1. SERVICES AGREEMENT WITH BALANCE POINT
1.1 Your agreement with Balance Point is made up of the general terms set out in this document for those services specifically chosen by you and agreed upon in the applicable services pricing schedule (collectively either “Terms” or “Agreement”). This Agreement solely governs the provision of Services to you by Balance Point and all of Balance Point’s services and associated documentation (whether in printed or electronic form) are provided to you only under the terms of this Agreement. Client acknowledges that it will be required to confirm which Services are requested of Balance Point and will also be required to execute all necessary forms before Balance Point can begin to render such services.
1.2 “Balance Point’’ means X-Pay, LLC d/b/a Balance Point – 65 Harristown Road, Glen Rock, New Jersey, 07452.
1.3 “Balance Point Website” means www.BalancePointPayroll.com (operated by Balance Point) and any other websites authorized by Balance Point which link to the Agreement.
1.4 “Client Name” means your business name as stated in your federal W-9 form.
1.5 “Services” means collectively the human capital management services anticipated under this Agreement, chosen by you, and provided by Balance Point. Any requested changes to your chosen Services will be implemented upon receipt and written confirmation of such changes by Balance Point.
1.6 “Software” means such software provided to you by Balance Point that is necessary for you to implement or otherwise use the Services.
1.7 “you”, “your” or “Client” means the business entity agreeing to be bound by the Agreement.
2. ACCEPTANCE OF THE TERMS
2.1 The Agreement supersedes and modifies any prior agreement you may have had with Balance Point. To the extent there is any inconsistency between any prior agreement you may have had with Balance Point and the Agreement, the Agreement shall take precedence.
2.2 In order to use or continue using the Services you must accept this Agreement. The Terms are accepted by you (a) when you click to accept or agree to the Terms; or (b) when you use the Services. We advise you to print a copy of the Agreement for your records. You can also download a copy of the Terms applicable to your account on www.BalancePointPayroll.com/terms. This Agreement remains effective from the date of acceptance until terminated by you or Balance Point in accordance with section 11.
2.3 You cannot accept the Agreement if: (a) you are not a US-based business or (b) you have any employees working or residing outside The United States of America and its possessions, territories and military bases.
3. CHANGES TO THE TERMS
3.1 Balance Point may make changes to the Agreement from time to time. Balance Point will publish the changes at www.BalancePointPayroll.com/terms. The changes will be effective after their publication and your continued use of the Services after such publication. Please review the Terms on a regular basis. You understand and agree that your express acceptance of the Terms or your use of the Services, including but not limited to by your use of your Balance Point login account after the date of publication, shall constitute your agreement to the updated Terms. Should you not agree to the amended Terms, you may terminate your relationship with Balance Point in accordance with section 11 below or simply cease using the Services.
4. REPRESENTATIONS AND WARRANTIES
4.1 Balance Point is not a law firm, accounting firm or investment advisory firm and will not render any legal, tax, accounting, or investment advice in connection with the performance of the Services. Client acknowledges Balance Point will never render any legal, tax, accounting, or investment advice in connection with the performance of the Services. Balance Point is also not a fiduciary of Client, a fiduciary of any Client benefit plan offered for the benefit of Client’s employees, or the employer or joint employer of Client’s employees. Balance Point will not be responsible for Client’s compliance with federal, state, or local statutes, regulations, or ordinances, including, but not limited to, the Fair Labor Standards Act or any wage and hour laws.
4.2 Client agrees, represents and warrants it will comply with all applicable tax and employment federal, state, and local laws or ordinances during the term of the Agreement.
4.3 Client will designate authorized contact(s) that will provide Balance Point with information and directives necessary for Balance Point to perform the Services (collectively “Client Information”). Client is responsible for the accuracy of any Client Information provided by the authorized contacts and/or Client. Client agrees, represents and warrants that it is solely responsible for designating all authorized contacts, establishing the level or type of access being granted to each contact, and keeping all contacts and access levels current at all times. Client is solely responsible for informing Balance Point of any changes to contacts status.
4.4 From time to time, Balance Point may request additional information from you for the purpose of supplying the Services to you. You shall ensure that any such information is complete, up-to-date and accurate.
