Balance Merchant Services Agreement
Last updated: April 17, 2023
Thank you for choosing Balance.
This Balance Merchant Services Agreement (“Agreement”)is a contract between Balance Payments, Inc., a Delaware corporation with its principal office at 2261 Market Street #4149San Francisco, CA 94114 (“Balance”)and the entity that described in the signed document (“Proposal Letter”) that links to and incorporates this Agreement (“Merchant”).
This Agreement incorporates the Balance Payment Services Terms and the Balance Receivables Purchase Terms as well as the Balance Privacy Policy. Capitalized terms are defined inline or in Section 15. Each of Balance and Merchant is a Party, and Balance and Merchant are, collectively, the Parties.
By accessing or using the Services (as defined below) Merchant agrees to be bound by this Agreement. Merchant’s use of the Balance Platform and the Services must at all times be in compliance with this Agreement. THIS AGREEMENT HAS AN ARBITRATION PROVISION IN SECTION 14.10; PLEASE REVIEW IT CAREFULLY AS IT AFFECTS YOURRIGHTS.
- SERVICES AVAILABLE TO MERCHANT THROUGH THE BALANCEPLATFORM.
1.1 Balance Platform. Balance has developed an online platform (the “Balance Platform”) which provides access to the Services, enabling merchants to provide an improved experience to its customers (“Buyers”).
1.2 Services. Balance may make the following services (“Services”)available to Merchant:
(a) Payment Processing Services enabling Merchant to receive payments from its Buyers, as further described in the Balance Payment Services Terms;
(b) the ability for Merchant to offer extended payment terms to its Buyers via Merchant’s sale, and Balance’s purchase, of Receivables owed by such Buyers, as further described in the Balance Receivables Purchase Terms; and
(c) such other services as Balance may make available from time to time.
1.3 Merchant Onboarding and Use of Services. Merchant’s access to the Services is conditional on Merchant successfully completing Balance’s onboarding process. Merchant may, once successfully onboarded, integrate Balance’s services into its systems and use the Services offered by the Balance Platform in accordance with
(a) this Agreement, (b) the Agreement between Merchant and Buyer, including any incorporated terms and conditions (“Merchant Buyer Agreement”), and (c) the Balance Documentation.
1.4 Balance Dashboard and Balance API. Balance will provide Merchant with access to a dashboard (the “Balance Dashboard”) and application programming interfaces (the “Balance API”)from which Merchant may access and provide information related to the Services.
1.5 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, and Balance will notify Merchant of any modifications that Balance deems material.
- MERCHANT RESPONSIBILITIES.
2.1 Compliant Use. Merchant must:
(a) comply with the Balance Documentation, and not circumvent Balance’s intended limitations for any feature of the Services or Balance Platform;
(b) 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 Buyer, or use the Services or Balance Platform any fraudulent, unlawful, deceptive, or abusive purposes, or in any manner harmful to, or intended to harm, Balance or any third party;
(c) fully comply with its obligations as described in this Agreement in relation to the Services and Balance Platform;
(d) immediately and fully cooperate with Balance to investigate any suspected illegal, fraudulent, or improper activity on the part of Merchant, a Buyer, or any other third party;
(e) inform Balance at least 30 days’ prior to any material change to Merchant’s business(including any change of Control), business model or the goods or services it sells;
(f) at or before transacting with a Buyer, prominently inform Buyer of: (i) Merchant's identity(including prominently displaying its registered name and any trading name on Merchant’s website) and address of its fixed place of business; (ii) the terms and conditions of sale including Merchant's delivery policy and returns, cancellation and refund policies (which policies must at all times be clear, fair, and comply with Applicable Law); (iii) the date on, and currency in which, any charges will commence; (iv) Merchant's dispute and complaints policy and procedure, customer service email and telephone contact details; and (v)Merchant’s data privacy policy;
(g) ensure that before a Buyer is party to a transaction in connection to which Merchant uses 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; and
(h) cooperate with Balance in connection with the performance of the Services by making available such personnel as Balance may reasonably require and taking such actions as Balance may reasonably request.
2.2 Merchant Bank Account. As part of the onboarding process Merchant 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 Merchant or a third party nominated by Merchant (and in each case acceptable to Balance) linked to Merchant’s use of the Balance Platform and Services (“Merchant Bank Account”). Merchant must maintain the Merchant Bank Account throughout the term of this Agreement and for such subsequent period as may be required in order to comply with the provisions of this Agreement. Merchant will notify Balance in writing 14 days in advance of any change to the Merchant Bank Account (other than general administrative changes) which it or a third party(including the relevant bank) wishes to make.
