These Software as a Service Terms of Use (these “Terms”) govern the acquisition and use of software services provided by BuildAP, Inc. dba Billy, a Delaware corporation with offices at 539 Atlantic Avenue, PO Box 170329, Brooklyn, NY, 11217 (“Billy” or “we”) for the entity identified (“Customer”) on the Licensing and Service Agreement (“Agreement”) subject to these Terms. Billy and Customer are sometimes referred to jointly as the “parties” or singularly as a “party.”

BY EXECUTING THE AGREEMENT THAT REFERENCES THESE TERMS AND/OR CLICKING ACCEPT BELOW (INCLUDING A FREE TRIAL FOR SERVICES), CUSTOMER AGREES TO THESE TERMS AND ANY SUBSEQUENT REVISED TERMS THAT MAY BE UPDATED FROM TIME TO TIME. IF CUSTOMER IS ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, CUSTOMER REPRESENTS THAT IT HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF CUSTOMER DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS, CUSTOMER MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE SERVCES.

THESE TERMS SUPERSEDE ALL OTHER AGREEMENTS AND UNDERSTANDINGS BETWEEN THE PARTIES REGARDING THE SUBJECT MATTER HEREOF, WHETHER WRITTEN OR VERBAL. ANY AND ALL ADDITIONAL OR DIFFERENT TERMS THAN THOSE CONTAINED IN THESE TERMS ARE REJECTED. NO BROWSE-WRAP, SHRINK-WRAP, CLICK-WRAP OR ADDITIONAL TERMS AND CONDITIONS IN THE AGREEMENT THAT MAY BE PROVIDED IN CONNECTION WITH ANY OF THE SERVICES HEREUNDER (“NON-NEGOTIATED TERMS”) WILL CONSTITUTE A PART OF OR AMEND THESE TERMS, NOR WILL ANY SUCH NON-NEGOTIATED TERMS BIND BILLY FOR ANY PURPOSE. ALL SUCH NON-NEGOTIATED TERMS HAVE NO FORCE AND EFFECT AND ARE DEEMED REJECTED BY BILLY, EVEN IF ACCESS TO OR USE OF THE SERVICES REQUIRES AFFIRMATIVE ACCEPTANCE OF SUCH NON-NEGOTIATED TERMS.

1. DEFINITIONS

Capitalized terms used herein shall have the meaning set forth below.

(a) “Authorized Users” means Customer’s employees or third-party individuals who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to these Terms.

(b) “Customer Data” means (i) information, content, and data, including text, sounds, video, or image files, provided, manually or automatically, to the Services, by or on behalf of Customer, Authorized Users, or third parties.

(c) “Downloadable Software” means downloadable tools, mobile applications, or other software that Billy makes available for download specifically for purposes of facilitating access to, operation of, or use with the Services, and any updates Billy may make available to such software from time-to-time. [For the avoidance of doubt, Downloadable Software does not include third party products or third-party services.]

(d) “SaaS Documentation” means Billy’s user manuals, handbooks, and guides relating to the Services provided by Billy to Customer either in hard copy form or electronically at www.billyforinsurance.com.

(e) “Services” means the software-as-a-service offering described in the Agreement, and which is delivered to the Customer as a service over the Internet, together with any applicable SaaS Documentation.

(f) “Subscription Data” means electronic data, software, or information submitted, provided, or input to the Services by Customer or its Authorized Users or generated by the Services based on such information, data, or content, including any and all derivative data and learnings about such use of the Services, e.g., frequency of logins, volume of information collected or processed, clicks, including the derivative data thereof.

2. SERVICES

(a) Purpose. These Terms set forth the terms and conditions under which Billy will make the Services available to Customer.

(b) Customer Data. CUSTOMER WARRANTS THAT IT WILL NOT INCLUDE ANY PERSONAL INFORMATION RELATED TO AN INDIVIDUAL OR ANY CONFIDENTIAL INFORMATION IN THE CUSTOMER DATA.

(c) Subscription Grant. Billy hereby grants Customer and Authorized Users a non-exclusive, non-sublicensable, non-transferable, right to access and use the Services, solely for internal business purposes as set forth herein.

