.
- MARKETPLACE PROVIDER ACTIONS.
4.1 Marketplace Provider Actions. Marketplace Provider may only engage in Actions for a Vendor to the extent that it is doing so on behalf of Vendor in accordance with the authority granted to Marketplace Provider under the Marketplace Vendor Agreement, and solely in accordance with this Agreement and Applicable Law.
4.2 Marketplace Vendor Agreement. Marketplace Provider will include in the Marketplace Vendor Agreement information detailing the Balance Merchant Services and the Actions that Marketplace Provider may conduct on a Vendor’s behalf in relation to the use of the Balance Merchant Services through Marketplace. Marketplace Provider will also include in the Marketplace Vendor Agreement terms sufficient to enable Balance to provide the Balance Merchant Services to Vendors as described in this Agreement and the Balance Vendor Services Agreement, including obtaining all required consents. Marketplace Provider must ensure that the Marketplace Vendor Agreement does not inhibit Balance’s ability to provide its Services, and does not cause any claim to be made against Balance, its Affiliates, or their respective Representatives, by Vendors, Buyers or any other third party.
5.1 Buyer Access to Balance Platform. Each Buyer, before being party to a transaction via the Balance Platform, must first agree to the applicable End User Terms. Balance may withhold, suspend or terminate the ability of a Buyer to access or utilize the Balance Platform, or any part thereof or any related features, functionality or services, at any time in its sole discretion.
5.2 Buyer Inquiries and Disputes. Buyer inquiries and disputes regarding the Services that are made directly to Balance will be addressed by Balance, and Marketplace Provider will assist Balance, and will procure that the relevant Vendor assists Balance, in providing such customer support to Buyers, including providing Balance with any information deemed necessary by Balance to resolve any such Buyer inquiries or disputes.
- INFORMATION AND DATA.
6.1 Marketplace Data. Balance may from time to time request that Marketplace Provider provide data and information related to Marketplace Provider, Marketplace Services, Vendors and Buyers (“Marketplace Data”). Marketplace Provider must comply promptly with any information request made by Balance, and Balance may limit Marketplace Provider’s or its Vendors’ or Vendors’ Buyers’ access to the Services until such time as Balance is satisfied with the response to the request.
6.4 Accuracy and Completeness. Marketplace Provider will at all times ensure that all data furnished to Balance in connection with the Services, including all Marketplace Data and Buyer Data, is complete and accurate in all respects.
- MARKETPLACE PROVIDER RESPONSIBILITIES.
7.1 Compliant Use. Marketplace Provider must:
(a) comply with the Balance Documentation, and not circumvent Balance’s intended limitations for any feature of the Services or Balance Platform;
(b) immediately and fully cooperate with Balance to investigate any suspected illegal, fraudulent, or improper activity on the part of a Vendor, Buyer, or any other third party;
(c) inform Balance at least 30 days’ prior to any material change to Marketplace Provider’s business (including any change of Control), business model or the goods
or services it sells, and target customer audience;
(d) comply with Applicable Law, and not use any portion of the Services or Balance Platform for any illegal or illicit transaction or activity, including under the laws and regulations applicable to any Vendor or Buyer, or use the Services or Balance Platform for any fraudulent, unlawful, deceptive, or abusive purposes, or in any manner harmful to, or intended to harm, Balance or any third party;
(e) ensure that before a Buyer is party to a transaction in connection to which Marketplace Provider or Vendor use any of the Services such Buyer is aware that the Services are provided by Balance, and had agreed to be subject to and comply with Balance’s End User Terms and to assume all rights and obligations thereunder, as may change from time to time;
(f) when acting as a Vendor’s agent, represent each Vendor in relation to the Services with professional diligence, skill and care, act within the scope of its agency appointment, and promptly pass information between Balance and Vendor when requested to do so; and
(g) cooperate with Balance in connection with the performance of the Services by making available such personnel and information as may be reasonably required and taking such other actions as Balance may reasonably request.
7.2 Marketplace Provider Bank Account. As part of Marketplace Provider’s onboarding process Marketplace Provider must provide the details of an account with a U.S. depository institution (or a different bank account approved by Balance) held in the name of Marketplace Provider or a third party nominated by Marketplace Provider(and in each case acceptable to Balance) linked to Marketplace Provider’s use of the Balance Platform and Services (“Marketplace Provider Bank Account”). Marketplace Provider must maintain the Marketplace Provider Bank Account throughout the term of this Agreement and for such period as may be required in order to comply with the provisions of this Agreement. Marketplace Provider will notify Balance in writing 14 days in advance of any change to the Marketplace Provider Bank Account (other than general administrative changes) which it or a third party (including the relevant bank) wishes to make.
