TERMS OF SERVICE

Checkr, Inc. Terms of Service

Effective Date: [9/12/2017]

 

IMPORTANT NOTICE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW. PLEASE READ CAREFULLY.

Welcome to the website of Checkr, Inc. (“Checkr,” “we,” “us,” or “our”). Except as expressly provided herein, these Terms of Service (“Terms”) contain the terms and conditions that govern your access to and use of the services available on and through websites offered by Checkr (collectively, the “Services”). Your access to and use of the Services is conditioned on your acceptance of and compliance with these Terms.

These Terms apply to Checkr customers (“Customers,” “you,” or “your”) who create an account with Checkr to access the background check platform offered by Checkr to obtain background reports on third parties. To the extent these Terms conflict with our Services Agreement , the Services Agreement governs. If you enter into an agreement with Checkr providing different or additional terms regarding Checkr’s Services and there is a conflict between a provision in these Terms and a provision in such agreement, the latter takes precedence with respect to the provision in conflict. These Terms also apply to all others who access the Services, including but not limited to website visitors and users of the applicant portal, (“Users,” “you,” or “your”), including each User’s heirs, assigns, and successors. If you use the Services on behalf of an entity, you represent and warrant that you have the authority to bind that entity, your acceptance of the Terms will be deemed an acceptance by that entity, and “you” and “your” herein shall refer to that entity.

By accessing or using the Services, you agree to be bound by these Terms and our Privacy Policy, as may be updated from time to time, (“Privacy Policy”), which is incorporated into these Terms by reference.

We may revise these Terms from time to time. The most current version will be available on our website. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms, except as provided in the Arbitration and Class Action Waiver section below. We will provide you with any additional notices or choices with respect to such changes as required by applicable law.

  1. Use of Services

Access to and use of the Services is available only to individuals who are lawfully able to enter into binding contracts (e.g. you are not a minor). By accessing or using the Services, you represent and warrant that you are eligible.

You may be able to submit information to us through the Services. You agree to provide us with accurate information about yourself, including any information you may submit for background checks conducted about or requested by you. You further agree that submission of such information is subject to our Privacy Policy.

In the Services, you may authorize certain parties to obtain background reports about you (also known as consumer reports or investigative consumer reports) from Checkr.  If you provide such authorization, you understand and agree that 1) the party you authorize may obtain information about your character, general reputation, personal characteristics, and/or mode of living, and which can involve personal interviews with sources such as your neighbors, friends, or associates; 2) reports may include checks regarding your criminal history, credit history, eviction records, social security verification, motor vehicle records (“driving records”), drug screening, verification of your education or employment history or other background checks; and 3) any law enforcement agency, administrator, state or federal agency, institution, school or university (public or private), information service bureau, employer, or insurance company may furnish any and all background information requested by Checkr.  

By accessing or using the Services, you represent and warrant you shall comply with all applicable federal and state law, including but not limited to the Fair Credit Reporting Act and the Equal Employment Opportunity Act.

  1. Intellectual Property

In connection with the Services, Checkr maintains 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 (collectively, “Intellectual Property Rights”). All such Intellectual Property Rights will remain the exclusive property of Checkr and its licensors. And except as explicitly provided herein, nothing in these Terms gives you a right to use the Checkr name or any of the Checkr trademarks, logos, domain names, and other distinctive brand features.

Subject to these Terms, Checkr grants you a worldwide, non-exclusive, non-assignable, revocable, license to use the Services as they are provided to you by Checkr for your personal, noncommercial use only.

Please be advised that all aspects of the Services are subject to change or termination at Checkr’s sole discretion.

  1. User Content

We may, in our sole discretion, permit you to post, upload, publish, submit or transmit content through the Services (“User Content”).  You grant Checkr a non-exclusive license to use such User Content to provide the Services and for the purposes for which you submit such User Content, including for Checkr to transmit dispute or rehabilitation information to third parties who have requested background reports about you. You acknowledge and agree that you are solely responsible for all User Content that you submit through the Services. You represent and warrant that: (a) you either are the sole and exclusive owner of all User Content that you submit or you have all rights, licenses, consents and releases that are necessary to grant to Checkr the rights in such User Content, as contemplated under these Terms; and (b) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or Checkr’s use of your User Content (or any portion thereof) on, through or by means of the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

  1. Restrictions

You represent and warrant that you shall not:

(a) use, or attempt to use, the Services for unauthorized purposes (e.g. to obtain information related to background checks on someone other than you or to request an unauthorized background check);

(b) use the Services for the benefit of any third party without Checkr’s prior written permission;

(c) 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 Services, or make the Services 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 Services or otherwise attempt to discover any underlying source code, ideas, algorithms, file formats or programming interfaces, (iii) create derivative works based on the Services; (iv) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Services; or (v) use the Services to develop a competitive product offering;

(d) use any agents, robots, scripts, spiders, or other automated means to access or manage the Services;

(e) access the Services for improper, illegal, or unauthorized purposes, including, but not limited to, in violation of the Fair Credit Reporting Act or Equal Employment Opportunity Act;

(f) misrepresent yourself, your identity, or information about you;

(g) take any action that (i) may unreasonably encumber the Services’ infrastructure; (ii) bypasses measures that are used to prevent or restrict access to the Services; (iii) circumvents, disables, or otherwise interferes with security features of the Services; (iv) distributes viruses or any other technologies that may harm Checkr or users; or (v) uses the Services in a way that violates any copyrights, trade secrets, or other rights of any third party, including privacy or publicity rights;

(h) use the Services for any reason not explicitly authorized by these Terms; or

(i) attempt to indirectly undertake any of the foregoing.

