PLEASE CAREFULLY READ THE TERMS AND CONDITIONS BEFORE CLICKING THE “ACCEPT” BUTTON FOR THIS AGREEMENT. CLICKING AND ACCEPTING INDICATES THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER (“YOU” OR “YOUR”), AND YOU AND YOUR EMPLOYER HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. For purposes of this Agreement only, you understand that AccuScreen, Inc is a consumer reporting agency and provides consumer reports and investigative consumer reports (“Screening Reports”) as defined by the Fair Credit Reporting Act (“FCRA”). ACCUSCREEN will furnish you with Screening Reports for employment background screening of applicants (“Applicant”), conditioned upon your compliance with this Agreement and fulfillment of all your obligations (including payment) under this Agreement (and any other agreements you and ACCUSCREEN may have).
YOU UNDERSTAND THAT THE PROVISIONS IN THIS AGREEMENT (INCLUDING WARRANTY DISCLAIMERS AND LIMITATIONS ON LIABILITY) REPRESENT AN AGREED UPON PRICE-RISK ALLOCATION. ACCUSCREEN WOULD NOT BE ABLE TO OFFER YOU ITS CURRENT PRICING STRUCTURE BUT FOR THIS ALLOCATION.
1. You and your company shall:
a) Comply with all applicable federal, state and local laws governing the access and use of Screening Reports. This includes, without limitation, providing any Applicant with any consents, disclosures and reports required by the FCRA, and obtaining the prior written consent of the Applicant before procuring a Screening Report on the Applicant.
b) Comply with FCRA Section 606(a) (2) and applicable state and local laws each time you request an “Investigative Consumer Report” (as defined by the FCRA and/or state and local laws) from ACCUSCREEN for any Applicant.
c) Assume full responsibility for the final verification of the Applicant’s identity.
d) Not request or rely on opinions from ACCUSCREEN regarding which applicant to hire.
e) Utilize independent legal advice regarding the use of any Screening Reports provided by ACCUSCREEN.
f) Keep strictly confidential in accordance with this Agreement any information and identification numbers and passwords you receive from or gain access through ACCUSCREEN (ACCUSCREEN may, upon request, have you provide a list of user names and e-mail addresses of all those authorized to access your account).
g) Not authorize any person to access the ACCUSCREEN site for the purpose of obtaining Screening Reports who is not your employee and who has not reviewed, understood and agreed in writing to be bound by the provisions of this Agreement.
h) Remain responsible for all your account activity and use your account only for your company’s internal business requirements, and for performing administrative functions pertaining thereto (i.e., HR and employment related functions). You may not sublicense, license, rent, sell, loan, give or perform marketing activities to make available all or any part of your account to a third party.
i) For six years from the date you receive the Screening Report, keep a copy or copies of: (1) the Screening Report, (2) the consent form you obtained from the Applicant for the applicable Screening Report, and (3) a description of how you used or relied on the Screening Report in making a decision about Applicant.
j) Pay ACCUSCREEN by VISA, MasterCard or other payment method as ACCUSCREEN may accept from time to time, for any ACCUSCREEN product or service.
k) ACCUSCREEN intellectual properties are protected by United States copyright laws and international treaty provisions. ACCUSCREEN owns and retains all right, title, and interest in and to the ACCUSCREEN websites, including all copyrights, patents, trade secret rights, trademarks (including service marks and logos), and other intellectual property rights therein. The rights granted to you under this Agreement do not transfer to you any title in any ACCUSCREEN intellectual properties, and you shall not acquire any rights except as expressly set forth in this Agreement. You shall not alter or remove any notices, graphics or text contained on or in any online content, Screening Reports, tests or underlying software (if any). You shall not copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert or apply any procedure or process to any online content, tests, Screening Reports, or underlying software to ascertain, derive and/or appropriate any source code, source listings, trade secret information or process contained therein.