4.5 The client contact agreeing to the terms of this Agreement agrees, represents and warrants he or she has the authority to execute this Agreement on behalf of Client and bind Client to this Agreement. Client agrees, represents and warrants that it possesses full power and authority to enter into this Agreement, and has read and agrees to the terms and conditions set forth in the Agreement.
5. USE AND SAFEGUARDING OF ONLINE ACCOUNT ACCESS
5.1 Client can access Services online through a personal computer, mobile device or other electronic device (an “Online Account”). In order to use the Online Account, you will need an Internet connection. You are responsible for providing all equipment required to access the Internet. Connecting to the Internet via a corporate or other private network which masks your device may disable authentication tools utilized by Balance Point.
5.2 When accessing an Online Account, we recommend that you choose a password that is hard to guess and consists of letters, numbers and symbols. You are solely responsible and liable for all activities conducted through your Online Account (“Online Account Access”). To prevent unauthorized use, you shall keep your user name and password confidential and shall not share it with any third party or use it to access third party websites or services. If you suspect that someone else knows your password, then you shall immediately change it in order to protect the security of your Online Account. It is your responsibility to ensure that you do not respond to any unsolicited requests for passwords or other data. Balance Point takes no responsibility for your failure to comply with your obligations regarding Online Account Access, including any compromise of your credentials for accessing the Online Account.
5.3 Client is solely responsible for (i) designating who is authorized to have access to the Online Account; (ii) safeguarding all passwords, usernames, logins or other security features used for Online Account Access; (iii) use of Online Account under any usernames, logins, or passwords; (iv) ensuring that the use of the Online Account complies fully with the provisions of this Agreement; and (v) any unauthorized access, or use, of the Online Account caused by Authorized Users’ actions or inactions, including, without limitation, its failure to safeguard Online Account or Online Account Access. Client agrees to immediately notify Balance Point of any actual or suspected unauthorized use of Online Account, and acknowledges that Client is solely responsible for damages resulting from Client’s failure to timely notify Balance Point. Balance Point reserves the right to limit, suspend, or terminate Client’s and/or Authorized User(s) access to Online Account should Balance Point have reason to believe that the security or confidentiality of Online Account or Online Account Access has been compromised.
Client acknowledges that Authorized Users select the security level for Online Account Access and Client is solely responsible for these selections. Client further acknowledges that it has reviewed all of the security levels and has determined the level or levels for its Authorized Users that is commercially responsible for providing security against unauthorized access and meets Client’s requirements given the size, type, frequency, of the Services it will receive from Balance Point. Client is solely responsible for implementation of an information security program appropriate to safeguard the Online Account and Online Account Access and which is consistent with all applicable federal, state, and/or local statutes or regulations; safeguarding Online Account and Online Account Access for any third-party services integrated into the Services; maintenance and routine review of computing and electronic system usage records (i.e. log files); and the security of its own data, data storage, computing device(s), other electronic systems, and network connectivity. CLIENT ACKNOWLEDGES AND AGREES THAT BALANCE POINT AND ITS SOFTWARE VENDORS ARE NOT LIABLE TO CLIENT, CLIENT’S EMPLOYEES OR ANY OTHER THIRD-PARTY FOR ANY INJURY, LOSSES, OR DAMAGES RESULTING FROM UNAUTHORIZED ACCESS OR USE OF THE ONLINE ACCOUNT, INCLUDING BUT NOT LIMITED TO SUCH UNAUTHORIZED ACCESS CAUSED BY YOUR FAILURE TO SAFEGUARD YOUR CREDENTIALS AND YOUR FAILURE TO SECURE YOUR COMPUTER NETWORK AND/OR DEVICES.
5.4 You may link to your Online Account from another website owned by you, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it. You must not establish a link in such a way as to suggest any form of association, approval or endorsement by Balance Point where none exists. You may not frame the Site on any other site. Balance Point may revoke the permission to link at any time at its sole discretion and will notify you in this respect.
