THIS SERVICE AGREEMENT (“Agreement”)
is entered into the as of date shown in the signature line below (“Effective Date”) by and between ACUTRAQ Background Screening, a company existing under the laws of Arkansas with an address of PO Box 766, Elkins Arkansas 72727, (“ACUTRAQ”), and the Company named and located as denoted in the description below(“Customer”).
Customer will purchase and ACUTRAQ will provide the services describedin the pricing table appended to this Agreement (“Pricing Table”) which has beenentered into between Customer and ACUTRAQ under this Agreement (“Services”).
2. TERM AND TERMINATION.
Except as set forth herein, this Agreement will become effective on the Effective Date and will continue in full force and effect until it is terminated by either party pursuant to the terms contained herein, t.Either party may terminate this Agreement for convenience upon ten (10) days written notice to the other party.
Either party may terminate this Agreement if the other party materially breaches this Agreement and such breaching party fails to cure the breach or implement a plan of action that is mutually acceptable to the parties to cure such breach, within ten (10) days after receipt of written notice from the non-breaching party specifying in reasonable detail the nature of the breach. ACUTRAQ may immediately terminate this Agreement for misuse of the Services or information provided thereunder.
Upon the termination of this Agreement, the following shall apply: (a) the parties shall cooperate to effect an orderly, efficient, effective and expeditious termination of the activities hereunder; (b) ACUTRAQ shall return to Customer any and all Customerfurnished items delivered by Customer to ACUTRAQhereunder; (c) ACUTRAQshall have no obligation to perform any services hereunder after the effective date of the termination; (d) Customer shall pay to ACUTRAQ any service fees or other amounts payable for the services performed hereunder prior to the effective date of the termination; and (e) the parties’ respective rights and obligations under this paragraph, and the covenants contained in this Agreement which, by their terms, require performance by the parties after the expiration or termination of this Agreement shall survive and be enforceable notwithstanding the expiration or termination of this Agreement for any reason whatsoever.
3. CUSTOMER CERTIFICATIONS AND OBLIGATIONS.
Customer certifies that the information contained in the Services provided by ACUTRAQ will be used only for a one time use and for the following permissible purpose, as indicated below, and that it will not use the information contained in the Reports for any other purpose:
- For employment and/or volunteer purposes, including evaluating a consumer for employment, promotion, reassignment or retention as an employee and/or volunteer (FCRA § 604(a)(3)(B)).
- In accordance with the written instructions of the consumer to whom it relates. (FCRA § 604(a)(2))
- For a legitimate business need for the information, in connection with a business transaction that is initiated by the consumer, such as for the purpose of tenant screening. (FCRA § 604(a)(3)(F)(i)).
Customer shall comply with all applicable state and federal laws regarding the use of the Services including the Fair Credit Reporting Act, (“FCRA”), and the Driver’s Privacy Protection Act (“DPPA”). Customer will not use information contained in the Services to discriminate unlawfully against consumer or otherwise misuse the information, as provided by any applicable federal or state equal opportunity laws or regulations. Customer is responsible for its own regulatory compliance and staying current with the applicable laws involved in the use of the Services.
Customer shall hold the Services in strict confidence and all information contained within the Services will be treated as Confidential Information.The Services shall be requested by and disclosed by Customer only to Customer’s designated and authorized employees having a need to know and only to the extent necessary to enable Customer to use the Services in accordance with this Agreement. Customer shall ensure that such designated and authorized employees shall not attempt to obtain any Services on themselves, associates, or any other person except in the exercise of their official duties.
If the information products Customer obtains from ACUTRAQ are to be used for an employment purpose, Customer certifies that prior to obtaining or causing a “consumer report” and/or “investigative consumer report” to be obtained, a clear and conspicuous disclosure, in a document consisting solely of the disclosure, will be made in writing to the consumer explaining that a consumer report and/or investigative consumer report may be obtained for employment purposes. This disclosure will satisfy all requirements identified in Section 606(a)(1) of the FCRA, as well as any applicable state or local laws. The Customer shall obtain the consumer’swritten authorizationto procure the report. Customer shall maintain the signed authorization form for a period of six (6) years.
