This Merchant Services Agreement (“Agreement”) is a binding legal agreement between Balance Payments, Inc, a company incorporated under the laws of Delaware (“Balance”, “us”, or “we”) and the entity or person (“Merchant”, “you” or “your”) who commenced the registration as a Merchant for a Balance account on our dedicated page on or Website in order to receive certain payment processing and related services (each, a “Service”).
This Agreement describes the terms and conditions that apply to your use of the Services.
If you do not understand any of the terms of this Agreement, please contact us through the following address: firstname.lastname@example.org before using the Services.
You may not access or use any Services unless you expressly agree to be bound by and abide by all of the terms and conditions in this Agreement.
By Clicking “I Agree”, affixing your digital signature or otherwise affirmatively expressing your consent in the manners which are made available as part of our services, or by using the services, you hereby consent to all of the terms of this Agreement.
You hereby undertake that the Agreement is a binding legal contract between you, the merchant, and us, Balance.
Please be aware that for the abundance of caution we may require you to affect and sign certain documents in electronic form.
1. Definitions and Interpretation. When used herein, each of the following terms shall have the meaning attributed to it below:
1.1. Adjustment means any adjustment made by Balance to rectify any payment errors taking place in the course of any Transaction or attempted Transaction, including in connection with any cancellation prior to completion of the Transaction, Refund, Cancellation, chargeback or debit of a Transaction by a Customer or Card or Transaction Scheme because of such Transaction being invalid, disputed, unauthorised (or there are grounds to believe it was not authorized), suspicious, the goods or services were not delivered at all or as agreed, or otherwise for any reason;
1.2. Applicable Law means any and all applicable laws, legislation, by-laws, decisions, notices, statutes, orders, rules (including any rules or decisions of court or any rules from a card or payment scheme), regulations, directives, Know Your Customer, Know Your Business, Anti‐Money Laundering, data privacy and all related or similar laws, edicts, schemes, warrants, local government rules, statutory instruments or other delegated or subordinate legislation and any directions, codes of practice issued pursuant to any legislation, voluntary codes, other instruments made or to be made under any statute and codes of conduct and mandatory guidelines (including in all cases those that relate to audit, accounting or financial reporting) and which have legal effect, whether local, national, international or otherwise existing from time to time, together with any similar instrument having legal effect in the relevant circumstances;
1.3. Assessment means any assessment, fine, or similar charge of any nature which a Card or Transaction Scheme levies on the Merchant or Balance at any time, directly or indirectly in respect of a Transaction, Adjustment;
1.4. Cancellation means cancellation of a Transaction either (i) after a request for a charge and prior to remittance of the Settlement Amount in connection with such Transaction; or (ii) following remittance of the Settlement Amount and prior to receipt of the Transaction amount from the Customer.
1.5. Card or Transaction Scheme means any card payment systems or bank payment scheme;
1.6. Confidential Information means any information in whatever form, whether or not marked as “Confidential” or “Proprietary”, which is or should be reasonably be considered confidential including, without limitation, the terms of this Agreement, and any information relating to processes, practices, products, Customer lists, payment transactions processed hereunder, the accounts, finance or contractual arrangements or trade secrets of the other Party;
1.7. Customer means any natural or legal person entering into a Transaction through the Service in connection with operating a business;
1.8. Factored Transaction means a Transaction with a qualified Customer (as determined by Balance), with regard to which Balance agreed to provide the Services under Section 2.1.2.