6. CLIENT CONFIDENTIAL INFORMATION
6.1 Balance Point is committed to respecting the confidentiality of Client Confidential Information. For purposes of the Agreement, “Client Confidential Information” will mean all information disclosed or otherwise made available by Client to Balance Point that is marked confidential and the name, social security number, date of birth, address, bank, and/or wage information of Client and Client’s employees provided to Balance Point by Client. Balance Point will use reasonable care to prevent the disclosure of such Client Confidential Information to any unauthorized person or entity. Balance Point may disclose Client Confidential information to its employees, agents, and contractors to (i) to perform Services, (ii) integrate third-party services into the Services; (iii) perform analysis to determine Clients qualification to receive future services; (iv) collect Amounts Due and may disclose Client’s payment experiences with Balance Point to the credit reporting agencies and supply Vendor references on Client’s behalf. Balance Point may also disclose Client Confidential Information (i) to its attorneys, accountants, and auditors; and pursuant to federal, state, or local law, regulation, court order legal process, or governmental investigation. In the event of any compromise or security
breach resulting in the disclosure or possible disclosure of Client Confidential Information, Balance Point will notify Client as legally required of such compromise or breach. The obligations set forth in this section will not apply to any Client Confidential Information that (i) Client has agreed is free of any nondisclosure obligations; (ii) at the time of disclosure was free of any nondisclosure obligations; (iii) is independently developed by Balance Point or that Balance Point lawfully received, free of any nondisclosure obligations, from a third-party having the right to furnish such Client Confidential information; (iv) is or becomes available to the public without any breach of this Agreement or unauthorized disclosure; or (v) is already in the possession of the requesting party.
7. CLIENT INFORMATION AND REMITTING OF FUNDS
7.1 Client will execute and/or provide all documentation that Balance Point requires to perform its responsibilities under the Agreement including, where necessary, taking all corporate action. Client acknowledges that Balance Point may be required to obtain documents necessary to verify the identity of Client, pursuant to applicable federal/or state statutes or regulations. Client will provide Balance Point with all necessary Client Information pertaining to Client’s employees at least two (2) banking days prior to a payroll check date. Client acknowledges that Client is responsible for any delayed remittance of wages, taxes, and garnishments, and additional processing fees incurred as a result of its failure to provide Client Information at least two (2) banking days prior to a payroll check date. Balance Point shall not be required to obtain authorization from Client to act on Client Information.
7.2 Client will review all reports, documents, and data provided, made available, or accessible by Client on Client’s account, and Client will inform Balance Point of any inaccuracies within three (3) business days of receipt or availability. Balance Point will not be responsible for errors that result from Balance Point’s reliance on Client Information.
8. PAYMENT OF FEES
8.1 Client will pay all fees, including, but not limited to, fees for all Balance Point Services, each pay period through Electronic Funds Transfers (“EFT”) when due (collectively “Fees”). Minimum monthly fees are due in the event the Client fails to process a payroll or whose payroll fails to meet the minimum monthly charge during the month. Fees include minimum monthly charge, insufficient funds, late fees and banking fees. Balance Point’s Fees are subject to change upon thirty (30) days notification to Client. Balance Point may, in its sole discretion, require a security deposit from Client, and Client waives any right to interest that may accrue on any amounts, including, but not limited to, Client Liability, fees, and security deposits received by Balance Point.
8.2 Client agrees to remit funds to Balance Point representing the amount due to pay Client’s employees, remit taxes, or pay garnishments through an EFT, or such other payment method as required by Balance Point.
8.3 Balance Point requires payment of Fees or Client Liability (collectively “Amounts Due”) through an original EFT, Client (i) will execute all documentation needed by Balance Point to originate EFT transactions and to verify availability of funds in Client’s bank account; (ii) agrees that the funds representing the Amounts Due will be on deposit in Client’s bank account in collectible form and in sufficient amount when due (“Funding Deadline”); and (iii) authorizes Balance Point to collect all Amounts Due from Clients bank account on the Funding Deadline. All EFT’s are performed in compliance with the National Automated Clearing House Association Operating rules (“NACHA”). Client agrees (i) to follow NACHA, as they are amended from time-to-time; (ii) to assume the responsibilities of an initiator of EFT’s, if applicable; (iii) that it will not initiate any EFT that violates any law; and (iv) that Balance Point may identify Client to banks involved in the EFT. Client further agrees that it will notify Balance Point, pursuant to applicable NACHA and federal regulations, if funding for Client’s payroll is received from a foreign financial agency.
8.4 If Balance Point requires payments of Amounts Due by a wire transfer or other method, Client agrees to provide Balance Point with all information necessary to confirm receipt of the payment prior to the Funding Deadline.
