Please carefully read the Terms and Conditions of the Consumer Reports User Agreement.
Scope of Services
Client may order consumer reports ("Reports") from Service Provider for "employment purposes", as that term is defined under the Fair Credit Reporting Act 15 USC 1681 et. seq. ("FCRA") including but not limited to: evaluating the subject of the report ("Consumer") for employment, promotion, reassignment, or retention as an employee, volunteer or as an independent contractor ("Employment Purposes"). Client certifies that Client will order and use Reports for Employment /Volunteer Purposes only and for no other purpose. Reports contain the information and services listed on Service Provider's online portal (the "Services"). Service Provider does not provide or include any arrest record information in Reports and will only provide search results as permitted under applicable laws.
WHEREAS CLIENT seeks to obtain certain information products and services from NOW, THEREFORE, in consideration of the premises and of the agreements of the parties set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1 Per the terms of this agreement, WE will provide or furnish certain criminal, civil, and motor vehicle driving history public record information to Client ("Information Products"). WE will not assemble or evaluate any of this information. Default criminal search shall include convictions going back 10 years. Nonconvictions will be limited to only records within the last 7 years, based on the arrest date.
1.2 CLIENT understands that different rules may apply for FCRA purposes and non-FCRA purposes.
Accordingly, CLIENT certifies that it will evaluate with assistance from legal counsel whether a search falls within the FCRA permissible purposes or for purposes that are not covered by the FCRA. CLIENT warrants that when requesting a search for a non-FCRA purpose, it will clearly mark the order as "NON-FCRA" in the special instructions for the search. If and only if CLIENT clearly marks an order as "NON-FCRA", WE may change its regular reporting to allow for non-convictions outside of 7 years, based on the arrest date. CLIENT further agrees to indemnify, release, and hold harmless based on any claims alleged against it or relating to searches done for Non-FCRA purposes.
2. Compliance with Applicable Law, Client Certification and Disclaimer of Warranty
2.1 The Parties agree that each will comply with applicable federal, state, and local law and regulations governing the use, storage, and distribution of Information Products that may be furnished, including but not limited to the FCRA (if deemed applicable), Driver's Privacy Protection Act, 18 U.S.C. §2721 et seq. ("DPPA"), the Gramm-Leach-Bliley Act (15 U.S.C., §6801 et seq., as the same may be amended from time to time, "GLB") and Title VII of the Civil Rights Act of 1964. The Parties each represent and warrant to the other that this Agreement and the performance of their obligations herein will not conflict with or violate any obligations or any agreements that such Party is subject to.
2.2. In addition, CLIENT acknowledges its obligations as a CRA as defined by the FCRA, and certifies that it will:
a. Prior to requesting Information Products from us and using such products, establish reasonable procedures to ensure that its end users have a permissible purpose for requesting a consumer report and that those end users will use any consumer report provided by CLIENT for a single one-time use, including but not limited to requiring a certification of the same from its end user clients;
b. Prior to using Information Products from us, maintain reasonable procedures to assure maximum possible accuracy of information it provides to its end users.
c. Provide end users with the notices prescribed by the Consumer Financial Protection Bureau (CFPB), including: Notice to Users, Summary of Identity Theft Rights, and A Summary of Your Rights Under the Fair Credit Reporting Act, which CLIENT also certifies it has received from us and are available online at the CFPB's website. (www.consumerfinance.gov)
d. Prior to using Information Products from us, comply with the requirements of FCRA §613 when public record information is provided to end users for employment purposes. If CLIENT provides potential adverse information to an end-user, CLIENT will either notify the subject of the information ("Consumer") of the fact that the public record information is being reported by CLIENT together with the name and address of the person to whom such information is being reported, as required by FCRA §613(a)(1) or maintain strict procedures that the information reported is compete and up-to-date as required by FCRA §613(a)(2).
