Pay App Program Defined Terms

Last Modified: February 8, 2024

The following Pay App Program Defined Terms are current as of the Version Effective Date but are subject to change, from time to time, by Billd Exchange in its sole discretion. Any change(s) to the Pay App Program Defined Terms shall be deemed effective upon posting of such change(s) to the Billd website located at https://billd.com/pay-app-program-defined-terms-v4/. Please refer to such location on the Billd website, from time to time, for the then-current and effective Pay App Program Defined Terms.

1. “Access Device” means the Account number(s), Administrator ID(s), User ID(s), Project ID(s), Purchase ID(s), passwords and other credentials and mechanisms that Billd Exchange or a Third Party Provider provides to Sellers to access the Billd Portal, the Billd Integrations, the other Billd Systems, and/or to request and consummate Purchases under the Pay App Program.
2. “Account” means any accounts receivable of a Seller arising from such Seller’s performance and completion of labor and/or other construction services to or for the benefit of an Account Debtor and relating to a Project approved by Billd Exchange, plus all invoices, payment applications, contract rights, documents, notes, instruments and all other forms of obligations owed to or owned by Seller, all general intangibles relating thereto, all products and proceeds thereof, all guaranties, supporting obligations and security therefor (including all lien rights and bond claims rights, whether contractual, statutory or otherwise), and any and all other rights represented thereby and arising therefrom.
3. “Account Debtor” means the person or entity which is obligated on an Account to Seller, together with anything else defined as an “account debtor” under the UCC.
4. “Account Documentation” means the paper or electronic documentation required to be submitted to Billd Exchange in connection with a Purchase Request, including but not limited to the relevant invoice, payment application, waiver(s), contract, change order(s), amendment(s), schedule(s), exhibit(s), purchase order(s), invoice(s), scope of work, specifications, terms and conditions, Approved Submittals, all documentation required to be submitted to the Account Debtor to obtain payment for the applicable Account, and/or any other documents relating to such Account or the applicable Project (e.g., any relevant Project number or other identifier).
5. “ACH” means the automated clearing house system used by Billd Exchange to settle payments to and from Sellers under the Pay App Program.
6. “Administrator” means the one (1) individual designated by a Seller (and approved by Billd Exchange) who is provided administrative control over Seller’s access to the Billd Systems and who governs and controls any Users who may access or use the Access Devices and the Billd Systems.
7. “Approved Submittals” means any and all approvals required to be obtained from the applicable architect, general contractor, lessee, property owner, project owner, developer, and/or lender with respect to a Project and relating to the specific labor, materials, and/or other construction services that are the subject of an Account submitted in a Purchase Request.
8. “Associated Person” means any Person that controls, is controlled by or under common control with another Person, where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies or other decision-making functions of a Person, whether through the ownership of voting securities, by contract or otherwise (with “controlled” having a correlative meaning).
9. “Billd” means Billd Exchange and its Associated Persons.
10. “Billd Exchange” means Billd Exchange, LLC, a Delaware limited liability company.
11. “Billd Integration” means any web-based software, application, or other integration accessed through a Third Party Provider’s website or application, through which information is provided to Billd, including but not limited to, Account Documentation and all other information submitted in connection with reviewing or approving Seller’s Account(s) and any Purchase Request submitted by Seller.
12. “Billd Portal” means the proprietary web-based software application made available by Billd for purposes of initiating, processing, managing, and completing Purchases, including, as appropriate, applications made available through a Billd Integration on a Third Party Provider’s website or application.
13. “Billd Systems” means the hardware, software, processes and other systems used by Billd to operate the Pay App Program, including without limitation the Billd Portal and the Billd Integrations.
14. “Credit Event” means any event creating a financial inability of an Account Debtor to pay the Purchased Account during the applicable Pay App Service Period.
15. “Contract Rate” means the daily rate described in the applicable Pay App Purchase Statement for a Purchase which is used to calculate the Finance Charge applicable to such Purchase.
16. “Dispute” means any dispute, deduction, claim, offset, recoupment, defense or counterclaim of any kind whatsoever, real or imagined, regardless of whether the same is in an amount greater than, equal to or less than the Purchased Account concerned, regardless of whether the same is valid or bona fide, regardless of whether the same in whole or in part relates to the Purchased Account or other Accounts or agreements with the Account Debtor upon which payment is being withheld, and regardless of whether the same arises by reason of an act of God, civil strife, epidemic, pandemic, war, travel restriction, currency restriction, political restriction or any other government order or regulation, or the like, or any other reason.