8.5 If sufficient funds are not available on the Funding Deadline (“Client default”), Balance Point may take such an action to collect Amounts Due including, but not limited to, reissuance of the EFT and assessing insufficient fund fees of $150.00 per failure, as well as an additional $100.00 per day until lost funds are recovered. An EFT failure of greater than $50,000 will incur an additional fee of $0.72 per $1,000.00. Additionally, Balance Point reserves the right to reverse any and all payroll transactions related to an unfunded payroll to recoup Balance Point’s lost funds. Client acknowledges that Client is responsible for any delay in remittance of wages, garnishments, or taxes if Balance Point is unable to confirm receipt of funds prior to the Funding Deadline.
9.1 In the event of a Client default, Balance Point may, at its sole option, terminate the Agreement or a portion thereof, without notice and declare all Amounts Due immediately due and payable. Client agrees to promptly reimburse Balance Point for all advances or overpayments made by Balance Point and to pay interest on the advances at the rate of one and one-half percent (11⁄2%) per month, or the maximum allowable by applicable law, until paid. Client agrees that Balance Point may initiate an EFT to Client’s bank account for any past Amounts Due. Client will be responsible for the costs of collection of Amounts Due including, but not limited to attorney’s fees and court costs. Balance Point may, in its sole discretion, commence an action within the County of
Bergen, State of New Jersey, or in any other of competent jurisdiction, for any monies due and owing from Client to Balance Point.
9.2 Client agrees that Balance Point may apply any and all balances it is holding for Client to Amounts Due owed to Balance Point. In the event Balance Point remits an overpayment of payroll taxes, Balance Point may, at its sole discretion, advance funds to Client. In the event Balance Point advances overpayment funds to Client, then Client agrees that it will reimburse Balance Point for the overpayment within the sooner of five (5) days of (i) receiving the overpayment amount from the taxing authority; or (ii) being notified that the overpayment amount would be applied to an outstanding tax liability of Client; or (iii) the Agreement being terminated by either party.
10. LIMITED USE OF SERVICES AND RELATED LICENSE
10.1 The Services, Software and the Balance Point Website contain proprietary and confidential information that is protected by intellectual property laws and treaties. For example, the content and compilation of content included on the Balance Point Website such as sounds, text, graphics, logos, icons, images, audio clips, digital downloads and software, are the property of Balance Point, its affiliates or licensors and are protected by United States and international copyright laws. Such copyright protected content cannot be reproduced without Balance Point’s express permission.
10.2 Balance Point and/or its licensors retain exclusive ownership of the Services and Balance Point Website and all intellectual property therein (whether or not registered and anywhere in the world). You will not take any action to jeopardize, limit or interfere with Balance Point’s and/or its licensors’ intellectual property rights in the Software, Products and/or Balance Point Websites. You expressly disclaim the passing of title to the Services or any other proprietary rights to you by virtue of this Agreement.
10.3 Balance Point has registered and filed applications to register its trademarks, including US Registered Trademarks Nos. 4,763,763 and 4,751,819. Balance Point’s trademarks and trade dress may not be used in connection with any product or service that is not Balance Point’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Balance Point. All other trademarks not owned by Balance Point or any of its related companies that appear on this site are the property of their respective owners. You are not permitted to and shall not register or use any trade name, trademark, logo, domain name or any other name or sign that incorporates any of Balance Point’s intellectual property (in whole or part) or that is confusingly similar thereto.
