CHECKR, INC. SERVICES AGREEMENT
This Services Agreement together with any Orders (as defined below) (collectively, the “Agreement”) contains the terms and conditions that govern your access to and use of the Platform (as defined below) and is an agreement between Checkr, Inc. (“Checkr”) and you or the entity you represent (“Customer”, “You” or “Your”). This Agreement takes effect when You click the “Continue” button or check box presented with these terms or, if earlier, when You use any of Checkr’s service offerings (the “Effective Date”). You represent that You are lawfully able to enter into this agreement (e.g., You are not a minor). If You are entering into this Agreement and creating an Account for an entity, such as the company You work for, You represent that You have legal authority to bind that entity.
By entering into this Agreement and/or creating an Account, You are certifying that You have direct knowledge of the facts You are certifying to herein and certify and agree to the following:
- You certify that You will order and use the Reports only for (i) employment purposes, as defined by the FCRA, or (ii) the permissible purpose You selected when creating Your Account. Prior to ordering any Reports, You must obtain the Consumer’s written authorization, pursuant to Section 3 of the Agreement, and verify the Consumer’s identity using a government-issued identification, such as a driver’s license, passport, or state-issued identification card. You certify that You will notify Checkr immediately if Your permissible purpose changes for any reason. You also certify that You are the business type stated in Your Account and have a need for consumer credit information in connection with the evaluation of individuals for employment, promotion, reassignment or retention as an employee. See Section 3 of the Agreement for further requirements.
- While You acknowledge sole responsibility for compliance with California Civil Code Sections 1786.16(a)(5) and (b), if “Copy of Report to the Consumer” is selected in Your Order, You authorize Checkr to provide on Your behalf to each Consumer about whom You have requested a Report with a copy of the Report to the address provided by the Consumer.
- You acknowledge receipt of and certify that You have reviewed and fully understand the following three statutory notices:
- Summary of Your Rights Under the Fair Credit Reporting Act (16 C.F.R. Part 601) located at http://files.consumerfinance.gov/f/201504_cfpb_summary_your-rights-under-fcra.pdf
- Remedying the Effects of Identity Theft located at http://files.consumerfinance.gov/f/201410_cfpb_summary_remedying-the-effects-of-id-theft-fcra.pdf
- Notice to Users of Consumer Reports (16 C.F.R. Part 601) located at https://www.gpo.gov/fdsys/pkg/CFR-2012-title12-vol8/pdf/CFR-2012-title12-vol8-part1022-appN.pdf
You authorize the use of the documents and links above with Your Consumers via the Platform. Unless You elect to utilize the Checkr Hosted Platform, You agree to give Your Consumers the documents and links above when applicable.
- You certify and agree that You are solely responsible for reviewing Reports and performing the adverse action process, including the sending of pre-adverse and adverse action notices (collectively, the “Adjudication Process”), even if You designate a third-party to conduct such Adjudication Process on Your behalf.
- You certify that You fully understand the contents and effects of any Consumer-facing forms, including, but not limited to, disclosures, authorizations and adverse-action notifications, as required by applicable law, as they relate to You, Checkr, and the Consumer (“Consumer-Facing Forms”); and You fully understand that these Consumer-Facing Forms were neither drafted specifically for You, nor on Your behalf, by Checkr.
- You also acknowledge and certify that:
(1) You authorize the use of the aforementioned Consumer-Facing Forms with Your Consumers via the Platform.
(2) You agree that You shall give Your Consumers the pre-adverse and adverse action notices when applicable.
(3) You agree and authorize the use of the default MVR filters when applicable.
You further certify that You are solely liable for any modifications You or a third party make related to any Consumer-Facing Forms. You understand and agree that Checkr’s provision of sample Consumer-Facing Forms should not be construed as legal advice, and You must seek independent counsel regarding compliance as it relates to Your and/or any third party’s modifications and use of such forms.
- “Account” means a Checkr account associated with a valid e-mail address.
- “Agreement” means collectively, this Agreement and any Order(s) including any Exhibits thereto, entered into between the parties.
- “API” means the Checkr Platform’s application programming interface(s) used to provide Checkr’s services.
- “Background Check” means the production of a Report.
- “Background Information” means the personal information required to be submitted to the Platform to conduct a Background Check on that Consumer.
- “Checkr Hosted Platform” means the standard Consumer registration flow as presented on Checkr’s Platform.
- “Consumer” means an individual applicant who is subject to a Background Check in support of their application for employment or engagement as an independent contractor by You.
- “Credit Report” means a specific type of Report including consumer credit information obtained from a credit bureau.
- “Customer Credential Application” means the credentialing application form that You must submit to Checkr in order to seek approval to become a customer of Checkr.
- “Customer Portal” means the online Checkr portal and related tools that Checkr makes available to You and its other customers, to access the Platform and manage Background Checks.
- “Documentation” means any technical literature, end user agreements, Customer instructions, and other written materials ordinarily provided by Checkr with the Platform.
- “Employment Purposes” means the specific permissible purpose of a Report concerning the evaluation of individuals for employment, promotion, reassignment or retention as an employee.
- “FCRA” means the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.
