TERMS OF SERVICE
- "Account" means an account registered by you on the Platform for using the Services.
- "Factoring Services" means the advance of the amount due to the Seller from the Buyer in connection with a specific Transaction through the Service, applied in connection with some Transactions, as agreed by the parties, as distinguished from the Services applied to all Transactions. Balance may determine the Transaction criteria for offering Factoring Services at its discretion.
- "Fees" means the fees applicable to Services provided by Balance to Customer, as provided through the Platform or otherwise agreed between the parties in writing.
- "Customer" or "you" means the entity on behalf of which you are accepting these Terms.
- "Customer Property" means an online property operated by Customer for offering its products and services, approved by Balance. For the avoidance of doubt, a Customer Property may be a platform for Sellers and Buyers who are customers of the Customer, or it may be Customer's eCommerce platform where Customer is the only Seller.
- "Platform" means the Balance solution dashboard enabling online Customers to manage Transactions, including risk assessment, offer payment terms and payment processing, and have their invoices factored.
- "Seller" means the person or entity offering the products being sold in a Transaction, being the Customer or an SMB Seller.
- "Services" means any services (including any Factoring Services, to the extent applicable), documentation, and software made available through the Platform, but excluding Third Party Products.
- "SMB Buyer" means a person or entity setting up an account on a Customer Property for the purchase of products or services from Customer in connection with operating a business.
- "SMB Seller" means a person or entity other than the Customer, setting up an account as a Seller on a Customer Property.
- "Third Party Products" means any service, products, software or application that is provided by a third party and interoperates with a Service, including electronic assistants.
- "Transaction" means a transaction for the purchase of products offered by a Seller on the Customer Properties with an SMB Buyer.
- "We", "Us", "Balance" or "Our" means Balance Payments, Inc.
2. The Services
- Services. Subject to the terms and conditions of this Agreement, Balance shall provide Customer with the Services and Factoring Services through the Platform. During the Term and subject to Customer’s compliance with the terms and conditions of this Agreement, Balance grants Customer a non-exclusive, non-transferable, non-sublicensable, limited, revocable right (i) for Customer employees, agents, representatives and contractors who are permitted access to the Platform by Customer ("Authorized Users"), for Customer’s internal business use, on the Customer Sites; (ii) use the SDK and access the documented features of the APIs provided by Balance in connection with the Services according to applicable documentation ("Documentation") made available by Balance; and (iii) enable SMB Sellers, to the extent applicable, to use the Services to accept payment from SMB Buyers.
- That any output provided by Balance in connection with the evaluation of SMB Seller or SMB Buyer is not a “consumer report” under the Fair Credit Reporting Act (the "FCRA") and cannot be used as or in such. Customer represents and warrants that it will not, and will not permit or enable any third-party to, use the Services (including the evaluation of SMB Sellers and SMB Buyers) as a or as part of a “consumer report” as that term is defined in the FCRA or otherwise use the Services such that the Services would be deemed “consumer reports” under the FCRA.
- To only accept payments using payment cards for bona fide legal commercial transactions between Sellers and SMB Buyers for goods or services that are free of liens, claims, and encumbrances.
- Not to (i) provide cash refunds for a Transactions paid for by a credit card, unless required by applicable law, (ii) initiating a refund through the Service for a Transaction more than five calendar days after issuing a refund to the SMB Buyer, (iii) accepting cash, its equivalent, or any other item of value in exchange for initiating a refund through the Service.
- When payment is made via ACH, to obtain the SMB Buyer's consent to debit or credit their bank account and initiate a Transaction over the ACH network. Customer may not, and may not attempt to send or receive funds to or from a person, entity, or state where such Transactions are prohibited by applicable law.
3. Customer Account
- Account Information. Customer must safeguard and not disclose Customer's Account usernames and passwords and Customer must supervise the use of such Account. Customer must provide us accurate and complete information in order to create an Account, including details of the Authorized Users linked to the Account. Customer agrees to keep Customer's Account information up to date and accurate. Any Services associated with Customer's Account will be charged to Customer's Account. CUSTOMER IS SOLELY AND FULLY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF THE ACCOUNT USERNAMES AND PASSWORDS. CUSTOMER IS SOLELY AND FULLY RESPONSIBLE FOR ALL ACTIVITIES THAT OCCUR UNDER THE ACCOUNT. Customer must notify us immediately of any unauthorized use of Customer's Account or any other breach of security.
- Administrator. When Customer initially register for and create an Account, Customer, or a party that Customer authorize, is the administrator ("Administrator"). Administrators may authorize additional Authorized Users to access the Services through the same Account. Authorized Users may include, for example, Customer's employees and agents. These Terms apply to any Authorized User of the Services. Balance may refuse to grant, suspend, or terminate, any Authorized User's access to the Platform.