If applicable, Customer shall follow prescribed pre-adverse action procedures as prescribed in the FCRA and applicable state laws for reports that are being used for an employment purpose. This includes the requirement to provide a consumer with a copy of the Report and A Summary of Your Rights under the Fair Credit Reporting Act before taking any adverse action against the consumer, based in whole or in part, on the Services provided by ACUTRAQ. If Customer actually takes adverse action then after the appropriate waiting period, Customer will issue to the consumer notice of the adverse action taken, including the statutorily required notices identified in Sections 604 and 615 of the FCRA.
Customer further acknowledges that ACUTRAQis not legal counsel and does not provide legal advice. It is important that Customer obtain and work closely with their own legal counsel to ensure that their overall screening program, including the use of the Services, complies with all applicable state and federal laws.
Customer certifies that if they order credit reports, they shall use such credit reports: (a) solely for the certified use(s); and (b) solely for their exclusive one-time use. Customer shall not request, obtain or use the credit reports for any other purpose including, but not limited to, for the purpose of selling, leasing, renting or otherwise providing information obtained under this Agreement to any other party, whether alone, in conjunction with Customer’s own data, or otherwise in any service which is derived from the credit reports. Customer represents it is not a private detective agency, investigative company, bail bondsman, credit or financial counselling firm, ‘credit repair clinic” or a similar organization.Customer is aware those individuals involved in the improper requesting of consumer report information may be subject to criminal penalties of imprisonment up to one year and/or a fine of $5,000 for each offense. 15 U.S.C. § 1681q
If the Services include motor vehicle information (“MVRs”), Customer shall be responsible for understanding and for staying current with all specific state forms, certificates of use or other documents or agreements including any changes, supplements or amendments thereto imposed by the states (“Specific State Forms”) from which it will order MVRs. Customer certifies that it has executed and filed all applicable Specific State Forms required by individual states and agrees to supplement and execute additional Specific State Forms if reasonably requested to do so by ACUTRAQ.
Customer hereby certifies that, under the Investigative consumer reporting Agencies Act (“ICRA”), California Civil Code Sections 1786 et seq., and the Consumer Credit Reporting Agencies Act (“CCRAA”), California Civil Code Sections 1785.1 et seq., if the Customer is located in the State of California, and/or the Customer’s request for and/or use of Services pertains to a California resident or worker, Customer will do the following:
- (i) When, at any time, Services are sought for employment purposes other than suspicion of wrongdoing or misconduct by the consumer who is the subject of the investigation, abide by the requirements of ICRA Section 1786.16(a) – (b).
- (ii) When, at any time, Information Products are sought for employment purposes other than suspicion of wrongdoing or misconduct by the consumer who is the subject of the investigation, provide a clear and conspicuous disclosure in writing to the consumer, which solely discloses: (1) that an investigative Information Products may be obtained; (2) the permissible purpose of the investigative Information Products; (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.
ADDITIONAL RESPONSIBILITIES. Customer will request credit scores only for Customer’s exclusive use. Customer may store the credit scores solely for Customer’s own use in furtherance of Customer’s original purpose for obtaining the credit scores. All credit scores provided hereunder will be held in strict confidence and may never be sold, licensed, copied, reused, disclosed, reproduced, revealed or made accessible, in whole or in part, to any person except (i) to thoseemployees of Customer with a need to know and in the course of their employment; (ii) when accompanied by the corresponding reason codes, to the consumer who is the subject of the Score; or (iii) as required by law.
Customer is responsible for providing compliance with the Red Flag Rule http://www.ftc.gov/bcp/edu/microsites/redflagsrulePolicy and procedures shall be in place to investigate any discrepancy in a consumer’s address when notified by the credit bureau that the consumer’s address, as submitted by the client, substantially varies from the address the credit bureau has on file for that consumer. Customer will maintain documentation showing compliance with these certifications for a period of six (6) years or during the tenancy term, whichever is longer.
5. FEES AND PAYMENT.
Fees charged by ACUTRAQare described in the Pricing Table. Customer shall make payment to ACUTRAQwithin thirty (30) days of the date of ACUTRAQ’s invoice. Invoices not paid within fifteen (15) days of the applicable due date shall at the election of ACUTRAQ be charged a late fee of fifteen dollars ($15) per month, plus all costs of collection, including reasonable attorneys’ fees to enforce collection or the terms of this Agreement. Notwithstanding anything to the contrary herein, Customer acknowledges and agrees that ACUTRAQmay, in its sole discretion, suspend delivery of any affected services without notice if Customer fails to pay ACUTRAQthe services fees and until such time as payment has been received by ACUTRAQ.
