Software License and Subscription Agreement
Last Updated: MAY 24, 2022
Welcome to PersistEplan, LLC, doing business as B-File (“B-File”)! Please carefully review these B-File Terms of Service (these “Terms of Service”), as they contain important information about your legal rights, remedies and obligations. When these Terms of Service mention “B-File”, “we”, “us”, or “our”, it refers to PersistEplan, LLC. By subscribing to or using any of our Services (as defined below), you agree to comply with and be bound by these Terms of Service.
These Terms of Service constitute a legally binding agreement between you and B-File governing your access to and use of the Services. Your access to and use of the Services are also governed by (i) the terms set forth in your order form and/or online sign-up flows, (ii) the B-File Privacy Policy, (iii) the B-File Website Terms, and (iv) any other policies applicable to your use of the Services that we make available, each of which is incorporated by reference into these Terms of Service.
B-File respects your privacy. Please consult our Privacy Policy for more information on how we collect, use and share your personal information for our own purposes (but note that our Privacy Policy is not a part of these Terms of Service and may be changed from time to time). By agreeing to these Terms of Service, you acknowledge and consent to the collection, use, sharing and disclosure of your personal information and data as described in our Privacy Policy, as may be modified from time to time.
1.1. Intended Use. The Service is designed and intended to be used by service professionals in the insurance and financial services arena in the United States. Your use of the Service for any other purpose or in any other manner is at your own risk.
1.2. No Insurance or Financial Advice. B-File does not provide any insurance or financial advice. B-File’s proprietary liability calculator and revenue opportunity generator does not guarantee any specific outcomes.
1.3. Set-Up and Configuration. You are solely responsible for determining the appropriate set-up and configuration of the Services. In the event you request we provide assistance in the set-up or configuration of the Services, without in any way limiting Section 8.2, we make no representations or warranties with respect to any changes we may make or work we may perform on your behalf and at your request.
5.1 Authorization to Use the Services. Subject to (i) your timely payment of all fees set forth in the online sign-up flow or applicable agreement and (ii) your compliance with these Terms of Service, we authorize you, on a non-exclusive, non-transferable, and limited basis, to use (and permit your authorized users to use) the Services to which you have subscribed solely for your internal business purposes in accordance with Section 1.1 (Intended Use) above.
5.2 Authorized Users. You (i) are responsible for your authorized users’ compliance with these Terms of Service, and (ii) will use commercially reasonable efforts to prevent unauthorized access to or use of the Services. If the authorized status of a user changes, it is your responsibility to promptly remove such user’s access to the Services. Third parties that compete directly with us are not permitted to access or use the Services or any application programming interface we may make available to you. We reserve the right to disable or delete access to the Services and any application programming interface for any of your authorized users that we deem to be direct competitors, as determined in our sole discretion.
5.3 Your Responsibilities; Use of the Services In Compliance With Laws. The Services contain various tools and workflows that assist you in the conduct of your business. For example, you may be able to use the Services to, among other things, text, email, and accept payments from individuals. Such activities can be highly regulated, and while we assist you in carrying out such activities, you are solely responsible for ensuring compliance with all applicable laws and regulations. You are responsible for all activities that occur under your account or by your authorized users. Without limiting the foregoing, you will (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all data that you submit to the Services; (ii) use commercially reasonable efforts to prevent unauthorized control or tampering or any other unauthorized access to, or use of, the Services and notify us immediately of any unauthorized use or security breach; (iii) comply with all applicable local, state, federal, and foreign laws (including laws regarding privacy and protection of personal or consumer information) in using the Services; and (iv) obtain and maintain all computer hardware, software and communications equipment needed to access the Services and pay all access charges (e.g., ISP fees) incurred by you in connection with your use of the Services.
