C & S Associates, Inc. dba NCS Credit, Terms and Conditions of Service and Use of Proprietary Works
Effective July 1, 2021
C & S Associates, Inc., dba NCS Credit, (“NCS”) is an Ohio corporation engaged in the business of providing administrative support and proprietary reference materials to credit managers. The administrative support is primarily Notice & Mechanic’s Lien Services, UCC filing and monitoring services, and assistance in the collection of secured and unsecured debt. Proprietary and copyrighted reference materials include the National Lien Digest, Lien Tracker, legislative and case law updates, and white paper articles posted periodically to the NCS website. This document sets forth the terms and conditions under which NCS will provide services and/or provide access to proprietary, copyrighted works of NCS. By requesting services or accessing NCS reference materials you the Customer are agreeing to these Terms and Conditions of Service and Use of Copyrighted Works. These Terms and Conditions shall govern all Service Agreements, Subscription Agreements and Scope of Work Agreements that Customer and NCS hereafter enter into, (collectively “Ancillary Agreements”). These Terms and Conditions and the Ancillary Agreement shall be referred to herein as “this Agreement.”
1. Credentialing and Access.
Services and reference materials are only available to customers that have been provided with credentials to access NCS’ computer software data bases and related links via the NCS website (collectively, the “NCS Site”). Customer shall implement and maintain security measures to effectively restrict access to the NCS Site to authorized users with a need to know the information and data therein. The security measures shall be equal to those that Customer uses to protect its most confidential information. In the event of an actual or suspected breach (hack) of Customer’s security measures, Customer shall notify NCS of the breach within forty-eight hours of discovery of the actual or suspected breach if Customer reasonably believes that the breach allows unauthorized access to the NCS Site. NCS reserves the right to revoke or limit authorization to access the NCS Site of any Customer that breaches these Terms and Conditions or that poses, in NCS’s reasonable belief, a security risk. The NCS computers supporting the NCS Site are located in Ohio. Unauthorized access to a computer system is a criminal offense under Ohio law, O.R.C. § 2913.04 (B), and may be prohibited by the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(2).
2. No Guarantee of Access.
NCS believes that the ease of use and functionality of the NCS Site sets it apart from our competitors. NCS cannot guarantee and shall have no liability, whether in contract, tort, equity or otherwise for any damage, loss or expense arising out of or relating to a Customer’s inability to access the NCS Site. This limitation of liability extends to viruses regardless of origin which infect a Customer’s computer, failure of mechanical or electronic equipment, internet connectivity interruptions or slowdowns, loss of Customer access credentials regardless of cause, or any cause beyond the direct control of NCS.
3. Use Restrictions.
The NCS Site is made available to credentialed Customers with in house or outside professional advisors that are relied upon to provide legal and other professional advice. NCS relies upon Customer to identify the methods to secure Customers independent credit decisions. The NCS Site is to be used solely to communicate to NCS the information to allow NCS to perform the ministerial acts necessary to comply with the notice or recording requirements of the states and territories of the United States of America and the provinces of Canada, and to allow Customer to monitor public filings involving the Customer’s debtors. NCS does not collect or compile information that is intended to be indicative of any consumer’s credit worthiness, credit standing, credit capacity, insurability, or other characteristics listed in Section 1681(a) of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et. seq. Customer shall not use the NCS Site in any manner that would cause such use to be deemed a consumer report by any government authority. NCS subscribes to and reviews credit periodicals, legislative and judicial updates and other news outlets that report recent developments that may impact the credit decisions of its Customers. Such information is republished on or linked to the NCS Site for informational purpose only. Nothing contained in or accessible from the NCS Site is a statement of the law and may not be relied upon as legal or professional advice.
4. Protection of Propriety Rights.
Information and software accessible through the NCS Site is the propriety, copyrighted works of NCS comprising: (i) works of original authorship, including compiled information containing NCS’ selection, arrangement, coordination and expression of such information or pre-existing material it has created, gathered or assembled; and (ii) trade secret and other confidential information. Customer agrees that it shall not reproduce, retransmit, distribute, sell or disclose NCS information to third parties and shall not allow or permit its employees to engage in such activities. Customer shall not contest the validity of NCS’ rights in or ownership of the NCS Site information or software. NCS prohibits caching, unauthorized hypertext links to the NCS Site and the framing of any information available through the NCS Site.
5. Protection of Customer Information.
Except as provided below, NCS will treat all information that Customer designates in writing as being confidential in the same matter as NCS treats its own confidential information. NCS shall have the right to share Customer information with NCS third party service providers that have a need to know such information and which are subject to confidentiality obligations. NCS assumes responsibility for any third party service providers’ use of Customer information received from NCS. Customer agrees that NCS may disclose Customer information if required to do so by law or such disclosure is necessary to: (i) comply with an enforceable subpoena; (ii) enforce this Agreement; (iii) respond to claims that any Customer information violates the rights of third parties; or (iv) defend any claim that Customer may assert against NCS.
