This Agreement contains the standard terms and conditions for the provision of Surecave Vero's Services (as defined in Section 2 ("Services") to Client through the portal known as Vero.com. Capitalized terms used in this Agreement but not otherwise explicitly defined shall have the meaning ascribed to them under the Fair Credit Reporting Act (15 U.S.C., §1681 et seq.), as the same may be amended from time to time (the "FCRA").
(a) Definition. During the Term (as defined in Section 8(a) (Term) below) and in accordance with the terms of this Agreement and Related Law (as defined in Section 5 (Compliance Requirement and Related Law), Client may request and may provide to Client (i) consumer reports ("Report" or "Reports"), as defined under the FCRA; (ii) rental screening scores ("Scores"); (iii) statistical summary reports; (iv) any other services as specifically agreed in writing by the Parties; (subsections (i) - (iv) collectively referred to as the "Services"). Client may also request certain consumer credit data through from TransUnion, LLC to be delivered through the Vero.com portal. Where such consumer credit data is requested, additional terms and conditions as required by TransUnion, LLC will apply, which terms and conditions must also be agreed to by Client before any Services will be delivered.
(b) Delivery of Services. Surecave may discontinue, upgrade or change the production, support, delivery and maintenance of any Services if Surecave is unable to acquire data, services or other products on commercially reasonable terms, or if Surecave, or its third party licensors, develops an upgraded version or otherwise no longer generally provides such Services to its customers. The Services to be provided pursuant to this Agreement shall not be deemed to constitute a bulk sale of data. Surecave shall comply with laws and regulations applicable to its provision of the Services under this Agreement.
(a) License Grant. Subject to the terms and conditions of this Agreement, Surecave hereby grants to Client a non-exclusive, non-transferable, limited license to use the Services solely for Client's internal business purposes. There are no implied licenses under this Agreement. All rights not expressly granted herein are reserved.
(b) License Restrictions.
(i) THIS AGREEMENT DOES NOT ESTABLISH ANY OBLIGATION ON THE PART OF SURECAVE TO PROVIDE ANY SERVICES TO CLIENT UNTIL SURECAVE HAS NOTIFIED CLIENT THAT ACCOUNT SET-UP HAS BEEN COMPLETED.
(ii) Client certifies and agrees that it will order the Services as an end-user. Except as other required by Related Law (as defined in Section 5 (Compliance Requirements and Related Law)), Client shall not disclose, disseminate, share, sublicense, resell or otherwise redistribute the Services (or any part thereof) to any parent, subsidiary, affiliate, or other third party. Client's access to and the use of Services, shall be at all times in strict compliance with this Agreement.
(iii) Client certifies that, with respect to any Reports requested, it is ordering and will use a Report solely for a legitimate business need in connection with a business transaction initiated in writing by the consumer, which must be limited to applicant screening for residency purposes, and for no other purpose.
(iv) Client shall not, either directly or indirectly, itself or through any agent or third party, except as authorized by Surecave in writing or in a manner consistent with the provisions of this Agreement, either totally or partially (i) use or store the Services outside of the United States; (ii) allow access to the Services through terminals located outside of Client's operations; (iii) use the Services to create or enhance any database in any form for resale or external distribution; (iv) use the Services to create derivative products or other derivative works for resale or external distribution; (v) disassemble, decompile, or reverse engineer any portion of the Services; or (vi) use the Services in any way that is defamatory, trade libelous, unlawfully threatening or unlawfully harassing.
(v) Client and its employees will not request Reports relating to themselves, their families or friends, or request Reports on other persons other than as permitted by Surecave, this Agreement, and Related Law.
In addition to the compliance requirements set forth in this Agreement, other compliance requirements from Surecave' third party vendors (including but not limited to requirements from the nationwide consumer reporting agencies, e.g., Equifax, Experian, Trans Union, collectively referred to as the "Repositories") may govern the acquisition and use of the Services and the Parties' obligations under this Agreement. Client understands and acknowledges its obligations under, and shall at all times abide by, all applicable federal, state, and local laws and regulations of governing consumers' rights to privacy, including without limitation any applicable non-solicitation laws and regulations, the FCRA, state consumer reporting laws, and the Gramm-Leach-Bliley Act ("GLB") in ordering and using Reports (collectively referred to as "Related Law"). The full text of the FCRA and GLB can be obtained from the Consumer Financial Protection Bureau website at www.consumerfinance.gov, as such website may be changed from time to time ("CFPB Website"). In addition to all other terms of this Agreement, Client represents and warrants that:
(a) Related Documents. Through the following link, Surecave has provided and Client acknowledges it has obtained a copy of the following documents from Surecave at www.surecave.com: (i) Prescribed Summary of Consumer Rights (Appendix K to Part 1022 of Title 12 Code of Federal Regulations), (ii) Prescribed Notice of User Responsibility (Appendix N to Part 1022 of Title 12 Code of Federal Regulations), and (iv) Prescribed Summary of Identity Theft Rights (Appendix I to Part 1022 of Title 12 Code of Federal Regulations). Client may also obtain the full text of above described Appendices to the FCRA from the CFPB Website.
(b) Consumer Authorization. Client shall not be permitted to obtain a Report through Vero.com unless the Client has obtained the written consent of the consumer, and verified the consumer's identity, which written consent must include the consumer's name, address and signature regardless whether such written consent is required by Related Law.
(c) Adverse Actions.
(i) Whenever Client takes an adverse action against a consumer that is based in whole or in part on information contained in a Report obtained from Surecave, consistent with Client's responsibilities under Related Law, Client shall provide such consumer with an adverse action letter. Such adverse action letter shall contain at least the following elements, as required by Section 615(a) of the FCRA: (1) a statement that adverse action has been taken based in whole or in part on a Report received from a consumer reporting agency, (2) the name, address, and telephone number (including the toll-free telephone number) of the consumer reporting agency that furnished the Report to the Client, (3) a statement that the consumer reporting agency did not make the decision to take adverse action and is unable to provide the consumer with the specific reasons why adverse action is taken, and (4) a statement that the consumer may, upon proper identification, request a free copy of the Report and may dispute with the consumer reporting agency the accuracy or completeness of any information in the Report.
(ii) The prohibitions and restrictions set forth in this Agreement shall not prohibit Client from providing to a consumer who is the subject of an adverse action by Client with a copy of such Report. Client shall refer all consumers who have questions or disputes or seek disclosure of information in a Report to Surecave' address or the toll free number for the Surecave' consumer assistance line. In no event will Client attempt to or hold itself out to the consumer or the public, as being able to handle disputes on behalf of Surecave or to reinvestigate information in a Report.
(iii) Sample adverse action letters may be made available through the Vero.com portal. Such samples are available only for guidance purposes, are not intended to provide legal advice, and may be modified from time to time without prior notice to Client. Before using any sample adverse action letter, Client should consult with an attorney to ensure compliance with Related Law.
(d) Entities. Client is not a(n) private detective, detective agency, investigative company, bail bondsman, attorney, law firm, credit or financial counseling firm, "credit repair clinic," news or media agency or journalist, law enforcement agency, company engaged in insurance claims, dating service, asset location service, Internet people locator service, diet center, adoption search firm, timeshare, company seeking information in connection with a timeshare, pawn shop, company that locates missing children, massage service, genealogical or heir research firm, check cashing entity, an adult entertainment service of any kind, business that operates out of an apartment or unrestricted location within a residence, company that handles third party repossession, company or individual involved in spiritual counseling, individual seeking information for their private use, tattoo service, business engaged in subscriptions (magazines, book clubs, record clubs, etc.), health club, continuity club, bounty hunter, condominium/homeowners association, country club, company engaged in security services, "for profit counselors", loan modification company, or a person that will not be an end-user of the Services, and Client agrees to notify Surecave PRIOR to any change in any of the foregoing.
(e) Security Breach. In the event of a security breach, Client shall immediately notify Surecave' Incident Response Team in writing at CreditServicesInvestigationResponseTeam.firstname.lastname@example.org and comply with all compliance requirements of Related Law. Furthermore, in the event of a security breach of Client's system and/or due to the fault or negligence of Client's employees, agents and/or representatives, Client shall directly notify the affected consumers and the appropriate authorities and/or agencies and provide free credit monitoring to the consumers that were affected by such breach. Surecave reserves the right to step in and take over Client's obligations under this paragraph and Client agrees to indemnify Surecave for the undertaking of such obligations.
(f) Access Security Requirements. Client acknowledges it has received a copy Surecave' Access Security Requirements, from the website www.surecave.com/downloadable-docs/AccessSecurity.pdf and of Surecave' Internet Security Requirements from the websitewww.surecave.com/downloadable-docs/saferent-access-security.pdf. Client agrees to comply with such requirements as modified by Surecave from time to time and posted on that website; and Client agrees to monitor such website on a monthly basis to obtain notice of any changes to the Access Security Requirements and Client agrees to comply with any and all such changes to the Access Security Requirements. Client agrees that each time it places an order for Services via the Internet, Client is, and will continue to be, in compliance with these requirements.
(g) Disposal Requirement. Client agrees to comply with the requirements set forth in the Consumer Information Disposal Exhibit which is incorporated herein by reference and is found at the website www.surecave.com/consumer-disposal-exhibit regarding the proper disposal of consumer information. Client acknowledges that it has received a copy of this Exhibit from this website and agrees to comply with the provisions therein as in effect from time to time and posted on that website; Client agrees to monitor such website on a monthly basis to obtain notice of any changes to this Exhibit and Client agrees to comply with any and all such changes made to the Exhibit.
the term of this Agreement and for a period of 1 year thereafter, upon 5 days' prior written notice, Surecave may audit Client for purposes of ensuring Client's compliance with this Agreement. Surecave may choose the auditor in its sole discretion. Any such audit shall take place during regular business hours and shall not unreasonably disrupt Client's operations. Client shall provide access to such personnel, properties, files, and records (both physical and electronic) as may be reasonably required by Surecave and/or its designee for that purpose. Surecave or its designee may, during the course of such examination, make copies or extracts of Client's books and records relating to Client's compliance with this Agreement. Surecave shall treat all information reviewed during an audit as confidential. If the audit indicates there is a breach in Client's compliance with this Agreement: (i) Surecave may immediately terminate this Agreement and pursue its legal remedies, (ii) Surecave may suspend providing Services to Client until the breach has been fully cured to Surecave' satisfaction and Surecave has received satisfactory assurances that such breach will not reoccur and Client will fully perform its obligations under this Agreement, and (iii) Client shall pay for the cost of such audit. Additionally, in the event Surecave finds that Client has underpaid the Fees due to Surecave, Client shall, within 30 days of discovery of such underpayment, remit to Surecave the full amount of such underpayment. If Client does not cooperate with Surecave' request to audit for compliance, Client shall be deemed to be in breach of this Agreement, for which Surecave may immediately terminate this Agreement.
es. Client shall pay Surecave the fees for the Services ("Fees"), as set forth on Vero.com. Surecave reserves the right to revise or modify the Fees charged for its Services under this Agreement at any time during the Term. Client shall be responsible for, and shall pay the Fees for all Services accessed or performed using Client's Access Codes, whether or not authorized by Client. Client shall pay Surecave all costs of collection of past due amounts owed to Surecave hereunder, including without limitation, attorneys' fees, collection agency fees and court costs.
