Balance Terms of Service

PLEASE READ THESE TERMS OF SERVICE CAREFULLY.  BY CLICKING “ACCEPT” OR ACCESSING THE SITE AND/OR USING THE SERVICES, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE INCLUDING THE PRIVACY POLICY, ACCEPTABLE USE POLICY, AND BUSINESS ASSOCIATES AGREEMENT REFERENCED BELOW. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THE SITE OR SERVICES. IF YOU ARE AN INDIVIDUAL ACCESSING OR USING THE SERVICES ON BEHALF OF, OR FOR THE BENEFIT OF, AN ENTITY WITH WHICH YOU ARE ASSOCIATED AND IDENTIFIED IN THE ACCOUNT (A “CLIENT” or “YOU”), THEN YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF YOURSELF AND SUCH ENTITY, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. IF YOU ARE NOT ELIGIBLE OR DO NOT AGREE TO THESE TERMS OF SERVICE, THEN YOU DO NOT HAVE PERMISSION TO ACCESS THE SITE OR USE THE SERVICES.

Balance (https://usebalance.co), including all of its related applications, dashboards, or platforms (individually and collectively, the “Website”), is owned and operated by Hatch West, LLC (dba “Balance,” “we,” “us,” or “our”). By using, installing, or accessing the Website or Services (as defined below), by signing or clicking to accept these terms, you agree to be bound by the following terms and conditions (together, these “Terms”, or this “Agreement”).

If you are using Balance on behalf of a company, organization, or other entity, then “Client” or “you” means that entity, and you are binding that entity to this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if the Client is an entity, this Agreement is entered into by an employee, agent, or other authorized representative with all necessary authority to bind that entity to this Agreement.

This Agreement includes and hereby incorporates any policies or exhibits linked to or referenced herein. If you have entered into a separate written agreement with Balance concerning specific Services, the terms of such agreement control if there is any conflict between the terms of such agreement and these Terms. Please note that we may modify this Agreement as described in Section 16.10 below.
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‍DEFINITIONS.
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‍1.1. “Business Associate Agreement” (hereinafter “BAA”) means a written agreement between a Covered Entity and a Business Associate (as those terms are defined under HIPAA) containing the elements specified at 45 CFR 164.504(e).
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1.2. “Confidential Information” means code, inventions, know-how, product plans, technical and financial, business, operational, or other information exchanged under this Agreement or learned during the performance of this Agreement, or that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.

1.3. “Client” means the company, organization, or other entity that has signed up for Balance and is bound to this Agreement for use of the Services.

1.4. “Customer” means any person that is a customer or patient of Client and accesses the Services to complete a payment Transaction.
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1.5. “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act and their implementing regulations as amended from time to time.
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1.6. "Law(s)” means all applicable local, state, federal, and international laws, rules, and regulations, or amendments thereto, including but not limited to the Federal Trade Commission’s Telemarketing Sales Rule, the Telephone Consumer Protection Act of 1991, the Health Insurance Portability and Accountability Act of 1996, the Gramm-Leach-Bliley Act of 1999, the CAN-SPAM Act, and Do Not Call rules and prohibitions.

1.7. “Payment Data” means any personal or financial information collected from a credit card, debit card or other payment method, including but not limited to a cardholder’s account number, card expiration date, and CVV2.

1.8. “Payment Processing Services” means the ability for you to submit, manage, and complete Transactions with your end users (e.g., Patients or Customers) via the Services. 

1.9. “Personal Data” means information about an identifiable individual or information that is capable of being used (alone or in combination with other information) to identify an individual, (not a company, legal entity, or machine) and is transmitted to or accessible through the Services.

1.10. “Protected Health Information” (hereinafter “PHI”) has the same meaning as that term is defined in HIPAA Privacy Rule found at 45 C.F.R. §160.103.

1.11. “Payment Processing Service Provider” means the third-party payment service provider used by Balance to enable the acceptance of payments, management of subscriptions, and performance transaction reporting, as well as analytics and other business services. Balance currently uses Stripe to enable the Payment Processing Services. Balance may add or remove Payment Processing Service Providers from time to time.

1.12. “Territory” means the United States and its territories.

1.13. “Transaction” means a request to capture funds from a Customer, and includes the authorization, settlement, and if applicable, disputes, refunds, and reversals, with respect to such payment request. You initiate Transactions by submitting a request to Balance, and Transactions are enabled by our Payment Processing Service Provider.
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2. SERVICES.
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‍2.1. Services. Balance provides a proprietary platform that enables you to send payment requests to third parties (your “Customers”) by text message and track payment activity in an analytics dashboard and any other services Balance may offer from time to time (together with the Website, the “Service(s)”). Balance has no obligation to provide any services or perform any tasks not specifically set forth in this Agreement.

2.2. Alteration of Terms. From time to time, Balance may change, modify, add, or remove portions of the Terms, and reserves the right to do so in its sole discretion. If we modify the Terms, we will make them available through usebalance.co, and indicate the date of the latest revision. We encourage users to review the Terms periodically for changes. In the event that the modifications materially alter your rights or obligations hereunder we will make reasonable efforts to notify you of the change. For example, we may send a message to your email address if we have one on file or generate a pop-up or similar notification when you access the Services for the first time after such material changes are made. All amended Terms automatically take effect 30 days after they made available, except that (i) disputes between You and Balance will be governed by the version of the Terms that was in effect on the date the dispute arose and (ii) if You do not agree with any changes to the Terms, you may terminate these Terms by ceasing use of the Services and submitting a request to terminate your account. Your continued use of the Services after revised Terms have become effective indicates that you have read, understood and agreed to the current version of the Terms.

2.3. Modification of the Services. Balance reserves the right to modify or discontinue the Services at any time (including by limiting or discontinuing certain features of the Services), or to alter the offering of the Services (including by adding, limiting, or discontinuing certain capabilities) temporarily or permanently. Balance also reserves the right to replace certain Services with functionally equivalent Services or Bundles, at its sole discretion. In the event Balance makes any modification or alteration to the Services that has a material adverse effect on the functionality of the Services, Client may terminate this Agreement and receive a pro-rated refund of pre-paid, unused Fees for the remainder of Client’s Subscription Term (as defined below).

3. USE RIGHTS; RESTRICTIONS.
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‍3.1. Use of Services. Subject to all terms of this Agreement, including any Additional Terms, Balance grants Client a non-exclusive, non-transferable, non-sublicensable, revocable, limited right and license during the applicable Subscription Term and within the Territory to access and use the Services solely for Client’s internal business purposes and only in accordance with this Agreement and Balance’s Acceptable Use Policy (“Acceptable Use Policy”). Balance makes no representation that the Services are appropriate or available for use in locations outside the Territory (or that all products or features of the Services are available throughout the Territory). Furthermore, accessing the Services from territories where their content or use is illegal, is prohibited under this Agreement. If Client attempts to access or use the Services outside of the Territory, Client does so at its own initiative and is responsible for compliance with all Laws and any costs associated with access or use outside the Territory. You may not use or export the Services in violation of U.S. export laws and regulations.

