Balance Online Services Agreement

Last updated: September 23rd, 2024

This Balance Services Agreement is a contract between Balance Payments, Inc., a Delaware corporation with its office at 900 Broadway, Suite 706, New York, NY 10003 (“Balance”) and the entity identified as ‘Company’ or ‘Customer’ (hereafter “Customer”) in the signed document (such as a Proposal Letter, Order Form, Subscription Form, Pricing Form or other similar document containing the commercial terms for the services, hereinafter “Subscription Form”) that links to and incorporates this Balance Service Agreement). The Subscription Form and the Balance Services Agreement (including the agreements, policies and specific services terms which are hereby incorporated by reference) are collectively referred to as the “Agreement”.

Customer wishes to access and use Balance’s technology solution and services (as detailed below), for its own purposes and in order to provide an improved experience on its online platform, marketplace or otherwise in the sales cycle (“Site”) to its customers - users of the Site - selling goods or services via the Site (“Vendors” and “Vendor Products”, respectively), and to users of the Site buying goods or services from Customer or Vendor Products from Vendors (“Buyers”).

Capitalized terms are defined inline or in Section 18. Each of Balance and Customer is individually referred to as a “Party”, and collectively referred to as the “Parties”.

By accessing or using the Services (as defined below) Customer agrees to be bound by this Agreement. Customer’s access to and use of the Balance Platform and Services must at all times be in compliance with this Agreement. THIS AGREEMENT HAS AN ARBITRATION PROVISION IN SECTION 17.10; PLEASE REVIEW IT CAREFULLY AS IT AFFECTS YOUR RIGHTS.

BALANCE SERVICES.
1. Balance Services. Balance has developed technologies and an online platform (the “Balance Platform”) which:
  1. supports merchants’ business-to-business transactions lifecycle, including embedded payments infrastructure, account receivables visibility and automated management, various integrations and other related platform services, as applicable, which may be made available through a dashboard (the “Balance Dashboard”) or application programming interfaces (the “Balance API”);
  2. facilitates merchants’ access to payment processing services and enables merchants to accept payments (via such available payment methods as may be decided and agreed upon between Balance and the Customer during the implementation of the Balance Services) and transmit funds using licensed payment service providers (“B2B Payment Solutions Services”); if Customer elects to implement the B2B Payment Solutions Services on its Site or in its systems, the use of the B2B Payment Solutions Services by Customer or Vendors is also subject to the Balance B2B Payment Solutions Terms; and
  3. facilitates merchants’ offering of extended payment terms programs to Buyers on the Site or via its systems via embedded real-time risk assessment, advanced funds or assumption of risk for Days of Sales Outstanding (“Digital Trade Credit Services”); if Customer or Vendors elect to use the Digital Trade Credit Services, such use is also subject to the Balance Digital Trade Credit Terms; and
  4. enables merchants who operate a marketplace platform to perform certain Actions on Vendors' behalf and manage multi-Vendor transactions, and generally supports their role as an intermediary infrastructure provider for Buyers and Vendors to transact (“Marketplace Services”); if Customer elects to use the Marketplace Services, such use is also subject to the Balance Marketplace Terms
    
