TERMS AND CONDITIONS FOR CREDENTIALING
1. PURPOSE AND OBJECTIVE: Texas Mediator Credentialing Association (TMCA) is a non-profit, non-governmental association that promotes quality mediation throughout Texas. TMCA provides annual voluntary credentialing for mediators in Texas. The undersigned is an applicant (Applicant) seeking one of the TMCA credential designations (Credential Designation) under the terms and conditions set forth below (Terms and Conditions).
2. MEANING AND USE OF CREDENTIAL DESIGNATION: Subject to these Terms and Conditions, TMCA grants the Applicant a non-exclusive and non-transferable right to use the Credential Designation granted to the Applicant. The Applicant may only use the Credential Designation exactly as it appears on the Applicants Certificate of Credential Designation (the Mark) in association with the Applicants name on promotional displays and advertising materials. The Applicant may not use a Credential Designation or claim to have obtained a Credential Designation from the TMCA unless the Applicant has completed the credentialing requirements. The Applicant may not use any TMCA logo or mark other than the Mark, and the TMCA reserves the right to deny use of the Mark, the TMCA logo, or any other TMCA mark at its sole discretion, at any time and for any reason. The words, spelling, case of the letters, comparative size of the words and letters, grammar, punctuation, and substance of the Mark may not be modified or altered in any way by the Applicant.
The Applicant agrees to immediately terminate the use of any Credential Designation granted by the TMCA at the request or instruction of the TMCA. Such request may be made pursuant to the TMCA Grievance Rules and Procedures or at any time and for any reason determined by the TMCA in its sole and exclusive discretion.
Inappropriate use of the Credential designation will result in the termination of the use of the Applicants Credential Designation. Such inappropriate use includes by way of example, but is not limited to, using the Credential Designation to mislead, misrepresent, imply or suggest that (1) the Applicant has obtained a Credential Designation that the Applicant has not, (2) the TMCA endorses or recommends the services provided by the Applicant or the Applicants employees, contractors or affiliates, (3) the TMCA has entered into a joint venture, partnership, or relationship with the Applicant other than having granted a Credential Designation to the Applicant, (4) the Credential Designation has any meaning or use other than that provided in this document, or (5) any other person, organization, or entity is entitled to the use or benefit of the Credential Designation granted to the Applicant.
The Applicant acknowledges that, if granted a Credential Designation by the TMCA, the Applicant is not acquiring a license, registration, or credential by, through, or under a governmental agency, and that the Credential Designation is not being acquired pursuant to a government contract.
3. ETHICS AND GRIEVANCES: The Applicant agrees to abide by the TMCA Standards of Practice and Code of Ethics, and the TMCA Grievance Rules and Procedures; and the Applicant agrees to the terms and provisions of both.
4. CONFIDENTIALITY: The Applicant understands that the matters communicated and records made in mediation are confidential. Such matters may not be disclosed to anyone without the consent of those who participated in the mediation, including the Applicant, unless otherwise provided by (1) TMCA Standards of Practice and Code of Ethics, (2) TMCA Grievance Rules and Procedures, or (3) Texas law.
5. WAIVER OF CONFIDENTIALITY: The Applicant hereby knowingly, intentionally, permanently, and expressly waives, gives up, and relinquishes any confidentiality to which the Applicant may be entitled, whether created by agreement, under the law, or the TMCA Standards of Practice and Code of Ethics, arising out of any mediation which is the subject of a grievance brought against the Applicant under the TMCA Grievance Rules and Procedures including, but not limited to, confidentiality concerning:
- Any communication relating to the subject matter of any civil or criminal complaint made by the Applicant or a participant in a mediation which is the subject of a grievance, whether before or after the institution of formal judicial proceedings; and
- any record made at such a mediation; and
- any agreement for confidentiality the Applicant made or participated in, in connection with such mediation.
The Waiver of Confidentiality in these Terms and Conditions is strictly limited in its application to a grievance brought under the T.M.C.A Grievance Rules and Procedures.
6. DISCLOSURE: The Applicant authorizes the parties to a mediation that is the subject of a complaint, to disclose documents and information as provided in the TMCA Grievance Rules and Procedures.
7. WAIVER OF LIABILITY: THE APPLICANT AGREES THAT THE TMCA, THE TMCA GRIEVANCE COMMITTEE, THE TMCA BOARD OF DIRECTORS, THOSE ACTING UNDER THE AUTHORITY OF THE COMMITTEE AND THE BOARD, AND THE EMPLOYEES AND REPRESENTATIVES OF THE TMCA (COLLECTIVELY THE TMCA AND ITS REPRESENTATIVES), SHALL NOT (INDIVIDUALLY OR COLLECTIVELY) BE LIABLE TO THE APPLICANT FOR ANY ACT OR OMISSION OF THE TMCA AND ITS REPRESENTATIVES (INDIVIDUALLY OR COLLECTIVELY), IN CONNECTION WITH ANY CREDENTIAL GRANTED OR DENIED TO THE APPLICANT BY THE TMCA, OR ANY GRIEVANCE BROUGHT AGAINST THE APPLICANT UNDER THE TMCA GRIEVANCE RULES AND PROCEDURES, OR IN CONNECTION WITH ANY OTHER MATTER ARISING HEREUNDER. THIS WAIVER OF LIABILITY SHALL SPECIFICALLY EXTEND TO LIABILITY CAUSED BY THE NEGLIGENCE OF THE TMCA AND ITS REPRESENTATIVES.
