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Service Agreement

 

This is the service agreement to use ClearScreening Tenant Screening (“Service Agreement”).  Your acknowledgement and agreement to these terms, as well as the Terms and Conditions of the site www.clearscreening.com (“Site”), are required to access and/or use ClearScreening.  You agree to be legally bound by these terms.  This Service Agreement is made and entered into as by and between CLEARSCREENING and you/your company (“Subscriber”, “You” or “Property Owner”). In consideration of the promises and mutual covenants hereinafter set forth, CLEARSCREENING and Subscriber hereto agree as follows:

1.             Scope of Agreement. This Agreement applies to any of those information services which Subscriber may desire to receive from CLEARSCREENING and which CLEARSCREENING offers to Subscriber. Such information services shall herein be collectively referred to as “Services” and all information derived therefrom shall be collectively referred to as “Services Information.”  Subscriber enters in this Agreement on behalf of itself and its affiliates under common ownership and control, all of which are referred to collectively as Subscriber.

2.             Subscriber’s business.  Subscriber certifies that it is utilizing the Services solely for assisting with making a residential or storage leasing decision.

3.             Consumer Reporting Services.

3.1         Consumer Report Information. CLEARSCREENING makes certain consumer report information services from consumer reporting databases, including but not limited to consumer credit reports and criminal record reports (“Consumer Report Information”) available to its customers who have a permissible purpose for receiving such information in accordance with the Fair Credit Reporting Act (15 U.S.C. §1681 et seq.) including, without limitation, all amendments thereto (“FCRA”).  For the purposes of this Agreement, the term “adverse action” shall have the same meaning as that term is defined in the FCRA.

3.2         FCRA Penalties.  THE FCRA PROVIDES THAT ANY PERSON WHO KNOWINGLY AND WILLFULLY OBTAINS INFORMATION ON A CONSUMER FROM A CONSUMER REPORTING AGENCY UNDER FALSE PRETENSES SHALL BE FINED UNDER TITLE 18, OR IMPRISONED NOT MORE THAN TWO YEARS, OR BOTH.

3.3     Subscriber Certifications.  Subscriber certifies that it shall request Consumer Report Information pursuant to the written authorization of the consumer who is the subject of the Consumer Report Information. Subscriber certifies that each such written authorization will expressly authorize Subscriber to obtain the Consumer Report Information, and will contain at a minimum the subject’s name, address, social security number (where available) and signature.  Subscriber shall use such Consumer Report Information solely for Subscriber’s exclusive one-time use and pursuant to the consumer’s written authorization use such information solely for assisting with making a residential or storage leasing decision, and for no other purpose, subject however, to the additional restrictions set forth herein.  Moreover, if requested by CLEARSCREENING, Subscriber agrees to, and shall, individually certify the permissible purpose for each Consumer Report Information it requests.  Such individual certification shall be made by Subscriber pursuant to instructions provided from time to time to Subscriber by CLEARSCREENING. Nothing in this certification, or elsewhere in this Agreement, is intended to allow Subscriber to purchase Consumer Report Information for the purpose of selling or giving the report, or information contained in or derived from it, to the subject of the report, or to any other third party, and Subscriber expressly agrees to refrain from such conduct.

3.4     Recommendations.   Using Applicant and/or Tenant information provided to CLEARSCREENING by Subscriber (“Applicant/Tenant Information”), CLEARSCREENING will obtain consumer reports relating to each Applicant and/or Tenant and CLEARSCREENING will evaluate the consumer reports (“Applicant/Tenant Reviews”).  Based on the results of the Applicant/Tenant Reviews, CLEARSCREENING will provide to Subscriber a Recommendation with respect to the Applicant and/or Tenant, based on the initial thresholds established by CLEARSCREENING.  Such thresholds, delivery specifications and decision criteria, and any changes thereto, shall be supplied or confirmed by Subscriber in writing.  As part of the Recommendation service, CLEARSCREENING shall also provide to Subscriber a sample letter containing information as to why the Applicant and/or Tenant was or was not approved.  It is Subscriber’s obligation, however, to ensure compliance with any legal obligations when providing any information to an Applicant and/or Tenant.

3.4.2  All Rental Decisions to be made by Subscriber. Subscriber acknowledges and agrees that CLEARSCREENING provides only Recommendations as to actions concerning an Applicant or a Tenant, and further acknowledges and agrees that all decisions of whether or not to rent property to a particular Applicant or Tenant, as well as the length of and terms of any such rental, will be made by Subscriber.  CLEARSCREENING shall have no liability to Subscriber or to any Applicant, Tenant or other person or entity for any rental, or the failure to rent, to any Applicant or Tenant, or the terms of any such rental, regardless of whether or not Subscriber’s decision was based on Recommendations, Consumer Report Information, , public records, or other information provided to Subscriber by CLEARSCREENING.

3.6  Compliance with Laws.  Subscriber shall be responsible for compliance with all applicable federal (including, but not limited to the FCRA) and state legislation, regulations and judicial actions, as now or as may become effective, to which it is subject.