    These are collectively referred to as the “Services”. Any users of the Services are also required to comply with the Balance Documentation which contains the technical information related to the Balance Platform and the Services.‍
Onboarding.
Before using the Services, users may be required to set up an account and successfully complete Balance’s onboarding processes. Customer’s access to any Services is conditional on Customer successfully completing Balance’s onboarding process.
1. Customer Bank Account. As part of Customer’s onboarding process with Balance, it must provide the details of an account with a local depository institution (or a different bank account approved by Balance) held by the Customer or a third party nominated by the Customer (and in each case acceptable to Balance) linked to Customer’s use of the Balance Platform and Services (“Customer Bank Account”). Customer must maintain the Customer 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. Customer will notify Balance in writing at least 14 days in advance of any change to the Customer Bank Account (other than general administrative changes) which it or a third party (including the relevant bank) wishes to make.
2. Customer Balance Account. Balance will maintain a ledger which records the funds to which Customer is entitled when it uses the Services (“Customer Balance Account”) that may be viewed via the Balance Dashboard or using the Balance API. The Customer Balance Account balance will increase when Customer becomes entitled to receive funds in connection with the Services, and will decrease by amounts due to Balance, amounts that Balance is entitled to transfer/ deduct under the Agreement, and amounts that are paid out to the Customer Bank Account, or paid out based on Customer’s instructions to a User Bank Account or a bank account of Customer’s other supplier or vendor. The Customer Balance Account is not a bank account (however a virtual bank account or wallet may be set up for this purpose as further clarified in the Balance B2B Payment Solutions Terms), and Customer does not own any funds unless or until such funds are credited to the Customer Bank Account.
3. Responsibility for Site Services. Balance shall not have any is not responsibility to Users for any products or services that Customer provides or makes available (“Site Services”), and Customer shall, as between Customer and Balance, take sole responsibility for providing the Site Services to Users in accordance with any agreement(s) between Customer and User (the “Site User Agreement”). This Section 2.3 shall supersede any inconsistent terms that may be present in the Site User Agreement.
4. Third Party Providers. Balance may offer access to and integrations with third-party services and service providers that you may choose to use with the Services (collectively, “Third Party Product(s)”). Balance has no control over Third Party Products. Third Party Products may be subject to additional terms between Customer and the provider of the Third Party Product - such additional terms will be disclosed to Customer by either Balance or the relevant provider of the Third Party Product. Customer’s continued use of the Services after any such terms have been disclosed to it shall constitute its acceptance of such additional terms. Balance may suspend this Agreement immediately if Customer breaches any Third Party Product terms, and Balance may terminate the Agreement in the event Customer does not cure such breach within a time period acceptable to Balance in its reasonable discretion. Balance provides no warranty or other guarantee related to any Third Party Products.
USER ONBOARDING AND MANAGEMENT.
1. Acceptance Criteria. Balance may require Customer to establish certain processes for onboarding Users to the Balance Merchant Services, consistent with Balance’s screening processes (which shall be no more onerous than typical market practices) in force from time to time. Each Buyer, before being party to a transaction via the Balance Platform, must first accept the End User Terms. Notwithstanding anything to the contrary, Balance shall have discretion regarding its underwriting, risk and compliance decisions, including the decision of whether to provide Balance Merchant Services to any User. Balance may in its sole discretion decline to create a Balance Account for a User, decline to provide the Balance Merchant Services to a User, or limit the functionality available to a User, at any time in accordance with its internal risk management and ‘know your client’ practices.
2. User Bank Account. As part of the onboarding process, Site Users may be asked to provide the details of a business account with a local depository institution (or bank account approved by Balance) held by the Site User or a third party nominated by Site User (and in each case as acceptable by Balance) linked to the User’s use of the Balance Merchant Services (“User Bank Account”). In the event of any change to the User Bank Account, Customer will notify Balance in writing, promptly upon notice from Site User and no later than fourteen (14) days in advance of any change to the User Bank Account (other than general administrative changes) which it or a third party (including the relevant bank) wishes to make.
3. User Suspension and Termination. Balance may suspend the provision of Services to any User at any time if Balance becomes aware of or suspects, in its good faith and reasonable discretion, that: (a) User has breached the Balance Vendor Services the Balance End User Terms (as the case may be) or any internal Balance compliance or risk management policy; (b) User is engaged in acts or practices that are considered, or are capable of being considered, fraudulent, unfair, deceptive, abusive or unlawful; (c) User is, or is likely to become, bankrupt or insolvent; (d) User’s use of the Balance Merchant Services violates applicable law, could cause Balance to violate law or breach an agreement that Balance is a party to, could disrupt other user’s ability to access and use Balance’s services, or uses the Services in a manner that places an unintended and unreasonable burden on the Balance Platform or Services (for example, if a transaction for $1000 is submitted as 1000 transactions for $1 each) 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 access or logon credentials associated with the Balance Merchant Services have or may have been compromised. In such an event Balance will provide either Customer or User, at its option, 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 a time period determined by Balance acting reasonably, which shall be no less than 7 days, Balance may terminate providing services to the User.
CUSTOMER ACTIONS.
1. Customer Obligation. Customer must promptly inform Balance if it becomes aware, or reasonably suspects, that a User is engaged in any activity which could potentially be considered to be fraudulent, unlawful, deceptive or abusive.
2. Customer Actions. Customer may only engage in Actions, whether on its own behalf or on behalf of a Site User or other third party, to the extent that it is doing so in accordance with the terms of any applicable Site User Agreement or other contractual arrangement between Customer and the Site User or third party, this Agreement, and, Applicable Law.
BUYERS
1. Buyer Inquiries and Disputes. Buyer inquiries and disputes regarding the Services that are made directly to Balance will be addressed by Balance. In the event Balance requires information from a User related to an inquiry/ dispute, Customer agrees to assist Balance, and procure that other Users of the Site assist Balance, in responding to such matter, including providing Balance with any information requested by Balance in connection to such matter.
INFORMATION AND DATA.
1. Site Data. Balance may from time-to-time request that Customer provide data and information related to the Customer, the Site and Users, such as identity related information, transaction related information etc. (“Site Data”). Customer must comply promptly with any information request made by Balance, and Balance may limit Customer’s or User’s access to the Services until such time as Balance, acting reasonably and in good faith, is satisfied with the response to the request.
2. Buyer Data. If Customer receives any information from Balance related to any Buyer’s use of the Services (such information, “Buyer Data”), Customer acknowledges and agrees that it will not store, use, disclose, or permit any third party to access such Buyer Data other than as expressly authorized in advance in writing by Balance or by the relevant Buyer. If Customer provides any Buyer Data to Balance, Customer must ensure that its privacy policy (“Customer Privacy Policy”) permits, and Customer has otherwise obtained all consents and authorizations which may be required under Applicable Law for Customer to provide Balance with such Buyer Data, and for Balance to store, use and disclose such Buyer Data in accordance with this Agreement and the Balance Privacy Policy. Balance may, from time-to-time, require Customer to confirm its compliance with this section, and Customer agrees that it shall promptly respond to such requests by Balance.
3. Balance Usage of Information. Balance may store, use and disclose information provided by Customer, including Site Data and Buyer Data: (a) to provide and enhance, and to facilitate the provision of, the Services, including to authenticate access to the Balance Platform; (b) to prevent or mitigate harm; (c) for any purpose which Buyer has expressly consented to; and (d) for any other purpose identified in the Balance Privacy Policy.