(b) Taxes. Fees are exclusive of sales, use, excise, ad valorem, personal property, and other taxes, as well as any Surecave surcharges arising out of compliance with applicable regulations, other such government-imposed obligations, and Surecave' third-party vendor obligations (including, but not limited to, court surcharges and credit bureau surcharges). When Surecave has the legal obligation to collect such taxes, the appropriate amount shall be added to Surecave' invoice and paid by Client, unless Client provides Surecave with a valid tax exemption certificate prior to issuance of the invoice. Such certificate must be in a form authorized by the appropriate taxing authority.
(a) Term. The term of this Agreement shall begin upon the Agreement Effective Date and shall continue in effect until expiration or terminated by either Party ("Term"). Either Party may terminate this Agreement, with or without cause, at any time with 30 days' prior advance written notice to the other Party. Notwithstanding anything to the contrary herein, Surecave may terminate this Agreement immediately without notice, including but not limited to suspending Client's access to any or all Services, if Surecave believes that Client has made a misrepresentation or failed to comply with any provision of this Agreement, or Client has not requested Services within the preceding eighteen (18) months. Surecave may also terminate this Agreement at any time if required to do so by Surecave' information providers. Surecave shall provide Client with as much advance notice as reasonably practicable.
(b) Effects of Termination. Upon expiration or termination of this Agreement, all license rights granted by Surecave to Client pursuant to this Agreement shall terminate and Client shall pay Surecave in full for all Services accessed or delivered. Client acknowledges that minimum Fees, annual Fees, flat Fees and the like are based on a minimum term. If the Agreement is terminated due to Client's breach, Client shall pay Surecave the full amount of any outstanding minimum Fees, annual Fees, flat Fees or the like for the remainder of the then-current term. Notwithstanding the foregoing, the Parties agree that if Client orders or continues to use the Services after the expiration or termination of this Agreement, and Surecave accepts such orders or delivers such Services, then such orders and use of the Services shall be governed by the terms and conditions of this Agreement; provided, however, that acceptance by Surecave of any order or delivery of any Services after the expiration or termination this Agreement shall not be considered an extension or renewal of this Agreement, nor obligate Surecave to accept any other orders or continue to deliver the Services. Furthermore, each Party's obligations incurred prior to the termination of this Agreement for whatever reason but requiring action subsequent to the termination of this Agreement shall be honored. Upon termination of this Agreement, Client shall destroy all originals and copies of the Access Systems in Client's possession.
(c) Survival.Notwithstanding anything to the contrary herein, the provisions of this Agreement which, by their reasonable terms, are intended to survive the termination of this Agreement shall survive expiration or termination of this Agreement, including without limitation the following Sections: 5 (Compliance Requirements and Related Law); 10 (Confidentiality); 11 (Acknowledgements); 12 (Disclaimer); 13 (Limitation of Liability); 14 (Indemnification by Client); 15 (Indemnification by Surecave); 16 (General Provisions); and 17 (Notice of Penalty under the FCRA).
(a) Ownership. Surecave, its affiliates or third party licensors own and hold all right, title and interest in and to the Services, including without limitation, all underlying data compilations and information, all materials related to the Services and all intellectual property derived from the Services, including without limitation, all patents, trademarks, copyrights and trade secrets derived from the Services, notwithstanding that portions of the Services may be derived in whole or in part from publicly available sources.
(b) Trademarks. "Surecave," the Surecave logo and all Surecave product names are trademarks or service marks of Surecave or its affiliates (collectively, the "Marks"). No right or license to use the Marks is granted under this Agreement, except that Client shall have the limited right to use the Marks solely as they appear in the Services. Client shall not use the Marks in any advertising or promotional material nor shall Client disclose Surecave as a data source to any third party, except for such disclosures required by federal, state or local government regulations, or as otherwise may be prior authorized in writing by Surecave. Client shall not remove, alter or obscure any Marks or proprietary notices contained in the Services or other materials provided by Surecave.
(a) Confidential Information. In the course of this Agreement, each Party may obtain nonpublic information from the other Party that is confidential and proprietary in nature ("Confidential Information"). Such Confidential Information includes, but is not limited to, the terms of this Agreement, information relating to the Services, information regarding a Party's current, future and proposed products and services, product designs, plans and roadmaps, prices and costs, trade secrets, patents, patent applications, development plans, ideas, samples, media, techniques, works of authorship, models, inventions, know-how, processes, algorithms, software schematics, code and source documents, data, formulas, financial information, procurement requirements, customer lists, suppliers, investors, employees, business and contractual relationships, sales and marketing plans, nonpublic personal information of consumers as defined by the GLB and any implementing regulations or guidelines, whether disclosed before or after the Agreement Effective Date, and any other information the receiving Party knows or reasonably ought to know is confidential, proprietary or trade secret information of the disclosing Party. Confidential Information also includes any and all nonpublic information provided to the disclosing Party by third parties.
(b) Obligations. Except as specifically permitted in this Agreement or as required by Related Law, the Parties agree that at all times, and notwithstanding the termination or expiration of this Agreement, the Parties shall hold all Confidential Information of the other Party in strict confidence and trust, and shall not use, reproduce or disclose the Confidential Information of the other Party to any person or entity, except for those whose duty requires to review the information in relation to the applicable Permissible Purpose for which a Service was ordered. Each Party may disclose Confidential Information of the other Party only to those of its employees, contractors, consultants and advisors who have previously agreed to be bound by the terms and conditions at least as restrictive as those set forth in this Agreement and who have a need to know such information.
(c) Exclusions of Confidentiality. The restrictions on use and disclosure of Confidential Information set forth in Section 10(b) shall not apply to the extent the Confidential Information: (i) is or becomes generally available to the public through no fault of the receiving Party (or anyone acting on its behalf); (ii) was previously rightfully known to the receiving Party free of any obligation to keep it confidential; (iii) is subsequently disclosed to the receiving Party by a third party who may rightfully transfer and disclose the information without restriction and free of any obligation to keep it confidential; (iv) is independently developed by the receiving Party or a third party without reference or access to the disclosing Party's Confidential Information; or (v) is otherwise agreed upon by the Parties not to be subject to the restrictions set forth in Section 9(b). Notwithstanding that portions of the Services may be derived in whole or in part from publicly available sources, information from Services and any of Surecave' databases used in deriving the Services are proprietary, copyrighted and trade secrets of Surecave and, for the avoidance of doubt, are not excluded under this Section 9(c) fromthe restrictions on use and disclosure set forth in Section 9(b).
(d) Disclosure Required by Law. The receiving Party may disclose Confidential Information if required to do so as a matter of law, regulation or court order, provided that: (i) unless otherwise prohibited by law, the receiving Party shall use all reasonable efforts to provide the disclosing Party with at least 10 days' prior notice of such disclosure, (ii) the receiving Party shall disclose only that portion of the Confidential Information that is legally required to be furnished, and (iii) the receiving Party shall use reasonable efforts to seek from the party to which the information must be disclosed confidential treatment of the disclosed Confidential Information.
(a) Surecave makes no representations or warranties regarding the credit-worthiness of or suitability for residency or employment of any individual.
(b) Due to the nature of public records, there will be instances where, either: (1) no identifying information is reported to match the applicant on which a Report is sought, but the applicant does in fact have public record information; or, (2) identifying information appears to match the applicant on which a Report is sought, but which information may not pertain to the applicant. Therefore, Client shall conduct an independent verification of the information contained in the Report to ensure that it pertains to the applicant before Client takes any adverse action against the applicant. Surecave will use good faith in attempting to obtain data and consumer information from sources deemed reliable. Client acknowledges that data otherwise available from public record sources may be suppressed in Surecave products in conformance with applicable data obsolescence laws, Related Law, or Surecave or third party vendors' policies.
(c) CrimSAFE. If Client orders CrimSAFE Reports under this Agreement, the following terms and conditions apply:
(i) Client acknowledges and agrees that any message-decision to be returned on CrimSAFE Reports (whether by default or otherwise) when criminal records, including but not limited to arrest records ("Criminal Records") are found that do not meet the criteria established by the Client represents the Client's screening requirement and policy.
(ii) Client is solely responsible for any decisions it makes based on such requirement and policy as well as any screening outcomes provided by Surecave and/or its affiliates to the extent based on such message.
(iii) Any communication with the applicant concerning Client's decision to decline the application (i) shall state that the decision is a consequence of the applicant not meeting Client's internal policy rules and (ii) shall not name Surecave as a source for implementation of Client's internal policy rules.
(iv) Any claim made against Surecave and/or any of its affiliates related to any screening outcome provided by Surecave or an affiliate based upon Client's screening requirement or policy shall be subject to the Client's indemnification obligations set forth in in Section 13 below.
(d) Scores. If Client orders Scores under this Agreement, the following terms and conditions apply:
(i) Client acknowledges that Client has requested that Surecave perform analytical services on its behalf for the purposes of generating Scores on its applicants and authorizes Surecave to access certain information contained within the credit reports obtained through the Vero.com portal for such purpose and no other.