1.9. Fees means the fees payable by the Merchant to Balance as set out in Schedule 1 to this Agreement;
1.10. Force Majeure means, in relation to either Party, any event or circumstances beyond the reasonable control of that Party including (without limitation) any acts of God, storm, earthquake, fire, flood, war, industrial action, vandalism, non-availability of any part of the network, governmental action, inclement weather conditions, atmospheric conditions and other causes of radio interference, failure or shortage of power or fuel supplies, and the acts or omissions or service failures of banking partners, Card or Transaction Schemes, communications operators, internet service providers or other third parties;
1.11. Intellectual Property Rights means any intellectual property rights of any nature, whether registered, registerable or otherwise, including patents, utility models, trademarks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, knowhow and any other intellectual property rights subsisting in computer software, computer programmes, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals, lists and procedures and particulars of customers, marketing methods and procedures and advertising literature, including the “look-and-feel” of any websites, and in each case all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these that may subsist anywhere in the world, in each case for their full term, together with any future rights and renewals or extensions;
1.12. Material Change means material change to the Merchant’s business (including any change of control or constitution on not less than 51% change in ownership), business model or the goods and/or services it sells;
1.13. Merchant Bank Account means an account with a duly authorised credit institution held in the name of the Merchant or a third party nominated by the Merchant (and in each case as acceptable to Balance), used to receive Settlement Amounts and pay Fees and other sums due to Balance hereunder;
1.14. Merchant Website means the website operated by or on behalf of the Merchant (as amended from time to time) through which Customers are able to enter into Transactions;
1.15. Payment Method means a payment method available from time to time for executing Transactions, including credit card, debit card, wire transfers, direct debit, and mailed checks;
1.16. Refund means a payment that is made to reverse or offset a Transaction;
1.17. Software means Balance’s software enabling the Service that is integrated into the Merchant Website (along with associated Technical Manuals and all relevant updates), and allowing for a Customer to enter into Transactions;
1.18. Technical Manuals means any technical and branding manuals and guidelines issued by Balance from time to time;
1.19. Transaction means a transaction entered into between a Customer and the Merchant on the Merchant Website through the Service; and
1.20. Transaction Data means all data processed by way of the Service and any data belonging to the Merchant and/or its Customers that a Customer or other third party sends to the Merchant Website to process a Transaction.
2. Balance Obligations
2.1. Balance shall make available the following services to Merchant (the "Services"):
2.1.1. enable Merchants to process payments made via Payment Methods, and settle all Transactions made to the Merchant, after deducting the Fees, on a daily basis; and
2.1.2. remit to Merchant the Settlement Amount in connection with Factored Transactions within 2 business days, and collect the Transaction amount from Customer in accordance with the agreed payment terms for such Factored Transaction.
2.1.3. Perform KYC, KYB and Anti‐Money Laundering checks and controls on Customers executing Transactions; and
2.1.4. provide appropriate levels of protection of Customers’ data in compliance with all Applicable Law including maintaining the confidentiality of all Customers’ data.
2.2. Balance shall provide the Services in accordance with the SLA attached as Schedule 2.
3. Merchant Obligations
3.1. In order to access the Services, the Merchant shall provide at least a reasonable level of protection of its network infrastructure in order to prevent any compromise of its systems and data, including without limitation, Customers’ data.
3.2. The Merchant must, at or before allowing a Customer to execute a Transaction, prominently and unequivocally inform the Customer of the:
3.2.1. Merchant's identity (including prominently displaying its registered name and any trading name on the Merchant Website) and address of its fixed place of business;
3.2.2. terms and conditions of sale including the Merchant's delivery policy, returns and cancellation policies (which policies shall at all times comply with Applicable Law);
3.2.3. date on, and currency in which, any charges will commence;
3.2.4. Merchant's complaints procedure, customer service email and telephone contact details; and
3.3. The unauthorized access or use of the Services by the Merchant (or any other person on its behalf) is expressly forbidden. This includes but is not limited to:
3.3.1. fraud, prohibited by Applicable Law, or any illegal activity;
3.3.2. a payment request for an illegal activity;
3.3.3. accessing, illegally or without authorization, computers, accounts or networks belonging to another person, or attempting to penetrate security measures of another system;
3.3.4. unauthorized access, alteration, destruction or disruption, or any attempt thereof to Balance’s data and Services; and
3.3.5. any form of attempted or actual money laundering.
