Terms of Use

Your employer or potential employer (“Employer”) has activated an account to utilize an on-line Human Resources Platform, called BerniePortal, provided by us, BH Web Services, LLC (“BHWS” or “We,” “Us,” or “Our”). BerniePortal, and the various content, features and associated functionality offered through BerniePortal, are collectively referred to herein as the “Services.”

Employers can invite their employees and/or potential employees to use the Services as part of, and subject to, Employer’s rights to use the Services. You have been invited to become a user (“You” or “Your” or “User”) of the Services by the Employer, and Your use of the Services is subject to Your acceptance of, and continued compliance, with these Terms of Use, as well as any other written agreement between Us and You. BHWS or You may be individually referred to herein as a “Party,” or collectively as the “Parties.”

The Services are provided at no cost to You as a user.

1. USER’S ACKNOWLEDGMENT & ACCEPTANCE OF TERMS

(1.1) BY CREATING AN ACCOUNT AND/OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT WISH TO BE BOUND BY THE THESE TERMS OF USE, YOU MAY NOT CREATE AN ACCOUNT AND YOU MAY NOT USE THE SERVICES.

(1.2) We reserve the sole right and discretion to modify or discontinue all or part of the Services, to all users or just You, at any time, for any reason, and with or without notice to You. We will not be liable to You or any third party should We exercise such right. Any new features or changes in the Services shall also be subject to these Terms of Use.

(1.3) We expressly reserve the right to change these Terms of Use from time to time without notice to you. You acknowledge and agree that it is your responsibility to review these Terms of Use (available at www.bernieportal.com/terms-of-use/) from time to time and to familiarize yourself with any modifications. Your continued use of the Services after such modifications will constitute acceptance of the modified Terms of Use.

2. REGISTRATION

You will be required to create an account with a password by completing our online registration form. You are solely responsible for maintaining the confidentiality of your password and for any and all statements made and acts or omissions that occur through the use of your password and account. Therefore, you must take steps to ensure that others do not gain access to your password. You may not transfer or share your account with anyone, and we reserve the right to immediately terminate Your account if you do transfer or share your account.

3. USE OF THE SERVICES

(3.1) Subject to Your continued compliance with these Terms of Use, We grant you a non-exclusive, non-transferable, limited, royalty-free, non-sublicensable right to access and use the Services until (a) you terminate Your use of the Services via written notice to Us; or (b) We terminate or suspend your access to the Services, whichever is shorter.

(3.2) Your use of the Services is subject to these Terms of Use and all applicable laws and regulations, and you are solely responsible for the content You provide. You agree that you will not upload, share, post, or otherwise distribute or facilitate distribution of any content, including text, communications, software, images, sounds, data, or other information that:

• (a) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, contains explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals), or otherwise violates our rules or policies;
• (b) victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
• (c) infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any third party;
• (d) constitutes unauthorized or unsolicited advertising, junk or bulk email (also known as “spamming”), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
• (e) contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party; or
• (f) impersonates any person or entity, including any of Our employees or representatives.

(3.3) We neither endorse nor assume any liability for the content of any material uploaded or submitted by users of the Service. We generally do not pre-screen, monitor, or edit the content posted by users. However, We and our agents have the right at our sole discretion to remove any content that, in Our judgment, does not comply with these Terms of Use and any other rules of user conduct for Our site, or is otherwise harmful, objectionable, or inaccurate. We are not responsible for any failure or delay in removing such content. You hereby consent to such removal and waive any claim against Us arising out of such removal of content.

(3.4) You may not use Your account to breach security of another account or attempt to gain unauthorized access to another user’s information. Users who violate systems or network security may incur criminal or civil liability.

(3.5) You acknowledge that we may cooperate fully with investigations of violations of systems or network security used in the Services or at other sites or third parties, including cooperating with law enforcement authorities in investigating suspected criminal violations.

(3.6) You agree not to: (i) modify, adapt, copy or create derivative works based on the Services, or attempt to merge the Services into any other program, software, or application; (ii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code of any software used to provide the Services (or any component thereof); (iii) obscure, remove, or alter any of the trademarks, trade names, logos, patent or copyright notices, or other confidential or proprietary notices in the Services; (iv) access the Services in order to (a) build a competitive product or services, or (b) copy any ideas, features, functions or graphics of the Services; (v) access the Services if You are Our direct competitor, except with Our prior written consent; or (vi) access the Services for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes.

(3.7) You further agree not to sell, resell, reproduce, duplicate, copy or use for any commercial purposes any portion of Services, or use of or access to the Services.

(3.8) You agree to receive tax documents such as W-2s and 1099’s from BerniePortal electronically. Employers are still required to provide you with a physical copy (via mail or in-person) unless you’ve given them consent to provide it electronically. If you would like a physical copy of any tax forms, you agree to ask your employer for a physical copy.

