END USER SERVICES AGREEMENT
By the entering your User ID and Password and clickng "Login' to First Priority Screening website you are agreeing to this End User Services Agreement (“Agreement”) by you the Subscriber(“End User”), and First Priority Background Screening, LLC. an Arizona limited liability company (“First Priority Screening a consumer reporting agency”) having a principal address as set forth at the end of this Agreement. First Priority Screening and End User are referred to in this Agreement collectively as the “Parties” and individually as a “Party.”
First Priority Screening and End User agree as follows:
1. Term. Subject to Section 15(b) of this Agreement, this agreement will continue in force, without any fixed date of termination (“Term”).
2. Consumer Reporting Services. Upon request by End User during the Term, First Priority Screening will provide End User with the reporting services offered by First Priority Screening (“Services”). Certain of the services consist of providing services and reports (“Consumer Reports”) which may bear on an individual’s (“Consumer’s”) credit standing, criminal history, driving history, or personal characteristics. These Consumer Reports are obtained from various sources including third party data vendors and state and local governmental agencies and are to be distributed to the End User solely for internal use in connection with a “permissible purpose” as such term is defined in the Fair Credit Reporting Act (15 USC § 1681, et seq.) (“FCRA”) between said End User and the individual Consumers to whom such Consumer Reports relate.
3. Performance. First Priority Screening will perform the Services in response to electronic requests provided by End User during the term and in the manner specified hereunder. Each such request will contain sufficient identifying information concerning the Consumer about whom information is requested to enable First Priority Screening to perform the Services.
4. Method of Performance. First Priority Screening will use commercially reasonable efforts to provide the Services expeditiously. End User expressly agrees that use of First Priority Screening’s Services is at End User’s sole risk.
5. Access to First Priority Screening’s Servers. All access to First Priority Screening’s reporting services by the End User is via the Internet. The End User acknowledges that the Internet is neither owned nor controlled by any one entity; and that therefore, First Priority Screening can make no guarantee that any given user will be able to access First Priority Screening's servers at any given time. First Priority Screening represents that it will use commercially reasonable efforts to avoid or minimize service interruption.
6. Exclusive Limited Warranty. First Priority Screening hereby warrants to End User that First Priority Screening has obtained the Consumer Reports in a legitimate and lawful manner and that First Priority Screening will use reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the Consumer Report relates. However, First Priority Screening does not guarantee the accuracy or reliability of the underlying information within the Consumer Report. This warranty is the only warranty First Priority Screening gives End User with respect to the consumer report information and First Priority Screening’s Services. such warranty is in lieu of all other warranties, express or implied regarding accuracy, reliability or content. First Priority Screening does not warrant that any of the information contained in any report or response, or as reported by any third party or any court IS correct, complete, current, properly attributed, properly recorded, properly filed, properly docketed, legible, or otherwise accurate or usable for End User’s intended purpose. Upon notification that any Consumer Report information delivered to End User fails to meet the foregoing warranty, First Priority Screening will, at its election and sole discretion, either (a) deliver a replacement Consumer Report information to End User that conforms to the foregoing warranty or (b) refund or credit to End User all amounts paid to First Priority Screening for the particular Consumer Report information that fails to meet the foregoing warranty. The foregoing are End User’s sole remedies for breach of the foregoing warranty. First Priority Screening will not be liable for any damages, including lost profits, revenues, or business opportunities, or for any other direct, indirect, incidental, special, consequential, exemplary, or punitive damages of any kind as a result of any breach of the foregoing warranty.
7. Indemnification. End User will indemnify, defend, and hold First Priority Screening harmless from or against any and all liabilities, damages, losses, costs, and expenses including attorney fees arising out of or resulting from End User’s use of First Priority Screening’s Services under this Agreement. including all claims or actions asserted or brought against First Priority Screening by any third party resulting from or arising out of any asserted: (a) violation by End User of the FCRA or the Fair Housing Act (42 USC § 3601, et seq.) (“FHA”), as such laws are from time to time amended; (b) violation by End User of analogous state laws governing Consumer Reports; (c) violation by End User of laws governing the disclosure of Consumer Reports and other information on Consumers; or (d) negligent, grossly negligent, or intentional action or inaction by End User relating to the Services obtained from First Priority Screening.