- PURCHASE OF RECEIVABLES
8.1 Purchase of Receivables. The Balance Merchant Services enable Balance to purchase certain receivables from Vendors (and from Marketplace Provider if it so chooses). The Balance Receivables Purchase Terms set out the terms that apply to the purchase of receivables from Marketplace Provider (in the event Marketplace Provider wishes to sell such receivables), and the Balance Vendor Services Agreement sets out the terms that apply to Balance’s purchase of receivables from Vendors. With respect to Balance’s ability to purchase receivables from Vendors, Marketplace Provider must:
(a) not undermine or circumvent Balance’s right of first refusal with respect to any Vendor’s receivable for Vendor Products sold to a Buyer via Marketplace, such that Marketplace Provider may not purchase any such receivable from a Vendor until at least 7 days have elapsed after Marketplace Provider notifies Balance that the receivable is available for purchase - such notification is deemed to occur when a Buyer requests for extended payment terms on the underlying transaction; and
(b) in the event that Marketplace Provider becomes aware of any cancellation, return, complaint or dispute that arises between a Buyer and a Vendor with respect to a transaction that involved a receivable purchased by Balance, Marketplace Provider must: (i) immediately inform Balance; and (ii) fully and promptly cooperate with Balance in investigating, obtaining all related information, and resolving any such issue, in order to ensure that the Buyer pays Balance the full amount due for the relevant Receivable.
- FEES AND TAXES; AMOUNTS OWED.
9.1 Marketplace Provider Fees. Marketplace Provider must pay to Balance the fees specified in the Proposal Letter. Balance may invoice Marketplace Provider for incurred fees, or deduct incurred fees from funds indicated in the Marketplace Provider Account Balance. Any fees paid in advance are non-refundable.
9.2 Marketplace Services Fees. Balance may facilitate, via the Balance Platform, Marketplace Provider’s collection of fees that Marketplace Provider is entitled to levy on Vendors for the Marketplace Services (“Marketplace Services Fees”). Marketplace Provider is responsible for communicating Marketplace Services Fees to Vendors prior to imposing such fees, and Marketplace Provider may only impose fees where permitted to do so by the Marketplace Vendor Agreement and Applicable Law. With respect to transactions which involved Balance’s purchase of Receivables (as such term is defined in the Balance Receivables Purchase Terms) under a Balance Vendor Services Agreement, Balance may withhold any fees owed by the relevant Vendor to Marketplace Provider until the entire sum of Balance’s Purchase Share is paid by Buyer to Balance.
9.3 Taxes. As between Balance and Marketplace Provider, Marketplace Provider is solely responsible for determining and calculating any and all taxes and duties, including sales, use, transfer, value added, withholding, income, and other taxes and/or duties (“Taxes”) assessed, incurred, or required to be collected, paid, or withheld in connection with amounts received by Marketplace Provider in connection with the Services, including any Taxes which are to be assessed, incurred, or required to be collected, paid, or withheld by Vendor (unless otherwise agreed in the Marketplace Vendor Agreement), and for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. Marketplace Provider is solely responsible for the accuracy of Taxes that it charges to any third party.
9.4 Amounts Owed. Balance may recover amounts owed by Marketplace Provider under this Agreement by: (a) deducting such amounts from funds from the Marketplace Provider Account Balance, or from funds attributable to Marketplace Provider, (b) requesting that Marketplace Provider promptly provide such amounts to Balance, or (c) by debiting the Marketplace Provider Bank Account. Balance may also recover amounts owed by a Vendor under the Balance Vendor Services Agreement by deducting amounts from funds attributable to the Vendor in Marketplace Provider Balance Account.
- MARKETPLACE PROVIDER ACCOUNT BALANCE; PAYOUTS.
10.1 Marketplace Provider Account Balance. Marketplace Provider may be entitled to submit Actions (on its own behalf or on behalf of Vendors) with respect to funds that are held in connection with the Services. Balance will track such funds in a balance (“Marketplace Provider Account Balance”) that may be viewed via the Balance Dashboard or Balance API. The Marketplace Provider Account Balance may increase to reflect Payments (as defined in the Balance Payment Services Terms) made by Buyers and Purchased Receivables (as defined in the Balance Receivables Purchase Terms), and decrease by amounts due to Balance, amounts that Balance is entitled to withhold under this Agreement, amounts owed by Marketplace Provider to third parties, amounts reflecting payouts, and amounts paid to Vendors with respect to Co-Purchased Receivables. The Marketplace Provider Account Balance is not a bank account (however a virtual bank account or wallet may be set up for this purpose as further clarified in the Balance Payment Services Terms), and Marketplace Provider does not own any funds indicated in the Marketplace Provider Account Balance unless and until such funds are credited to the Marketplace Provider Bank Account.
10.2 Payouts. Marketplace Provider may initiate, via the Balance Dashboard or Balance API, and subject to the availability of funds in the Marketplace Provider Account Balance, a transfer of funds to the Marketplace Provider Bank Account. Marketplace Provider may also, pursuant to the authorization granted by a Vendor and subject to the availability of funds in the Marketplace Provider Account Balance and the terms of the Marketplace Vendor Agreement, initiate a transfer of funds to a Vendor Bank Account.
