Terms and Conditions
These terms and conditions (these “Terms and Conditions”) are between The Berwyn Group, Inc., a Delaware corporation (“Berwyn”), and the client described in the applicable Order Form (as defined below) (“Client”). Each of Berwyn and the Client are a “Party” and together, they are the “Parties.” These Terms and Conditions are effective as of the effective date of the applicable Order Form.
Recitals
WHEREAS, Berwyn provides death audit, location, uncashed checks, and other related services designed to assist clients with their compliance obligations and fraud prevention; and
WHEREAS, Client desires to obtain, and Berwyn desires to perform, such services.
NOW THEREFORE, for and in consideration of the mutual covenants and agreements contained in these Terms and Conditions, the Parties to these Terms and Conditions hereby agree as follows:
1. Scope of Services. Client orders Services (as defined below) from Berwyn by entering into a mutually signed “Order Form” under these Terms and Conditions. For clarity, Services ordered by Client through the Berwyn Reporting Platforms (as defined in Section 21 below), a mutually signed statement of work, and/or a mutually signed agreement between the Parties are each Order Forms. Berwyn agrees to provide the services and to grant the licenses, all as set forth in these Terms and Conditions and an Order Form (collectively, the “Services”). For clarity, the definition of “Services” includes all data delivered therewith (including but not limited to data that is Berwyn IP or Third-Party Data (each as defined below)). Each Order Form is hereby incorporated by reference into these Terms and Conditions and all references to these Terms and Conditions shall be deemed to include the Order Form. From time to time, Client may submit or upload processing files to Berwyn and such processing files (and the Services related thereto) shall be subject to these Terms and Conditions and Client’s applicable Order Form for the Services provided. In the event of conflict between these Terms and Conditions and any order, purchase document, invoice, addendum, amendment, agreement, or contract provided by Client (“Client Document”), these Terms and Conditions shall govern unless the Client Document is mutually signed and expressly states that it amends these Terms and Conditions. For clarity, a purchase order or invoice created by Client shall not be an Order Form nor shall it modify, amend, or alter these Terms and Conditions even if entered into after the date hereof.
2. Performance. Berwyn will use commercially reasonable efforts to deliver the Services requested by Client under an Order Form and to compile information gathered from selected public or government records and other sources used in the provision of the Services. Berwyn reserves the right to add materials and features to, and to discontinue offering any of the materials and features that are currently a part of, the Services. In the event that Berwyn discontinues a material portion (except for Third-Party Data (as defined below)) of the materials and features that Client regularly uses in the ordinary course of its business, and such materials and features are included in an Order Form, Berwyn will refund any pre-paid Fees to Client for the discontinued materials and/or features. For clarity, the availability of Third-Party Data may change from time to time.
3. Fees and Taxes.
a. Fees. In consideration of Berwyn providing the Services, Client shall pay Berwyn the fees set forth in the applicable Order Form or the applicable pricing document delivered to Client by Berwyn (the “Fees”). Fees are subject to annual adjustment based on Berwyn’s published fee schedule. Except as set forth in these Terms and Conditions, pre-paid Fees are nonrefundable.
b. Invoicing. Within thirty (30) days of (i) execution of an Order Form or (ii) Client’s upload of a Processing File (and on the anniversary date each year thereafter for each Processing File), Berwyn shall invoice Client for the Fees. Client shall pay each properly rendered invoice within thirty (30) days after receipt, except for charges disputed in good faith. Client agrees to pay Berwyn interest computed at the rate of 1.5% per month or the maximum rate permitted by law, whichever is lower, on any undisputed amounts that are remitted more than thirty (30) days late in their entirety. If Client fails to pay Berwyn the Fees when due, then, in addition to all other remedies available under these Terms and Conditions, an Order Form, or at law, Berwyn may immediately suspend the Services or terminate these Terms and Conditions and any Order Form. Client shall make all payments to Berwyn through automated clearing house (“ACH”) transfers from Client’s designated operating account directly to Berwyn. Client hereby agrees to execute and deliver to Berwyn an authorization agreement for direct payments whereby, among other things, Berwyn shall be authorized to initiate ACH transfers from Client’s designated operating account to Berwyn in the amounts required or permitted under an Order Form.
c. Taxes. The charges for all Services are exclusive of any state, local, or otherwise applicable sales, use, or similar taxes. If any such taxes are applicable, they shall be charged to Client’s account. Client is not responsible for any taxes charged on Berwyn’s income.
4. Compliance with Law. Each Party shall comply with, and cause its employees who access the Services to comply with, laws and regulations applicable to such Party in all material respects. Each Party is solely responsible for its own compliance obligations. Berwyn expressly disclaims that the Services are, and no Services shall be deemed to be, regulatory, compliance, legal, retirement fund/plan, ERISA or tax advice, counsel or opinion.
