By executing a proposal (“Proposal”) for the purchase of any Services (defined herein) from BalancedComp, LLC, a Kansas limited liability company (“BalancedComp”), including any subsequent order for additional Services, you, the customer (“Customer”) accepting the Proposal, expressly agrees to be bound by the terms and conditions of these Standard Terms and Conditions (“Standard Terms”). Each Proposal is subject to BalancedComp’s acceptance and may be accepted or rejected by BalancedComp in its sole discretion. Further, these Standard Terms and any Proposal that subsequently refers to these Standard Terms are intended to collectively constitute one agreement (“Agreement”).
BalancedComp provides certain services to customers for purposes of assisting its human resource professionals in (i) tying their employee salaries with employee performance, (ii) salary administration, and (iii) employee performance reviews (collectively, the “Services”). If Customer purchases any Services, BalancedComp will provide the scope of Services described on the Proposal, as supplemented by these Standard Terms. Changes in the scope of Services requested by Customer, if provided, are subject to price adjustments by BalancedComp and will be charged at BalancedComp’s then current pricing.
As part of the Services, and as more fully specified in the Proposal, BalancedComp will upload the results and data derived from the Services into its web-based software application (“BalancedComp App”) located at http://app.balancedcomp.net. Customer and its employees will be granted a revocable, non-exclusive, and limited license to access and use the BalancedComp App for internal purposes only and subject to, and in accordance with these terms, as may be amended by BalancedComp from time to time in its sole discretion; it being understood that Customer and its employees will be required to accept BalancedComp’s Terms of Use prior to being granted access to, or using, the BalancedComp App. Customer shall be responsible and liable for any use of the BalancedComp App by its employees or end users. Customer and its employees shall not, in the use of the BalancedComp App, violate any applicable laws related to the BalancedComp App (including, but not limited to, copyright laws). Customer agrees not to reproduce, duplicate, copy, sell, resell, license, sublicense, transfer, share, or exploit any portion of the BalancedComp App, use of BalancedComp App, or access to BalancedComp App without the express written permission by BalancedComp; it being expressly acknowledged by Customer that the look, feel and layout of the desktop images and portable document format (pdfs) are copyrighted materials, and Customer shall not reproduce, copy or attempt to replicate such images, singularly or as a whole. Customer acknowledges and understands that BalancedComp may use third party hosting partners to provide the technology required to run the BalancedComp App. Customer shall not, directly or indirectly, (i) interfere or attempt to interfere with the BalancedComp App; or (ii) bypass any measures that BalancedComp may use to prevent or restrict access to the BalancedComp App (or other accounts, computer systems or networks connected to the BalancedComp App); (iii) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of the BalancedComp App; or (iv) modify, translate, or otherwise create derivative works of any part of the BalancedComp App. Customer shall abide by all applicable local, state, national and international laws and regulations related to the BalancedComp App.
This Agreement may be supplemented by one or more Proposals, and each will be deemed to be incorporated by reference into this Agreement upon its acceptance by BalancedComp. All additional Services shall also be subject to the terms and conditions of these Standard Terms.
The term of each Proposal will be for the time period set forth on the Proposal. Customer’s right to access and use the BalancedComp App will terminate in accordance with the terms of the Proposal in the event Customer elects to not renew the Proposal. Customer will not abate, set off, deduct or reduce any payment required to be paid hereunder for any reason without the prior written consent of BalancedComp. All payments will be due and payable in accordance with the terms of the Proposals. Payments will be deemed to be delinquent if funds are not remitted and in BalancedComp’ s possession by no later than their applicable due date. All sales, property, excise and other federal, state and local taxes (other than those taxes based upon BalancedComp’ s net income) will be added to the rates otherwise established hereunder and paid by Customer. All past due amounts will be subject to a late fee service charge equal to the lesser of one and one-half percent (1½%) per month or the highest interest rate permitted by law. Customer shall pay all costs of collection and attorneys’ fees incurred by BalancedComp if collection efforts are required by BalancedComp and those efforts are successful. Any fees may, in BalancedComp’s sole discretion, be invoiced in combination with any other concurrent services or products provided by BalancedComp to Customer.