Customer understands that the charges and rates specified in the Pricing Table may not include any amounts for taxes including without limitation any and all municipal, county, state or federal sales, excise, personal property, consumption, value-added or other taxes, but excluding any taxes upon the income of ACUTRAQ. To the extent such taxes are or may become due in connection with the services Customer agrees to pay such taxes. Customer further agrees to reimburse ACUTRAQ for any and all such taxes ACUTRAQor any of its affiliates is required to pay to applicable taxing authorities on Customer’s behalf.
All amounts payable under this Agreement are denominated in United States dollars, and Customer shall pay all such amounts in lawful money of the United States.
Customer acknowledges receipt of the Notice to Users of Consumer Reports: Obligations of Users under the Fair Credit Reporting Act (attached as Exhibit X-1).
Customer acknowledges receipt of A Summary of Your Rights under the Fair Credit Reporting Act, a copy of which must be provided to Customer’s personnel (attached as Exhibit X-2).
7. DISPOSAL OF CONFIDENTIAL INFORMATION.
Customer shall properly dispose of the information contained within the Services in a manner which will protect against unauthorized access or use thereof or any actions that would otherwise jeopardize the confidentiality of consumers’ personal identification information (“PII”) contained in the Services. This means having policies and procedures in place that require the burning, pulverizing, or shredding of papers containing personal information so that the information cannot practically be read or reconstructed. If such information is in electronic format, this includes having policies and procedures in place to destroy or erase such personal information, so it cannot practically be read or reconstructed.
Customer understands and agrees that, in order to ensure compliance with applicable laws, regulations or rules, including regulatory agency requirements, obligations under its contracts with its data providers, and ACUTRAQ’s internal policies, ACUTRAQ, or its designee, may conduct periodic reviews of Customer’s use of the services provided by ACUTRAQ and may, upon reasonable notice and during Customer’s regular business hours, review Customer’s records, processes and procedures related to Customer’s use, storage and disposal of those Services, PII and Confidential Information, including performing site visits at Customer’s premises.
Customer shall cooperate fully in connection with any such review, including bearing its own internal costs of such process, and will allow, or obtain, access to such systems, and records as ACUTRAQ may reasonably require for such review. Customer agrees to respond to any such review inquiry within ten (10) business days, unless an expedited response is required by ACUTRAQ. Violations of this Agreement, applicable law, regulations or rules, or applicable policies, discovered in any review and/or audit by ACUTRAQ will be subject to immediate action including, but not limited to, suspension or termination of the services by ACUTRAQ as well as potential legal action, and/or referral to governmental regulatory agencies.
ACUTRAQ will initially provide Customer withone-time customer login username(s) and password(s) for personnel who are authorized to obtain the Services. Customer is aware that customer passwords will expire every ninety-day period. At any time, Customer may contact ACUTRAQ to request changes to any username(s) or password(s) by ACUTRAQ. Customer solely is responsible for and will be billed for all Services purchased using the usernames assigned to it. If Customer learns or suspects that unauthorized use of its account is taking place, or if the user’s (employee) employment is terminated by Customer, then Customer shall immediately notify ACUTRAQ in writing and ACUTRAQ will replace the username and password.
In additionto maintaining reasonable procedures to assure compliance with the FCRA and the confidentiality of PII contained in the Services, each partyshallimplementcommercially available and reasonable security procedures and safeguards to preventthe unauthorized disclosure ofConfidentialInformation and to maintain the confidentiality and the security of such information.Customer is aware and has readACUTRAQ’s Access Security Requirements, attached hereto as Exhibit Aand agrees to comply with such requirements, as they may be modified by ACUTRAQ from time-to-time; to give all employees a copy prior to providing them authority to order or other access to ACUTRAQ Services; and to provide such employees with updates when available.
Subject to the terms and conditions contained in this Agreement, ACUTRAQ grants to Customer a nontransferable, nonexclusive license to access ACUTRAQ’s website solely for the purpose of retrieving Services and Services related information from ACUTRAQ. Customer understands and agrees that its use of the Services is subject to restrictions imposed by ACUTRAQ’s data suppliers, this Agreement, and federal and state laws. Customer shall comply with all such restrictions, whether such notice is provided in writing or given online, and such restrictions are incorporated herein by reference.