- “Fees” means collectively, the Service Fees and Variable Costs.
- “Intellectual Property Rights” means all forms of proprietary rights, titles, interests, and ownership relating to patents, copyrights, trademarks, trade dresses, trade secrets, know-how, mask works, moral rights, and all similar rights that may exist now or later in any jurisdiction, including without limitation any applications and registrations for the foregoing.
- “Investigative Consumer Report” means a specific type of Report as defined under FCRA Section 603(e).
- “Law” means all applicable laws, rules and regulations, whether federal, state, local or international.
- “Order” means the order form or account registration form submitted in connection with, or referencing, this Agreement, and specifies the certain products that You are authorized to purchase.
- “Platform” means the background check platform offered by Checkr, that allows access to Checkr’s various products, including but not limited to the Customer Portal, the APIs and other technology and tools offered by Checkr.
- “Report” means a consumer report or other applicable screening product offered on the Platform (as defined under the FCRA and applicable state Laws), including a Credit Report and an Investigative Consumer Report (if applicable).
- “Rules Criteria” means the set of rules determined by Customer that control what categories of criminal records and offenses are filtered and/or displayed on a Report, by Checkr on Your behalf.
- “Service Fees” means the fees specified in Your Order for purchase of Reports. Service Fees do not include Variable Costs.
- “Term” is defined in each applicable Order.
- “You” means the Customer listed on the Order and, if applicable, any affiliates, parents, or subsidiaries of Customer.
- “Variable Costs” means the additional variable costs and fees that may be imposed by third parties or governmental entities, such as court fees, county processing fees, multi-state or international fees, etc. related to the Background Check that You order. Additional pricing information may be located at https://checkr.com/additional-pricing-information/, as updated from time-to-time.
2. USE OF PLATFORM
2.2 Account Creation. In addition to this Agreement, You must create an Account and enter into an Order with Checkr before You can use the Platform. The Order will specify the Service Fees and Report(s) that apply. If You wish to add other Report types later, please contact Your sales representative.
2.3 Use of Platform. During the Term and subject to the terms of the Agreement, You may access and use the Platform solely:
(a) for Your own use of the specific Report(s) in the Order; and
(b) via the Checkr API in compliance with its accompanying Documentation, and any reasonable rules or guidelines that Checkr may provide.
2.3 Restrictions. You represent and warrant that You shall:
(a) not use, or attempt to use, the Platform for unauthorized purposes (e.g., tenant screening);
(b) not use the Platform for the benefit of any third party without Checkr’s prior written permission;
(c) not do any of the following, or allow any third party to do any of the following: (i) copy, distribute, rent, lease, lend, sublicense or transfer the Platform, or make the Platform available to any third party, including Your affiliates, parents or subsidiaries, without Checkr’s express prior written consent, (ii) modify, decompile, reverse engineer, or disassemble the Platform or otherwise attempt to discover any underlying source code, ideas, algorithms, file formats or programming interfaces, (iii) create derivative works based on the Platform; (iv) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Platform; or (v) use the Platform to develop a competitive product offering;
(d) not use any agents, robots, scripts, spiders, or other automated means to access or manage the Platform; and
(e) not allow Your personnel to access the Platform or order Reports for improper, illegal or unauthorized purposes, including on themselves, associates, or any other person except in the exercise of their official duties.
3. USE OF REPORTS
3.1 Your Certifications. When requesting and using Reports, You must comply with all Laws, including but not limited to the FCRA, anti-discrimination Laws, and state and local Laws. You are solely liable for Your failure to do so. You certify and agree:
(a) To request and use each Report only for the permissible purpose(s) to which You certified in each applicable Order;
(b) To use each Report for only a one-time use (e.g., You may use a Report to determine eligibility for employment, but You may not later use that same Report to determine eligibility for promotion);and You acknowledge and agree that Checkr maintains policies and procedures designed to ensure maximum possible accuracy within a Report for up to 30 days of completion date;
(c) To develop and follow reasonable procedures to comply with Laws and for the fair and equitable use of Background Information and Reports;
(d) To allow adverse action decisions only on legally reportable information;
(e) To strictly comply with the Security Obligations in Section 5 with respect to Reports and related information;
(f) To hold the Reports in strict confidence and not disclose the Reports, unless required by Law, to any third parties;
(g) To comply with and provide all statutorily required notices in FCRA and other state laws when using the Background Information and Reports;
(h) To maintain up-to-date hiring locations for all Consumers as well as all necessary information related to any applicable salary restrictions, and ensure such information is correctly reflected in the Platform;
(i ) To maintain complete and accurate records of all required consents, authorizations and disclosure forms of each Consumer You requested a Report for, as required by Law and make available to Checkr upon request;
(j) To obtain the Consumer’s consent to receive from You and from Checkr, as applicable, any legal or other notices and communications electronically, including by SMS message, and to obtain such consent in compliance with U.S. Electronic Signatures in Global and National Commerce Act of 2000; and
(k) You certify and agree that You remain solely responsible for the foregoing obligations.