3.2. Account Registration. Client must register for a Balance account in order to access or receive the Services. Account information must be accurate, current, and complete. Client agrees to keep its account information up to date so that Balance may send notices, statements, and other information by email or through Client’s account. Client is solely responsible for all use of its Services account(s). Balance will not be liable for any loss or damage arising from unauthorized use of Client’s account(s) not directly caused by Balance's actions or omissions. You may access and fully use the Payment Processing Services only after your Payment Processing Service Provider account (“PPSP Account”) has been activated and verified within Balance’s platform. You agree and acknowledge that activation of a PSPP Account is subject to approval by the relevant Payment Processing Service Provider, and such Payment Processing Service Provider may suspend or terminate your PPSP Account at any time in accordance with the PPSP Agreement (as defined below). The information you provide to Balance to facilitate the activation and verification of your PPSP Account must be accurate, current, and complete. Until you have submitted, and Payment Processing Service Provider has reviewed and approved, all required information, your access (if any) to the Payment Processing Services will be on a preliminary, limited basis only, and Balance may terminate your access at any time and for any reason.

3.3. PPSP Agreement. Your use of the Payment Processing Services is conditional upon you accepting the terms and conditions imposed by the relevant Payment Processing Service Provider with respect to the aspects of the Payments Service that it facilitates (each a "PPSP Agreement"). By submitting Transactions via the Payment Processing Services, you must read and agree to PPSP Agreements of the Payment Processing Service Providers that facilitate the processing of payments. Currently, Balance uses Stripe as a Payment Processing Services Provider, and Stripe’s PPSP Agreement is located at https://stripe.com/connect-account/legal. The Stripe entity that enters into the PPSP Agreement with you, and the content of your Stripe PPSP Agreement, will depend upon your location. For the avoidance of doubt, Balance is not a party to any PPSP Agreement.

3.4. PPSP Account Management. The PSPP Agreement describes how your PPSP Account will be managed, including (i) the use and administration of any data about you, your Customers, and your Transactions, and (ii) action that may be submitted via your PPSP Account, such as initiating and refunding Transactions, handling disputes and other functions that are or may become available through your PPSP Account. You consent to Balance’s disclosure of your data (which may include Personal Data) to each Payment Processing Service Provider and to each Payment Processing Service Provider’s disclosure of your data (which may include Personal Data) to Balance, as the case may be, for the purpose of facilitating the provision of the Payment Processing Services.

3.5. Responsibility for PPSP Compliance. Balance is not responsible for any non-compliance by any Payment Service Provider with the terms of any PPSP Agreement, any laws, or payment method provider rules, or for the acts or omissions of any Payment Service Provider in providing services to you or your Customers.

3.6. Termination and Suspension by PPSP. If a Payment Processing Service Provider terminates or suspends your PPSP Agreement or PPSP Account, for any reason, Balance may immediately terminate or suspend your use of the Payment Processing Services, without any liability to you.

3.7. Eligibility and Use by Others. By agreeing to these Terms, Client warrants that it and its employees, agents, contractors, and any other users (including but not limited to Developer Partners or Third-Party Providers) whom Client has authorized to access the Services on its behalf (“Authorized Users”): (a) are over 18 years old; (b) have not previously been suspended or removed from the Services; and (c) will comply with all Laws when using the Services. Client may permit its Authorized Users to use the Services provided their use is for Client’s benefit only and remains in compliance with this Agreement. Authorized Users are and will be subject to the applicable terms and conditions of this Agreement, which may be communicated by posting to the Website or on a click-through basis to Authorized Users upon access to the Services and/or Website.

3.8. Responsibility for Authorized Users. Client will be responsible and liable for all Authorized Users’ use and access and their compliance with this Agreement. Client will be solely responsible for authorizing and creating user IDs, passwords, and other access credentials for Authorized Users. Client is solely responsible for determining its Authorized Users and restricting and/or terminating the rights of such users during the Subscription Term, as Client deems appropriate. Provided, however, Podium may, in its sole discretion, suspend any Authorized User’s access to the Services, as set forth in Section 8.2 below. Client is solely responsible for ensuring that any user IDs, passwords, and other access credentials for the Services are kept strictly confidential and not shared with any unauthorized person. Additionally, Client is solely responsible for complying, and ensuring its Authorized Users comply, with all Laws applicable to Client. Client will be solely responsible for any and all actions taken using its and its Authorized Users’ accounts, passwords, or access credentials and must ensure that each Authorized User has a separate and distinct user account (with separate and distinct access credentials) that is not shared with any other user(s). Client must notify Podium within twenty-four (24) hours of any breach of security or unauthorized use of its account. 

3.9. Use by Customers. Any person that is a client, customer, or patient of Client, or that is a potential client, customer, or patient of Client (“Customer(s)”) who accesses and/or uses the Services, including via Client’s account or website, is subject to the Acceptable Use Policy and such other terms as may be provided by Balance from time to time, which includes Balance’s right to remove or disable access to any Customer or content or resource that violates the Acceptable Use Policy.

3.10. General Restrictions. Client must not (and must not allow any third party to): (a) rent, lease, copy, transfer, sublicense, or provide access to the Balance Technology (as defined below) to a third party (except Authorized Users as specifically authorized above); (b) incorporate the Balance Technology (or any portion thereof) into, or use it with or to provide, any site, product, or service, except as otherwise expressly authorized by Balance in writing; (c) use the Balance Technology (or any portion thereof) for time-sharing purposes or for a third party’s benefit; (d) publicly disseminate information regarding the performance of the Balance Technology (which is deemed Balance’s Confidential Information); (e) modify or create a derivative work of the Balance Technology or any portion thereof or access the services with the intent to copy or create a competitive or derivative product/service; (f) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to any Balance Technology or Services, except to the extent expressly permitted by applicable Law and then only upon advance notice to Balance; (g) break or circumvent any security measures or rate limits for Services; (h) distribute any portion of the Balance Technology other than as specifically permitted above; (i) use the Services in violation of the Acceptable Use Policy; or (j) remove or obscure any proprietary or other notices contained in the Balance Technology including in any reports or output obtained from the Balance Technology.