(d) Downloadable Software and SaaS Documentation License. Subject to the terms and conditions contained in these Terms, Billy hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except under a permissible assignment in compliance with Section 15) license during the Term to: (i) use Downloadable Software, in object code format, solely for Customer’s internal use in connection with its use of the Services and (ii) use and make a reasonable number of copies of the SaaS Documentation solely for Customer’s internal business purposes in connection with Customer’s use of the Software during the Term. Customer’s use of Downloadable Software must be in compliance with the end user license agreement (the “Downloadable Software License Terms”). In the event of any inconsistency between the Downloadable Software License Terms and these Terms, the Downloadable Software License Terms shall apply only with respect to the Downloadable Software that the Downloadable Software License Terms reference and not the Services provided under these Terms.

(e) Changes to Services. Billy may, in its sole discretion, make any changes to the Services that it deems necessary or useful to (i) maintain or enhance: (a) the quality or delivery of Billy’s products or services to its customers, (b) the competitive strength of, or market for, Billy’s products or services, (c) the cost efficiency or performance of the Services, or (ii) comply with applicable law.

(f) Professional Services. Should the customer require or request additional training, support, product, development, and customization services, professional services fees will be assessed at $250 per hour or Billy’s then-prevailing rate(s) for professional services.

3. SUPPORT AND SERVICE LEVELS

  • Technical Support. Company will provide technical support to Customer via online chat, telephone, and electronic mail. Customer may initiate a helpdesk ticket by entering online chat or calling 332-245-0035 on weekdays during the hours of 9:00am – 7:00pm Eastern Time, with the exclusion of federal holidays (“Support Hours”). Customer may also initiate a helpdesk ticket by emailing support@billyforinsurance.com anytime.
  • Target Uptime. Billy will use commercially reasonably efforts to provide the Services at 99% functionality except for holidays, weekends, and any planned downtime or force majeure event; or any failure, downtime, or delay by Customer. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third-party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation.
  • Service Level Remedies. Customer’s sole and exclusive remedy, and Company’s entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one hour, Company will credit Customer 5% of Service fees, provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Company in writing within twenty-four (24) hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Fees in any one (1) calendar month in any event. Company will only apply a credit to the month in which the incident occurred. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under these Terms.
  • Service Level Remedies. In addition, Company shall have the right to pursue any remedies available at law or as provided herein and shall be entitled to reimbursement from Customer for Billy’s costs of collection, including attorney fees, legal fees and costs and disbursements. Additionally, Billy reserves the right to disable access to the software or cancel any Services in the event any portion of the amounts due to Billy is overdue.
  • Managed Plan Responsibility Matrix. Our managed plans provide compliance management support to Customers. Customer acknowledges its responsibilities defined below.
StepManaged Plan TaskCustomerBilly
1Connect projects in Procore/Autodesk to BillyX 
2Create project specific insurance requirementsX 
3Send out request emails X
4Review certs to verify they meet requirements X
5Review of other documents (any non-insurance certificate documents)X 
6Initiate initial rejection emails with specific instructions on how to correct COI X
7Receive and review 2nd & 3rd COI submissions for accuracy X
8Communicate with subs to meet requirements if not obtained in 3 attempts by BillyX 
9Approve certificates X
10Track and manage renewals X

4. INTELLECTUAL PROPERTY

(a) Services. Billy shall own and retain all right, title, and interest in and to the Services. To the extent Customer acquires any right, title, or interest therein, Customer hereby assigns all of its right, title, and interest in such Services to Billy.

(b) Customer Data. Customer shall own and retain all right, title, and interest in and to Customer Data. Customer hereby grants to Billy the right to access, use, and process the Customer Data in connection with providing the Services.

(c) Subscription Data. Billy shall own and retain all right, title, and interest in and to the Subscription Data. To the extent Customer acquires any right, title, or interest therein, Customer hereby assigns all of its right, title, and interest in such Services to Billy. Billy’s rights, title, and interest in and to Subscription Data includes, without limitation, the right to (i) process Subscription Data in connection with providing the Services; (ii) modify and create derivative works from the Subscription Data; and (iii) use Subscription Data to monitor and improve the Services, both during and after the Term, as well as Billy’s other services and products made generally available.

(d) Feedback. Customer grants to Billy a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction, or other feedback provided by Customer or Authorized Users relating to the Services.

(f) No Other Rights. No rights or licenses are granted except as expressly set forth herein.

5. PRIVACY AND DATA USE

By providing information to Billy for the use of the Services, Customer hereby expressly authorizes Billy to use the information pursuant to its www.billyforinsurance.com/privacy the entirety of which is incorporated into these Terms as if reproduced in full herein.

