Terms & Conditions

Last Modified June 6th, 2022

 

 

Terms of Service

 

This Terms of Service Agreement (the “Agreement”) is an agreement between you (the “Customer”, “User” or “You”) and Business Credentialing Services, Inc. ("BCS", "we", or "us"). We provide Customers with access to certain Digital Platforms (as defined below) to help our Customers with Certificate of Insurance tracking, insurance compliance, processing, insurance management, RFP management, messaging, and/or other business compliance and/or screening technology-enabled services relating to Customer-specified suppliers, customers, vendors, tenants, franchisees, borrowers, contractors, sub-contractors, operators and/or service providers or other services that may be provided by BCS (collectively, the “Services”) directly and through the Digital Platforms. If you have any questions about this Agreement, please email us and let us know. This Agreement explains our obligations to you, and your obligations to us. By using the Digital Platforms in any way, you agree to comply with these terms, our Privacy Policy and any other legal notices or conditions or guidelines posted on the Digital Platforms.

 

Using our Services

 

You must follow any policies made available to you within the Services. Don’t misuse our Services. For example, don’t interfere with our Services or try to access them using a method other than the interface and the instructions that we provide. You may use our Services only as permitted by law, including applicable export and re-export control laws and regulations. We may suspend or stop providing our Services to you if you do not comply with our terms or policies or if we are investigating suspected misconduct. Using our Services does not give you ownership of any intellectual property rights in our Services or the content you access. You may not use content from our Services unless you obtain permission from its owner or are otherwise permitted by law. These terms do not grant you the right to use any branding or logos used in our Services. Don’t remove, obscure, or alter any legal notices displayed in or along with our Services. Our Services may display some content that is not BCS’. This content is the sole responsibility of the entity that makes it available. We may review content to determine whether it is illegal or violates our policies, and we may remove or refuse to display content that we reasonably believe violates our policies or the law. But that does not necessarily mean that we review content, so please don’t assume that we do. In connection with your use of the Services, we may send you service announcements, administrative messages, and other information. You may opt out of some of those communications. Some of our Services are available on mobile devices. Do not use such Services in a way that distracts you and prevents you from obeying traffic or safety laws.

 

Your BCS Account

 

You may need a BCS Account in order to use some of our Services. You may create your own BCS Account, or your BCS Account may be assigned to you by an administrator, such as your client or vendor. If you are using a BCS Account assigned to you by an administrator, different or additional terms may apply and your administrator may be able to access or disable your account. To protect your BCS Account, keep your password confidential. You are responsible for the activity that happens on or through your BCS Account. Try not to reuse your BCS Account password on third-party applications. If you learn of any unauthorized use of your password or BCS account, please contact us immediately.

 

Billing and Payment

 

Payment. For Customers that purchase our Services, fees are specified at the Services interface “check-out” and in the Order Form(s) or in a digital proposal sent by an authorized representative of BCS — and must be paid in advance. Client shall pay for the Services as specified in this Agreement. Payments may be made by check, electronic funds transfer or any other method pre-arranged between BCS and Client. Client payment by credit card will incur a 3.5% fee. All amounts in this Agreement are in United States dollars. Vendor payments may be billed in the local currency of the country in which their property is located; however, BCS may periodically adjust local currency Vendor fee amounts for currency conversion rate changes and costs and may provide for a reasonable cushion for currency fluctuations to avoid frequent adjustments.

             

Invoices. Client shall receive one invoice monthly electronically (or less frequently as provided in this Agreement or mutually agreed). Invoices will be considered paid late if payment is not received within 20 days of receipt of the invoice. At the discretion of BCS, late payments (except with respect to charges then under reasonable and good faith dispute) shall be charged interest at the rate of 1.5% per month of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the invoice date until the date paid.

 

Billing per Account or Vendor. Client (or Vendor in the case of Vendor-pay) shall pay the annual fees, including surcharges, per Account or Vendor, as the case may be, in full, for 12 months and be billed in the month when the Account or Vendor is first submitted to BCS and every 12 months thereafter so long as the Account or Vendor is active. Accounts and Vendors shall be active until Client shall notify BCS of that Vendor's termination. An Account with the same Vendor but with new Rules shall be treated as a new Account and the old Account shall at the same time be terminated as an active Account. Subsequent reactivation of a terminated Vendor shall be treated as a new Account. The COI of a Vendor of a Vendor shall be a new Account. There shall be no refund of fees paid or due, for partial years or otherwise, in the event of termination of this Agreement or of an Account or Vendor. Any delayed payments (i.e., other than payment annually beginning when first submitted to BCS) shall be accelerated and due upon termination of this Agreement.

