Program End Customer Balance Terms

Program End Customers Balance Terms

Last updated: April 1, 2024

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.

These Program End Customers Balance Terms (this “Agreement”) are a contract between Balance Payments, Inc., a Delaware corporation (“Balance,” “our,” “we,” or “us”) and the end customers (the buyers, as described below) of Balance’s Services in facilitating the Program which use the Platform (referred to as “Company”, “you” or “your” in this Agreement).

This Agreement incorporates the Balance Privacy Policy. Capitalized terms are defined inline (or in the Program End Customer Balance Agreement incorporating this Agreement by reference and link hereto, and accepted by a representative of the Company. Each of Balance and you is a Party, and Balance and you are, collectively, the Parties. By accessing or using the Services, by any person on your behalf, you agree to be bound by this Agreement. The person agreeing to this Agreement represents that such person has the power and authority to bind you - the entity on whose behalf such person is agreeing - to this Agreement.  

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

This Agreement is subject to your successful completion and meeting the KYC, due diligence and onboarding processes by Balance, any third party service providers Balance uses to perform its assessment and provide the Services to you or by Payment Service Partner (as defined below).

1. BALANCE SERVICES

1.1 Balance has developed a proprietary software solution (“Platform”) to facilitate online deferred payment purchase programs offered by merchants, their franchises or marketplaces and their vendors (collectively “Balance Merchants”) to their customers, such as the Program, by making payment for such certain receivables owed by such end customers, and allowing such end customers to seamlessly track, manage and pay these certain deferred payables (the “Services”). Balance Merchants may sell their goods and services to you directly or through a third party marketplace/platform, and subject to the terms and conditions of this Agreement Balance may offer the Services in relation to your certain approved transactions through the Program (“Transactions”)to you directly or through a Balance Merchant. Transactions may be performed solely with the designated payment method or platform provided for end customers’ bookings through the Program (“Designated Payment Method”).

1.2 As the provider of the Services, Balance does not own, control, offer or manage any accommodations or other goods or services offered or provided by a Balance Merchant ("Listing”), Balance is not a party to any contracts entered into directly between a Balance Merchant and you or the end users of their services, nor is Balance a real-estate broker, travel agency, or insurer.    

1.3 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 access and use the Platform for Company's internal business needs. You will register an online account for the purpose of using the Platform. 

1.4 Balance may support the Program in collaboration with third parties that provide financial services, such as a third party responsible for issuing the Designated Payment Method for the facilitation of the Program (“Payment Service Partner”). Your engagement with the Payment Service Partner for use of a Designated Payment Method, and any financial partners or other third party providers used by the Payment Service Partner to provide its services is subject to separate agreements, to which Balance is not a party, and is not liable for any breach of such agreement terms by you, by Payment Service Partner or by any other third party provider.  

1.5 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: (a) Company violate this Agreement or any Balance policy, or any agreements between you and a Balance Merchant, provider of Third Party Products, or a Payment Service Partner; (b) Company is engaged in acts or practices that are unfair, deceptive, abusive or unlawful; (c) Company is, or is likely to become, bankrupt or insolvent; (d) Company’s use of the Services places an unreasonable burden or risk on the 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. Your access to the Services is dependent on your continued meeting of our due diligence requirements, and subject to 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 perform its assessment and provide the Services to you or by Payment Service Partner. Balance will provide you 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 you with a written notice.

1.6 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. Balance may modify or limit the Services at Balance’s sole discretion for any purpose deemed appropriate by Balance. 

2. YOUR USE OF THE SERVICES

2.1 You agree to use the services only for commercial, business, or non-profit purposes.  Individual use of the Services, whether for personal, family, household or other purposes, is not permitted. 