8. Fees. For each response (including “no record” responses) to a request for Services made by End User, End User will pay First Priority Screening the fees set forth in the attached Pricing Schedule. First Priority Screening reserves the right to change the fees and charges in the Pricing Schedule at any time during the Term by giving End User at least thirty (30) days written notice. End User’s payment to First Priority Screening is due not later than fifteen (15) days from the date of First Priority Screening’s invoice. If End User does not pay invoiced amounts within this time period, it will also pay a carrying charge on the unpaid amount at the rate of one and one-half percent (1.5%) per month or the maximum allowed by law, whichever is less, and the User's service may be terminated or blocked at the option of First Priority Screening for balances over thirty (30) days. If payment is not received within forty-five (45) days of invoice the user’s account may be closed pending full payment. End User’s obligation to pay invoiced amounts and associated fees is absolute and unconditional and not subject to any offset, defense or counterclaim.
9. Taxes. End User will be solely responsible for all federal, state, and local taxes levied or assessed in connection with End User’s purchase or use of First Priority Screening’s Services.
10. Compliance with Law.
a. In performing this Agreement and in using information provided hereunder, both Parties will comply with all Federal, State, and local statutes, regulations, and rules applicable to Consumer Report information in effect during the Term, including, without limitation, the FCRA and FHA and as such laws are amended from time to time. End User represents that it is experienced, knowledgeable, and competent to request, receive, and use Consumer Reporting services in accordance with applicable laws in all jurisdictions in which it does business.
b. End User acknowledges receipt of the Notice to Users of Consumer Reports: Obligations of Users under the Fair Credit Reporting Act and A Summary of Your Rights under the Fair Credit Reporting Act, a copy of which must be provided to Customer’s personnel (attached as Exhibit X-1 and X-2 respectively).
c. In addition to maintaining reasonable procedures to assure compliance with the FCRA and the confidentiality of PII contained in the Services, each Party certifies that it has implemented commercially available and reasonable security procedures and safeguards to prevent the unauthorized disclosure of Confidential Information and to maintain the confidentiality and the security of such information.
11. Certification and Use of Consumer Reports.
a. End User certifies that the information contained in the Services provided by First Priority Screening will be used only for the following permissible purpose, as indicated below, and that it will not use the information contained in the Reports for any other purpose:
For employment and/or volunteer purposes, including evaluating a consumer for employment, promotion, reassignment or retention as an employee and/or volunteer (FCRA § 604(a)(3)(B)).
In accordance with the written instructions of the consumer to whom it relates. (FCRA § 604(a)(2)).
For a legitimate business need for the information, in connection with a business transaction that is initiated by the consumer, such as for the purpose of tenant screening. (FCRA § 604(a)(3)(F)(i)).
For use by a potential investor or servicer, or current insurer, in connection with a valuation of, or an assessment of the credit or prepayment risks associated with an existing credit obligation. (FCRA § 604(a)(3)(E)).
b. If the Consumer Reports End User obtains from First Priority Screening are to be used for an employment purpose, End User certifies that prior to obtaining or causing a “consumer report” and/or “investigative consumer report” to be obtained, End User has obtained a clear and conspicuous disclosure in a document made in writing to the consumer, consisting solely of the disclosure, which explains that a consumer report and/or investigative consumer report may be obtained for employment purposes. This disclosure will satisfy all requirements identified in Section 606(a)(1) of the FCRA, as well as any applicable state or local laws. The End User also certifies that the consumer’s written authorization has been obtained to procure the consumer report. End User shall maintain the signed authorization form for a period of six (6) years.
c. If applicable, End User shall follow prescribed pre-adverse action procedures as prescribed in the FCRA and applicable state laws. This includes the requirement to provide a consumer with a copy of the Report and A Summary of Your Rights under the Fair Credit Reporting Act before taking any adverse action against the consumer, based in whole or in part, on the Services provided by First Priority Screening. If End User actually takes adverse action then after the appropriate waiting period, End User will issue to the consumer notice of the adverse action taken, including the statutorily required notices identified in Sections 604 and 615 of the FCRA.
d. End User further acknowledges that First Priority Screening is not legal counsel and does not provide legal advice. It is important that End User obtain and work closely with their own legal counsel to ensure that their overall screening program, including the use of the Services, complies with all applicable state and federal laws.
e. End User shall comply with all applicable state and federal laws regarding the use of the Services including the Fair Credit Reporting Act, (“FCRA”), and the Driver’s Privacy Protection Act (“DPPA”). End User will not use information contained in the Services to discriminate unlawfully against consumer or otherwise misuse the information, as provided by any applicable federal or state equal opportunity laws or regulations. End User is responsible for its own regulatory compliance and staying current with the applicable laws involved in the use of the Services.
f. End User shall hold the Services in strict confidence and all information contained within the Services will be treated as Confidential Information. The Services shall be requested by, and disclosed by End User only to End User’s designated and authorized employees having a need to know and only to the extent necessary to enable End User to use the Services in accordance with this Agreement. End User shall ensure that such 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.