3.2 California Certification. As applicable to You or the Report that You request, You hereby certify that, under the Investigative Consumer Reporting Agencies Act (“ICRAA”), California Civil Code Sections 1786 et seq., and the Consumer Credit Reporting Agencies Act (“CCRAA”), California Civil Code Sections 1785.1 et seq., if You are located in the State of California, and/or Your request for and/or use of Reports pertains to a California resident or worker, You certify to all of the following:
(a) You will only request and use Reports solely for permissible purpose(s) identified under California Civil Code Sections 1785.11(3)(B) and 1786.12(d)(1).
(b) When, at any time, Reports are sought for Employment Purposes other than suspicion of wrongdoing or misconduct by the Consumer who is the subject of the investigation, You have provided a clear and conspicuous disclosure in writing to the Consumer, which solely discloses: (1) that an Investigative Consumer Report may be obtained; (2) the permissible purpose of the Investigative Consumer Report; (3) that information on the Consumer’s character, general reputation, personal characteristics and mode of living may be disclosed; and (4) the name, address, telephone number, and website of the Consumer Reporting Agency conducting the investigation; and (5) the nature and scope of the investigation requested, including a summary of the provisions of California Civil Code Section 1786.22.
(c) When, at any time, Reports are sought for Employment Purposes other than suspicion of wrongdoing or misconduct by the Consumer who is the subject of the investigation, only request a Report if the applicable Consumer has authorized in writing the procurement of the Report.
(d) In accordance with California Civil Code Section 1786.16(a)(5), You agree to provide the Consumer with a copy of the report, as provided in 1786.16(b).
(e) In accordance with California Civil Code Section 1786.16(b), You agree to provide a means by which the Consumer may indicate on a written form, by means of a box to check, that he/she wishes to receive a copy of any Reports that are prepared. If the Consumer wishes to receive a copy of the Report, You shall send (or contract with another entity to send) a copy of the Report to the Consumer within three business days of the date that the Report is provided to You. The copy of the Report shall contain the name, address, and telephone number of Checkr, who issued the report, and how to contact Checkr.
(f) Under all applicable circumstances, comply with California Civil Code Sections 1785.20 and 1786.40 in the taking of adverse action, which shall include, but may not be limited to, advising the Consumer against whom an adverse action has been taken that the adverse action was based in whole or in part upon information contained in the Report, informing the consumer in writing of Your name, address, and telephone number, and provide the Consumer of a written notice of his/her rights under the ICRA and the CCRAA.
(g) Any employment decisions or actions will comply with applicable Law including, but not limited to, prohibitions against relying on dismissed or pending records for employment decisions or actions.
(h) You certify and agree that You remain solely responsible for the foregoing obligations.
3.3 Massachusetts Criminal Record Information Policy. As applicable to You or the Report that You request, You hereby certify that, under the Commonwealth’s Criminal Offender Record Information (“CORI”) law, if You are located in the State of Massachusetts, and/or Your request for and/or use of Reports pertains to a Massachusetts resident or worker, You certify to all of the following:
(a) Before asking a Consumer about their criminal records, You will provide a Consumer with copies of these records if You are in possession of such records;
(b) That before taking adverse action based, in whole or in part, on criminal history records, You will notify the Consumer of the potential adverse employment decision by sending required pre-adverse and adverse action notices and any other applicable notices. The pre-adverse action notice will include the criminal history records, the sources of the records, a copy of the CORI policy, and a copy of information from the state agency about the process for correcting a criminal record;
(c) That the Consumer will be provided with an opportunity to dispute the accuracy of the criminal history records by waiting at least five business days before taking final adverse action; and
(d) You certify and agree that You remain solely responsible for the foregoing obligations.
3.4 Employment Purposes. If You use or request a Report for Employment Purposes, You certify and agree:
(a) You will not request a Report for Employment Purposes unless:
(i) A clear and conspicuous disclosure has been made in writing to the Consumer by You before the Report is obtained, in a document that consists solely of the disclosure that a consumer report may be obtained for Employment Purposes;
(ii) The Consumer has authorized in writing the procurement of the Report; and
(iii) Information from the Report will not be used in violation of any employment opportunity Laws.
(b) You further certify that before taking adverse action in whole or in part based on a Report for Employment Purposes, you will provide the Consumer with:
(i) A copy of the Report for Employment Purposes, as applicable;
(ii) A copy of the Consumer’s rights, in the format approved by the Consumer Financial Protection Bureau; and
(iii) The required pre-adverse action notice and any other assessment forms or notices required by applicable Law.
(c) That each time You order or access a Report for Employment Purposes, You are reaffirming the certifications in 3.1, 3.2, 3.4(a), 3.4(b), and 3.6 below.
(d) That You understand that Checkr will not initiate a Report for Employment Purposes in the absence of a written authorization.
(e) You will not discriminate against the Consumer or otherwise misuse the Report, as required by any applicable federal or state equal opportunity laws or regulations.
(f) You certify and agree that You shall give Your Consumers the pre-adverse and adverse action notices when applicable.