2.2.  Your use of the Services for Transactions under the Program is subject to the deferred purchase limit approved by Balance for your Platform account (“Purchase Limit”), and Balance’s specific approval of each Transaction you attempt to make via the Program. The initial amount of your Purchase Limit will be sent to you by email upon your qualification for the Program, and its amount will be reviewed and may change from time to time in Balance’s sole discretion. Balance may display the Purchase Limit, merely as a business convenience to you, and without being construed as a commitment or promise or obligation of any kind, or a derogation of any rights available to Balance. While Balance’s normal practice is to not change the Purchase Limit for 90 days, Balance reserves the right at its sole discretion to adjust (including up to zero) the Purchase Limit at any time and for any reason without notice. Balance shall not be under any obligation to approve Transactions, and reserves the right to decline to purchase a Receivable which Merchant has offered or will offer, and to rescind an offer to purchase a Receivable, for any reason. 

2.3 You must and hereby undertake to 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 You acknowledge that you are solely responsible and liable to Balance for any actions or failure to act on the part of any Company employee, agent representative or affiliate, or any other user of the Program, a Designated Payment Method or the Platform on your behalf, or using any credentials associated with your account with the Program the Payment Service Partner or the Platform, and for any Charges or other amounts owed by you to Balance according to this agreement in connection to such use.

2.5 Balance, our Payment Services Partner  or a Balance Merchant may request certain information from you in order to assess whether Balance should provide the Services to facilitate your Transactions with Balance Merchants.  You represent and warrant that the information you provide to us, to the Payments Services Partner 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 the Payment Services Partner or a Balance Merchant facilitating a Transaction 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 Payment Services Partner or Balance Merchant). 

2.6 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, Payments Service Partner, a buyer, or any other third party; (b) promptly notify Balance of any change in the contact information associated with your account on the Platform, as well as of the actual or suspected loss, theft, breach of exposure of any Designated Payment Method or your Platform account, and take appropriate measures to prevent unauthorized Transactions; and (c) inform Balance at least 30 days’ prior to any material change to your business (including any change of control).

2.7 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.

2.8 When you order, reserve or book a Listing (collectively “booking”), you are agreeing to pay all charges for your booking including the Listing price, applicable fees (like service fees, program participation fees, banking fees & charges, bank debit and ACH debit fees, cancellation fees, etc) taxes, and any other items identified prior or during checkout (collectively, “Total Price”). When you receive the booking confirmation, a contract for your use of the Listing (a "Reservation") is formed directly between you and the Balance Merchant. In addition to this Agreement, you will be subject to, and responsible for complying with, all terms of the Reservation, including without limitation, the cancellation policy and any other rules, standards, policies, or requirements identified in the Listing or during checkout that apply to the Reservation. It is your responsibility to read and understand these rules, standards, policies, and requirements prior to booking a Listing. A payment for a Transaction will be made for the relevant Balance Merchant that accepts payments by the Designated Payment Method in the amount of the Total Price of a Listing (“Charge”). You are also agreeing that Balance (or any third-party payment processors designated by Balance) may charge the Payment Method associated with your Platform account used for booking a Listing, such as credit card, debit card or bank account for the Total Price. 

2.9 Your ability to use the Service may change from time-to-time. Balance does not guarantee the availability of the Services.  

3. BANK ACCOUNT

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, and link it to or authorize it for use via your Platform account (“Bank Account”). The Bank Account must be able to accept incoming debits using the Automated Clearinghouse network governed by the rules established by (ACH) the National Automated Clearinghouse Association (NACHA) in order to use the Services. You must maintain the Bank Account, and agree to notify Balance in writing 14 days in advance of any change to the Bank 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, and you hereby authorize Balance or any related third party provider of Third Party Products to debit funds from the Bank Account using ACH.

3.3 To unlink the Bank Account, you must provide us with a thirty-(30)-day advanced notice and pay all amounts owed to Balance in connection to the Services immediately, including Charges and other amounts that may be included in future Periodic Statements. Withdrawal of a debit authorization does not terminate the Agreement or your obligation to pay all amounts owed under this Agreement.   

4. CREDIT REPORT DISCLOSURE AND AUTHORIZATION

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 and the Company’s beneficial owner/s’ credit score, including their FICO score, and to make multiple inquiries on your and their 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: [email protected].