3.11. Beta Releases and Free Access Subscriptions. Subject to Client’s compliance with the terms of this Agreement, Balance may provide Client with certain Services for free or on a trial basis (a “Free Access Subscription”) or with “beta” or other early stage Services, integrations, or features (“Beta Release(s)”) for the Subscription Term set forth in the applicable Subscription Documentation (if applicable). This Section 3.7 and any relevant Additional Terms will apply to any Free Access Subscription or Beta Release (even if a Beta Release is provided for a fee) and supersedes any contrary provision in this Agreement. For the avoidance of doubt, Section 6 (Availability of Services; Support) will not apply to any Free Access Subscription or Beta Release; though Balance may use good faith efforts, in its discretion, to assist Client with Free Access Subscriptions or Beta Releases. Without limiting the other disclaimers and limitations in this Agreement, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, CLIENT AGREES THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA, OR INDEMNITY OBLIGATIONS OF ANY KIND. CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT FREE ACCESS SUBSCRIPTIONS AND BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH BALANCE WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A FREE ACCESS SUBSCRIPTION OR BETA RELEASE IS AT CLIENT’S SOLE RISK. You may choose to use Free Access Subscriptions and Beta Releases at your sole discretion. Balance makes no guarantees or promises with respect to the continued availability of any Free Access Subscriptions or Beta Releases or that future versions of a Free Access Subscription or Beta Release will be released or will be available under the same commercial or other terms. Balance may discontinue Free Access Subscriptions or Beta Releases at any time, in our sole discretion, and decide not to make them generally available. Notwithstanding anything to the contrary herein, Balance may terminate Client’s right to use any Free Access Subscription or Beta Release at any time and with reasonable notice for any reason or no reason in Balance’s sole discretion, without liability.

4. CLIENT DATA.

‍4.1. Rights in Client Data. As between the parties, Client retains all right, title, and interest (including any intellectual property rights) in and to any text, images, or other content and data that Client selects or submits for use or incorporation with the Services (including without limitation, chat and message logs, Customer Data, Personal Data, PHI, or any Third-Party Content) (“Client Data”). To the extent Client is a Covered Entity or a Business Associate, as those terms are defined in HIPAA, "Client Data" also includes PHI. “Customer Data” means data related to the identity, characteristics, and activities of Customers, collected or submitted to the Services by Client or captured by the Services. “Third-Party Content” means content, data, or other materials that Client provides to the Balance Services from its third-party data providers, including through Third-Party Products (as defined below) used by Client. Client hereby grants Balance a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify, and create derivative works of the Client Data as necessary to provide the Services and related services to Client and as otherwise provided herein and in Balances's Privacy Policy (the "Privacy Policy"), and hereby instructs Balance to do the same. Client further instructs Balance to use and disclose Customer Data as necessary to provide the Services consistent with this Agreement and as otherwise set forth in the Privacy Policy.

4.2. Aggregate/Anonymous Data. Client agrees that Balance will have the right to generate usage data from Client use of the Services and may aggregate anonymized Client Data (“Aggregate/Anonymous Data”). Notwithstanding anything to the contrary herein, the parties agree that Aggregate/Anonymous Data is Balance Technology, which Balance may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve Balance’s products and services and to create and distribute reports and other materials). Balance will not distribute Aggregate/Anonymous Data in a manner that personally identifies Client or its Customers, or that would otherwise violate terms of the BAA or applicable Laws.

4.3. Monitoring. Client understands and agrees that Balance may monitor and analyze Client Data or Customer Data (including but not limited to payment requests, payment conversion rates, payment method use, payment timing, etc.) to improve the Website or Services; to improve Client’s experience using the Website or Services; to customize and communicate informational or product offerings and promotions to Client; to ensure compliance with the Acceptable Use Policy (including taking corrective action permitted therein); and/or to make the Website or Services more helpful or useful to Client and other users. This may include use of technologies that maintain records of browsing sessions and other activities on the Website and Services. 

4.4. Security. Balance agrees to maintain physical, technical, and organizational measures designed, in its discretion, to secure its systems from unauthorized access, use, or disclosure. If Client is a Covered Entity or Business Associate, as defined in HIPAA, Balance and Client agree to the terms of Balance’s BAA, which may be amended from time to time, and to secure and utilize PHI in accordance with the BAA. Balance takes no responsibility and assumes no liability for any Client Data other than its express security obligations in this Section 4.4.

4.5. Storage. Balance does not provide an archiving service. During the Subscription Term, Client acknowledges that Balance may delete Client Data no longer in active use. Additionally, Client understands and agrees that following termination, Balance may delete all Client Data in its possession. Except for requirements that are included in any BAA entered into between Balance and Client, Balance expressly disclaims all other obligations with respect to storage.

4.6. Privacy and Data Processing. The Privacy Policy describes how we handle the information you provide to us or we otherwise collect when You and your Customers use the Services. You understand that through your use of the Services you consent to the collection and use of this information as set forth in the Privacy Policy.  Balance may disclose Client Data pursuant to a data subject access request or consumer data request as required by applicable law, provided that to the extent permitted under applicable law, Balance notify Client of any such disclosure. If you are located in California, then solely for purposes of the California Consumer Privacy Act of 2018, Cal. Civil Code § 1798.100 et seq. (as may be amended from time to time) (the “CCPA”), (i) Balance is acting as a Service Provider (as defined in the CCPA) for Client as a Business (as defined in the CCPA), (ii) except as set forth herein, Balance is prohibited from selling the Client Data or retaining, using, or disclosing the Client Data for any purpose other than for the specific purpose of performing the Services, (iii) Client hereby instructs Balance that the Business Purpose includes Balance (and its service providers) using and retaining the Client Data internally for the benefit of all of Balance’s clients, including detecting fraud, optimizing payment solutions and similar performance enhancing purposes, and (iv) Balance understands and will comply with these restrictions.

5. CLIENT OBLIGATIONS.

‍5.1. Warranty. Client warrants and represents that it will use the Services in full compliance with all Laws and terms of this Agreement, including the Acceptable Use Policy, and that it will not use the Services in a manner that would cause Balance to violate any obligation with respect to any such Laws. Client also warrants and represents that: (a) Client has sole ownership of any Client Data it provides to Balance, or otherwise has legal rights to provide such Client Data, and Client Data will not violate third-party rights, including intellectual property, privacy, and publicity rights; (b) Balance’s possession and/or use of the Client Data on Client’s behalf in connection with the Services, as contemplated hereunder, will not violate any contract, statute, regulation, or other third-party rights; (c) Client is authorized to provide Balance with any Customer, Client, or Authorized User information it provides in connection with the Services, including any personally identifying information; (d) Client and/or Client’s Authorized User(s) will only use the Services for interaction with actual Customers and will only use the Service for bona fide commercial Transactions with its Customers, which have been authorized by those Customers; (e) will research any Transaction and, if necessary, contact the Customer before completing or fulfilling the Transaction, if Client is unsure if such Transaction is erroneous or suspicious; (f) will be responsible for managing Client’s relationship with its Customers, including communication, selling, and providing products and services, and handling any disputes or returns with such Customers; (g) will be responsible for providing any other required notices and obtaining all consents as required under applicable laws, rules, regulations, or contract obligations governing any other features of the Service Client uses under this Agreement; and (h) will ensure that the form and content of any invoices Client generates and sends to its Customers using the Service will comply with applicable law and are sufficient to achieve the legal or tax effects Client is trying to achieve. You affirm that you are solely responsible for the nature and quality of the products or services you provide and for the delivery, support, refunds, returns, and any other ancillary services you provide to your Customers. Additionally, if an integration is included in the Services, Client grants Balance the right to access Client’s Data directly or through a third-party service for the purposes of fulfilling Balance’s obligations under this Agreement, and Client warrants that Client is not restricted by law or applicable agreement from granting Balance such right.