6. Price and Payment.
NCS provides Notice & Mechanic’s Lien Services and UCC Services on a fee for service basis. The list of services and unit pricing are set forth in the NCS Notice & Mechanic’s Lien Service Agreement and the NCS UCC Service Agreement. NCS proprietary reference materials are provided on a subscription fee basis. The subscription fees are set forth in NCS Notice & Mechanic’s Lien Service Agreement. NCS offers customized processes and procedures that permit a Customer to specify the application programming interface (API) that the Customer desires and its functionality. NCS programming services are set forth in a Statement of Work (“SOW”) mutually agreed to by NCS and the Customer. NCS will require Customer to submit a credit application which will be used to establish terms of payment. Customer will be invoiced for all services in accordance with the applicable signed Ancillary Agreement. Customer will also be invoiced for all fees advanced by NCS on Customer’s behalf, including taxes, statutory filings and other fees, correspondent, courier messenger or delivery charges, and any other fees or charges advanced by NCS. All amounts set forth in invoices not paid in full in accordance with the NCS credit terms (other than amounts in such invoices subject to a bona-fide good faith deposit) shall accrue interest at the rate of one percent (1%) per month. Customer also agrees to pay all of NCS’ costs of collections, including reasonable attorney fees. Customer grants NCS a continuing security interest in all account receivables owed to NCS. NCS has an established network of attorneys admitted to practice in all fifty states, the District of Columbia, U.S. possessions and Canada with a demonstrated track record for collecting secured and unsecured receivables. If customer wishes to engage a member of the NCS attorney network, NCS will serve as the liaison between the Customer and the attorney. In most instances the attorneys that NCS associates with handle collection matters on a contingent fee basis with the Customer responsible for advancing case expenses.
7. Level of Service.
NCS serves as an adjunct to the Customer’s credit department. NCS does not make credit decisions or guarantee that a Customer’s account receivables will be collected. NCS will use its best efforts to provide Customer requested services by any reasonable deadline provided by Customer. ALL SERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS. OTHER THAN AS EXPRESSLY STATED IN THIS AGREEMENT, NCS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABLITY OR FITNESS FOR A PARTICULAR PURPOSE. NCS DOES NOT WARRANT THAT ITS SERVICES WILL BE UNINTERRUPTED OR ERROR – FREE AND DISCLAIMS ANY WARRANTY REPRESENTATION REGARDING AVAILABILITY OF A SERVICE, SERVICE LEVELS OR PERFORMANCE,
NCS is not engaged in rendering legal or other professional advice or guidance. NCS cannot independently verify the public information maintained by governmental agencies or other third party sources of information. NCS makes no guarantees, representations or warranties as to the accuracy or completeness of information obtained from governmental agencies or third parties that NCS receives in the course of providing services. It is possible that information obtained and supplied to Customer may contain personally identifiable information (including social security numbers or similar personal information). If information provided to Customer contains personally identifiable information, Customer agrees it will not use such information in violation of any applicable law. NCS shall have no liability for delays, errors or omissions in the information provided by governmental or third party providers or governmental filing or recording systems.
9. Limitations of Liability.
NCS is not an insurer of the collectability of Customer’s account receivables. The fees charged by NCS for its services as well as the disclaimers and limitations of remedy are a reflection of the risks assumed by the parties. Under no circumstances shall NCS or any of its vendors, suppliers, data providers or agents be liable for any loss of underlying collateral or loss (or decreased priority) of security interest in connection with services provided by NCS. THE AGGREGATE LIABILITY OF NCS ARISING OUT OF OR RELATING TO ANY SERVICES OR INFORMATION PROVIDED TO CUSTOMER, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, STATUTORY OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT EQUAL TO THE LESSER OF ONE THOUSAND DOLLARS ($1,000.00) OR THE AMOUNT PAID OR PAYABLE BY CUSTOMER FOR THE PARTICULAR SERVICE TRANSACTION AT ISSUE. In no event shall NCS be liable for any special, indirect, punitive or consequential damages of any kind (including without limitation, lost profits, business opportunities, data or goodwill), regardless of the theory of liability, even if NCS was advised of the possibility of such damages. Any liability of NCS shall terminate if no action is commenced within one (1) year after the delivery of performance of (or failure to deliver or perform) the affected service by NCS.