e. Require its end users to comply with the requirements of FCRA §604(b) (conditions for furnishing and using Reports for employment purposes) and FCRA §615 (requirements for users of Reports).
f. Comply with FCRA §611 procedures in case of disputed accuracy. Upon receipt of a dispute either from a consumer or an end user relating in any way to the Information Products provided by us, CLIENT will within five (5) business days of receiving the notice, notify us of the dispute along with any and all information provided by the consumer.
g. Not request Information Products about themselves, their families or friends other than as permitted by this Agreement, and applicable law;
h. Not merge the information received from us into a database or store the information except as archived consumer reports.
i. Provide immediate notice to US if contacted by a consumer for a Free Annual File Disclosure under FCRA § 609 or 612, and provide to the consumer any and all information provided by US as part of its consumer response.
2.3 CLIENT certifies that it will only use Information Products provided by US for a single use and will only provide such information to end users (CLIENT's clients) who certify the following:
a. they have a permissible purpose to request the information, and in no event shall an end user be permitted to request Information Products relating to themselves, their families or friends;
b. they have obtained a disclosure and authorization from any consumer about whom they are requesting a consumer report which fully complies with FCRA §604 and §606(a)(1) as applicable;
c. they will follow all applicable adverse action requirements in FCRA §604 and/or §615, however, in no event will end user state that it is a consumer reporting agency, unless required to do so by law;
d. they will not violate any laws or regulations, including Equal Employment laws or regulations, in the use of any consumer reports;
e. they agree to take precautionary measures to protect the security and dissemination of all consumer report or investigative consumer report information including, for example, restricting terminal access, utilizing passwords to restrict access to terminal devices, and securing access to, dissemination and destruction of electronic and hard copy reports;
f. they will maintain information provided by CLIENT for a period of at least five (5) years;
g. excluding willful negligence by our employees, contractors, agents and/or representatives, they will hold AUDI, its employees, agents, and representatives, from and against any and all liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in settlement, claims, actions, proceedings, suits, judgments, costs, interest, expenses and disbursements of any kind and nature whatsoever arising under any theory of legal liability (including attorney's fees and costs) that may be imposed on, incurred by or asserted against us, its employees, agents, or representatives, in any way relating to, resulting from, based upon, or arising out of the services performed or information provided.
2.4 CLIENT agrees to have reasonable security measures in place to prevent unauthorized access to Information Products provided, including but not limited to:
a. protecting account number and password information so that only key personnel know this sensitive information, including not posting this information anywhere in the facility. CLIENT further agrees to change account passwords immediately if a person who knows the password leaves its company or no longer needs to have access due to a change in duties;
b. not discussing its account number or password by telephone with any unknown caller, even if the caller claims to be an employee.
c. restricting the ability to obtain Information Products to a few key personnel.
d. placing all terminal devices used to obtain Information Products in a secure location within its facility so that unauthorized persons cannot easily access them.
e. turning off and locking all devices or systems used to obtain Information Products.
f. securing hard copies and electronic files of Information Products within its facility so that unauthorized persons cannot easily access them.
g. shredding and/or destroying all hard copy Information Products when they are no longer needed and erasing and overwriting or scrambling electronic files containing consumer information when no longer needed and when applicable regulation(s) permit destruction.
h. ensuring that its Clients will certify that the provisions in section 2.3 of this Agreement are met.
2.5 In the event of a security breach, CLIENT shall immediately notify us in writing and via telephone at (800) 259-6959 about the nature and scope of such breach and fully comply with all compliance requirements of applicable law related to consumer notification.
2.6 CLIENT understands that the Information Products from various third party sources "AS IS", and therefore is providing the information to CLIENT "AS IS". We makes no representation or warranty whatsoever, express or implied, including, but not limited to, implied warranties of merchantability or fitness for particular purpose, and implied warranties arising from the course of dealing or a course of performance with respect to the accuracy, validity, or completeness of any information products and/or consumer reports, that will meet CLIENT or any third party recipient's needs, or that will be provided on an uninterrupted basis, and we expressly disclaims all such representations and warranties.