5. Security.
a. Berwyn’s Data Security Controls. Berwyn shall maintain data privacy and security controls that are designed to protect the security of the Services and the data in Berwyn’s control including, without limitation, physical, network, application security and development, and data leakage prevention. Client acknowledges that Berwyn offers standard security features to its clients generally (“Standard Security Features“) and recommends that its clients implement certain best practices(“Security Best Practices”), each as updated from time to time (collectively, “Standard Security Features and Best Practices”) and Client accepts any and all risk arising from or related to Client’s decision to disable, opt out of, or not establish such Standard Security Features and Best Practices for any reason regardless of whether or not Client knew of the risk. The Standard Security Features and Best Practices are available in Berwyn’s online Whistic profile or upon request.
b. Berwyn’s Third-Party Review of Security Controls. Berwyn shall complete the following with a third-party service provider: annual SOC 2, Type 2 Audit (or an equivalent or successor); annual application penetration test; and monthly network vulnerability scan. Berwyn shall reasonably remediate findings identified in such audit, test, or scan. Upon request and subject to the obligations of confidentiality set forth in these Terms and Conditions, Berwyn shall deliver the reports described in this subsection to Client.
c. Business Continuity. Berwyn shall maintain business continuity and disaster recovery policies and procedures and shall annually test such policies (“Business Continuity Plan”). Berwyn shall reasonably remediate findings identified in such test. Upon request and subject to the obligations of confidentiality set forth in these Terms and Conditions, Berwyn shall deliver the Business Continuity Plan and annual test results described in this subsection to Client.
d. Encryption. Client has the option to encrypt its data (including but not limited to processing files and personally identifiable information as that term is defined by applicable laws, rules, and/or regulations (“PII”)) prior to delivering to Berwyn for processing, and Berwyn supports such encryption. Client accepts any and all risk arising from or related to Client’s decision to opt out of or not establish such encryption regardless of whether or not Client knew of the risk. Berwyn shall encrypt the production data maintained in the applications used to provide the Services while at rest and in transit.
e. Production Data Maintained in the U.S. Berwyn shall maintain the production data in the applications used to provide the Services within the United States of America at all times.
f. Security Requirements. Each Party acknowledges that the information entered into and/or accessed through the Services may include PII. Accordingly, each Party (as applicable) shall (i) use commercially reasonable measures to restrict access to Services and the information contained therein to those employees who have a need to know as part of their official duties; (ii) take commercially reasonable measures to prevent unauthorized access to, or use of, the Services or data received therefrom, whether in electronic form or hard copy, by any person or entity; and (iii) with respect to Client, unless otherwise required by law or pursuant to a Party’s policies, purge all bulk information received through the Services, whether stored electronically or on hard copy by a Party, within ninety (90) days of initial receipt in order to prevent such bulk data from being made into a competing product with the Services. Client is a data owner with respect to Client Confidential Information, and Berwyn acts as a service provider or data processor/collector, as those terms are defined under applicable privacy laws. Client shall submit to Berwyn only the data fields (including but not limited to PII) requested in the applicable Order Form (“Minimum Necessary Data”). Client shall not provide to Berwyn any information related to individuals (A) residing outside of the United States, or (B) under the age of eighteen (18) (together (A) and (B) are the “Out-of-Scope Data”). Client accepts any and all risk, regardless of whether or not Client knew of the risk, including but not limited to Security Events, arising from or related to (x) Client’s provision of Out-of-Scope Data or non-Minimum Necessary Data to Berwyn, and (y) additional data elements requested by Client to be made available in the Services beyond the then-standard data in the Services (for example, where Client requests to include a policy number). Each Party will implement policies and procedures to prevent unauthorized use of its user IDs (where such user IDs permit access to the other Party’s systems or applications or data (as applicable)) (“User IDs”), in connection with the Services. The designated administrator of Client’s account with Berwyn shall be solely responsible for appropriate use, access and protection of User IDs. Each Party will promptly notify the other Party, in writing if such Party reasonably suspects or confirms that one of its User IDs has been (1) lost, stolen, compromised, misused or used, accessed, (2) acquired in an unauthorized manner or by any unauthorized person, or (3) used for any purpose other than legitimate business reasons.
g. Security Event. If the Services include PII, the following shall apply: upon unauthorized acquisition of or access to such PII, including but not limited to that which is due to use by an unauthorized person or due to unauthorized use (a “Security Event”), then the Party discovering the Security Event shall promptly notify the other Party. In the event of a Security Event, the Party whose data is subject to the Security Event, where the Security Event was caused by the other Party, may take immediate action, including termination of these Terms and Conditions and any Order Form.