BalancedComp may terminate this Agreement immediately, without notice, if any of the following events of default occur, provided that no such termination will entitle Customer to a refund of any portion of any fees charged by BalancedComp hereunder and Customer will remain liable for all remaining fee payments which would otherwise be due under this Agreement: (i) Customer fails to pay any amount due to BalancedComp when due and payable; (ii) Customer is in breach of any nonmonetary term, condition or provision of this Agreement or any Proposal with BalancedComp, which breach, if capable of being cured, is not cured, within thirty (30) days after BalancedComp gives Customer written notice of such breach; or (iii) Customer (a) terminates or suspends its business activities; (b) becomes insolvent, admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; (c) becomes subject to direct control of a trustee, receiver or similar authority; or (d) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes.
In the event of Customer’s default, BalancedComp may exercise any one (1) or more of the following remedies, which remedies or any of them may be exercised by BalancedComp without notice to Customer and without constituting an election of remedies by BalancedComp under this Agreement: (a) BalancedComp may institute litigation to collect all amounts due as of the date of such default, together with any sums that may accrue up to the date of trial; (b) BalancedComp may institute litigation to specifically enforce the terms of this Agreement; (c) BalancedComp may terminate this Agreement without notice; and, (d) BalancedComp may pursue any other remedy now, or hereafter, existing in law or equity.
BalancedComp represents and warrants that all Services will be performed in a workmanlike manner consistent with industry standards. Except as may be provided to the contrary on the applicable Proposal, in the event BalancedComp breaches this warranty, BalancedComp’s sole obligation, and Customer’s exclusive remedy, will be BalancedComp re-performing the defective portion of the Services provided by BalancedComp. There are no other express or implied warranties concerning any Services.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, BALANCEDCOMP MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE QUALITY OR EFFECTIVENESS OF THE SERVICES PROVIDED BY BALANCEDCOMP INCLUDING, BUT NOT LIMITED TO, EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. BALANCEDCOMP SHALL NOT BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT AND AS FURTHER SET FORTH IN SECTION 9, INCLUDING BUT NOT LIMITED, TO MATTERS INVOLVING INTELLECTUAL PROPERTY.
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE SERVICES PERFORMED HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE. BALANCEDCOMP'S LIABILITY UNDER THIS AGREEMENT FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, RESTITUTION FOR LOSS OF DATA OR COST OF RECOVERY, WILL NOT, IN ANY EVENT, EXCEED AN AMOUNT EQUAL TO THE CUMULATIVE FEES PAID BY CUSTOMER TO BALANCEDCOMP FOR THE SERVICES RENDERED DURING THE PREVIOUS TWELVE (12) MONTH PERIOD PURSUANT TO THIS AGREEMENT.
Each party acknowledges that it will have access to certain Confidential Information (defined below) of the other party concerning the other party's business, operations, plans, customers, vendors, technology, services, products, and financial and other information proprietary to, or held in confidence by, the other party (“Confidential Information”). Confidential Information also includes all information recorded in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure or its nature, should reasonably be considered confidential. Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or required to achieve the purposes of, this Agreement or any Proposal, nor disclose to any third party except as required by law or to a party’s attorneys, accountants and other advisors as reasonably necessary, any of the other party's Confidential Information. Each party also agrees that it will take reasonable precautions to protect the confidentiality of the other party's Confidential Information, with methods at least as stringent as it takes to protect its own Confidential Information.
Information will not be deemed Confidential Information under this Section 10 if such information: (i) is known to the receiving party prior to receipt from the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source not subject to an obligation of confidentiality; (iii) becomes publicly known or otherwise ceases to be secret or confidential as a matter of law; or (iv) is independently developed by the receiving party. The receiving party may disclose Confidential Information pursuant to the requirements of a governmental agency or by operation of law, provided that it gives the disclosing party reasonable prior written notice sufficient to permit the disclosing party to contest to such disclosure.
Customer agrees that it will not solicit any employee of BalancedComp for employment during the term of this Agreement and for a period of twenty-four (24) months thereafter.
Customer acknowledges and agrees that all work product developed, produced, or performed by BalancedComp (including all derivatives), and all software (both object and source code), copyrights, patents, trade secrets, and all other intellectual property rights of every kind and nature is and will be the exclusive property of BalancedComp, and nothing in this Agreement should be construed as transferring any aspects of such rights to Customer or any third party. Provided, it is acknowledged that all customer data is the property of Customer.
Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Customer, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of BalancedComp, which consent will not be unreasonably withheld. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
This Agreement and the rights and obligations of the parties created hereby will be governed by and construed in accordance with the internal laws of the State of Kansas without regard to its conflict of law rules. All questions concerning the validity, interpretation or performance of any of its terms or provisions or of any rights or obligations of the parties hereto, shall be resolved in any court of competent jurisdiction residing in Sedgwick County, Kansas and in accordance with the laws of the State of Kansas.
Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence or fault of the party seeking protection or excuse under this Section 14. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, failures of the Internet, earthquakes, wind, fire, loss of power and explosions; provided the inability of either party to meet its financial obligations under this Agreement is expressly excluded.
All notices or other non-operational communications required to be given hereunder shall be in writing and delivered either personally or by U.S. mail, certified, return receipt requested, postage prepaid, and addressed as provided in the applicable Proposal, or as otherwise requested by the receiving party. Notices delivered personally shall be effective upon delivery and notices delivered by mail shall be effective upon their receipt by the party to whom they are addressed.
Any waiver of the provisions of this Agreement or of a party's rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party's rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party's right to take subsequent action. Except as expressly stated in this Agreement, no exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
The parties will endeavor to settle amicably by mutual discussions any disputes, differences, or claims whatsoever related to this Agreement. Failing such amicable settlement, any controversy, claim, or dispute arising under or relating to this Agreement, including the existence, validity, interpretation, performance, termination or breach thereof, shall finally be settled by arbitration in accordance with the Arbitration Rules (and if Customer is a non-U.S. entity, the International Arbitration Rules) of the American Arbitration Association (“AAA”). The language of the arbitration shall be English. No arbitrator will have the authority to award punitive damages. Each party shall bear its own expenses, but the parties will share equally the expenses of the arbitrator(s) and the AAA. This Agreement will be enforceable, and any arbitration award will be final, and judgment thereon may be entered in any court of competent jurisdiction. The arbitration will be held in Wichita, Kansas, USA. Notwithstanding the foregoing, claims for preliminary injunctive relief or other pre-judgment remedies arising out of a breach of Section 6 and claims for Customer’s failure to remit any payments in accordance with this Agreement may be brought in any state or federal court located in Sedgwick County, Kansas in lieu of arbitration.
In the event of any default regardless of whether cured, Customer will pay BalancedComp a sum equal to all expenses, including attorneys' fees, if any, incurred by BalancedComp in connection with the enforcement of any of BalancedComp’ s remedies and all expenses incurred by BalancedComp together with interest on such amount at the maximum annual rate allowable by law or one and one-half percent (1 1/2%) per month, whichever is more, until the date when such amounts are paid to or collected by BalancedComp. In the event litigation or arbitration is instituted to enforce this Agreement, the prevailing party will be entitled to recover from the other party such sum as the arbiter or court, as the case may be, may judge reasonable as attorneys' fees at trial and upon appeal, in addition to all other sums provided by law.
No actions, regardless of form or basis, arising out of transactions related to this Agreement, performed or to be performed, may be brought by either party more than twelve (12) months after the cause of action has first accrued except that an action by BalancedComp for non-payment against Customer may be brought at any time.
If any term, condition or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
In the event of any unauthorized access, use, disclosure, or loss of Customer’s data (“Security Breach”), BalancedComp will notify the Customer and any affected individuals promptly upon discovery. Notification will detail the nature of the breach, the data involved, steps taken by BalancedComp to secure the data, and actions recommended for the Customer to mitigate potential adverse effects. Such disclosures will be made in compliance with applicable laws and regulations concerning data breach notification.
All data provided by the Customer, including but not limited to employee information, remains the sole property of the Customer. BalancedComp asserts no ownership rights over any Customer data. Upon the termination of services for any reason, BalancedComp commits to destroying all personal information of the Customer's employees in accordance with our Data Destruction Policy. This ensures that data is not only irrecoverable but also handled in compliance with all relevant banking and data privacy regulations. This commitment is integral to maintaining the confidentiality and integrity of the Customer's proprietary information throughout and following the duration of the service agreement.
This Agreement (as defined above) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written between the parties with respect to said subject matter that are contrary to the terms and conditions of this Agreement. This Agreement may not be amended, except by a writing signed by both parties. In the event of a conflict between or among the terms set forth in the terms and conditions of this Standard Terms, and any Proposal, or any other document made a part hereof, the documents shall control in the following order: the terms and conditions of this Standard Terms shall control unless a Proposal expressly provides otherwise by reference to the terms and conditions of this Standard Terms and the contradicting statement or section of the terms and conditions of this Standard Terms, and in such event the Proposal with the latest date shall control, and then the terms and conditions of this Standard Terms if the Proposal satisfies the foregoing condition, and then any other documents, including but not limited to BalancedComp Agreement.