17. “Electronic Signature” means any electronic sound, symbol or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including clicking a box on a website or typing in the characters of a name, initials, or other adopted symbol of a party reasonably intended to have the effect of signatures.
18. “Eligible Account” means an Account that meets the standards for purchase by Billd Exchange under the Pay App Program and pursuant to Seller’s MPAA, all as determined by Billd Exchange, in its sole and absolute discretion, from time to time.
19. “Environmental Law(s)” means any federal, state, local or foreign law, rule, regulation or order relating to pollution, waste disposal, industrial hygiene, land use or the protection of human health, safety or welfare, plant life or animal life, natural resources, the environment or property.
20. “Expected Payment Date” means the date by which a Seller represents and warrants to Billd Exchange that the full Face Value of the Purchased Account sold by such Seller to Billd Exchange will be paid in full to and received by Billd Exchange, as specified in the applicable Pay App Purchase Statement. Additionally, in the event Billd Exchange agrees to extend the Pay App Service Period applicable to such Purchase, then “Expected Payment Date” shall mean the last calendar day of the applicable Pay App Service Period, as extended.
21. “Extension Fee” or “Forbearance Fee” means the service fee which Billd Exchange may require Seller to pay in exchange for Billd Exchange’s agreement to extend the Pay App Service Period applicable to a Purchase and/or forbear from requiring Seller to Repurchase the Purchased Account.
22. “Face Value” means the face value of a Purchased Account as set forth in a Pay App Purchase Statement with respect to a Purchase.
23. “Family Member” means, with respect to any individual, any of the following: (i) such individual’s children, grandchildren, parents, grandparents, siblings and cousins (in each case, whether biological or by way of adoption), as well as any spouse or former spouse of any of the foregoing; (ii) such individual’s spouse or former spouse; and (iii) any children, grandchildren, parents, grandparents, siblings or cousins of such individual’s spouse or former spouse (in each case, whether biological or by way of adoption), as well as any spouse or former spouse of any of the foregoing.
24. “Final Disbursement Payment” means the final payment, if any, to be made by Billd Exchange to Seller with respect to a Purchase, which payment shall be in the amount set forth in the applicable Pay App Purchase Statement (as reduced by any and all Set-Off Amounts) and made on the Final Disbursement Payment Date (unless payment is accelerated under Seller’s MPAA).
25. “Final Disbursement Payment Date” means, with respect to a Purchase, the one (1) year anniversary of the applicable Purchase Date.
26. “Finance Charge” means, with respect to a Purchase, a finance charge that accrues on a daily basis beginning on the first day immediately following the applicable Purchase Date (subject to any Finance Charge-Free Period(s)). The Finance Charge for a Purchase is computed by multiplying the Purchase Price by the Contract Rate specified in the applicable Pay App Purchase Statement and then multiplying the product thereof by the number of days in the corresponding Pay App Service Period. For the avoidance of doubt, in all instances, the Finance Charge shall continue to accrue each day following the expiration of the applicable Pay App Service Period so long as any portion of the Face Value of the Purchased Account remains unpaid to Billd Exchange (other than as a result of a Credit Event).
27. “Finance Charge-Free Period” means, with respect to a Purchase, an initial period of time following the Purchase Date during which no portion of the Finance Charge owed in connection with a Purchase shall accrue or otherwise be payable by Seller, in each case, as agreed by Billd Exchange and set forth in the applicable Pay App Purchase Statement. For the avoidance of doubt, the Finance Charge shall begin to accrue as of the first day immediately following the end of such initial period and shall otherwise be payable in accordance with the applicable Pay App Purchase Statement.
28. “Guarantor” means any person or entity required to guarantee the payment and performance by Seller of its duties and Obligations under an MPAA.
29. “Guaranty” means a guaranty agreement executed and delivered by any shareholder, member, partner, or other principal owner of a Seller, or by any parent, affiliate, subsidiary, or successor of a Seller in favor of Billd Exchange in connection with Seller’s MPAA.
30. “Initial Disbursement Payment” means the first of up to two payments to be made by Billd Exchange to Seller with respect to a Purchase, the amount of which payment shall be set forth in the applicable Pay App Purchase Statement and may be reduced by the amount of the Pay App Purchase Fee at Billd Exchange’s election.
31. “Modified Pay App Purchase Statement” means the short-form agreement between Billd Exchange and a Seller, which, at Billd Exchange’s option, Seller may be required to sign in exchange for Billd Exchange’s agreement to extend the Pay App Service Period applicable to a Purchase and/or forbear from requiring Seller to Repurchase the applicable Purchased Account.