10.4 In consideration of Balance Point providing the Services to Client, Client shall also not: (i) make the Services available to anyone other than Client’s employees; (ii) copy any features, functions or graphics of the Services; (iii) sub-license, sell, assign, rent, lease, export, import, distribute or transfer or otherwise grant rights to any third party; (iv) use
the Services to store or transmit infringing, libelous, or otherwise unlawful material, or to store or transmit material in violation of third-party privacy rights; (v) use the Services to store or transmit viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents or programs; (vi) interfere with or disrupt the integrity or performance of the Services; (vii) attempt to gain unauthorized access to the Services or related systems or networks. (viii) use the Services if Client is a direct competitor of Balance Point or acting on behalf of a direct competitor of Balance Point; (ix) use the Services for purposes of monitoring the Services’ availability, performance, or functionality; (x) use the Services for any other benchmarking or competitive purposes; (xi) copy, frame, or mirror any part or content of the Services; (xii) undertake, cause, permit or authorize the modification, creation of derivative works or improvements, translation, reverse engineering, decompiling, disassembling, decryption, emulation, hacking, discovery or attempted discovery of the source code or protocols of the Services or any part or features thereof; (xiii) remove, obscure or alter any copyright notices or other proprietary notices included in the Services; (xiv) use the Services or cause the Services (or any part of it) to be used within or to provide commercial products or services to third parties; (xv) use the Services in any time- sharing or service bureau arrangement; and (xvi) make any claim to be a third party beneficiary of Balance Point’s rights under any license agreement related to the provision of the Services or acknowledge that this Agreement does not give Client rights as to such license agreement.
10.5 Subject to your compliance with the Agreement, you are granted a limited, non- exclusive, non-sublicensable, non-assignable, license to the Software necessary to utilize the Services via your Online Account on a personal computer, mobile phone or other device. Balance Point reserves all intellectual property rights not expressly granted to you under the Agreement.
11. TERMINATION OF YOUR AGREEMENT WITH BALANCE POINT
11.1 Except as otherwise provided, either you or Balance Point may terminate the Agreement upon ninety (90) days-notice provided to the other party. Balance Point may immediately terminate the Agreement, or a portion thereof, if: (i) Client becomes subject to receivership, bankruptcy, or is insolvent; (ii) Balance Point, in its sole discretion, determines that a material adverse change has occurred in the financial condition of Client; (iii) Client fails to have sufficient funds on the Funding Deadline; (iv) Balance Point determines, in its sole discretion, that any federal, state, or local legislation, regulatory action, or judicial decision adversely affects its interests under the Agreement; (v) in respect of a particular Service, on thirty (30) days-notice if Balance Point decides to cease offering that Service; (vi) Balance Point reasonably suspects that you or someone on your behalf are using the Services to break the law or infringe upon third party rights; (vii) reasonably suspects that you are using our Services fraudulently or that your Online Account is being used by a third party fraudulently; or (viii) you are in breach of the Agreement.
11.2 Termination by Client without 90 days written notice shall result in a one-time termination fee equal to the last complete month of billing. Termination of the Agreement will not relieve Client of any obligations, including, but not limited to, its payment obligations. Data can be accessed after termination for an annual, non- refundable payment of $500.00 or a fee of $3.00 per active employee, whichever is greater.
11.3 Balance Point shall affect such termination by preventing your access to your Online Account or any other available user account (as applicable). Balance Point reserves the right to cancel your account if it has been inactive for more than ninety (90) days during a one (1) year period.
11.4 Upon termination of your relationship with Balance Point: (a) all licenses and rights to use the Services shall immediately terminate and (b) you will immediately cease any and all use of the Services and Online Account.
12. EXCLUSION OF WARRANTIES, LIMITATION OF LIABILITY
12.1 For the purposes of this section, “Balance Point” includes its affiliated legal entities and all their directors, officers, agents, licensors and employees.
12.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND PROVIDED WITH NO WARRANTIES WHATSOEVER; BALANCE POINT DOES NOT MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS AND EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SOFTWARE AND SERVICES INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. BALANCE POINT FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE, NOR DOES BALANCE POINT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET.
12.3 From time to time, Balance Point may need to perform maintenance on or upgrade the Software or the underlying infrastructure that enables you to use the Services. This may require Balance Point to temporarily suspend or limit your use of some or all of the Software until such time as this maintenance and/or upgrade can be completed. You will not be entitled to claim damages for such suspension or limitation of the use of any Software. Balance Point cannot guarantee that the Software will always function without disruptions, delay or errors.