5.4 Your Restrictions. You may not, and you will ensure your authorized users do not, (i) disassemble, reverse engineer, decompile or otherwise attempt to decipher any code in connection with the Services, or modify, adapt, create derivate works based upon, or translate the Services; (ii) license, sublicense, sell, rent, assign, distribute, time share transfer, lease, loan, resell for profit, distribute, or otherwise commercially exploit, grant rights in or make the Services or any content offered therein available to any third party; (iii) use the Services except as expressly authorized under these Terms of Service or in violation of any applicable laws; (iv) engage in any illegal or deceptive trade practices with respect to the Services; (v) circumvent or disable any security or other technical features or measures of the Services or any other aspect of the software or, in any manner, attempt to gain unauthorized access to the Services or its related computer systems or networks; (vi) use the Services to transmit infringing, libelous, obscene, threatening, libelous, or otherwise unlawful, unsafe, malicious, abusive or tortious material, or to store or transmit material in violation of third-party privacy rights; (vii) use the Services to store or transmit any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs or to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (viii) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; (ix) use any robot, spider, or other automated device, process or means to access, retrieve, scrape or index any portion of the Services; or (x) reformat or frame any portion of the Services.
Although we have no obligation to monitor your use of the Services, we may do so at our discretion and may prohibit any use of the Services we believe may be (or is alleged to be) in violation of these Terms of Service or applicable laws and regulations.
5.5 Reservation of Rights. No other rights are granted except as expressly stated in these Terms of Service, and nothing herein conveys any rights or ownership or license in, or to, the Services or any underlying software or intellectual property. We own all right, title and interest, including all intellectual property rights, in and to the Services and the underlying software, and any and all updates, upgrades, modifications, enhancements, improvements or derivative works thereof, and in any idea, know-how, and/or program(s) developed by us or our authorized users during the course of performance of the Services.
6.1 Term. 12 month commitment at initial registration and auto-renews month to month after the first year. Must request in writing 30 days prior to cancelation after the initial commitment to cancel subscription.
6.2 Termination. Either party may terminate any subscription to Services (i) if the other party breaches any of its obligations under these Terms of Service and such breach is not cured within thirty (30) days of receipt of notice from the non-breaching party, or (ii) if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business. Notwithstanding the foregoing, we may terminate your subscription to the Services immediately in the event of your material breach of these Terms of Service, as determined by us in our sole discretion. Upon termination of your subscription, you will immediately discontinue all use of the Services, cease to represent that you are a user of the Services, and destroy all our Confidential Information (as defined in Section 9 below) in your possession. Neither party will be liable for any damages resulting from a valid termination of any subscription(s) to Services; provided, however, that termination will not affect any claim arising prior thereto.
6.3 Handling of Your Data in the Event of Termination. You agree that following expiration or termination of any of your subscriptions to the Services, we may immediately deactivate the affected Services and that, following a reasonable period, we may delete your account and data. However, in the event that the Services are terminated by us, we will grant you temporary, limited access to the Services, not to exceed thirty (30) days, for the sole purpose of permitting you to retrieve your proprietary data, provided that you have paid in full all undisputed amounts owed to us. You further agree that we will not be liable to you or to any third party for any termination of your access to the Services or deletion of your data, provided that we are in compliance with the terms of this Section 6.3.
7.1 Service Fees.. Service Fees are due and payable on the date of the invoice and in the method prescribed thereon. Service Fees are charged on a per authorized agency and/or user basis, dependent on your specific sign-up flow. We may increase Service Fees from time to time by providing you with no less than thirty (30) days advance notice; provided, however, the Service Fees for any Service subject to a fixed term, will only be increased at the time of renewal of your subscription to such Service. Service Fees are non-refundable if you terminate your subscription early.
7.2 Billing. Some parts of the Services are made available on a paid subscription basis (“Subscriptions”). Our Subscription plans for the Service consist of an initial year period, for which there is a one-time charge, followed by recurring charges as agreed by and your Agency. Billing and the fees associated with your use of the Service will depend upon and reflect specific co-pay arrangement your Agency has entered into with B-File, and you are responsible for all fees associated with your portion of the co-pay fees you’re responsible for, as detailed within these Terms of Service. You agree to pay for your co-pay fees to your Agency or other Enterprise as applicable as agreed between you and your Agency or Enterprise.
