Billhighway Give Terms and Conditions
1. DEFINED TERMS.
Capitalized terms used in these terms and conditions which are not defined herein have the meanings ascribed to such terms in the Agreement to which these terms and conditions are attached. “Members” means members of Client who use the Services.
Notwithstanding anything in this Agreement to the contrary:
(a) If either party materially defaults in the performance of any of its obligations under this Agreement (other than the obligation to pay money) and shall fail or refuse to remedy such default to the reasonable satisfaction of the complaining party within 30 days after written notice from the complaining party describing the default, the complaining party may terminate this Agreement on 15 days advance written notice; provided such notice of termination is given prior to the defaulting party’s cure of such default.
(b) If either party shall (i) file a voluntary petition seeking liquidation, reorganization, arrangement or readjustment, in any form, of its debts under Title 11 of the United States Code (or corresponding provisions of future laws) or any other Federal or state insolvency law, or file an answer consenting to or acquiescing in any such petition, (ii) make any assignment for the benefit of its creditors or admit in writing its inability to pay its debts as they mature, or (iii) have filed against it an involuntary petition under Title 11 of the United States Code (or corresponding provisions of future laws), seeking an application for the appointment of a receiver for the assets of such party, or an involuntary petition seeking liquidation, reorganization, arrangement or readjustment of its debts under any other Federal or state insolvency law, provided that the same shall not have been vacated, set aside or stayed within 60 days after filing; then the other party may immediately terminate this Agreement upon notice to such party.
(c) If either party defaults in the payment of any amount due under this Agreement, and shall fail or refuse to remedy such default within five business days after receiving written notice from the complaining party describing the default, the complaining party may terminate this Agreement on 5 days advance written notice; provided such notice of termination is given prior to the defaulting party’s cure of such default.
(d) Either party may terminate this Agreement upon one hundred eighty (180) days’ written notice to the other party.
3. PAYMENT TERMS.
All invoices rendered by Billhighway are due upon receipt. In the event any amounts are not paid to Billhighway when due, such amount shall bear interest at the rate of 1.5% per month.
4. FORCE MAJEURE.
Either party to this Agreement shall be released from liability hereunder for failure to perform any of its obligations (other than the obligation to pay money) herein where such failure to perform occurs by reason of any act of God, fire, flood, earthquake, tidal wave, sabotage, war, strikes, lockouts, labor unrest, terrorism, military operations, national emergency, civil commotion, or the order, requisition, request or recommendation of any governmental agency or acting governmental authority, or either party’s compliance therewith, or governmental proration, regulation or priority, or any other cause beyond either party’s reasonable control whether similar or dissimilar to such causes.
5. SERVICE REQUIREMENTS/SERVICES
(a) Billhighway shall perform Services in a professional and workmanlike manner and using a level of care and skill that is consistent with the prevailing standard in the industry. THE WARRANTY CONTAINED IN THE PRECEDING SENTENCE IS OUR ONLY WARRANTY CONCERNING THE SERVICES AND ANY DELIVERABLE, AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED. ALL IMPLIED WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED AND THE SERVICES AND ANY DELIVERABLES ARE PROVIDED ON AN “AS IS, WHERE IS” BASIS.
(b) Billhighway shall establish, within the Billhighway Website, a webpage through which Client will be able to access information held in the Billhighway system on behalf of Client. Such information may include, without limitation, account information processed or transmitted by Billhighway in connection with the provision of the Services (the “Client Webpage”). Billhighway shall incorporate reasonable password protection capability into the Client Webpage suitable to allow Client to control the number and identity of the users and their scope of access to the Client information through the Client Webpage.
(c) Billhighway shall use commercially reasonable efforts to provide access to the Billhighway Website and the Client Webpage for 24 hours a day, seven days a week throughout the Term. Client acknowledges that from time to time the Billhighway Website and/or the Client Webpage may be inaccessible or inoperable for various reasons, including (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs, or equipment upgrades which Billhighway may undertake from time to time; (iii) malfunctions of telephone lines, routers, switches and other telecommunications equipment, or (iv) malfunctions of other servers on the Web (collectively “Downtime”). Billhighway shall endeavor to provide 48 hours advance notice to Client in the event of any scheduled Downtime and shall endeavor to schedule such Downtime during periods of reduced traffic. Billhighway shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Billhighway Website and the Client Webpage due to Downtime, whether scheduled or not.
(d) Billhighway will store Client information for online access up to six (6) years following the date such Client information first appears on the Billhighway Website. Billhighway will also maintain electronic archival back-ups of such information for six (6) years following such date.
(e) Billhighway shall have no responsibility for the accuracy or validity of any data or information furnished by or on behalf of the Client or its, members, subdivisions or chapters.