10.3 Connected Account Balance will create a Connected Account with Payment Processor (as those terms are defined in the Balance Payment Services Terms) for Marketplace Provider in order to facilitate the receipt and payout of funds in accordance with this section, and the Balance Payment Services Terms will apply to the Connected Account.
11.1 System Security. Each Party will use commercially reasonable security measures to protect data in its possession against unauthorized disclosure or use. Each Party is responsible for maintaining, protecting, and securing its software and hardware, including anti-virus software, security patches, and firewalls.
11.2Marketplace Provider Access Control. Marketplace Provider must establish a password or other procedures for verifying that only designated employees of Marketplace Provider have access to any administrative functions related to the Services, and will be responsible for all use of the Services by Marketplace Provider’s personnel or through the use of any credentials or user account assigned to Marketplace Provider, irrespective of whether such use is with Marketplace Provider’s knowledge or consent. Marketplace Provider will comply with all security policies and procedures related to the Services which may be established by Balance and communicated to Marketplace Provider from time to time.
12.1 Confidential Information. Each Party acknowledges that it may receive Confidential Information of the other Party.
12.2 Use and Disclosure of Confidential Information.
(a) Each Recipient will hold and maintain in confidence the Confidential Information of the Discloser and will use and disclose such Confidential Information only for the purpose of performing its obligations or exercising or enforcing its rights with respect to this Agreement or as otherwise expressly permitted by this Agreement.
(b) Each Recipient may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by Applicable Law, including in the course of an examination by a regulatory authority with supervisory and examination authority over such Party; provided (i) that, except in connection with disclosure in the ordinary course of an examination by any such regulatory authority, the Party subject to such Applicable Law will notify the Discloser of any such use or requirement prior to disclosure of any Confidential Information obtained from the Discloser in order to afford the -discloser an opportunity to seek a protective order to prevent or limit disclosure of the Confidential Information to third parties, and (ii) that the Party subject to such Applicable Law may disclose Confidential Information of the Discloser only to the extent required by such Applicable Law.
(c) Each Recipient must (i) limit access to the Discloser’s Confidential Information to those employees, authorized agents, vendors, consultants and subcontractors who have a reasonable need to access such Confidential Information in connection with this Agreement, and (ii) ensure that any Person with access to the Discloser’s Confidential Information is bound to maintain the confidentiality of Confidential Information in a manner consistent with the obligations of this Section 12.
(d) In the event that a Recipient becomes aware of any unauthorized use or disclosure of Confidential Information of the Discloser, the Recipient must inform the Disclosure of this event within a reasonable time of becoming aware, and in any event within the time period required by Applicable Law.
12.3 Survival. For clarity, this Section 12 survives termination or expiration of this Agreement.
- INTELLECTUAL PROPERTY RIGHTS.
13.1 Ownership. Subject to the terms and conditions of this Agreement, as between the Parties, each Party and the Party’s Affiliates will exclusively retain all rights, title, and interests in and to Intellectual Property Rights that are conceived, developed, reduced to practice, created, or acquired (collectively, “Created”) by or on behalf of such Party or its Affiliate, whether Created prior to or after the start of the Term. Nothing contained in this Agreement is to be construed as constituting a transfer or an assignment by one Party to the other Party of Intellectual Property Rights, and except as expressly granted under this Agreement or otherwise agreed to in writing by the Parties, neither Party grants the other Party any right, license, or covenant not to sue with respect to any Technology or Intellectual Property Rights. There are no implied licenses granted under this Agreement.
13.2 License. Balance grants to Marketplace Provider a limited, non-exclusive, non-assignable, non-sub-licensable, non-transferable license during the term of this Agreement to use the Balance Platform solely to the extent necessary for Marketplace Provider to use the Services in accordance with this Agreement and the Documentation.
13.3 Publicity. Notwithstanding anything to the contrary, Marketplace Provider grants Balance the right to disclose the name of Marketplace Provider and the existence of the relationship between Marketplace Provider and Balance for purposes of marketing and advertising Balance’s Services.
13.4 Feedback. Marketplace Provider may, but is not required to, provide ideas, concepts, comments, or feedback to Balance regarding the Services (“Feedback”). Except to the extent that the Parties have agreed in writing to a different set of rights in advance of the disclosure of such Feedback, Marketplace Provider grants Balance an irrevocable, perpetual, royalty-free right to use and disclose any Feedback for any purpose.
- REPRESENTATIONS AND WARRANTIES.