Notice of Penalty under the Fair Credit Reporting Act (“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.

  1. Feedback

By sending us any feedback, comments, questions, or suggestions concerning Checkr or our Services (collectively, “Feedback”) you represent and warrant (a) that you have the right to disclose the Feedback, (b) that the Feedback does not violate the rights of any other person or entity, and (c) that your Feedback does not contain the confidential or proprietary information of any third party or parties. By sending us any Feedback, you further (i) agree that we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (ii) acknowledge that we may have something similar to the Feedback already under consideration or in development, (iii) grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback, and (iv) irrevocably waive, and cause to be waived, against Checkr and its users any claims and assertions of any moral rights contained in such Feedback. This Feedback section shall survive any termination of the Services.

 

  1. Authorization for Background Check

The Services may allow you to request a copy of your background check or background reports about you. By requesting a copy, you authorize Checkr and its contractors/providers to use the information you provide to us for purposes of conducting background checks and producing reports for you. You agree that Checkr has no obligation to monitor or edit the information you submit to us, and that you are solely responsible for the completeness and accuracy thereof.

In connection with conducting background checks, Checkr may collect certain data including, without limitation, DMV records, criminal records, and other publicly available information. Checkr shall treat such data in accordance with our Privacy Policy.

By requesting a copy of your background check, you further 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

  1. Fees

In connection with your use of the Services, Checkr may charges certain fees (“Fees”) such as Fees when you order a background report, including on yourself.  You agree to pay all applicable Fees or charges based on the terms then in effect.  Once Services have been initiated, Fees are nonrefundable.  Charges will appear on your account as “Checkr, Inc. // Checkr.com”.  Payment processing services provided by our third party payment processor are subject to its terms.  All inquiries regarding Services and delivery of reports, including timing or delays, should be made to Checkr at [email protected].

  1. Warranties and Disclaimers

Each party represents and warrants to the other party that: (i) it has the full power and authority to enter into the terms and conditions of these Terms; and (ii) the Terms constitute a legal, valid and binding obligation.

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 THESE TERMS, 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 SERVICES WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED.

  1. Indemnification

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 these Terms; (b) your violation of any law; or (c) your willful or malicious conduct.

  1. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, CHECKR AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT 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 THESE TERMS, INCLUDING THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY INFORMATION OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY OR ERROR IN THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EVEN IF CHECKR HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE LIMITATION OF LIABILITY DESCRIBED ABOVE SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.

Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you.

  1. Arbitration and Class Action Waiver

PLEASE READ THIS SECTION CAREFULLY — IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

Checkr and you agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.

In the event of a dispute, claim, or controversy arising out of or in connection with your access to, and/or use of the Services, and/or the provision of content, services, and/or technology on or through the Services, Checkr or you must give the other notice of the dispute, claim, or controversy which notice will include a brief written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, claim, or controversy and the relief requested. You must send any such notice to Checkr by email to [email protected] AND by U.S. Mail to Checkr, Legal Department, 1 Montgomery Street, Suite 2000, San Francisco, CA 94104. To the extent that Checkr has your contact information, it will send any such notice to you by U.S. Mail, or otherwise to your email address. Checkr and you will attempt to resolve any dispute, claim, or controversy through informal negotiation within thirty (30) days from the date that any notice of dispute, claim, or controversy is received. Checkr and you shall use reasonable, good faith, efforts to settle any dispute, claim, or controversy through consultation and good faith negotiations. After 30 days, Checkr or you may resort to the other alternatives described in this Section. Notwithstanding the foregoing, the notice and 30-day negotiation period required by this paragraph shall not apply, however, to disputes, claims, or controversies concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of the Services.

Except as otherwise specifically set forth below, any dispute, claim, or controversy of any kind between Checkr and you arising under these Terms or in connection with your access to, and/or use of the Services, and/or the provision of content, services, and/or technology on or through the Services, if unresolved through informal discussions within thirty (30) days of receipt of notice, shall be resolved by binding arbitration to be held in the state in which you reside. Notwithstanding the foregoing, disputes, claims, or controversies concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of the Services shall not be subject to arbitration.

For residents outside the United States, arbitration shall be initiated in San Francisco County, California.

You and Checkr further agree to submit to the personal jurisdiction of any state or federal court in San Francisco County, California to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.  

The arbitration shall be conducted by a single arbitrator, governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and administered by the AAA. The AAA Rules and fee information are available at www.adr.org.