(f) Billhighway shall maintain errors and omissions insurance (“Insurance”) for the benefit of Client at Billhighway’s sole cost and expense.
(g) Billhighway shall utilize commercially reasonable security measures to prevent the unauthorized use and ensure the security, confidentiality and integrity of the Billhighway Website and the Client Webpage.
(h) For a period of at least six (6) years following each billing cycle, Billhighway agrees to maintain records of the data used to determine the Service Fees for the year and provide the Client with reasonable access to such data.
(a) “Confidential Information” shall mean all non-public or confidential information disclosed to, or acquired by, either Billhighway or Client as a result of the performance of the duties hereunder.
(b) Each party to this Agreement shall hold the Confidential Information provided to it hereunder confidence and shall not disclose the Confidential Information to any third party except as permitted hereunder and for the purposes of performing its duties hereunder for the duration of this Agreement and thereafter. Each party shall use its commercially reasonable efforts to protect Confidential Information of the other party from inadvertent disclosure to a third party except as necessary for the performance of this Agreement. Unless otherwise agreed to in writing by the disclosing party, distribution of the Confidential Information by the receiving party will be restricted to those agents, employees, contractors or advisors of each party to this Agreement who have a need to know such information in connection with the obligations arising under this Agreement. Each party will instruct its agents, employees and advisors to whom any Confidential Information is disclosed that such information must be treated as confidential in accordance with this Agreement and agrees on their behalf that they will so treat it.
(c) Confidential Information shall remain the exclusive property of the disclosing party. Each party hereto shall be liable for any improper disclosure or use of the Confidential Information by such party and any persons improperly obtaining the Confidential Information through, or as a result of, communications by such party’s agents, employees or advisors.
(d) Confidential Information shall not include any information that was known to such party prior to its entering into this Agreement, is or becomes part of the public domain through no violation of this Agreement, is rightfully received by such party from a third-party without accompanying secrecy obligations, or is approved for use or release by the disclosing party in advance and in writing. If a disclosing party is required by law or compelled by legal process to disclose any Confidential Information of the other party, the receiving party agrees that it will, to the extent it is legally permitted to do so, and to the extent practical, provide the disclosing party with prompt written notice, of such request, so that the disclosing party may, at its sole cost and expense, seek a protective order or other appropriate remedy. In any event the receiving party may disclose the Confidential Information it is legally obligated to disclose without being deemed to have breached this Agreement.
(e) Disclosure of this Agreement or Client Confidential Information to a successor to Billhighway’s business shall not be deemed to violate the terms of this Agreement; provided that such successor is bound hereby.
7. Ownership of the Billhighway Website(s) and the Materials.
The Billhighway Website is owned and operated by Billhighway in conjunction with others pursuant to contractual arrangements, and any materials provided on the Billhighway Website, including the Billhighway Website itself, and, except as otherwise provided herein, any intellectual property and other rights relating thereto (collectively the “Materials”), are and will remain the sole property of Billhighway and its licensors and suppliers. The Materials may be used by Client and the Members solely to the extent necessary for the authorized use of the Billhighway Website, as provided in this Agreement or as expressly authorized in writing by Billhighway or, if so indicated in writing by Billhighway, its licensors or suppliers. Client acknowledges that it does not acquire any ownership rights in the Billhighway Website and Materials by using same.
8. Client Trademarks.
The trademarks, logos, and service marks of Client (collectively the “Client Marks”) are the registered and unregistered trademarks of Client. The Client Marks, whether registered or unregistered, may not be used in connection with any product or service other than the Client Webpage or pursuant to a Client’s instructions. Billhighway is hereby granted the non-exclusive license to use the Client Marks on the Client Webpage solely in connection with the performance of the Services.
9. Billhighway Service Marks and Trademarks.
The trademarks, logos, and service marks displayed on the Billhighway Website (collectively the “Billhighway Marks”) are the registered and unregistered trademarks of Billhighway, Billhighway’s licensors and suppliers and others. The Billhighway Marks, whether registered or unregistered, may not be used by Client. Nothing contained on the Billhighway Website should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Billhighway Mark without the express written permission of Billhighway or the third party owner of any such Billhighway Mark.
10. LIMITATION OF LIABILITY; INDEMNIFICATION.
(a) IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY THIRD PARTY CLAIM (EXCEPT AS PROVIDED FOR UNDER THE INDEMNIFICATION PROVISION OF THIS SECTION) OR FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR OTHER INDIRECT DAMAGES.