4         Ancillary Services

4.1         Fraud Prevention Services.  CLEARSCREENING offers several fraud prevention services that evaluate inquiry input elements against other input elements and/or against proprietary databases, to identify potential discrepancies and/or inaccuracies.  Fraud prevention service messages may be delivered with Consumer Report Information as a convenience, but are not part of a consumer’s file nor are they intended to be consumer reports.  In the event Subscriber obtains any fraud prevention services from CLEARSCREENING in conjunction with Consumer Report Information or as a stand alone service, Subscriber shall not use the fraud prevention services, in whole or in part, as a factor in establishing an individual’s creditworthiness or eligibility for credit or insurance, or employment, nor for any other purposes under the FCRA.  Moreover, Subscriber shall not take any adverse action, which is based in whole or in part on the fraud prevention services, against any consumer.  As a result of information obtained from the fraud prevention services, it is understood that Subscriber may choose to obtain additional information from one or more additional independent sources.  Any action or decision as to any individual which is taken or made by Subscriber based solely on such additional information obtained from such additional independent source(s) shall not be deemed prohibited by this paragraph.

4.2     Scores.  Subscriber may request, in writing, that CLEARSCREENING provide Subscriber certain scores (e.g. scores received from credit reporting agencies (“Bureau Score”), SmartMove, Score, CreditRetrieverSM Score), in connection with the delivery of a consumer report obtained hereunder, collectively referred to herein as “Scores” for Subscriber’s exclusive use. CLEARSCREENING agrees to perform such processing as reasonably practicable.  Subscriber shall use Scores only in accordance with its permissible purpose under the FCRA and may store Scores solely for Subscriber’s own use in furtherance of Subscriber’s original purpose for obtaining the Scores.  Subscriber shall not use the Scores for model development or model calibration and shall not reverse engineer the Scores.

4.2.1     Adverse Action Factors.  Subscriber recognizes that factors other than the Scores may be considered in making a decision as to a consumer.  Such other factors include, but are not limited to, the credit report, the individual account history, application information, and economic factors.  CLEARSCREENING may provide score reason codes to Subscriber, which are designed to indicate the principal factors that contributed to the Bureau Score, and may be disclosed to consumers as the reasons for taking adverse action, as required by the Equal Credit Opportunity Act (“ECOA”) and its implementing Regulation (“Reg. B”).  The Bureau Score itself, when accompanied by the corresponding reason codes, may also be disclosed to the consumer who is the subject of the Bureau Score.  However, the Bureau Score itself may not be used as the reason for adverse action under Reg. B.

4.2.2     Confidentiality of Scores. The CreditRetrieverSM Score and the SmartScreenScore are proprietary to CLEARSCREENING and the BureauScore is proprietary to the credit reporting agency supplying the Bureau Score and, accordingly, without appropriate prior written consent, neither the CreditRetrieverSM Score, the SmartScreenScore, or the Bureau Score may be sold, licensed, copied, reused, disclosed, reproduced, revealed or made accessible, in whole or in part, to any Person except: (a) as expressly permitted herein; (b) to those employees of Subscriber with a need to know and in the course of their employment; (c) to those third party processing agents of Subscriber who have executed an agreement that limits the use of the Scores by the third party only to the use permitted to Subscriber and contains the prohibitions set forth herein regarding model development, model calibration and reverse engineering; (d) when accompanied by the corresponding reason codes, to the consumer who is the subject of the Score;  or (e) as required by law.  Subscriber shall not, nor permit any third party to, publicly disseminate any results of the validations or other reports derived from the Scores without prior written consent.

4.2.3     Score Performance.  Certain Scores are implemented with standard minimum exclusion criteria.  CLEARSCREENING shall not be liable to Subscriber for any claim, injury or damage suffered directly or indirectly by Subscriber as a result of any Subscriber requested changes to the exclusion criteria which result in normally excluded records being scored by such Scores.  CLEARSCREENING warrants that the scoring algorithms used in the computation of the scoring services, provided under this Agreement, (“Models”) are empirically derived from credit data and are a demonstrably and statistically sound method of rank-ordering candidate records with respect to the purpose of the Scores when applied to the population for which they were developed, and that no scoring algorithm used by a Score uses a “prohibited basis” as that term is defined in ECOA and Reg. B promulgated thereunder.  The Bureau Score may appear on a credit report for convenience only, but is not a part of the credit report nor does it add to the information in the report on which it is based.

4.3     Third Party Scores and Other Third Party Services.  CLEARSCREENING has the capability to offer scores derived from models built jointly with third parties, and other services provided by third parties, which are subject to additional warranties offered or terms imposed by such third parties.  If desired by Subscriber, such third party scores and services shall be made available pursuant to separate agreement, which shall be appended as a schedule to this Agreement.

4.4         Subscriber Forms.  CLEARSCREENING may offer the ability to electronically maintain and make available to Subscriber, at Subscriber’s request and direction, Subscriber’s forms including, but not limited to, lease forms, lease addenda and consumer correspondence.  Subscriber acknowledges and agrees that it is Subscriber’s obligation to ensure the accuracy and completeness of the forms and to ensure its compliance with all applicable laws related to the use of such forms.  CLEARSCREENING makes no representations or warranties as to the content or use of such forms.

4.5         Subscriber Access.  Subscriber agrees that CLEARSCREENING may store data provided to Subscriber hereunder on behalf of Subscriber to be used by Subscriber solely for audit purposes and for no other purpose.  All data stored on behalf of Subscriber by CLEARSCREENING shall be owned by Subscriber and may not be modified in any manner.

5.      Additional Terms and Conditions.

5.1         Confidentiality.  Subscriber shall hold all Services Information in confidence and shall not disclose the Services to any third party, except as required by law (i.e., an order of a court or data request from an administrative or governmental agency with competent jurisdiction) to be disclosed; provided however, that Subscriber shall provide CLEARSCREENING ten (10) days prior written notice before the disclosure of such information pursuant to this Paragraph 5.1.  However, this restriction shall not prohibit Subscriber from disclosing to the subject of the Consumer Report Information, who is the subject of an adverse action, the content of the Consumer Report Information as it relates to any such adverse action.