12.4 YOU ACKNOWLEDGE AND AGREE BALANCE POINT WILL, UNDER NO CIRCUMSTANCES, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS INCURRED BY CLIENT PURSUANT TO THIS AGREEMENT OR BY THE TRANSACTIONS CONTEMPLATED BY IT, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, OR WARRANTY), OR AS A RESULT OF BALANCE POINT’S EXERCISE OF ITS RIGHTS UNDER THE AGREEMENT, EVEN IF BALANCE POINT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.5 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, BALANCE POINT’S TOTAL AGGREGATE LIABILITY TO YOU IN CONNECTION WITH ANY CLAIM UNDER THE AGREEMENT (WEATHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY) FOR ANY DAMAGES OR LOSS (MONETARY OR OTHERWISE) MADE BY CLIENT OR ANY THIRD PARTY SHALL NOT EXCEED THE AMOUNT PAID BY CLIENT FOR THE SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE RELEVANT CLAIM, SUBJECT TO A MAXIMUM OF TEN THOUSAND DOLLARS IN ALL CASES.
13. USE OF THIRD-PARTY SERVICES
13.1 At Client’s option, Client can integrate certain third-party services into the Services. These third-party services are not provided by Balance Point. Client agrees to hold harmless and release Balance Point from any liability relating to Client’s use of third- party services or integration of the Services with third-party Services. Client’s ability to use third-party services may be limited according to the third-party’s terms and conditions. When Client integrates with a third-party service, Client authorizes Balance Point to share any Client data, including Client Confidential Information, as may be needed by the third-party to provide the third-party services. Balance Point is not liable for any disclosure of Client Confidential Information by any such third-party. If Client does not opt to integrate third-party services into the Services, the provisions of this section shall not apply.
14. CLIENT DATA SECURITY REQUIREMENT
14.1 Client is solely responsible for implementation of an information security program appropriate to safeguard Client’s computer systems, and the Online Account and Online Account Access, which is consistent with all applicable federal, state, and/or local statutes or regulations; safeguarding Online Account and Online Account Access for any third-party services integrated into the Services; maintenance and routine review of computing and electronic system usage records (i.e. log files); and the security of its own data, data storage, computing device(s), other electronic systems, and network connectivity. Such information security program shall also include at a minimum the routine and timely patching and updating of all software used by Client.
14.2 Client shall protect Client’s computer systems, and the Online Account and Online Account Access, against the risk of penetration by, or exposure to, an unauthorized third party. Client shall implement and maintain current industry standard anti-virus measures to detect, prevent and remove computer viruses and/or other contaminants designed to damage, alter, delete, disable, or permit unauthorized access to, Client’s computer systems, and the Online Account and Online Account Access, and to prevent the spread of computer viruses between the parties which access or exchange data or software through any network connectivity. Client represents and warrants that Client shall not introduce into Balance Point’s computer systems, databases, or software, any computer viruses, worms, trap doors, trojan horses, spyware, adware, hoaxes, extraneous programming, malware or harmful code, unauthorized remote access or administration tool programming or similar unauthorized program and malicious code that does or can disable, damage, corrupt, interfere with or delete any element of software, data, computer or electronic records or files, including, but not limited to, that which allows Client or any third party to access Balance Point’s computer, telecommunication and/or other information systems without Balance Point’s prior authorization. Client shall not in any way tamper with, compromise, or attempt to circumvent any physical or electronic security or audit measures employed by Balance Point.
14.3 Client shall not access or utilize the Services for any purpose other than that using the Services pursuant to this Agreement. Client shall monitor all applicable Client systems for security breaches, potential breaches and suspicious activity. In the event Client discovers or is notified of a breach of security relating to Client’s computer systems, or any other event that compromises the security, confidentiality or integrity of and the Online Account and Online Account Access (an “Incident”), Client shall, as promptly as practicable under the circumstances (i) notify Balance Point of such Incident, (ii) investigate and mitigate, or if possible, remediate, the effects of the Incident and (iii) provide Balance Point with a written corrective action plan, that is satisfactory to Balance Point, regarding how Client intends to mitigate or remediate future Incidents of such a nature.
15.1 You will indemnify and hold Balance Point and its respective officers, directors, and employees harmless from and against all damages, liability, loss, costs, attorney’s fees (including in-house counsel fees) and related expenses should any third party or Client employee bring a claim against Balance Point in connection with, or arising out of (i) a Client default; (ii) the use, misuse, reproduction, modification, or unauthorized distribution of Software; (iii) Client’s breach of NACHA; (iv) Client’s breach of any warranty set forth in the Agreement; (v) Client’s infringement or violation of the rights of any third parties (including intellectual property rights), including but not limited to a claim based on: (a) symbols, logos, or marks uploaded by Client or Client’s agents, or printed on Client’s handbooks or checks and (b) Client Information; (vi) Client’s willful
misconduct, fraud, gross negligence or actionable wrongdoing; (vii) damage, loss or destruction of any real, tangible or intangible personal property caused by the conduct of Client; (viii) Client’s breach of any applicable law of regulation; (ix) the breach of any obligation pursuant to this Agreement by any employee, director or affiliate of Client; and (x) any use (proper or improper) of the Online Account.