32. “MPAA” means a Seller’s Master Pay App Agreement with Billd Exchange, as the same may be restated, supplemented, amended, or otherwise modified from time to time.
33. “Obligations” mean (and include each and all of the following) the obligation to pay and perform when due under the Agreement (as defined in a Seller’s MPAA) all obligations, fees, liabilities, covenants, agreements, guaranties, warranties and representations of Seller to Billd Exchange, of any and every kind and nature, whether heretofore, now or hereafter owing, arising, due or payable from Seller to Billd Exchange, including, without limitation, the Repurchase Obligations.
34. “Pay App Program” means the accounts receivable factoring program offered by Billd Exchange to eligible contractors through which such contractors may present and sell Accounts to Billd Exchange, as approved and accepted by Billd Exchange from time to time in its sole and absolute discretion.
35. “Pay App Program Rules” means, if applicable, any operating rules established and modified by Billd Exchange from time to time for participation in the Pay App Program, which shall be deemed effective with respect to any Seller upon posting of such Pay App Program Rules in the Billd Portal, in any Billd Integration, in any of the other Billd Systems, and/or on Billd’s website, as updated from time to time.
36. “Pay App Purchase Fee” means a finance charge that is immediately incurred by Seller upon Purchase of an Eligible Account, if any, which service fee shall equal a certain percentage of the Initial Disbursement Payment as set forth in the applicable Pay App Purchase Statement. The Initial Disbursement Payment made to Seller by Billd Exchange may be reduced by the amount of any applicable Pay App Purchase Fee.
37. “Pay App Purchase Statement” means the short-form agreement between Billd Exchange and a Seller under the Seller’s MPAA identifying the specific terms applicable to a Purchase under the Pay App Program, including without limitation, descriptions of the Purchased Account and the Project, the Face Value, the Account Debtor, the Purchase Price, the Pay App Purchase Fee, the Finance Charge, the Initial Disbursement Payment, the Final Disbursement Payment (if applicable), the Pay App Service Period, and the Expected Payment Date. The Pay App Purchase Statement shall include accurate information sufficient for Billd Exchange to make and file any applicable pre-lien notices, liens, bond claims, UCC notices and filings, and other security filings. The term “Pay App Purchase Statement” also means and collectively refers to the initial Pay App Purchase Statement and any Modified Pay App Purchase Statement(s) executed by Billd Exchange and Seller in connection with any Purchase under the Agreement.
38. “Pay App Service Period” means, with respect to a Purchase, the period of time commencing on the Purchase Date and ending on the Expected Payment Date during which Billd Exchange agrees to accept the credit risk that a Purchased Account cannot be collected from the Account Debtor because of a Credit Event, which period of time is expressed in days and set forth on the applicable Pay App Purchase Statement. Additionally, to the extent Billd Exchange agrees to extend the Pay App Service Period, the term “Pay App Service Period” shall then mean and include the period of time set forth on the applicable Pay App Purchase Statement, as well as any additional period of time through which the Pay App Service Period has been so extended.
39. “Person” means any individual, corporation, limited liability company, trust, joint venture, association, company, limited or general partnership, unincorporated organization, governmental authority, or other entity.
40. “Project” means the specific construction project for which a Seller has been engaged to perform, and has performed and completed, labor and/or construction services that are the subject of an Account.
41. “Purchase” means a Seller’s sale, and Billd Exchange’s purchase, of a specific Eligible Account of Seller, in each case, which sale and purchase is requested and initiated with an Access Device or otherwise through one of the Billd Systems and presented to and accepted by Billd Exchange under the Pay App Program.
42. “Purchase Date” means, with respect to a Purchase and subject to the satisfaction of the conditions in the Agreement, the date on which Billd Exchange initiates its transfer of the applicable Initial Disbursement Payment for such Purchase to Seller, regardless of whether Seller receives such funds on such date.
43. “Purchase Price” means the purchase price for a Purchased Account as set forth in the applicable Pay App Purchase Statement.
44. “Purchase Request” means a request for Billd Exchange to authorize a specific Purchase in the Billd Systems.
45. “Purchased Account” means an Account for which: (i) a Pay App Purchase Statement has been executed by Seller and Billd Exchange; and (ii) subject to the satisfaction of the conditions in the Agreement, Billd Exchange has initiated its transfer of the applicable Initial Disbursement Payment to Seller.