6. Licenses.
a. Restricted Data License Grant. Client understands that the data Berwyn discloses in the Services may include data from third-party data providers, including but not limited to government and commercial data sources (“Third-Party Data”). Berwyn’s ability to license Third-Party Data to Client under an Order Form is subject to the restricted license granted to Berwyn by such Third-Party Data providers. Berwyn hereby grants to Client a non-exclusive, nontransferable, restricted license to use the Services set forth in an Order Form solely for Client’s own internal business purposes subject to the applicable Flow Down Obligations (defined below in Section 17) and Restrictions on Use (as defined below) (collectively, the “Restricted Data License Grant”). If Client is a third-party administrator and discloses such status on the Order Form (“TPA”), then Client may disclose the data in the Services to its TPA customers identified on the applicable Order Form (“Client’s Customers”). Such disclosure may only be in the course of providing TPA services, provided that Client’s disclosure to the applicable Client’s Customer shall require such Client’s Customer to comply with the Restricted Data License Grant and use the data included in the Services solely for internal business purposes. Client shall be responsible and liable for Client’s Customers’ compliance with these Terms and Conditions and use of the data disclosed in the Services, including but not limited to, compliance with the Restricted Data License Grant (as if Client’s Customer were Client). If Client or Client’s Customer breaches the terms and conditions of this Section 6.a., Berwyn may terminate the Restricted Data License Grant set forth herein.
b. Restrictions on Use. Client represents and warrants that (“Restrictions on Use”):
i. Client has the right to disclose the data disclosed by Client to Berwyn under an Order Form, and Client has the right to receive the data disclosed by Berwyn to Client under an Order Form.
ii. All of Client’s use of the Services shall be for only legitimate business purposes relating to its business and as otherwise governed by these Terms and Conditions.
iii. Client shall not use the Services for marketing purposes or resell or broker the Services to any third-party and shall not use, and shall prevent its users from using, the Services for personal (non-business) purposes.
iv. Client shall not use the Services to provide data processing services to third-parties or evaluate the data of or for third-parties, without Berwyn’s prior written approval.
v. Client shall not access the Services from Internet Protocol addresses located outside of the United States and its territories without Berwyn’s prior written approval.
vi. Client shall not use the Services to create a competing product.
vii. Client shall not use the data it receives under these Terms and Conditions or any Order Form for a Prohibited Medical Segment Use, and Client shall not directly or indirectly resell the data it receives under these Terms and Conditions or any Order Form to any Person for a Prohibited Medical Segment Use. For purposes of this subsection vii.: “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity; and “Prohibited Medical Segment Use” means (A) the use of the data by a biopharma, life sciences or biotech firm (“Bio Firms”) to perform or provide research, data, analysis or related support for the development, commercialization, marketing, approval or reimbursement of pharmaceutical and medical devices and (B) the direct or indirect sale by data aggregators of research datasets to Bio Firms which will be used to perform research, analysis or related support for the development, commercialization, marketing, approval or reimbursement of pharmaceutical and medical devices. The restrictions in this subsection vii. shall survive termination of these Terms and Conditions.
c. Additional Terms Related to the Restricted License. Client agrees that, if Berwyn determines or reasonably suspects that Client is violating any provision of these Terms and Conditions, Berwyn may take immediate action, including, without limitation, terminating the delivery of, and the license to use the Services. Berwyn may at any time mask or cease to provide Client access to any Services or portions thereof which Berwyn may deem, in Berwyn’s sole discretion, to be sensitive or restricted information (subject to the third sentence of Section 2).
d. Client Licenses to Berwyn.
i. Client hereby grants Berwyn a license to process data and other information, including Client’s Confidential Information (as defined below) as applicable, provided by Client to Berwyn and to disclose such data to its affiliates and vendors to process such data or to perform or improve Berwyn’s Services.
ii. Without limiting the confidentiality obligations set forth in Section 7.b., Client hereby grants Berwyn a license to use Client’s Confidential Information (including but not limited data and information provided by Client to Berwyn under an Order Form) for internal, statistical, and analytical purposes.
iii. Client hereby grants Berwyn a worldwide, perpetual, irrevocable, royalty free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Client or its users relating to the Services (each, a “Submission”). Berwyn shall not be required to compensate Client for any such Submission.
e. Deliverables. Client shall own all right and title to the reports (the “Deliverables”), if any, delivered by Berwyn, (i) subject to the Restricted Data License Grant set forth in this Section 6, (ii) subject to Berwyn’s rights to the underlying data that it provides (as set forth in Section 7.a.) that might be included in the Deliverables, and (iii) excluding Berwyn IP (as defined below). To the extent Berwyn IP is incorporated into a Deliverable, Berwyn hereby grants Client a nontransferable, nonsublicenseable, fully paid up, limited license to use Berwyn IP solely for internal business purposes and subject to these Terms and Conditions. If Client is a TPA, Client may disclose Berwyn IP to the applicable Client’s Customer set forth on an Order Form, provided that Client’s disclosure to such Client’s Customer shall be solely for Client’s Customer internal business purposes. If Client or Client’s Customer breaches the terms and conditions of this Section 6.e., Berwyn may terminate the license to Berwyn IP granted herein.