5.2         Web Site Access.  CLEARSCREENING will provide Subscriber with access to CLEARSCREENING’s web site (the “CLEARSCREENING Site”) so that Subscriber may, by accessing the CLEARSCREENING Site, (i) initiate Applicant Reviews and Tenant Reviews and (ii) obtain or review CLEARSCREENING’s Recommendations to Subscriber.  CLEARSCREENING will assign one or more passwords and identification numbers (“Program Codes”) to Subscriber for use in accessing the CLEARSCREENING Site.  Subscriber represents and warrants that it will use its best reasonable efforts to ensure that: (1) only authorized Subscriber employees have access to the CLEARSCREENING Site through Workstations; (2) CLEARSCREENING Services obtained by Subscriber via the CLEARSCREENING Site are not accessible by unauthorized parties via Subscriber’s connection to the Internet or otherwise; (3) all Passwords are kept confidential and secure by such authorized Subscriber employees (e.g., Subscriber shall ensure that Passwords are not stored on any Workstation nor other storage and retrieval system and/or media and that Internet browser caching functionality is not used to store Passwords; (4) each User ID and Password is used solely by the authorized Subscriber employee to whom such User ID and Password was issued; and (5) all documentation and other materials provided by CLEARSCREENING to Subscriber under this Agreement are held in confidence by Subscriber (and accessible only to those Subscriber employees who Subscriber has authorized to use the CLEARSCREENING Site).  Subscriber shall immediately notify CLEARSCREENING if a Subscriber user with access to Program Codes no longer works for Subscriber and shall be fully responsible for any use of the CLEARSCREENING site by users accessing the site through the Program Codes assigned to the Subscriber.  In the event of any compromise of security involving User Ids or Passwords, Subscriber shall immediately notify CLEARSCREENING.

5.3         Safeguards.  Each party shall implement, and shall take measures to maintain, reasonable and appropriate administrative, technical, and physical security safeguards (“Safeguards”) to (a) insure the security and confidentiality of non-public personal information; (b) protect against anticipated threats or hazards to the security or integrity of non-public personal information; and (c) protect against unauthorized access or use of non-public personal information that could result in substantial harm or inconvenience to any consumer.  When a consumer’s first name or first initial and last name in combination with a social security number, driver’s license or Identification Card Number, or account number, credit or debit card number, in combination with any required security code, access code, or password that would permit access to an individual’s financial account (“Personal Information”), is delivered to Subscriber unencrypted, Subscriber shall implement and maintain reasonable security procedures and practices appropriate to the nature of the information and to protect the Personal Information from unauthorized access, destruction, use, modification, or disclosure.  Subscriber shall notify CLEARSCREENING in writing as soon as practicable but in no event later than forty-eight hours after which Subscriber becomes aware of any potential and/or actual misappropriation of, and/or any unauthorized disclosures of, any information provided to Subscriber by CLEARSCREENING, including, but not limited to theft, loss or interception of Consumer Report Information, unauthorized use of CLEARSCREENING subscriber codes and passwords, unauthorized entry to the facilities where CLEARSCREENING data may have been accessible, or unauthorized release of or access to CLEARSCREENING data by an employee or Agent of Subscriber. Subscriber shall fully cooperate with CLEARSCREENING in any communications to consumers regarding the data incident and mitigating, to the extent practicable, any damages due to such misappropriation and/or unauthorized disclosure.  Such cooperation shall include, but not necessarily be limited to, allowing CLEARSCREENING to participate in the investigation of the cause and extent of such misappropriation and/or unauthorized disclosure.  Such cooperation shall not relieve Subscriber of any liability it may have as a result of such a misappropriation and/or unauthorized disclosure.  Moreover, without CLEARSCREENING’s prior consent, Subscriber shall make no public notification, including but not limited to press releases or consumer notifications, of the potential or actual occurrence of such misappropriation and/or unauthorized disclosure of any such information provided to Subscriber.

5.4         Authorized Requests.  Subscriber shall use the Services: (a) for its certified permissible purpose above to assist in making a residential or storage leasing decision; (b) solely for Subscriber’s exclusive one-time use; and (c) subject to the terms and conditions of this Agreement.  Subscriber shall not request, obtain or use Services for any other purpose including, but not limited to, for the purpose of selling, leasing, renting or otherwise providing information obtained under this Agreement to any other party, whether alone, in conjunction with Subscriber’s own data, or otherwise in any service which is derived from the Services.  Services shall be requested by, and disclosed by Subscriber to only Subscriber’s designated and authorized employees having a need to know and only to the extent necessary to enable Subscriber to use the Services in accordance with this Agreement.  Subscriber shall ensure that such Subscriber designated and authorized employees shall not attempt to obtain any Services on themselves, associates, or any other person except in the exercise of their official duties.

5.5         Third Party Intermediaries.  In the event Subscriber will utilize a third party intermediary (e.g., Internet service provider or other network provider) for the purpose of receiving Services, Subscriber shall first enter into an agreement with such third party under which such third party acts solely as a network conduit for the delivery of the Services to Subscriber and which prohibits such third party from using, or otherwise accessing, the Services for any other purpose.  Subscriber shall be solely liable for any actions or omissions of such third parties which result in a breach of this Agreement.

