Balance End User Agreement

Balance End User Agreement

Last updated: April 17, 2023

PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN US ARE RESOLVED, WHICH INCLUDE A CLASS ACTION WAIVER. PLEASE READ THESE PROVISIONS BEFORE USING THE WEBSITE OR OUR SERVICES.

This Balance End User 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,” “our,” “we,” or “us”) and the end users of Balance’s Services (the buyers, as described below). End users of Balance’s services are referred to as “you” or “your” in this Agreement.

This Agreement incorporates the Balance Privacy Policy. Capitalized terms are defined inline. Each of Balance and you is a Party, and Balance and you are, collectively, the Parties. By accessing or using the Services you agree to be bound by this Agreement. You represent that you have the power and authority to bind the entity on whose behalf you are agreeing to this Agreement.

Your use of the Services must at all times be in compliance with this Agreement.

1. BALANCE SERVICES
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   1.1 Balance has developed a software solution that enables merchants and marketplaces (“Balance Merchants”) to receive payments from customers, and to sell certain receivables owed by customers or to facilitate such a sale, as well as such other services as Balance may offer from time to time (collectively, the “Services”). Balance Merchants may sell their goods and services to you directly or through a third party marketplace, and Balance may offer the Services in relation to your transactions through any such Balance Merchant to you directly or through a Balance Merchant Balance may modify or limit the Services at Balance’s sole discretion for any purpose deemed appropriate by Balance.
   
   1.2 Balance has absolute discretion over your participation in the Services, and may block, suspend or terminate your access to the Services at any time, in whole or in part, if your use of the Services violates this Agreement or other agreements between you and Balance, including Balance's Privacy Policy. Your access to the Services may be dependent on your completing any required onboarding and timely and accurately responding to inquiries from Balance directly or through the Balance Merchant or any third party service providers about any other information Balance needs from you to provide the Services to you.
   
   1.3 You acknowledge and understand Balance’s ability to offer the Services to you may require that one or more Balance Merchants maintain a relationship in good standing with Balance. Balance reserves the right to terminate a relationship with a Balance Merchant at any time and for any reason.
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2. YOUR USE OF THE SERVICES
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   2.1 You agree to use the services only for commercial, business, or non-profit purposes. Individual use of the Services for personal, family, or household purposes is not permitted.
   
   2.2 During the term of this Agreement and subject to your compliance with this Agreement, Balance grants you a non-exclusive, non-transferable, non-sublicensable, limited, revocable right to: (a) purchase goods and services from Balance Merchants via the Services (“Transactions”); and (b) access extended or deferred payment terms for a Transaction, as made available by Balance or a Balance Merchant (“Extended Payment Terms”). For clarity, you use the Services when you initiate Transactions or access Extended Payment Terms.
   
   2.3 You must always use the Services in compliance with applicable law, including laws regarding privacy, intellectual property, and export control. You may not: (a) sell, resell, or lease the Services or access or attempt to access the Services by any means other than the interface we provide or authorize; (b) circumvent any access or use restrictions put into place to prevent certain uses of the Services or their related systems or networks; (c) use the Services to store, share or transmit content which is unlawful, infringing, harmful or which violates any person’s rights, including privacy rights and intellectual property rights; (d) store or transmit a virus, malware, or other malicious or harmful code or files through the Service; (e) interfere with or disrupt the integrity or performance of the Service; (f) disassemble, translate, reverse engineer , or otherwise attempt to derive source code or specific data from the Service, in whole or in part, nor will you use any mechanical, electronic, or other method to trace, decompile, disassemble, or identify the source code of, or specific data available through the Service or encourage or permit others to do so (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions).
   
   2.4 Balance or a Balance Merchant may request certain information from you in order to assess whether Balance should facilitate your Transactions with Balance Merchants (i.e., purchase receivables owed by you or that may be owed by you in the future) or whether Balance may offer you Extended Payment Terms. You represent and warrant that the information you provide to us, or to the Balance Merchant on our behalf, will be true, accurate, current, and complete, and that you have the legal right to provide it, and you acknowledge that we may rely in our Services concerning you on information provided to us by a Balance Merchant facilitating aTransaction with you. You agree to facilitate Balance's assessment of your ability to use the Services through timely providing necessary information and responding to any question from Balance or its designee (including the Balance Merchant).
   
