SecureSearch and Customer hereby agree as follows:
1. Certifications Of Legal Compliance For All Background Reports
A. Permissible Purpose. Customer certifies that it shall order Background Reports from SecureSearch solely for the purpose selected as defined by the FCRA. Customer shall not request, obtain or use Background Reports received from SecureSearch for any other purpose. Customer will immediately alert SecureSearch before ordering a Background Report if it believes it may need a Background Report for a purpose other than “employment purposes.” Customer understands that the FCRA provides for criminal penalties – including a fine, up to two years in prison, or both – to anyone who knowingly and willfully obtains information on a Consumer from a consumer reporting agency under false pretenses and other penalties for anyone who obtains such consumer information without a permissible purpose.
B. Disclosure. Customer certifies that, in compliance with the FCRA, prior to ordering a Background Report, Customer shall make a clear and conspicuous “disclosure” in writing to the individual about whom the Background Report will be run (“the Consumer”). The “disclosure” shall explain that a Consumer Report and/or Investigative Consumer Report may be procured for employment purposes. The “disclosure” shall also include SecureSearch’s name, address, and telephone number, describe the nature and scope of the Background Reports to be ordered, and meet all other requirements specified by applicable law. Among other things, the Disclosure shall “stand alone” and not be combined with or stapled to any employment application or other document. The Disclosure shall also not contain any extraneous information not required by applicable law, including, but not limited to, a release of liability.
C. State Law Notifications. Customer certifies that before ordering a Background Report from SecureSearch, it shall also provide any necessary notifications under applicable state law to the Consumer. Customer understands that various states, including, but not limited to, California, Minnesota, Oklahoma, New York, Massachusetts, and Washington require that specific information be communicated to the Consumer under certain circumstances. Customer agrees that it will work with experienced legal counsel to ensure that all applicable requirements are accounted for.
D. Written Consent. Customer certifies that, consistent with the FCRA, before ordering a Background Report, the Consumer shall authorize in writing the procurement of all Background Reports to be ordered by Customer.
E. EEO Law and Regulation Compliance. Customer certifies that it shall not use information contained in a Consumer Report in violation of any applicable federal or state equal employment opportunity law or regulation.
F. Adverse Action Procedures. Customer certifies that, if it is contemplating taking adverse action based in part or whole on a Background Report from SecureSearch, it shall follow all legally-required “adverse action” procedures specified by applicable federal, state or local law. For example, if the Consumer may be denied employment or incur another adverse action based in whole or part on a report provided by SecureSearch, Customer will provide to the consumer: (1) a copy of the report, (2) a description, in writing, of the rights of the consumer entitled “A Summary of Your Rights Under the Fair Credit Reporting Act,” and (3) a written notice containing any and all required notifications under federal, state or local law. Customer will then wait a reasonable period of time to allow the Consumer to dispute the accuracy of the report. After the appropriate waiting period and, assuming no dispute, Customer will issue to the Consumer notice of the adverse action taken, including the statutorily-required notice identified in the Fair Credit Reporting Act. Among other things, such notice will include: (1) the name, address, and telephone number of the consumer reporting agency, SecureSearch, (2) a statement that the consumer reporting agency did not make the decision to take the adverse action and is unable to provide the Consumer the specific reasons why the adverse action was taken, (3) a statement that the Consumer may obtain a free copy of the consumer report from the consumer reporting agency within 60 days pursuant to Section 612 of the Fair Credit Reporting Act, and (4) a statement that the Consumer has the right to dispute with the consumer reporting agency the accuracy or completeness of any information in a consumer report furnished by the agency. If a dispute as to the accuracy of the report is raised by the Consumer during the waiting period, Customer will afford SecureSearch the legally-allowed time to resolve the dispute before deciding whether to take adverse action.