7. Intellectual Property; Confidentiality.
a. Intellectual Property Rights. Each Party agrees that it shall not reproduce, retransmit, republish, or otherwise transfer for any commercial purposes the other Party’s information, or with respect to Client, Berwyn’s Services, programs or computer applications. Each Party acknowledges that such Party (and/or its Third-Party Data providers) shall retain all right, title, and interest under applicable contractual, copyright, patent, trademark, Trade Secret (as defined below) and related laws in and to the data and information that it provides, and with respect to Berwyn, Berwyn (and/or its Third-Party Data providers) shall retain such rights, title and interest in the Services. Each Party shall use such materials in a manner consistent with the other Party’s interests and the terms and conditions herein, and shall notify the other Party of any threatened or actual infringement of a Party’s rights. For clarity, as between the Parties, Berwyn maintains all right, title, and interest to and in of all of its software, source code, object code, systems, services, data, Death Matching processes and results therefrom made in its applications or systems or confirmed through Berwyn’s business processes, and forms of Deliverables (including but not limited to all components, modifications and derivations thereof) that Berwyn offers to its customers generally (“Berwyn IP”), and Berwyn expressly reserves all rights not expressly granted to Client in these Terms and Conditions.
b. Confidentiality. Client and Berwyn acknowledge that they each may have access to confidential information of the disclosing Party (“Disclosing Party”) relating to the Disclosing Party’s business including, without limitation, PII, technical, financial, strategies and related information, computer programs, algorithms, know-how, processes, ideas, inventions (whether patentable or not), schematics, Trade Secrets (as defined below) and other information (whether written or oral), and in the case of Berwyn’s information, product information, product development plans, forecasts, proposals, cost and pricing information, data contained in Services, vendor assessment materials, policies and procedures, descriptions of technical controls and other business information (“Confidential Information”). Confidential Information shall not include information that: (i) is or becomes (through no improper action or inaction by the Receiving Party (as defined below)) generally known to the public; (ii) was in the Receiving Party’s possession or known by it prior to receipt from the Disclosing Party; (iii) was lawfully disclosed to Receiving Party by a third-party and received in good faith and without any duty of confidentiality by the Receiving Party or the third-party; or (iv) was independently developed without use of any Confidential Information of the Disclosing Party by employees of the Receiving Party who have had no access to such Confidential Information. “Trade Secret” shall be deemed to include any information which gives the Disclosing Party an advantage over competitors who do not have access to such information as well as all information that fits the definition of “trade secret” set forth in applicable law. Each receiving Party (“Receiving Party”) agrees not to divulge any Confidential Information or information derived therefrom to any third-party (except as set forth in these Terms and Conditions) and shall protect the confidentiality of the Disclosing Party’s Confidential Information with the same degree of care it uses to protect the confidentiality of its own confidential information and trade secrets, but in no event less than a reasonable degree of care. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information solely to the extent required by subpoena, court order or other governmental authority, provided that the Receiving Party shall give the Disclosing Party prompt written notice of such subpoena, court order or other governmental authority so as to allow the Disclosing Party to have an opportunity to obtain a protective order to prohibit or restrict such disclosure at its sole cost and expense. Confidential Information disclosed pursuant to subpoena, court order or other governmental authority shall otherwise remain subject to the terms applicable to Confidential Information. Each Party’s obligations with respect to Confidential Information shall continue for the term of these Terms and Conditions and for a period of five (5) years thereafter, provided however, that with respect to Trade Secrets, each Party’s obligations shall continue for so long as such Confidential Information continues to constitute a Trade Secret.
c. Government Clients. If Client is a government entity or is otherwise subject to a federal, state, or local freedom of information act or similar statute or regulation (“Public Records Laws”), then Client agrees that the confidentiality obligations of these Terms and Conditions prevent Client from disclosing the Services (and data included therein) in response to a Public Records Laws request.
8. Warranties/Limitation of Liability.
a. Disclaimer of Warranties.
Client accepts all information “AS IS.” Client acknowledges and agrees that Berwyn obtains data from third-party sources, which may or may not be completely thorough and accurate, and that Berwyn does not make and hereby disclaims any warranty, express or implied, with respect to the Services. Berwyn does not guarantee or warrant the correctness, currentness, completeness, merchantability, or fitness for a particular purpose of the Services or information provided therein, including but not limited to those warranties that might be implied from a course of dealing, course of performance or trade usage. Due to the nature of public record information, the public records and commercially available data sources used in the Services may contain errors. Source data is sometimes reported or entered inaccurately, processed poorly or incorrectly, and is generally not free from defect. Berwyn’s Services are not the source of data, nor are they a comprehensive compilation of the data. Berwyn’s Services may contain links to third-party websites not under Berwyn’s control or operation. Berwyn may provide any such links only as a convenience, and Berwyn does not endorse, is not responsible for, and does not have control over the contents of any linked website or any link contained within a linked website. Use of third-party content on a linked website may be subject to such third-party’s terms and conditions. Client accepts all risk of clicking on a linked website and is solely responsible for its use of content contained on any such linked website. For certain Services, Berwyn’s personnel use proprietary methods to determine whether death data from multiple sources is relevant to a particular individual (“Death Matching”) and because of the inherent limitations in the data relied upon, Berwyn shall not be responsible or liable for any inaccurate or incomplete Death Matching. Death Matching is an analysis attributable to Berwyn and does not represent a finding or conclusion on behalf of Berwyn’s data sources. Client shall not rely on Berwyn for the accuracy or completeness of information supplied through the Services. Before relying on any data, Berwyn recommends that such data should be independently verified.