14.1 Marketplace Provider Representations and Warranties. Marketplace Provider represents and warrants to Balance that: (a) this Agreement is valid, binding, and enforceable against Marketplace Provider in accordance with its terms; (b) Marketplace Provider has the full power and authority to execute and deliver this Agreement and to perform all its obligations under this Agreement; (c) Marketplace Provider is able to pay its debts as they become due; and (d) Marketplace Provider is in compliance with Applicable Law.
14.2 Balance Representations and Warranties. Balance represents and warrants to Marketplace Provider that: (a) this Agreement is valid, binding, and enforceable against Vendor in accordance with its terms; (b) Balance has the full power and authority to execute and deliver this Agreement and to perform all its obligations under this Agreement; (c) Balance is able to pay its debts as they become due; and (d) Balance is in compliance with Applicable Law.
15.1 Indemnification. Each Party (the “Indemnifying Party”) agrees to indemnify, defend and hold harmless the other Party, its Affiliates, and their respective Representatives (each, an “Indemnified Party”), from and against any and all liability, damages, costs, or expenses, including reasonable legal fees and expenses, for any third party claim or demand arising out of or related to the following (“Claim”):
(a) the Indemnifying Party’s breach of any representation, warranty, covenant or obligation under this Agreement;
(b) gross negligence, fraud or willful misconduct on the part of the Indemnifying Party, or any of its Affiliates or their respective Representatives (“Associated Parties”);
(c) any actions taken by an Indemnified Party in accordance with or in good faith in reliance upon information or instructions provided by the Indemnifying Party or any of its agents or Representatives; and
(d) any actual or alleged infringement or misappropriation of any Intellectual Property Rights of any third party by the Indemnifying Party.
The defense obligation of the Indemnifying Party attaches if the Claim alleges any of the foregoing violations, breaches, acts or omissions.
15.2 Indemnification Procedures. If any Claim is asserted against an Indemnified Party by any person who is not a party to this Agreement in respect of which the Indemnified Party may be entitled to indemnification under the provisions of Section 14.1, written notice of such Claim must promptly be given to the Indemnifying Party. The Indemnifying Party will have the right, by notifying the Indemnified Party within 14 days of its receipt of the notice of the Claim, to assume the entire control (subject to the right of the Indemnified Party to participate at the Indemnified Party’s expense and with counsel of the Indemnified Party’s choice) of the defense, compromise or settlement of the matter, including, at the Indemnifying Party’s expense, employment of counsel of the Indemnifying Party’s choice. The Indemnified Party must provide reasonable cooperation in the defense. The Indemnifying Party must not compromise or settle a Claim against the Indemnified Party without the Indemnified Party’s prior written consent, which will not be unreasonably withheld or delayed; provided that the Indemnifying Party may, however, effect a compromise or settlement of any action without the Indemnified Party’s consent if the following conditions are met: (a) there is no admission of guilt or liability by the Indemnified Party; and (b) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party.
- LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES.
16.1 LIMITATION OF LIABILITY. IN NO EVENT WILL BALANCE, ITS AFFILIATES OR THEIR RESPECTIVE REPRESENTATIVES BE LIABLE TO MARKETPLACE PROVIDER FOR ANY (A) INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE BALANCE PLATFORM OR THE SERVICES AND (B) LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BALANCE’S TOTAL LIABILITY TO MARKETPLACE PROVIDER, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED THE FEES PAID OR PAYABLE TO BALANCE IN CONNECTION WITH THIS AGREEMENT IN THE TWELVE-MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
16.2 DISCLAIMER OF WARRANTIES. THE SERVICES ARE PROVIDED “AS-IS,” AND “AS AVAILABLE”, WITHOUT WARRANTIES OF ANY KIND. BALANCE, ITS AFFILIATES AND THEIR RESPECTIVE REPRESENTATIVES DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, RELATING TO OR ARISING OUT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
- TERM AND TERMINATION.
17.1 Term. The term of this Agreement is set forth in the Proposal Letter (the “Initial Term”), and will automatically be extended for successive “Renewal Terms” of one (1) year unless a Party notifies the other Party of its intent not to renew at least thirty (30) days prior to the end of the Initial Term or a Renewal Term, in each case unless terminated earlier. The Initial Term and all Renewal Terms are called the “Term.” Following expiration of the Initial Term, Balance may from time to time modify the fees payable to Balance by Marketplace Provider, by providing at least 30 days’ advance notice to Marketplace Provider of any such fee variation.
17.2 Termination and Suspension.
(a) Each Party may terminate this Agreement immediately by providing written notice to the other Party for that other Party’s material breach of this Agreement.