3.4. The Merchant shall also agree to:
3.4.1. provide Customers with a clear and fair return and refund policy;
3.4.2. immediately and fully cooperate with Balance to investigate any suspected illegal, fraudulent, or improper activity on the part of the Merchant, a Customer, or any other third party;
3.4.3. inform Balance at least 30 days’ prior to any Material Change(s);
3.4.4. comply with reasonable instructions of Balance from time to time, including (but not limited to) as set out in the Technical Manuals;
3.4.5. neither offer nor receive payments as consideration for any of the following:
(a) prescription or non-prescription drugs;
(b) pornographic content or services;
(c) illegal downloads;
(d) illegal gambling;
(e) goods or services infringing Intellectual Property Rights of a third party;
(f) tobacco products, alcohol or firearms;
(g) purchase of digital currencies, loading of other e-money accounts;
(h) Ponzi schemes or similar fraudulent investment operations; or
(i) any goods or services prohibited by Applicable Law.
3.5. The Merchant acknowledges and agrees that:
3.5.1. Balance is a payment intermediary and is neither a bank nor a seller, agent or merchant in relation to the Merchant’s services and products; and
3.5.2. any dispute with Customer or other third party regarding any Merchant products and service is between the Merchant and such Customer or third party, and the Merchant shall indemnify Balance in respect of any loss, liability, claim, expenses of any kind (including legal and professional costs) suffered or incurred by Balance in relation to such dispute of the Merchant’s products or services.
3.6. The Merchant represents, warrants, and covenants that:
3.6.1. the business carried on by the Merchant is a legitimate, lawful business and the Merchant is not engaged, and will not engage, in any conduct or transactions which may be contrary to Applicable Law;
3.6.2. as of the Commencement Date it has provided to Balance all information requested by Balance and shall without delay provide Balance with updated information as applicable;
3.6.3. there is no claim, litigation proceeding or governmental investigation pending, threatened against or relating to the Merchant or businesses of the Merchant which does, or may reasonably be expected to, materially adversely affect the ability of the Merchant to enter into this Agreement or to carry out its obligations hereunder;
3.6.4. it will use the Services in accordance with the terms of this Agreement and Applicable Law, and shall not do any act that shall infringe the rights of any third party including the publishing or transmission of any materials contrary to Applicable Laws;
3.6.5. it has obtained and shall retain all valid licenses, consents, permissions and rights to use and, where necessary to license to Balance, any materials reasonably necessary for the fulfilment of all of its obligations under this Agreement, including any third party licenses and consents in respect of any of any software the Merchant operates;
3.6.6. Merchant’s use of the Services shall not cause Balance to infringe the rights, including any Intellectual Property Rights, of any third party; and
3.6.7. it will not do nor omit to do anything which is disreputable or which is capable of damaging the reputation or goodwill of Balance or a Payment Method.
4.1. All Transactions shall be settled for the Merchant by Balance to their Balance account and funds will be made available for withdrawal on a daily basis, by transferring the Transaction value to the Merchant Bank Account in accordance with Schedule 1, less the following:
4.1.1. any Fees deducted pursuant to paragraph 5.1; and
4.1.2. any Adjustments or Assessments.
(together the “Transaction Deductions”)
4.2. Unless otherwise agreed in writing by the Parties, Transaction value, after deduction of the Transaction Deductions (the "Settlement Amount"), will be settled and transferred to the Merchant Bank Account in [US$] (“Redemption Currency”). If the Redemption Currency differs from the currency in which the Transaction was executed, the funds due to the Merchant hereunder shall be transferred to the Merchant after being converted into the Redemption Currency at the then current exchange rate of Balance’s bank service provider.
4.3. Balance may exercise a lien over any Settlement Amount in the event of any dispute relating to an Adjustment. Once such dispute is resolved Balance shall discharge the lien and transfer the Settlement Amount (or part of the Settlement Amount, as appropriate) to the Merchant Bank Account.
4.4. Balance shall supply Merchant with an online dashboard enabling Merchant to view Transactions and Fees and issue reports in connection therewith.
5. Fees and Merchant Bank Account
5.1. In consideration of the Services, the Merchant shall pay the Fees to Balance. Balance shall make reports on Transaction values, Transaction Deductions and Settlement Amounts available to the Merchant.
5.2. The Fees are quoted exclusive of value added tax (“VAT”). In case VAT or any other sales tax is or becomes chargeable, Balance will add such tax to the amount payable but shall, where required, provide information on the net amount, the amount of tax and the tax rate applied.
5.3. The Merchant shall open and maintain the Merchant Bank Account throughout the term of this Agreement and for such period as may be required in order to comply with the provisions of this Agreement.