Client understands that Berwyn offers Standard Security Features and recommends that Client implement certain Best Practices for its Services, whether made available to Client prior to or after entering these Terms and Conditions. By entering these Terms and Conditions, Client acknowledges its decision to disable, opt out of, or not establish the Standard Security Features and Best Practices could expose Client Confidential Information to additional risk and diminished security protections. Accordingly, Berwyn expressly disclaims any and all liability now and in the future arising from or in any way relating to Client’s decision to disable, opt out of, or not establish the Standard Security Features and Best Practices.
b. Limitation of Liability. Neither Berwyn, nor its affiliates, vendors and Third-Party Data providers, shall be liable to Client for any costs, claims, third-party claims, demands, damages, losses, liabilities or attorneys’ fees and costs (collectively, “Losses”) arising out of, related to, or caused in whole or in part by Berwyn’s acts or omissions in procuring, compiling, collecting, reporting, communicating, interpreting, delivering, storing, or otherwise performing the Services (collectively, “Performance”) and whether arising in contract or in tort. If, notwithstanding the foregoing, liability can be imposed on Berwyn, then Client agrees that Berwyn’s aggregate liability for any and all Losses arising out of or related to any act or omission of Berwyn in connection with anything to be done or furnished under these Terms and Conditions, or related thereto, regardless of the cause of the Loss, and regardless of the nature of the legal or equitable right claimed to have been violated, shall never exceed the Fees paid by Client to Berwyn in the twelve (12) months immediately prior to the incident giving rise to the applicable liability; and Client covenants and promises that it will not sue Berwyn for an amount greater than such sum even if Client and/or third-parties were advised of the possibility of such damages and that it will not seek punitive damages in any suit against Berwyn. In no event shall Berwyn be liable to Client for any indirect, incidental, or consequential damages, arising out of, related to, or caused in whole or in part by Berwyn’s Performance. The limitations of liability set forth in this Section 8.b. shall not apply to damages for Berwyn’s willful misconduct or fraud.
c. Limitation of Liability for Supplementary Addendums. Notwithstanding anything to the contrary in a business associate agreement, privacy or security exhibit, or other supplementary addendums or writings between the Parties (“Supplementary Addendums”), the limitation of liability set forth in Section 8.b. apply to any Supplementary Addendum entered into by Client and Berwyn, whether dated before or after the applicable Order Form. In the event of a conflict between these Terms and Conditions and the Supplementary Addendum regarding limitation of liability, these Terms and Conditions prevail.
9. Indemnification.
a. General Indemnification by Client. Client hereby agrees to protect, indemnify, defend, and hold harmless Berwyn from and against any and all third-party Losses arising from or related to, or asserted by (i) data subjects or data owners, including but not limited to participants, pensioners, beneficiaries, policy owners, insureds, annuitants, plan sponsors, legal representatives, benefits administrators, Client’s affiliates, subsidiaries or service providers, or Client’s Customers; or (ii) regulators or government authorities.
b. Indemnification Procedures. A Party seeking indemnification (the “Indemnified Party”) under these Terms and Conditions must (i) promptly give written notice of any claim to the other Party (the “Indemnifying Party”) and (ii) provide any assistance which the Indemnifying Party may reasonably request for the defense of the claim. The Indemnifying Party has the right to control the defense or settlement of the claim; provided, however, that the Indemnified Party shall have the right to participate in, but not control, any litigation for which indemnification is sought with counsel of its own choosing, at its own expense.
10. Term. The term of these Terms and Conditions shall begin on the effective date of the applicable Order Form and continue until there are no Order Form(s) in effect.
11. Audit and Review Rights.
a. From time to time, upon reasonable advance notice, Berwyn shall provide Client or its designee with access to the locations from which the Services are being performed, and all data and records relating to the Services for the purpose of performing audits or inspections (i) to comply with regulatory requirements or requests by regulators, (ii) to determine if the Services are in compliance with the terms of the Terms and Conditions, and (iii) to determine the accuracy of the charges. Upon request, Berwyn will provide Client with its standard vendor due diligence materials. Client may request that Berwyn complete Client’s vendor due diligence questionnaires, assessments or audits and Berwyn’s completion or participation in the completion of such questionnaires, assessments or audits shall be at Client’s expense and subject to the confidentiality obligations of these Terms and Conditions.
b. Berwyn may perform reasonable reviews of Client’s compliance with these Terms and Conditions by providing prior written notice to Client, and Client shall reasonably cooperate with such review. Such reviews shall occur during Client’s normal business hours, at Berwyn’s expense, and no more than once per year, unless otherwise more frequently required by a data provider, regulator, or other third-party.