4. Accuracy and Completeness. Customer Provider will at all times ensure that all data furnished to Balance in connection with the Services, including all Site Data and Buyer Data, is complete and accurate in all respects.
CUSTOMER RESPONSIBILITIES.
1. Compliant Use. Customer agrees that it, and any person acting on its behalf, will:
  1. comply with the Balance Documentation, and not circumvent, or attempt to circumvent, any limitations as provided in the Balance Documentation, or as may be reasonably apparent, for any feature of the Services or the Balance Platform;
  2. comply with Applicable Law, and not use any portion of the Services or Balance Platform (1) for any illegal or illicit transaction or activity, including under the laws and regulations applicable to any User, or (2) in a manner which is, or could potentially be considered by Balance in its reasonable discretion, to be fraudulent, unlawful, deceptive, or abusive, or (3) in any manner harmful to, or intended to harm, Balance or any third party;
  3. immediately and fully cooperate with Balance to investigate any suspected or potential illegal, fraudulent, or improper activity on the part of any representative of Customer, any User or any other third party;
  4. inform Balance at least thirty (30) days prior to any material change to Customer’s business (including any change of Control, in which case, Customer will also inform Balance of the identity of the person acquiring Control of Customer), business model or the goods or services it sells, and target customer audience; such information may, for example, and without limiting the provisions of this Agreement, be used by Balance, and authorized third party service providers, for ‘know-your-client’ and transaction monitoring related purposes under applicable Law ;
  5. cooperate with Balance in connection with the performance of the Services by making available such personnel and information keeping in mind the nature of the matter, and taking such other actions, as may be reasonably requested by Balance (for example, if its a technical issue, Customer will make appropriate members of its technical team available, provide information logs; for transaction reconciliation issues, make a member of its accounting team available, provide bank statements etc.).
CUSTOMER COVENANTS
1. Customer agrees (a) to conduct its business in good faith and in a manner that reflects favorably at all times on the good name, goodwill and reputation of Customer and Balance; (b) not to take any action to discourage Balance from receipt or collection of the any amounts due to Balance; (c) to notify Balance immediately if Balance makes a mistake in connection with this Agreement or the Services, including any calculation thereunder; (d) to return, or cause to be returned, to Balance immediately any funds that Balance provided to Customer or a User in error or that are subject to a cancellation, return, complaint or dispute; and (e) co-operate in good-faith with any requests made by Balance related to the Services.
FEES AND TAXES; AMOUNTS OWED.
1. Customer Fees. Customer agrees to pay Balance the fees specified in the Subscription Form for the Services elected by Customer. Balance may invoice Customer for payable fees, or deduct payable fees from funds indicated in the Customer Account Balance on a monthly basis, unless otherwise agreed to between Balance and Customer. In the event Customer has a good-faith and reasonable belief that there is an error on any such invoice, it will provide Balance a written notice by email to support@getbalance.com within seven (7) days of the invoice date, specifying the disputed amount, the reasons it believes there is an error on the invoice, and provide supporting documents (including such other documents as may be requested by Balance in good-faith) related to such error. If, after reviewing the materials, Balance makes a good-faith determination that there was an error, it will either promptly refund such amount or adjust such amount against the next monthly invoice. In the event Customer does not send an email as contemplated herein within such seven (7) day period, it will be deemed to have accepted the invoice, and payment for such invoice shall be due on the corresponding due date noted on the invoice. Any undisputed amounts will continue to be due on the due date mentioned on a corresponding invoice. Any fees paid in advance are non-refundable unless the Agreement is terminated due to a material breach by Balance of the Agreement.
2. Site Services Fees. The Balance Platform gives Customer the ability to collect fees which Customer is entitled to levy from Users related to their use of the Site (“Site Usage Fees”). Customer is responsible for communicating Site Usage Fees to Users prior to imposing such fees, and Customer may only impose fees if permitted to do so by the Site Services Agreement and Applicable Law.
3. Taxes. As between Balance and Customer, Customer shall be solely responsible for determining and calculating any and all taxes and duties, including sales, use, transfer, value added, withholding, income, and other taxes and/or duties (“Taxes”) assessed, incurred, or required to be collected, paid, or withheld in connection with amounts received by Customer r, including any Taxes which are to be assessed, incurred, or required to be collected, paid, or withheld by User , and for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. Balance is responsible for all taxes levied on its income.
4. Amounts Owed. Balance may recover amounts owed to it by Customer by: (a) deducting such amounts from funds from the Marketplace Provider Account Balance, or from funds attributable to Marketplace Provider, (b) requesting that Marketplace Provider promptly provide such amounts to Balance, or (c) by debiting the Marketplace Provider Bank Account. Balance may also recover amounts owed by a Vendor under the Balance Vendor Services Agreement by deducting amounts from funds attributable to the Vendor in Marketplace Provider Balance Account.
SECURITY.
1. System Security. Balance will maintain industry-standard administrative, physical and technical safeguards to prevent the unauthorized access, use or disclosure of Site Data processed through or stored in the Services. These safeguards include, but are not limited to, security policies and training for its personnel, access controls, minimum security certifications and practices use of PCI-compliant Payment Processors and data encryption. Each Party is responsible for maintaining, protecting, and securing its software and hardware, including anti-virus software, security patches, and firewalls.
2. Customer Access Control. Customer must establish a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions related to the Services, and will be responsible for all use of the Services by Customer’s personnel or through the use of any credentials or user account assigned to Customer, irrespective of whether such use is with Customer’s knowledge or consent. Customer will comply with all security policies and procedures related to the Services which may be established by Balance and communicated to Customer from time to time.
3. Data breach notification: Balance will notify affected users if Balance determines that the security of the Services has been breached which results in Site Data being accessed by or disclosed to an individual or entity who is not authorized to access or receive such information. Balance will report to the affected users on the corrective action being taken in response to such security breach and will reasonably cooperate with such users in mitigating the effects of any lost or compromised Site Data
CONFIDENTIALITY.
1. Confidential Information. Each Party acknowledges that it may receive Confidential Information of the other Party.
2. Use and Disclosure of Confidential Information.
  1. Each Recipient will hold and maintain in confidence the Confidential Information of the Discloser and will use and disclose such Confidential Information only for the purpose of performing its obligations or exercising or enforcing its rights with respect to this Agreement or as otherwise expressly permitted by this Agreement.
  2. Each Recipient may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by Applicable Law, including in the course of an examination by a regulatory authority with supervisory and examination authority over such Party; provided (i) that, except in connection with disclosure in the ordinary course of an examination by any such regulatory authority, the Party subject to such Applicable Law will notify the Discloser of any such use or requirement prior to disclosure of any Confidential Information obtained from the Discloser in order to afford the -discloser an opportunity to seek a protective order to prevent or limit disclosure of the Confidential Information to third parties, and (ii) that the Party subject to such Applicable Law may disclose Confidential Information of the Discloser only to the extent required by such Applicable Law.
  3. In the event that a Recipient becomes aware of any unauthorized use or disclosure of Confidential Information of the Discloser, the Recipient must inform the Disclosure of this event within a reasonable time of becoming aware, and in any event within the time period required by Applicable Law.
3. Survival. For clarity, this Section 11 survives termination or expiration of this Agreement.