(ii) Client acknowledges that the Scores and the factors on which the Scores are based are proprietary to Surecave and Client agrees to hold all Scores received from Surecave pursuant to this Agreement in strict confidence for Client's exclusive use and not to disclose any Score to the consumer or to any third party, except for disclosure to the subject of the Score where Client has taken "adverse action" against such subject based in whole or in part on the Score or the Report with which the Score was delivered or as otherwise required or permitted under Related Law.
(iii) Client may provide the principal factors contributing to a Score to the subject of the Score when those principal factors are the basis of Client's adverse action against the subject or as otherwise required under Related Law. Where such principal factors are provided to the subject, Client must describe such factors in a manner that complies with Related Law. Client agrees not to use any Score as the basis for an adverse action unless the Score factor codes have been delivered to Client together with the Score, and Client agrees periodically to revalidate the Score as required under Related Law. Client recognizes that all Scores (i) are statistical and may not be predictive as to any particular individual, (ii) are not intended to characterize any individual as to credit capability, and (iii) other factors must be considered in making a credit decision. No Score is intended to characterize any of Client's applicants or Clients as to credit capability, and neither Surecave nor any Score provider guarantees the predictive value of any Score with respect to any of Client's applicants. Scores represent an estimate of credit risk relative to other individuals used by the Score provider to develop the Score and any predictive value of the Score only represents the provider's opinion based on its point-scorable prediction algorithms, risk models, and/ or other methodology. IN ORDERING A SCORE, CLIENT HAS MADE ITS OWN ANALYSIS OF THE STATISTICAL RELIABILITY AND UTILITY OF USING THE SCORE. Client agrees that it will not use any Score for account management or prescreening.
THE SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF ACCURACY, TIMELINESS, COMPLETENESS, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF THAT PURPOSE IS KNOWN TO SURECAVE), OR ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. SURECAVE DISCLAIMS ANY AND ALL LIABILITY TO ANY PERSON OR ENTITY FOR THE PROPER PERFORMANCE OF SERVICES. SURECAVE DOES NOT REPRESENT OR WARRANT THAT THE SERVICES ARE COMPLETE OR FREE FROM ERROR OR WILL BE AVAILABLE 24 HOURS PER DAY, SEVEN DAYS PER WEEK, AND DOES NOT ASSUME, AND EXPRESSLY DISCLAIMS, ANY LIABILITY TO ANY PERSON OR ENTITY FOR any LOSS, INJURY, OR DAMAGE CAUSED BY ERRORS OR OMISSIONS IN THE SERVICES, WHETHER SUCH ERRORS OR OMISSIONS RESULT FROM NEGLIGENCE, ACCIDENT, OR OTHER CAUSE. SURECAVE MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE LEGALITY OR PROPRIETY OF THE USE OF THE SERVICES IN ANY GEOGRAPHIC AREA. IN NO EVENT WILL SURECAVE HAVE ANY LIABILITY FOR EVENTS OR CAUSES BEYOND ITS REASONABLE CONTROL. ANY REPRESENTATIONS AND WARRANTIES REGARDING ANY SCORE ARE MADE SOLELY BY THE PROVIDERS OF THE SCORE, AND CLIENT RELEASES SURECAVE FROM ALL LIABILITIES AND CLAIMS IN CONNECTION WITH RESPECT TO ALL SCORES.
SURECAVE' TOTAL LIABILITY AND CLIENT'S EXCLUSIVE REMEDY UNDER THIS AGREEMENT IS LIMITED TO DIRECT MONEY DAMAGES NOT EXCEEDING THE LESSER OF THE CHARGES PAID BY CLIENT TO SURECAVE DURING THE THIRTY (30) DAYS IMMEDIATELY PRECEDING SUCH CLAIM OR TWENTY-FIVE THOUSAND DOLLARS ($25,000). THIS LIMIT IS CUMULATIVE AND ALL PAYMENTS UNDER THIS AGREEMENT ARE AGGREGATED TO CALCULATE SATISFACTION OF THE LIMIT. THE EXISTENCE OF MULTIPLE CLAIMS DOES NOT ENLARGE THE LIMIT. TO THE FULLEST EXTENT PERMITTED BY RELATED LAW, IN NO EVENT SHALL SURECAVE, OR ANY PROVIDER OF INFORMATION USED BY SURECAVE IN PREPARING OR PROVIDING THE SERVICES, BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOST PROFITS OR REVENUE, OR LOST OR DAMAGED DATA, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF SURECAVE IS AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
Client shall indemnify, defend, and hold Surecave and its affiliates harmless from and against all claims, losses, liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys' fees) arising from a claim, suit or proceeding brought against Surecave by a third party arising out of or related to the use of the Services by the Client or Client's misrepresentation or breach of this Agreement.
(a) Surecave shall indemnify Client from and against any claims, losses, liabilities, damages, costs and expenses (including reasonable attorneys' fees) arising from a claim, suit or proceeding brought against Client by a third party to the extent it is based on a claim that the Services infringe a United States patent, copyright or trademark (each, an "Infringement Claim"). Surecave' obligations herein are conditioned upon: (i) Client providing Surecave prompt reasonable written notice of the Infringement Claim or threat thereof; (ii) Client giving Surecave full and exclusive authority for the conduct of the defense and settlement of the Infringement Claim and any subsequent appeal; and (iii) Client giving Surecave all information and assistance reasonably requested by Surecave in connection with the conduct of the defense and settlement of the Infringement Claim and any subsequent appeal.
(b) If an Infringement Claim has been made, or in Surecave' opinion is likely to be made, Surecave may, at its sole option and expense, either: (i) procure for Client the right to continue using the Services; or (ii) replace or modify the Services so that it becomes non-infringing. If neither of the foregoing options is reasonably available, Surecave may, at its sole option, immediately terminate both Parties' respective rights and obligations under this Agreement with regard to the Services, and refund to Client a pro-rata amount of any prepaid Fees actually paid by Client for the unused portion of such Services.
(c) Notwithstanding the foregoing, Surecave shall have no obligation to indemnify Client to the extent an Infringement Claim arises from (i) the combination, operation or use of the Services with any other software, data, products or materials not supplied by Surecave, (ii) the use of credit reports or Scores provided by third party information providers; (iii) the use of Services other than as expressly provided in this Agreement, or otherwise in violation of the terms and conditions of this Agreement; (iv) the alteration or modification of the Services; (v) Surecave' compliance with Client's designs, specifications or instructions; or (vi) Client's continued use of the Services after Surecave has informed Client of modifications or changes to the Services required to avoid the Infringement Claim.
(d) THIS SECTION SETS FORTH SURECAVE'S ENTIRE LIABILITY TO CLIENT AND CLIENT'S SOLE REMEDIES WITH RESPECT TO ANY THIRD PARTY INTELLECTUAL PROPERTY CLAIMS.
(a) Relationship of the Parties. The Parties shall at all times perform their respective obligations pursuant to this Agreement as independent contractors. The Parties acknowledge that this is a business relationship based on the express provisions of this Agreement and no partnership, joint venture, agency, fiduciary or employment relationship is intended or created by this Agreement. Neither Party is the legal representative or agent of, nor has the power or right to obligate, direct or supervise the daily affairs of the other Party, nor shall neither Party act or represent or hold itself out as such. The rights, duties, obligations and liabilities of the Parties shall be several and not joint, each Party being individually responsible only for its obligations as set forth in this Agreement.
(b) Force Majeure. Except for Client's obligations to pay the Fees for the Services provided to Client, neither Party shall be liable for any delay or failure in performance due to events outside the defaulting Party's reasonable control including without limitation, acts of God, acts of terrorism, war (declared or not declared), sabotage, insurrection, riot, acts of civil disobedience, acts of any government, accident, fire, explosion, flood, storm, earthquake, volcanic eruption, nuclear event, equipment failures, failures or fluctuations in electrical power, lighting, or telecommunications, labor disputes, failure or delay of shippers or unavailability of materials, components or equipment; provided that the defaulting Party notifies the other Party as soon as practicable and uses commercially reasonable efforts to resume performance.
(c) No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to create or confer and shall not be construed or operate as creating or conferring, any rights or remedies under or by reason of this Agreement, upon any consumer, applicant, resident, prospective resident, employee, prospective employee or person other than the Parties hereto and their successors and permitted assigns.
(d) Assignment. This Agreement may not be assigned by either Party hereto without the prior written consent of the other Party; provided, however, that Surecave may assign this Agreement at any time and without notice, in whole or in part, to its parent company, Surecave Inc., or to any subsidiary of Surecave, Inc., or any company otherwise affiliated with Surecave, Inc. or Surecave through common ownership and control. In the event Client changes its location, ownership, or control, Client agrees to notify Surecave in writing, within ten (10) days of such change ("Change"). In addition, Client may not assign or transfer any rights or obligations granted under this Agreement until any Change has been properly credentialed and approved by Surecave pursuant to Surecave' compliance requirements. A change in control constitutes a Change under this Agreement.
(e) Severability. If any provision, or part thereof, of this Agreement becomes or is declared invalid, illegal or unenforceable in any respect under any law, such provision, or part thereof, shall be null and void, and deemed deleted from this Agreement. The validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired.
(f) No Waiver. Any waiver is only valid to the extent expressly set forth in writing. A delay or omission by either Party to exercise its rights upon any event of noncompliance or default by the other Party shall not impair any such right or be construed to be a waiver thereof. A waiver by either of the Parties of any of the duties, conditions, or agreements of the other Party shall not be construed to be a waiver of any succeeding breach thereof or of any duty, condition, or agreement herein. Unless stated otherwise, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to any Party at law or in equity.
(g) Notice. Any notice or other communication required or permitted under this Agreement shall be deemed given: (i) when delivered by hand; (ii) when sent by facsimile with confirmation of receipt; (iii) 1 business day after sent by commercially recognized overnight service; or (iv) 5 business days after being sent by registered or certified mail, return receipt requested, postage prepaid. Notices to Surecave shall be sent to the attention of Surecave' Chief Compliance Officer at the address first set forth above. Notices to Client shall be sent to the authorized representative as set forth in the attached Client Profile as provided to Surecave by Client, or as otherwise communicated to Surecave in writing. Either Party may change its address for notice purposes by giving written notice to the other Party before the effective date of such change.