5.4. The Merchant will notify Balance in writing 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.
6. Intellectual Property Rights; Confidentiality
6.1. All intellectual property rights in the Services, Software and Technical Manuals and any part thereof, including any and all derivatives, changes and improvements thereof lie exclusively with Balance.
6.2. Merchant shall (i) not attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the Service or any part thereof for any purpose or use it to build a competitive service or product; (ii) not represent that it possesses any proprietary interest in Service, Software, Technical Manuals or any part or derivative thereof; (iii) not directly or indirectly, take any action to contest Balance's intellectual property rights or infringe them in any way; (iv) except as specifically permitted in writing by Balance, not use the name, trademarks, trade-names, and logos of Balance; (v) except as specifically permitted herein, not copy any part or content of the Services, reports or documentation other than for Merchant's own internal business purposes; (vi) not copy any features, functions or graphics of the Service or use it to build a competitive product or service; and (vii) not remove the copyright, trademark and other proprietary notices contained on or in Service, Software or Technical Manuals. Merchant shall take no action, directly or indirectly, to register Balance's trademarks (or their variation), domain names, or copyrights in its own name and shall provide commercially reasonable assistance to Balance to prevent the occurrence of such activity by any third parties.
6.3. All intellectual property rights in the Merchant Website and in any modifications, enhancements and derivatives thereof lie exclusively with Customer or its licensors.
6.4. The receiving party agrees (i) not to disclose the disclosing party’s Confidential Information to any third parties other than to its directors, employees, advisors, or consultants (collectively, its “Representatives”) on a “need to know” basis and provided that such Representatives are bound by confidentiality obligations not less restrictive than those contained herein; (ii) not to use or reproduce any of the disclosing party’s Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; (iii) to keep the disclosing party’s Confidential Information confidential using at least the same degree of care it uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care. Notwithstanding the foregoing, if the receiving party is required by legal process or applicable law, rule, or regulation to disclose any of the disclosing party’s Confidential Information, then prior to such disclosure, if legally allowed, receiving party will give prompt notice to the disclosing party so that it may seek a protective order or other appropriate relief. The confidentiality obligations hereunder shall expire five years from the date of termination or expiration of this Agreement (and with respect to trade secrets- in perpetuity) and shall supersede any previous confidentiality undertakings between the parties.
7. Disclaimer; Limitation of Liability
7.1. EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, BALANCE PROVIDES THE SERVICES, SOFTWARE AND TECHNICAL MANUALS TO MERCHANT ON AN “AS IS” BASIS, WITHOUT WARRANTIES OR REPRESENTATION OF ANY KIND, AND BALANCE EXPRESSLY DISCLAIMS ALL WARRANTIES - STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHENTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY. BALANCE FURTHER DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE SERVICES OR ANY RELATED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.
7.2. EXCEPT FOR WILLFUL MISCONDUCT OR FRAUD OR BREACH OF CONFIDENTIALITY, OR WITH RESPECT TO BALANCE'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7.3, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY'S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY MERCHANT TO BALANCE DURING THE 12 MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY 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, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.3. Balance shall defend, indemnify and hold harmless Merchant, from and against any claims, damages, costs, liabilities and expenses (including reasonable attorneys’ fees) arising out of or related to any claim that the Services, Software or Technical Manuals infringes any third party intellectual property right. Indemnification hereunder shall be conditioned upon Merchant: (a) notifying Balance of the claim immediately upon becoming aware thereof, (b) allowing Balance to assume full control of the defense and settlement of such claim, and (c) reasonably cooperating with Balance in the defense and settlement of the claim.
8. Term; Termination
8.1. This Agreement shall commence on the Commencement Date and will continue for a period of one (1) years thereafter (the "Initial Term"); thereafter, the Agreement shall renew for additional successive twelve (12) periods (each a "Renewal Term", and together with the Initial Term, the "Term"), unless either party provides notice of termination in writing at least 30 days prior to the end of the then current Term.
8.2. Either Party may terminate this Agreement during the initial 6 months period of the Agreement, for any reason, by providing the other party at least 30 days prior written notice.