5.2. Customer Consent; Intended Use of the Services. Client understands and agrees that the Services are intended to allow Client to communicate electronically only with Client’s own current Customers who have consented to the receipt of such communications and are provided with all necessary notices in accordance with applicable Laws. Accordingly, Client will for the duration of the Subscription Term: (a) provide all required disclosures to Customers and obtain all required consents and/or authorizations from Customers, based on applicable Laws, prior to utilizing the Services; (b) obtain all necessary rights, releases, and consents to allow Client Data to be collected, used, and disclosed in the manner contemplated by this Agreement and to grant Balance the rights herein; (c) use the Services to make or send communication only in compliance with all Laws, the terms of this Agreement (including the Acceptable Use Policy) and industry-specific best practices, including but not limited to Do Not Call rules and prohibitions; and (d) complies with any requirements or limitations regarding the processing of Personal Data and data of minors, in each case, to the extent required under applicable law. Client also understands and agrees that the Services are intended primarily to be used for communications related to payment transactions. Client agrees and acknowledges that Client is solely responsible for its compliance with applicable Laws and the Acceptable Use Policy and must not rely on the Services for any such compliance. Use of the Services does not guarantee compliance with Laws or the Acceptable Use Policy, and Balance expressly disclaims any liability for Client’s non-compliance. Balance reserves the right to suspend or terminate Client’s access to the Services if Blance believes, in its sole discretion, that Client has violated this Section 5.

5.3. Unauthorized Activity. Client is responsible for any activity initiated using credentials issued by Balance or any Payment Service Provider. Where Balance incurs any losses based on unauthorized activity initiated by Client or on Client’s behalf, Client is financially liable for such losses. Such losses may be deducted from Client’s PPSP Account, or Balance may require Client to pay such losses.

5.4. Compliance with Laws. You must use the Service in a lawful manner, and must obey all laws, rules, and regulations (“Laws”) applicable to your use of the Service. As applicable, this may include compliance with domestic and international Laws related to the use or provision of financial services, notification and consumer protection, unfair competition, privacy, and false advertising, and any other Laws relevant to Transactions.

5.5. Prohibited Businesses. You may not use the Service to enable any person (including you) to benefit from any activities Balance (or a Payment Service Provider) has identified as a restricted business or activity (“Prohibited Businesses”), including those businesses listed in the Balance Acceptable Use Policy and the Stripe Restricted Business List, as well as any pornography, gambling, and/or firearms related businesses, activities, or transactions. “Prohibited Businesses” also includes any 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). 

5.6. Other Restricted Uses. You may not use the Service to facilitate illegal Transactions or to permit others to use the Service for personal, family, or household purposes. In addition, you may not allow, and may not allow others to: (a) access or attempt to access non-public systems, programs, data, or services; (b) copy, reproduce, republish, upload, post, transmit, resell, or distribute in any way, any data, content, or any part of the Service, documentation, or Balance’s website except as expressly permitted by applicable Laws; (c) act as service bureau or pass-through agent for the PPSP Account with no added value to your Customers; (d) transfer any rights granted to you under this Agreement; (e) work around any of the technical limitations of the Service or enable functionality that is disabled or prohibited; (f) reverse engineer or attempt to reverse engineer the Service except as expressly permitted by Laws; (g) perform or attempt to perform any actions that would interfere with the normal operation of the Service or affect use by Balance’s other users; or (h) impose an unreasonable or disproportionately large load on the Service.

6. AVAILABILITY OF SERVICES; SUPPORT.

‍6.1. Availability. Subject to the terms of this Agreement and any scheduled maintenance and unavailability caused by: (a) actions or omissions of Client; (b) failures, errors, or defects in the facilities, hardware, software, or network of Client; or (c) circumstances that constitute a force majeure event or that are beyond Balances’s reasonable control, the Services will be available for access via the Website 99.0% of the time during of the applicable Subscription Term. Client’s sole remedy and Balance’s sole liability for failure to meet the aforementioned availability will be support in accordance with Section 6.2.

6.2. Support. Balance makes available web-based support through the Website, email, and phone during Pacific Time business hours. Any support services are subject to this Agreement and Balance’s applicable support policies, if any. Client is primarily responsible for its own account setup and onboarding. Balance may also provide onboarding, deployment, and other services under this Agreement. Balance’s ability to deliver the Services will depend on Client’s reasonable and timely cooperation and the accuracy and completeness of any information from Client needed to deliver the Services.

7. FEES, PAYMENT, AND PAYOUT SCHEDULE.

‍7.1. Fees. Balance provides the Services for the fees and other charges set forth on the Website at https://www.usebalance.com/pricing/, other location on the Website, or if applicable, in a separate Subscription Agreement.  We may, at any time, add new services for additional fees and charges, or prospectively modify fees and charges for existing services (including prospectively charging fees for the Services not previously charged for) effective thirty (30) days from the date of the applicable notice. You acknowledge that it is Your responsibility to ensure payment is made in advance for all paid aspects of the Services, and to ensure that Your credit or debit cards or other payment instruments accepted by Balance and/or its processor, including Stripe, continue to be valid and sufficient for such purposes. In addition to the Fees, you must reimburse Balance for any liabilities incurred by Balance as a result of your use of the Service in a manner not permitted by this Agreement or a PPSP Agreement, including penalties and fines. You agree that Balance will have the right to deduct the applicable Fees (including the Payments Service Fees) and any amounts otherwise due to Balance from your PPSP Account. If your PPSP Account balance is insufficient, Balance may debit the Client Bank Account to recover owed amounts.

7.2. Payment of Fees. Unless otherwise specified in a separate Subscription Agreement, all Subscription Fees will be paid monthly or annually in advance (though overage fees assessed on a per Transaction basis, if any, may be charged in arrears), and all references to currency set forth herein will mean U.S. dollars, with all payments hereunder to be made in U.S. dollars. Subscription Fees are non-refundable and non-creditable, except as expressly set forth in Sections 2.3 (Modification of the Services) and 8.3 (Termination for Cause). If the payment method selected on Client's Subscription is credit card, ACH, or direct debit, Client acknowledges and authorizes Balance to charge Fees and other amounts automatically, on an auto-renew basis on your Subscription Start Date (as defined below) for each subsequent Subscription Term. For the avoidance of doubt, all additional Subscription Fees for additional Services accessed by Client will be billed when the Service is first accessed by Client and automatically, on an auto-renew basis on Client’s existing Subscription Start Date. Balance may from time to time provide notice to Client regarding any Renewal Term(s) and the auto-renew processes. The Subscription will continue unless and until you or Balance terminate your Subscription in accordance with Section 8. You must cancel your Subscription before it renews in order to avoid billing the next periodic Subscription Fees to your account. If Client elects to pay by credit card, then you are responsible for both (a) enabling auto-recharge on your account and (b) ensuring that your account has a sufficient positive balance to cover all Fees when due. Should Balance be unable to process/receive the Fees when due and owing, payment shall be considered overdue. Balance will have the right to charge interest on all overdue amounts equal to the maximum amounts allowed by applicable Law. Additionally, after payment becomes overdue, Balance will have the right to immediately suspend Client’s access to the Services and/or seek to enforce Client’s payment obligations, including through the use of third-party services. If Balance sends Client’s account for collection and/or initiates legal action to collect overdue amounts, Balance may seek to recover all costs and expenses of such action, including reasonable legal or attorney's fees, court costs, and expenses.