(g) That, if applicable, before taking adverse action based on a criminal record the EEOC Criminal History Guidance recommends that You perform an individualized assessment and other considerations. To obtain a copy of the EEOC Criminal History Guidance please go to the following website: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
(h) You shall request a Report for Employment Purposes pursuant to procedures prescribed by Checkr from time to time only when You are considering the individual inquired upon for employment, promotion, reassignment or retention as an employee or contractor, and for no other purpose. You must comply with any Laws that may restrict or ban the use of Report for Employment Purposes.
(i) That You are not any of the following types of persons, entities and/or businesses: bail bondsmen, credit counseling firms, members of the media, resellers, financial counseling firms, credit repair clinics, pawn shops (except companies that do only title pawn), check cashing companies (except companies that do only loans, no check cashing), genealogical or heir research firms, massage or tattoo services, , individuals seeking information for their own private use, adult entertainment services of any kind, companies that locate missing children, companies that handle third party repossession, companies seeking information in connection with time shares, subscriptions companies, or entities that are not an end-user or decision maker.
(j) That while Checkr shall make commercially reasonable efforts to notify You of a failure to deliver any notices, authorizations, disclosures, pre-adverse or adverse action letters, You understand that the use of Checkr’s Platform, including without limitation, the adverse action features, does not relieve You of Your responsibilities under Section 3.4. In the event Checkr notifies You of a delivery failure for any notice or adverse action letter, You understand that it is Your responsibility as an end user to monitor and complete deliverability or take any other appropriate action necessary to complete Your required obligations.
(k) You remain solely responsible for the foregoing obligations, even if You designate a third-party to fulfill such obligations on Your behalf.
3.5 MVR Purposes.
If You request Moving Violation Reports and Driving Records (an “MVR” or “MVRs”), You certify and agree that:
(a) You are ordering the MVRs in strict compliance with the Driver Privacy Protection Act (“DPPA”, at 18 U.S.C. § 2721 et seq.), if it applies, and any applicable state Laws.
(b) You have the Consumer’s written consent to obtain “driving records” and MVRs, and have provided it to Checkr or have otherwise satisfied this obligation (e.g., Consumer consent secured via the Platform).
(c) You will only use this MVR in the normal course of business to obtain lawful information relating to the holder of a commercial driver’s license or to verify information provided by the Consumer.
(d) You will not transmit any data contained in the MVR via the public internet, email or any other unsecured means.
(e) Default MVR filters are made available as a reference solely for Your efficiency, and Your use of such MVR filters means that You have reviewed and approved such categories.
(g) If applicable, You will be required to execute a separate state-specific addendum prior to receiving an MVR using data from certain states, including, but not limited to, the states of Pennsylvania and Washington.
(h) You remain solely responsible for the foregoing obligations.
3.6 Investigative Reports.
If You request an Investigative Consumer Report, You certify and agree:
(a) That You have clearly and accurately disclosed to the Consumer, not later than three days after the date on which the Investigative Consumer Report was first requested, that
(i) an Investigative Consumer Report including information as to his or her character, general reputation, personal characteristics and mode of living may be made; and
(ii) the Consumer has the right to request a complete and accurate disclosure of the nature and scope of the investigation requested (“Investigative Report Disclosure”).
(b) The Investigative Report Disclosure shall include “A Summary of Your Rights Under the Fair Credit Reporting Act”.
(c) If the Consumer makes a written request within a reasonable amount of time after receipt of the Investigative Report Disclosure, You will make a complete and accurate written disclosure of the nature and scope of the investigation requested. This information will be provided to the Consumer no later than five (5) days after the request for such disclosure was received from the Consumer or such Report was first requested, whichever is the later.
(d) You certify and agree that You remain solely responsible for the foregoing obligations.
3.7 Customer Rules Criteria
(a) To the extent You elect to implement and/or customize Rules Criteria and to the extent permitted by Law, You authorize Checkr to apply such Rules Criteria to the information contained in a Report in order to facilitate the Adjudication Process provided that, You acknowledge and agree that You are responsible for: (1) the Rules Criteria and for any decisions taken based on the Rules Criteria; (2) the application of the Rules Criteria to the evaluation of a Report; (3) reviewing the content of the Reports in the manner and method prescribed by applicable Law, including, but not limited to, the individualized assessments and final adjudications on all Reports; and (4) ensuring that Your utilization of the Rules Criteria in evaluating the Reports and in the final adjudication is in compliance with all Laws. You acknowledge and agree that Checkr shall not be liable for any application of Your Rules Criteria. You further acknowledge and agree that Checkr is not authorized to make any decision regarding employment, or any other decision on Your behalf, based on the information contained in a Report.
(b) You certify that You have reviewed Your Rules Criteria to ensure that it complies with applicable Law, and that You will regularly update such criteria in order to ensure Your ongoing and continued compliance with applicable Law.
(c) With each order for a Report, You reaffirm the statements in 3.4(a) and certification in 3.4(b) above.
(d) You certify and agree that the application and/or customization of a Rules Criteria is made available as a reference solely to facilitate Your adjudication obligations and Your use of such Rules Criteria means that You have reviewed and approved Checkr’s classification of record categories and that You adopt the Rules Criteria as Your own.
(e) You acknowledge and agree that You remain solely liable for the obligations listed in Section 3.7, even if You designate a third-party to implement and/or customize the Rules Criteria on Your behalf.