 

Non-Payment and Suspension of Services. BCS reserves the right to withhold performance of obligations arising under this Agreement in the event of non-payment when due of amounts owed by Client to BCS (except with respect to charges then under reasonable and good faith dispute). BCS will provide notice and a reasonable opportunity to cure prior thereto.

 

Sales Taxes. BCS prices do not include any direct or indirect local, state, federal or foreign taxes, levies, duties, tariffs or similar governmental assessments of any nature, including sales, use, withholding, excise, value added, GST, gross receipts, ad valorem and similar transaction taxes and related penalties (“Taxes”). Client shall be responsible for paying, or reimbursing BCS for, all Taxes other than BCS taxes or fees measured by BCS’ net or gross income.

 

 

Term and Termination

 

Contract Term

As further described below, a free subscription continues until terminated, while a paid subscription has a term that may expire or be terminated. The Contract remains effective until all subscriptions ordered under the Contract have expired or been terminated or the Contract itself terminates. Termination of the Contract will terminate all subscriptions and all Order Forms.

 

Auto-Renewal

Unless an Order Form says something different, (a) all subscriptions automatically renew (without the need to go through the Services-interface “check-out” or execute a renewal Order Form) for additional periods equal to one (1) year or the preceding term, whichever is shorter; and (b) the per-unit pricing during any automatic renewal term will be charged at the rate that is in effect at the time of the renewal. Should the pricing for the renewal term be higher than the pricing charged to the Customer during the immediately prior term, BCS shall notify the Customer of the pricing increase at least thirty (30) calendar days before the beginning of the renewal term. Either party can give the other notice of non-renewal at least twenty (20) days before the end of a subscription term to stop the subscriptions from automatically renewing.

 

Termination for Cause

We or Customer may terminate the Contract on notice to the other party if the other party materially breaches the Contract and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. Customer is responsible for its Authorized Users, including for any breaches of this Contract caused by its Authorized Users. We may terminate the Contract immediately on notice to Customer if we reasonably believe that the Services are being used by Customer or its Authorized Users in violation of applicable law.

 

 

Termination Without Cause

Customer may terminate its free subscriptions immediately without cause. We may also terminate Customer’s free subscriptions without cause at any time. Customer may also terminate a paid subscription at any time, however Customer shall not be entitled to any refunds should they elect to terminate a subscription or paid service.

 

Effect of Termination

Upon any termination for cause by Customer, we will refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by us, Customer will pay any unpaid fees covering the remainder of the term of those subscriptions after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination.

 

Data Portability and Deletion

We are custodians of Customer Data. During the term of a workspace’s subscriptions, Customer will be permitted to export or share certain Customer Data from the Services; provided, however, that because we have different products with varying features and Customer has different retention options, Customer acknowledges and agrees that the ability to export or share Customer Data may be limited or unavailable depending on the type of Services plan in effect and the data retention, sharing or invite settings enabled. Following termination or expiration of a workspace’s subscriptions, we will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in our systems or otherwise in our possession or under our control.

 

Force Majeure

 

Neither BCS nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.

 

 

Privacy and Copyright Protection

 

BCS’ privacy policies explain how we treat your personal data and protect your privacy when you use our Services. By using our Services, you agree that BCS can use such data in accordance with our privacy policies. We respond to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act. We provide information to help copyright holders manage their intellectual property online. If you think somebody is violating your copyrights and want to notify us, you can find information about submitting notices and BCS’ policy about responding to notices on our website.

 

Your Content in our Services

 

Some of our Services allow you to upload, submit, store, send or receive content. You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours. When you upload, submit, store, send or receive content to or through our Services, you give BCS (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the purpose of operating, promoting, and improving our Services, and to develop new ones. By using the Services, you understand and acknowledge that BCS is permitted to use any information you provide to BCS in the furtherance of BCS’ business. This license continues even if you stop using our Services. Some Services may offer you ways to access and remove content that has been provided to that Service. Also, in some of our Services, there are terms or settings that may narrow the scope of our use of the content submitted in those Services. Make sure you have the necessary rights to grant us this license for any content that you submit to our Services. You can find more information about how BCS uses and stores content in the privacy policy or additional terms for particular Services. If you submit feedback or suggestions about our Services, we may use your feedback or suggestions without obligation to you.