7.3. Taxes and Regulatory Fees. Balance’s Fees are exclusive of all taxes, regulatory fees, or levies and Client must pay any applicable taxes, regulatory fees, or levies. All Taxes and Regulatory Fees imposed on the provision of the Services and all such Sales Taxes shall be borne solely by and paid by You to Balance and deemed to be in addition to the fees charged in connection with the Services. Where applicable, You shall be responsible for all Sales Taxes and Balance reserves the right to collect Sales Taxes retroactively.

7.4. Industry Fees and Surcharges. Your use of the Services may also be subject to certain industry-related fees or surcharges (such as fees imposed by telecommunications carriers or other over the top communications providers (for example, 10DLC-related fees)) (collectively, “Industry Fees”). Industry Fees may also include cost recovery fees representing a reasonable recovery of the charges, fees, and administrative expenses imposed on Balance and associated with the provision of the Services to you and your use of the Services. Balance’s Fees are exclusive of any such Industry Fees, and you will be required to pay any such Industry Fees related to your use of the Services. Where required by law, or at our own election, Balance will reflect such Industry Fees as a separate line on your invoice. Industry Fees may change at any time.

7.5. Fee Increase. Balance reserves the right to determine the applicable Fees for any Service(s). While Balance will make reasonable efforts to keep the information relating to Fees published on its Website up to date, you should check the Website periodically for information about current Fees. If any Fees (other than Taxes, Industry Fees, or governmental/regulatory fees, which may change at any time) are specified on your Subscription Agreement, Balance may increase Fees applicable to you upon thirty (30) days prior written notice, effective on the start date of your subsequent Subscription Term (if Client has not elected to opt out of the automatic renewal or renegotiate the Fees). Balance may also, from time to time and in its sole discretion, make promotional offers or different Fees available to its clients or other users. Such promotional offers will not apply to you or this Agreement unless specified in writing in your Subscription Agreement.

7.6 Payouts. The Payout Schedule means the frequency of deposits of your balance to your Client Bank Account. By default, Balance will arrange to settle Transaction funds to your Client Bank Account on a 24 hour rolling basis. The first payout for a new Balance account can be 7 to 14 days after the first successful payment is received. This delay allows our PPSP to mitigate some of the risks inherent with providing credit services.  The Payout Schedule refers to the time at which Balance will attempt to initiate a payout, and Balance will not be responsible for any nonconformance with the Payout Schedule due to the acts or omissions of any third party (e.g., a telecommunications provider or financial institution). The payout amount may also take some time to appear in your Client Bank Account balance, due to the operation of systems outside of Balance’s control. Balance reserves the right to modify the Payout schedule depending on your account activity, and Balance may delay or withhold a payout, notwithstanding the Payout Schedule, if Balance is entitled to do so under this Agreement.  You affirm that the account you designate as your Client Bank Account for the purposes of this agreement is: (a) owned by you, and (b) titled in your legal name or trade name. You also affirm that you are authorized to initiate settlements to and debits from the Client Bank Account you designate. You also agree that Balance has the right to withhold settlement to your Client Bank Account if we reasonably determine that we have incurred or may incur losses resulting from credit, fraud, or other legal risks associated with your use of the Service. If we exercise our right to withhold the settlement of funds for any reason, we will communicate the general reason for withholding the funds and give you a timeline and description of the preconditions that must be satisfied for releasing the funds. Additionally, if a refund or reversal is processed for any Transaction you complete using the Payments Service, you understand and agree that the initial processing fees for the related Transaction will not be refunded back to you unless the applicable processing fees for the associated Transaction are refunded to the PPSP.

7.7 Unclaimed Funds or Dormant Accounts. If you leave any funds dormant in a PPSP Account, or if you do not link and/or maintain a link to a valid Client Bank Account, you may have a balance that is deemed “unclaimed” or “abandoned” under applicable law (“Unclaimed Funds”). In such an event, Balance may be required by law to deliver the Unclaimed Funds to various government agencies. To the extent required by applicable law, Balance will give you notice if we hold Unclaimed Funds payable to you in an account beyond the applicable dormancy period for abandoned property. If Balance or the Payment Processing Service Provider is unable to contact you, we will treat the Unclaimed Funds in your PPSP Account as abandoned and will deliver them to the appropriate government authority.

8. TERM AND TERMINATION.

‍8.1. Term. This Agreement is effective until the applicable Subscription Term for the Services has expired or the Subscription is terminated as expressly permitted herein. Unless otherwise stated in Client’s Subscription Agreement, the initial term for any Subscription to the Services is either one (1) month or twelve (12) months and will automatically renew for subsequent periods of equal duration (the “Subscription Term”), unless either party gives written notice of non-renewal before the end of the then-current Subscription Term. Client may give notice of non-renewal by sending an email to support@usebalance.co. If no Subscription start date is specified on the applicable Subscription Documentation, the Subscription starts when Client first obtains access to the Services (“Subscription Start Date”). By signing up for the Services and agreeing to any Subscription Agreement, Client is agreeing to pay applicable fees for the entire Subscription Term. Client cannot cancel or terminate a Subscription Term except as expressly permitted by this Section 8.1 (Term) or Section 8.3 (Termination for Cause). Unless Client’s Subscription Documentation expressly states otherwise, any additional Services purchased during Client’s Subscription Term will be coterminous with Client’s most recent Balance platform Subscription Term.

8.2. Suspension of Services. Balance may suspend Client’s (or any Authorized User’s, as applicable) access to the Services, ability to send payment requests, or process Transactions if: (a) Client’s account is overdue; (b) we have reason to believe that Transactions my violate this Agreement; or (c) we suspect payment activity is unauthorized, fraudulent, or illegal and may expose you, Balance, or others to unacceptable risks. Balance may also suspend Client’s (or any Authorized User’s, as applicable) access to the Services, remove Client Data, or disable Third-Party Products if it determines that Client has breached Sections 3 (Use Rights; Restrictions) or 5 (Client Obligations), or that suspension is necessary to prevent harm or liability to other clients of Balance or third parties or to preserve the security, stability, availability, or integrity of the Services. Balance will have no liability for taking action as permitted above. For avoidance of doubt, Client will remain responsible for payment of Fees during any suspension period other than for any suspension that is not due to the fault of the Client and lasts longer than five (5) days. Unless this Agreement has been terminated, Balance will cooperate with Client to restore access to the Services once it verifies that Client has resolved the condition requiring suspension.