2. ACCUSREEN shall:
a) Comply with applicable federal, state and local laws in the preparation and transmission of Screening Reports (including, without limitation, providing an Applicant with the substance of the report and information contained in the Screening Report, upon receipt of a written request from an Applicant).
b) Follow reasonable quality assurance procedures to assure the accuracy of the information contained in a Screening Report and maintain reasonable procedures designed to confirm, to the extent possible, that the reported public record information is complete and current.
c) Re-verify in writing, at no cost to you, any disputed Screening Report when either you or the Applicant makes a request in accordance with applicable law.
d) Maintain consumer report information and transaction details for a minimum of six (6) years.
e) Reserve the right to suspend or terminate your access to any ACCUSCREEN products or services, including the Screening Reports, if ACCUSCREEN believes you have breached all or portions of this Agreement.
3. ACCUSCREEN shall not: (1) provide any legal advice or counsel regarding your reliance upon or use of any Screening Reports; or, (2) assume any risk or liability associated with your use of the Screening Reports, ACCUSCREEN databases or information. ACCUSCREEN is not responsible for any failure to perform under this Agreement when such failure arises from or relates to any acts of God, public enemies, terrorism, civil war, insurrection, riot or demonstration, fire, flood, explosion, earthquake, accident, strike labor difficulties, work interruption or any other cause beyond its reasonable control.
4. LIMITED WARRANTY AND REMEDY- ACCUSCREEN warrants only that: (a) it will provide Screening Reports based on ACCUSCREEN’s then-current access to public databases and (b) it will follow reasonable quality assurance procedures regarding the accuracy of the information contained in a Screening Report and maintain reasonable procedures designed to confirm, to the extent possible, that the reported public record information is complete and current. If ACCUSCREEN materially breaches this warranty, it may, at its sole discretion, re-perform the applicable search or refund your fees for that search. You understand and agree that this is your sole and exclusive remedy for any breach of this warranty.
5. DISCLAIMER OF WARRANTIES. Screening Reports and other information in the ACCUSCREEN databases have been compiled from public records and other proprietary sources for the specific purposes of providing background information on Applicants for verification purposes. Neither ACCUSCREEN nor any of its suppliers represents or warrants that the information is current, complete or accurate. Except for the limited warranty in Section 4 above, ACCUSCREEN HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES REGARDING THE PERFORMANCE OF THE SERVICE AND THE ACCURACY, CURRENCY, OR COMPLETENESS OF ANY DATA, INFORMATION OR SCREENING REPORT, INCLUDING (WITHOUT LIMITATION) ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, AND ANY IMPLIED INDEMNITIES.
6. LIMITATION ON ACCUSCREEN’S LIABILITY. NEITHER ACCUSCREEN NOR ANY THIRD PARTY INVOLVED IN THE CREATION, PRODUCTION, OR DELIVERY OF ANY DATA, INFORMATION OR SCREENING REPORTS SHALL BE LIABLE TO YOU OR ANY APPLICANT FOR ANY DAMAGES OF ANY TYPE, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS, LOSS OF ANTICIPATED BENEFITS, OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE ANY DATA, INFORMATION OR SCREENING REPORTS, UNLESS SUCH DAMAGES AROSE OUT OF ACCUSCREEN’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
ACCUSCREEN’S LIABILITY SHALL IN NO EVENT EXCEED FEES ACTUALLY PAID BY YOU AND RECEIVED BY ACCUSCREEN FOR THE SCREENING REPORTS. Some states do not allow limitations on how long an implied warranty lasts and some states do not allow the exclusions or limitations of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
7. Your Indemnification of ACCUSCREEN. You shall indemnify, defend and hold ACCUSCREEN harmless from and against any and all claims, demands, costs, expenses and liabilities of any kind or nature whatsoever, including, without limitation, reasonable attorneys’ fees, expert witness fees and costs based upon any breach of this Agreement by you, including without limitation the illegal or wrongful use of any Screening Report, your gross negligence or intentional wrongdoing in connection with the use of the Screening Report, unsubstantiated claims brought by an Applicant, or your failure to comply with your obligations under the FCRA or other applicable federal, state or local laws.