G. General Legal Compliance. Customer certifies it is aware that local, state, and federal laws and regulations impact how and under what circumstances Customer may use Background Reports. Customer certifies that it will comply with all applicable federal, state, and local laws covering the acquisition and/or use of consumer reports and/or investigative consumer reports, including, but not limited to, the FCRA and Title VII.
2. Additional Certifications Of Legal Requirements For Specific Types Of Background Reports
A. Investigative Consumer Reports. Customer certifies that it will comply with additional requirements pertaining to Investigative Consumer Reports, as outlined in 15 U.S.C. 1681d. Among other things, it shall clearly and accurately disclose to the Consumer that an Investigative Consumer Report, including information as to his/her character, general reputation, personal characteristics, and mode of living, whichever are applicable, may be made. The disclosure will be made in writing and mailed or otherwise delivered to the Consumer not later than three (3) days after the date on which the report was first requested and will include a summary of the Consumer’s rights provided for under 15 U.S.C. § 1681g(c). The disclosure shall also include a statement informing the Consumer of his/her right to submit a written request for additional information, pursuant to 15 U.S.C. § 1681d(b), within a reasonable period of time after the receipt by him/her of the foregoing disclosure. Upon receipt of such request, Customer shall disclose in writing the nature and scope of the investigation, which shall be complete and accurate. The disclosure must be mailed or otherwise delivered to the Consumer not later than five (5) days after the date on which the request for additional disclosure was received from the Consumer or the date the Customer first requested the report, whichever is the later.
B. Credit Reports. Customer certifies that it understands that at least ten states and certain municipalities impose requirements and/or restrictions on employers intending to use credit reports for employment purposes. For example, Nevada and Illinois only permit employers to consider credit reports if the Consumer is working or will be working in a certain capacity. Likewise, states such as California and Colorado require that Consumers receive certain additional notifications before a credit check for employment purposes is conducted. Customer certifies that it will comply with any and all legal requirements or restrictions pertaining to its use of credit reports received from SecureSearch. Customer also agrees to sign a separate document certifying the business need to access credit reports. Customer must also agree to a physical site inspection of its premises. The cost for the site inspection is $85.00 U.S.
C. Criminal Reports. SecureSearch recommends that Customer screen its employees at the county level, as well as using federal and multi-state/nationwide databases. Customer understands that SecureSearch cannot be held responsible for any records that exist that do not fall within the scope of the search(es) ordered by Customer. Customer further understands that the multi-state/nationwide database report will only be offered in conjunction with a county or state-level verification of any possible “hit” and that Customer will be separately charged for the associated fees. Finally, Customer is aware that multiple states and municipalities imposes restrictions on the use of criminal history information, and that the EEOC counsels that employers should engage in a multi-step process when evaluating criminal history information designed to avoid any disparate impact problems under Title VII. Customer agrees to monitor all applicable legal restrictions on the use of criminal history information and take all necessary steps to comply with them.
D. Motor Vehicle Record Reports. Customer hereby certifies that it will only order motor vehicle records and/or driving records (collectively “MVRs”) in strict compliance with the Driver Privacy Protection Act (“DPPA” at 18 U.S.C. § 2721 et seq.) and any related state laws. Customer further certifies that no MVRs shall be ordered without first obtaining the written consent of the Consumer to obtain “driving records.” Customer also certifies that it will use MVRs only in the normal course of business to obtain lawful information relating to the holder of a commercial driver’s license or to verify information provided by an applicant or employee. Customer shall not retain or store any SecureSearch-provided MVR results or portions of information contained therein in any database or combine such information with data in any other database, except that Customer may keep a copy of a Consumer’s MVR in the Consumer’s personnel file. Customer shall not transmit any data contained in the reported MVR via the public internet, electronic mail or any other unsecured means. Customer understands that when MVRs are sought in certain states, Customer will be required to complete and store certain state-specific written consent materials in connection with any MVR check performed by SecureSearch. Customer agrees to complete such state-specific written consent materials as required by law or requested by SecureSearch. Customer further agrees to maintain such materials for no less than five years. Example of such state-specific requirements:
1. If Customer orders any driver records originating from the State of South Carolina, Customer acknowledges that the person identified in the driver records received from South Carolina are third-party beneficiaries to SecureSearch’s Information Release Agreement with the South Carolina Department of Public Safety, Division of Motor Vehicles.