INTELLECTUAL PROPERTY RIGHTS.
1. Ownership. Subject to the terms and conditions of this Agreement, as between the Parties, each Party and the Party’s Affiliates will exclusively retain all rights, title, and interests in and to Intellectual Property Rights that are conceived, developed, reduced to practice, created, or acquired (collectively, “Created”) by or on behalf of such Party or its Affiliate, whether Created prior to or after the start of the Term. Nothing contained in this Agreement is to be construed as constituting a transfer or an assignment by one Party to the other Party of Intellectual Property Rights, and except as expressly granted under this Agreement or otherwise agreed to in writing by the Parties, neither Party grants the other Party any right, license, or covenant not to sue with respect to any Technology or Intellectual Property Rights. There are no implied licenses granted under this Agreement.
2. License. Subject to compliance with the terms of the Agreement (including being in good-standing for fees for the Services), Balance hereby grants Customer a limited, non-exclusive, non-assignable, non-sub-licensable, non-transferable license during the term of this Agreement to use the Balance Platform solely to the extent necessary for Customer to use the Services in accordance with this Agreement and the Documentation.
3. Publicity. Notwithstanding anything to the contrary, Customer hereby grants Balance the right to disclose the name of Customer and the existence of the relationship between Customer and Balance for purposes of marketing and advertising Balance’s Services.
4. Feedback. Customer may, but is not required to, provide ideas, concepts, comments, or feedback to Balance regarding the Services (“Feedback”). Except to the extent that the Parties may expressly agree in writing to a different set of rights in advance of the disclosure of such Feedback, Customer grants Balance an irrevocable, perpetual, royalty-free right to use and disclose any Feedback for any purpose.
REPRESENTATIONS AND WARRANTIES.
1. Customer Representations and Warranties. Customer represents and warrants to Balance that: (a) this Agreement is valid, binding, and enforceable against Marketplace Provider in accordance with its terms; (b) Customer has the full power and authority to execute and deliver this Agreement and to perform all its obligations under this Agreement; (c) all information provided by Customer as part of its registration and use of the Services is accurate and complete (d) Customer is able to pay its debts as they become due; and (e) Customer is in compliance with material Applicable Law.
2. Balance Representations and Warranties. Balance represents and warrants to Customer that: (a) this Agreement is valid, binding, and enforceable against Balance in accordance with its terms; (b) Balance has the full power and authority to execute and deliver this Agreement and to perform all its obligations under this Agreement; (c) Balance is able to pay its debts as they become due; and (d) Balance is in material compliance with Applicable Law.
INDEMNIFICATION.
1. Indemnification. Each Party (the “Indemnifying Party”) agrees to indemnify, defend and hold harmless the other Party, its Affiliates, and their respective Representatives (each, an “Indemnified Party”), from and against any and all liability, damages, costs, or expenses, including reasonable legal fees and expenses, for any third party claim or demand arising out of or related to the following (“Claim”):
  1. the Indemnifying Party’s breach of any representation, warranty, covenant or obligation under this Agreement;
  2. gross negligence, fraud or willful misconduct on the part of the Indemnifying Party, or any of its Affiliates or their respective Representatives (“Associated Parties”);
  3. any actions taken by an Indemnified Party in accordance with or in good faith in reliance upon information or instructions provided by the Indemnifying Party or any of its agents or Representatives; and
  4. any actual or alleged infringement or misappropriation of any Intellectual Property Rights of any third party by the Indemnifying Party.
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    The defense obligation of the Indemnifying Party attaches if the Claim alleges any of the foregoing violations, breaches, acts or omissions.
2. Indemnification Procedures. If any Claim is asserted against an Indemnified Party by any person who is not a party to this Agreement in respect of which the Indemnified Party may be entitled to indemnification under the provisions of Section 14.1, written notice of such Claim must promptly be given to the Indemnifying Party. The Indemnifying Party will have the right, by notifying the Indemnified Party within fourteen (14) days of its receipt of the notice of the Claim, to assume the entire control (subject to the right of the Indemnified Party to participate at the Indemnified Party’s expense and with counsel of the Indemnified Party’s choice) of the defense, compromise or settlement of the matter, including, at the Indemnifying Party’s expense, employment of counsel of the Indemnifying Party’s choice. The Indemnified Party must provide reasonable cooperation in the defense. The Indemnifying Party must not compromise or settle a Claim against the Indemnified Party without the Indemnified Party’s prior written consent, which will not be unreasonably withheld or delayed; provided that the Indemnifying Party may, however, effect a compromise or settlement of any action without the Indemnified Party’s consent if the following conditions are met: (a) there is no admission of guilt or liability by the Indemnified Party; and (b) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party.
LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES.
1. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES OR THEIR RESPECTIVE REPRESENTATIVES BE LIABLE TO THE OTHER PARTY FOR ANY (A) INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE BALANCE PLATFORM OR THE SERVICES AND (B) LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. NEITHER PARTY’S TOTAL LIABILITY TO THE OTHER PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL EXCEED THE FEES EARNED BY BALANCE IN CONNECTION WITH THIS AGREEMENT IN THE TWELVE-MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
2. DISCLAIMER OF WARRANTIES. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS-IS,” AND “AS AVAILABLE”, WITHOUT WARRANTIES OF ANY KIND. BALANCE, ITS AFFILIATES AND THEIR RESPECTIVE REPRESENTATIVES DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, RELATING TO OR ARISING OUT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
TERM AND TERMINATION.
1. Term. The term of this Agreement is set forth in the Subscription Form (the “Initial Term”), and will automatically be extended for successive “Renewal Terms” of one (1) year unless a Party notifies the other Party of its intent not to renew at least thirty (30) days prior to the end of the Initial Term or a Renewal Term, in each case unless terminated earlier. The Initial Term and all Renewal Terms are called the “Term.” Following expiration of the Initial Term, Balance may from time to time modify the fees payable to Balance by Customer, by providing at least 30 days’ advance notice to Customer of any such fee change.
2. Termination and Suspension.
  1. Each Party may terminate this Agreement immediately by providing written notice to the other Party if the other Party has materially breached this Agreement, and fails to correct such breach within seven (7) days (or such other period of time as mutually agreed upon in writing between the Parties) following the non-breaching Party providing a written notice of such breach to the other Party.
  2. Balance may suspend Customer’s access to the Services immediately if Balance becomes aware of or suspects, in its good faith and reasonable discretion, that: (a) Customer has breached this Agreement or any Balance internal Balance compliance or risk management policy;; (b) Marketplace Provider is engaged in acts or practices that are considered, or capable of being considered, fraudulent, unfair, deceptive, abusive or unlawful; (c) Customer is, or is likely to become, bankrupt or insolvent; (d) Customer’s use of the Services violates applicable law, could cause Balance to violate law or breach an agreement that Balance is a party to, could disrupt other user’s ability to access and use Balance’s services, or uses the Services in a manner that places an unintended and unreasonable burden on the Balance Platform or Services (for example, if a transaction for $1000 is submitted as 1000 transactions for $1 each) 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 access or logon credentials associated with the Services have or may have been compromised. In such an event Balance will provide Customer 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, acting reasonably. If the cause is not remedied within the time period determined by Balance, which shall be no lesser than seven (7) days, Balance may terminate this Agreement by providing written notice to Customer.
  3. In addition to any other termination rights provided elsewhere in this Agreement, either Party may terminate the Agreement upon occurrence of one or more of the following events:
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    (i)           Either Party is determined to be bankrupt or insolvent, is unable to pay its debts when they are due, or has a receiver, trustee, custodian or similar appointed;
    