g. End User certifies that they shall use any credit reports: (a) solely for the certified use(s) as indicated above; and (b) solely for their exclusive one-time use. End User shall not request, obtain or use the credit reports 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 end User’s own data, or otherwise in any service which is derived from the credit reports. End User certifies that unless it has otherwise notified First Priority Screening in writing, End User is not and during the term of this Agreement will not be a private detective, detective agency, investigative company, bail bondsman, attorney or law firm, credit or financial counseling firm, or "credit repair clinic" (each, a "Restricted Company"), and that End User will be the sole End User of all Consumer Reports. If End User is a Restricted Company, it may, at the sole discretion of First Priority Screening, order Consumer Reports only if an authorized officer certifies in writing that the Consumer Report will be used solely in connection with the Restricted Company's own "employment purposes", i.e., for the purpose of evaluating the subject ("Consumer") for employment, promotion, reassignment, or retention as an employee
h. If the Services include motor vehicle information (“MVRs”), End User shall be responsible for understanding and for staying current with all specific state forms, certificates of use or other documents or agreements including any changes, supplements or amendments thereto imposed by the states (“Specific State Forms”) from which it will order MVRs. End User certifies that it has filed all applicable Specific State Forms required by individual states.
i. End User hereby certifies that, under the Investigative consumer reporting Agencies Act (“ICRA”), California Civil Code Sections 1786 et seq., and the Consumer Credit Reporting Agencies Act (“CCRAA”), California Civil Code Sections 1785.1 et seq., if End User’s Customer is located in the State of California, and/or the Customer’s request for and/or use of Services pertains to a California resident or worker, Customer will do the following: (i) When, at any time, Services are sought for employment purposes other than suspicion of wrongdoing or misconduct by the consumer who is the subject of the investigation, abide by the requirements of ICRA Section 1786.16(a) – (b).
12. Compliance with First Priority Screening Procedures.
a. End User agrees to conduct a reasonably diligent investigation of its End Users to satisfy itself that each is a legitimate user and has a “permissible purpose” as defined by the FCRA for requested services.
b. End user shall properly dispose of the information contained within the Services in a manner which will protect against unauthorized access or use thereof or any actions that would otherwise jeopardize the confidentiality of consumers’ personal identification information (“PII”) contained in the Services. This means having policies and procedures in place that require the burning, pulverizing, or shredding of papers containing personal information so that the information cannot practically be read or reconstructed. If such information is in electronic format, this includes having policies and procedures in place to destroy or erase such personal information so it cannot practically be read or reconstructed.
c. End User understands and agrees that, in order to ensure compliance with applicable laws, regulations or rules, including regulatory agency requirements, obligations under its contracts with its data providers, and First Priority Screening’s internal policies, First Priority Screening, or its designee, may conduct periodic reviews of End User’s use of the services provided by First Priority Screening and may, upon reasonable notice and during End User’s regular business hours, review End User’s records, processes and procedures related to End User’s use, storage and disposal of those Services, PII and Confidential Information, including performing site visits at End User’s premises. End User shall cooperate fully in connection with any such review, including bearing its own costs of such process. End User agrees to respond to any such inquiry within ten (10) business days, unless an expedited response is required by First Priority Screening. Violations of this Agreement, applicable law, regulations or rules, or applicable policies, discovered in any review by First Priority Screening will be subject to immediate action including, but not limited to, suspension or termination of the services by First Priority Screening as well as potential legal action, and/or referral to governmental regulatory agencies.
13. Intellectual Property
a. No Licenses. End User acknowledges that First Priority Screening has expended substantial time, effort, and funds to compile the Consumer Reports and that all information contained in the Services is and will continue to be the exclusive property of First Priority Screening. End User further acknowledges and agrees that first Priority Screening alone owns all rights, title, and interest in its website and its internet-based system, including all intellectual property rights embodied therein. End User understands that its use of the Services and the website grants End User no patent rights, copyright interest, or other rights, claims, or interests with respect to the software, forms, manuals, or other proprietary items provided to End Use by First Priority Screening in connection with Services.
b. Restrictions on Trademark Use. Neither Party will use, to use the trademarks, service marks, logos, names, or any other designations of proprietary information or designation of the other Party, , without such other Party’s prior written consent.
c. END USER ACKNOWLEDGES AND AGREES THAT ANY BACKGROUND SCREENING CRITERIA EMBODIED IN THE SERVICES HAVE BEEN DEVELOPED, ESTABLISHED BY OR APPROVED BY END USER AND THAT FIRST PRIORITY SCREENING BEARS NO RESPONSIBILITY FOR ESTABLISHING OR MAKING ANY DECISIONS BASED ON SUCH SCREENING CRITERIA.