(b) Balance may suspend Marketplace Provider’s access to the Services immediately if Balance becomes aware of or reasonably suspects, in its sole discretion, that (a) Marketplace has breached this Agreement or any Balance policy;; (b) Marketplace Provider is engaged in acts or practices that are unfair, deceptive, abusive or unlawful; (c) Marketplace Provider is, or is likely to become, bankrupt or insolvent; (d) Marketplace Provider’s use of the Services places an unreasonable Balance Platform or Services or reflects negatively on the brand or reputation of Balance or any partner of Balance (including card schemes and financial services providers); or (e) any credentials associated with the Services have or may have been compromised. In such an event Balance will provide Marketplace Provider with a written notice upon suspension or as soon as reasonably practicable thereafter, and such suspension will remain in place until the cause of the suspension is remedied to Balance’s satisfaction. If the cause is not remedied within the time period determined by Balance, Balance may terminate this Agreement by providing written notice to Marketplace Provider.
(c) In addition to any other termination rights provided elsewhere in this Agreement, either Party may terminate the Agreement upon occurrence of one or more of the following events:
(i) Either Party is determined to be bankrupt or insolvent, is unable to pay its debts when they are due, or has a receiver, trustee, custodian or similar appointed;
(ii) Upon any change to or enactment of any Applicable Law, or publication by any regulatory authority, which would have a material adverse effect upon: (A) the Services; or (B) such Party’s ability to perform its obligations under this Agreement; provided that the Parties, after good faith discussions, cannot find a mutually agreeable solution within a reasonable amount of time;
(iii) Applicable Law relating to the performance of this Agreement rendering either of the Parties unable to substantially perform this Agreement, provided that the Parties cannot find a legally workable solution to avoid violating Applicable Law within a reasonable amount of time; or
(iv) Upon direction from any regulatory authority for either Party to cease or materially limit performance of such Party’s obligations under this Agreement.
17.3 Rights and Obligations upon Termination.
(a) Upon expiration or termination of this Agreement, Marketplace Provider’s right to use the Services will immediately cease.
(b) The Parties’ rights to terminate this Agreement will be in addition to, and not in lieu of, any other remedies they may have by virtue of (a) a breach or default with respect to this Agreement or (b) any other event which permits a termination.
(c) Furthermore, the termination or expiration of this Agreement will not relieve a Party of its respective obligations due at or before the time of such termination or expiration or prejudice any claim of either Party. Termination or expiration of this Agreement will not affect Marketplace Provider’s obligation to pay fees owed to Balance under this Agreement, including those incurred during any notice period prior to termination, or any other provisions in this Agreement intended to survive its expiration or termination.
(d) Upon termination for any reason, and without limiting any other rights that Balance may have, Balance may collect and obtain all amounts owed to Balance by the
methods described in Section 9.4.
18.1 Except as otherwise expressly provided, all notices to be given to a Party are effective only when made in writing and actually delivered to such Party’s physical or email address for notices. For Balance, the physical notice address is stated at the top of this Agreement, and email notices may be sent to firstname.lastname@example.org. For Marketplace Provider, the notice addresses are set out in the Proposal Letter. A Party may modify its notice address by providing notice of this change to the other Party.
18.2 Amendments. Balance may amend this Agreement from time to time, in its sole discretion and for any reason. Amendments will be indicated by a changed Last Updated date at the top of this web page, and Marketplace Provider is responsible for monitoring this web page for amendments, although Balance will notify Marketplace Provider of any amendments that Balance deems material. Marketplace Provider’s subsequent access and use of the Balance Platform or use of the Services constitutes Marketplace Provider’s consent and agreement to such amendments.
18.3 Assignment. Balance may freely assign any and all of its rights under this Agreement, including with respect to any Receivable (as defined in the Balance Receivables Purchase Terms). Marketplace Provider may not assign this Agreement to any third party without the prior written consent of Balance. Any purported assignment contrary to this section will be void.
18.4 Entire Agreement. Each Party agrees that this Agreement and all referenced documents constitute the complete and exclusive statement of the mutual understanding of the Parties, and supersedes and cancels all previous written and oral agreements, communications and other understandings, relating to the subject matter of this Agreement. Each Party acknowledges that it is not relying on any information, conditions, covenants, warranties or representations provided to it or to any of its Affiliates or Representatives at any time except as expressly stated in this Agreement.
18.5 Survival, Severability and Waiver. All provisions of this Agreement which by their nature are meant to extend beyond the expiration or termination of this Agreement will survive such expiration or termination. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the remaining provisions of this Agreement will otherwise remain in full force and effect and enforceable. The failure by either Party to insist upon strict performance of any of the provisions contained in this Agreement will in no way constitute a waiver of its rights as set forth in this Agreement, at law or in equity, or a waiver of any other provisions or subsequent default by the other Party in the performance of or compliance with any of the terms and conditions set forth in this Agreement.
18.6 Force Majeure. Balance is not responsible for any breach or delay in the performance of its obligations pursuant to this Agreement for reason of fire, flood, riot, act of terrorism, strike, labor conflict, freight embargo, delay in shipping, act of a public enemy, of war, of civil disorder, of interruption, of a failure or an interruption of the Internet, phone service, or for any other cause reasonably beyond the control of Balance.