 

 

About Software in our Services

 

When a Service requires or includes downloadable software, this software may update automatically on your device once a new version or feature is available. Some Services may let you adjust your automatic update settings. BCS gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by BCS as part of the Services. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by BCS, in the manner permitted by these terms. You may not copy, modify, distribute, sell, or lease any part of our Services or included software, nor may you reverse engineer or attempt to extract the source code of that software, unless laws prohibit those restrictions or you have our written permission.

 

Modifying and Terminating our Services

 

We are constantly changing and improving our Services. We may add or remove functionalities or features, and we may suspend or stop a Service altogether. You can stop using our Services at any time. BCS may also stop providing Services to you, or add or create new limits to our Services at any time in accordance with the terms of this Agreement.

 

Relationship of the Parties; No Third Party Beneficiaries

 

The parties are independent contractors. The Contract does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Unless otherwise specifically provided, there are no third party beneficiaries to the Contract.

 

Warranties and Disclaimers

 

EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED SOFTWARE, DIGITAL PLATFORMS, COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND BCS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT BCS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.

 

Limitation of Liability

 

WHEN PERMITTED BY LAW, BCS, AND BCS’ SUPPLIERS AND DISTRIBUTORS, WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES. TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF BCS, AND ITS SUPPLIERS AND DISTRIBUTORS, FOR ANY CLAIMS UNDER THESE TERMS, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT YOU PAID US TO USE THE SERVICES (OR, IF WE CHOOSE, TO SUPPLYING YOU THE SERVICES AGAIN) DURING THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. IN ALL CASES, BCS AND ITS SUPPLIERS AND DISTRIBUTORS, WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.

 

IN NO EVENT WILL EITHER CUSTOMER OR BCS HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

 

Governing Law and Dispute Resolution

 

BCS and You agree that this Agreement shall be governed exclusively by Texas law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. The United Nations Convention on Contracts for International Sale of Goods is hereby expressly excluded. YOU EXPRESSLY WAIVE ANY RIGHT TO INVOKE OR CLAIM APPLICATION OF ANY OTHER LAW TO GOVERN THE CONCLUSION, PERFORMANCE, FAILURE TO PERFORM, TERMINATION OR EXPIRY OF THIS AGREEMENT. Subject to the Agreement to Arbitrate provisions below, BCS and You agree that any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the BCS Services shall be subject to the exclusive jurisdiction of the state and federal courts located in Harris County, Texas.

 

IN THE EVENT OF A DISPUTE BETWEEN YOU AND BCS ARISING UNDER OR RELATING TO THE DIGITAL PLATFORMS OR BCS SERVICES, EXCEPT WHERE PROHIBITED BY LAW, YOU OR BCS MAY CHOOSE TO RESOLVE THE DISPUTE BY BINDING ARBITRATION, AS DESCRIBED BELOW, INSTEAD OF IN COURT. ANY CLAIM (EXCEPT FOR A CLAIM CHALLENGING THE VALIDITY OR ENFORCEABILITY OF THIS ARBITRATION AGREEMENT, INCLUDING THE CLASS ACTION WAIVER) MAY BE RESOLVED BY BINDING ARBITRATION IF EITHER SIDE REQUESTS IT. THIS MEANS IF EITHER YOU OR WE CHOOSE ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL. DISCOVERY AND APPEAL RIGHTS ARE LIMITED IN ARBITRATION.

 

Class Action Waiver

 

EXCEPT WHERE PROHIBITED BY LAW, ARBITRATION MUST BE ON AN INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR WE MAY JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER USERS, OR LITIGATE IN COURT OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR WITH A PRIVATE ATTORNEY GENERAL CAPACITY.

 

Only a court, and not an arbitrator, shall determine the validity and effect of the Class Action Waiver. Even if all parties have opted to litigate a claim in court, You or BCS may elect arbitration with respect to any claim made by a new party or any new claims later asserted in that lawsuit.

 

Governing Laws and Rules for Arbitration

These arbitration terms are governed by the Federal Arbitration Act (FAA). Arbitration must proceed only with Judicial Arbitration and Mediation Services, Inc (JAMS). The rules for the arbitration will be those in this arbitration agreement and the procedures of JAMS, but the rules in this arbitration agreement will be followed if there is disagreement between the agreement and

 

JAMS’ procedures. If JAMS’ procedures change after the claim is filed, the procedures in effect when the claim was filed will apply.

 

Fees and Costs

Each party shall pay for its own costs to litigate or arbitrate this Agreement including, but not limited to, the costs of its attorney’s fees, filing fees, proceedings, or travel. The parties shall share equally in the arbitrator’s fees and expenses and the cost of third-party facilities used for arbitration hearings.