5.6          Rights to Services.  Subscriber shall not attempt, directly or indirectly, to reverse engineer, decompile, or disassemble Services or any confidential or proprietary criteria developed or used by CLEARSCREENING relating to the Services provided under this Agreement.  Except as explicitly set forth in this Agreement, the entire right, title and interest in and to the Services shall at all times vest exclusively in CLEARSCREENING.  CLEARSCREENING reserves all rights not explicitly granted to Subscriber under this Agreement.

5.7         Fees and Payments.  Though Subscriber has the option to request that the applicant/prospective tenant pay for the Services, the Subscriber is ultimately responsible to CLEARSCREENING for the full payment of the Services.  The fees associated with the Services are as stated on the website and are incorporated by reference.  Upon delivery of the Services, Subscriber will be responsible for immediate payment, and outstanding amounts will be subject to a late charge of one and one-half percent (1.5%) per month (18% per year) or the maximum allowed by law, whichever is less.  If collection efforts are required, Subscriber shall pay all costs of collection, including reasonable attorney’s fees.  Any periodic and/or minimum Subscriber fees under this Agreement are non-refundable, in whole or in part, in the event of a termination of this Agreement.  CLEARSCREENING reserves the right to change the fees and charges from time to time, with such changes referenced on the website.

5.7.1          In addition, in the event that CLEARSCREENING’s cost of rendering Services increases as a result of federal, state or local laws, ordinances or other regulatory, administrative or governmental acts, then CLEARSCREENING may implement a surcharge subject to the following: (a) any surcharge will be applicable generally to CLEARSCREENING’s customers; and (b) any surcharge will be applied only to services pertaining to consumers in the geographic area so affected.  A legislative surcharge is imposed on certain types of reports pertaining to consumers residing in the United States, and an additional surcharge is imposed on certain reports pertaining to only Colorado residents.

5.8         Term, Termination and Survival.  The term of this Agreement shall commence upon the agreeing to the terms of this Agreement and shall remain in effect until terminated by any party hereto for any reason whatsoever.

5.8.1          With the exception of CLEARSCREENING’s obligation to provide Services under this Agreement, all provisions of this Agreement shall survive any such termination of this Agreement including, but not limited to, all restrictions on Subscriber’s use of Services Information.  Moreover, any such termination shall not relieve Subscriber of any fees or other payments due to CLEARSCREENING through the date of any such termination nor affect any rights, duties or obligations of either party that accrue prior to the effective date of any such termination.

5.9         Limited Warranty.  CLEARSCREENING represents and warrants that the Services will be provided in a professional and workmanlike manner consistent with industry standards. CLEARSCREENING DOES NOT WARRANT THE SERVICES TO BE UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICES WILL MEET SUBSCRIBER’S REQUIREMENTS.     THE WARRANTY SET FORTH IN THIS SECTION 5.10 IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES THAT MIGHT BE IMPLIED FROM A COURSE OF PERFORMANCE OR DEALING OR TRADE USAGE OR WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 

5.10      Limitation of Liability. CLEARSCREENING’S SOLE LIABILITY, AND SUBSCRIBER’S SOLE REMEDY, FOR VIOLATIONS OF THIS AGREEMENT BY CLEARSCREENING OR FOR BREACH OF CLEARSCREENING’S OBLIGATIONS SHALL BE THE CORRECTION OF ANY DEFECTIVE SERVICE OR THE REFUND OF FEES PAID FOR SAME.     

5.10.1      IN NO EVENT SHALL CLEARSCREENING BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF GOOD WILL AND LOST PROFITS OR REVENUE, WHETHER OR NOT SUCH LOSS OR DAMAGE IS BASED IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, INDEMNITY, OR OTHERWISE, EVEN IF CLEARSCREENING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

5.10.2      ADDITIONALLY, CLEARSCREENING SHALL NOT BE LIABLE TO SUBSCRIBER FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT BROUGHT MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION HAS ACCRUED. 

5.11      Assignment and Subcontracting.  Neither party may assign or otherwise transfer this Agreement, in whole or in part without the prior written consent of the other. Notwithstanding the foregoing, CLEARSCREENING may assign or transfer this Agreement to a wholly-owned subsidiary or in the event of a purchase of substantially all of CLEARSCREENING’s assets or in the event of a corporate form reorganization (e.g., LLC to C-Corporation).  Moreover, CLEARSCREENING shall have the unrestricted right to subcontract the Services to be provided to Subscriber by CLEARSCREENING under this Agreement; provided however, that such subcontracting shall not relieve CLEARSCREENING of its obligations under this Agreement.  The limited warranty and limitation of liability provisions set forth in this Agreement shall also apply for the benefit of CLEARSCREENING’s licensors, subcontractors and agents.

5.12      No Waiver.  No failure on the part of either party to enforce any covenant, agreement, or condition of this Agreement shall operate as a discharge of such covenant, agreement, or condition, or render the same invalid, or impair the right of either party to enforce the same in the event of any subsequent breach by the other party.

5.13      Independent Contractors.  This Agreement is not intended to create or evidence any employer-employee arrangement, agency, partnership, joint venture, or similar relationship.

5.14      Severability.  Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.

5.15      Force Majeure.  CLEARSCREENING shall not be liable for any delay in performance or failure to perform under this Agreement if such delay or failure us caused by conditions beyond CLEARSCREENING’ reasonable control.