(b) Billhighway agrees to indemnify Client and hold it harmless from and against any losses, judgments, liability claims, expenses or costs of any kind, including reasonable attorney’s fees, which may result to Client as a result of Billhighway’s gross negligence or willful misconduct in connection with Billhighway’s provision of Services under this Agreement, or breach hereof, and with any software of Billhighway or other rights of Billhighway, Billhighway uses to perform its obligations hereunder, including, without limitation any claims for breach violation of a third party’s intellectual property rights or copyright infringement. In no event shall Billhighway’s liability to Client exceed the fees paid by Client to Billhighway hereunder.
(c) Client agrees to indemnify Billhighway and hold it harmless from and against any losses, judgments, liability claims, expenses or costs of any kind, including reasonable attorneys fees, which may result to Billhighway as a result of Client’s gross negligence or willful misconduct or breach hereof.
(d) The indemnification obligations in this Agreement are contingent upon: (1) the indemnified party promptly notifying the indemnifying party in writing of any claim which may give rise to a claim for indemnification hereunder and the indemnified party taking diligent and reasonable measures to mitigate any potential damages; (2) the indemnifying party being allowed to control the defense and settlement of any third party claim.
11. GOVERNING LAW.
This Agreement will be governed by and construed in accordance with the laws of the State of Michigan without reference to its rules of conflicts of law. The parties irrevocably submit and consent to the exercise of subject matter jurisdiction and personal jurisdiction over each of the parties by the federal and/or state courts in, or having jurisdiction over, Oakland County, Michigan. Each party hereby waives personal service of any and all process upon it and consents that all such service of process may be made to the addresses set forth in Section 13.
12. ENTIRE AGREEMENT.
The Agreement to which these terms and conditions are attached, together with all Attachments thereto, constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes any and all prior agreements. This Agreement may not be amended except in writing, signed by both parties. The terms of this Agreement shall prevail over contradictory terms in any purchase order, invoice, or any other documentation executed in furtherance of this Agreement, if any. The remedies provided in this Agreement or the Attachments to this Agreement, are intended to be the exclusive remedies for the matters to which they apply.
Any notice or consent or other communication permitted or required hereunder shall be deemed given when sent by registered via US Postal Services, First Class Mail, or Certified Mail or Registered Mail, or when sent by overnight delivery services or by facsimile transmission at the addresses set forth below:
Attn: Vincent Thomas
363 W. Big Beaver Rd., Suite 400
Troy, MI 48084
Address listed in the books and records of Billhighway
Billhighway is permitted to assign this Agreement or any duties or obligations under this Agreement including its rights to receive payments under this Agreement without consent upon notice to Client.
15. INDEPENDENT CONTRACTOR AND CONTRACT PERSONNEL.
Billhighway is and shall be an independent contractor, and not an employee or agent of Client for any purpose, including but not limited to FICA, FUTA, income tax withholding, any pension plan or health benefit plan maintained by Client for its own employees, unemployment insurance benefits, or worker’s compensation benefits. Client shall not be responsible to Billhighway or any Billhighway personnel for or with respect to any such benefits. Billhighway shall not have the right or ability to bind Client to any liability, obligation or commitment to any third party.
In the event there is a dispute between the parties regarding the interpretation of this Agreement the parties agree to attempt in good faith for a period of 30 days to resolve the dispute prior to filing any lawsuit; provided, however, neither party believes that irreparable harm could result of any delay in filing suit.
17. CONTACT LIST.
Billhighway and Client shall jointly prepare a list (including name, responsibility, hours, telephone number and fax number) of key persons within each organization to serve as contacts in the parties’ dealings with one another pursuant to this Agreement.
18. COLLECTION OF DATA.
Client agrees that Billhighway may collect and use technical data and related information from Client and Members, including but not limited to technical information about Client’s and Members’ devices, systems and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to Client and Members (if any) related to the Services. Billhighway may use this information, as long as it is in a form that does not personally identify Client or any Member, to improve Billhighway’s products or to provide services or technologies to Client and Members.
(a) If any portion of this Agreement is found to be unenforceable, the remaining shall continue in full force and effect.
(b) In the event either party fails to insist on strict performance of any of the terms and conditions of this Agreement, or fails to exercise any of its rights and privileges hereunder; such failure shall not constitute a waiver of such terms and conditions, rights or privileges.
(c) Other than expressly set forth herein, this Agreement shall not be deemed to provide third parties with any remedy, claim right of action, or other right. In the event a party is required to institute proceedings to collect fees and costs due hereunder, the prevailing party shall receive its attorneys’ fees and costs, incurred in connection with collecting such amounts.
(d) No press releases or other public disclosures relating to this Agreement, its existence or its subject matter, shall be made by either party without the prior written approval of the other party. In addition, neither party shall use, whether in press releases, on web sites, in advertising or otherwise, the name or any trade or service names or marks or logos of the other party, without such other party’s prior written consent. Notwithstanding the foregoing, a party shall be entitled to disclose the existence and content of this Agreement to the extent required by law, regulation or court order.