If you or your Agency/Enterprise do not provide and maintain accurate and up-to-date credit/debit card/payment method (“Payment Method”) to B-File, your account will be suspended and may only be reactivated by submission of valid Payment Method. B-File will have no responsibility for any loss of access to or use of the Services or your data or other information stored in or by the Services during such suspension period. Regardless of your billing cycle, there are no refunds or credits for (i) partial months or years of Services, (ii) users or Agencies with their authorization revoked from your account, or (iii) unused time with an open account. In order to treat all of our customers equally, no exceptions will be made.
In order to request any changes or additions to your plan (e.g., different billing cycles, additional authorized users, etc.), you must submit your request to B-File and your Agency or Enterprise in writing, or complete the appropriate sign-up flow as authorized by your Agency or Enterprise, and your Payment Method will be charged the new rate on your next billing cycle; provided, however, if you Subscription to the Services are on an annual billing cycle and you elect to add an additional Services to your account prior to the date of renewal for your Services (the date you add additional Services being referred to herein as the, “Service Add Date”), the Service Fee applicable to such additional Service will be prorated as of the Service Add Date and your Payment Method will be charged such prorated amount on the Service Add Date. Additional charges or increased fees may apply on a going forward basis for customers with an exceptionally high number of authorized users, an unusually high monthly ticket rate per agent, or extraordinary usage of bandwidth, in which case we will notify you in advance to provide you with a reasonable opportunity to modify your use of the Service or terminate your subscription to avoid any additional charges or increased fees.
7.3 Additional Fees. You may incur certain other non-refundable fees or charges for your use of the Services, including certain value-added services, in addition to those fees set forth in the online sign-up flow (the “Additional Fees”). Any Additional Fees will be set forth in the additional online sign-up flow for such service.
7.4 Late Payments. You acknowledge that your or your Agency/Enterprises’ failure to pay any Service Fees or Additional Fees when due may result in suspension or termination of your subscription to the Service. If you fail to pay any of the fees or charges due hereunder, B-File reserves the right to, among other things, engage an attorney or a collections agency to collect the delinquent fees and charges. You agree to pay all fees and costs incurred by B-File in connection with the collection of such delinquent amounts, including without limitation, any and all court and related costs, attorneys’ and/or collections agencies’ fees plus interest in an amount equal to the lesser of 1.0% per month or the maximum rate permitted by applicable law.
7.5 Taxes. You are responsible for all sales tax, use tax, value added taxes, withholding taxes and any other similar taxes and charge of any kind imposed by federal, state or local governmental entity on the transactions contemplated by these Terms of Service. When we have the legal obligation to pay or collect taxes for which you are responsible pursuant to this Section, the appropriate amount will be invoiced to and paid by you unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.
8.1 Representations and Warranties.
8.2 Disclaimer of Warranties. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE, AS TO ANY MATTER, INCLUDING THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE SOFTWARE OR THE SERVICES WILL MEET ALL OF YOUR REQUIREMENTS OR THAT THE USE OF THE SOFTWARE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE SOFTWARE AND SERVICES ARE PROVIDED TO YOU ON AN “AS IS” BASIS AND YOUR USE OF SOFTWARE AND SERVICES IS AT YOUR OWN RISK, INCLUDING, WITHOUT LIMITATION, COMPLIANCE WITH ANY LAWS, RULES OR REGULATIONS. THE PARTIES EXPRESSLY ACKNOWLEDGE THAT THE DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT. WE HEREBY EXPRESSLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS, RULES OR REGULATIONS. THIS DISCLAIMER APPLIES TO BUT IS NOT LIMITED TO ANY FEDERAL OR STATE STATUTES OR REGULATIONS THAT MAY BE APPLICABLE TO YOU. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE SERVICES IS IN ACCORDANCE WITH APPLICABLE LAW.
IF YOU ARE DISSATISFIED WITH THE SERVICES OR THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP USING THE SERVICES.
You agree to ensure that your authorized users keep all passwords and other access information to the Services in strict confidence.
This Section 9 will survive termination or expiration of your subscription to the Services.