18.7 Relationship of Parties. Each Party agrees that, except as with respect to Balance acting as the authorized agent of Marketplace Provider, they are independent contractors to each other in performing their respective obligations under this Agreement. Nothing in this Agreement or in the working relationship being established between the Parties will be deemed or is intended to be deemed, nor will it cause, any of the Parties to be treated as partners, joint ventures, or otherwise as joint associates for profit. Marketplace Provider does not have any authority of any kind to bind Balance in any respect whatsoever.
18.8 No Third-Party Beneficiaries. Except as stated in this Agreement, this Agreement does not create any right or cause of action in or on behalf of any person or entity other than the Parties.
18.9 Responsibility for Own Costs. Except as otherwise expressly stated, as between the Parties, each Party will be responsible for its own costs and expenses in connection with the performance of its obligations and the provision and receipt of the Services.
18.10 Dispute Resolution. This Agreement will be governed by, construed and enforced in accordance with the laws of the State of Delaware without regard to principles of conflict of laws. By executing this Agreement, the Parties agree to submit to the exclusive jurisdiction of any state or federal court sitting in New Castle County, Delaware for any and all disputes asserting a breach of this Agreement. This forum selection provision does not apply to any arbitration proceeding THE PARTIES AGREE TO WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN THE RESOLUTION OF ANY DISPUTE OR CLAIM BETWEEN THE PARTIES OR ANY OF THEIR RESPECTIVE AFFILIATES WHICH MAY ARISE UNDER THIS AGREEMENT. In any action or proceeding between the Parties to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees from the other Party.
If either Party requests to arbitrate any Claim (defined below) before an answer or dispositive motion is filed in a proceeding that arises out of or relates to this Agreement, the other Party agrees to arbitrate such Claim. The Party making the request (the “requesting party”) must commence an arbitration proceeding within thirty (30) days of its request with either the Judicial Arbitration and Mediation Services (“JAMS”) or the American Arbitration Association (“AAA”). The Parties agree that any such arbitration proceeding will take place in Wilmington, Delaware and hereby waive any objection that such venue is an inconvenient forum. The arbitration proceeding will be governed by the rules and procedures for commercial disputes of the arbitration organization to which the Claim is referred. Streamlined arbitration rules and procedures will be used if available. If for any reason the selected arbitration organization cannot, will not, or ceases to, serve as an arbitration administrator, the requesting party may substitute the other organization identified in this paragraph or another widely recognized arbitration organization that uses similar rules or procedures and is mutually acceptable to both parties. In the event of a substitution where the Parties cannot agree on an arbitration organization, then either Party may ask a court of competent jurisdiction to appoint a qualified arbitration organization.
For purposes of this arbitration provision, “Claim” means any claim, dispute or controversy (whether in contract, tort, or otherwise) past, present or future. The term “Claim” is to be given the broadest possible meaning and includes any Claim arising from or relating to (a) the Services, (b) a Payment Card Request (c) a Transaction, (d) any transactions effected pursuant to this Agreement, (e) provisions of, or change of, or addition of, provisions to this Agreement, (f) collection of Marketplace Provider’s obligations arising from this Agreement, (g) advertisements, promotions or oral or written statements relating to this Agreement or any transactions between the Parties pursuant to this Agreement, including any Claim regarding information obtained by Balance from, or reported by Balance to, credit reporting agencies or others, (h) disputes between Marketplace Provider and Balance or the parent companies of Marketplace Provider or Balance, wholly or majority owned subsidiaries, affiliates, predecessors, successors, assigns, agents, contractors, employees, officers, directors or representatives arising from any transaction between Marketplace Provider and Balance pursuant to this Agreement, (i) disputes regarding the validity, enforceability or scope of this arbitration provision or this Agreement, or (j) this Agreement.
MARKETPLACE PROVIDER MAY OPT-OUT OF THIS ARBITRATION PROVISION WITHIN THIRTY (30) DAYS OF THE DATE MARKETPLACE PROVIDER EXECUTES THIS AGREEMENT BY SENDING NOTICE OF ITS DECISION TO OPT-OUT, ALONG WITH ITS NAME, PHONE NUMBER, EMAIL ADDRESS AND MAILING ADDRESS, TO LEGAL@BALANCE.COM OR TO 2261 MARKET ST., #4149, SAN FRANCISCO CA 94114.