2.3 Responsibility for Merchant Services. Balance is not responsible to Buyers for any products or services that Merchant provides to its Buyers (“Merchant Services”), and Merchant is solely responsible for providing the Merchant Services to Buyers as set forth in the Merchant Buyer Agreement. This Section2.3 applies despite any inconsistent terms (if any) that are present in the Merchant Buyer Agreement.
2.4 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.
- PURCHASE OF RECEIVABLES.
3.1 Application of Balance Receivables Purchase Terms. The Balance Receivables Purchase Terms apply to Merchant’s sale, and Balance’s purchase, of Receivables (as that term is defined in the Balance Receivables Purchase Terms) owed by Buyers.
3.2 Initiation of Receivables Purchase Process. The following events will constitute a request by Merchant that Balance purchase a Receivable underlying a transaction with a Buyer: (a)Merchant makes the request directly; or (b) the Buyer requests extended payment terms with respect to a transaction with Merchant.
- BUYERS
4.1 Acceptance Criteria. Balance may require Merchant to establish certain processes for onboarding Buyers to the Balance 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 Services to Merchant with respect to any Buyer. Balance may in its sole discretion decline to provide the Services with respect to a certain Buyer, or limit the functionality available with respect to a certain Buyer, at any time, until Balance is satisfied that it has received sufficient information about the Buyer.
4.2 Buyer Access to Balance Platform. Each Buyer, before proceeding with a transaction via the Balance Platform, must first agree to the applicable Terms of Use. Balance may suspend or terminate the ability of a Buyer to access or utilize the Services or Balance Platform, or any part thereof or any related features, functionality or services, at any time in its sole discretion.
4.3 Buyer Inquiries and Disputes. Buyer inquiries and disputes regarding the Payment Processing Services that are made directly to Balance will be addressed by Balance, and Merchant will assist 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. As between Balance and Merchant, Merchant is responsible and liable for Buyer inquiries and disputes related to the good sand services offered by Merchant.
- FEES; MERCHANT FUNDS; PAYOUTS; TAXES.
5.1 Fees. Merchant must pay to Balance the fees specified in the Proposal Letter. Balance may invoice Merchant for incurred fees, or deduct incurred fees from funds indicated in the Merchant Account Balance. Any fees paid in advance are non-refundable.
5.2 Merchant Account Balance. Balance will maintain a ledger which records the funds to which Merchant is entitled when it uses the Services (“Merchant Account Balance”) that may be viewed via the Balance Dashboard or Balance API. The Merchant Account Balance will increase when Merchant becomes entitled to receive funds in connection with the receipt of Payments (as defined in the Balance Payment Services Terms) and Purchased Receivables (as defined in the Balance Receivables Purchase Terms), and will decrease by amounts due to Balance or a third party, amounts that Balance is entitled to withhold under this Agreement, and amounts that are paid out to the Merchant Bank Account. The Merchant 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 Merchant does no town any funds unless or until such funds are credited to the Merchant Bank Account.
5.3 Payouts. Merchant may initiate, via the Balance Dashboard or Balance API, and subject to the availability of funds in the Merchant Account Balance, a transfer of funds to the Merchant Bank Account.
5.4 Amounts Owed. Balance may recover amounts owed by Merchant under this Agreement by (a) deducting such amounts from the Merchant Account Balance, or from funds attributable to Merchant, (b) requesting that Merchant promptly provide such amounts to Balance, or (c) debiting the Merchant Bank Account.
5.5 Connected Account. Balance will create a Connected Account with Payment Processor (as those terms are defined in the Balance Payment Services Terms) for Merchant 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.
5.6 Taxes. As between Balance and Merchant, Merchant 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 in connection with the Services, and for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. Merchant is solely responsible for the accuracy of the calculated Taxes charged to each Buyer.
- INFORMATION AND DATA.
6.1 Merchant Data. Balance may from time to time request that Merchant to provide data and information related to Merchant, Merchant Services Buyers (“Merchant Data”). Merchant must comply promptly with any information request made by Balance, and Balance may suspend or limit Merchant’s access to the Services until such time as Balance is satisfied with the response to the request. For example, information requested by Balance may include information regarding Merchant, Merchant’s business and transactions, and the Merchant Bank Account.