10.1 Our Indemnification. We agree to defend, indemnify, and hold you harmless from and against all claims brought or threatened against you by a third party alleging that a provision of the Services as permitted hereunder infringes or misappropriates a third party copyright, trade secret, trademark or patent (“Infringement Claim”). If your use of the Services has become, or in our opinion is likely to become, the subject of any Infringement Claim, we may, at our option and expense: (i) procure for you the right to continue using the Services as set forth herein; (ii) modify the Services to make them non-infringing; or (iii) if the foregoing options are not reasonably practicable, terminate these Terms of Service and refund you any unused pre-paid Service Fees. This Section 10.1 states your exclusive remedy for any claim by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates a third party copyright, trade secret, trademark or patent. The indemnification obligations in this Section will survive termination or expiration of your subscription to the Services.
10.2. Limitations. We have no liability or obligation with respect to any costs or damages claimed under Section 10.1 if the Infringement Claim arises out of or is in any manner attributable to (i) any modification of any Services by you (or any of your authorized users), or (ii) use of Services in combination with services and products not provided by B-File if such infringement would have been avoided without such modification or combination, or (iii) our compliance with your designs or instructions (each an “Excluded Claim”).
10.3 Your Indemnification. You agree to defend, indemnify, and hold us and all our affiliates, employees, officers, directors, contractors, agents, licensors, successors and assigns harmless from any and all claims, judgments, awards, demands, suits, proceedings, investigations, damages, costs, expenses, losses, and any other liabilities (including reasonable attorneys’ fees, court costs and expenses) arising out of or relating to (i) your use of the Services in violation of these Terms of Service, (ii) an Excluded Claim, (iii) any actual or alleged breach by you of any representation, warranty, covenant or obligation under these Terms of Service, or (iv) your gross negligence or willful misconduct. Your indemnification obligations under this Section 10.3 will survive any termination or expiration of your subscription to the Services.
10.4 Conditions of Indemnification. The indemnification obligations under this Section 10 above are conditioned upon (i) the indemnified party notifying the indemnifying party promptly in writing upon knowledge of any claim for which it may be entitled to indemnification hereunder; (ii) to the extent applicable, the indemnified party ceasing use of the claimed infringing Services upon receipt of notice of an Infringement Claim; (iii) the indemnified party permitting indemnifying party to have the sole right to control the defense and settlement of any such claim (provided that the indemnifying party may not settle any claim without the indemnified party’s consent unless the settlement unconditionally releases the indemnified party from all liability); (iv) the indemnified party providing reasonable assistance to the indemnifying party, at the indemnifying party’s expense, in the defense of such claim; (v) the indemnified party not entering into any settlement agreement or otherwise settling any such claim without indemnifying party’s express prior written consent or request (except as set forth in (iii) above); and (vi) the indemnified party complying with any settlement or court order made in connection with the claim (e.g., related to the future use of any infringing materials). For clarity, the indemnified party may participate in the defense or settlement of a claim with counsel of its own choice and at its own expense.
TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESETERMS OF SERVICE IS LIMITED TO THE SUM OF THE AMOUNTS PAID BY YOU FOR THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEEDING THE DATE THE CAUSE OF ACTION AROSE.
TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE RESPONSIBLE FOR LOST PROFITS, REVENUES, DATA, FINANCIAL LOSSES, OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THESE TERMS OF SERVICE. IN ALL CASES NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU, IN WHICH CASE OUR LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
15.1 Independent Parties. No joint venture, partnership, agency or employment relationship exists between you and B-File. You are solely responsible for managing your employees and for any and all compensation, taxes, benefits and liabilities to your employees and any of your other representatives or service providers.
15.2 Assignment. You will not assign or transfer the Services or any of your rights and/or obligations under these Terms of Service without our prior written consent. We may without restriction assign or transfer our rights and/or obligation hereunder, at our sole discretion. Subject to the foregoing, these Terms of Service will bind to the parties’ respective successors and assigns.