12. Maintenance of Records. Client shall be responsible for maintaining all records related to the Services. Berwyn does not provide record-keeping services. Berwyn shall not be obligated to retain Client’s data (including but not limited to Client’s Confidential Information and PII) and may delete Client’s data, in accordance with Berwyn’s data destruction policy, after completion of the Services provided as applicable to the specific data. Neither Berwyn, nor its affiliates, vendors, and Third-Party Data providers, shall be liable to Client for any Loss arising out of, related to, or caused in whole or in part by Berwyn’s deletion of data or the Services provided with respect to such data as set forth in this section.
13. Background Checks. Each Party shall require background checks of employees or users who access Client’s data (with respect to Berwyn) and the Services (with respect to Client).
14. Insurance. Berwyn shall maintain, at all times during the term of these Terms and Conditions the insurance policies described herein with carriers rated no less than “A” by AM Best. Berwyn shall deliver certificates of insurance to Client upon request. As of the date hereof, Berwyn maintains the following insurance coverages (with carriers rated at least A X):
a. All worker’s compensation insurance coverages required by federal, state or local law;
b. Commercial general liability insurance with a limit of two million dollars ($2,000,000) in the aggregate;
c. An umbrella policy with a limit of five million dollars ($5,000,000) in the aggregate that is in excess of coverage provided under Berwyn’s general liability insurance;
d. Errors & omissions insurance with total limits of twenty million dollars ($20,000,000) in the aggregate;
e. Cyber liability and technology errors & omissions insurance in a limit of five million dollars ($5,000,000) in the aggregate; and
f. Commercial crime insurance with a limit of five million dollars ($5,000,000) in the aggregate.
Upon Client’s written request, Client shall be an additional insured with a waiver of subrogation on the general liability insurance described under Section 14.b. above.
Where Berwyn provides distribution management, treasury management or uncashed checks services to Client, Client shall include Berwyn, its affiliates and their respective directors, officers, contractors, and employees under Client’s ERISA fidelity bond.
15. Survival of Terms and Conditions; Statute of Limitations. Provisions hereof related to fees and taxes (to the extent payment obligations remain) (Section 3); security event (Section 5.g.); licenses (Section 6); intellectual property and confidentiality (Section 7); warranties and limitation of liability (Section 8); indemnification (Section 9); audit rights (Section 11 for three years); maintenance of records (Section 12); survival (Section 15); Third-Party Data provider obligations (Section 17); privacy principles (Section 18); CCPA and Data Protection Laws (Section 19); governing law and forum (Section 28); miscellaneous (Section 29); no third-party beneficiaries (Section 30); non-fiduciary status (Section 31); and retirement plan participants (Section 32) shall survive any termination of these Terms and Conditions or any Order Form. Client must file any Action, whether arising in contract or in tort, no later than the earlier of (a) twelve (12) months after delivery of the specific Services related to the event giving rise to the Action or (b) the termination of these Terms and Conditions. Client hereby waives the right to file any Action under any longer statute of limitations. “Action” shall mean any claim, demand, request, claim for indemnity, lawsuit, or proceeding arising out of (whether directly or indirectly) these Terms and Conditions or an Order Form, Services provided hereunder or thereunder, or the Parties’ relationship generally.
16. Employee Training. Each Party shall train its employees on the obligations under these Terms and Conditions prior to allowing access to Services. In addition, as of the date hereof, Berwyn requires the following training of its employees on an annual basis: US data privacy and security, information security, and HIPAA.
17. Third-Party Data Provider Obligations.
a. Third-Party Flow Down Requirements. Client understands that Berwyn obtains Third-Party Data from third-party data providers that require Berwyn to flow-down certain obligations as available on Berwyn’s website (at www.berwyngroup.com/dmf-data-terms/ and www.berwyngroup.com/third-party-data-terms/) (the “Flow Down Obligations”). The Flow Down Obligations (as amended from time to time and made available at the URLs listed above) are hereby incorporated by reference to the extent applicable to the Services.
b. Client Credentialing.
i. Client acknowledges that Berwyn is required to credential Berwyn’s clients prior to permitting access to the Services. Client represents and warrants that the information about Client (A) on an Order Form or (B) provided during the credentialing process or in connection with the purchase of Services under an Order Form (the “Client Credentialing”) is accurate and complete in all material respects. The Client Credentialing is hereby incorporated by reference. Berwyn may be required to disclose Client’s information related to the Client Credentialing to Berwyn’s Third-Party Data provider(s), and Client hereby consents to such disclosure.
ii. Client shall notify Berwyn immediately of any changes to the information on an Order Form or the Client Credentialing, and Berwyn may terminate these Terms and Conditions if such changes are material as reasonably determined by Berwyn. Client is required to promptly notify Berwyn of a change in ownership of Client’s company, any change in the name of Client’s company, and/or any change in the physical address of Client’s company. Furthermore, Client acknowledges and agrees that, as part of the credentialing process, Client’s credit report(s) may be requested by Berwyn in accordance with Federal Fair Credit Reporting Act from one (1) or more consumer reporting agencies. Upon Client’s request, Client will be informed of whether any credit report was requested, and the name and address of the credit reporting agency that furnished the report to Berwyn.