(h) Governing Law. This Agreement shall be governed in accordance with the laws of the United States of America and the State of California, without reference to its choice of law provisions. In the event of litigation arising out of or connected with this Agreement, Surecave and Client agree that the state or Federal courts located in the State of New York shall have exclusive jurisdiction, and each Party hereby waives any defenses it may have before such courts based on a lack of personal jurisdiction or inconvenient forum. The prevailing party shall be awarded its reasonable attorneys' fees and costs in any proceeding arising out of or related to this Agreement.
(i) Entire Agreement. This Agreement, including the Exhibits attached hereto set forth the entire understanding and agreement between Client and Surecave superseding any prior or contemporaneous oral or written agreements or representations, including all proposals, negotiations, or discussions heretofore had between the Parties related to the Services, except for any addendum or amendment to this Agreement that has been executed in accordance with these terms. This Agreement may only be amended by a written instrument signed by all Parties to this Agreement.
(j) Construction. Section headings of this Agreement have been added solely for convenience of reference and shall have no effect upon construction or interpretation of this Agreement. Unless the context otherwise requires, words importing the singular shall include the plural and vice-versa. The words "include," "includes" and "including" shall mean "include without limitation," "includes without limitation" and "including without limitation," it being the intention of the Parties that any listing following thereafter is illustrative and not exclusive or exhaustive. All references to "days" shall mean calendar days, unless otherwise specified. The Parties acknowledge that this Agreement was prepared by both Parties jointly, and any uncertainty or ambiguity shall not be interpreted against any one Party.
(l) Counterparts. This Agreement may be executed in any number of counterparts, each of which is deemed an original, and all taken together constitute one and the same instrument. If this Agreement is executed in counterparts, no signatory is bound until all Parties have duly executed this Agreement and all Parties have received a fully executed Agreement. Any signature transmitted by facsimile or e-mail (in .pdf, .tif, .jpeg, or a similar format), or a photocopy of such transmission, is deemed to constitute the original signature of such Party to this Agreement. The individuals signing below represent that they are authorized to do so by and on behalf of the Party for whom they are signing.
16) NOTICE OF PENALTY UNDER THE FCRA.
The FCRA imposes criminal penalties - including a fine, up to two years in prison, or both - against 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.
This is the service agreement to use TransUnion® SmartMove® ("Service Agreement"). Your acknowledgement and agreement to these terms, as well as the Terms and Conditions of the internet site you are accessing ("Site"), are required to access and/or use TransUnion SmartMove. You agree to be legally bound by these terms. This Service Agreement is made and entered into as by and between TransUnion Rental Screening Solutions, Inc. ("TURSS") and you/your company ("Subscriber", "You" or "Property Owner"). In consideration of the promises and mutual covenants hereinafter set forth, TURSS and Subscriber hereto agree as follows:
Scope of Agreement. This Agreement applies to any of those information services which Subscriber may desire to receive from TURSS and which TURSS offers to Subscriber via this Site. Such information services shall herein be collectively referred to as "Services" and all information derived therefrom shall be collectively referred to as "Services Information." Subscriber enters in this Agreement on behalf of itself and its affiliates under common ownership and control, all of which are referred to collectively as Subscriber.
Subscriber's Business. Subscriber certifies that it is utilizing the Services solely for assisting with making a residential or storage leasing decision.
Consumer Reporting Services.
3.1 Consumer Report Information. TURSS makes certain consumer report information services from consumer reporting databases, including but not limited to consumer credit reports and criminal record reports ("Consumer Report Information") available to its customers who have a permissible purpose for receiving such information in accordance with the Fair Credit Reporting Act (15 U.S.C. §1681 et seq.) including, without limitation, all amendments thereto ("FCRA"). For the purposes of this Agreement, the term "adverse action" shall have the same meaning as that term is defined in the FCRA.
3.2 FCRA Penalties. THE FCRA PROVIDES THAT ANY PERSON WHO KNOWINGLY AND WILLFULLY OBTAINS INFORMATION ON A CONSUMER FROM A CONSUMER REPORTING AGENCY UNDER FALSE PRETENSES SHALL BE FINED UNDER TITLE 18, OR IMPRISONED NOT MORE THAN TWO YEARS, OR BOTH.
3.3 Subscriber Certifications. Subscriber certifies that it shall request Consumer Report Information pursuant to the written authorization of the consumer who is the subject of the Consumer Report Information. Subscriber certifies that each such written authorization will expressly authorize Subscriber to obtain the Consumer Report Information, and will contain at a minimum the subject's name, address, social security number (where available) and signature. Subscriber shall use such Consumer Report Information solely for Subscriber's exclusive one-time use and pursuant to the consumer's written authorization use such information solely for assisting with making a residential or storage leasing decision, and for no other purpose, subject however, to the additional restrictions set forth herein. Moreover, if requested by TURSS, Subscriber agrees to, and shall, individually certify the permissible purpose for each Consumer Report Information it requests. Such individual certification shall be made by Subscriber pursuant to instructions provided from time to time to Subscriber by TURSS. Nothing in this certification, or elsewhere in this Agreement, is intended to allow Subscriber to purchase Consumer Report Information for the purpose of selling or giving the report, or information contained in or derived from it, to the subject of the report, or to any other third party, and Subscriber expressly agrees to refrain from such conduct.
3.4 Recommendations. Using Applicant and/or Tenant information provided to TURSS by Subscriber ("Applicant/Tenant Information"), TURSS will obtain consumer reports relating to each Applicant and/or Tenant and TURSS will evaluate the consumer reports ("Applicant/Tenant Reviews"). Based on the results of the Applicant/Tenant Reviews, TURSS will provide to Subscriber a Recommendation with respect to the Applicant and/or Tenant, based on the initial thresholds established by TURSS. Such thresholds, delivery specifications and decision criteria, and any changes thereto, shall be supplied or confirmed by Subscriber in writing. As part of the Recommendation service, TURSS shall also provide to Subscriber a sample letter containing information as to why the Applicant and/or Tenant was or was not approved. It is Subscriber's obligation, however, to ensure compliance with any legal obligations when providing any information to an Applicant and/or Tenant.
3.4.2 All Rental Decisions to be made by Subscriber. Subscriber acknowledges and agrees that TURSS provides only Recommendations as to actions concerning an Applicant or a Tenant, and further acknowledges and agrees that all decisions of whether or not to rent property to a particular Applicant or Tenant, as well as the length of and terms of any such rental, will be made by Subscriber. TURSS shall have no liability to Subscriber or to any Applicant, Tenant or other person or entity for any rental, or the failure to rent, to any Applicant or Tenant, or the terms of any such rental, regardless of whether or not Subscriber's decision was based on Recommendations, Consumer Report Information, public records, or other information provided to Subscriber by TURSS.
3.6 Compliance with Laws. Subscriber shall be responsible for compliance with all applicable federal (including, but not limited to the FCRA) and state legislation, regulations and judicial actions, as now or as may become effective, to which it is subject.
4.1 Fraud Prevention Services. TURSS offers several fraud prevention services that evaluate inquiry input elements against other input elements and/or against proprietary databases, to identify potential discrepancies and/or inaccuracies. Fraud prevention service messages may be delivered with Consumer Report Information as a convenience, but are not part of a consumer's file nor are they intended to be consumer reports. In the event Subscriber obtains any fraud prevention services from TURSS in conjunction with Consumer Report Information or as a stand alone service, Subscriber shall not use the fraud prevention services, in whole or in part, as a factor in establishing an individual's creditworthiness or eligibility for credit or insurance, or employment, nor for any other purposes under the FCRA. Moreover, Subscriber shall not take any adverse action, which is based in whole or in part on the fraud prevention services, against any consumer. As a result of information obtained from the fraud prevention services, it is understood that Subscriber may choose to obtain additional information from one or more additional independent sources. Any action or decision as to any individual which is taken or made by Subscriber based solely on such additional information obtained from such additional independent source(s) shall not be deemed prohibited by this paragraph.
4.2 Scores. Subscriber may request, in writing, that TURSS provide Subscriber certain scores (e.g. scores received from credit reporting agencies ("Bureau Score"), SmartMove, Score, CreditRetrieverSM Score), in connection with the delivery of a consumer report obtained hereunder, collectively referred to herein as "Scores" for Subscriber's exclusive use. TURSS agrees to perform such processing as reasonably practicable. Subscriber shall use Scores only in accordance with its permissible purpose under the FCRA and may store Scores solely for Subscriber's own use in furtherance of Subscriber's original purpose for obtaining the Scores. Subscriber shall not use the Scores for model development or model calibration and shall not reverse engineer the Scores.
4.2.1 Adverse Action Factors. Subscriber recognizes that factors other than the Scores may be considered in making a decision as to a consumer. Such other factors include, but are not limited to, the credit report, the individual account history, application information, and economic factors. TURSS may provide score reason codes to Subscriber, which are designed to indicate the principal factors that contributed to the Bureau Score, and may be disclosed to consumers as the reasons for taking adverse action, as required by the Equal Credit Opportunity Act ("ECOA") and its implementing Regulation ("Reg. B"). The Bureau Score itself, when accompanied by the corresponding reason codes, may also be disclosed to the consumer who is the subject of the Bureau Score. However, the Bureau Score itself may not be used as the reason for adverse action under Reg. B.
4.2.2 Confidentiality of Scores. The CreditRetrieverSM Score and the SmartMove Score are proprietary to TURSS and the BureauScore is proprietary to the credit reporting agency supplying the Bureau Score and, accordingly, without appropriate prior written consent, neither the CreditRetrieverSM Score, the SmartMove Score, or the Bureau Score may be sold, licensed, copied, reused, disclosed, reproduced, revealed or made accessible, in whole or in part, to any Person except: (a) as expressly permitted herein; (b) to those employees of Subscriber with a need to know and in the course of their employment; (c) to those third party processing agents of Subscriber who have executed an agreement that limits the use of the Scores by the third party only to the use permitted to Subscriber and contains the prohibitions set forth herein regarding model development, model calibration and reverse engineering; (d) when accompanied by the corresponding reason codes, to the consumer who is the subject of the Score; or (e) as required by law. Subscriber shall not, nor permit any third party to, publicly disseminate any results of the validations or other reports derived from the Scores without prior written consent.