Checkr shall bear the cost of any arbitration filing fees and arbitration fees for claims of up to $10,000, unless the arbitrator finds the arbitration to be frivolous. You are responsible for all other additional costs that you may incur in the arbitration including, but not limited to attorney’s fees and expert witness costs unless Checkr is otherwise specifically required to pay such fees under applicable law. For claims that total more than $10,000, the AAA Rules will govern payment of filing fees and arbitration fees. The decision of the arbitrator will be in writing and binding and conclusive on Checkr and you, and judgment to enforce the decision may be entered by any court of competent jurisdiction. Checkr and you agree that dispositive motions, including without limitation, motions to dismiss and motions for summary judgment will be allowed in the arbitration. The arbitrator must follow these Terms and can award the same damages and relief as a court, including injunctive or other equitable relief and attorney’s fees. Checkr and you understand that, absent this mandatory arbitration provision, Checkr and you would have the right to sue in court and have a jury trial. Checkr and you further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.

If your claim is solely for monetary relief of $10,000 or less, and does not include a request for any type of equitable remedy, you may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the AAA Rules.

You may choose to pursue your claim in small claims court where jurisdiction and venue over Checkr and you otherwise qualify for such small claims court and where your claim does not include a request for any type of equitable relief.

You have the right to opt-out and not be bound by these arbitration provisions by sending written notice of your decision to opt-out to the following Email address [email protected] AND by U.S. Mail to Checkr, Inc., Legal Department, 1 Montgomery Street, Suite 2000, San Francisco, CA 94104. The notice must be sent within the later of 30 days of your first use of the Services or within 30 days of changes to this section being announced on the Services, otherwise you shall be bound to arbitrate any disputes, claims, or controversies in accordance with the terms of these paragraphs. If you opt-out of these arbitration provisions, Checkr also will not be bound by them. If you do not affirmatively elect to opt out as described above, your use of the Services will be deemed to be your irrevocable acceptance of these Terms and any changes/updates to this section or otherwise.

If any clause within these arbitration provisions is found to be illegal or unenforceable, that specific clause will be severed from these arbitration provisions, and the remainder of the arbitration provisions will be given full force and effect. In the event some or all of these arbitration provisions are determined to be unenforceable for any reason, or if a claim, dispute or controversy is brought that is found by a court to be excluded from the scope of these arbitration provisions, Checkr and you agree to waive, to the fullest extent allowed by law, any trial by jury.

The terms of these arbitration provisions will also apply to any claims asserted by you against any present or future parent or affiliated company of Checkr to the extent that any such claims arise out of your access to, and/or use of the Services, and/or the provision of content, services, and/or technology on or through the Services.

Class Action Waiver. PLEASE READ THIS SECTION CAREFULLY — IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.

Checkr and you agree that Checkr and you will resolve any disputes, claims or controversies on an individual basis, and that any claims brought under these Terms in connection with the Services will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. Checkr and you further agree that Checkr and you shall not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising under these Terms or in connection with the Services.

If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the disputes, claims or controversies will not be subject to arbitration and must be litigated in federal court located in San Francisco, California.

The terms of this provision will also apply to any claims asserted by you against any parent or affiliated company of Checkr to the extent that any such claims arise out of your access to, and/or use of the Services, and/or the provision of content, services, and/or technology on or through the Services.

Checkr will provide thirty (30) days’ notice of any changes to this Section 11 by posting on the Checkr website, sending you a message, or otherwise notifying you. Amendments will become effective thirty (30) days after they are posted on the Checkr website or sent to you.

Changes to this Section 11 will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled “Arbitration and Class Action Waiver,” and the court or arbitrator shall apply the first Arbitration and Class Action Waiver section in existence after you began using the Services.

This Arbitration and Class Action Waiver section shall survive any termination of the Services.

  1. Third-Party Links

The Services may contain links to third-party websites, and other resources that are not owned or controlled by Checkr. These links do not imply any endorsement by Checkr or the assumption of any responsibility for any such third-party sites, information, materials, products, or services. If you access a third-party website or resource from the Services, you do so at your own risk, and you understand that these Terms and Checkr’s Privacy Policy do not apply to your use of such links. You expressly relieve Checkr from any and all liability arising from your use of any third-party website, service, or content. You acknowledge and agree that Checkr is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources.

  1. General

13.1 Governing Law. These Terms are governed by California Law, excluding its choice of law rules. Except for claims subject to arbitration, each party submits to jurisdiction of the state and federal courts in San Francisco, California.

13.2 Assignment. You may not assign any of your rights or obligations under these Terms without the prior written consent of Checkr. Subject to the foregoing, these Terms inure 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.

13.3 Integration. The terms and conditions of these Terms reflect the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject.

13.4 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.

13.5 Miscellaneous. The parties are independent contractors, and these Terms do not create an agency, partnership or joint venture, or authority to bind the other party. There are no third-party beneficiaries to these Terms. 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 these Terms 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 these Terms 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 these Terms: 2-3, 5, and 8-13.