3.8 Drug Tests. To the extent applicable, Checkr will arrange for drug tests as You may request and will include the results of those tests received from drug test providers in Reports. You understand and represent that any drug test You may request or require is requested in accordance with any applicable federal, state, or local law. Drug tests will be performed by third-party vendors in accordance with directions received by You.
3.9 Continuous Check Service.
(a) General. To the extent applicable and at Your election and for the price(s) set forth on the applicable Order, Checkr will provide criminal record monitoring services and products to identify other criminal activity of subscribed Consumers after their initial onboarding and Report by Checkr and monitor for subsequent court-related activity as an extension of Checkr’s existing background screening process (the “Continuous Check Service”). Checkr will provide a new Report whenever any component of the Continuous Check Service returns pointers to reportable information on a Consumer to the extent permitted by law. Checkr must have completed a Report with a criminal search on the Consumer on Your behalf in order to enroll the Consumer in the Continuous Check Service.
(b) Consent. You shall be responsible for obtaining and maintaining all required disclosures, notices, and consents from the Consumer prior to his or her inclusion in the Continuous Check Service as required by applicable law, and certify as such to Checkr upon request. When requesting and using the Continuous Check Service, You must comply with all Laws, including but not limited to any applicable disclosure and authorization certification requirements and state-specific consent requirements. You reaffirm the certifications in Sections 3.1, 3.2, 3.4(a), 3.4(b), and 3.6 above with Your ongoing use of the Continuous Check Services. You are solely responsible for maintaining an up-to-date list of Consumers to be included in the Continuous Check Service in accordance with applicable Laws and re-obtaining consent if a Consumer is removed and later re-subscribed in the Continuous Check Service. To the extent You designate a third party to perform or undertake any of the foregoing obligations on Your behalf, You certify and agree that You remain solely responsible for such obligations.
(c) Subscription Billing and Payment. You shall pay Checkr a monthly fee per each unique Consumer subscribed to the Continuous Check Service at any time within a calendar month, as set forth on Exhibit A of the applicable Order (“Subscription Fee”). You are solely responsible for maintaining an up-to-date list of Consumers to be included in the Continuous Check Service for invoicing purposes. SubscriptionFees will be billed on a monthly basis in arrears.
3.10 Not Legal Advice. Checkr does not, and cannot, provide legal advice or other compliance related services to You or guarantee Your compliance with Laws in your use of the Platform or Reports. You understand that any documents, information, conversations or communication with Checkr’s representatives regarding searches, verifications or other services offered by Checkr are not to be considered a legal opinion regarding such use. You agree to consult with your own legal counsel (1) about the use of Rules Criteria and background screening information, including but not limited to, the legality of using or relying on reported information, and (2) to review any forms as well as the content of prescribed notices, adverse or pre-adverse action letters and any attachments to this Agreement for compliance with all Laws. You agree that the provision of such notices, pre-adverse or adverse action letters and the contents thereof is Your sole responsibility.
3.11 Notice of Penalty Under the FCRA. 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 OF THE UNITED STATES CODE OR IMPRISONED NOT MORE THAN TWO YEARS, OR BOTH.
4. DELIVERY TERMS AND LIMITATIONS
4.1 National/Multi-State/County Database; Additional Costs. Checkr recommends that You screen applicants at the county courthouse or online system, federal, and multi-state/nationwide database levels. If You choose not to conduct certain searches or searches at these levels, Checkr is not liable for any records that exist that are not included in the Report. Checkr will include any Variable Costs associated with this verification in Your invoice.
4.1 Support. You can request Platform support during Checkr’s normal business hours via email sent to email@example.com. While Checkr makes commercially reasonable efforts to ensure continuous availability of the Platform, Checkr makes no representation, warranty or guarantee regarding the continuous availability or performance of the Platform.
4.3 Updates. Checkr may change the Platform features, and the production, support, delivery, layout or maintenance of the Reports from time to time, or discontinue the provision of a Report, in its sole discretion, provided that no such change will result in any material reduction in the utility, functionality, or integrity of Checkr’s services to You. For any material and adverse changes to Report features and details, Checkr will use commercially reasonable efforts to provide at least 30 days advance notice to You. You also acknowledge that within thirty (30) days of a Report completion date, Checkr may update the Report as part of our quality assurance purposes. In such cases, Checkr will provide You and the Consumer a copy of the updated Report.
4.4 Platform Analytics. You understand and agree that the Platform offers a number of analytics (e.g., estimated Report completion date, geography, etc.) that are strictly for informational purposes and should not be used as a factor for Consumer assessment or adverse action purposes.
5. YOUR SECURITY OBLIGATIONS
You represent and warrant that:
(b) You are solely responsible for any Background Information You collect on behalf of Consumers.
(c) You will designate a limited number of key personnel who have a need to know about Background Information and Reports and inform them of Your obligations under this Agreement.
(d) Neither You nor Your personnel will give Your account credentials (login or password) to any unknown caller, even if the caller claims to be an employee of Checkr.