6.2 Balance Usage of Information. Subject to Section 8, Balance may store, use and disclose information provided by Merchant, including Onboarding Data and Buyer Data (a) to provide and enhance, and to facilitate the provision of, the Services, including to authenticate access to the Balance Platform; (b) to prevent or mitigate harm; and (c) for any other purpose identified in the Balance Privacy Policy.
6.3 Onboarding Data. Balance may, prior to onboarding Merchant to a Service, require Merchant to provide information about itself(“Onboarding Data”). Balance may from time to time require Merchant to provide updated or supplemental Onboarding Data.
6.4 Buyer Data. If Merchant receives any information from Balance related to any Buyer’s use of the Services (such information, “Buyer Data”), Merchant acknowledges and agrees that it will not store, use, disclose, or permit any third party to access such Buyer Data other than as expressly authorized in advance in writing by Balance. If Merchant provides any Buyer Data to Balance, Merchant must ensure that its privacy policy (“Merchant Privacy Policy”)permits, and Merchant has otherwise obtained from Buyer all consents and authorizations which may be required under Applicable Law for, Merchant to provide Balance with such Buyer Data, and for Balance to store, use and disclose such Buyer Data in accordance with this Agreement and the Balance Privacy Policy. Merchant will provide Balance with such confirmation of the foregoing as Balance may request from time to time.
6.5 Accuracy and Completeness. Merchant will at all times ensure that all data furnished to Balance in connection with the Services, including Onboarding Data and Buyer Data, is complete and accurate in all respects.
- SECURITY.
7.1 System Security. Merchant will use commercially reasonable security measures to protect data in its possession against unauthorized disclosure or use. Merchant is responsible for maintaining, protecting, and securing its software and hardware, including anti-virus software, security patches, and firewalls.
7.2 Merchant Access Control. Merchant must establish a password or other procedures for verifying that only designated employees of Merchant have access to any administrative functions related to the Services, and will be responsible for all use of the Services by Merchant’s personnel or through the use of any credentials or user account assigned to Merchant, irrespective of whether such use is with Merchant’s knowledge or consent. Merchant will comply with all security policies and procedures related to the Services which may be established by Balance and communicated to Merchant from time to time.
- CONFIDENTIALITY.
8.1 Confidential Information. Each Party acknowledges that it may receive Confidential Information of the other Party.
8.2 Use and Disclosure of Confidential Information.
(a) Each Recipient will hold and maintain in confidence any 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 that (i) except in connection with disclosure in the ordinary course of an examination by any such regulatory authority, the Party subject to such Applicable Law shall 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) the Party subject to such Applicable Law shall disclose Confidential Information of the Discloser only to the extent required by such Applicable Law.
(c) Each Recipient will (i) limit access to the Discloser’s Confidential Information to those Representatives 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 8.
(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 Discloser of this event within a reasonable time of becoming aware, and in any event within the time period required by Applicable Law.
8.3 Survival. This Section 8 survives termination or expiration of this Agreement.
- INTELLECTUAL PROPERTY RIGHTS.
9.1 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 any 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 shall be construed as constituting a transfer or an assignment by one Party to the other Party of any 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 Intellectual Property Rights. There are no implied licenses granted under this Agreement.
9.2 License. Balance grants to Merchant 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 Merchant to use the Services in accordance with this Agreement.
9.3 Publicity. Notwithstanding anything to the contrary, Merchant grants Balance the right to disclose the name of Merchant and the existence of the relationship between Merchant and Balance for purposes of marketing and advertising the Balance’s Services.
9.4 Feedback. Merchant 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, Merchant grants Balance an irrevocable, perpetual, royalty-free right to use and disclose any Feedback for any purpose.
- REPRESENTATIONS AND WARRANTIES.
10.1 Merchant represents and warrants to Balance at the commencement of this Agreement and throughout the Term that: (a) this Agreement is valid, binding, and enforceable against Merchant in accordance with its terms; (b) Merchant has the full power and authority to execute and deliver this Agreement and to perform all its obligations under this Agreement; (c) Merchant is able to pay its debts as they become due; and (d) Merchant is in compliance with Applicable Law.
- INDEMNIFICATION.