 

Hearings and Decisions

Arbitration hearings will take place in Harris County, Texas, USA. A single arbitrator will be appointed. The arbitrator must: (i) follow all applicable substantive law, except when contradicted by the FAA; (ii) follow applicable statutes of limitations; (iii) honor valid claims of privilege; and (iv) issue a written decision including the reasons for the award.

 

The arbitrator's decision will be final and binding except for any review allowed by the FAA. However, if more than $100,000 was genuinely in dispute, then either You or BCS may choose to appeal to a new panel of three arbitrators. The appellate panel is completely free to accept or reject the entire original award or any part of it. The appeal must be filed with the arbitration organization not later than 30 days after the original award issues. The appealing party pays all appellate costs unless the appellate panel determines otherwise as part of its award. Any arbitration award may be enforced (such as through a judgment) in any court with jurisdiction.

 

Other Beneficiaries of this Provision

 

In addition to You and BCS, the rights and duties described in these arbitration terms apply to BCS’ affiliates and BCS’ and BCS’ Affiliates’ officers, directors and employees; any third party co-defendant of a claim subject to this arbitration provision; and all joint account holders and authorized users of Customer’s account(s).

 

Survival of this Provision

 

This Section (“Governing Law and Dispute Resolution”, including applicable Arbitration provisions) shall survive: (a) closing of Your account; (b) voluntary payment of Your Account or any part of it; (c) any legal proceedings to collect money You owe; and (d) any bankruptcy by You.

 

Customer's Indemnification of Us

 

Customer will defend BCS and BCS’ Affiliates, officers, directors, owners, and employees (collectively, the “BCS Indemnified Parties”) from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to Customer’s or any of its Authorized Users’ violation of the Contract or the User Terms (a “Claim Against Us”), and will indemnify the BCS Indemnified Parties for all reasonable attorney’s fees incurred and damages and other costs finally awarded against a BCS Indemnified Party in connection with or as a result of, and for amounts paid by a BCS Indemnified Party under a settlement Customer approves of in connection with, a Claim Against Us. We must provide Customer with prompt written notice of any Claim Against Us and allow Customer the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting Customer’s defense and settlement of such matter. This section states your sole liability with respect to, and the Slack Indemnified Parties’ exclusive remedy against Customer for, any Claim Against Us.

 

Limitations on Indemnifications

 

Notwithstanding anything contained in the preceding section, (a) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (b) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if (i) the third party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified parties, (iii) the settlement does not include a full release of liability for the indemnified parties, or (iv) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.

 

Business uses of our Service

 

If you are using our Services on behalf of a business, that business accepts these terms. It will hold harmless and indemnify BCS and its affiliates, officers, agents, and employees from any claim, suit or action arising from or related to the use of the Services or violation of these terms, including any liability or expense arising from claims, losses, damages, suits, judgments, litigation costs and attorneys’ fees.

 

Waiver

 

No failure or delay by either party in exercising any right under the Contract will constitute a waiver of that right. No waiver under the Contract will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.

 

Severability

 

The Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement will remain in effect.

 

Assignment

Customer may not assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of BCS. Notwithstanding the foregoing, either party may assign the Contract in its entirety (including all Order Forms), without consent of the other party, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Customer will keep its billing and contact information current at all times by notifying BCS of any changes. Any purported assignment in violation of this section is void. A party’s sole remedy for any purported assignment by the other party in breach of this section will be, at the non-assigning party’s election, termination of the Contract upon written notice to the assigning party. Subject to the foregoing, the Contract will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

 

About these Terms

 

We may modify these terms or any Additional Terms that apply to a Service to, for example, reflect changes to the law or changes to our Services. You should look at the terms regularly. We’ll post notice of modifications to these terms on this page. We’ll post notice of modified additional terms in the applicable Service. Changes will not apply retroactively and will become effective no sooner than fourteen days after they are posted. However, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately. If you do not agree to the modified terms for a Service, you should discontinue your use of that Service. If there is a conflict between these terms and the additional terms, the additional terms will control for that conflict. These terms control the relationship between BCS and you. They do not create any third-party beneficiary rights. If you do not comply with these terms, and we don’t take action right away, this doesn’t mean that we are giving up any rights that we may have (such as taking action in the future). If it turns out that a particular term is not enforceable, this will not affect any other terms.

 

For information about our Terms & Conditions please contact dgubbay@bcsaudit.com.