6. DISCLAIMER

EXCEPT AS EXPRESSLY PROVIDED HEREIN, BILLY DOES NOT WARRANT THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES Billy MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS,” AND BILLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BILLY MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED REGARDING THIRD-PARTY SERVICES, INCLUDING THE ABILITY TO INTEGRATE THE SAME WITH BILLY’S SERVICES. ALL THIRD-PARTY SERVICES ARE PROVIDED “AS IS”. BILLY MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED REGARDING THIRD PARTY PRODUCTS OR THIRD PARTY SERVICES, INCLUDING THE ABILITY TO INTEGRATE THE SAME WITH THE SERVICES. ALL THIRD PARTY PRODUCTS AND THIRD PARTY SERVICES ARE PROVIDED “AS IS.” CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER’S PRIVACY, DATA, CONFIDENTIAL INFORMATION, AND PROPERTY.

7. INDEMNIFICATION

(a) Indemnification by Billy. Billy will defend Customer against any claim, suit, demand, or action made  or brought against Customer by a third party alleging that the Services, or Customer’s use or access thereof in accordance with these Terms, infringes any intellectual property rights of such third party, and will indemnify and hold harmless Customer from any damages, losses, liabilities, costs and fees (including reasonable attorney’s fees) finally awarded against Customer in connection with or in settlement of any such claim, suit, demand, or action. The foregoing obligations do not apply with respect to portions or components of the Services: (i) made in whole or in part in accordance with Customer specifications, (ii) that are modified or otherwise altered, (iii) combined with other products, processes or materials where the alleged infringement relates to such combination, (iv) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with these Terms. If, due to a claim of infringement, portions or components of any part of the Services are held by a court of competent jurisdiction to be or is believed by Billy to be infringing, Billy may, at its option and expense (a) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Services, or (c) if neither of the foregoing is commercially practicable, terminate these Terms and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for such Services. This Section states Customer’s sole and exclusive remedies for claims of infringement. The above defense and indemnification obligations do not apply to the extent a claim against Customer arises from a third-party service or material(s) or a breach of these Terms by Customer (including, for avoidance of doubt, by an action or omission of Customer).

(b) Indemnification by Customer. Customer will defend, indemnify, and hold Billy including its officers, directors, employees and agents, or its affiliates (collectively, “Billy Indemnified Parties”) harmless from and against any claim, demand, suit or proceeding made or brought against a Billy Indemnified Party by a third party: (i) alleging that any Customer Data infringes or misappropriates such third party’s intellectual property rights, or (ii) arising from Customer’s use of the Services in breach of these Terms or applicable law; (iii) based on Customer’s gross negligence or willful misconduct; or (iv) arising from a breach by Customer of its non-disclosure obligations under Section 11 herein that results in an unauthorized disclosure of Confidential Information; (each a “Claim Against Billy”). Customer will pay any damages, attorney fees and costs awarded against Billy Indemnified Parties as a result of, or for any amounts paid by Billy Indemnified Parties under a settlement approved by Customer in writing of, a Claim Against Billy.

9. LIMITATION OF LIABILITY

IN NO EVENT SHALL BILLY’S LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED IN THE AGGREGATE THE TOTAL FEES PAID OR OWED BY CUSTOMER TO BILLY UNDER THE APPLICABLE AGREEMENT UNDER WHICH THE SERVICES ARE PROVIDED DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT). IN NO EVENT SHALL BILLY HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT BILLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

10. USE AND USAGE RESTRICTIONS

(a) Scope of Use. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect, and all applicable laws and regulations. Customer shall (i) be responsible for Authorized Users’ compliance with these Terms, (ii) be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired such data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Billy promptly of any such unauthorized access or use, (iv) use Services only in accordance with these Terms and applicable laws and government regulations; and (v) comply with terms of service of any third party products or third party services with which Customer uses the Services. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

(b) Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).

(c) Restrictions. Customer will not, nor permit or encourage any third party to, directly or indirectly (i) make available or distribute the Services, or use any Services for the benefit of, anyone other than Customer or Authorized Users, (ii) sell, resell, license, sublicense, rent or lease the Services or include such Services in a service bureau or outsourcing offering, (ii) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (iv) knowingly interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (vi) attempt to gain unauthorized access to the Services or its related systems or networks, (vii) frame or mirror any part of the Services, (viii) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the code, object code or underlying structure, ideas, know-how or algorithms relevant to any software, documentation or data related to the Services generally, or (ix) modify, remove or obstruct any proprietary notices or labels. Further, any use of the Services that in Billy’s judgment imminently threatens the security, integrity, or availability of Billy’s services, may result in Billy’s immediate suspension of the Services.