    (ii)           Upon any change to or enactment of any Applicable Law, or publication by any regulatory authority, which would have a material adverse effect upon: (A) the Services; or (B) such Party’s ability to perform its obligations under this Agreement; provided that the Parties, after good faith discussions, cannot find a mutually agreeable solution within a reasonable amount of time;
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    (iii)           Applicable Law relating to the performance of this Agreement rendering either of the Parties unable to substantially perform this Agreement, provided that the Parties cannot find a legally workable solution to avoid violating Applicable Law within a reasonable amount of time; or
    
    (iv) Upon direction from any regulatory authority for either Party to cease or materially limit performance of such Party’s obligations under this Agreement.
3. Rights and Obligations upon Termination.
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  1. Upon expiration or termination of this Agreement, Customer’s right to use the Services will immediately cease.
  2. The Parties’ rights to terminate this Agreement will be in addition to, and not in lieu of, any other remedies they may have by virtue of (a) a breach or default with respect to this Agreement or (b) any other event which permits a termination.
  3. Furthermore, the termination or expiration of this Agreement will not relieve a Party of its respective obligations due at or before the time of such termination or expiration or prejudice any claim of either Party. Termination or expiration of this Agreement will not affect Customer’s obligation to pay fees owed to Balance under this Agreement, including those incurred during any notice period prior to termination, or any other provisions in this Agreement intended to survive its expiration or termination.
  4. Upon termination for any reason, and without limiting any other rights that Balance may have, Balance may collect and obtain all amounts owed to Balance.
MISCELLANEOUS.
1. Notices. Except as otherwise expressly provided, all notices to be given to a Party are effective only when made in writing and actually delivered to such Party’s physical or email address for notices. For Balance, the physical notice address is stated in the Subscription Form, and email notices may be sent to support@getbalance.com. For Customer, the notice addresses are set out in the Subscription Form. A Party may modify its notice address by providing notice of this change to the other Party.
2. Amendments and Modifications. Balance may amend the Agreement, the Balance Payment Services Terms and the Balance Digital Trade Credit Services Terms as well as the Balance Privacy Policy, from time to time. Without limiting the generality of the foregoing, this may be for reasons such as changes to applicable law, changes required by third party payment providers and financing sources, and Balance’s internal risk and compliance related policies and practices. amendments to the Agreement will be indicated by a changed ‘Last Updated’ date at the top of the respective web-pages, and Customer shall be responsible for monitoring the web page for amendments. Balance will notify Customer of any amendments that Balance deems material at least seven (7) days in advance, and, provided that, such agreements/ policies may not be updated in a manner that results in the material reduction in functionality or security of the Balance Platform and/or Services without the consent of Customer.
  