Customer acknowledges and agrees that ACUTRAQ alone owns all rights, title, and interest in its website and its internet-based system, including all intellectual property rights embodied therein. ACUTRAQ reserves its entire copyright, trademark, trade secret and other intellectual property rights in and to its website. No title to or ownership of any copyright, trademark, trade secret or other intellectual property right in such website is transferred to Customer under this Agreement. The Services delivered by ACUTRAQ to Customer under this Agreement are delivered subject to any copyright, trademark, trade secret and other proprietary rights of ACUTRAQ.
THE WEBSITE AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ACUTRAQ AND ITS DATA PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE WEBSITE, THE SERVICES OR THE DATA UNDERLYING THE SERVICES INCLUDING GUARANTEES OR WARRANTIES FOR ACCURACY, TIMELINESS, COMPLETENESS, AND NON-INFRINGEMENT.IN ADDITION,NEITHERACUTRAQNOR ITS DATA PROVIDERS SHALLBEAR ANY LIABILITY FOR ANY ERROR, OMISSION OR DEFECT IN ITS WEBSITE, THE SERVICES OR THE UNDERLYING DATA INCLUDING ANY INABILITY TO USE THE WEBSITE OR ANY LOSS OF DATA AND MAKES NO WARRANTY, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, REGARDING THESE ITEMS, THEIR PERFORMANCE OR SUITABILITY FOR CUSTOMER’S INTENDED USE, INCLUDING, WITHOUT LIMITATION, NO IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY BACKGROUND SCREENING CRITERIA EMBODIED IN THE REPORTS HAVE BEEN DEVELOPED, ESTABLISHED BY OR APPROVED BY CUSTOMER AND THAT ACUTRAQ BEARS NO RESPONSIBILITY FOR ESTABLISHING OR MAKING ANY DECISIONS BASED ON SUCH SCREENING CRITERIA.
13. INDEMNIFICATION AND LIMITATION OF LIABILITY.
Indemnification. Customer shall indemnify, defend and hold harmless ACUTRAQ, its data vendors, suppliers, officers and employees from and against any and all loss, cost, expense, claim, or liability (including, but not limited to reasonable costs of litigation and attorneys’ fees) arising from any claim or action brought by a third person that arises out of or is related to Customer’s use of the Services and its underlying data.
Limitation of Liability. ACUTRAQAND ITS DATA PROVIDERS SHALL NOT BE LIABLE TO CUSTOMER, OR ANY THIRD PERSON TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, FOR INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, MULTIPLE, INCIDENTAL, OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST REVENUES, LOST PROFITS, LOST SAVINGS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION), EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.ACUTRAQ’S LIABILITY HEREUNDER IS LIMITED TO LOWER OF (i) THE SUM OF FIVE HUNDRED DOLLARS ($500.00 US) PER REPORT DISTRIBUTED BY ACUTRAQ HEREUNDER THAT PROXIMATELY CAUSED, OR ALLEGEDLY PROXIMATELY CAUSED, THE COST OR DAMAGE ALLEGEDLY SUFFERED BY CUSTOMER OR (ii) AN AGGREGATE AMOUNT NOT TO EXCEED TWENTY-FIVE THOUSAND DOLLARS ($25,000.00 US). THE REMEDIES SET FORTH IN THIS PARAGRAPH AND TERMINATION OF THIS AGREEMENT PURSUANT TO THE TERMS HEREOF ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR CLAIMS OR DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, THE SERVICES OR THE UNDERLYING DATA DELIVERED BY ACUTRAQ HEREUNDER.
14. FORCE MAJEURE.
ACUTRAQ shall not be liable for, or be considered to be in breach or default on account of, any delay or failure to perform any services due to any cause or condition beyond its reasonable control (including, but not limited to, any: fire, storm, flood, wind and acts of God or the elements; breakdown of or damage to any equipment, facilities or other property; unavailability of materials, supplies, equipment, transportation, services and other necessary items; and any act or omission of Customer).