- Access Rights. The Administrator is responsible for Au
- thorized Users’ access to the Platform. Depending on the types of access rights the Administrator grants to Authorized Users, Authorized Users may be able to authorize Transactions and Factoring Services in connection therewith, view data accessible in Customer's Account and generate reports regarding such data. The Administrator is solely responsible for the access to the Platform granted to Authorized Users and it is the Administrator’s sole responsibility to add or remove access rights to Authorized Users. We are not responsible for the internal management or administration of the Account. Customer is responsible for Authorized Users’ compliance with these Terms. A violation of any provision of these Terms by an Authorized User may result in the termination of an Administrator’s or any Authorized User’s access to the Platform. If Customer choose to close or terminate Customer's access to the Platform, Authorized Users will no longer be able to access Platform or any of the Customer Data. Balance may from time to time send Customer communications, unless Customer have opted not to receive them.
- Deletion of Account. Customer may delete Customer's Account at any time. Any Customer Data and other information and data entered into the Services may be permanently deleted if Customer deletes the Account.
4. Fees and Payments
- General. In consideration for the Services, Customer shall pay Balance the Fees. Balance shall be entitled to deduct Fees from any amounts owing by it to the Customer, and such other amounts as are owing to it hereunder.
- Taxes. All Fees and other sums payable by the Customer under this Agreement are exclusive of VAT and any other applicable taxes that may apply hereto under any Law ("Taxes"). The Customer will pay such Tax upon receipt of a valid tax invoice therefor. If the Customer is required by Law to make a deduction or withholding from any payment due under this Agreement, it shall pay such additional amounts as are required to ensure that the net amount received and retained by Balance equals the full amount that would have been received and retained by it had no such deduction or withholding been made and/or no such liability to tax been incurred.
- Settlement. Balance will credit the Customer with the value of a Transaction in accordance with the payment terms agreed between the parties for such Transaction, after deduction of applicable Fees and Taxes (the "Settlement Amount"), in accordance with the settlement terms agreement between the parties in writing. Balance may hold Settlement Amounts until remittance of such Settlement Amount is due in accordance with the terms hereof. The Customer shall not be entitled to receive any interest in respect of funds so held by Balance. Customer shall be responsible for any third party bank charges, chargebacks, refunds and other adjustments associated with Transactions (the “Adjustments”).
- Remittance. Customer shall be entitled to receive from Balance the Settlement Amounts net of any applicable Adjustments (the "Remittance") due in respect of Transactions permitted under this Agreement. Balance will remit the amount of the Remittance to the bank account maintained by Customer through the Account. If the amount of Adjustments due to Balance is in excess of the Settlement Amount due to Customer, then Balance may charge Customer’s bank account for the balance of Adjustments due to it from Customer after deduction of the Settlement Amount.
5. Use Obligations and Restrictions
- Obligations. You agree to do each of the following in connection with your use of the Services: (i) install related software components on each Customer Property in accordance with Documentation and to promptly and accurately provide all information that Balance reasonably requests to evaluate SMB Sellers, SMB Buyers and Transactions; (ii) comply with all applicable laws, rules and regulations, including those regarding data privacy, intellectual property rights and export control; (iii) use reasonable security precautions in your access to the Services.
- Restrictions. You may not, whether by yourself or anyone on your behalf (a) sell, resell, or lease the Services or access or attempt to access the Services by any means other than the interface we provided or authorized; (b) circumvent any access or use restrictions put into place to prevent certain uses of the Services; (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) attempt to disable, impair, or destroy the Services, or Platform; or (e) reverse engineer or decompile the Services, attempt to do so, or assist anyone in doing so.
- You affirm that Customer is solely responsible for the nature and quality of the products or services Seller(s) provide, and for delivery, support, refunds, returns, and for any other ancillary services Seller(s) provide to SMB Buyers. You may not use the Services to enable any person (including you) to use of the Services in or for the benefit of a country, organization, entity, or person embargoed or blocked by any government, including those on sanctions lists identified by the United States Office of Foreign Asset Control (OFAC). Please review the sanctions lists identified by OFAC before registering for and opening an Account. If you are uncertain whether a category of business or activity is restricted or have questions about how these restrictions apply to you, please contact us.
- You agree to: (i) accurately communicate, and not misrepresent, the nature of the Transaction, and the amount that will be charged to SMB Buyers for a Transaction in the appropriate currency prior to submitting it to the Service; (ii) provide a receipt that accurately describes each Transaction to SMB Buyers; (iii) provide SMB Buyers a meaningful way to contact you in the event that the product or service is not provided as described; and (iv) not use Services to sell products or services in a manner that is unfair or deceptive, or does not disclose material terms of a purchase in advance. You also agree to maintain and make available to SMB Buyers a fair and neutral return, refund, cancellation, or adjustment policy, and clearly explain the process by which SMB Buyers can receive a refund.