8.3. Termination for Cause. Either party may terminate this Agreement, including any related Subscription Documentation, if the other party: (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice detailing the breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). If Client terminates during the Subscription Term for any reason other than the foregoing, Client will be responsible for the Fees due for the entire Subscription Term. Balance may also terminate this Agreement or any related Subscription Agreement immediately if Client breaches Section 3 (Use Rights; Restrictions), Section 5 (Client Obligations), or for repeated violations of other Sections of this Agreement, or if applicable, a breach of the parties’ BAA.

8.4. Effect of Termination. Upon any expiration or termination of this Agreement or any Subscription Agreement: (a) Client’s license rights will terminate and it must immediately cease use of the Services and delete (or, at Balance’s request, return) any and all copies of any Balance Confidential Information in Client’s possession, custody, or control; and (b) Client’s right to access any Client Data in the applicable Services will cease, and unless otherwise precluded by a BAA or other obligation under applicable Law, Balance may delete any such data in its possession at any time. If Balance terminates this Agreement for cause as provided in Section 8.3 (Termination for Cause), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Client. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party. Termination will not affect your continued liability with respect to Transactions that you submit prior to the date of termination.

8.5. Survival. The following Sections survive any expiration or termination of this Agreement: 1 (Definitions); 3 (Use Rights; Restrictions); 4 (Client Data); 7 (Fees and Payment); 8 (Term and Termination); 9 (Confidential Information); 10 (Balance Technology); 11 (Third-Party Providers and Third-Party Products); 12 (Indemnification); 13 (Disclaimers); 14 (Limitations of Liability); 15 (Dispute Resolution); and 16 (General).

9. CONFIDENTIAL INFORMATION.

‍9.1. Obligation of Confidentiality. Except as otherwise expressly permitted in this Agreement, each party (as the receiving party) must: (a) hold in confidence and not disclose the other party’s Confidential Information to third parties; and (b) use the other party’s Confidential Information only as necessary to fulfill its obligations and exercise its rights under this Agreement. Each party may share the other party’s Confidential Information with its employees, agents, contractors, subcontractors, or Authorized Users having a legitimate need to know (which, for Balance, includes the subcontractors referenced in Section 16.6), provided that such party remains responsible for any recipient’s compliance with the terms of this Section 9 and these recipients are bound to confidentiality obligations no less protective than this Section.

9.2. Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (a) is or becomes public knowledge through no fault of the receiving party; (b) was known by the receiving party prior to receipt of the Confidential Information; (c) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (d) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A party may also disclose the other party’s Confidential Information to the extent required by law, subpoenas, or court orders, provided it uses commercially reasonable efforts to notify the other party (where permitted to do so) and cooperates in any effort by the other party to obtain confidential treatment for the information.

9.3. Remedies. The parties acknowledge that disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so upon breach of this Section, each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.

10. BALANCE TECHNOLOGY.

‍10.1. Ownership and Updates. By accepting this Agreement, Client acknowledges that it is obtaining only a limited right to use the Services and irrespective of any use of the words “purchase”, “sale”, or similar terms, no ownership rights are transferred to Client under this Agreement and, except as expressly permitted by such limited right, Client may not make any use of Balance Technology. Client agrees that Balance (or its suppliers) exclusively retains all rights, title, and interest (including all intellectual property rights) in and to all Services, products, any and all related documentation, software, technology, code, know-how, logos, trademarks, service marks, and templates (including in any reports or output obtained from the Services), anything delivered as part of support, materials or other services, and any updates, modifications, or derivative works of any of the foregoing, including as may incorporate any Suggestions (as defined below) provided by Balance (collectively, "Balance Technology") (which is deemed Balance’s Confidential Information) and reserves any licenses not specifically granted herein. Furthermore, Balance exclusively owns and reserves all right, title, and interest in and to Balance’s Confidential Information and any data, in anonymized or aggregated form that does not identify you, any end users, or any natural person, generated or derived from the use or operation of the Services, including volume, engagement, and performance results for the Services. The Services are offered as an online, hosted product. Accordingly, Client acknowledges and agrees that it has no right to obtain a copy of the software behind any Services and that Balance at its option may make updates, bug fixes, modifications, or improvements to the Services from time-to-time.

10.2. Suggestions. If Client elects to provide any suggestions, comments, improvements, information, ideas, or other feedback or related materials to Balance (collectively, “Suggestions”), Client hereby grants Balance a worldwide, perpetual, non-revocable, sublicensable, royalty-free right, and license to use, copy, disclose, license, distribute, and exploit any such Suggestions in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise. Nothing in this Agreement limits Balance’s right to independently use, develop, evaluate, or market products, whether incorporating Suggestions or otherwise.

11. THIRD-PARTY PROVIDERS AND THIRD-PARTY PRODUCTS.Balance may, from time to time, contract with a third party to facilitate certain features of the Services, including as described in Section 16.6 of this Agreement. Balance may also allow or facilitate Client to make arrangements with other third-party providers that provide products or services in connection with, but which are not included in, the Services as defined in this Agreement (“Third-Party Provider(s)”). If Client elects to use any Third-Party Provider(s) or any applications, integrations, add-ons, software, code, online services, systems, and other products that are not Balance Technology (“Third-Party Products”) in connection with the Services, such Third-Party Provider(s) or Third-Party Products may make Third-Party Content available to Client and may access Client’s instance of the Services, including Client Data. Client agrees and acknowledges that use of such Third-Party Provider(s) or Third-Party Products may require Client to enter into separate terms and conditions with such third-party. Unless Balance expressly agrees otherwise in a signed writing, Balance (a) is not a party to any such terms; (b) will not be liable thereunder; (c) does not warrant or support Third-Party Providers, Third-Party Products; or Third-Party Content; and (d) disclaims all responsibility and liability for Third-Party Providers and their access to the Services, including their modification, deletion, disclosure, or collection of Client Data. Balance is not responsible in any way for Client Data once it is transmitted, copied, or removed from the Services. Unless Balance expressly states otherwise in signed writing, Third-Party Providers are not “subcontractors'' under this Agreement, and Balance disclaims all responsibility and liability for the actions or omissions of any Third-Party Providers, including but not limited to Developers.

12. INDEMNIFICATION.

‍12.1. Indemnification by Client. Client will indemnify and hold harmless Balance and its officers, directors, employees, consultants, affiliates, subsidiaries, and agents (together, the “Balance Entities”) from and against any third-party claims and related costs, damages, liabilities, and expenses (including reasonable attorney’s fees) arising from or pertaining to: (a) your unauthorized use of, or misuse of, the Services, including but not limited to the Balance API, as applicable; (b) your violation of, or any claim that you have violated, any applicable Law or third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (c) any dispute or issue between you and any third party (including but not limited to your Customers, any Developer Partners, and any Third-Party Providers); (d) any demand, dispute, or issue (including without limitation fee disputes) between you and any Payment Service Provider(s) (as defined in the applicable Additional Terms); (e) any Client Data; (f) Balance’s use, as contemplated in this Agreement, of any information provided to Balance by you or your Customers; (g) breach or alleged breach of this Agreement, including Client’s warranties and obligations; or (h) if applicable, any breach or alleged breach of Client’s obligations contained in the BAA. Client also agrees to defend the Balance Entities against these claims at Balance’s request, but Balance may participate in any claim through counsel of its own choosing and the parties will reasonably cooperate on any defense. In the event Balance assumes exclusive defense of such claims, Client agrees to cooperate with our defense of any such claims. Client may not settle any claim without Balance’s prior written consent if the settlement does not fully release Balance from liability or would require Balance to admit fault, pay any amounts, or take or refrain from taking any action.