11. CONFIDENTIALITY

(a) Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has been, and may be, exposed to or acquired business, technical, financial, or other proprietary information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information”). Confidential Information of Billy includes trade secrets, and among other things: (i) all user-visible aspects of the Services, (ii) all non-public information regarding features, functionality, and performance of the Services, and (iii) the terms and conditions of these Terms, including all pricing and related metrics.

(b) Exceptions. Notwithstanding anything to the contrary contained herein, Confidential Information shall not include any information that the Receiving Party can document (i) is or becomes generally available to the public, (ii) was in its possession or known by the Receiving Party prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.

(c) Non-Use and Non-Disclosure. With respect to Confidential Information of the Disclosing Party, the Receiving Party agrees to: (i) use the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure, of such Confidential Information it uses to protect its own proprietary and confidential information of like nature, which shall not be less than a reasonable degree of care, (ii) hold all such Confidential Information in strict confidence and not use, sell, copy, transfer reproduce, or divulge such Confidential Information to any third party, (iii) not use such Confidential Information for any purposes whatsoever other than the performance of, or as otherwise authorized by, these Terms.

(d) Compelled Disclosure. Notwithstanding Section (c), the Receiving Party may disclose Confidential Information  of the Disclosing Party to the extent necessary to comply with a court order or applicable law; provided, however that the Receiving Party delivers reasonable advance notice of such disclosure to the Disclosing Party and uses reasonable efforts to secure confidential treatment of such Confidential Information, in whole or in part.

(e) Remedies for Breach of Obligation of Confidentiality. The Receiving Party acknowledges that breach of its obligation of confidentiality may cause irreparable harm to the Disclosing Party for which the Disclosing Party may not be fully or adequately compensated by recovery of monetary damages. Accordingly, in the event of any violation, or threatened violation, by the Receiving Party of its obligations under this Section 11, the Disclosing Party shall be entitled to seek injunctive relief from a court of competent jurisdiction in addition to any other remedy that may be available at law or in equity, without the necessity of posting bond or proving actual damages.

(f) Duration. The obligations set forth in this Section 11 shall continue as long as allowed under applicable law.

12. ARBITRATION

(a) Time to Submit Claim. Any dispute with Billy shall, within seven (7) business days after receipt of notice of such disputed matter from either party, commence efforts to resolve such dispute in good faith. If the disputed matter has not been resolved by Billy within thirty (30) days after first having been referred to Billy (or at any earlier time, in the discretion of Billy), then either Customer or Billy may pursue its legal remedies in accordance with these Terms.

(b) Use of Arbitration. Any dispute with Billy that is not otherwise satisfactorily resolved must be resolved through arbitration, as set forth below. This Section 12 shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. This also applies to any dispute initiated by the Company. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than a court does, and is subject to very limited review by courts. Any arbitration under these Terms will take place on an individual basis; class arbitrations and class actions are expressly prohibited – neither Customer nor Billy shall be entitled to join or consolidate claims in arbitration. In the event a dispute is submitted to arbitration, Customer and Billy shall split the costs of arbitration, including the costs for the initiation of such arbitration proceeding. The arbitration shall be conducted by a firm of Billy’s selection. The non-filing party shall furnish its one-half of the filing costs to the filing party or to the arbitrator, to be credited to the filing party, within ten (10) days after the non-filing party receives official notification of the proceedings from the arbitrator, or otherwise the filing party shall be entitled to recover liquidated damages of $200.00 per day until the amount is paid. Venue for any arbitration proceeding hereunder shall be in New York, New York; the arbitration shall be conducted by a neutral or arbitrator based in New York, New York, and the proceeding shall be governed by the Federal Arbitration Act. Notwithstanding the foregoing, if the dispute between Customer and Billy arises from an alleged violation of intellectual property, suit may be filed in any New York State court or federal district court in the Southern District of New York.

(c) Arbitration Agreement. The parties agree to arbitrate all disputes and claims between them before a single arbitrator. The types of disputes and claims to arbitrate are intended to be broadly interpreted, including, but not limited to: (i) claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; (ii) claims that arose before these or any prior Terms (including, but not limited to, claims relating to advertising); and (iii) claims that may arise after the termination of these Terms.