18. Privacy Principles. With respect to PII regarding consumers, Berwyn’s privacy policy and principles (“Principles”) recognize the importance of appropriate privacy protections for consumer data. The Principles (which may be modified from time to time) are available at www.berwyngroup.com/privacy-policy/. Client agrees that Client (including its directors, officers, employees or agents) will comply with Client’s own comparable privacy principles, policies, or practices, or if none, then Client will comply with the Principles.
19. California Consumer Privacy Act and Data Protection Laws. To the extent the California Consumer Privacy Act of 2018 (codified at Cal. Civ. Code § 1798.100 et seq.), as amended, and all regulations and judicial opinions issued related thereto (“CCPA”) or other United States laws, rules, regulations, decrees, orders or other mandates applicable to the protection or processing of personal information, including the CCPA and others as may be applicable (collectively, “U.S. Data Protection Laws”) apply to each Party, the Parties hereby incorporate by reference the U.S. Data Protection Laws addendum (which may be modified from time to time) available at www.berwyngroup.com/data-protection-terms.
20. Consents. Client represents and warrants that it has obtained all required consents, approvals, permits, or authorizations required for its engagement of Berwyn to perform the Services.
21. Berwyn Reporting Platform. Berwyn uses proprietary applications that are used to provide services to Berwyn’s clients (the “Berwyn Reporting Platform”). As between the Parties, Berwyn maintains all ownership rights with respect to the Berwyn Reporting Platform. During the term of these Terms and Conditions and any Order Form, Client and its authorized users (as identified in an end user agreement or requested in writing to be permitted access from time to time) shall have the right to access and use the Berwyn Reporting Platform solely for Client’s own internal business purposes as permitted by the then current functionality of the Berwyn Reporting Platform and as necessary to use the Services. Client shall be responsible for its authorized users use of the Services and compliance with these Terms and Conditions and any Order Form. Client shall not, and shall ensure its users shall not, (a) cause any code, files, scripts, agents or programs intended to do harm, including, for example viruses, worms, time bombs and Trojan horses, or other harmful code to be entered into the Berwyn Reporting Platform, (b) interfere with or disrupt the integrity or performance of the Services or the Berwyn Reporting Platform, (c) attempt to gain unauthorized access to the Berwyn Reporting Platform, or Berwyn’s systems or networks, or (d) copy any part, feature, function or user interface of the Berwyn Reporting Platform.
22. Publicity. Without Berwyn’s written consent, Client will not (a) name Berwyn or refer to its use of the Services in any press releases, advertisements, promotional or marketing materials, or (b) make any other third-party disclosures regarding Berwyn or Client’s use of the Services. Notwithstanding the foregoing, a business referral in the ordinary course shall not be deemed to violate this Section 21.
23. Relationship of the Parties. Neither Party shall, at any time, represent that it is the authorized agent or representative of the other Party. Berwyn provides the Services solely as an independent contractor of Client.
24. Notices. All demands, notices, reports, and/or communications under these Terms and Conditions shall be in writing and shall be deemed to have been duly given if delivered in person, or duly sent by overnight mail, postage prepaid, to such Party at the address set forth below, or such other address as shall be designated by such person in a written notice to the other Party to these Terms and Conditions, or if to Client, (a) electronically to the electronic mail address (i) included in the Client Credentialing or (ii) of active users of Berwyn’s systems, (b) by secure website designated by such Party, or (c) at the address specified on the applicable Order Form.
If to Berwyn:
The Berwyn Group, Inc.
2 Summit Park Drive, Suite 610
Independence, OH 44131
Attention: President
With copies to:
Attention: Legal Department
and
Email: legal@berwyngroup.com
25. Updates to Terms and Conditions. By receipt of the Services, Client agrees to, and shall comply with, changes to the Standard Security Features and Best Practices, Flow Down Obligations or Principles, changes in pricing, and changes to other provisions of these Terms and Conditions as Berwyn shall make from time to time (“Updates”) with notice to Client via e-mail, by posting on Berwyn websites, through the Services, online “click wrap” amendments, facsimile, mail, invoice announcements, or other written notification. Berwyn may, at any time, impose restrictions and/or prohibitions on Client’s use of the Services or certain data (“Restrictions”). Client understands that such Updates or Restrictions in access may be the result of a modification in Berwyn policy, a modification of third-party agreements, a modification in industry standards, a Security Event or a change in law or regulation, or the interpretation thereof. Upon notification by Berwyn of any Update or Restriction (with notice as set forth in the first sentence of this Section 25), Client agrees to comply with such Update or Restriction; provided, that Client may terminate these Terms and Conditions within thirty (30) days of receiving notice of a material Update or Restriction from Berwyn.
26. Force Majeure. The Parties will not incur any liability to each other or to any other party on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms and Conditions (except for payment obligations) to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control, and without the negligence of, the Parties. Such events, occurrences, or causes include, without limitation, acts of God, telecommunications outages, Internet outages, power outages, any irregularity in the announcing or posting of updated data files by the applicable agency, strikes, lockouts, riots, acts of war, floods, earthquakes, fires, pandemics, and explosions.