  Balance may also update the Services and the Balance Platform from time to time at its sole discretion, provided that any modifications to the Services and Balance Platform will not result in the material reduction of the security or functionality thereof.
  
  Customer’s subsequent access and use of the Balance Platform or use of the Services after any updates by Balance in accordance with the provisions above shall constitute Customer’s consent and agreement to such amendments.
3. Assignment. Balance may freely assign any and all of its rights under this Agreement, including with respect to any Receivable (as defined in the Balance Digital Trade Credit Services Terms). Marketplace Provider may not assign this Agreement to any third party without the prior written consent of Balance, which will not be unreasonably withheld. Any purported assignment contrary to this section will be void.
4. Entire Agreement. Each Party agrees that this Agreement and all referenced documents constitute the complete and exclusive statement of the mutual understanding of the Parties, and supersedes and cancels all previous written and oral agreements, communications and other understandings, relating to the subject matter of this Agreement. Each Party acknowledges that it is not relying on any information, conditions, covenants, warranties or representations provided to it or to any of its Affiliates or Representatives at any time except as expressly stated in this Agreement.
5. Survival, Severability and Waiver. All provisions of this Agreement which by their nature are meant to extend beyond the expiration or termination of this Agreement will survive such expiration or termination. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the remaining provisions of this Agreement will otherwise remain in full force and effect and enforceable. The failure by either Party to insist upon strict performance of any of the provisions contained in this Agreement will in no way constitute a waiver of its rights as set forth in this Agreement, at law or in equity, or a waiver of any other provisions or subsequent default by the other Party in the performance of or compliance with any of the terms and conditions set forth in this Agreement.
6. Force Majeure. Neither Party will be liable to the other for failure to perform this Agreement when such failure to perform is due to any natural disaster, pandemic, epidemic, fire, flood, storm, strike, labor unrest, war, riot, terrorism, act of God, equipment, or power interruptions (where not due to the negligence of the non-performing Party, its employees or contractors), interruptions in networking or communications systems, or any cause beyond the non-performing Party’s reasonable control. Any Party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other Party prompt written notice of the facts which constitute such cause within five (5) business days of such event; and, when the cause ceases to exist, give prompt notice thereof to the other Party. Except for those commitments identified in such notice, the affected Party shall not be relieved of its responsibility to fully perform as to all other commitments in the Agreement. In the event that any Party declaring Force Majeure will be unable to recommence performance within ninety (90) days of the date of onset of Force Majeure, the other Party may terminate this Agreement, for convenience and without liability, by providing the Party affected by Force Majeure a written notice of termination, which shall be deemed effective immediately. Subject to the affected Party providing sufficient notice pursuant to this Section 19.6, performance shall be extended solely to the extent caused by the Force Majeure and so long as the Force Majeure continues. The affected Party at all times has the duty to mitigate such impacts. In no event shall the affected Party be entitled to any price adjustment, compensation or other financial relief under this Agreement as a result of any Force Majeure.
7. Relationship of Parties. Each Party agrees that, except as specifically provided for, they are independent contractors to each other in performing their respective obligations under this Agreement. Nothing in this Agreement or in the working relationship being established between the Parties will be deemed or is intended to be deemed, nor will it cause, any of the Parties to be treated as partners, joint ventures, or otherwise as joint associates for profit. Customer does not have any authority of any kind to bind Balance in any respect whatsoever.
8. No Third-Party Beneficiaries. Except as stated in this Agreement, this Agreement does not create any right or cause of action in or on behalf of any person or entity other than the Parties.
9. Responsibility for Own Costs. Except as otherwise expressly stated, as between the Parties, each Party will be responsible for its own costs and expenses in connection with the performance of its obligations and the provision and receipt of the Services.
10. Dispute Resolution. This Agreement will be governed by, construed and enforced in accordance with the laws of the State of Delaware without regard to principles of conflict of laws. By executing this Agreement, the Parties agree to submit to the exclusive jurisdiction of any state or federal court sitting in New Castle County, Delaware for any and all disputes asserting a breach of this Agreement. This forum selection provision does not apply to any arbitration proceeding. THE PARTIES AGREE TO WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN THE RESOLUTION OF ANY DISPUTE OR CLAIM BETWEEN THE PARTIES OR ANY OF THEIR RESPECTIVE AFFILIATES WHICH MAY ARISE UNDER THIS AGREEMENT. In any action or proceeding between the Parties to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees from the other Party.
  
  The Parties agree to use good faith efforts to resolve any dispute internally among upper level executives; provided however, that if the Parties are unable to resolve any dispute within thirty (30) days of initiation thereof, the Parties agree to arbitrate such Claim before a tribunal designated by either the Judicial Arbitration and Mediation Services (“JAMS”) or the American Arbitration Association (“AAA”). The Parties agree that any such arbitration proceeding will take place in Wilmington, Delaware and hereby waive any objection that such venue is an inconvenient forum. The arbitration proceeding will be governed by the rules and procedures for commercial disputes of the arbitration organization to which the Claim is referred. Streamlined arbitration rules and procedures will be used if available. If for any reason the selected arbitration organization cannot, will not, or ceases to, serve as an arbitration administrator, the requesting party may substitute the other organization identified in this paragraph or another widely recognized arbitration organization that uses similar rules or procedures and is mutually acceptable to both parties. In the event of a substitution where the Parties cannot agree on an arbitration organization, then either Party may ask a court of competent jurisdiction to appoint a qualified arbitration organization.
  
  For purposes of this arbitration provision, “Claim” means any claim, dispute or controversy (whether in contract, tort, or otherwise) past, present or future. The term “Claim” is to be given the broadest possible meaning and includes any Claim arising from or relating to (a) the Services, (b) a Payment Card Request (c) a Transaction, (d) any transactions effected pursuant to this Agreement, (e) provisions of, or change of, or addition of, provisions to this Agreement, (f) collection of Customer’s obligations arising from this Agreement, (g) advertisements, promotions or oral or written statements relating to this Agreement or any transactions between the Parties pursuant to this Agreement, including any Claim regarding information obtained by Balance from, or reported by Balance to, credit reporting agencies or others, (h) disputes between Customer and Balance or the parent companies of Customer or Balance, wholly or majority owned subsidiaries, affiliates, predecessors, successors, assigns, agents, contractors, employees, officers, directors or representatives arising from any transaction between Customer and Balance pursuant to this Agreement, (i) disputes regarding the validity, enforceability or scope of this arbitration provision or this Agreement, or (j) this Agreement.
  