16. INTEGRATION OF PRIOR AGREEMENTS
16.1 The Agreement, along with any schedules and amendments, contains the entire understanding of the parties and supersedes all previous understandings and agreements between the parties for the Services provided, whether oral or written, including, without limitation, any confidentiality or nondisclosure agreement(s) entered into by and between Client and Balance Point prior to the date hereof.
17.1 The Agreement may not be assigned by the Client to any third parties. Any assignment made by Client is considered null and void.
18. GOVERNING LAW AND ARBITRATION
18.1 The Agreement and all aspects of the relationship between Balance Point and Client shall be governed exclusively by the laws of the State of New Jersey without regard to, or application of, its conflict of laws, rules, and principles, except for the arbitration agreement contained herein which shall be governed exclusively by the Federal Arbitration Act, 9 U.S.C. Section 1 et seq. (the “FAA”).
18.2 Except as provided herein, any dispute arising out of, in connection with, or relating to the Agreement will be determined only by binding arbitration in Hackensack, New Jersey, in accordance with the commercial rules of the American Arbitration Association. Arbitral disputes include, without limitation, disputes about the formation, interpretation, applicability, or enforceability of the Agreement as well as any claims arising out of the relationship of the parties that is in any way also related to the Agreement. For the avoidance of doubt, it is the intent of this section to broadly and inclusively construe claims that may be subject to arbitration.
18.3 A separate neutral arbitrator must be selected and appointed for each dispute. Any dispute arising under the Agreement must be brought within two (2) years of when the claim first accrued or will be deemed time-barred. The arbitrator will not be authorized to award exemplary or punitive damages, or any damages excluded in the Limit of Liability provision. The parties agree that the prevailing party in arbitration, and any subsequent judicial proceeding to enforce an arbitration award, will be awarded costs and attorney’s fees (including in-house counsel fees) and that an arbitration award may be entered as a judgment in any court having jurisdiction over either party to the
Agreement. The parties will not be permitted to bring, or participate in, and the arbitrator will not have any authority or jurisdiction to hear or decide, any claims brought as any type of purported class action, coordinated action, aggregated action, or similar action or proceeding. Each party must only bring claims against each other in their individual capacity.
19.1 Balance Point does not consider or accept unsolicited proposals or ideas, including without limitation ideas for new services, services names, services feedback and related improvements (“Unsolicited Feedback”). If you send any Unsolicited Feedback to Balance Point, you acknowledge and agree that Balance Point shall not be under any obligation of confidentiality with respect to the Unsolicited Feedback.
19.2 You agree to the use of electronic communication in order to enter into contracts, place orders, and create other records and to the electronic delivery of notices, policies and changes thereto and records of transactions with Balance Point.
19.3 You acknowledge and agree that if Balance Point is unable to provide the Services as a result of a force majeure event, Balance Point will not be in breach of any of its obligations towards you under the Agreement. A force majeure event means any event beyond the control of Balance Point.
19.4 If any provision of the Agreement (or part of it), is found by any court or administrative body of competent jurisdiction or an arbitrator to be illegal, invalid or unenforceable, then such provision (or part of it) shall be removed from the Agreement without affecting the legality, validity or enforceability of the remainder.
19.5 The failure by Balance Point to exercise, or delay in exercising, a legal right or remedy provided by the Agreement or by law shall not constitute a waiver of Balance Point’s right or remedy. If Balance Point waives a breach of the Agreement, this shall not operate as a waiver of a subsequent breach of the Terms.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THE AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY YOUR CONTINUING TO USE THE SERVICES, YOU EXPRESSLY CONSENT TO BE BOUND BY ALL TERMS AND CONDITIONS FOUND IN THE AGREEMENT.
© X-Pay, LLC. Copyright 2018. All Rights Reserved. Last updated: August 2018