   2.5 You agree to immediately (a) and fully cooperate with Balance to investigate any suspected illegal, fraudulent, or improper activity on the part of Balance Merchant, a buyer, or any other third party and (b) inform Balance at least 30 days’ prior to any material change to your business (including any change of control).
   
   2.6 You agree Balance does not sell goods or services to you and that Balance does not collect sales taxes from you and you do not owe such taxes to Balance. The Balance Merchant is solely responsible for the accuracy and collection of any calculated taxes charged to you.
   
   2.7 You agree that if you Participate in a Transaction with a Balance Merchant and that Balance Merchant sells or assigns all rights, title, and interest in a receivable to us that is owed by you to that Balance Merchant, we acquire and obtain all rights that the Balance Merchant has with respect to that sold receivable.
   
   2.8 Your ability to use the Service may change from time-to-time. Balance does not guarantee the availability of the Services.
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3. BANK ACCOUNT
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   3.1 To use the Services, we may require that you provide us with details about an account at a U.S. depository institution owned by you and held in your name. You must maintain this account and it must be able to accept incoming ACH debits in order to use the Services. You agree to notify Balance in writing 14 days in advance of any change to this account.
   3.2 You further agree that we may initiate an ACH debit from your account for any amounts owed to us by you or to correct any errors in prior ACH debits.
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4. Credit Report Disclosure and Authorization
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   By submitting an application to use certain of the Services, you authorize Balance to obtain credit reports and other information about you from consumer reporting agencies and other sources for any purposes. These purposes include, but are not limited to, evaluating your ability to repay, verifying information you provide to us, determining whether you qualify for any product or service offered by Balance, marketing to you, administering your account, to comply with applicable law, and any other purpose related to the Services.
   
   You also understand and agree this written authorization permits Balance to obtain your credit score, including your FICO score, and to make multiple inquiries on your credit report from one or more credit reporting agencies.
   
   You understand and authorize us to provide information about you to credit reporting agencies. If you fail to comply with any of the terms of any agreement you have with us, we may report this negative information to one or more credit reporting agencies, which may have a negative impact on your credit report. If you believe information we have given to a credit reporting agency is incorrect, please explain in writing the specific information you believe is incorrect and send it to us at: [contact address].
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5. EXTENDED PAYMENT TERMS
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   5.1 As part of the Services, Balance, in its sole discretion, may agree to offer Extended Payment Terms to you in connection with your use of the Services. For example, if we purchase a receivable from a Balance Merchant that reflects amounts owed by you to the Balance Merchant, we may allow you to extend the payment due date past the original due date reflected in the original invoice or agreement. Balance may decline to offer Extended Payment Terms or to offer Extended Payment Terms for only a portion of your outstanding balance. Any offer of Extended Payment Terms will be provided to you by us or our agent including a Balance Merchant, will be in writing including notification on the Balance Merchant’s website or platform. If you do not agree to these terms, you are not permitted to access Extended Payment Terms. Any offer of an Extended Payment Term is not a guarantee of a similar offer for future Transactions.
   
   5.2 Amounts owed to Balance through agreed-upon Extended Payment Terms reflect a debt owed by you to us that we may collect in accordance with applicable law.
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6. THIRD PARTY PRODUCTS
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   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.
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7. BALANCE MERCHANTS
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   7.1 Balance is a third party service provider to, and does not control, the Balance Merchants. Neither Balance nor the Balance Merchants have the power to bind the other party or incur obligations on the other party’s behalf. If you have an issue with a Balance Merchant or a good or service provided by a Balance Merchant, you need to contact the merchant directly, and not Balance. Balance does not endorse, recommend, warrant, or bear any responsibility for any representations made by Balance Merchants, or for any Balance Merchant’s implementation or use of the Services. Balance is not liable to you for any loss or damage that you suffer due to the actions (or inaction) of a Balance Merchant. For example, Balance has no responsibility for a Balance Merchant’s failure to honor contractual agreements or actual or implied warranties, deliver goods or services, delivery of faulty goods or services, delivery of timely goods or services, errors in any documentation provided by a Balance Merchant, or providing inaccurate or faulty invoices created by entities other than Balance or based on information provided by such other entities.
   