27. Entire Terms and Conditions. Except as otherwise provided herein, these Terms and Conditions constitute the final written agreement and understanding of the Parties and is intended as a complete and exclusive statement of the terms of the agreement, which shall supersede all other representations, agreements, and understandings, whether oral or written, which relate to the use of the Services and all matters within the scope of these Terms and Conditions. Without limiting the foregoing, the provisions related to confidentiality and exchange of information contained in these Terms and Conditions shall, with respect to the Services and all matters within the scope of these Terms and Conditions supersede any separate non-disclosure or confidentiality agreement that is or may in the future be entered into by the Parties hereto. Any new, other, or different terms supplied by Client beyond the terms contained herein, including those contained in purchase orders or confirmations issued by Client, are specifically and expressly rejected by Berwyn unless Berwyn agrees to them in a signed writing specifically including those new, other, or different terms. The terms contained herein shall supersede and govern in the event of a conflict between these terms and any new, other, or different terms in any other writing.
By entering into these Terms and Conditions, Client terminates any agreements it has entered with Security Software Solutions, LLC with respect to Services set forth in an Order Form, or similar services previously provided by Security Software Solutions, LLC. These Terms and Conditions can be executed in counterparts and faxed signatures, electronic signatures, or click agreements will be deemed originals.
28. Governing Law; Forum. THESE TERMS AND CONDITIONS SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THESE TERMS AND CONDITIONS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. ALL DISPUTES ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS WILL BE ADJUDICATED EXCLUSIVELY IN THE STATE OR FEDERAL COURTS LOCATED IN THE STATE OF DELAWARE.
29. Miscellaneous. If any provision of these Terms and Conditions or any exhibit shall be held by a court of competent jurisdiction to be contrary to law, invalid or otherwise unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and in any event the remaining provisions of these Terms and Conditions shall remain in full force and effect. The headings in these Terms and Conditions are inserted for reference and convenience only and shall not enter into the interpretation hereof.
30. No Third-Party Beneficiaries. These Terms and Conditions will inure to the benefit of and be binding upon the Parties to these Terms and Conditions, and their respective successors and permitted assigns, and no other person or entity (including any other person or entity with a direct or indirect interest in any pension, annuity, insurance policy, benefit plan, or other similar plans or policies) will have any right, remedy or obligation under these Terms and Conditions. The Parties agree that participants, pensioners, beneficiaries, policy owners, insureds, annuitants, legal representatives, benefits administrators, and any other similar persons or entities are not third-party beneficiaries to these Terms and Conditions, and that neither Party will claim such to be a third-party beneficiary. Notwithstanding the foregoing, solely with respect to Section 27 above, Security Software Solutions, LLC is a third-party beneficiary to these Terms and Conditions and any Order Form hereunder.
31. Non-Fiduciary Status. Client agrees that Berwyn is performing only ministerial services at the direction of Client on behalf of Client and plan sponsors that Client is servicing as a TPA (“Plan Sponsors”) under these Terms and Conditions or any Order Form. Client represents that the ministerial services to be rendered by Berwyn under these Terms and Conditions or any Order Form are consistent with the procedures and terms of the plans for which Client has engaged Berwyn to perform Services. Accordingly, Client, on behalf of itself and the Plan Sponsors, further agrees that Berwyn is not intended to be a fiduciary, nor is it intended that Berwyn have the requisite authority or control, to perform any services or functions which could cause Berwyn to become a fiduciary, as defined in either (a) the Employee Retirement Income Security Act of 1974, as amended, (“ERISA”) of any retirement plan or (b) any other applicable law. Furthermore, Client, on behalf of itself and the Plan Sponsors, agrees that Berwyn shall not be obligated to perform any services or to take any actions which, in Berwyn’s reasonable judgment, would cause Berwyn to be treated as a fiduciary under ERISA or any other applicable law, nor shall Client request that Berwyn perform such actions. Client hereby agrees to protect, indemnify, defend, and hold harmless Berwyn from and against any and all third-party Losses arising from a claim, suit, action or other proceeding resulting from or relating to Berwyn being deemed a fiduciary of Client’s or its customers’ retirement, benefit or other plans.
32. Retirement Plan Participants. This Section 32 shall apply to distribution management, treasury management, and uncashed checks services. Client, on behalf of itself and the Plan Sponsors, represents that the participants with respect to whom Berwyn will be performing the Services are participants in a retirement plan maintained by Client or a Plan Sponsor which intends that such retirement plan satisfies in form and in operation the requirements for being a tax-qualified retirement plan under the Internal Revenue Code of 1986, as amended. Client, on behalf of itself and the Plan Sponsors, further understands and acknowledges that the accuracy of the foregoing representation is a condition precedent to Berwyn performing the Services under these Terms and Conditions or any Order Form. Client, on behalf of itself and the Plan Sponsors, represents that all funds distributed to Berwyn in connection with the Services have been reported by Client or the Plan Sponsors on Form(s) 1099.
Last Updated: 2/22/2024