NCS will defend customer against any unaffiliated third party claim and pay damages and reasonable cost finally assessed against Customer by a court of competent jurisdiction to the extent arising from infringement of the services, software or proprietary works supplied by NCS under this Agreement of such third party’s copyrights or trademarks in the United States. The obligation to indemnify shall not apply if and to the extent the infringement arises from or relates to the use of services, software or proprietary works of NCS that have been modified by or on behalf of Customer. If any services, software or proprietary works of NCS become, or in NCS’ opinion are likely to become the subject of a third party claim, then NCS may, in its sole discretion and its sole cost and expense, (i) procure for Customer the right to continue using such services, software or proprietary works; (ii) modify the infringing portion of such service, software or proprietary works to render them non-infringing but still functional; or (iii) if NCS determines that neither of the foregoing are feasible, then NCS may terminate this Agreement. The foregoing states NCS’ entire liability and the exclusive remedy of Customer for any claim of infringement.
The term of this Agreement shall extend from the Effective Date until the one (1) year anniversary of the Effective Date and shall automatically renew for successive one (1) year periods. Either party may terminate this Agreement or Ancillary Agreements for any reason upon sixty (60) days prior written notice or as otherwise provided in the applicable Scope of Work. NCS shall have the right to terminate this Agreement if Customer fails to pay past due amounts within five days following written notice from NCS or any breach by Customer of Section 4 above. Upon termination of this Agreement, Customers’ ability to access the NCS Site shall immediately and automatically terminate. Termination of this Agreement will result in a termination of all Ancillary Agreements and outstanding service orders. NCS will provide Customer with written notice of any open service orders within forty-eight (48) hours of termination. Prepaid fees for annual services or access to proprietary reference materials shall be prorated as of the date of termination and, after set off for any fees owed by Customer, NCS shall refund the prorated amount of the annual fee(s) within thirty (30) days of termination.
12. Governing Law and Jurisdiction.
This Agreement shall be governed by the laws of the state of Ohio without giving effect to any law or statutory provision which would require or permit the application of the laws of another jurisdiction. Any action or proceeding brought by a party against another party arising out of or relating to this Agreement shall be brought in and be subject to the exclusive jurisdiction of the Cuyahoga County Ohio Common Pleas Court.
(a) Customer may not assign or transfer this Agreement or any rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of NCS, except that, after reasonable prior notice to NCS, Customer may assign or transfer its rights and obligations under this Agreement, without NCS’ consent to a parent company of Customer or to a purchaser of all or substantially all of Customer’s business to which this Agreement relates. Nothing in this Agreement creates, or will be deemed to create, third party beneficiaries of or under this Agreement. Customer agrees that NCS’ obligations under this Agreement are to Customer only, and NCS has no obligation to any third party.
(b) The performance by NCS’ of its obligations under this Agreement will be that of an independent contractor and nothing contained in this Agreement will create, construe or imply an agency (except as expressly set forth herein), joint venture, partnership or fiduciary relationship of any kind between NCS and Customer.
(c) Failure by either party to insist in any one or more cases upon the strict performance of any of the terms and conditions of this Agreement shall not be considered a waiver of relinquishment in the future of such term or condition or a waiver or relinquishment of any other term or condition.
(d) Performance by either party of its obligations under this Agreement is excused during the period of an interruption and delay if due to causes beyond its reasonable control, such as acts of God, pandemics, terrorist attack, government, weather, fire, power or telecommunications failure, labor dispute, inability to obtain supplies, or breakdown of equipment.
(e) If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal or unenforceable under any applicable statute or rule of law, such provision is to that extent deemed omitted, and the balance of this Agreement remains in full force if the essential terms and conditions of this Agreement for each party remain valid, binding and enforceable.
14. Electronic Transaction.
NCS transmits and receives information electronically to perform services subject to this Agreement. This Agreement is governed by the Uniform Electronic Transactions Act. Customer agrees to conduct business with NCS by electronic means. The NCS Web Site is the information processing system that NCS uses for purposes of receiving electronic records and information from its customer base. Absent an explicit electronic directive from Customer designating a different information processing system, the system supporting Customer’s email capability shall be deemed Customer’s information processing system. Customer represents to NCS that its information processing system is capable of receiving and processing records or information from the NCS Site and warrants to NCS that during the term of this Agreement Customer shall maintain an information processing system capable of receiving and processing electronic records and information from the NCS Site.
To obtain the credentialing needed to access the NCS Site Customer must click the Acceptance box below acknowledging acceptance of the NCS Terms and Conditions of Service and Use of Proprietary Works. NCS reserves the right to amend its Terms and Conditions by notifying Customer of such changes and transmitting to Customer’s information processing system the Amended Terms and Conditions of Service and Use of Proprietary Works. Following such transmission, Customer’s continued use of the NCS Site shall constitute acceptance of the amended Terms and Conditions.