Except as otherwise agreed to in writing by the parties, any notice required or authorized by this Agreement to be given by one party to the other party shall be sent either: (i) electronically by email; (ii) by overnight or 3rd day mail; or (iii) by facsimile transmission with confirmed receipt to the other party at the address or, as appropriate, facsimile number, and marked for the attention of such person as specified in this Agreement. Any notice sent electronically by email shall be deemed to have been received by the other party upon delivery to the email address specified in this Agreement.
The term “Confidential Information” shall mean this Agreement and all data, trade secrets, business information and other information of any kind whatsoever that one party hereto discloses, in writing, orally, visually or in any other medium to the other party hereto or to which recipient obtains access and that relates to the disclosing party. Each of the parties, as recipients, hereby agree that they shall not disclose Confidential Information of the disclosing party to any third party during or after the term of this Agreement, other than on a “need to know” basis and then only to recipient’s employees, provided that such persons are subject to a written confidentiality agreement that shall be no less restrictive than the provisions of this Section. Recipients shall not use or disclose Confidential Information of the disclosing party for any purpose other than to carry out this Agreement.
Nothing in this Section will prohibit or limit the receiving party’s use of information if: (i) at the time of disclosure hereunder such information is generally available to the public; (ii) after disclosure hereunder such information becomes generally available to the public, except through breach of this Agreement by the receiving party; (iii) the receiving party can demonstrate such information was in its possession prior to the time of disclosure by the disclosing party; (iv) the information becomes available to the receiving party from a third party which is not legally prohibited from disclosing such information; (v) the receiving party can demonstrate the information was developed by or for it independently without the use of such information; or (vi) disclosure is required under applicable law or regulation or pursuant to a court order or court proceeding, provided that the receiving party promptly notifies the other party of such request or requirement so that such party may seek an appropriate protective order or waive compliance with this Agreement.
17. CHOICE OF LAW AND VENUE.
This Agreement will be governed by, and construed and interpreted according to, the substantive laws of the State of Arkansas, without reference to conflicts of laws principles, and applicable United States federal laws. The U.S. federal courts and Arkansas state courts sitting in the jurisdiction of Washington County, Arkansas, United States of America, shall have sole and exclusive jurisdiction over any claims or disputes brought by ACUTRAQ or Customer which may arise out of or in connection with this Agreement. ACUTRAQ and Customer each consent to such forum and waive any and all objections to jurisdiction that they may have under the laws of the State of Arkansas or the United States.
In the event of a conflict between the provisions of an exhibit or the Pricing Table, the provisions of this Agreement will control. Provided, however, that the provisions of this Agreement will be so construed to give effect to the applicable provisions of the exhibit or Pricing Tableto the fullest extent possible.
19. INDEPENDENT CONTRACTOR.
ACUTRAQ shall be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of this Agreement. This Agreement shall not be interpreted or construed as: (i) creating or evidencing any association, joint venture, partnership or franchise between the parties, (ii) imposing any partnership or franchisor obligation or liability on either party or (iii) prohibiting or restricting ACUTRAQ’s performance of any services for any third party.
This Agreement may be amended, modified, or supplemented only by a writing that refers explicitly to this Agreement and that is signed by authorized representatives on behalf of each party.
No waiver will be implied from conduct or failure to timely enforce any rights. No waiver will be effective unless in writing, signed on behalf of the party against which the waiver is asserted. No waiver of any breach or condition of this Agreement shall be deemed to be a waiver of any other subsequent breach or condition, whether of like or different nature.
If any part of this Agreement is found invalid or unenforceable, that part will be enforced to the maximum extent permitted by law and the remainder of this Agreement will remain fully in force.
23. ENTIRE AGREEMENT; PURPOSE AND EFFECT OF AGREEMENT.
This Agreement, together with any Service Attachment’sor Exhibits, constitutes the final and entire agreement between the parties relating to its subject matter and supersedes any and all prior or contemporaneous letters, memoranda, representations, discussions, negotiations, understandings and agreements, whether written or oral, with respect to such subject matter, all of the same being merged herein. The Service Attachments and Exhibits (if any) attached hereto are incorporated herein by reference.