2. Prior to requesting any MVR from the State of Washington, Customer agrees (i) to obtain from the Consumer a written statement authorizing the release of the MVR and (ii) execute an attestation that the information in the MVR is necessary to determine whether the individual should be employed to operate a school bus or commercial vehicle upon public highways. SecureSearch will provide a copy of the required release and attestation to the Customer. Customer agrees to retain each release and attestation for a period of not less than two (2) years.
3. With regard to MVR data originating from the state of West Virginia, Customer shall indemnify the state of West Virginia from any wrongful use of the MVR data.
3. Confidentiality: Customer agrees to keep all Background Reports, whether oral or written, safe and secure and restrict access to information in the Background Reports to limited, authorized personnel who need such information for legitimate employment-related purposes. Customer agrees that no information from Background Reports will be given or resold to any other “person” or “user”. If the Consumer or his or her representative request Background Report information, that person may be referred to SecureSearch, and SecureSearch will make appropriate disclosures pursuant to the FCRA and/or other applicable laws.
4. No Warranties
A. SecureSearch assembles information from a variety of sources, including databases maintained by consumer reporting agencies containing information from public records, other information repositories, and third-party researchers. Customer understands that these information sources and resources are not maintained by SecureSearch. Therefore, SecureSearch cannot be a guarantor that the information provided from these sources is absolutely accurate or current. Nevertheless, SecureSearch has in place procedures to ensure the maximum possible accuracy of the information reported and also procedures designed to respond promptly to claims of incorrect or inaccurate information in accordance with applicable law.
B. Customer understands that SecureSearch obtains the information in its consumer reports and investigative consumer reports from various third-party sources “AS IS” and, therefore, is providing the information to Customer “AS IS”. SECURESEARCH MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM THE COURSE OF DEALING OR A COURSE OF PERFORMANCE WITH RESPECT TO THE ACCURACY, VALIDITY OR COMPLETENESS OF ANY INFORMATION AND/OR CONSUMER REPORTS, THAT THE REPORTS WILL MEET CUSTOMER’S NEEDS OR WILL BE PROVIDED ON AN UNINTERRUPTED BASIS; SECURESEARCH EXPRESSLY DISCLAIMS ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES.
5. Indemnification. Customer shall indemnify, defend, and hold harmless SecureSearch, its affiliates, and subsidiaries and their respective officers, directors, and employees from and against any and all damages, penalties, losses, liabilities, judgments, settlements, awards, costs, and expenses (including reasonable attorneys’ fees and expenses) arising out of or in connection with any claims, assertions, demands, causes of action, suits, proceedings or other actions, whether at law or in equity (“Claims”) related to: (i) any breach by Customer of this Agreement or addenda to this Agreement, (ii) Customer’s violation of applicable laws or ordinances, or (iii) Customer’s negligence, misconduct, recklessness, errors or omissions.
6. Limitation Of Liability: SECURESEARCH SHALL NOT BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES (INCLUDING LOST PROFITS OR SAVINGS), EVEN IF SECURESEARCH WAS ADVISED OF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES. IN ADDITION, SECURESEARCH SHALL NOT BE LIABLE TO CUSTOMER FOR AN AMOUNT THAT EXCEEDS TWO TIMES (2X) THE TOTAL FEES PAID TO SECURESEARCH DURING THE YEAR IN WHICH SUCH LIABILITY AROSE.