12.2. Indemnification by Balance. Balance will indemnify and hold Client harmless from and against any third-party claims and related costs, damages, liabilities, and expenses (including reasonable attorney’s fees) arising from or pertaining to (a) Balance’s gross negligence or willful misconduct; or (b) Balance’s infringement, misappropriation, or violation of a third party’s intellectual property rights. Balance also agrees to defend Client against these claims at Client’s request, but Client may participate in any claim through counsel of its own choosing and the parties will reasonably cooperate on any defense. Balance must not settle any claim without Client’s prior written consent if the settlement does not fully release Client from liability or would require Client to admit fault, pay any amounts, or take or refrain from taking any action.

12.3. Exclusions to Balance’s Indemnification. Balance will not be required to indemnify Client under Section 12.2(b) above, to the extent that the infringement, misappropriation, or violation of a third party’s intellectual property rights arises from: (a) modification of the Services by Client, its Authorized Users, Developer Partners, Third-Party Providers, affiliates, employees, or contractors in conflict with Client’s obligations or as a result of any prohibited activity under this Agreement, (b) use of the Services in a manner inconsistent with this Agreement, the Acceptable Use Policy, the Additional Terms, the Subscription Agreement, or any other agreement related to this Agreement, or (c) use of the Services in combination with any other application, product, or service not provided by Balance if such claim would not have occurred without such combination.

13. DISCLAIMERS.

‍13.1. EXCEPT AS PROVIDED EXPRESSLY HEREIN, ALL BALANCE TECHNOLOGY AND RELATED SERVICES, MATERIALS, AND CONTENT AVAILABLE THROUGH THE BALANCE TECHNOLOGY ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER BALANCE NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. BALANCE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT BALANCE TECHNOLOGY WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, THAT CLIENT DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT BALANCE TECHNOLOGY WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE, AND BALANCE DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. BALANCE WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CLIENT PROPERTIES, THIRD-PARTY PROVIDERS, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-BALANCE SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR THE COLLECTION, USE, AND DISCLOSURE OF CLIENT DATA AUTHORIZED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CLIENT BASED UPON BALANCE TECHNOLOGY OR BALANCE’S RELATED SERVICES (INCLUDING CHANGES TO CLIENT PROPERTIES). THE DISCLAIMERS IN THIS SECTION 13 WILL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN. CLIENT MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.

13.2. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR BALANCE ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE BALANCE ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. BALANCE DOES NOT PROVIDE ITS CLIENTS WITH LEGAL ADVICE REGARDING DATA PRIVACY OR COMPLIANCE WITH RELEVANT LAW IN ANY JURISDICTION, AND ANY STATEMENTS MADE BY BALANCE TO ITS CLIENT(S) DO NOT CONSTITUTE LEGAL ADVICE. USE OF THE SERVICES DOES NOT GUARANTEE COMPLIANCE WITH APPLICABLE LAWS IN ANY JURISDICTION.

14. LIMITATIONS OF LIABILITY.

‍14.1. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL BALANCE OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL BALANCE’S OR ITS SUPPLIERS’ TOTAL LIABILITY EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID BY CLIENT TO BALANCE FOR THE APPLICABLE SERVICE(S) OR RELATED SERVICE(S) IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES, PODIUM’S TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE FIFTY U.S. DOLLARS ($50.00 US). NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 14 EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 14 WILL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY SUCH LAW. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 14 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY BALANCE TECHNOLOGY, OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 14 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

14.2 Balance is not responsible for Client’s obligations to its Customers (including properly describing and delivering the goods or services being sold to Customers). You are solely responsible for, and Balance expressly disclaims all liability for, your compliance with applicable laws and obligations related to your provision of the goods or services to your Customers. This may include providing customer service, notification, and handling of refunds or Customer complaints, provision of receipts, registering your legal entity, or other actions not related to the Services. You agree to indemnify Balance for any losses we incur based on your failure to properly describe or deliver goods or services, or comply with your legal or contractual obligations to any Payment Service Provider or your Customers.

15. DISPUTE RESOLUTION.

‍IN THE EVENT OF A DISPUTE BETWEEN YOU AND BALANCE (INCLUDING ANY DISPUTE OVER THE VALIDITY, ENFORCEABILITY, OR SCOPE OF THIS DISPUTE RESOLUTION PROVISION), OTHER THAN WITH RESPECT TO CLAIMS FOR INJUNCTIVE RELIEF AND DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, THE DISPUTE WILL BE RESOLVED BY FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY. IF YOU DO NOT WANT TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MAY OPT OUT. IN ORDER TO OPT OUT OF THIS ARBITRATION PROVISION, YOU MUST NOTIFY BALANCE IN WRITING THAT YOU DO NOT WANT TO RESOLVE DISPUTES WITH US BY ARBITRATION, AND SUCH NOTICE SHOULD BE DELIVERED BY EMAIL TO LEGAL@USEBALANCE.CO WITHIN 30 DAYS OF THE EARLIER OF (A) THE DATE YOU FIRST ACCESS OR USE THE SERVICES; AND (B) THE DATE YOU CLICK OR TAP ANY BUTTON OR BOX MARKED “ACCEPT,” “AGREE,” OR “OK” (OR A SIMILAR TERM) IN CONNECTION WITH THIS AGREEMENT.

The arbitration will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules, as amended by this Agreement. The Consumer Arbitration Rules are available online at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf, as amended by this Agreement. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by You or Balance that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim, or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude You from bringing issues to the attention of federal, state, or local agencies and, if the law allows, they can seek relief against Balance for You.

You agree that this Agreement and the relationship between You and Balance shall be governed by the Federal Arbitration Act and the laws of the State of California without regard to conflict of law principles. If You opt out of arbitration pursuant to the terms above, then the following jurisdiction and venue provision shall apply: All Disputes arising out of or related to this Agreement for which arbitration does not apply will be subject to the exclusive jurisdiction and venue of the state and federal courts located in the City and County of Orange County, California. Notwithstanding this, each party shall still be allowed to apply for injunctive or other equitable relief to protect or enforce that party’s Intellectual Property Rights or misuse of Confidential Information or enforcement of Client’s payment obligations as set forth under Section 7 in any court of competent jurisdiction where the other party resides or has its principal place of business.