  1. For the purposes of this Arbitration Agreement, references to the “Company”, “you,” and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or products under these Terms or any prior agreements. You agree that, by entering into these Terms, you and the Company are each waiving the right to a trial by jury or to participate in a class action. These Terms evidence a transaction or website used in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision will survive termination of these Terms.
  2. A party who intends to seek arbitration must first send, by U.S. certified mail or email, a written Notice of Dispute (“Notice”) to the other party. A Notice to the Company shall be in writing and shall be made either via email or conventional mail. Notices to us must be sent to the attention of Customer Service at support@billyforinsurance.com, if by email, or at BuildAP, Inc. d/b/a Billy, 539 Atlantic Avenue, PO Box 170329, Brooklyn, NY, 11217 if by conventional mail. The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought (“Demand”). If the Company and you do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, arbitration proceedings may be commenced by either party.
  3. The arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND THE COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITIES AND NOT AS PLAINTIFFS OR CLASS MEMBERS IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. The arbitrator shall not award relief in excess of what these Terms provide or award punitive damages or any other damages not measured by actual damages.
  4. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential, except as needed for an appeal of the arbitration award for improper determinations of matters of law only.
  5. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of these Terms including, but not limited to, any claim that all or any part of these Terms is void or voidable. If this specific proviso is found to be unenforceable, it is severable from the rest of the arbitration agreement.
  6.  It is the intent of you and the Company that any discovery pursuant to the arbitration proceeding be limited to that directly related to the issue being arbitrated to the fullest extent possible.
  7. It is the intent of you and the Company that the arbitration be completely concluded in 180 days or less from its initiation, to the fullest extent possible, and to the extent that each party is afforded a fair and reasonable arbitration and neither party’s rights are significantly negatively impacted by the imposition of this timeline.

(d) Conducting the Arbitration. Customer agrees that any and all of its our owners, principals, employees, and agents agree to the jurisdiction of the arbitration, when the claims made against them arise out of Customer’s or Authorized Users’ use of the Services. Billy agrees to moderate discovery procedures, including production of documentation, inspection of property, interrogatories not to exceed twenty-five (25), and requests for admissions not to exceed twenty-five (25), subject to paragraph 12(c)(6) above. Customer, its owners, principals, employees, and agents agree to submit responses to any and all informal subpoena requests, which do not require the signature or execution before a court of law. Any and all arbitration proceedings shall be heard within one (1) calendar day, not to exceed eight (8) hours and the arbitrator’s award shall be returnable within no more than ten (10) days from the date of the hearing. The parties shall have the right to a single appeal to the Court of Appeals with jurisdiction over the arbitration award, to challenge an award for improper determinations of matters of law only. Customer or Billy shall have no further appellate rights. The ruling of the applicable Court of Appeals shall be the final resolution of all matters between the parties hereto.

13. SECURITY

Billy will maintain industry-standard administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data. Customer is solely responsible for maintaining the confidentiality of Customer’s and Authorized Users’ password and account and for any and all statements made and orders, acts, or omissions that occur through Customer’s use of its and Authorized Users’ passwords and accounts. Therefore, Customer must take steps to ensure that others do not gain access to its or Authorized Users’ passwords and accounts. Billy’s personnel will never ask Customer or Authorized Users for their passwords. Customer may not transfer or share its account with anyone, and Billy reserves the right to immediately terminate Customer’s account if Customer transfers or shares its account. Billy reserves the right to refuse registration of or cancel passwords it deems inappropriate. Unless otherwise specified in the Agreement, Customer Data may not include any personal information, or sensitive or special data that imposes specific data security or data protection obligations on Billy. 

14. FEES AND PAYMENT

(a) Fees. Customer will pay Billy the fees set forth in the Agreement, in accordance with the terms set forth herein (“Fees”).

(b) Payment Terms. Absent any specific clause in a Licensing and Services Agreement or other subscription agreement between you and Company that is in direct contradiction of this sentence, Fees are non-refundable, and any subscription agreement is non-cancelable by you during any current “Service Period” stated in the Agreement. Additionally, unless otherwise specifically noted in an agreement between you and the Company, all Services automatically renew upon the termination of the then-current Service Period for renewal terms of the same duration unless written notice of non-renewal is provided by you at least sixty (60) days prior to the termination of the then-current term. Such fees will be billed by the Company against Customer’s credit card on file, if any, or otherwise invoiced by Company to Customer to be paid by Customer.

(c) Reimbursable Expenses. In addition to the Fees, Customer shall reimburse Billy for reasonable out-of-pocket expenses incurred by Billy in connection with performing the Services, if any (“Expenses”).