4.2.3 Score Performance. Certain Scores are implemented with standard minimum exclusion criteria. TURSS shall not be liable to Subscriber for any claim, injury or damage suffered directly or indirectly by Subscriber as a result of any Subscriber requested changes to the exclusion criteria which result in normally excluded records being scored by such Scores. TURSS warrants that the scoring algorithms used in the computation of the scoring services, provided under this Agreement, ("Models") are empirically derived from credit data and are a demonstrably and statistically sound method of rank-ordering candidate records with respect to the purpose of the Scores when applied to the population for which they were developed, and that no scoring algorithm used by a Score uses a "prohibited basis" as that term is defined in ECOA and Reg. B promulgated thereunder. The Bureau Score may appear on a credit report for convenience only, but is not a part of the credit report nor does it add to the information in the report on which it is based.
4.3 Third Party Scores and Other Third Party Services. TURSS has the capability to offer scores derived from models built jointly with third parties, and other services provided by third parties, which are subject to additional warranties offered or terms imposed by such third parties. If desired by Subscriber, such third party scores and services shall be made available pursuant to separate agreement, which shall be appended as a schedule to this Agreement.
4.4 Subscriber Forms. TURSS may offer the ability to electronically maintain and make available to Subscriber, at Subscriber's request and direction, Subscriber's forms including, but not limited to, lease forms, lease addenda and consumer correspondence. Subscriber acknowledges and agrees that it is Subscriber's obligation to ensure the accuracy and completeness of the forms and to ensure its compliance with all applicable laws related to the use of such forms. TURSS makes no representations or warranties as to the content or use of such forms.
4.5 Subscriber Access. Subscriber agrees that TURSS may store data provided to Subscriber hereunder on behalf of Subscriber to be used by Subscriber solely for audit purposes and for no other purpose. All data stored on behalf of Subscriber by TURSS shall be owned by Subscriber and may not be modified in any manner.
5.1 Confidentiality. Subscriber shall hold all Services Information in confidence and shall not disclose the Services to any third party, except as required by law (i.e., an order of a court or data request from an administrative or governmental agency with competent jurisdiction) to be disclosed; provided however, that Subscriber shall provide TURSS ten (10) days prior written notice before the disclosure of such information pursuant to this Paragraph 5.1. However, this restriction shall not prohibit Subscriber from disclosing to the subject of the Consumer Report Information, who is the subject of an adverse action, the content of the Consumer Report Information as it relates to any such adverse action.
5.2 Web Site Access. TURSS will provide Subscriber with access to TURSS's web site (the "TURSS Site") so that Subscriber may, by accessing the TURSS Site, (i) initiate Applicant Reviews and Tenant Reviews and (ii) obtain or review TURSS's Recommendations to Subscriber. TURSS will assign one or more passwords and identification numbers ("Program Codes") to Subscriber for use in accessing the TURSS Site. Subscriber represents and warrants that it will use its best reasonable efforts to ensure that: (1) only authorized Subscriber employees have access to the TURSS Site through Workstations; (2) TURSS Services obtained by Subscriber via the TURSS Site are not accessible by unauthorized parties via Subscriber's connection to the Internet or otherwise; (3) all Passwords are kept confidential and secure by such authorized Subscriber employees (e.g., Subscriber shall ensure that Passwords are not stored on any Workstation nor other storage and retrieval system and/or media and that Internet browser caching functionality is not used to store Passwords; (4) each User ID and Password is used solely by the authorized Subscriber employee to whom such User ID and Password was issued; and (5) all documentation and other materials provided by TURSS to Subscriber under this Agreement are held in confidence by Subscriber (and accessible only to those Subscriber employees who Subscriber has authorized to use the TURSS Site). Subscriber shall immediately notify TURSS if a Subscriber user with access to Program Codes no longer works for Subscriber and shall be fully responsible for any use of the TURSS site by users accessing the site through the Program Codes assigned to the Subscriber. In the event of any compromise of security involving User Ids or Passwords, Subscriber shall immediately notify TURSS.
5.3 Safeguards. Each party shall implement, and shall take measures to maintain, reasonable and appropriate administrative, technical, and physical security safeguards ("Safeguards") to (a) insure the security and confidentiality of non-public personal information; (b) protect against anticipated threats or hazards to the security or integrity of non-public personal information; and (c) protect against unauthorized access or use of non-public personal information that could result in substantial harm or inconvenience to any consumer. When a consumer's first name or first initial and last name in combination with a social security number, driver's license or Identification Card Number, or account number, credit or debit card number, in combination with any required security code, access code, or password that would permit access to an individual's financial account ("Personal Information"), is delivered to Subscriber unencrypted, Subscriber shall implement and maintain reasonable security procedures and practices appropriate to the nature of the information and to protect the Personal Information from unauthorized access, destruction, use, modification, or disclosure. Subscriber shall notify TURSS in writing as soon as practicable but in no event later than forty-eight hours after which Subscriber becomes aware of any potential and/or actual misappropriation of, and/or any unauthorized disclosures of, any information provided to Subscriber by TURSS, including, but not limited to theft, loss or interception of Consumer Report Information, unauthorized use of TURSS subscriber codes and passwords, unauthorized entry to the facilities where TURSS data may have been accessible, or unauthorized release of or access to TURSS data by an employee or Agent of Subscriber. Subscriber shall fully cooperate with TURSS in any communications to consumers regarding the data incident and mitigating, to the extent practicable, any damages due to such misappropriation and/or unauthorized disclosure. Such cooperation shall include, but not necessarily be limited to, allowing TURSS to participate in the investigation of the cause and extent of such misappropriation and/or unauthorized disclosure. Such cooperation shall not relieve Subscriber of any liability it may have as a result of such a misappropriation and/or unauthorized disclosure. Moreover, without TURSS's prior consent, Subscriber shall make no public notification, including but not limited to press releases or consumer notifications, of the potential or actual occurrence of such misappropriation and/or unauthorized disclosure of any such information provided to Subscriber.
5.4 Authorized Requests. Subscriber shall use the Services: (a) for its certified permissible purpose above to assist in making a residential or storage leasing decision; (b) solely for Subscriber's exclusive one-time use; and (c) subject to the terms and conditions of this Agreement. Subscriber shall not request, obtain or use Services for any other purpose including, but not limited to, for the purpose of selling, leasing, renting or otherwise providing information obtained under this Agreement to any other party, whether alone, in conjunction with Subscriber's own data, or otherwise in any service which is derived from the Services. Services shall be requested by, and disclosed by Subscriber to only Subscriber's designated and authorized employees having a need to know and only to the extent necessary to enable Subscriber to use the Services in accordance with this Agreement. Subscriber shall ensure that such Subscriber designated and authorized employees shall not attempt to obtain any Services on themselves, associates, or any other person except in the exercise of their official duties.
5.5 Third Party Intermediaries. In the event Subscriber will utilize a third party intermediary (e.g., Internet service provider or other network provider) for the purpose of receiving Services, Subscriber shall first enter into an agreement with such third party under which such third party acts solely as a network conduit for the delivery of the Services to Subscriber and which prohibits such third party from using, or otherwise accessing, the Services for any other purpose. Subscriber shall be solely liable for any actions or omissions of such third parties which result in a breach of this Agreement.
5.6 Rights to Services. Subscriber shall not attempt, directly or indirectly, to reverse engineer, decompile, or disassemble Services or any confidential or proprietary criteria developed or used by TURSS relating to the Services provided under this Agreement. Except as explicitly set forth in this Agreement, the entire right, title and interest in and to the Services shall at all times vest exclusively in TURSS. TURSS reserves all rights not explicitly granted to Subscriber under this Agreement.
5.7 Fees and Payments. Though Subscriber has the option to request that the applicant/prospective tenant pay for the Services, the Subscriber is ultimately responsible to TURSS for the full payment of the Services. The fees associated with the Services are as stated on this website and are incorporated by reference. Upon delivery of the Services, Subscriber will be responsible for immediate payment, and outstanding amounts will be subject to a late charge of one and one-half percent (1.5%) per month (18% per year) or the maximum allowed by law, whichever is less. If collection efforts are required, Subscriber shall pay all costs of collection, including reasonable attorney's fees. Any periodic and/or minimum Subscriber fees under this Agreement are non-refundable, in whole or in part, in the event of a termination of this Agreement. TURSS reserves the right to change the fees and charges from time to time, with such changes referenced on this website.
5.7.1 In addition, in the event that TURSS's cost of rendering Services increases as a result of federal, state or local laws, ordinances or other regulatory, administrative or governmental acts, then TURSS may implement a surcharge subject to the following: (a) any surcharge will be applicable generally to TURSS's customers; and (b) any surcharge will be applied only to services pertaining to consumers in the geographic area so affected. A legislative surcharge is imposed on certain types of reports pertaining to consumers residing in the United States, and an additional surcharge is imposed on certain reports pertaining to only Colorado residents.
5.8 Term, Termination and Survival. The term of this Agreement shall commence upon the agreeing to the terms of this Agreement and shall remain in effect until terminated by any party hereto for any reason whatsoever.
5.8.1 With the exception of TURSS's obligation to provide Services under this Agreement, all provisions of this Agreement shall survive any such termination of this Agreement including, but not limited to, all restrictions on Subscriber's use of Services Information. Moreover, any such termination shall not relieve Subscriber of any fees or other payments due to TURSS through the date of any such termination nor affect any rights, duties or obligations of either party that accrue prior to the effective date of any such termination.
5.9 Limited Warranty. TURSS represents and warrants that the Services will be provided in a professional and workmanlike manner consistent with industry standards. TURSS DOES NOT WARRANT THE SERVICES TO BE UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICES WILL MEET SUBSCRIBER'S REQUIREMENTS. THE WARRANTY SET FORTH IN THIS SECTION 5.9 IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES THAT MIGHT BE IMPLIED FROM A COURSE OF PERFORMANCE OR DEALING OR TRADE USAGE OR WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5.10 Limitation of Liability. TURSS'S SOLE LIABILITY, AND SUBSCRIBER'S SOLE REMEDY, FOR VIOLATIONS OF THIS AGREEMENT BY TURSS OR FOR BREACH OF TURSS'S OBLIGATIONS SHALL BE THE CORRECTION OF ANY DEFECTIVE SERVICE OR THE REFUND OF FEES PAID FOR SAME.