  IF ARBITRATION IS COMMENCED, CUSTOMER ACKNOWLEDGES THAT NEITHER CUSTOMER NOR BALANCE WILL HAVE THE RIGHT TO (I) HAVE A COURT OR JURY DECIDE THE CLAIM BEING ARBITRATED, (II) ENGAGE IN DISCOVERY (THAT IS, THE RIGHT TO OBTAIN INFORMATION FROM THE OTHER PARTY) TO THE SAME EXTENT THAT CUSTOMER OR BALANCE COULD IN COURT, (III) PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS IN A CLASS ACTION, OR REPRESENTATIVE ACTION IN COURT OR IN ARBITRATION, RELATING TO ANY CLAIM SUBJECT TO ARBITRATION, OR (IV) JOIN OR CONSOLIDATE CLAIMS OTHER THAN CUSTOMER’S OWN OR BALANCE’S OWN. OTHER RIGHTS AVAILABLE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. IF A CLAIM IS BROUGHT SEEKING PUBLIC INJUNCTIVE RELIEF AND A COURT DETERMINES THAT THE RESTRICTIONS IN THIS SECTION ARE UNENFORCEABLE WITH RESPECT TO THAT CLAIM (AND THAT DETERMINATION BECOMES FINAL AFTER ALL APPEALS HAVE BEEN EXHAUSTED), THE CLAIM FOR PUBLIC INJUNCTIVE RELIEF WILL BE LITIGATED IN COURT AND ANY INDIVIDUAL CLAIMS SEEKING MONETARY RELIEF WILL BE ARBITRATED. IN SUCH A CASE THE PARTIES WILL REQUEST THAT THE COURT STAY THE CLAIM FOR PUBLIC INJUNCTIVE RELIEF UNTIL THE ARBITRATION AWARD PERTAINING TO INDIVIDUAL RELIEF HAS BEEN ENTERED IN COURT. IN NO EVENT WILL A CLAIM FOR PUBLIC INJUNCTIVE RELIEF BE ARBITRATED.
  
  Except as set forth below, the arbitrator’s decision will be final and binding. Only a court may decide the validity of items (iii) and (iv) in the preceding paragraph. If a court finally holds that items (iii) or (iv) are limited, invalid or unenforceable, then this entire arbitration provision will be null and void. The Parties can appeal any such holding. If a court holds that any other part of this arbitration provision (other than items (iii) and (iv)) are invalid, then the remaining parts of this arbitration provision will remain in force. An arbitrator will decide all other issues pertaining to arbitrability, validity, interpretation and enforceability of this arbitration provision. The decision of an arbitrator is as enforceable as any court order and may be subject to very limited review by a court. An arbitrator may decide a Claim upon the submission of documents alone. A Party may request a telephonic hearing if permitted by applicable rules and each Party hereby consents to the other Party participating by telephone. The exchange of non-privileged information relevant to the Claim between the Parties is permitted and encouraged. Either Party may submit relevant information, documents or exhibits to the arbitrator for consideration in deciding a Claim. Unless both Parties otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, both Parties shall retain: (a) the right to bring an individual action in a small claims court having jurisdiction over claims not exceeding US$10,000; and (b) the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
  
  For a copy of relevant rules and procedure, to file a Claim or for other information about JAMS and AAA, write them, visit their website or call them at: (a) for JAMS, 1920 Main Street, Suite 300, Irvine, CA 92614, info@jamsadr.com, http://www.jamsadr.com, or 1-800-352-5267; or (b) for AAA, 1633 Broadway, 10th Floor, New York, NY 10019, websitemail@adr.org, http://www.adr.org, or 1-800-778-7879.
  
  If Customer’s claim does not exceed US$10,000, then any arbitration will be conducted solely on the basis of documents both Parties submit to the arbitrator, unless Customer requests a hearing and the arbitrator determines that a hearing is necessary. If Customer’s claim exceeds US$10,000, Customer’s right to a hearing will be determined by the rules of the selected arbitration organization.
  
  If either Party fails to submit to arbitration following a proper demand to do so, that Party will bear the costs and expenses, including reasonable legal fees and disbursements, incurred by the Party compelling arbitration. The Party initiating the arbitration will pay the filing fee. Customer may seek a waiver of the initial filing fee or any other fees incurred in arbitration.
  
  Except in the situation in which either party fails to submit to arbitration following a proper demand to do so, each Party will pay for its respective legal representation (including attorneys), experts’ and witness fees, regardless of which Party prevails in the arbitration. A Party may recover any or all expenses from the other Party if the arbitrator, applying applicable law, so determines. Allocation of fees and costs relating to appeals in arbitration will be handled in the same manner. For an explanation and schedule of the fees that apply to an arbitration proceeding, please contact the organizations at the addresses above. The appropriate fee schedule in effect from time to time is incorporated by reference into this arbitration provision.
  
  This arbitration provision is made pursuant to a transaction involving interstate commerce and will be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq., as amended, notwithstanding any other governing law provision in this Agreement. The arbitrator will apply applicable substantive law consistent with the FAA and applicable statutes of limitations and will honor claims of privilege recognized at law. Judgment upon any arbitration award may be entered and enforced, including by garnishment, attachment, foreclosure or other post-judgment remedies, in any court having jurisdiction. The arbitrator’s decision will be final and binding, except for any right of appeal provided by the FAA, in which case any Party can appeal the award to a three-arbitrator panel administered by the selected arbitration administrator. The panel will reconsider de novo (that is, without deference to the ruling of the original arbitration) any aspect of the initial award requested by the appealing party.
  