5. PAYMENT AND EXTENDED PAYMENT TERMS

5.1 At the end of each Billing Cycle Balance will share on your Platform account a periodic statement identifying Charges and other amounts owed by you to Balance in accordance with the terms of this Agreement, during that Billing Cycle, or credited to your account (“Periodic Statement”). The total amount stated in the Periodic Statements will be due by Company to Balance, in accordance with the Payment Terms. All Charges and other amounts owed under the Periodic Statement not received by Balance when due, will be subject to a late charge of 1.5% per month compounded annually. Any failure to pay any amounts owed to Balance under the Periodic Statement when required is a material breach of the Agreement.

5.2 Any correspondent bank fees or any similar fees charged by the bank in connection with payments made by Company to Balance, shall be borne by the Company.

5.3 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, and 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 Periodic Statement balance. Any offer of Extended Payment Terms will be provided to you by us or our agent, will be in writing including notification on the Balance Merchant’s Program 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. 

5.4 The amount which Balance may provide for an Extended Payment Terms transaction is contingent on the review of any factors considered relevant by Balance, and any information requested by Balance and being provided to it. These may include, for example (and not by way of limitation), the information available to Balance in relation to a Transaction or any of the parties involved thereto, the financial condition of a party’s business, its ability to meet its obligations, including in relation to a Transaction and this Agreement, market and macro-economic factors, the condition of Balance's business, as well as the underlying purpose of any transaction.

5.5 Discretion. Notwithstanding anything to the contrary, Balance, in its sole and absolute discretion, will determine whether or not to provide Extended Payment Terms for a Transaction, and Balance will under no circumstances be liable to you for Balance’s failure or refusal to provide Extended Payment Terms for any Transaction, or any portion thereof.

5.6 You hereby represent to us that you are not subject to or restricted by any receivership, insolvency or bankruptcy proceeding.

5.6 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. Accordingly, you acknowledge that we may bring suit to collect any such amounts. 

6. THIRD PARTY PRODUCTS

Balance may use third party products and services (collectively, “Third Party Products”) as part of its delivery of the Services, including but not limited to, third parties that provide financial services, cloud infrastructure, and hosting services. Balance may also collaborate with other parties supporting the Program, such as a Payment Services Partner, whose products and services in connection to your participation in the Program are also Third Party Products. 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. Balance is not a party to your agreement with any provider of Third Party Products and is not liable for any breach of such terms by Company or by the applicable provider of Third Party Products. 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.  

7. BALANCE MERCHANTS

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 or facilitate the use of 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.  

8. DATA

You understand and agree that: (a) the Service hosts, processes, and otherwise stores data you input on servers located in the United States; (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; and (c) Balance may share relevant information with the providers of Third Party Products in order to provide you with the Services or with the Payment Service Partner we collaborate with to support the Program.

9. INTELLECTUAL PROPERTY RIGHTS

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. 

10. WARRANTIES; DISCLAIMERS; LIMITATION OF LIABILITY. 

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. 

11. INDEMNIFICATION

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.

12. CREDIT TERMS AND LATE FEES

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.    

13. COLLECTIONS

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.

14. COMMUNICATIONS

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.  

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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 or via the Platform, and the notices 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. PUBLICITY

Balance may issue publicity or general marketing communications concerning its involvement with the Company.

16. TERM AND TERMINATION

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.  

17. CONFIDENTIALITY

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. 

18. ARBITRATION AGREEMENT AND CLASS ACTION WAIVER

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. 

19. GENERAL

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.

18.9 Set Off. In addition to any rights and remedies provided or available to Balance under this Agreement and by law, Balance shall have the right in its sole discretion, without prior notice to you (any such notice being expressly waived by you to the extent permitted by applicable law) to recoup, set off or otherwise credit against any other amounts payable by Balance or its affiliates to you all present and future amounts owed by you to Balance or its affiliates, whether arising from these Agreement or any other transaction between Balance and you or your affiliates, and whether or not related to this Agreement.

Questions or Additional Information

If You have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to [email protected].