14. Confidentiality.
a. Each Party acknowledges that during the Term, they may receive information from the other Party that is proprietary and confidential; including but not limited to Services pricing, method of compilation and delivery, and other items identified as “Confidential” at or near the time of disclosure will be treated and considered as Confidential. The Party receiving confidential information either directly or through any communication from the other Party will: (a) maintain the confidentiality of such information with the same degree of care, and no less than reasonable care, as it uses for its own proprietary and confidential information, (b) limit access to confidential information to those employees and third parties who have the need for such information and are under a duty of confidentiality to that Party, (c) not disclose the confidential information to any other person or entity, and (d) will not use the confidential information for any purpose other than performance under this Agreement.
b. Furthermore, End User agrees to not provide information about First Priority Screening’s Services to or other companies in the background screening industry, without written permission of First Priority Screening. End User will not distribute or sell Consumer Reports from First Priority Screening to other screening companies or to other third parties. All Services hereunder are provided to End User as an end user.
15. Amendments, Termination and Waiver
a. Amendments. This Agreement may be amended at any time, but only by written instrument signed by both Parties.
b. Termination. First Priority Screening may unilaterally and immediately terminate this Agreement, or take any lesser action First Priority Screening believes is appropriate, including but not limited to blocking End User’s access to the Services and/or charging End User a fee for auditing End User to ensure compliance, if First Priority Screening believes in its sole judgment, that End User has failed to comply with or has breached any obligation under this Agreement.
c. Waiver. No provision of this Agreement will be considered waived by First Priority Screening except in writing by authorized officer or agent.
16. Miscellaneous
a. Status. The Parties will perform their obligations hereunder as independent contractors. Nothing contained in this Agreement will be deemed to create any association, partnership, joint venture, or relationship of principal and agent.
b. Excusable Delays. Neither Party will be liable to the other for any delay or failure in its performance of any of the acts required by this Agreement when such delay or failure arises beyond the reasonable control of such Party, including, without limitation, acts of God, labor disputes, embargoes, earthquakes, rationing, acts of local, state or national governments or public agencies, utility or communication failures or delays, fire, flood, epidemics, riots and strikes.
c. Governing Law. This Agreement will be governed by and construed in accordance with the internal substantive laws of the State of Arizona. Any dispute, controversy or claim arising out of or in relation to this Agreement or the breach, termination or invalidity thereof, will be submitted, upon the demand of either Party, for binding arbitration before one arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in force. The arbitration will take place in Maricopa County, Arizona. The Parties agree that the arbitration award and any matter requiring injunctive or other provisional or emergency relief may be enforced in any court with jurisdiction. The prevailing Party in any arbitration or court proceedings will be entitled to recover its costs and expenses, including reasonable attorney fees and the arbitration fees, expenses, and arbitrator’s compensation. Any necessry court proceedings will be held in Maricopa County, Arizona. End User consents to venue and jurisdiction in Maricopa County, Arizona.
d. Severability. If any provision of this Agreement will be determined to be unlawful or unenforceable by binding arbitration or by a court of competent jurisdiction, then such provision will be deemed amended to conform with applicable laws or regulations or, if it cannot be so amended without materially altering the intention of the parties, it will be stricken from this Agreement and every other provision of this Agreement will remain in full force and effect.
e. Assignment. This Agreement will be binding upon and inure to the benefit of the successors of each of the Parties hereto, but will not be assignable by either Party without the prior written consent of the other. In the event of a Change of Control, of one of the Parties, the Party undergoing the Change of Control will notify the other Party as soon as reasonably possible.
f. Notice. Any notices required or permitted to be given under this Agreement will be in writing, addressed to the address set forth in the last page of this Agreement or such subsequent address of which the Party is notified in the manner provided for in this section. Notices delivered by certified mail or by electronic mail will constitute notice hereunder. All notices will be addressed to the other Party’s authorized representative.
g. No Third Parties. Neither this Agreement nor any provisions set forth herein are intended to, or will, create any rights in or confer any benefits upon any person other than the Parties hereto.
h. Complete Agreement. This Agreement sets forth the entire understanding of the Parties hereto with respect to the subject matter hereof and supercedes all prior letters of intent, agreements, covenants, arrangements, communications, representations, or warranties, whether oral or written, by any officer, employee, or representative of either Party relating thereto. This Agreement may be modified or supplemented only by a writing that refers explicitly to this Agreement and that is signed by authorized representatives on behalf of each party.
i. The descriptive heading contained are for convenience of reference only and shall not affe3ct in any way the meaning or interpretation of this Agreement.
The action of Subscriber in the use of and placing of orders from the First Priority Screening secured website certifies their acceptance of the previous Terms and Conditions of Use for the products and services supplied by First Priority Background Screening LLC to Subscriber.