   7.2 A Balance Merchant may appoint a third party to facilitate the completion of Transactions between you and the Balance Merchant. In such cases, the third party may communicate with you on the Balance Merchant’s behalf. These communications may identify both the Balance Merchant and the third party, and, where you have initiated multiple Transactions with Balance Merchants that have all appointed the same third party facilitator, that third party may use a single communication to communicate with you about all of these Transactions. An example of where this may occur is when multiple Balance Merchants sell products and services via a marketplace or a single third party platform. If you engage in multiple Transactions via the platform, the third party may provide you with a single consolidated invoice or receipt with respect to those Transactions, and these documents may be headed by the third party’s name. However, the presence of any third party, or any of the factual scenarios described above, does not change the fact that a Transaction is between you and the relevant Balance Merchant. The Balance Merchant is the entity responsible for providing the product or service that you purchase, and if there are any issues, you will need to contact the Balance Merchant directly. Any such issues do not eliminate or reduce any amounts owed to Balance.
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8. DATA
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   You understand and agree that: (a) the Service hosts, processes, and otherwise stores data you input on servers located in the United States; and (b) Balance may use the cloud infrastructure of third party providers for its Service if such providers meet or exceed the safeguards for the protection and security of your Data agreed upon by Balance under our Privacy Policy. Please see the Balance Privacy Policy for a detailed description of Balance’s data practices.
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9. INTELLECTUAL PROPERTY RIGHTS
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   9.1 All rights not expressly granted to you under this Agreement are reserved by Balance and its licensors. This Agreement does not give you an interest in or to Balance’s intellectual property rights, and nothing in this
   Agreement constitutes a waiver of Balance’s intellectual property rights under any law. “Balance Payments”, and all logos related to Balance, are either trademarks or registered trademarks of Balance or its licensors. You may not copy, imitate or use them without Balance's prior written consent. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Balance. You may not copy, imitate, or use them without our prior written consent. All right, title and interest in and to the Balance website, any content thereon, the Services, the technology related to the Services, and any and all technology and any content created or derived from any of the foregoing, is the exclusive property of Balance and its licensors.
   
   9.2 If you provide any feedback, comments or suggestions ("Feedback"), you grant Balance a royalty-free, fully paid up, worldwide, perpetual and irrevocable license to incorporate the Feedback into the Services or any of our current or future products or services.
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10. WARRANTIES; DISCLAIMERS; LIMITATION OF LIABILITY.
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    10.1 You represent and warrant that: (i) you have the authority to enter into this Agreement and perform your obligations under this Agreement, (ii) this Agreement does not conflict with any other agreement you are subject to and bound by, (iii) you will use the Services on behalf of a United States-domiciled or Canadian-domiciled business entity; and (iv) you do not conduct business for any unlawful purpose.
    