8. Confidentiality. Each party shall treat all data and information, especially any Screening Reports, disclosed to you under this Agreement as strictly confidential. Screening Reports and the information and data contained in them shall not be distributed, sold or shared with any third party nor used by each party in any way except as expressly authorized by law. Disclosure of such information may be cause for criminal and/or civil legal action against either party and either party or any involved third party, and state agencies are not responsible for the defense of any such action.
ANY PERSON WHO WILLFULLY AND KNOWINGLY OBTAINS, RESELLS, TRANSFER, OR USES INFORMATION IN VIOLATION OF LAW MAY BE SUBJECT TO CRIMINAL CHARGES AND/OR LIABLE TO ANY INJURED PARTY FOR TREBLE DAMAGES, REASONABLE ATTORNEYS’ FEES, AND COSTS. OTHER CIVIL AND CRIMINAL LAWS MAY ALSO APPLY. Each party hereby affirms, agrees and covenants that such party is and shall remain in compliance with all applicable laws and the terms and conditions of this Agreement for the security and confidentiality of motor vehicle and driver records.
9. Term and Termination. This Agreement shall begin on the date you accept it, and continue until the first anniversary hereof (the “Initial Term”). After the Initial Term, it shall automatically renew for successive one-month periods (each one, a “Renewal Term”) unless either party provides notice of its intent not to renew within fifteen (15) days prior to the expiration of the then-current Initial Term or Renewal term (as the case may be). ACCUSCREEN may suspend or terminate this Agreement as described herein.
The first four paragraphs of this Agreement, 1(a), 1(f), 1(g), 1(i), 2(d), 3 through 11, and all your obligations under the “Employer Certification” provisions, below, shall survive any expiration or termination of this Agreement.
10. Priority of Documents. In the event there is a conflict between this Agreement and any other agreements between you and ACCUSCREEN, the relevant terms and conditions of this Agreement shall control.
11. General. This Agreement shall be governed by, construed and enforced in accordance with the internal laws of the State of Washington, without giving effect to principles and provisions thereof relating to conflict or choice of laws irrespective of the fact that any one of the parties is now or may become a resident of a different state. Venue for any action under this Agreement shall lie only in King County, Washington, USA. The parties hereby consent to personal jurisdiction over them by the courts within King County, Washington, USA and waive all objection and challenge to such venue and personal jurisdiction. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to any of the transactions contemplated by this Agreement. You may not assign or transfer, by operation of law or otherwise, any of your rights under this Agreement or delegate any duties under this Agreement to any third party without AccuScreen’s prior written consent, except for an assignment to your successors through merger, name change, consolidation, or sale of a majority of your stock or assets, and so long as such assignee continues in good faith to fulfill all your obligations hereunder. Any attempted assignment or transfer in violation of the foregoing will be void. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. In any controversy, claim or dispute arising out of or relating to this Agreement or the method or manner of performance thereof or the breach thereof, the prevailing party shall be entitled and awarded in addition to any other relief, its attorneys’ fees, expert witness fees and costs. If any term or provision of this Agreement or any application thereof to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Agreement or the application of such terms or provisions to person or circumstances other than those to which it is held invalid or unenforceable shall not be affected thereby and each term and provision of the Agreement shall be valid and enforceable to the fullest extent permitted by law. Nothing contained in this Agreement shall be deemed or construed by the parties hereto or by any third person to create the relationship of principal and agent or partnership or of any association between any of the parties hereto other than independent contracting parties. This Agreement shall be construed without any presumption or rule requiring that it might be construed against the party causing this Agreement, or any part of it to be drafted. Any notice, payment, demand, or communication required or permitted to be given by any provision of this Agreement shall be in writing and sent by telephone facsimile transmission, certified or registered mail with return receipt requested, or express courier or delivery service and addressed to you at the address noted below, then on record at ACCUSCREEN, or to such other address as you may from time to time specify by notice to ACCUSCREEN in writing. You may deliver notices to ACCUSCREEN at read Hillsborough County FL