IF ARBITRATION IS COMMENCED, MARKETPLACE PROVIDER ACKNOWLEDGES THAT NEITHER MARKETPLACE PROVIDER NOR BALANCE WILL HAVE THE RIGHT TO (I) HAVE A COURT OR JURY DECIDE THE CLAIM BEING ARBITRATED, (II) ENGAGE IN DISCOVERY (THAT IS, THE RIGHT TO OBTAIN INFORMATION FROM THE OTHER PARTY) TO THE SAME EXTENT THAT MARKETPLACE PROVIDER OR BALANCE COULD IN COURT, (III) PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS IN A CLASS ACTION, OR REPRESENTATIVE ACTION IN COURT OR IN ARBITRATION, RELATING TO ANY CLAIM SUBJECT TO ARBITRATION, OR (IV) JOIN OR CONSOLIDATE CLAIMS OTHER THAN MARKETPLACE PROVIDER’S OWN OR BALANCE’S OWN. OTHER RIGHTS AVAILABLE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. IF A CLAIM IS BROUGHT SEEKING PUBLIC INJUNCTIVE RELIEF AND A COURT DETERMINES THAT THE RESTRICTIONS IN THIS SECTION ARE UNENFORCEABLE WITH RESPECT TO THAT CLAIM (AND THAT DETERMINATION BECOMES FINAL AFTER ALL APPEALS HAVE BEEN EXHAUSTED), THE CLAIM FOR PUBLIC INJUNCTIVE RELIEF WILL BE LITIGATED IN COURT AND ANY INDIVIDUAL CLAIMS SEEKING MONETARY RELIEF WILL BE ARBITRATED. IN SUCH A CASE THE PARTIES WILL REQUEST THAT THE COURT STAY THE CLAIM FOR PUBLIC INJUNCTIVE RELIEF UNTIL THE ARBITRATION AWARD PERTAINING TO INDIVIDUAL RELIEF HAS BEEN ENTERED IN COURT. IN NO EVENT WILL A CLAIM FOR PUBLIC INJUNCTIVE RELIEF BE ARBITRATED.
Except as set forth below, the arbitrator’s decision will be final and binding. Only a court may decide the validity of items (iii) and (iv) in the preceding paragraph. If a court finally holds that items (iii) or (iv) are limited, invalid or unenforceable, then this entire arbitration provision will be null and void. The Parties can appeal any such holding. If a court holds that any other part of this arbitration provision (other than items (iii) and (iv)) are invalid, then the remaining parts of this arbitration provision will remain in force. An arbitrator will decide all other issues pertaining to arbitrability, validity, interpretation and enforceability of this arbitration provision. The decision of an arbitrator is as enforceable as any court order and may be subject to very limited review by a court. An arbitrator may decide a Claim upon the submission of documents alone. A Party may request a telephonic hearing if permitted by applicable rules and each Party hereby consents to the other Party participating by telephone. The exchange of non-privileged information relevant to the Claim between the Parties is permitted and encouraged. Either Party may submit relevant information, documents or exhibits to the arbitrator for consideration in deciding a Claim. Unless both Parties otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, both Parties shall retain: (a) the right to bring an individual action in a small claims court having jurisdiction over claims not exceeding US$10,000; and (b) the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
For a copy of relevant rules and procedure, to file a Claim or for other information about JAMS and AAA, write them, visit their website or call them at: (a) for JAMS, 1920 Main Street, Suite 300, Irvine, CA 92614, email@example.com, http://www.jamsadr.com, or 1-800-352-5267; or (b) for AAA, 1633 Broadway, 10th Floor, New York, NY 10019, firstname.lastname@example.org, http://www.adr.org, or 1-800-778-7879.
If Marketplace Provider’s claim does not exceed US$10,000, then any arbitration will be conducted solely on the basis of documents both Parties submit to the arbitrator, unless Marketplace Provider requests a hearing and the arbitrator determines that a hearing is necessary. If Marketplace Provider’s claim exceeds US$10,000, Marketplace Provider’s right to a hearing will be determined by the rules of the selected arbitration organization.
If either Party fails to submit to arbitration following a proper demand to do so, that Party will bear the costs and expenses, including reasonable legal fees and disbursements, incurred by the Party compelling arbitration. The Party initiating the arbitration will pay the filing fee. Marketplace Provider may seek a waiver of the initial filing fee or any other fees incurred in arbitration. IF MARKETPLACE PROVIDER BELIEVES MARKETPLACE PROVIDER CANNOT PAY OR MARKETPLACE PROVIDER WILL NOT BE ABLE TO PAY THE FILING FEE OR OTHER FEES REQUIRED TO INITIATE ARBITRATION, NOW OR IN THE FUTURE, BALANCE RECOMMENDS MARKETPLACE PROVIDER OPT-OUT OF THIS ARBITRATION PROVISION IN THE MANNER DESCRIBED ABOVE.
Except in the situation in which either party fails to submit to arbitration following a proper demand to do so, each Party will pay for its respective legal representation (including attorneys), experts’ and witness fees, regardless of which Party prevails in the arbitration. A Party may recover any or all expenses from the other Party if the arbitrator, applying applicable law, so determines. Allocation of fees and costs relating to appeals in arbitration will be handled in the same manner. For an explanation and schedule of the fees that apply to an arbitration proceeding, please contact the organizations at the addresses above. The appropriate fee schedule in effect from time to time is incorporated by reference into this arbitration provision. The cost of arbitration may be higher or lower than the cost of bringing a Claim in court, depending upon the nature of the Claim and how the arbitration proceeds. Having more than one Claim and holding face-to-face hearings can increase the cost of arbitration.