    10.2 Balance provides the Services on an “as is” basis, without representations or warranties of any kind, and Balance expressly disclaims all warranties, statutory, express, implied or otherwise, including warranties of accuracy, merchantability, non-infringement and fitness for a particular purpose. Balance further disclaims any warranty that the operation of the Services will be uninterrupted or error-free. To the maximum extent permitted by law: (a) in no event will Balance be liable for lost profits, loss of use, loss of data (including end-user information), cost of procurement of substitute goods or services, or for special, punitive, incidental, indirect or consequential damages, however caused, and on any theory of liability, whether in contract, tort (including negligence and strict liability), or otherwise, and whether or not advised of the possibility of such damages; and (b) Balance’s maximum aggregate liability under, arising out of or relating to this Agreement will not exceed $1000.
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11. INDEMNIFICATION
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    You agree to defend, indemnify and hold Balance harmless (including payment of reasonable attorney’s fees) against any claim or demand made or incurred by any third party, including but not limited to a Balance Merchant, arising out of or relating to (a) your breach of any provision of this Agreement; (b) your use of the Services or our website; (c) your obligations to pay fees or fines to Balance; (d) negligence or willful misconduct of your affiliates, employees, contractors, or agents; and (e) all third-party indemnity obligations Balance incurs as a direct or indirect result of your acts or omissions.
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12. CREDIT TERMS AND LATE FEES
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    You agree that moneys owed to us based on your use of the Services are a debt owed by you to us. You agree that moneys owed to us by you are due to us on or after the due date. If you fail to pay us amounts owed by the due date stated on an invoice or in other written agreements or communications, you agree to pay us a late fee, in the sum indicated in this Agreement or in any agreement between you and the relevant Balance Merchant, per month that the debt, or a portion thereof, remains unpaid and outstanding.
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13. COLLECTIONS
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    In connection with your use of the Services, you may be required to pay us money by a due date, provided to you in writing. If you fail to make a required payment to us, you acknowledge and agree that Balance or its agents may pursue any and all legal means to collect funds owed to us by you. If your company is a sole proprietorship, we reserve the right to seek to collect funds from you personally.
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14. COMMUNICATIONS
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    14.1 You agree that using the Services available to you constitutes your electronic signature. You also agree that your electronic consent has and will have the same legal effect as a physical signature.
    
    14.2 You agree that we and any agents acting on our behalf may send notices to, receive communications from, or otherwise contact, including via text or SMS, You or any of your employees or representatives. We may send notices or otherwise communicate with you using the contact information provided to us, our agents, or a Balance Merchant, including phone numbers associated with mobile phones or devices, and may use autodialing or automated voice messaging technology.
    
    14.3 You agree that Balance may monitor or record your interactions or activities with us. Balance may also monitor or record any communications for quality assurance or other reasonable business purposes.
    
    14.4 You agree that we will send notices to you via contact information provided to us by you or a Balance Merchant and are considered received 24 hours after they are sent. You understand that you may not use the Services unless you consent to receive all communications electronically. If you withdraw consent, you will not be able to use the Services. You further agree to provide Balance with your current contact information.
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15. TERM AND TERMINATION
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    This Agreement commences when you start using the Services and continues until you stop using the Services, unless earlier terminated by either Balance or you. You may cease using the Services at any time. Balance may suspend your ability to use the Services or terminate this Agreement at any time. Upon termination of this Agreement, your right to use the Services will immediately cease, except that all obligations, responsibilities and liabilities deriving from actions prior to termination or expiration of this Agreement will survive its termination or expiration. This exception includes, but is not limited to, any payments owed to Balance for your prior use of the Services.
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16. CONFIDENTIALITY
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    16.1 Meaning of Confidential Information. As used in this Agreement, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Confidential Information will not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without use of, or reference to, the Disclosing Party’s Confidential Information.
    
    16.2 Standard of Care. Except as otherwise permitted in writing by Disclosing Party, Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care), (b) not disclose or use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, and (c) limit access to Confidential Information of Disclosing Party to those of its employees, contractors, advisors, and agents with a need to know or who need access for purposes consistent with this Agreement and who are bound by confidentiality obligations at least as stringent to those in this Agreement.
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17. ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
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    PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL IMPACT HOW LEGAL CLAIMS YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, UNLESS YOU OPT OUT AS SET FORTH BELOW.
    
    17.1 Dispute Resolution. We hope that you are completely satisfied with our Services. If you are not satisfied, please contact us. We will make every reasonable effort to resolve any disagreements that you have with us. However, if we are unable to resolve any dispute that arises in connection with your transaction, the Services, or this Agreement, to your satisfaction, this section governs the dispute resolution process.
    