24. ASSIGNMENT AND CHANGE OF OWNERSHIP.
ACUTRAQ may without the consent of Customer sell, transfer, or assign this Agreement in the event of a sale of substantially all of its assets or the change of control of its equity. Customer may not sell, transfer, assign or otherwise dispose of any of its rights or obligations under this Agreement to any other person, without the express written consent of ACUTRAQ. Customer shall notify ACUTRAQ of any of the following events: change in ownership; merger; change in business name or change in the nature of business; change in user names for obtaining consumer reports; or other changesthat in any way affects the Customer’s right to request and receive consumer reports.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute a single instrument.
Table of Exhibits Exhibit X-1: Notice to Users of Consumer Reports: Obligations of Users under the Fair Credit Reporting Act.Exhibit X-2: Summary of Your Rights under the Fair Credit Reporting Act
Exhibit A: Access Security Requirements
Wemust work together to protect the privacy of consumers. The following measures are designed to reduce unauthorized access of consumer credit reports. In accessing ACUTRAQ services, you agree to follow these measures:
- You must protect your ACUTRAQ USER ID and password so that only key personnel employed by your company know this sensitive information. Unauthorized persons should never have knowledge of your password. Do not post this information in any manner within your facility. If a person who knows the password leaves your company or no longer needs to have it due to a change in duties, the password should be changed immediately.
- Do not share passwords with co-workers, friends, or family.
- Do not discuss your ACUTRAQ USER ID and password by telephone with any unknown caller, even if the caller claims to be an employee of ACUTRAQ.
- Restrict the ability to obtain reports to a few key personnel.
- After normal business hours, be sure to turn off and lock all devices or systems used to obtain report information.
- Secure hard copies and/or electronic files of consumer reports within your facility so that unauthorized persons cannot easily access them.
- Shred or destroy all hard copy consumer reports when no longer needed.
- Make all employees aware that your company can access credit, and other report information only for the permissible purposes listed in the Permissible Purpose Information section of your membership application.
- You or your employees may not access their own reports. Nor should you or your employees access the report of a family member or friend unless it is in connection with a credit transaction or for some other permissible purpose.
- Do not send sensitive data through email, such as consumer’s SSN, account numbers, actual credit reports, etc. unless data is encrypted.
- In the event of a compromised system, notify ACUTRAQ immediately and take necessary steps to ensure no other credit reports are accessed using comprised system.
Record Retention: The Federal Equal Opportunities Act states that a creditor/employer must preserve all written or recorded information connected with an application for five (5) years. In keeping with the ECOA, ACUTRAQ requires that you retain the credit/employment application and, if applicable, a lease/employment contract for a period of not less than 5 years. When conducting an investigation, particularly following a consumer complaint that your company impermissibly accessed their credit report, ACUTRAQ will contact you and will request a copy of the original application signed by the consumer or, if applicable, a copy of the lease/employment contract. “Under Section 621 (a) (2) (A) of the FCRA, any person that violates any of the provisions of the FCRA may be liable for a civil penalty of not more than $2,500 per violation and/or 2 years in prison.”
Exhibit X-1: Notice to Users of Consumer Reports: Obligations of Users under the Fair Credit Reporting Act. All users ofconsumerreportsmust comply withall applicable regulations. Informationabout applicable regulations currently ineffect can befoundat theConsumerFinancial Protection Bureau’s website, www.consumerfinance.gov/learnmore
NOTICE TO USERSOFCONSUMER REPORTS:
The FairCredit ReportingAct (FCRA), 15 U.S.C.§1681-1681y, requires that this notice beprovided to inform users of consumer reports oftheirlegal obligations. Statelaw mayimpose additional requirements. Thetext ofthe FCRA is set forth in full at theBureau ofConsumer Financial Protection’s website at www.consumerfinance.gov/learnmore. At the end ofthis document is alist ofUnited States Code citations forthe FCRA. Otherinformation about user duties is also available attheBureau’s website. Usersmust consult the relevantprovisions of theFCRA fordetails about theirobligations under theFCRA.
The first section ofthis summarysets forth theresponsibilities imposed bythe FCRA on all users of consumer reports. Thesubsequent sections discuss theduties ofusers ofreports that contain specifictypes ofinformation, orthat areused forcertain purposes,and thelegal consequences ofviolations. Ifyou area furnisherofinformation to a consumer reportingagency (CRA),you have additional obligations and will receiveaseparatenoticefrom theCRA describingyourduties asa furnisher.