2.7 Because we have no participation in the CLIENT's compliance with laws governing consumer reporting agencies, we cannot be either an insurer or a guarantor of the CLIENT's compliance with such laws .CLIENT releases us and its affiliated companies, officers, agents, employees, and independent contractors from any liability whatsoever in connection with CLIENT's violation of this Section governing Compliance with Laws.
3. Billing and Payment
3.1 CLIENT agrees to pay to the applicable fees then prevailing for the type of Services rendered to CLIENT. Such charges will include the applicable charges, court access fees, and document copy costs, for each request for information, if any, including those which produce a return of "no record found." CLIENT shall pay to its fees, as updated from time to time through on-line announcements, customer bulletins, and published price schedules. All current and future pricing documents are deemed incorporated herein. Furthermore, CLIENT shall be responsible for payment for all Services obtained through CLIENT's access identification code. Payment by CLIENT is due and payable per terms of invoice. CLIENT shall pay interest at the rate of one and one-half percent (1-1/2 %) per month, as allowable by law, on all unpaid charges and any accrued interest thereon, or any portion thereof, from the date such charges, or portions thereof, became due until paid. CLIENT is responsible for payment of all collection costs and attorney fees incurred by through its efforts to collect on balance(s) owed by CLIENT.
4. Indemnification and Limitation of Liability
4.1 Excluding willful negligence by AUDI employees, contractors, agents and/or representatives, CLIENT agrees, whether or not this Agreement has expired or been terminated, to assume liability for, and CLIENT hereby agrees to indemnify, defend and save and keep harmless its employees, agents, and representatives, from and against any and all liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in settlement, claims, actions, proceedings, suits, judgments, costs, interest, expenses and disbursements of any kind and nature whatsoever arising under any theory of legal liability (including attorney's fees and costs) that may be imposed on, incurred by or asserted against AUDI, its employees, agents, or representatives, in any way relating to, resulting from, based upon, or arising out of the services performed or information provided pursuant to this Agreement. Client must hold Equifax/TALX harmless if they receive any type of information from their company.
4.2 Excluding willful negligence by employees, contractors, agents and/or representatives, CLIENT shall assert no claim for and waives liability against us for any claims relating to the information products provided, including but not limited to inaccurate or false information included in any Information
4.3 We recognize the importance of furnishing accurate information to CLIENT and will make all reasonable efforts in providing its Services in a timely and accurate manner. CLIENT understands and agrees that any information furnished pursuant to this Agreement have been created and are maintained and reported by various Federal, State, and county agencies and other third parties which are not under the control of us. CLIENT also understands that searches of international background screening will be conducted through the services of a third-party independent contractor. Responsibility for the accuracy of the information rests solely with said various agencies and other third parties which create, maintain, and report said information. WE WILL NOT BE LIABLE TO CLIENT FOR DAMAGES, AND CLIENT HEREBY RELEASES US FROM ANYLIABILITY FOR DAMAGES ARISING UNDER ANY THEORY OF LEGAL LIABILITY TO THE FULLEST EXTENTTHAT CLIENT MAY LEGALLY AGREE TO RELEASE AUDI FROM LIABILITY FOR SUCH DAMAGES. INTHE EVENT WE ARE LIABLE TO CLIENT FOR ANY MATTER ARISING UNDER OR RELATING TOTHISAGREEMENT, WHETHER ARISING IN CONTRACT, EQUITY, STRICT LIABILITY, TORT, STATUTORY OROTHERWISE (INCLUDING WITHOUT LIMITATION ANY CLAIM FOR NEGLIGENCE), THE AMOUNT OFDAMAGES RECOVERABLE AGAINST US FOR ALL SUCH MATTERS WILL NOT EXCEED, IN THEAGGREGATE, THE AMOUNT PAID TO US BY CLIENT FOR THE SERVICE TO WHICH A GIVEN CLAIM RELATES PROVIDED PURSUANT TO THIS AGREEMENT, AND RECOVERY OF THE AMOUNT IS CLIENT'S SOLE AND EXCLUSIVE REMEDY HEREUNDER. IN THE EVENT AUDI IS LIABLE TO CLIENT FOR ANYMATTER RELATING TO THIS AGREEMENT, WHETHER ARISING IN CONTRACT, EQUITY, STRICTLIABILITY, STATUTORY OR TORT (INCLUDING WITHOUT LIMITATION ANY CLAIM FOR NEGLIGENCE),AND IN ADDITION TO ANY OTHER LIMITATION OF LIABILITY OR REMEDY SET FORTH IN THISAGREEMENT, THE AMOUNT OF DAMAGES RECOVERABLE AGAINST AUDI WILL NOT INCLUDE ANYAMOUNTS FOR INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST INCOME,OR LOST SAVINGS, OR FOR ANY AMOUNTS WITH RESPECT TO CLAIMS AGAINST AUDI.