CLASS ACTION WAIVER

YOU AGREE THAT ANY PROCEEDINGS TO ARBITRATE, LITIGATE OR OTHERWISE RESOLVE A DISPUTE IN ANY FORUM ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, CONSOLIDATION OF YOUR DISPUTE WITH OTHER ARBITRATIONS, OR ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL ARE NOT PERMITTED AND ARE WAIVED BY YOU, AND AN ARBITRATOR WILL HAVE NO JURISDICTION TO HEAR SUCH CLAIMS. IF A COURT OR ARBITRATOR FINDS THAT THE CLASS ACTION WAIVER IN THIS SECTION IS UNENFORCEABLE AS TO ALL OR SOME PARTS OF A DISPUTE, THEN THE CLASS ACTION WAIVER WILL NOT APPLY TO THOSE PARTS. INSTEAD, THOSE PARTS WILL BE SEVERED AND PROCEED IN A COURT OF LAW, WITH THE REMAINING PARTS PROCEEDING IN ARBITRATION. IF ANY OTHER PROVISION OF THIS DISPUTE RESOLUTION SECTION IS FOUND TO BE ILLEGAL OR UNENFORCEABLE, THAT PROVISION WILL BE SEVERED WITH THE REMAINDER OF THIS SECTION REMAINING IN FULL FORCE AND EFFECT.

16. GENERAL.

‍16.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign or purport to assign any of its rights or obligations under this Agreement without the advance written consent of the other party (which must not be unreasonably withheld), except that Balance may assign this Agreement without consent to an affiliate or in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 16.1 will be null and void.

16.2. Notices. Any notice or communication to Balance under this Agreement must be in writing. Client must send any notices under this Agreement (including breach notices) to Balance by email to legal@usebalance.co. Balance may send notices to the e-mail addresses on Client’s account or, at Podium’s option, to Client’s last-known postal address. Balance may also provide operational notices regarding the Services or other business-related notices through conspicuous posting of such notice on Podium’s Website or the Services. Each party hereby consents to receipt of electronic notices and agrees that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing. Balance is not responsible for any automatic filtering Client or its network provider may apply to email notifications.

16.3. Publicity. Unless otherwise specified in the applicable Subscription Agreement, Balance may use Client’s name, logo, and marks to identify Client as a Balance Client on Balance’s website and other marketing materials.

16.4. Balance Communication with Client. You agree that Balance may send you emails and text messages, including transactional, operational, and marketing messages, possibly using automated technology, to the email or phone number you provide to Balance. Message and/or data rates may apply to such messages, and you may opt out at any time. You will keep your contact information up to date and will notify Balance immediately in the event that your contact information changes.

16.5. Referral Programs. Balance may, from time to time, and in its sole discretion, offer referral programs or opportunities to certain Balance clients or users. Such programs or opportunities may include incentives for such clients or users to promote Balance and/or its Services to their family or friends. Participation in such programs or opportunities is completely voluntary and is subject to this Agreement and the Balance Referral Program Terms (“Referral Program Terms”). Balance may modify, discontinue, or terminate any referral program or similar opportunity at any time, without notice.

16.6. Subcontractors. Balance may use subcontractors and permit them to exercise the rights granted to Balance in order to provide the Services and related services under this Agreement. Except as otherwise set forth in the DPA, Balance will not be required to obtain Client’s consent or provide notice of such subcontracting or delegation. To avoid any doubt, Balance remains responsible for the performance of its obligations or the exercise of its rights under this Agreement regardless of any subcontracting or delegation.

16.7. Subpoenas. Nothing in this Agreement prevents Balance from disclosing Client Data to the extent required by law, subpoenas, or court orders, but Balance will use commercially reasonable efforts to notify Client where permitted to do so.

16.8. Independent Contractors. The parties to this Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

16.9. Force Majeure. Neither party will be liable for any delay or failure to perform its obligations under this Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, disruption in transportation systems, disruption of labor force, national or state emergency, epidemic, pandemic, communicable disease outbreak, failure or reduction of power or telecommunications or data networks or services, or government act or order.

16.10. Amendments; Waivers. Balance may update or modify these Terms (including the Additional Terms and any referenced policies and other documents) from time to time by giving reasonable notice and posting a revised version on the Website or Services or by notification via the email associated with your account. If a change to these Terms materially modifies your rights or obligations, you may be required to click through the updated Terms to show acceptance and to continue to use the Services. Material modifications are effective upon the earlier of your acceptance of the modified Terms or upon your next subsequent Subscription Term. Immaterial modifications will become effective upon posting or notification, and continued use of the Services or Website, following the update, will constitute acceptance of the updated Terms. If Client does not agree to the updated Terms, Client will no longer have the right to use the Services, except where applicable Law requires different treatment. Except as otherwise described in this Section 16.10, any modification, supplementation, replacement, novation or amendment to this Agreement must be made in writing and signed by a duly authorized representative of each party (each in its discretion). No waiver will be implied from conduct or failure to enforce or exercise rights or delay in exercising any right under this Agreement. No waiver of any provision of this Agreement will constitute a waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement will not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision. Waivers must be made in writing and executed by a duly authorized representative of the waiving party.

16.11. Headings. The headings used in this Agreement are for ease of reference only. They are not intended as a complete restatement of the matters contained under each heading, and you acknowledge that you have read and understand all the text of this Agreement, and not just the headings.

16.12. Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect, and all other provisions remain in full effect.

16.13. No Third-Party Rights. Nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement. Client acknowledges that each Subscription only permits use by and for the legal entity or entities identified in the Subscription Agreement and not any affiliates. Furthermore, Client’s affiliates are not permitted to use the Services under these Terms unless an affiliate agrees to these Terms individually and creates its own account.

16.14. Attorneys’ Fees and Costs. The substantially prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs for the action.

16.15. Entire Agreement. This Agreement, including these Terms and any applicable Subscription Documentation, represents the parties’ complete and exclusive understanding relating to the Agreement’s subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to the Balance Technology or any other subject matter covered by this Agreement. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) will not apply to this Agreement regardless of when or where adopted. Any terms provided by Client (including as part of any purchase order or other business form used by Client) are for administrative purposes only and have no legal effect.

16.16. Counterparts; Electronic Transmission. This Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one and the same instrument. A facsimile or other reproduction of this Agreement may be executed by one or more parties hereto, and an executed copy of this Agreement may be delivered by one or more parties hereto by facsimile or similar electronic transmission device pursuant to which the signature of or on behalf of such party can be seen, and such execution and delivery will be considered valid, binding and effective for all purposes. At the request of any party hereto, all parties hereto agree to execute an original of this Agreement as well as any facsimile or other reproduction hereof.

16.17. Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the State of California and the United States, without regard to choice or conflict of law rules thereof. The exclusive jurisdiction and venue for actions related to the subject matter of this Agreement will be the state courts located in Orange County, California or the United States District Court for the District of California, and both parties submit to the personal jurisdiction of these courts.

16.18. Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.