15.3 Force Majeure. No failure, delay or default in performance of any obligation of a party will constitute an event of default or breach of these Terms of Service to the extent that such failure to perform, delay or default arises out of a cause that is beyond the control and without negligence of such party, including (but not limited to) natural disasters (e.g. lightning, earthquakes, hurricanes, floods); wars, riots, terrorist activities, and civil commotions; a local exchange carrier’s activities, and other acts of third parties; explosions and fires; embargoes, strikes, and labor disputes; governmental decrees; failures of telecommunications providers or internet service providers; and failures of third party suppliers, service providers or vendors. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause.
15.4 Applicable Law. These Terms of Service and any dispute arising out of or relating to the Services and/or these Terms of Service will be interpreted in accordance with the laws of the State of California, without regard to conflict-of-law provisions. All disputes arising out of or related to these Terms of Service shall be subject to the exclusive jurisdiction and venue of the federal and state courts sitting in the County of Oakland, State of Michigan (unless we both agree to some other location). We each hereby expressly consent to the personal and exclusive jurisdiction of such courts.
15.5 Notices. You agree that we will provide notices, statements and other messages to you in the following ways: (1) within the Service, or (2) to the contact information you last provided us (e.g., e-mail, mobile number, physical address, etc.). You agree to keep your contact information up to date.
15.6 No Waiver; Cumulative Remedies. Either party’s failure to enforce any right or provision under these Terms of Service will not constitute a waiver of that right or provision. Except as expressly set forth in these Terms of Service, the exercise by either party of any of its remedies under these Terms of Service are in addition to (and not exclusive of) any other remedies permitted at law or in equity.
15.7 Severability. If any provision of these Terms of Service is deemed invalid, then that provision will be limited or eliminated by the court to the minimum extent necessary, and the remaining provisions of these Terms of Service will remain in full force and effect.
15.8 Entire Agreement. These Terms of Service and (i) the terms you agree to during the online sign-up flow, (ii) the B-File Payment Terms, (iii) the B-File Website Terms, and (iv) any other policies applicable to your use of the Services that we make available to you (each of which is incorporated by reference into these Terms of Service) constitute the sole and entire agreement between you and us, and supersede all prior and contemporaneous oral or written understandings or agreements with B-File with respect to the Services. You acknowledge and agree that your agreement to these Terms of Service is not contingent upon the delivery of any future functionality or features not specified herein or in an online sign-up flow or dependent upon any oral or written, public or private comments made by us with respect to future functionality or features for the Services. In the event of any conflict between the provisions in these Terms of Service and any online sign-up flows (or addendums thereto), the terms of such online sign-up flows (or addendums thereto) will prevail.
15.9 Export. Both parties agree to comply with applicable US export and import laws and regulations. You will not permit your users to access or use the Services in violation of any U.S. export embargo, prohibition or restriction.
15.10 Third Party Services. The Services or our website may contain links to other sites, services, and products provided by third parties, which may include our affiliates or subsidiaries. Such links are provided for your convenience only. We have no control over such sites, services, and products and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third party websites or services found within the Services, you do so entirely at your own risk and subject to the terms and conditions of use for such websites or services.
15.11 Copyright Policy. B-File respects the intellectual property rights of others, and asks that everyone utilizing the Services do the same. Anyone who believes that their work has been reproduced on the Services in a way that constitutes copyright infringement may notify us in accordance with Title 17, United States Code, Section 512(c)(2), by providing the following information:
15.11.1 Identification of the copyrighted work that you claim has been infringed;
15.11.2 Identification of the material that you claim is infringing and needs to be removed from the Services, including a description of where it is located on the Services so that we can locate it;
15.11.3 Your address, telephone number and, if available, email address, so that we may contact you about your compliant;
15.11.4. A signed statement (a) that the foregoing information is accurate, (b) that you have a good faith belief that the identified use of the material is not authorized by the copyright owner, its agent and/or the law, and (c) under penalty of perjury, that you are the copyright owner or are authorized to act on the copyright owner’s behalf in this situation.
Notices of copyright infringement and the foregoing information should be sent to [support@bfilesystem.com], or, if by mail, to PersistEplan, LLC, 400 Water Street, Ste. 209, Rochester, MI 48307, Attn: Copyright Agent.