5. Term and Termination
5.1 This Agreement will commence on the Effective Date, will continue for an initial term of one (1) year and will be automatically renewed for successive one (1) year terms unless terminated by either Party as follows: (i) with sixty (60) days written notice to the other Party at any time; or (ii) immediately with written notice if the other Party is in material breach of this Agreement or any law or regulation regarding the performance of this Agreement and such Party fails to cure the alleged breach within ten (10) days after receiving written notice thereof from the non-breaching Party. If either party (a) defaults in the performance of its material obligations hereunder and fails to substantially cure such default within thirty (30) days after receipt of a written notice of breach, or (b) becomes the subject of any proceeding commenced under any provision of the United States Bankruptcy Code, or executes any assignment for the benefit of creditors or the filing for relief under any applicable reorganization, moratorium or similar debtor relief Laws, then in any such event the other party may terminate this Agreement upon delivery of written notice. Additionally, We may suspend performance under this Agreement without penalty upon written notice to CLIENT, in the event CLIENT's breach of this Agreement is reasonably determined by us to be a violation of applicable federal, state, or local laws or to present a risk of non-compliance by us with such applicable laws.
5.2 CLIENT will remain liable for all outstanding invoices and/or charges incurred prior to the effective date of the termination or cancellation of this Agreement.
5.3 CLIENT will make every effort to maintain sub accounts.
Except as required by law, the terms and conditions of this Agreement and all proprietary information exchanged by the Parties and all documents referenced herein (including invoices) are confidential and shall not be disclosed without prior written consent of the other Party and as set forth herein; provided, the Party to whom information is disclosed shall have no obligation to preserve the proprietary nature of any information which: (i) was previously known to such Party free of any obligation to keep it confidential; (ii) is or becomes publicly available by other than unauthorized disclosure; (iii) is developed by or on behalf of such Party independent of any information furnished under this Agreement; (iv) is received from a third party whose disclosure does not violate any confidentiality obligation; or (v) is disclosed pursuant to the requirement or request of a governmental agency or court of competent jurisdiction to the extent such disclosure is required by a valid law, regulation or court order, and sufficient notice is given by the recipient to the disclosing Party of any such requirement or request to permit the disclosing Party to seek an appropriate protective order or exemption from such requirement or request. CLIENT further agrees that with respect to Information Products it will not, either directly or indirectly, itself or through any agent or third party request, compile, store, maintain or use to build its own database, or otherwise reproduce Information Products except as permitted in this Agreement and under the law.
7. Miscellaneous Provisions
7.1 We are an Equal Opportunity Employer and complies with all applicable employment laws, Executive Orders and regulations. We do not discriminate in its hiring and promotion practices, or the enforcement of its policies and procedures on the basis of race, color, creed, sex, age, marital status or national origin.