4. OWNERSHIP OF DATA AND INTELLECTUAL PROPERTY INFORMATION

As between You and Us, You retain all right and ownership to the electronic data or other information submitted by You to the Services, for example, Your name, physical address, e-mail address, etc. (“Your Data”). Other types of data that You may provide as part of the Services, and that constitute Your Data, is outlined in Our Privacy Policy. You agree that all of Your Data You provide as part of the Services is true and accurate and that You will maintain and update this information as required in order to keep it current, complete, and accurate. You grant us a license to use, access, and disclose Your Data in providing the Services to You, Your Employer, and any third parties that are integrated with or utilize the Services in providing their own services to You or Your Employer or Your Employer’s third party support providers.

Subject to the limited rights expressly granted hereunder to You to access and use the Services, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

5. DISCLAIMER OF WARRANTIES

(5.1) THE SERVICES AND ANY OTHER MATERIALS, SERVICES, SOFTWARE AND/OR INFORMATION PROVIDED BY US ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND NEITHER BHWS NOR ITS LICENSORS MAKE ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND BHWS AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BHWS AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICES OR ANY OTHER INFORMATION, MATERIALS, SOFTWARE OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL MEET USERS’ REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR SECURE OR ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED.

(5.2) THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.

(5.3) You understand and agree that temporary interruptions of the Services may occur as normal events. You further understand and agree that We have no control over third party networks You may access in the course of the use of the Services, and therefore, delays and disruption of other network transmissions are completely beyond Our control.

(5.4) SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

6. LIMITATION OF LIABILITY

(6.1) THE SERVICES ARE BEING PROVIDED AT NO CHARGE TO YOU. THUS, IN NO EVENT SHALL WE OR OUR AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY (A) DIRECT DAMAGES OR (B) SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY OTHER DAMAGES WHATSOEVER, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES.

(6.2) SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

(6.3) Any cause of action brought by You against Us or our affiliates must be instituted within one year after the cause of action arises or be deemed forever waived and barred.

7. DATA PRIVACY

Our use of Your Data is subject to our Privacy Policy, which is specifically incorporated by reference into these Terms of Use, and which may be updated from time to time. A copy of our current Privacy Policy can be accessed at https://www.bernieportal.com/privacy-policy/.

8. GENERAL PROVISIONS

(8.1) This Agreement shall be binding upon and inure solely to the benefit of each Party and nothing in this Agreement, express or implied, is intended to confer upon any third party any rights or remedies of any nature whatsoever under or by reason of this Agreement, except as otherwise expressly provided herein.

(8.2) All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; or (ii) the second business day after mailing, addressed to BH Web Services, LLC, Attn: Legal, 2817 West End Ave., Suite 126-281, Nashville, TN 37203, or addressed to You as specified in Your Data provided as part of the Services, or to such other address as the Parties shall designate in writing from time to time. In addition, we may broadcast notices or messages through the Services to inform you of changes to the Services or other matters of importance, and such broadcasts shall constitute notice to You at the time of sending.

(8.3) Unless otherwise provided for herein, no failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.

(8.4) If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall 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 this Agreement shall remain in effect.

(8.5) You may not assign your rights and obligations under these Terms of Use to any party, and any purported attempt to do so will be null and void. We may freely assign our rights and obligations under these Terms of Use. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.

(8.6) This Agreement shall be governed exclusively by the internal laws of the State of Tennessee, without regard to its conflicts-of-laws rules. Each Party hereby irrevocably submits to the sole and exclusive jurisdiction of the state and federal courts located in Davidson County, Nashville, Tennessee for purposes of any action, suit or proceeding arising out of this Agreement. EACH PARTY ALSO HEREBY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT. In any action to enforce these Terms of Use, the prevailing party will be entitled to costs and attorneys’ fees.

(8.7) This Agreement constitutes the entire agreement between the Parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted. Any attempt to alter, supplement or amend this document or to enter an order for products or services which are subject to additional or altered terms and conditions shall be null and void, unless otherwise agreed to in a written agreement signed by You and Us.

(8.8) In addition to any excuse provided by applicable law, We shall be excused from liability for non-delivery or delay in delivery of the Services arising from any event beyond our reasonable control, whether or not foreseeable by either party, including but not limited to, labor disturbance, war, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond our reasonable control, whether or not similar to those which are enumerated above.

(8.9) The Parties agree that there are inadequate remedies at law to compensate for certain actual or threatened breaches of this Agreement, including violations of the covenants in Section 3. Therefore, any such actual or threatened breaches may be enjoined and specific performance of a Party’s obligations may be compelled without proof of actual damages, notwithstanding any other relief that may be available under the circumstances. Any requirement to post a bond associated with seeking equitable relief is waived.