This arbitration provision is made pursuant to a transaction involving interstate commerce and will be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq., as amended, notwithstanding any other governing law provision in this Agreement. The arbitrator will apply applicable substantive law consistent with the FAA and applicable statutes of limitations and will honor claims of privilege recognized at law. Judgment upon any arbitration award may be entered and enforced, including by garnishment, attachment, foreclosure or other post-judgment remedies, in any court having jurisdiction. The arbitrator’s decision will be final and binding, except for any right of appeal provided by the FAA, in which case any Party can appeal the award to a three-arbitrator panel administered by the selected arbitration administrator. The panel will reconsider de novo (that is, without deference to the ruling of the original arbitration) any aspect of the initial award requested by the appealing party.
This arbitration provision will continue to govern any Claim that may arise without regard to any termination or expiration of this Agreement. If any portion of this arbitration provision (other than the provisions prohibiting class-wide arbitration, joinder or consolidation) is deemed invalid or unenforceable under the FAA, it will not invalidate the remaining portions of this arbitration provision. If a conflict or inconsistency arises between the rules and procedures of the selected arbitration administrator and this arbitration provision, this arbitration provision will control.
18.11 Construction. The headings contained in this Agreement are inserted for convenience only and do not affect the meaning or interpretation of this Agreement. The singular includes the plural, and the plural includes the singular. The terms “include” and “including” are not limiting. Reference to any agreement or other contract includes any permitted modifications, supplements, amendments, and replacements. Any reference to a URL will be deemed to mean that URL as may be updated from time to time.
18.12 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be an original but all of which taken together will constitute one and the same Agreement.
“Actions” means actions, orders and requests submitted by via the Marketplace to the Balance Platform.
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly Controls, is Controlled by, or is under common Control with such Person.
“Applicable Law” means any and all applicable laws, treaties, conventions, directives, regulations, ordinances, and judicial decisions in courts and tribunals of competent jurisdiction that relate to the Services or a Party, including any subsequent amendments, modifications and revisions.
“Balance Account” means an account established for a user on the Balance Platform.
“Balance Documentation” means the documentation located at http://docs.getbalance.com.
“Balance Vendor Services Agreement” means the agreement describing how Vendors may use the Services, in the form made available by Balance on its website from time to time.
“Confidential Information” means all proprietary information, data, trade secrets, business information, financial data and budgetary or proprietary business information, income or sales data or projections, customer lists and related information, business operations, policies, procedures and techniques, advertising summary or tracking reports or other reports generated in accordance with this Agreement, schematics, ideas, techniques, know how, concepts, development tools and processes, computer printouts, computer programs, design drawings and manuals, and improvements, patents, copyrights, trade secrets or other intellectual property of any kind or nature, plans for future development and new product or service concepts, contemplated products or services, research, development, and strategies which a Discloser discloses, in writing, orally or visually, to a Recipient or to which Recipient obtains access in connection with the negotiation or performance of this Agreement. Confidential Information does not include information that: (a) is already rightfully known to the Recipient at the time it obtains Confidential Information from the Discloser; (b) is or becomes generally available to the public other than as a result of disclosure in breach of this Agreement or any other confidentiality obligations; (c) is lawfully received on a non-confidential basis from a third party authorized to disclose such information without restriction and without breach of this Agreement; or (d) is developed by a Party without the use of any proprietary, non-public information provided by the other Party. Balance’s Confidential Information includes this Agreement, all amendments to this Agreement, and the Buyer Data.
“Control” means, with respect to any Person, the possession, direct or indirect, of the power to vote fifty-one percent (51%) or more of the securities that have ordinary voting power for the election of directors of such Person, or to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities or by contract or otherwise.
“Discloser” means a Party disclosing its Confidential Information.
“Intellectual Property Rights” means all past, present, and future rights, title and interests of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, publicity and privacy rights, and mask works; (b) trademarks, and trade name rights and similar rights, service marks, domain names, trade dress, logos, and other distinctive brand features, whether or not registered; (c) trade secret rights; (d) patents and industrial property rights; (e) publicity and privacy rights in marketing, advertising, or other public facing materials (including rights to use the name, likeness, image of persons); and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (d) above.
“Person” means any natural or legal person, including any corporation, partnership, limited liability company, trust or unincorporated association or other entity.
“Recipient” means a Party receiving or obtaining access to the other Party’s Confidential Information.
“Representatives” means, with respect to an entity, that entity’s employees, officers, directors, agents, consultants and subcontractors.