8. SPECIFIC WAIVER OF CONSUMER RIGHTS: THE APPLICANT WAIVES HIS OR HER RIGHTS UNDER THE DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT, SECTION 17.41 ET SEQ., BUSINESS & COMMERCE CODE, A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. AFTER CONSULTATION WITH AN ATTORNEY OF THE APPLICANTS SELECTION, THE APPLICANT VOLUNTARILY CONSENTS TO THIS WAIVER.
9. INDEMNITY: THE APPLICANT AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE TMCA AND ITS REPRESENTATIVES FROM AND AGAINST ANY AND ALL HARM, DAMAGES, LIABILITY, CLAIMS, CAUSES OF ACTION, COSTS, EXPENSES, AND ATTORNEYS FEES INCURRED AT ANY TIME BY ANY OF THEM, AND AS THE SAME ARE INCURRED (WITH OR WITHOUT LITIGATION AND PRIOR TO, DURING OR AFTER ANY LITIGATION), AS A RESULT OF ANY ACTION OR CLAIM BROUGHT BY, THROUGH OR UNDER THE APPLICANT. THIS INDEMNITY SHALL SPECIFICALLY EXTEND TO DAMAGES (ETC.) CAUSED BY THE NEGLIGENCE OF THE TMCA AND ITS REPRESENTATIVES.
10. DISPUTE RESOLUTION PROCEDURE: In the event that any dispute or any issue, except those related to the use of any TMCA mark, shall arise between the TMCA and the Applicant, the Applicant agrees to negotiate in good faith to try and resolve said dispute. In the event that such efforts do not resolve the dispute, then the Applicant agrees to attempt to resolve the dispute in mediation. The Applicant agrees that the following dispute resolution procedure shall be used to resolve any such dispute between the Applicant and the TMCA prior to any further legal action, such as filing suit, etc.
Mediation shall be commenced by the sending of a notice that:
- must be in writing;
- must be sent to the address contained in the Application for the sending of notices; and
- must be made in good faith, and state with reasonable certainty and in reasonable detail all of the pertinent facts regarding the dispute.
Within fifteen (15) working days (for the purposes of this document, working days include all days except Saturday, Sunday, or any day on which the U.S. Post Office is closed) after the Dispute Resolution Procedure has been invoked by written notice, the Applicant and the TMCA shall submit to each other in writing a list of three (3) proposed mediators. The Applicant and the TMCA shall then attempt to agree upon a mediator from these lists within five (5) working days. If the Applicant and the TMCA are unable to agree within the five (5) working days allotted, then each party shall appoint a mediator (Appointed Mediator) from their list. The two Appointed Mediators shall then agree upon a mediator (Mediator) within five (5) working days following their appointment. Neither the Applicant nor the TMCA shall file suit until the Dispute Resolution Procedure is completed.
Thereafter, and as soon as is possible, the Applicant and the TMCA shall mediate at such a place and time as designated by the Mediator pursuant to Chapter 154, Civil Practice & Remedies Code. The Applicant and the TMCA shall continue the mediation until the dispute is resolved by agreement, or the Mediator declares an impasse. The Applicant and the TMCA will equally divide the cost of the mediation unless the Applicant and the TMCA agree otherwise.
The dispute resolution procedure set forth in this section shall not delay, prevent or obstruct:
- the Applicants immediate compliance with the terms of this agreement, or
- any proceeding under the TMCA Grievance Rules and Procedures.
The Dispute Resolution Procedure set forth in this section shall not apply to, or have effect in, a dispute arising out of the use of any TMCA mark, or a request or instruction issued by the TMCA pursuant to Section 2 of this document: Use of Credential Designation.
11. COMMENCEMENT AND TERM: These Terms and Conditions are effective upon:
- Receipt by the TMCA of the completed Application for Credential Designation; and
- Receipt by the TMCA of these Terms and Conditions completed and signed by the Applicant; and
- Issuance by the TMCA of the Certificate of Credential Designation.
The Terms and Conditions are in effect from the effective date until the earlier to occur of the following:
- The failure of the Applicant to timely complete the annual credentialing maintenance requirements for the Credential Designation;
- Notice from the TMCA that the Applicant has failed to timely comply with the annual credentialing maintenance requirements for the Credential Designation; or
- Notice from the TMCA that the Applicants Credential Designation has been terminated.
12. MODIFICATION: Any modification by the Applicant to these Terms and Conditions will render the document immediately null and void, and the Applicant will be denied a Credential Designation. The TMCA reserves the right to change these Terms and Conditions at any time and for any reason. Such changes will be effective on the credential renewal date following the date on which the changes are made.
13. COMMUNICATIONS AND NOTICES: All communications between (to and from) the TMCA and the Applicant in connection with these Terms and Conditions shall be in writing. The Applicant shall provide to the TMCA telephone numbers, addresses, tele-copier (fax) numbers, and email addresses through which the TMCA can communicate with the Applicant. The Applicant shall keep all contact information current with the TMCA. All notices and communications required to be given or sent by the TMCA to the Applicant pursuant to these Terms and Conditions may, in the TMCAs discretion, be given by certified mail, return receipt requested, electronically, by email to the Applicants email address, or by facsimile sent to the Applicants tele-copier (fax) number and shall be effective when placed in the mail or sent. Receipt by the TMCA of any item, matter or communication in any manner sent to the TMCA shall be considered effective and complete when actually received by the TMCA.
14. LEGAL RIGHTS: THE APPLICANT UNDERSTANDS THAT SIGNING THIS DOCUMENT CAN AFFECT THE APPLICANTS LEGAL RIGHTS AND THAT THE APPLICANT SHOULD OBTAIN INDEPENDENT LEGAL ADVICE BEFORE SIGNING.