(d) Invoicing and Payment. Fees will be invoiced in advance unless otherwise stated in the Agreement. Fees are due seven (7) days from the date of invoice. Customer is responsible for providing complete and accurate billing and contact information to Billy and notifying Billy of any changes to such information.

(e) Overdue Charges. If payment due is not received by Billy by the due date, then without limiting Billy’s rights or remedies, those charges may accrue late interest at the rate of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. If any Fee owed by Customer is ten (10) days or more overdue, Billy may, without limiting its other rights and remedies, suspend Services until such amounts are paid in full.

(f) Taxes. Any stated amounts due pursuant to use of Billy and/or any subscription thereto are exclusive of any applicable federal, state, or other governmental taxes, duties, fees, excises, or tariffs (“Taxes”) which may be imposed on the services, features, or add-ons purchased or subscribed to. Customer shall be responsible for, and if necessary shall reimburse, Billy for all such Taxes on any amounts payable by Customer pursuant to the purchase of any good, item, document, service or otherwise from Billy, except for taxes imposed on Billy’s net income. If Billy has the legal obligation to pay or collect Taxes for which Customer is responsible under this subsection (f), Billy will bill Customer for such Taxes or add such Taxes to the amount originally invoiced to Customer. Customer shall pay, and shall be liable for, all taxes relating to Billy’s provision of the Services hereunder. Billy shall pay, and shall be liable for, taxes based on its net income or capital.

(g) Invoice Disputes. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than ten (10) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to the Company’s customer support department.

(h) No Deductions or Setoffs. All amounts payable to Billy hereunder shall be paid by Customer to Billy in full without any setoff, deduction, or withholding for any reason except as may be required by applicable law.

15. TERM AND TERMINATION

(a) Term. The term of the Agreement shall be as specified therein and shall run to its conclusion unless terminated earlier by either party as provided in this Section 15 (“InitialTerm”). The Agreement shall renew for additional one (1) year periods (“Renewal Term”) unless written notice of non-renewal is received by the other party at least sixty (60) days prior to the expiration of the then current Initial or Renewal Term. The Initial Term and Renewal Term, collectively, are the “Term.”

(b) Termination. Either party may terminate the Agreement for cause if: (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) upon written notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. 

(c) Effect of Termination. Upon termination of the Agreement: (i) each outstanding Agreement shall continue to its conclusion, (ii) Billy shall immediately cease providing the Services; (iii) all unpaid Expenses and all Fees will become immediately due and payable. 

(d) Extension of Services. In the event Customer elects not to renew an Agreement, Billy will continue to make the Customer Data available to Customer for an additional period of up to ninety (90) days from the date of termination (the “Transition Period”), upon Customer’s written request, provided that Customer is in compliance with these Terms, including all payment obligations.

(e) Survival. The Sections of these Terms that shall by their nature survive any termination or expiration of these Terms shall survive. All other rights and obligations shall be of no further force or effect.

16. CONTROLLING LAW

These Terms will be controlled by New York state law except for its conflicts of laws principles.

17. GENERAL PROVISIONS

If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. These Terms, together with the Agreement entered into hereunder and all exhibits, annexes and addenda hereto and thereto is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. These Terms shall only be assigned with the written consent of Billy, provided, however, that no consent shall be necessary for either party to assign any or all of its rights, interests, and obligations as part of a corporate reorganization, consolidation, or merger where such party transfers all or substantially all of its properties or assets to another entity, in which case such entity shall be the replacement entity for the applicable party effectuating the assignment. All waivers and modifications must be in writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of these Terms, and neither party has authority of any kind to bind the other party in any respect whatsoever. In the event of a conflict between these Terms and the Agreement, such Agreement shall prevail unless otherwise expressly indicated in these Terms. Billy shall not be in default in the performance of these Terms because of reasons outside of its reasonable control. The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof. Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words “hereof,” “hereby,” “herein,” “hereto,” and “hereunder” and words of similar import shall refer to these Terms as a whole and not to any particular Section or paragraph of these Terms; (ii) the words “include,” “includes” or “including” are deemed to be followed by the words “without limitation;” (iii) references to a “Section” or “Exhibit” are references to a section of, or exhibit to these Terms; and (iv) derivative forms of defined terms will have correlative meanings.

18. NOTICES

All notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Notices to Billy will be addressed to the attention of Nyasha Gutsa at notices@billyforinsurance.com. Notices to Customer will be addressed to the relevant contact designated by Customer in the Agreement.