    17.2 You and We Agree to Arbitrate Disputes Between Us. Either you or we may, at either’s sole election, require that the sole and exclusive forum for resolution of a Dispute be final and binding arbitration pursuant to this Binding Arbitration section. Disputes are subject to arbitration regardless of whether they arise from contract, tort, a constitution, statute, common law, principles of equity, or any other legal theory. Disputes include matters arising as initial claims, counterclaims, cross-claims, third-party claims, or otherwise. Nothing in this section affects the right of a party to seek temporary injunctive or declaratory relief from a court of appropriate jurisdiction in conjunction with a Dispute that is subject to arbitration in order to prevent imminent and irreparable harm.
    
    The scope of this Binding Arbitration section is to be given the broadest possible interpretation that is enforceable. You and we agree that this Agreement is entered into pursuant to a transaction in interstate commerce, and thus the Federal Arbitration Act, 9 U.S.C. § 1, et seq., governs the interpretation and enforcement of this Binding Arbitration section.
    
    17.3 Arbitration Procedures. In the event you or we elect to resolve a Dispute through final and binding arbitration pursuant to the terms of this section, the Dispute will be resolved by arbitration before a single arbitrator, as provided in this section. All issues will be for the arbitrator to decide, except issues relating to arbitrability, the scope or enforceability of this Binding Arbitration section, or the interpretation or enforceability of the Prohibition of Class and Representative Actions and Non-Individualized Relief provision below shall be for a court of competent jurisdiction to decide.
    
    Arbitration will be administered by JAMS or the American Arbitration Association (“AAA”), at the election of the party initiating arbitration. The arbitration shall be conducted according to, and the location of the arbitration shall be determined in accordance with, AAA’s Commercial Arbitration Rules (if AAA is chosen as the administrator) or JAMS’s Comprehensive Arbitration Rules & Procedures or Streamlined Arbitration Rules & Procedures depending on the amount in dispute (if JAMS is chosen as the administrator), except to the extent such rules and procedures conflict with this Binding Arbitration section or any countervailing applicable law. You may review JAMS’s rules and procedures by visiting its website at www.jamsadr.com. You may review AAA’s rules and procedures by visiting its website at www.adr.org. In the case of a conflict between the rules and procedures of the administrator and this Binding Arbitration section, this section shall control, subject to countervailing applicable law, unless all parties to the arbitration consent to have the rules and procedures of the administrator apply.
    
    If the value of the relief sought in arbitration is $50,000 or less, you or we may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and us subject to the discretion of the arbitrator to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by you and/or us, unless the arbitrator requires otherwise.
    
    Either you or we may commence arbitration by providing a written demand for arbitration to JAMS or AAA and the other party detailing the nature of the Dispute and the relief requested. The arbitrator will apply the substantive law as described in Section 3.4. Each party shall bear the expense of its own attorneys’ fees and its out-of-pocket costs incurred in connection with the arbitration, except the appropriate apportionment of any administrative fees and expenses or arbitrator fees and expenses associated with the arbitration shall be determined by the arbitrator in the arbitration award. The award of the arbitrator shall be final and binding, and judgment on the award may be entered in any court of competent jurisdiction.
    
    17.4 Prohibition of Class and Representative Actions and Non-Individualized Relief. NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS A PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED OR COULD HAVE BEEN ASSERTED IN COURT ON A PURPORTED CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS. YOU AND WE ALSO AGREE NOT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION AGAINST US OR YOU. UNLESS CONSENTED TO IN WRITING BY ALL PARTIES TO THE ARBITRATION: (1) NO PARTY TO THE ARBITRATION MAY JOIN, CONSOLIDATE, OR OTHERWISE BRING CLAIMS FOR OR ON BEHALF OF TWO OR MORE INDIVIDUALS OR ENTITIES IN THE SAME ARBITRATION UNLESS THOSE PERSONS OR ENTITIES ARE PARTIES TO A SINGLE TRANSACTION, AND (2) AN AWARD IN ARBITRATION SHALL DETERMINE THE RIGHTS AND OBLIGATIONS OF THE NAMED PARTIES ONLY, AND ONLY WITH RESPECT TO THE CLAIMS IN ARBITRATION, AND SHALL NOT (A) DETERMINE THE RIGHTS, OBLIGATIONS, OR INTERESTS OF ANYONE OTHER THAN A NAMED PARTY, OR RESOLVE ANY CLAIM OF ANYONE OTHER THAN A NAMED PARTY; NOR (B) MAKE AN AWARD FOR THE BENEFIT OF, OR AGAINST, ANYONE OTHER THAN A NAMED PARTY. NO ADMINISTRATOR OR ARBITRATOR SHALL HAVE THE POWER OR AUTHORITY TO WAIVE, MODIFY, OR FAIL TO ENFORCE THIS PROVISION, AND ANY ATTEMPT TO DO SO, WHETHER BY RULE, POLICY, ARBITRATION DECISION OR OTHERWISE, SHALL BE INVALID AND UNENFORCEABLE. ANY CHALLENGE TO THE VALIDITY OF THIS PROVISION SHALL BE DETERMINED EXCLUSIVELY BY A COURT OF COMPETENT JURISDICTION AND NOT BY JAMS, AAA, OR ANY ARBITRATOR.
    