7. Invoices: Customer shall be responsible for all charges incurred, including applicable fees, as well as charges resulting from Customer’s errors in inputting data, duplicate requests, and errors in transmission. Invoices are due and payable upon receipt and considered past due after twenty (20) days from date of invoice. Unpaid balances thereafter carry a $25 late fee and one percent (1%) compounded monthly interest, as allowed by law. Customer shall review all invoices furnished and shall notify SecureSearch of any discrepancies within fifteen (15) days of receipt of the invoice. Absent an appropriate notice within fifteen (15) days, the invoice will be deemed approved and accepted by Customer.
8. Fees/Costs: Pricing for services are outlined in Exhibit A (separate attachment). The fees identified by SecureSearch for Background Reports exclude out-of-pocket expenses such as registry fees, school transcripts, court fees, state fees, and 900# fees to verify employment or education and fees for the services exclude any applicable taxes. SecureSearch may charge a $2.00 fee per applicant for requests submitted manually, i.e. by facsimile or mail. SecureSearch also reserves the right to revisit the fees charged to Customer on a going-forward basis for any reason upon written notice. Examples of reasons why SecureSearch may need to increase prices:
A. Regulatory changes have resulted in an increase of the charges for services; or
B. SecureSearch’s average disbursement fees/out-of-pocket expenses increase by more than ten percent (10%).
9. Federal Governmental Notices: Customer hereby acknowledges that it has received a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act” and “Notice to Users of Consumer Reports,” attached hereto as Exhibits B and C.
10. No Legal Advice: Customer acknowledges the importance of complying with its obligations under applicable law and agrees that it will consult with legal counsel regarding the acquisition and use of consumer reports and investigative consumer information. Customer understands and acknowledges that SecureSearch is not a law firm and does not provide legal advice in connection with SecureSearch’s furnishing of reports to Customer or Customer’s use of such reports. Customer understands that any communications by SecureSearch’s employees or representatives regarding searches, verifications or the content of reports are not to be considered or construed in any way, directly or indirectly, as legal advice. Customer shall always consult with counsel before deciding whether to act upon information reported by SecureSearch. Customer understands that sample forms or documents made available by SecureSearch to Customer, including, but not limited to, sample disclosure notices, written authorizations, and adverse action notices are offered solely as a courtesy and should not be construed as legal advice. Laws governing the content of such documents frequently change. Accordingly, Customer shall consult with counsel to make sure that it is using appropriate documents that comply with any and all applicable federal, state, and local laws.
11. Customer’s Information Security Obligations: Customer understands that Background Reports often contain sensitive, personal information. Accordingly, Customer agrees to do the following in order to preserve the security of the services being provided pursuant to this Agreement:
A. Prevent Misuse Of Services Or Information. Customer agrees to take appropriate measures so as to protect against the misuse and/or unauthorized access of SecureSearch’s services through any methods, including unauthorized access through or to Customer’s user identification numbers or passwords (“Account IDs”), if provided. Such misuse or unauthorized access shall include, but is not limited to, unauthorized access to information such as social security numbers, driver’s license numbers or dates of birth. Customer agrees that SecureSearch may temporarily suspend Customer’s access for up to ten (10) business days pending an investigation of Customers use or access. Customer agrees to cooperate fully with any and all investigations. If any misuse or unauthorized access is found, SecureSearch may immediately terminate this Agreement without notice or liability of any kind.
B. Properly Maintain The Customer Account. Customer is responsible for the administration and control of Account IDs by its employees and third parties and shall identify a security administrator to coordinate with SecureSearch. Customer shall manage all Account IDs and notify SecureSearch promptly if any Account ID becomes inactive or invalid. Customer shall follow the policies and procedures of SecureSearch with respect to account maintenance as communicated to Customer from time to time.
C. Properly Handle Any Potential Or Actual Security Breaches. In the event that Customer learns or has reason to believe that SecureSearch data has been disclosed or accessed by an unauthorized party, Customer will immediately give notice of such event to SecureSearch. Furthermore, in the event that Customer has access to or acquires individually-identifiable information (e.g., social security numbers, driver’s license numbers or dates of birth) in relation to the Agreement, the following shall apply: Customer acknowledges that upon unauthorized acquisition of such individually-identifiable information (a “Security Event”), Customer shall, in compliance with law, notify the individuals whose information was disclosed that a Security Event has occurred. Also, Customer shall be responsible for any other legal obligations which may arise under applicable law in connection with such Security Event.