46. “Recovery Costs” mean any charges, costs, fees and/or other expenses incurred by Billd Exchange in connection with a Seller’s Purchases, including, without limitation, mailing/filing/recording fees or costs, third-party processing/service fees or costs, research/documentation fees or costs, insufficient funds or blocked transfer fees, other out-of-pocket fees or costs for pursuing or exercising any lien rights and/or bond claims, and/or all costs and expenses of collection relating to a Repurchase (including reasonable attorneys’ fees, arbitrator fees and arbitration costs, court costs and litigation related expenses).
47. “Related Party” means, with respect to any Seller, any Person that is a direct or indirect Associated Person, Family Member or Family Member of an Associated Person of such Seller.
48. “Repurchase” means the repurchase by Seller of a Purchased Account from Billd Exchange as required or permitted pursuant to Seller’s MPAA.
49. “Repurchase Collateral” has the meaning provided in a Seller’s MPAA (or, to the extent applicable, in such other written instrument duly executed by Seller and Billd Exchange that is expressly intended to set forth the meaning of “Repurchase Collateral” for purposes of such Seller’s MPAA).
50. “Repurchase Obligations” means the Obligations of Seller to Billd Exchange arising from a Repurchase, including, without limitation, the Obligation to pay Billd Exchange the Repurchase Price.
51. “Repurchase Price” means, with respect to a Purchased Account subject to Repurchase, the sum of the following: (i) the Face Value for such Purchased Account set forth in the applicable Pay App Purchase Statement; plus (ii) any unpaid amount of any applicable Pay App Purchase Fee; plus (iii) the aggregate amount of any Finance Charge which has accrued but not already been paid to Billd Exchange by Seller; minus (iv) any amounts actually collected by Billd Exchange in full or partial satisfaction of the Account Debtor’s obligations with respect to the applicable Purchased Account; minus (v) if not already paid by Billd Exchange, the amount of any Final Disbursement Payment applicable to such Purchased Account.
52. “Seller” means a contractor that has been approved by Billd Exchange to participate in the Pay App Program and has entered into a MPAA with Billd Exchange.
53. “Seller Bank Account” means a business checking account located in the United States that a Seller must establish and maintain during the term of its MPAA. The wire and ACH transfer instructions for such account must be provided to Billd Exchange and kept up-to-date during the term of such MPAA.
54. “Seller Personnel” means the principals, officers, directors, shareholders, members, managers, partners, employees, agents, representatives, consultants and contractors, including but not limited to Administrators and Users, of a Seller, as well as any person or entity acting or purporting to act on Seller’s behalf or at its direction in using the Access Devices and/or when interacting with the Billd Systems.
55. “Set-Off Amounts” mean(s): (i) any amount(s) owed to Billd Exchange by a Seller, outstanding at any time and whether then due and payable, including, without limitation, (A) any unpaid amount(s) owed to Billd Exchange by such Seller in connection with any Purchase, and/or (B) any unpaid amount(s) owed to Billd Exchange by such Seller under any other agreement(s) between Seller and Billd Exchange; and (ii) any amount(s) withheld, retained, deducted, set aside or otherwise set off by an Account Debtor with respect to a Purchased Account as a result of a Dispute relating to or arising from Seller or such Purchased Account.
56. “Third Party Provider” means an entity (other than Billd Exchange) which has agreed to provide services to Billd Exchange and its customers, including Sellers and Users.
57. “Third Party Service” means a service provided by a Third Party Provider.
58. “UCC” means the Uniform Commercial Code as in effect from time to time in the State of Arizona or, when the laws of any other jurisdiction govern the method or manner of the perfection or enforcement of any security interest in any of the Repurchase Collateral (as defined in Seller’s MPAA), the Uniform Commercial Code as in effect from time to time in such jurisdiction.
59. “User” means the individuals designated by a Seller’s Administrator who may access the Billd Systems, including without limitation, those who access or interact with the Billd Systems for the purpose of submitting Purchase Requests for or on behalf of Seller.
60. “Weekly Payment” means, with respect to a Purchase, a portion of the total Finance Charge applicable to a Purchase which may be collected by Billd Exchange from a Seller in installments on a weekly basis. The amount of each Weekly Payment may be computed by dividing the total Finance Charge applicable to such Purchase by the number of Weekly Payments specified in the applicable Pay App Purchase Statement. For the avoidance of doubt, the Finance Charge shall continue to accrue and Weekly Payments continue to become due and payable to Billd Exchange in the amount specified in the applicable Pay App Purchase Statement after the expiration of the Pay App Service Period and/or during any extensions thereof, so long as any portion of the Face Value of the Purchased Account remains unpaid to Billd Exchange (other than as a result of a Credit Event) or until the corresponding Repurchase Obligations of Seller with respect to such Purchased Account are satisfied.