5.16      Audit Rights. During the term of this Agreement and for a period of five (5) years thereafter, CLEARSCREENING may audit Subscriber’s policies, procedures and records which pertain to this Agreement, to ensure compliance with this Agreement, upon reasonable notice and during normal business hours.

5.17      Governing Law.  This Agreement shall be construed and governed by the laws of the State of Illinois, without reference to the choice of law principles thereof.

5.18      Notices.  Subscriber acknowledges and agrees that any notice provided by CLEARSCREENING to any electronic mail address provided by Subscriber shall suffice for proper notice under this Agreement.  Additionally, all of Subscriber’s communications or notices required or permitted by this Agreement shall be sufficiently given for all purposes hereunder if given in writing and delivered to CLEARSCREENING (i) personally, (ii) by United States first class mail, (iii) by reputable overnight delivery service, (iv) by electronic mail, or (v) by facsimile.  All notices delivered in accordance with this Section for CLEARSCREENING shall be sent to the appropriate address or number, as set forth below:

CLEARSCREENING:            ClearScreening

132 Joe Knox Ave #100 Mooresville NC, 28117

5.19      Trademarks.   Both Subscriber and CLEARSCREENING shall submit to the other party for written approval, prior to use, distribution, or disclosure, any material including, but not limited to, all advertising, promotion, or publicity in which any trade name, trademark, service mark, and/or logo (hereinafter collectively referred to as the “Marks”) of the other party are used (the “Materials”).  Both parties shall have the right to require, at each party’s respective discretion and as communicated in writing, the correction or deletion of any misleading, false, or objectionable material from any Materials.  Moreover, when using the other party’s Marks pursuant to this Agreement, a party shall take all reasonable measures required to protect the other party’s rights in such Marks, including, but not limited to, the inclusion of a prominent legend identifying such Marks as the property of the other party. In using each other’s Marks pursuant to this Agreement, each party acknowledges and agrees that (i) the other party’s Marks are and shall remain the sole properties of the other party, (ii) nothing in this Agreement shall confer in a party any right of ownership in the other party’s Marks, and (iii) neither party shall contest the validity of the other party’s Marks. Notwithstanding anything in this Agreement to the contrary, without the prior written approval of Subscriber, CLEARSCREENING shall have the right to disclose to third parties Subscriber’s marks in consumer credit reports containing Subscriber’s account information.

5.20      By signing this Agreement, Subscriber acknowledges receipt of a copy of the Federal Trade Commission’s “Notice to Users of Consumer Reports: Obligations of Users Under the FCRA” and a copy of the Federal Trade Commission’s “Notices to Furnishers of Information: Obligations of Furnishers Under the FCRA”.

5.21      The individual executing this Agreement has direct knowledge of all facts certified and the authority to both execute this Agreement on behalf of Subscriber and bind Subscriber to the terms of this Agreement.

5.22      ID Manager Service:  In connection with the Services, Subscriber desires to obtain TransUnion’s ID Manager Service pursuant to the following additional terms and conditions:

5.22.1      With respect to request for ID Manager Service, Subscriber hereby certifies that its use of the ID Manager Service will be requested, obtained and used for one or more of the following permitted uses as described in, and as may be interpreted from time to time, by competent legislative, regulatory or judicial authority, as being encompassed by, Section (6802) (e) of the Gramm-Leach-Bliley Act (GLB), Title V, Subtitle A, Financial Privacy (15 U.S.C. § 6801-6809) and the United States Federal Trade Commission rules promulgated thereunder.

o        To protect against or prevent actual fraud, unauthorized transactions, claims or other liability; or

o        To comply with Federal, State or local laws, rules and other applicable legal requirements.

5.22.2      Subscriber further represents that:

(a) Subscriber shall not request, obtain or use such ID Manager Service for any other purpose including, but not limited to, in whole or in part, as a factor in establishing an individual’s creditworthiness or eligbility for (i) credit or insurance, or (ii) employment, nor for any other purpose under the FCRA.  Moreover, Subscriber shall not take any adverse action, which is based in whole or in part on the ID Manager Service, against any consumer.

(b) Subscriber shall comply with all other applicable federal, state and local laws, statutes, rules and regulations including, but not limited to, the Drivers Privacy Protection Act.

5.22.3      To the extent that the ID Manager Service requested by Subscriber utilize, in whole or in part, Consumer Reports as defined in the FCRA, Subscriber certifies that it will request and use each such request ID Manager Service solely for one of the permissible purposes certified below:

o        In connection with a credit transaction involving the individual on whom the information is to be furnished and involving the extension of credit to the individual.

o        Pursuant to the written authorization of the individual who is subject of the individual ID Manager Service request.

o        In connection with a business transaction initiated by the individual.

5.22.4      Subscriber expressly acknowledges and agrees that where the ID Manager Service to be provided to Subscriber under this Agreement utilizes Consumer Reports CLEARSCREENING expresses no opinion regarding a Consumer’s creditworthiness in rendering such ID Manager Service.  Moreover, in the event Subscriber’s requested ID Manager Service utilize, in whole or in part, Consumer Reports, without limiting Subscriber’s obligations set forth elsewhere in this Agreement, Subscriber shall comply with any and all adverse action notice requirements of the FCRA.

Entire Agreement.  THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ALL EXHIBITS AND ATTACHMENTS HERETO, CONSTITUTES THE ENTIRE AGREEMENT BETWEEN CLEARSCREENING AND SUBSCRIBER AND SUPERSEDES ALL PREVIOUS AGREEMENTS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, SOLELY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT.  THIS AGREEMENT MAY NOT BE ALTERED, AMENDED, OR MODIFIED EXCEPT BY WRITTEN INSTRUMENT SIGNED BY THE DULY AUTHORIZED REPRESENTATIVES OF BOTH PARTIES.  