- The Services may include functionality that enables Sellers to receive recurring or subscription payments from SMB Buyers, and to issue invoices to SMB Buyers. If Customer uses the Services to submit recurring or subscription charges, Customer agrees to comply with applicable laws and the Third Party Terms, including clearly informing SMB Buyers in advance of submitting the initial charge for the Transaction that they will be charged on an ongoing basis and explaining the method for unsubscribing or cancelling their recurring billing or subscription. If Customer uses the Services to issue invoices to SMB Buyers, Customer understands and agrees that it is Customer's responsibility to ensure that the form and content of the invoices comply with applicable laws, and are sufficient to achieve any legal or tax effect that Customer is trying to achieve.
6. Customer Data
- Use of Data. Balance may collect Customer Data, and Customer hereby grants Balance permission to collect Customer Data in accordance with the terms hereof. Customer undertakes to provide Authorized Users, SMB Sellers and SMB Buyers with all notices, and obtain all consents, as required by applicable law and the Third Party Terms and the Third Party Terms, to allow Balance to process Customer Data in accordance herewith, to provide the Services, and to improve the Services and Platform performance and functionality.
7. Intellectual Property Rights
- Retention of Rights. All rights not expressly granted to You under these Terms are reserved by Balance and its licensors. We and our licensors reserve all rights, title and interest to the Services, the Platform and any of their related intellectual property rights. The Terms do not convey to You an interest in or to Balance’s intellectual property rights. Nothing in the Terms constitutes a waiver of Balance’s Intellectual Property Rights under any law.
- Feedback. To the extent You provide us any feedback, comments or suggestions ("Feedback"), you grant us 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.
You will indemnify, defend, and hold harmless Balance, its affiliates, resellers, employees and agents (the "Indemnified Parties") from and against all liabilities, damages, and costs (including reasonable attorneys' fees) arising out of any claim, demand, suit or proceeding by a third party: (i) alleging that your Content or your use of the Services infringes or misappropriates a third party’s intellectual property rights; or (ii) arising out of Customer's violation of applicable law, use of the Services in violation of these Terms, or breach of the Third Party Terms.
9. WARRANTIES; DISCLAIMERS; LIMITATION OF LIABILITY.
BALANCE PROVIDES THE SERVICES AND DOCUMENTATION TO CUSTOMER ON AN “AS IS” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND BALANCE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES - STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY. BALANCE FURTHER DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BALANCE’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, 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 FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT BALANCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Term and Termination
- Term. These Terms commence on the date you first accept them and will remain in effect until your subscription to the Services expires or terminates, or until these Terms are terminated.
- Termination. You may stop using the Services at any time and you may delete your Account. We may suspend or terminate your access to the Services at any time at our discretion and without notice if You do not comply with these Terms. Upon termination of the Services to You, the Account will be terminated, and from the date of termination You will no longer be able to access your Account.
- Survival. The provisions of these Terms that, by their nature and content, must survive the termination of these Terms in order to achieve the fundamental purposes of these Terms shall so survive. Without limiting the generality of the foregoing, the Intellectual Property Rights, Disclaimers of Warranties, Limitation of Liability, Governing Law and Jurisdiction and General sections, will survive the termination or expiration of the Terms.
11. Governing Law and Jurisdiction
These Terms are governed by the laws of the state of New York excluding rules as to choice and conflicts of law and the state and federal courts in the state of New York will have jurisdiction; however, Balance or its Affiliate 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.
- Changes to Terms. Balance may change the Terms from time to time, and such change will become effective upon the date on which it is posted on the Platform 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 Terms.
- Severability. If any part of these Terms is deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed to be severable from the rest of these Terms and shall not affect the validity and enforceability of any of the remaining provisions of these Terms. In such cases, the part deemed invalid or unenforceable shall be construed in a manner consistent with applicable law to reflect, as closely as possible, the original intent of the parties.
- Waiver. No waiver by us of a breach of any of the provisions of terms of these Terms shall be construed as a waiver of any preceding or succeeding breach of any of the provisions of these Terms.
- Relationship. Nothing in these Terms shall be construed as creating any agency, partnership, trust arrangement, fiduciary relationship or any other form of joint enterprise between you and Balance.
- Entire Agreement. These Terms contain 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 same. You confirm that, in agreeing to accept these Terms, You have not relied on any representation except as has expressly been made by Balance in these Terms.
- Assignment. You may not assign your rights or delegate your obligations under these Terms without Balance’s prior written consent. Any purported assignment contrary to this section will be null and void. Balance may assign its obligations hereunder among the various Balance entities within the Balance Inc. group, by a change to the definition of Balance hereunder which change will become effective upon posting on our website.
- No Third Party Rights. There are no third-party beneficiaries to these Terms. Without limiting this section, Users are not third-party beneficiaries to your rights under these Terms.