11.1 Indemnification. Merchant will indemnify, defend and hold harmless Balance, 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:
(a) Merchant’s breach of any representation, warranty, covenant or obligation under this Agreement;
(b) gross negligence, fraud or willful misconduct on the part of Merchant, its Affiliates, or their respective Representatives (“Associated Parties”);
(c) any actions taken by an Indemnified Party in accordance with or in reliance upon information or instructions provided by Merchant 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 Merchant.
The defense obligation of Merchant attaches if the claim or demand alleges any of the foregoing violations, breaches, acts or omissions.
- LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES.
12.1 LIMITATION OF LIABILITY. IN NO EVENT WILL BALANCE, ITS AFFILIATES OR THEIR RESPECTIVE REPRESENTATIVES BE LIABLE TO MERCHANT 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. THE TOTAL LIABILITY OF BALANCE TO MERCHANT , 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.
12.2 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 ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
- TERM AND TERMINATION.
13.1 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 Merchant, by providing at least 30 days’ advance notice to Merchant of any such fee variation.
2.2 Termination and Suspension.
(a) Each Party may terminate this Agreement immediately by providing written notice to the other Party if the other Party has materially breached this Agreement.
(b) Balance may suspend Merchant’s access to the Services immediately if Balance becomes aware of or reasonably suspects, in its sole discretion, that: (a) Merchant has breached this Agreement or any Balance policy; (b) Merchant is engaged in acts or practices that are unfair, deceptive, abusive or unlawful; (c) Merchant is, or is likely to become, bankrupt or insolvent; (d) Merchant’s use of the 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 Services have or may have been compromised. In such an event Balance will provide Merchant 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 Merchant.
(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 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 renders 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.
13.3 Rights and Obligations upon Termination.
(a) Upon expiration or termination of this Agreement, Merchant’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) 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 Merchant’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 5.4.
- MISCELLANEOUS
14.1 Notices. 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 hello@getbalance.com. For Merchant, the notice addresses are as provided during the enrollment process to the Services. A Party may modify its notice address by providing notice of this change to the other Party.
14.2 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 Merchant is responsible for monitoring this web page for amendments, although Balance will notify Merchant of any amendments that Balance deems material. Merchant’s subsequent access and use of the Balance Platform or use of the Services constitutes Merchant’s consent and agreement to such amendments.
14.3 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). Merchant may not assign this Agreement to any third party without the prior written consent of Balance. Any purported assignment contrary to this section shall be void.
14.4 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.
14.5 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.
14.6 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 or phone service, or for any other cause reasonably beyond the control of Balance.
14.7 Relationship of Parties. Each Party agrees that, except as with respect to Balance acting as the authorized agent of Merchant, 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. Merchant does not have any authority of any kind to bind Balance.
14.8 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.
14.9 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.
14.10 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 Merchant’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 Merchant and Balance or the parent companies of Merchant or Balance, wholly or majority owned subsidiaries, affiliates, predecessors, successors, assigns, agents, contractors, employees, officers, directors or representatives arising from any transaction between Merchant 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.
MERCHANT MAY OPT-OUT OF THIS ARBITRATION PROVISION WITHIN THIRTY (30) DAYS OF THE DATE MERCHANT 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, MERCHANTT ACKNOWLEDGES THAT NEITHER MERCHANT 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 MERCHANT 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 MERCHANT’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, info@jamsadr.com, http://www.jamsadr.com, or 1-800-352-5267; or (b) for AAA, 1633 Broadway, 10th Floor, New York, NY 10019, websitemail@adr.org, http://www.adr.org, or 1-800-778-7879.
If Merchant’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 Merchant requests a hearing and the arbitrator determines that a hearing is necessary. If Merchant’s claim exceeds US$10,000, Merchant’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. Merchant may seek a waiver of the initial filing fee or any other fees incurred in arbitration. IF MERCHANT BELIEVES MERCHANT CANNOT PAY OR MERCHANT WILL NOT BE ABLE TO PAY THE FILING FEE OR OTHER FEES REQUIRED TO INITIATE ARBITRATION, NOW OR IN THE FUTURE, BALANCE RECOMMENDS Merchant 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.
14.11 Construction. The headings contained in this Agreement are inserted for convenience only and shall 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 or to terms incorporated by reference will be deemed to mean that URL and those terms as may be updated from time to time.
14.12 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.
- DEFINITIONS.
“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.
“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, , plans for future development and new product or service concepts, 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 by the Recipient 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 documented as having been 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 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.