(e) You agree that any system access software that You use, whether developed by Your company or purchased from a third-party vendor, will keep your account number and password “hidden” or embedded and be known only by supervisory personnel. You will assign a unique logon password to each user of the system access software. You will strictly prohibit the sharing of passwords. If such system access software is replaced by different access software and therefore no longer is in use or, alternatively, the hardware upon which such system access software resides is no longer being used or is being disposed of, or if the password has been compromised or believed to be compromised in any way, You will change Your password immediately.
(f) You and Your personnel will secure all hard or electronic copies of Background Information and Reports within Your offices and facilities so that unauthorized persons cannot easily access them.
(g) You will place all terminal devices used to obtain Background Information and Reports in a secure location within Your facility so that unauthorized persons cannot easily access them.
(h) You will shred or destroy all hard copy Reports, and delete or render unreadable any electronic files containing Reports, after it is no longer needed and when Laws permit destruction.
(i) You are solely responsible for the activities of any person accessing the Platform using any credentials issued to You.
(j) You and Your personnel must use reasonable and industry standard means to secure account credentials and Background Information.
(k) You will promptly notify Checkr if You suspect that any account, credentials, Background Information or Reports, have been compromised.
Checkr may review Your records and practices at any time upon reasonable prior notice during the Term, and for 5 years thereafter, to confirm Your compliance with this Agreement. Your breach of this Agreement or violation of Law discovered by Checkr may result in immediate suspension and/or termination of Your account, under Section 12 of this Agreement, legal action and referral to regulatory agencies.
6.2 Public Records. The data collected on Your behalf with respect to running Background Checks on Consumers, include without limitation, DMV records, criminal records, and other publicly available information, is deemed to be “Public Records” that Checkr may retain, use, disclose, and delete in its sole discretion and as required or permitted by Law, provided that Checkr retains the Public Records in a manner that does not identify You.
6.3 Usage Data. Checkr owns all right, title and interest in and to all data collected by Checkr related to the operation of the Platform and Your use thereof (“Usage Data”). Usage Data may include Platform performance metrics and analysis, but does not include any Background Information or Public Records. Checkr will not disclose Usage Data to any third party in a manner that identifies You without Your consent other than (i) to Checkr’s third party service providers who use it for the sole benefit of Checkr or as required to provide You the Platform; or (ii) as may be required by Law or legal process.
7. FEES AND PAYMENT
7.1 Fees. During the Term, You are authorized to order the Reports specified in Your Order. You will pay Checkr the Fees specified in each Order, in consideration for Reports ordered. Checkr will automatically debit the ACH debit account You provide each month.
7.2 Accepted Payment Methods. You must provide ACH debit information to Checkr for Your account in the Customer Portal before You can order any Background Checks. You are solely responsible for ensuring that Your payment information is complete and accurate at all times.
7.6 Automatic Payment Terms. After the close of each calendar month, You will receive an invoice for the Fees that You incurred that month. Immediately thereafter, Checkr will automatically charge or withdraw funds via Checkr’s accepted payment methods for the Fees on each invoice. All payments must be made in the currency reflected in Your invoice. Any amounts due to Checkr under this Agreement not received by the date due will be subject to a late fee of 1.5% per month, or the maximum charge permitted by law, whichever is less. You are responsible for paying any withholding, sales, value added or other taxes, duties or charges applicable to this Agreement. You agree to pay any reasonable attorneys’ fees required for collection of late payment.
8. OWNERSHIP; CONFIDENTIALITY
8.1 Checkr owns all right, title, interest, and Intellectual Property Rights, in and to the Platform and any software, technology, materials and information related to the Platform, whether currently existing or later developed.
8.2 You are not required to provide any ideas, feedback or suggestions regarding any of Checkr’s products or services (“Feedback”) to Checkr. If You do provide any Feedback to Checkr, You agree to assign all right, title and interest in and to such Feedback to Checkr and agree that Checkr may freely use and exploit such Feedback without compensation to You.