 

NOTICE TO USERS OF CONSUMER REPORTS:

OBLIGATIONS OF USERS UNDER THE FCRA

The Fair Credit Reporting Act (FCRA),15 U.S.C. 1681-1681y, requires that this notice be provided to inform users of consumer reports of their legal obligations. State law may impose additional requirements. The text of the FCRA is set forth in full at the Federal Trade Commission’s Website at www.ftc.gov/credit. At the end of this document is a list of United States Code citations for the FCRA. Other information about user duties is also available at the Commission’s Web site. Users must consult the relevant provisions of the FCRA for details about their obligations under the FCRA.

The first section of this summary sets forth the responsibilities imposed by the FCRA on all users of consumer reports. The subsequent sections discuss the duties of users of reports that contain specific types of information, or that are used for certain purposes, and the legal consequences of violations. If you are a furnisher of information to a consumer reporting agency (CRA), you have additional obligations and will receive a separate notice from the CRA describing your duties as a furnisher.

I. OBLIGATIONS OF ALL USERS OF CONSUMER REPORTS

A. Users Must Have a Permissible Purpose

Congress has limited the use of consumer reports to protect consumers’ privacy. All users must have a permissible purpose under the FCRA to obtain a consumer report. Section 604 contains a list of the permissible purposes under the law. These are:

• As ordered by a court or a federal grand jury subpoena. Section 604(a)(1)

• As instructed by the consumer in writing. Section 604(a)(2)

• For the extension of credit as a result of an application from a consumer, or the review or collection of a consumer’s    account. Section 604(a)(3)(A)

• For employment purposes, including hiring and promotion decisions, where the consumer has given written permission. Sections 604(a)(3)(B) and 604(b)

• For the underwriting of insurance as a result of an application from a consumer. Section 604(a)(3)(C)

• When there is a legitimate business need, in connection with a business transaction that is initiated by the consumer. Section 604(a)(3)(F)(i)

• To review a consumer’s account to determine whether the consumer continues to meet the terms of the account. Section 604(a)(3)(F)(ii)

• To determine a consumer’s eligibility for a license or other benefit granted by a governmental instrumentality required by law to consider an applicant’s financial responsibility or status. Section 604(a)(3)(D)

• For use by a potential investor or servicer, or current insurer, in a valuation or assessment of the credit or prepayment risks associated with an existing credit obligation. Section 604(a)(3)(E)

• For use by state and local officials in connection with the determination of child support payments, or modifications and enforcement thereof. Sections 604(a)(4) and 604(a)(5)

In addition, creditors and insurers may obtain certain consumer report information for the purpose of making “prescreened” unsolicited offers of credit or insurance. Section 604(c). The particular obligations of users of “prescreened” information are described in Section VII below.

B. Users Must Provide Certifications

Section 604(f) prohibits any person from obtaining a consumer report from a consumer reporting agency (CRA) unless the person has certified to the CRA the permissible purpose(s) for which the report is being obtained and certifies that the report will not be used for any other purpose.

C. Users Must Notify Consumers When Adverse Actions Are Taken

The term “adverse action” is defined very broadly by Section 603. “Adverse actions” include all business, credit, and employment actions affecting consumers that can be considered to have a negative impact as defined by Section 603(k) of the FCRA – such as denying or canceling credit or insurance, or denying employment or promotion. No adverse action occurs in a credit transaction where the creditor makes a counteroffer that is accepted by the consumer.

1. Adverse Actions Based on Information Obtained From a CRA

If a user takes any type of adverse action as defined by the FCRA that is based at least in part on information contained in a consumer report, Section 615(a) requires the user to notify the consumer. The notification may be done in writing, orally, or by electronic means. It must include the following:

• The name, address, and telephone number of the CRA (including a toll-free telephone number, if it is a nationwide CRA) that provided the report.

• A statement that the CRA did not make the adverse decision and is not able to explain why the decision was made.

• A statement setting forth the consumer’s right to obtain a free disclosure of the consumer’s file from the CRA if the consumer makes a request within 60 days.

• A statement setting forth the consumer’s right to dispute directly with the CRA the accuracy or completeness of any information provided by the CRA.

2. Adverse Actions Based on Information Obtained From Third Parties Who Are Not Consumer Reporting Agencies

If a person denies (or increases the charge for) credit for personal, family, or household purposes based either wholly or partly upon information from a person other than a CRA, and the information is the type of consumer information covered by the FCRA, Section 615(b)(1) requires that the user clearly and accurately disclose to the consumer his or her right to be told the nature of the information that was relied upon if the consumer makes a written request within 60 days of notification. The user must provide the disclosure within a reasonable period of time following the consumer’s written request.

3. Adverse Actions Based on Information Obtained From Affiliates

If a person takes an adverse action involving insurance, employment, or a credit transaction initiated by the consumer, based on information of the type covered by the FCRA, and this information was obtained from an entity affiliated with the user of the information by common ownership or control, Section 615(b)(2) requires the user to notify the consumer of the adverse action. The notice must inform the consumer that he or she may obtain a disclosure of the nature of the information relied upon by making a written request within 60 days of receiving the adverse action notice. If the consumer makes such a request, the user must disclose the nature of the information not later than 30 days after receiving the request. If consumer report information is shared among affiliates and then used for an adverse action, the user must make an adverse action disclosure as set forth in I.C.1 above.