5.10.1 IN NO EVENT SHALL TURSS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF GOOD WILL AND LOST PROFITS OR REVENUE, WHETHER OR NOT SUCH LOSS OR DAMAGE IS BASED IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, INDEMNITY, OR OTHERWISE, EVEN IF TURSS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
5.10.2 ADDITIONALLY, TURSS SHALL NOT BE LIABLE TO SUBSCRIBER FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT BROUGHT MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION HAS ACCRUED.
5.11 Assignment and Subcontracting. Neither party may assign or otherwise transfer this Agreement, in whole or in part without the prior written consent of the other. Notwithstanding the foregoing, TURSS may assign or transfer this Agreement to a wholly-owned subsidiary or in the event of a purchase of substantially all of TURSS's assets or in the event of corporate form reorganization (e.g., LLC to C-Corporation). Moreover, TURSS shall have the unrestricted right to subcontract the Services to be provided to Subscriber by TURSS under this Agreement; provided however, that such subcontracting shall not relieve TURSS of its obligations under this Agreement. The limited warranty and limitation of liability provisions set forth in this Agreement shall also apply for the benefit of TURSS's licensors, subcontractors and agents.
5.12 No Waiver. No failure on the part of either party to enforce any covenant, agreement, or condition of this Agreement shall operate as a discharge of such covenant, agreement, or condition, or render the same invalid, or impair the right of either party to enforce the same in the event of any subsequent breach by the other party.
5.13 Independent Contractors. This Agreement is not intended to create or evidence any employer-employee arrangement, agency, partnership, joint venture, or similar relationship.
5.14 Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.
5.15 Force Majeure. TURSS shall not be liable for any delay in performance or failure to perform under this Agreement if such delay or failure us caused by conditions beyond TURSS' reasonable control.
5.16 Audit Rights. During the term of this Agreement and for a period of five (5) years thereafter, TURSS may audit Subscriber's policies, procedures and records which pertain to this Agreement, to ensure compliance with this Agreement, upon reasonable notice and during normal business hours.
5.17 Governing Law. This Agreement shall be construed and governed by the laws of the State of Illinois, without reference to the choice of law principles thereof.
5.18 Notices. Subscriber acknowledges and agrees that any notice provided by TURSS to any electronic mail address provided by Subscriber shall suffice for proper notice under this Agreement. Additionally, all of Subscriber's communications or notices required or permitted by this Agreement shall be sufficiently given for all purposes hereunder if given in writing and delivered to TURSS (i) personally, (ii) by United States first class mail, (iii) by reputable overnight delivery service, (iv) by electronic mail, or (v) by facsimile. All notices delivered in accordance with this Section for TURSS shall be sent to the appropriate address or number, as set forth below:
TURSS: TransUnion Rental Screening Solutions
6430 S. Fiddler's Green Circle, Suite 500,
Greenwood Village, CO 80111
5.19 Trademarks. Both Subscriber and TURSS shall submit to the other party for written approval, prior to use, distribution, or disclosure, any material including, but not limited to, all advertising, promotion, or publicity in which any trade name, trademark, service mark, and/or logo (hereinafter collectively referred to as the "Marks") of the other party are used (the "Materials"). Both parties shall have the right to require, at each party's respective discretion and as communicated in writing, the correction or deletion of any misleading, false, or objectionable material from any Materials. Neither party shall remove any of the other party's Marks from any information materials or reports provided to the other party and shall comply with the other party's instructions with respect to the use of any such Marks. Moreover, when using the other party's Marks pursuant to this Agreement, a party shall take all reasonable measures required to protect the other party's rights in such Marks, including, but not limited to, the inclusion of a prominent legend identifying such Marks as the property of the other party. In using each other's Marks pursuant to this Agreement, each party acknowledges and agrees that (i) the other party's Marks are and shall remain the sole properties of the other party, (ii) nothing in this Agreement shall confer in a party any right of ownership in the other party's Marks, and (iii) neither party shall contest the validity of the other party's Marks. Notwithstanding anything in this Agreement to the contrary, without the prior written approval of Subscriber, TURSS shall have the right to disclose to third parties Subscriber's marks in consumer credit reports containing Subscriber's account information.
5.20 By clicking "I Accept," Subscriber acknowledges receipt of a copy of the Federal Trade Commission's "Notice to Users of Consumer Reports: Obligations of Users Under the FCRA" and a copy of the Federal Trade Commission's "Notices to Furnishers of Information: Obligations of Furnishers Under the FCRA".
5.21 The individual executing this Agreement has direct knowledge of all facts certified and the authority to both execute this Agreement on behalf of Subscriber and bind Subscriber to the terms of this Agreement.
5.22 ID Manager Service: In connection with the Services, Subscriber desires to obtain TransUnion's ID Manager Service pursuant to the following additional terms and conditions:
5.22.1 With respect to request for ID Manager Service, Subscriber hereby certifies that its use of the ID Manager Service will be requested, obtained and used for one or more of the following permitted uses as described in, and as may be interpreted from time to time, by competent legislative, regulatory or judicial authority, as being encompassed by, Section (6802) (e) of the Gramm-Leach-Bliley Act (GLB), Title V, Subtitle A, Financial Privacy (15 U.S.C. § 6801-6809) and the United States Federal Trade Commission rules promulgated thereunder.
• To protect against or prevent actual fraud, unauthorized transactions, claims or other liability; or
• To comply with Federal, State or local laws, rules and other applicable legal requirements.
5.22.2 Subscriber further represents that:
(a) Subscriber shall not request, obtain or use such ID Manager Service for any other purpose including, but not limited to, in whole or in part, as a factor in establishing an individual's creditworthiness or eligibility for (i) credit or insurance, or (ii) employment, nor for any other purpose under the FCRA. Moreover, Subscriber shall not take any adverse action, which is based in whole or in part on the ID Manager Service, against any consumer.
(b) Subscriber shall comply with all other applicable federal, state and local laws, statutes, rules and regulations including, but not limited to, the Drivers Privacy Protection Act.
5.22.3 To the extent that the ID Manager Service requested by Subscriber utilize, in whole or in part, Consumer Reports as defined in the FCRA, Subscriber certifies that it will request and use each such request ID Manager Service solely for one of the permissible purposes certified below:
• In connection with a credit transaction involving the individual on whom the information is to be furnished and involving the extension of credit to the individual.
• Pursuant to the written authorization of the individual who is subject of the individual ID Manager Service request.
• In connection with a business transaction initiated by the individual.
5.22.4 Subscriber expressly acknowledges and agrees that where the ID Manager Service to be provided to Subscriber under this Agreement utilizes Consumer Reports TURSS expresses no opinion regarding a Consumer's creditworthiness in rendering such ID Manager Service. Moreover, in the event Subscriber's requested ID Manager Service utilize, in whole or in part, Consumer Reports, without limiting Subscriber's obligations set forth elsewhere in this Agreement, Subscriber shall comply with any and all adverse action notice requirements of the FCRA.
Entire Agreement. THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ALL EXHIBITS AND ATTACHMENTS HERETO, CONSTITUTES THE ENTIRE AGREEMENT BETWEEN TURSS AND SUBSCRIBER AND SUPERSEDES ALL PREVIOUS AGREEMENTS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, SOLELY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. THIS AGREEMENT MAY NOT BE ALTERED, AMENDED, OR MODIFIED EXCEPT BY WRITTEN INSTRUMENT SIGNED BY THE DULY AUTHORIZED REPRESENTATIVES OF BOTH PARTIES.
NOTICE TO USERS OF CONSUMER REPORTS:
NOTICE TO FURNISHERS OF INFORMATION: OBLIGATIONS OF FURNISHERS UNDER THE FCRA
All furnishers of consumer reports must comply with all applicable regulations. Information about applicable regulations currently in effect can be found at the Consumer Financial Protection Bureau's website, www.consumerfinance.gov/learnmore.
NOTICE TO FURNISHERS OF INFORMATION:
OBLIGATIONS OF FURNISHERS UNDER THE FCRA
The federal Fair Credit Reporting Act (FCRA), 15 U.S.C. 1681-1681y, imposes responsibilities on all persons who furnish information to consumer reporting agencies (CRAs). These responsibilities are found in Section 623 of the FCRA, 15 U.S.C. 1681s-2. State law may impose additional requirements on furnishers. All furnishers of information to CRAs should become familiar with the applicable laws and may want to consult with their counsel to ensure that they are in compliance. The text of the FCRA is available at the website of the Consumer Financial Protection Bureau (CFPB): www.consumerfinance.gov/learnmore. A list of the sections of the FCRA cross-referenced to the U.S. Code is at the end of this document.
Section 623 imposes the following duties upon furnishers:
The FCRA requires furnishers to comply with federal regulations dealing with the accuracy of information provided to CRAs by furnishers. Federal regulations and guidelines are available at www.consumerfinance.gov/learnmore. Section 623(e).
General Prohibition on Reporting Inaccurate Information
The FCRA prohibits information furnishers from providing information to a CRA that they know or have reasonable cause to believe is inaccurate. However, the furnisher is not subject to this general prohibition if it clearly and conspicuously specifies an address to which consumers may write to notify the furnisher that certain information is inaccurate. Section 623(a)(1)(A) and (a)(1)(C).
Duty to Correct and Update Information
If at any time a person who regularly and in the ordinary course of business furnishes information to one or more CRAs determines that the information provided is not complete or accurate, the furnisher must provide complete and accurate information to the CRA. In addition, the furnisher must notify all CRAs that received the information of any corrections, and must thereafter report only the complete and accurate information. Section 623(a)(2).
Duties After Notice of Dispute from Consumer
If a consumer notifies a furnisher, at an address specified by the furnisher for such notices, that specific information is inaccurate, and the information is, in fact, inaccurate, the furnisher must thereafter report the correct information to CRAs. Section 623(a)(1)(B).
If a consumer notifies a furnisher that the consumer disputes the completeness or accuracy of any information reported by the furnisher, the furnisher may not subsequently report that information to a CRA without providing notice of the dispute. Section 623(a)(3).