  This arbitration provision will continue to govern any Claim that may arise without regard to any termination or expiration of this Agreement. If any portion of this arbitration provision (other than the provisions prohibiting class-wide arbitration, joinder or consolidation) is deemed invalid or unenforceable under the FAA, it will not invalidate the remaining portions of this arbitration provision. If a conflict or inconsistency arises between the rules and procedures of the selected arbitration administrator and this arbitration provision, this arbitration provision will control.
11. Construction. The headings and section numbers contained in this Agreement are inserted for convenience only and do 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 will be deemed to mean that URL as may be updated from time to time.
12. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be an original but all of which taken together will constitute one and the same Agreement.
13. Electronic Transactions & Consent to Contact: The Parties hereby agree to transact business by electronic means. Customer agrees that Balance may contact Customer as provided in this paragraph. Balance may contact Customer for any lawful reason, including for the collection of outstanding amounts under this Agreement and for the offering of products or services in compliance with Balance’s Privacy Policy in effect from time to time. No such contact will be deemed unsolicited or without express consent. Balance may (a) contact Customer at any address (including electronic mail) or telephone number (including wireless cellular telephone or ported landline telephone number) as Customer may provide to Balance from time to time, even if Customer asked to have its number added to any federal, state, provincial or other do-not-call registry, (b) use any means of communication, including postal mail, electronic mail, telephone, or other technology, to reach Customer, (c) use automatic dialing and announcing devices which may play recorded messages, and (d) send text messages to Customer’s telephone. Customer hereby agrees that Balance will not be liable to Customer for any such calls or electronic communications, even if information is communicated to an unintended recipient. Customer understands that, when it receives such calls or electronic communications, it may incur a charge from the company that provides Customer with telecommunications, wireless or Internet services. Customer agrees that Balance shall have no liability for such charges. Customer agrees to promptly notify Balance if Customer change telephone numbers or is otherwise no longer the subscriber or customary user of a telephone number which was previously provided to Balance.
14. Further Assurances: Customer hereby agrees to perform, execute, acknowledge, and deliver or cause to be performed, executed, acknowledged, and delivered all such further and other acts, documents, agreements, instruments, and assurances as may reasonably be required from time to time by Balance for the carrying out or performing of the provisions of this Agreement.
DEFINITIONS.

“Actions” means actions, orders, instructions (including, without limitation, the implementation configuration for the Services provided or confirmed by Customer, such as automations, communications cadences, charges and deductions, creation of accounts with third party providers etc.) and requests submitted by or via the Site or by Customer to the Balance Platform.

“Affiliate” means, with respect to any Person, any other Person that directly or indirectly Controls, is Controlled by, or is under common Control with such Person.

“Applicable Law” means any and all applicable laws, treaties, conventions, directives, regulations, ordinances, and judicial decisions in courts and tribunals of competent jurisdiction that relate to the Services or a Party, including any subsequent amendments, modifications and revisions.

“Balance Account” means an account established for a user on the Balance Platform.

“Balance Documentation” means the documentation located at http://docs.getbalance.com.

“Balance Merchant Services” means any and all of Balance Payment Services or Balance Digital Trade Services.

“Balance Vendor Services Agreement” means the agreement describing how Vendors may use the Services, in the form made available by Balance on its website from time to time.

“Confidential Information” means all proprietary information, data, trade secrets, business information, financial data and budgetary or proprietary business information, income or sales data or projections, customer lists and related information, business operations, policies, procedures and techniques, advertising summary or tracking reports or other reports generated in accordance with this Agreement, schematics, ideas, techniques, know how, concepts, development tools and processes, computer printouts, computer programs, design drawings and manuals, and improvements, patents, copyrights, trade secrets or other intellectual property of any kind or nature, plans for future development and new product or service concepts, contemplated products or services, research, development, and strategies which a Discloser discloses, in writing, orally or visually, to a Recipient or to which Recipient obtains access in connection with the negotiation or performance of this Agreement. Confidential Information does not include information that: (a) is already rightfully known to the Recipient at the time it obtains Confidential Information from the Discloser; (b) is or becomes generally available to the public other than as a result of disclosure in breach of this Agreement or any other confidentiality obligations; (c) is lawfully received on a non-confidential basis from a third party authorized to disclose such information without restriction and without breach of this Agreement; (d) is developed by a Party without the use of any proprietary, non-public information provided by the other Party; or (e) data and information related to use of the Services that is used by a Party in an aggregate and anonymized manner. Balance’s Confidential Information includes this Agreement, all amendments to this Agreement, and the Buyer Data.

“Control” means, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, as trustee or executor, by contract or otherwise, including the ownership, directly or indirectly, of securities having the power to elect a majority of the board of directors or similar body governing the affairs of such Person; provided that, for purposes of this definition, all voting power held by entities under common control shall be aggregated together and attributed to each other such entity under common control for the purpose of determining the voting power percentage of an entity..

“Discloser” means a Party disclosing its Confidential Information.

“Intellectual Property Rights” means all past, present, and future rights, title and interests of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, publicity and privacy rights, and mask works; (b) trademarks, and trade name rights and similar rights, service marks, domain names, trade dress, logos, and other distinctive brand features, whether or not registered; (c) trade secret rights; (d) patents and industrial property rights; (e) publicity and privacy rights in marketing, advertising, or other public facing materials (including rights to use the name, likeness, image of persons); and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (d) above.

“Person” means any natural or legal person, including any corporation, partnership, limited liability company, trust or unincorporated association or other entity.

“Recipient” means a Party receiving or obtaining access to the other Party’s Confidential Information.

“Representatives” means, with respect to an entity, that entity’s employees, officers, directors, agents, consultants and subcontractors.

“Site User” means a Vendor and/or a Buyer, as the case may be.