D. Users Have Obligations When Fraud and Active Duty Military Alerts are in Files

When a consumer has placed a fraud alert, including one relating to identity theft, or an active duty military alert with a nationwide consumer reporting agency as defined in Section 603(p) and resellers, Section 605A(h) imposes limitations on users of reports obtained from the consumer reporting agency in certain circumstances, including the establishment of a new credit plan and the issuance of additional credit cards. For initial fraud alerts and active duty alerts, the user must have reasonable policies and procedures in place to form a belief that the user knows the identity of the applicant or contact the consumer at a telephone number specified by the consumer; in the case of extended fraud alerts, the user must contact the consumer in accordance with the contact information provided in the consumer’s alert.

E. Users Have Obligations When Notified of an Address Discrepancy

Section 605(h) requires nationwide CRAs, as defined in Section 603(p), to notify users that request reports when the address for a consumer provided by the user in requesting the report is substantially different from the addresses in the consumer’s file. When this occurs, users must comply with regulations specifying the procedures to be followed, which will be issued by the Federal Trade Commission and the banking and credit union regulators. The Federal Trade Commission’s regulations will be available at www.ftc.gov/credit.

F. Users Have Obligations When Disposing of Records

Section 628 requires that all users of consumer report information have in place procedures to properly dispose of records containing this information. The Federal Trade Commission, the Securities and Exchange Commission, and the banking and credit union regulators have issued regulations covering disposal. The Federal Trade Commission’s regulations may be found at www.ftc.gov/credit.

II. CREDITORS MUST MAKE ADDITIONAL DISCLOSURES

If a person uses a consumer report in connection with an application for, or a grant, extension, or provision of, credit to a consumer on material terms that are materially less favorable than the most favorable terms available to a substantial proportion of consumers from or through that person, based in whole or in part on a consumer report, the person must provide a risk-based pricing notice to the consumer in accordance with regulations to be jointly prescribed by the Federal Trade Commission and the Federal Reserve Board. Section 609(g) requires a disclosure by all persons that make or arrange loans secured by residential real property (one to four units) and that use credit scores. These persons must provide credit scores and other information about credit scores to applicants, including the disclosure set forth in Section 609(g)(1)(D) (“Notice to the Home Loan Applicant”).

III. OBLIGATIONS OF USERS WHEN CONSUMER REPORTS ARE OBTAINED FOR EMPLOYMENT PURPOSES

A. Employment Other Than in the Trucking Industry

If information from a CRA is used for employment purposes, the user has specific duties, which are set forth in Section 604(b) of the FCRA. The user must:

• Make a clear and conspicuous written disclosure to the consumer before the report is obtained, in a document that consists solely of the disclosure, that a consumer report may be obtained.

• Obtain from the consumer prior written authorization. Authorization to access reports during the term of employment may be obtained at the time of employment.

• Certify to the CRA that the above steps have been followed, that the information being obtained will not be used in violation of any federal or state equal opportunity law or regulation, and that, if any adverse action is to be taken based on the consumer report, a copy of the report and a summary of the consumer’s rights will be provided to the consumer.

• Before taking an adverse action, the user must provide a copy of the report to the consumer as well as the summary of consumer’s rights. (The user should receive this summary from the CRA.) A Section 615(a) adverse action notice should be sent after the adverse action is taken.

An adverse action notice also is required in employment situations if credit information (other than transactions and experience data) obtained from an affiliate is used to deny employment. Section 615(b)(2)

The procedures for investigative consumer reports and employee misconduct investigations are set forth below.

B. Employment in the Trucking Industry

Special rules apply for truck drivers where the only interaction between the consumer and the potential employer is by mail, telephone, or computer. In this case, the consumer may provide consent orally or electronically, and an adverse action may be made orally, in writing, or electronically. The consumer may obtain a copy of any report relied upon by the trucking company by contacting the company.

IV. OBLIGATIONS WHEN INVESTIGATIVE CONSUMER REPORTS ARE USED

Investigative consumer reports are a special type of consumer report in which information about a consumer’s character, general reputation, personal characteristics, and mode of living is obtained through personal interviews by an entity or person that is a consumer reporting agency. Consumers who are the subjects of such reports are given special rights under the FCRA. If a user intends to obtain an investigative consumer report, Section 606 requires the following:

• The user must disclose to the consumer that an investigative consumer report may be obtained. This must be done in a written disclosure that is mailed, or otherwise delivered, to the consumer at some time before or not later than three days after the date on which the report was first requested. The disclosure must include a statement informing the consumer of his or her right to request additional disclosures of the nature and scope of the investigation as described below, and the summary of consumer rights required by Section 609 of the FCRA. (The summary of consumer rights will be provided by the CRA that conducts the investigation.)

• The user must certify to the CRA that the disclosures set forth above have been made and that the user will make the disclosure described below.

• Upon the written request of a consumer made within a reasonable period of time after the disclosures required above, the user must make a complete disclosure of the nature and scope of the investigation. This must be made in a written statement that is mailed, or otherwise delivered, to the consumer no later than five days after the date on which the request was received from the consumer or the report was first requested, whichever is later in time.

V. SPECIAL PROCEDURES FOR EMPLOYEE INVESTIGATIONS

Section 603(x) provides special procedures for investigations of suspected misconduct by an employee or for compliance with Federal, state or local laws and regulations or the rules of a self-regulatory organization, and compliance with written policies of the employer. These investigations are not treated as consumer reports so long as the employer or its agent complies with the procedures set forth in Section 603(x), and a summary describing the nature and scope of the inquiry is made to the employee if an adverse action is taken based on the investigation.