Furnishers must comply with federal regulations that identify when an information furnisher must investigate a dispute made directly to the furnisher by a consumer. Under these regulations, furnishers must complete an investigation within 30 days (or 45 days, if the consumer later provides relevant additional information) unless the dispute is frivolous or irrelevant or comes from a "credit repair organization." www.consumerfinance.gov. Section 623(a)(8). Federal regulations are available at Section 623(a)(8).
Duties After Notice of Dispute from Consumer Reporting Agency
If a CRA notifies a furnisher that a consumer disputes the completeness or accuracy of information provided by the furnisher, the furnisher has a duty to follow certain procedures. The furnisher must:
• Conduct an investigation and review all relevant information provided by the CRA, including information given to the CRA by the consumer. Section 623(b)(1)(A) and (b)(1)(B).
• Report the results to the CRA that referred the dispute, and, if the investigation establishes that the information was, in fact, incomplete or inaccurate, report the results to all CRAs to which the furnisher provided the information that compile and maintain files on a nationwide basis. Section 623(b)(1)(C) and (b)(1)(D).
• Complete the above steps within 30 days from the date the CRA receives the dispute (or 45 days, if the consumer later provides relevant additional information to the CRA). Section 623(b)(2).
• Promptly modify or delete the information, or block its reporting. Section 623(b)(1)(E).
Duty to Report Voluntary Closing of Credit Accounts:
If a consumer voluntarily closes a credit account, any person who regularly and in the ordinary course of business furnished information to one or more CRAs must report this fact when it provides information to CRAs for the time period in which the account was closed. Section 623(a)(4).
Duty to Report Dates of Delinquencies:
If a furnisher reports information concerning a delinquent account placed for collection, charged to profit or loss, or subject to any similar action, the furnisher must, within 90 days after reporting the information, provide the CRA with the month and the year of the commencement of the delinquency that immediately preceded the action, so that the agency will know how long to keep the information in the consumer's file. Section 623(a)(5)
Any person, such as a debt collector, that has acquired or is responsible for collecting delinquent accounts and that reports information to CRAs may comply with the requirements of Section 623(a)(5) (until there is a consumer dispute) by reporting the same delinquency date previously reported by the creditor. If the creditor did not report this date, they may comply with the FCRA by establishing reasonable procedures to obtain and report delinquency dates, or, if a delinquency date cannot be reasonably obtained, by following reasonable procedures to ensure that the date reported precedes the date when the account was placed for collection, charged to profit or loss, or subjected to any similar action. Section 623(a)(5).
Duties of Financial Institutions When Reporting Negative Information
Financial institutions that furnish information to "nationwide" consumer reporting agencies, as defined in Section 603(p), must notify consumers in writing if they may furnish or have furnished negative information to a CRA. Section 623(a)(7). The CFPB has prescribed model disclosures, 12 CFR Part 222, App.B.
Duties When Furnishing Medical Information
A furnisher whose primary business is providing medical services, products, or devices (and such furnisher's agents or assignees) is a medical information furnisher for the purposes of the FCRA and must notify all CRAs to which it reports of this fact. Section 623(a)(9). This notice will enable CRAs comply with their duties under Section 604(g) when reporting medical information.
Duties When ID Theft Occurs
All furnishers must have in place reasonable procedures to respond to notifications from CRAs that information furnished is the result of identity theft, and to prevent refurnishing the information in the future. A furnisher may not furnish information that a consumer has identified as resulting from identity theft unless the furnisher subsequently knows or is informed by the consumer that the information is correct. Section 623(a)(6). If a furnisher learns that it has furnished inaccurate information due to identity theft, it must notify each CRA of the correct information and must thereafter report only complete and accurate
information. Section 623(a)(2). When any furnisher of information is notified pursuant to the procedures set forth in Section 605B that a debt has resulted from identity theft, the furnisher may not sell, transfer, or place for collection the debt except in certain limited circumstances. Section 615(f).
The CFPB's website, www.consumerfinance.gov/learnmore, has more information about the FCRA, including publications for businesses and the full text of the FCRA.
Citations for FCRA sections in the U.S. Code, 15 U.S. C § 1681 et seq.:
Section 602 15 U.S.C. 1681
Section 603 15 U.S.C. 1681a
Section 604 15 U.S.C. 1681b
Section 605 15 U.S.C. 1681c
Section 605A 15 U.S.C. 1681c-1
Section 605B 15 U.S.C. 1681c-2
Section 606 15 U.S.C. 1681d
Section 607 15 U.S.C. 1681e
Section 608 15 U.S.C. 1681f
Section 609 15 U.S.C. 1681g
Section 610 15 U.S.C. 1681h
Section 611 15 U.S.C. 1681i
Section 612 15 U.S.C. 1681j
Section 613 15 U.S.C. 1681k
Section 614 15 U.S.C. 1681l
Section 615 15 U.S.C. 1681m
Section 616 15 U.S.C. 1681n
Section 617 15 U.S.C. 1681o
Section 618 15 U.S.C. 1681p
Section 619 15 U.S.C. 1681q
Section 620 15 U.S.C. 1681r
Section 621 15 U.S.C. 1681s
Section 622 15 U.S.C. 1681s-1
Section 623 15 U.S.C. 1681s-2
Section 624 15 U.S.C. 1681t
Section 625 15 U.S.C. 1681u
Section 626 15 U.S.C. 1681v
Section 627 15 U.S.C. 1681w
Section 628 15 U.S.C. 1681x
Section 629 15 U.S.C. 1681y
OBLIGATIONS OF USERS UNDER THE FCRA
The Fair Credit Reporting Act (FCRA),15 U.S.C. 1681-1681y, requires that this notice be provided to inform users of consumer reports of their legal obligations. State law may impose additional requirements. The text of the FCRA is set forth in full at the Federal Trade Commission's Website at www.ftc.gov/credit. At the end of this document is a list of United States Code citations for the FCRA. Other information about user duties is also available at the Commission's Web site. Users must consult the relevant provisions of the FCRA for details about their obligations under the FCRA.
The first section of this summary sets forth the responsibilities imposed by the FCRA on all users of consumer reports. The subsequent sections discuss the duties of users of reports that contain specific types of information, or that are used for certain purposes, and the legal consequences of violations. If you are a furnisher of information to a consumer reporting agency (CRA), you have additional obligations and will receive a separate notice from the CRA describing your duties as a furnisher.
I. OBLIGATIONS OF ALL USERS OF CONSUMER REPORTS
A. Users Must Have a Permissible Purpose
Congress has limited the use of consumer reports to protect consumers' privacy. All users must have a permissible purpose under the FCRA to obtain a consumer report. Section 604 contains a list of the permissible purposes under the law. These are:
• As ordered by a court or a federal grand jury subpoena. Section 604(a)(1)
• As instructed by the consumer in writing. Section 604(a)(2)
• For the extension of credit as a result of an application from a consumer, or the review or collection of a consumer's account. Section 604(a)(3)(A)
• For employment purposes, including hiring and promotion decisions, where the consumer has given written permission. Sections 604(a)(3)(B) and 604(b)
• For the underwriting of insurance as a result of an application from a consumer. Section 604(a)(3)(C)
• When there is a legitimate business need, in connection with a business transaction that is initiated by the consumer. Section 604(a)(3)(F)(i)
• To review a consumer's account to determine whether the consumer continues to meet the terms of the account. Section 604(a)(3)(F)(ii)
• To determine a consumer's eligibility for a license or other benefit granted by a governmental instrumentality required by law to consider an applicant's financial responsibility or status. Section 604(a)(3)(D)
• For use by a potential investor or servicer, or current insurer, in a valuation or assessment of the credit or prepayment risks associated with an existing credit obligation. Section 604(a)(3)(E)
• For use by state and local officials in connection with the determination of child support payments, or modifications and enforcement thereof. Sections 604(a)(4) and 604(a)(5)
In addition, creditors and insurers may obtain certain consumer report information for the purpose of making "prescreened" unsolicited offers of credit or insurance. Section 604(c). The particular obligations of users of "prescreened" information are described in Section VII below.
B. Users Must Provide Certifications
Section 604(f) prohibits any person from obtaining a consumer report from a consumer reporting agency (CRA) unless the person has certified to the CRA the permissible purpose(s) for which the report is being obtained and certifies that the report will not be used for any other purpose.
C. Users Must Notify Consumers When Adverse Actions Are Taken
The term "adverse action" is defined very broadly by Section 603. "Adverse actions" include all business, credit, and employment actions affecting consumers that can be considered to have a negative impact as defined by Section 603(k) of the FCRA - such as denying or canceling credit or insurance, or denying employment or promotion. No adverse action occurs in a credit transaction where the creditor makes a counteroffer that is accepted by the consumer.
1. Adverse Actions Based on Information Obtained From a CRA
If a user takes any type of adverse action as defined by the FCRA that is based at least in part on information contained in a consumer report, Section 615(a) requires the user to notify the consumer. The notification may be done in writing, orally, or by electronic means. It must include the following:
• The name, address, and telephone number of the CRA (including a toll-free telephone number, if it is a nationwide CRA) that provided the report.
• A statement that the CRA did not make the adverse decision and is not able to explain why the decision was made.
• A statement setting forth the consumer's right to obtain a free disclosure of the consumer's file from the CRA if the consumer makes a request within 60 days.
• A statement setting forth the consumer's right to dispute directly with the CRA the accuracy or completeness of any information provided by the CRA.
2. Adverse Actions Based on Information Obtained From Third Parties Who Are Not Consumer Reporting Agencies
If a person denies (or increases the charge for) credit for personal, family, or household purposes based either wholly or partly upon information from a person other than a CRA, and the information is the type of consumer information covered by the FCRA, Section 615(b)(1) requires that the user clearly and accurately disclose to the consumer his or her right to be told the nature of the information that was relied upon if the consumer makes a written request within 60 days of notification. The user must provide the disclosure within a reasonable period of time following the consumer's written request.