8.3 Each party will keep confidential, all information and materials provided or made available, directly or indirectly, by the other party that is marked as confidential or proprietary, or is identified as confidential or proprietary at the time of disclosure, or the nature of the information and the manner of disclosure are such that a reasonable person would understand it to be confidential (collectively, “Confidential Information”). Checkr’s Confidential Information includes but is not limited to, the features, functionality and content of the Platform and any planned modifications or updates thereto, Fees and pricing information. Each party will maintain all Confidential Information in strict confidence by using at least the same level of care that is uses for its own confidential information, but in no case less than a prudent and reasonable standard of care. Each party may use Confidential Information solely for the purposes of performing its obligations or exercising its rights hereunder. Information that either party can establish: (a) was lawfully in a party’s possession before receipt from the other party; or (b) is or becomes a matter of public knowledge through no fault of the receiving party; or (c) was independently developed or discovered by a party without the benefit of any Confidential Information of the other party, shall not be considered Confidential Information under this Agreement. Each party may disclose Confidential Information solely to its employees and representatives that have a need to know to accomplish the purposes of this Agreement and each of whom are bound to protect the Confidential Information from unauthorized use and disclosure under the terms of a written agreement with terms as protective of the Confidential Information as those set forth in this Agreement. Each party may also disclose Confidential Information in response to a valid order of a court or other governmental body or as otherwise required by law to be disclosed; provided that, the responding party gives sufficient notice to the disclosing party to enable the disclosing party to take protective measures, and/or in any event only disclose the exact Confidential Information, or portion thereof, specifically requested. Except as otherwise expressly set forth in this Agreement, no rights or licenses to intellectual property in Confidential Information is granted by either party under this Agreement, whether express, implied or otherwise, to the other party. The obligations imposed on a receiving party shall survive until such time as the Confidential Information of the disclosing party becomes publicly available and/or made generally known through no action of the receiving party. All Confidential Information will be returned immediately to the disclosing party, or destroyed, after the receiving party’s need for it has expired or upon request of the disclosing party or termination of this Agreement. Each party agrees that any violation of these confidentiality provisions will cause irreparable injury to the other party entitling the other party to injunctive relief or other equitable relief, in addition to, and not in lieu of, any other remedies such party may be entitled to. The disclosure of Confidential Information will be governed by this Agreement, which supersedes any previous confidentiality or nondisclosure agreement executed by or on behalf of the parties. Any such Confidential Information will be treated as if it were disclosed under this Agreement (and this Agreement were in effect) as of the date of such exchange.
9. WARRANTIES; DISCLAIMERS
9.1 Mutual. Each party represents and warrants to the other party that: (i) it has the full corporate power and authority to enter into the Agreement; and (ii) the Agreement constitutes a legal, valid and binding obligation when executed and delivered.
9.2 DISCLAIMER. YOU ACKNOWLEDGE THAT CHECKR OBTAINS THE INFORMATION IN ITS REPORTS FROM THIRD PARTY SOURCES “AS IS”, AND THEREFORE PROVIDES THE INFORMATION TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. CHECKR MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, OR IMPLIED WARRANTIES ARISING FROM THE COURSE OF DEALING OR A COURSE OF PERFORMANCE WITH RESPECT TO THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY REPORTS THAT THE REPORTS WILL MEET YOUR NEEDS, OR WILL BE PROVIDED ON AN UNINTERRUPTED BASIS; CHECKR EXPRESSLY DISCLAIMS ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CHECKR EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. CHECKR AND ITS SUPPLIERS, LICENSORS, PARTNERS AND SERVICE PROVIDERS DO NOT WARRANT THAT THE FUNCTIONALITY AND INFORMATION PROVIDED BY THE PLATFORM WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED.
10.1 You agree to defend and indemnify Checkr, and its directors, officers and employees from and against any third party liabilities, damages, losses, judgments, costs, expenses (including reasonable attorneys’ fees), claims, actions, demands and suits (collectively “Claims”) arising out of or relating to: (a) Your breach of any covenants, representations or warranties of this Agreement, including but not limited to Your failure to comply with the requirement set forth under Section 13.3; (b) Your violation of any Law, including but not limited to Your failure to comply with Your obligations under the FCRA; (c) the willful or malicious conduct by You or Your employees; or (d) the content, compliance, method of delivery or effectiveness of any notices, authorizations, disclosures, pre-adverse or adverse action letters (except to the extent any Claims are the direct result of a negligent act or omission by Checkr resulting in a failure of Checkr’s Platform).
10.2 Checkr agrees to defend and indemnify, at its expense, You, and Your directors, officers, and employeesfrom and against any Claimsarising out of or relating to: (a) Checkr’s failure to comply with its obligations under Law to Consumers as a consumer reporting agency; and (b) an allegation that the Checkr API infringes any third-party patent or copyright of the United States (“IP Claims”). Checkr has no obligation to indemnify You for an IP Claim under 10.2(b) to the extent that it resulted (i) from Your modification of the Checkr API if such IP Claim would have been avoided in the absence of such modification; (ii) due to the combination of the Checkr API with any other materials that have not been approved by Checkr if such IP Claim would have been avoided in the absence of such combination; or (iii) Your use of the Checkr API in a manner not authorized by Checkr, or not in compliance with the Documentation. Should the Checkr API become, or in Checkr’s opinion likely become the subject of an IP Claim, Checkr, at its option, may either: (a) procure for You the right to continue using the Checkr API, (b) modify the Checkr API to make it non-infringing provided the same functionality is maintained, or (c) terminate this Agreement as to the potentially infringing services. THE INFRINGEMENT INDEMNITY SET FORTH IN THIS SECTION 10.2 STATES CHECKR’S ENTIRE LIABILITY AND OBLIGATION AND YOUR SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OF THIRD-PARTY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS.
10.3 Each indemnifying party’s indemnification obligations are conditioned upon such indemnifying party receiving: (i) prompt notice from the indemnified party of any Claim; (ii) sole control of the defense and settlement of such Claim; and (iii) reasonable assistance from the indemnified party (at indemnifying party’s expense) in the defense and settlement of such Claim. The indemnifying party may not consent to the entry of judgment, admit any liability, or settle, compromise or discharge the Claim, without the indemnified party’s prior written consent.
11. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, RELIANCE, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES (INCLUDING LOSS OF REVENUE OR PROFITS) ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY INFORMATION OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY OR ERROR IN THE CONTENT, EVEN IF THAT PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 (WHICH SHALL BE SUBJECT TO THE LIMITS SET FORTH BELOW), IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY AND DAMAGES ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNTS YOU ACTUALLY PAID DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM OR $5,000, WHICHEVER IS HIGHER. EACH PARTY’S AGGREGATE LIABILITY ARISING FROM THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, WILL NOT EXCEED TEN (10) THOUSAND DOLLARS IN THE AGGREGATE WITH RESPECT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT. RECOVERY OF THIS AMOUNT IS YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER AND THE PARTIES AGREE THAT THE LIMITATIONS AND DISCLAIMERS OF LIABILITY SET FORTH IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE AND REGARDLESS OF THE THEORY OF LIABILITY. THE PARTIES AGREE THAT THE LIMITATIONS AND DISCLAIMERS OF LIABILITY UNDER THIS SECTION CONSTITUTE A FUNDAMENTAL BASIS OF THEIR BARGAIN.
12. TERM; TERMINATION
12.1 Term. This Agreement is effective for one year from the Effective Date unless terminated earlier in accordance with this Agreement (the “Initial Term”). After the Initial Term, this Agreement automatically renews for additional one (1) year periods (each, a “Renewal Term”) until either party terminates with at least 30 days’ notice prior to the expiration of the Initial Term or Renewal Term, or until otherwise terminated per the Agreement. The Initial Term and any applicable Renewal Terms are collectively referred to as the “Term.”
12.2 Suspension. Checkr may suspend or limit Your access to or use of the Platform at any time if: (i) You do not timely pay all Fees due; (ii) in the sole discretion of Checkr such action is necessary to prevent material errors or harm, or to limit Checkr’s liability; or (iii) You attempt to access or use the Platform or Reports in an unauthorized or unlawful manner.
12.3 Termination. Checkr may terminate this Agreement or any Order at any time upon 30 days’ notice to You, or immediately with or without notice if: (i) Checkr believes that You have breached this Agreement or any Order or violated any Law; (ii) requested to do so by a third party data provider; or, (iii) a material change in existing legal requirements adversely affects this Agreement or any Order. Checkr may (but is not obligated to) terminate this Agreement and Your account if You are inactive on the Platform for six or more months.
12.4 Termination for Convenience. Either party may terminate this Agreement or any Order for any reason upon thirty (30) days written notice to the other party; provided that, You shall remain liable for all Fees incurred up to the termination date.
12.5 Outstanding Orders. If applicable, any outstanding Reports pursuant to any Order and Your obligations under this Agreement will survive any termination of this Agreement.
13.1 Governing Law. This Agreement is governed by New York Law, excluding its choice of law rules. Each party submits to jurisdiction of the state and federal courts in New York County, New York.
13.2 Assignment. Unless explicitly provided in this Agreement, You may not assign any of Your rights or obligations under this Agreement without the prior written consent of Checkr. Subject to the foregoing, this Agreement inures to the benefit of and is binding on the parties’ permitted assignees, transferees and successors. Any attempted assignment in violation of this clause is void.
13.4 Insurance. You represent and warrant that, during the Term of this Agreement, You will maintain, in full force and effect, appropriate insurance coverage in accordance with the best industry standards applicable to You, which shall include, at minimum, (a) at least $1,000,000 in broad form commercial general liability coverage; (b) statutorily required workers compensation insurance, and (c) employer’s liability insurance. You shall endeavor to provide Checkr thirty (30) days’ written notice in the event any of the policies required hereunder are reduced or cancelled. Should You at any time fail to maintain the required insurance, such failure shall be considered a breach of this Agreement entitling Checkr to terminate for cause.
13.5 Integration. This Agreement reflects the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. Checkr may modify this Agreement in its sole discretion, provided, however, that Checkr will provide You with prompt notice of any material and detrimental changes to this Agreement, which notice may be provided via email or the Customer Portal.
13.6 Force Majeure. Checkr will not be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures; shortages of or inability to obtain labor, energy, or supplies; war, terrorism, riot, acts of God or governmental action; acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
13.7 Misc. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture, or authority to bind the other party. There are no third-party beneficiaries to this Agreement. If any provision is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provisions essential purpose. Any waiver of a provision of this Agreement will only be valid if provided in writing and applies only to the specific occurrence so waived. Failure to enforce any provision will not constitute a waiver. Nothing in this Agreement will limit a party’s ability to seek equitable relief. Section headings are not to be used in the interpretation hereof. The following Sections survive any expiration or termination of the Agreement: 2.4, 3, 4.1 and 5 to 13.
13.8 Notices. To give compliant notice under this Agreement:
From You to Checkr: Send the written notice via email to firstname.lastname@example.org and simultaneously via postal mail to One Montgomery Street, Suite 2400 San Francisco, CA 94104. Checkr will notify You via the Platform, email or postal mail if it updates either.
From Checkr to You: Checkr will notify You via the Platform, or to the postal or email address You provide in the Customer Portal. You can update that information in the Customer Portal at any time.