VI. OBLIGATIONS OF USERS OF MEDICAL INFORMATION

Section 604(g) limits the use of medical information obtained from consumer reporting agencies (other than payment information that appears in a coded form that does not identify the medical provider). If the information is to be used for an insurance transaction, the consumer must give consent to the user of the report or the information must be coded. If the report is to be used for employment purposes – or in connection with a credit transaction (except as provided in regulations issued by the banking and credit union regulators) – the consumer must provide specific written consent and the medical information must be relevant. Any user who receives medical information shall not disclose the information to any other person (except where necessary to carry out the purpose for which the information was disclosed, or as permitted by statute, regulation, or order).

VII. OBLIGATIONS OF USERS OF “PRESCREENED” LISTS

The FCRA permits creditors and insurers to obtain limited consumer report information for use in connection with unsolicited offers of credit or insurance under certain circumstances. Sections 603(l), 604(c), 604(e), and 615(d). This practice is known as “prescreening” and typically involves obtaining from a CRA a list of consumers who meet certain pre-established criteria. If any person intends to use prescreened lists, that person must (1) before the offer is made, establish the criteria that will be relied upon to make the offer and to grant credit or insurance, and (2) maintain such criteria on file for a three-year period beginning on the date on which the offer is made to each consumer. In addition, any user must provide with each written solicitation a clear and conspicuous statement that:

• Information contained in a consumer’s CRA file was used in connection with the transaction.

• The consumer received the offer because he or she satisfied the criteria for credit worthiness or insurability used to screen for the offer.

• Credit or insurance may not be extended if, after the consumer responds, it is determined that the consumer does not meet the criteria used for screening or any applicable criteria bearing on credit worthiness or insurability, or the consumer does not furnish required collateral.

• The consumer may prohibit the use of information in his or her file in connection with future prescreened offers of credit or insurance by contacting the notification system established by the CRA that provided the report. The statement must include the address and toll-free telephone number of the appropriate notification system.

In addition, once the Federal Trade Commission by rule has established the format, type size, and manner of the disclosure required by Section 615(d), users must be in compliance with the rule. The FTC’s regulations will be at www.ftc.gov/credit.

VIII. OBLIGATIONS OF RESELLERS

A. Disclosure and Certification Requirements

Section 607(e) requires any person who obtains a consumer report for resale to take the following steps:

• Disclose the identity of the end-user to the source CRA.

• Identify to the source CRA each permissible purpose for which the report will be furnished to the end-user.

• Establish and follow reasonable procedures to ensure that reports are resold only for permissible purposes, including procedures to obtain:

(1) the identity of all end-users;

(2) certifications from all users of each purpose for which reports will be used; and

(3) certifications that reports will not be used for any purpose other than the purpose(s) specified to the reseller. Resellers must make reasonable efforts to verify this information before selling the report.

B. Reinvestigations by Resellers

Under Section 611(f), if a consumer disputes the accuracy or completeness of information in a report prepared by a reseller, the reseller must determine whether this is a result of an action or omission on its part and, if so, correct or delete the information. If not, the reseller must send the dispute to the source CRA for reinvestigation. When any CRA notifies the reseller of the results of an investigation, the reseller must immediately convey the information to the consumer.

C. Fraud Alerts and Resellers

Section 605A(f) requires resellers who receive fraud alerts or active duty alerts from another consumer reporting agency to include these in their reports.

IX. LIABILITY FOR VIOLATIONS OF THE FCRA

Failure to comply with the FCRA can result in state government or federal government enforcement actions, as well as private lawsuits. Sections 616, 617, and 621. In addition, any person who knowingly and willfully obtains a consumer report under false pretenses may face criminal prosecution. Section 619.

The FTC’s Web site, www.ftc.gov/credit, has more information about the FCRA, including publications for businesses and the full text of the FCRA.

Citations for FCRA sections in the U.S. Code, 15 U.S.C. § 1681 et seq.:

Section 602 15 U.S.C. 1681

Section 603 15 U.S.C. 1681a

Section 604 15 U.S.C. 1681b

Section 605 15 U.S.C. 1681c

Section 605A 15 U.S.C. 1681cA

Section 605B 15 U.S.C. 1681cB

Section 606 15 U.S.C. 1681d

Section 607 15 U.S.C. 1681e

Section 608 15 U.S.C. 1681f

Section 609 15 U.S.C. 1681g

Section 610 15 U.S.C. 1681h

Section 611 15 U.S.C. 1681i

Section 612 15 U.S.C. 1681j

Section 613 15 U.S.C. 1681k

Section 614 15 U.S.C. 1681l

Section 615 15 U.S.C. 1681m

Section 616 15 U.S.C. 1681n

Section 617 15 U.S.C. 1681o

Section 618 15 U.S.C. 1681p

Section 619 15 U.S.C. 1681q

Section 620 15 U.S.C. 1681r

Section 621 15 U.S.C. 1681s

Section 622 15 U.S.C. 1681s-1

Section 623 15 U.S.C. 1681s-2

Section 624 15 U.S.C. 1681t

Section 625 15 U.S.C. 1681u

Section 626 15 U.S.C. 1681v

Section 627 15 U.S.C. 1681w

Section 628 15 U.S.C. 1681x

Section 629 15 U.S.C. 1681y