3. Adverse Actions Based on Information Obtained From Affiliates
If a person takes an adverse action involving insurance, employment, or a credit transaction initiated by the consumer, based on information of the type covered by the FCRA, and this information was obtained from an entity affiliated with the user of the information by common ownership or control, Section 615(b)(2) requires the user to notify the consumer of the adverse action. The notice must inform the consumer that he or she may obtain a disclosure of the nature of the information relied upon by making a written request within 60 days of receiving the adverse action notice. If the consumer makes such a request, the user must disclose the nature of the information not later than 30 days after receiving the request. If consumer report information is shared among affiliates and then used for an adverse action, the user must make an adverse action disclosure as set forth in I.C.1 above.
D. Users Have Obligations When Fraud and Active Duty Military Alerts are in Files
When a consumer has placed a fraud alert, including one relating to identity theft, or an active duty military alert with a nationwide consumer reporting agency as defined in Section 603(p) and resellers, Section 605A(h) imposes limitations on users of reports obtained from the consumer reporting agency in certain circumstances, including the establishment of a new credit plan and the issuance of additional credit cards. For initial fraud alerts and active duty alerts, the user must have reasonable policies and procedures in place to form a belief that the user knows the identity of the applicant or contact the consumer at a telephone number specified by the consumer; in the case of extended fraud alerts, the user must contact the consumer in accordance with the contact information provided in the consumer's alert.
E. Users Have Obligations When Notified of an Address Discrepancy
Section 605(h) requires nationwide CRAs, as defined in Section 603(p), to notify users that request reports when the address for a consumer provided by the user in requesting the report is substantially different from the addresses in the consumer's file. When this occurs, users must comply with regulations specifying the procedures to be followed, which will be issued by the Federal Trade Commission and the banking and credit union regulators. The Federal Trade Commission's regulations will be available at www.ftc.gov/credit.
F. Users Have Obligations When Disposing of Records
Section 628 requires that all users of consumer report information have in place procedures to properly dispose of records containing this information. The Federal Trade Commission, the Securities and Exchange Commission, and the banking and credit union regulators have issued regulations covering disposal. The Federal Trade Commission's regulations may be found at www.ftc.gov/credit.
II. CREDITORS MUST MAKE ADDITIONAL DISCLOSURES
If a person uses a consumer report in connection with an application for, or a grant, extension, or provision of, credit to a consumer on material terms that are materially less favorable than the most favorable terms available to a substantial proportion of consumers from or through that person, based in whole or in part on a consumer report, the person must provide a risk-based pricing notice to the consumer in accordance with regulations to be jointly prescribed by the Federal Trade Commission and the Federal Reserve Board. Section 609(g) requires a disclosure by all persons that make or arrange loans secured by residential real property (one to four units) and that use credit scores. These persons must provide credit scores and other information about credit scores to applicants, including the disclosure set forth in Section 609(g)(1)(D) ("Notice to the Home Loan Applicant").
III. OBLIGATIONS OF USERS WHEN CONSUMER REPORTS ARE OBTAINED FOR EMPLOYMENT PURPOSES
A. Employment Other Than in the Trucking Industry
If information from a CRA is used for employment purposes, the user has specific duties, which are set forth in Section 604(b) of the FCRA. The user must:
• Make a clear and conspicuous written disclosure to the consumer before the report is obtained, in a document that consists solely of the disclosure, that a consumer report may be obtained.
• Obtain from the consumer prior written authorization. Authorization to access reports during the term of employment may be obtained at the time of employment.
• Certify to the CRA that the above steps have been followed, that the information being obtained will not be used in violation of any federal or state equal opportunity law or regulation, and that, if any adverse action is to be taken based on the consumer report, a copy of the report and a summary of the consumer's rights will be provided to the consumer.
• Before taking an adverse action, the user must provide a copy of the report to the consumer as well as the summary of consumer's rights. (The user should receive this summary from the CRA.) A Section 615(a) adverse action notice should be sent after the adverse action is taken.
An adverse action notice also is required in employment situations if credit information (other than transactions and experience data) obtained from an affiliate is used to deny employment. Section 615(b)(2)
The procedures for investigative consumer reports and employee misconduct investigations are set forth below.
B. Employment in the Trucking Industry
Special rules apply for truck drivers where the only interaction between the consumer and the potential employer is by mail, telephone, or computer. In this case, the consumer may provide consent orally or electronically, and an adverse action may be made orally, in writing, or electronically. The consumer may obtain a copy of any report relied upon by the trucking company by contacting the company.
IV. OBLIGATIONS WHEN INVESTIGATIVE CONSUMER REPORTS ARE USED
Investigative consumer reports are a special type of consumer report in which information about a consumer's character, general reputation, personal characteristics, and mode of living is obtained through personal interviews by an entity or person that is a consumer reporting agency. Consumers who are the subjects of such reports are given special rights under the FCRA. If a user intends to obtain an investigative consumer report, Section 606 requires the following:
V. SPECIAL PROCEDURES FOR EMPLOYEE INVESTIGATIONS
Section 603(x) provides special procedures for investigations of suspected misconduct by an employee or for compliance with Federal, state or local laws and regulations or the rules of a self-regulatory organization, and compliance with written policies of the employer. These investigations are not treated as consumer reports so long as the employer or its agent complies with the procedures set forth in Section 603(x), and a summary describing the nature and scope of the inquiry is made to the employee if an adverse action is taken based on the investigation.
VI. OBLIGATIONS OF USERS OF MEDICAL INFORMATION
Section 604(g) limits the use of medical information obtained from consumer reporting agencies (other than payment information that appears in a coded form that does not identify the medical provider). If the information is to be used for an insurance transaction, the consumer must give consent to the user of the report or the information must be coded. If the report is to be used for employment purposes - or in connection with a credit transaction (except as provided in regulations issued by the banking and credit union regulators) - the consumer must provide specific written consent and the medical information must be relevant. Any user who receives medical information shall not disclose the information to any other person (except where necessary to carry out the purpose for which the information was disclosed, or as permitted by statute, regulation, or order).
VII. OBLIGATIONS OF USERS OF "PRESCREENED" LISTS
The FCRA permits creditors and insurers to obtain limited consumer report information for use in connection with unsolicited offers of credit or insurance under certain circumstances. Sections 603(l), 604(c), 604(e), and 615(d). This practice is known as "prescreening" and typically involves obtaining from a CRA a list of consumers who meet certain pre-established criteria. If any person intends to use prescreened lists, that person must (1) before the offer is made, establish the criteria that will be relied upon to make the offer and to grant credit or insurance, and (2) maintain such criteria on file for a three-year period beginning on the date on which the offer is made to each consumer. In addition, any user must provide with each written solicitation a clear and conspicuous statement that:
• Information contained in a consumer's CRA file was used in connection with the transaction.
• The consumer received the offer because he or she satisfied the criteria for credit worthiness or insurability used to screen for the offer.
• Credit or insurance may not be extended if, after the consumer responds, it is determined that the consumer does not meet the criteria used for screening or any applicable criteria bearing on credit worthiness or insurability, or the consumer does not furnish required collateral.
• The consumer may prohibit the use of information in his or her file in connection with future prescreened offers of credit or insurance by contacting the notification system established by the CRA that provided the report. The statement must include the address and toll-free telephone number of the appropriate notification system.
In addition, once the Federal Trade Commission by rule has established the format, type size, and manner of the disclosure required by Section 615(d), users must be in compliance with the rule. The FTC's regulations will be at www.ftc.gov/credit.
VIII. OBLIGATIONS OF RESELLERS
A. Disclosure and Certification Requirements
Section 607(e) requires any person who obtains a consumer report for resale to take the following steps:
• Disclose the identity of the end-user to the source CRA.
• Identify to the source CRA each permissible purpose for which the report will be furnished to the end-user.
• Establish and follow reasonable procedures to ensure that reports are resold only for permissible purposes, including procedures to obtain:
(1) the identity of all end-users;
(2) certifications from all users of each purpose for which reports will be used; and
(3) certifications that reports will not be used for any purpose other than the purpose(s) specified to the reseller. Resellers must make reasonable efforts to verify this information before selling the report.
B. Reinvestigations by Resellers
Under Section 611(f), if a consumer disputes the accuracy or completeness of information in a report prepared by a reseller, the reseller must determine whether this is a result of an action or omission on its part and, if so, correct or delete the information. If not, the reseller must send the dispute to the source CRA for reinvestigation. When any CRA notifies the reseller of the results of an investigation, the reseller must immediately convey the information to the consumer.
C. Fraud Alerts and Resellers
Section 605A(f) requires resellers who receive fraud alerts or active duty alerts from another consumer reporting agency to include these in their reports.
IX. LIABILITY FOR VIOLATIONS OF THE FCRA
Failure to comply with the FCRA can result in state government or federal government enforcement actions, as well as private lawsuits. Sections 616, 617, and 621. In addition, any person who knowingly and willfully obtains a consumer report under false pretenses may face criminal prosecution. Section 619.
The FTC's Web site, www.ftc.gov/credit, has more information about the FCRA, including publications for businesses and the full text of the FCRA.
Citations for FCRA sections in the U.S. Code, 15 U.S.C. § 1681 et seq.:
Section 602 15 U.S.C. 1681
Section 603 15 U.S.C. 1681a
Section 604 15 U.S.C. 1681b
Section 605 15 U.S.C. 1681c
Section 605A 15 U.S.C. 1681cA
Section 605B 15 U.S.C. 1681cB
Section 606 15 U.S.C. 1681d
Section 607 15 U.S.C. 1681e
Section 608 15 U.S.C. 1681f
Section 609 15 U.S.C. 1681g
Section 610 15 U.S.C. 1681h
Section 611 15 U.S.C. 1681i
Section 612 15 U.S.C. 1681j
Section 613 15 U.S.C. 1681k
Section 614 15 U.S.C. 1681l
Section 615 15 U.S.C. 1681m
Section 616 15 U.S.C. 1681n
Section 617 15 U.S.C. 1681o
Section 618 15 U.S.C. 1681p
Section 619 15 U.S.C. 1681q
Section 620 15 U.S.C. 1681r
Section 621 15 U.S.C. 1681s
Section 622 15 U.S.C. 1681s-1
Section 623 15 U.S.C. 1681s-2
Section 624 15 U.S.C. 1681t
Section 625 15 U.S.C. 1681u
Section 626 15 U.S.C. 1681v
Section 627 15 U.S.C. 1681w
Section 628 15 U.S.C. 1681x
Section 629 15 U.S.C. 1681y