    17.5 Severability. If any portion of this Binding Arbitration section, other than the Prohibition of Class and Representative Actions and Non-Individualized Relief is deemed invalid or unenforceable, the remaining portions of this section shall nevertheless remain valid and in force. If a court decides that any of the provisions of the Prohibition of Class and Representative Actions and Non-Individualized Relief is invalid or unenforceable because it would prevent the exercise of a non-waivable right to pursue public injunctive relief and that decision is not overturned after any rights to appeal are exhausted, then any claim regarding the entitlement to such relief (and only that form of relief) must be severed from arbitration and may be litigated in court. Also, if a court decides that any of the provisions of the Prohibition of Class and Representative Actions and Non-Individualized Relief is invalid or unenforceable for any other reason and that decision is not overturned after any rights to appeal are exhausted, then any claim that may not be arbitrated in accordance with the provisions of the Prohibition of Class and Representative Actions and Non-Individualized Relief that are held to be invalid or unenforceable must be severed from arbitration and may be litigated in court. For the sake of clarity, in no event shall any court decision finding a provision of the Prohibition of Class and Representative Actions and Non-Individualized Relief invalid or unenforceable be deemed to authorize an arbitrator to adjudicate claims or make awards beyond those authorized in this Binding Arbitration section.
    
    17.6 Future Amendments to this Binding Arbitration Section. Notwithstanding any provision in this Agreement to the contrary, you and we agree that if we make any amendment to this Arbitration section (other than an amendment to any notice address or website link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by this Binding Arbitration section that have arisen or may arise between you and us.
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18. GENERAL
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    18.1 Governing Law and Jurisdiction. This Agreement is governed by the laws of the state of Delaware excluding rules as to choice and conflicts of law and, subject to Section 17, the courts in the state of Wilmington County, Delaware will have exclusive jurisdiction; however, Balance or its affiliates may bring suit for payment in the country where You are located. You and Balance agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.
    
    18.2 Changes to Agreement. Unless otherwise required by law, Balance may change the Agreement from time to time, and such change will become effective upon the date on which it is posted on the Balance website. You are responsible for checking the website regularly for such changes. By continuing to access or use the Services you agree to be bound by the revised Agreement.
    
    18.3 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.
    
    18.4 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 this Agreement.
    
    18.5 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 Agreement
    
    18.6 Relationship. Nothing in this Agreement 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. You do not have any authority of any kind to bind Balance.
    
    18.7 Entire Agreement. This Agreement contains the entire agreement between Balance and you relating to your use of the Services and supersedes any and all prior agreements between Balance and you in relation to the subject matter of this Agreement. You confirm that, in agreeing to accept this Agreement, You have not relied on any representation except made by Balance.
    
    18.8 Assignment; No Third Party Rights. You may not assign your rights or delegate your obligations under this Agreement without Balance’s prior written consent. Any purported assignment contrary to this section will be null and void. Balance may assign this Agreement and its rights hereunder without your consent. 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. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ respective successors and permitted assigns.