I. OBLIGATIONSOFALLUSERSOFCONSUMER REPORTS A.
Users Must Have a Permissible Purpose
Congress has limited theuseof consumerreports to protect consumers’privacy. All users must haveapermissiblepurposeunderthe FCRA to obtain a consumer report. Section 604 contains alist ofthepermissiblepurposes underthelaw. These are:
- As ordered bya court ora federalgrand jurysubpoena. Section 604(a)(1)
- As instructed bythe consumerin writing. Section 604(a)(2)
- Forthe extension of credit as a result of anapplication from a consumer, orthe review or collection ofa consumer’s account. Section 604(a)(3)(A)
- For employment purposes, includinghiringand promotion decisions, wherethe consumer has givenwritten permission. Sections 604(a)(3)(B) and 604(b)
- Fortheunderwritingofinsuranceas aresult of anapplication from aconsumer. Section 604(a)(3)(C)
- When thereis alegitimatebusiness need, in connection with abusiness transaction that is initiatedbythe consumer. Section 604(a)(3)(F)(i)
- To reviewa consumer’saccount to determinewhetherthe consumer continues to meet the terms of the account. Section 604(a)(3)(F)(ii)
- To determineaconsumer’s eligibilityforalicenseorotherbenefit granted bya governmental instrumentalityrequired bylaw toconsider an applicant’s financial responsibilityorstatus. Section 604(a)(3)(D)
- Forusebyapotential investororservicer, or current insurer, in avaluationor assessment ofthe credit orprepayment risks associated with an existingcredit obligation. 604(a)(3)(E) Sections 604(a)(4) and 604(a)(5) Inaddition, creditors andinsurers mayobtain certain consumerreport information forthe purposeofmaking“prescreened”unsolicited offers of credit orinsurance. Section 604(c). The particularobligations ofusers of “prescreened”information aredescribed in Section VIIbelow.
Section 604(f)prohibits anyperson from obtainingaconsumerreport from a consumer reportingagency(CRA)unless theperson hascertified to theCRA thepermissiblepurpose(s) forwhich thereport is beingobtainedand certifiesthat the report will not beused foranyother purpose.
C. UsersMustNotify ConsumersWhenAdverseActions AreTaken
The term “adverse action”is defined very broadly by Section 603. “Adverse actions” include all business, credit, and employment actions affecting consumers that can beconsidered to have anegativeimpactas defined bySection 603(k)oftheFCRA – suchas denying or canceling credit orinsurance, ordenying employment orpromotion. No adverseaction occurs in a credit transaction wherethe creditormakes acounterofferthat is accepted bytheconsumer.
1. AdverseActions Based on Information Obtained From a CRA
Ifausertakes anytypeof adverse action as defined bytheFCRA that is based at least in part on information contained in a consumerreport, Section 615(a)requirestheuserto notifythe consumer. Thenotification maybedonein writing, orally, orbyelectronicmeans. It must includethe following:
- The name, address, and telephone number of the CRA (includingatoll-freetelephone number, ifit is anationwideCRA)that provided the report.
- A statement that theCRA did not makethe adversedecision and is not ableto explain whythedecision was made.
- A statement settingforththe consumer’sright to obtain a freedisclosureofthe consumer’s filefrom the CRA ifthe consumermakes a request within 60 days.
- A statement settingforththe consumer’sright to disputedirectlywith theCRA the accuracyor completeness of anyinformation provided by the CRA.
2. Adverse Actions Based on Information Obtained From Third Parties Who Are Not ConsumerReporting Agencies
If a person denies (orincreases thecharge for)credit forpersonal, family, or house hold purposes based either whollyor partly upon information from aperson other than aCRA, and theinformation is the type of consumer information covered bythe FCRA,Section 615(b)(1) requires that theuser clearlyandaccuratelydiscloseto the consumerhis orher right to be told the nature of the information that was relied upon ifthe consumer makes a written request within 60 days of notification. The user must provide the disclosure within are asonable period of time following the consumer’s written request.