7.2 The relationship of the Parties created by this Agreement is that of independent contractor and not that of employer/employee, principal/agent, partnership, joint venture or representative of the other. Neither Party shall represent to third parties that it is the employer, employee, principal, agent, joint venturer or partner with, or representative of the other Party.
7.3 Except for the obligation to make payments, neither Party will be liable herein by reason of any failure or delay in the performance of its duties under this Agreement caused by matters beyond such Party's reasonable control, including without limitation, government regulation or law, war or insurrection, destruction of facilities or material by earthquake, fire, flood, storm or other natural disaster, labor disturbances, epidemic or failure of suppliers, public utilities or common carriers (each, a "Force Majeure Event"). The Party claiming relief under this section shall promptly notify the other Party in writing of the existence of the Force Majeure Event, the expected duration of the Force Majeure Event, and the cessation or termination of the Force Majeure Event. The Party claiming relief under this Section shall exercise commercially reasonable efforts to minimize the time for any such delay.
7.4 CLIENT will comply with procedures and guidelines established by us for the use of Information Products. We have the right to require reasonable evidence of CLIENT's compliance with applicable laws and our guidelines for use of Information Products.
7.5 This Agreement supersedes any and all prior negotiations or agreements, oral or written, between us and CLIENT, and represents the entire Agreement between the Parties regarding the subject matter hereof. Any modification or amendment of this Agreement must be in writing and signed by authorized representatives of each Party.
7.6 The Parties agree that there are no third party beneficiaries to this Agreement.
7.7 All notices to be given under this Agreement will be made to us at 2820 Selwyn Ave. Suite 853 Charlotte, NC 28209.
7.8 This Agreement is intended to be subject to, and in compliance with, all applicable state and federal statutes and regulations. If this Agreement or any provision herein is determined to be at variance or not in compliance with any such statute or regulation, it will be considered to be amended or modified to the extent necessary to make it comply, and the Parties hereby consent and agree to any such amendment or modification. Further, the invalidity of any provision of this Agreement will not affect the validity of the other provisions.
7.9 PARTIES hereby agree that, in the event of a lawsuit, the plaintiff may file its claim in the state in which they respectively reside and the laws of that state will apply. Both parties waive any defense of forum non conveniens and irrevocably agree to be bound by any judgment rendered in accordance with this Agreement. PARTIES agree to accept service by certified mail, return receipt requested, mailed to the address indicated below or last known address, if different, such service being hereby acknowledged by PARTIES to be effective and binding service in every respect. Nothing herein will affect the right to serve process in any other manner permitted by law.
7.10 This Agreement is assignable at any time to a successor in interest. CLIENT may not assign this Agreement in whole or in part to any Party, even a successor organization, without prior written approval. CLIENT shall promptly notify AUDI in writing of any of the following events: change in ownership of CLIENT; merger; change in name; or change in the nature of CLIENT's business that in any way affects CLIENT's right to request and receive information products.
7.11 No termination of this Agreement shall affect the rights or obligations of either Party pursuant to other provisions of this Agreement that, by their sense and context, are intended to survive termination of this Agreement, including without limitation, indemnification, confidentiality and limitation of liability.
7.12 Nothing herein should be construed to limit argument that it is not a consumer reporting agency as defined under the FCRA, and we specifically reserves that right.
7.13 In the course of completing background checks, we may uncover active arrest warrants which are outstanding against CLIENT's subjects. In these cases, we may be contacted by the law enforcement agency seeking the subject. CLIENT understands that we will furnish to the law enforcement agency any information contained within subject's file to assist in the apprehension of the subject. Additionally, we may contact CLIENT, and CLIENT agrees to release to any and all information CLIENT may have which will further the apprehension of the wanted subject.
7.14 Each Party represents that it has caused this Agreement to be executed on its behalf on the date of submission by clicking agree to terms.