8.3. Either party may terminate this Agreement immediately by giving written notice to the other party if: (i) the other party breaches a material provision of this Agreement and fails to cure the breach within thirty (30) days after being given written notice thereof; (ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party; or any petition by or on behalf of such party is filed under any bankruptcy or similar laws.
8.4. Without derogating from the above, Balance may withhold or setoff Settlement Amounts due to the Merchant in connection with or against amounts which are due or may be due to Balance in connection with the Merchant’s:
8.4.1. material breach of this Agreement; or
8.4.2. illegal or fraudulent conduct, including in respect of its use of the Merchant Services.
8.5. Upon termination of this Agreement, Merchant will immediately cease use of the Services and the Software, each party shall return to the other party or destroy (at disclosing party’s option) all of the other party's Confidential Information in its possession and any outstanding undisputed Fees shall become due and payable. Sections 1, 6, 7 and 11 shall survive any expiration or termination of this Agreement.
All notices or other communications hereunder shall be in writing and given in person, by registered mail, by an overnight courier service which obtains a receipt to evidence delivery, or by facsimile or email transmission with written confirmation of receipt, addressed to the address set forth in the Order or to such other address as any party hereto may designate to the other in accordance with the aforesaid procedure. All notices and other communications delivered in person or by courier service shall be deemed to have been given upon delivery, those given by facsimile or email transmission shall be deemed given on the business day following transmission, and those sent by registered mail shall be deemed given three calendar days after posting.
10. Force Majeure
10.1. A Party (the "Affected Party") shall not be deemed to be in breach of this Agreement or otherwise liable to the other Party (the "Non-affected Party") for any delay in performance or any non-performance of any of its obligations under this Agreement (and the time for performance shall be extended accordingly) if and to the extent that the delay or non-performance is due to an event of Force Majeure provided that the Affected Party has used reasonable endeavors to mitigate the effect of the event of Force Majeure and to carry out its obligations under this Agreement in any other way that is reasonably practicable.
10.2. The Affected Party shall promptly notify the Non-affected Party of the nature and extent of the circumstances giving rise to the event of Force Majeure. If the event of Force Majeure continues for more than fourteen (14) Business Days then, without limiting any other rights it may have, either Party may terminate this Agreement by giving written notice to the other.
11.1. This Agreement constitutes the entire agreement between Merchant and Balance and supersedes any previous agreements or representations, either oral or written, with respect to the subject matter of this Agreement. All amendments will be made only in written agreement by both parties.
11.2. Merchant shall not transfer or assign its rights or obligations under this Agreement to any third party. Any purported assignment contrary to this section shall be void.
11.3. If any part of this Agreement is declared invalid or unenforceable for any reason, such part shall be deemed modified to the extent necessary to make it valid and operative and in a manner most closely representing the intention of the parties, or if it cannot be so modified, then eliminated, and such elimination shall not affect the validity of any remaining portion, which shall remain in force and effect.
11.4. Any failure by a party to insist upon or enforce performance by the other of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance.
11.5. This Agreement is governed by the laws of the State of Delaware, without regards to its conflict of laws principles, and any dispute arising from this Agreement shall be brought exclusively before the courts of Delaware, USA.
11.6. No failure or delay by a Party in exercising any of its rights hereunder or under Applicable Law will be construed as a waiver or release of that right or any other right or remedy, nor will any single or partial exercise of such rights preclude or restrict the further exercise of such rights. A waiver of any breach of any provisions of this Agreement will not constitute a waiver of any other breach, and will not affect the other provisions, of this Agreement. Any waiver must be in writing to be effective.
11.7. Termination of this Agreement shall not affect either of the Party’s accrued rights or liabilities or affect the coming into force or the continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after termination (including, without limitations, provisions relating to payment of Fees and other amounts due, indemnities, and confidentiality undertakings).
11.8. The Merchant and Balance are independent contractors under this Agreement, and nothing herein will be construed to create a partnership, joint venture or agency relationship between them. Neither Party has authority to enter into agreements of any kind on behalf of the other.
11.9. A person who is not a party to this Agreement shall have no rights under this Agreement or to enforce any term of this Agreement.