12. SecureSearch’s Obligations. SecureSearch agrees to comply with all laws applicable to the making of Background Reports for employment purposes, including the FCRA. Among other things, SecureSearch will: (a) follow reasonable procedures to assure maximum possible accuracy of the information reported, (b) disclose, upon request from the Consumer, the information reported to Customer, and (c) reinvestigate any information disputed by the Consumer at no charge to the Customer and take any necessary action to rectify a report that has incorrect or unverifiable information. In such a circumstance, SecureSearch will provide Customer prompt notice that a dispute has been raised. Customer agrees that upon receiving notice of a dispute from SecureSearch, it will wait for SecureSearch to resolve the dispute before deciding whether to proceed with any adverse action.
A. This Agreement shall be effective as of the date it is executed on behalf of Customer by an authorized representative of Customer and shall be at will and may be cancelled at any time by either party.
B. Each party (and its employees) is and shall remain an independent contractor. Neither party is authorized to assume or create an obligation or responsibility, express or implied, on behalf of or in the name of the other party or to bind the other party in any manner.
C. Customer shall notify SecureSearch if Customer changes its name or address.
D. Customer shall retain all disclosures to Consumers, written authorizations from Consumers, background screening reports, and adverse action letters for a period of at least five years.
E. SecureSearch shall have the right to conduct periodic audits of Customer’s compliance with this Agreement and applicable law. In addition, certain third-party vendors, such as departments of motor vehicles and credit bureaus, require the right to audit Customer either directly or through SecureSearch. The scope and frequency of any audit shall be at the reasonable discretion of SecureSearch and will be subject to requirements imposed by third-party vendors. SecureSearch will provide reasonable notice prior to conducting any audit provided that SecureSearch has received reasonable notice from any third-party vendor involved in the audit process. Any violations discovered as a result of such audit may be cause for immediate action by SecureSearch, including, but not limited to, immediate termination of this Agreement.
F. SecureSearch shall have the right to reveal the existence of this Agreement and the terms or conditions thereof in any SecureSearch publication, advertising, publicity release or sales presentation regardless of the medium.
G. Colorado law and federal law will govern this Agreement. The parties agree that any legal disputes will be handled in the appropriate state court in Douglas County, Colorado or the appropriate federal court in Colorado. Both parties agree that personal jurisdiction exists in Colorado. Except in a situation where injunctive relief is necessary, no party will file a lawsuit against the other party until first offering mediation to the other party. If mediation occurs, the parties will split the cost.
H. The invalidity or unenforceability of any one provision of this Agreement shall not impair the validity and enforceability of the remaining provisions.
H. The obligation of SecureSearch to perform under this Agreement shall be excused if caused by matters beyond its reasonable control, including, without limitation, government regulation or law, war or insurrection, civil commotion, destruction of production facilities or material by earthquake, fire, flood, storm or other natural disaster, labor disturbances, epidemic or failure of suppliers, public utilities or common carriers.
I. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, provided, however, neither party shall assign or otherwise transfer this Agreement or any interest herein without the prior written consent of the other party, which consent shall not be unreasonably withheld.
J. The failure of either party to insist on prompt performance of their duties shall not constitute a waiver of that duty. Any such waivers must be provided in a written, executed document.
K. This Agreement and any attachments hereto constitute the entire agreement between the parties and supersede all prior understanding, written or oral, between the parties with respect to the subject matter hereof. No changes or alterations may be made to this Agreement unless in writing signed by duly-authorized representatives of each party to this Agreement.
L. By signing this Agreement, Customer agrees that SecureSearch can communicate with Customer via facsimile and electronic mail and other reasonable methods of communication.