3. AdverseActions Based on Information Obtained From Affiliates
Ifaperson takes an adverse action involvinginsurance,employment, oracredit transaction initiated bythe consumer, based on information ofthetype covered bytheFCRA, and this information wasobtained from anentityaffiliated with theuseroftheinformation by common ownership or control, Section 615(b)(2)requires theuserto notifythe consumerofthe adverseaction. Thenoticemust inform the consumerthat heorshemayobtain adisclosureof thenatureoftheinformation relied upon bymakingawritten request within 60 days of receiving the adverse action notice. Ifthe consumermakes such a request, theusermust disclosethe natureoftheinformationnot laterthan 30 days after receivingtherequest. Ifconsumerreport information is shared amongaffiliates and then used for anadverseaction, theusermust make an adverseaction disclosure as set forth inI.C.1 above.
D. Users Have Obligations When Fraudand Active Duty Military Alerts are in Files
When a consumerhas placeda fraud alert, includingonerelatingto identifytheft, or an activedutymilitaryalertwith anationwide consumer reportingagencyasdefined in Section 603(p) and resellers, Section 605A(h)imposes limitations on users of reports obtained from the consumer reporting agencyincertaincircumstances, includingtheestablishment ofanewcredit plan and theissuanceofadditional credit cards. Forinitial fraud alerts andactivedutyalerts, the usermust havereasonablepolicies and proceduresin placeto form abeliefthat theuserknows theidentityoftheapplicant or contact the consumer at atelephonenumberspecified bythe consumer; in the caseofextended fraud alerts, theusermust contact the consumerin accordance with the contact information provided in the consumer’s alert.
E. Users Have Obligations When Notified ofan Address Discrepancy
Section 605(h) requires nation wide CRAs, as defined in Section 603(p), tonotifyusers that request reports whenthe address for aconsumerprovided bythe user in requestingthe report is substantiallydifferent from the addressesin the consumer’s file. When this occurs, users must complywith regulations specifyingtheprocedures to be followed. Federal regulations are available at www.consumerfinance.gov/learnmore
F. Users Have Obligations WhenDisposing of Records
Section 628 requires thatall users of consumer report information havein place procedures to properlydisposeof records containingthis information. Federal regulations have been issued that cover disposal.
II.CREDIT OR SMUSTMAKEADDITIONALDISCLOSURES
Ifaperson uses aconsumer report in connectionwith an application for, oragrant, extension, orprovision of, credit to aconsumeronmaterial terms that aremateriallyless favorablethan themost favorableterms availableto asubstantial proportion of consumers from orthrough that person, based in wholeorin part on a consumerreport, theperson must providea risk-based pricingnoticeto the consumerin accordancewith regulations prescribed bythe Consumer Financial Protection Bureau. Section 609(g) requires adisclosurebyall personsthat makeorarrangeloans secured by residential real property(oneto fourunits) and that use credit scores. Thesepersons must provide credit scores andotherinformation aboutcredit scores to applicants, includingthe disclosureset forth in Section 609(g)(1)(D)(“Noticeto theHomeLoanApplicant”).
III.OBLIGATIONSOFUSERSWHEN CONSUMER REPORTSAREOBTAINED FOR EMPLOYMENTPURPOSES
Iftheinformation from a CRA is used for employment purposes, theuserhas specific duties, which areset forth in Section 604(b)ofthe FCRA. Theusermust:
- Makea clearand conspicuous written disclosureto the consumerbeforethe report is obtained, in adocument that consists solelyofthedisclosure, that a consumer report may beobtained.
- Obtain from the consumerpriorwritten authorization. Authorization to access reports duringtheterm of employment maybeobtained at thetimeof employment.
- Certifyto theCRA that the abovesteps havebeenfollowed, that theinformation being obtained will not beused in violation of anyfederal orstate equal opportunitylaw or regulation, and that, if anyadverseaction is to betaken based onthe consumer report,a copyofthereport and asummaryofthe consumer’s rights will beprovidedto the consumer
- Beforetaking an adverseaction, theusermust providea copyofthereportto the consumer as well as thesummaryof consumer’s rights. (Theusershould receivethis summaryfrom theCRA.)A Section 615(a) adverse action noticeshould besent afterthe adverseaction is taken
- An adverse action noticealso is required in employment situations if credit information (otherthan transactions and experiencedata)obtained from anaffiliateis used to deny employment. Section 615(b)(2)
- The procedures for investigative consumer reports and employeemisconduct investigations areset forth below.
B. Employment in the Trucking Industry
Special rules applyfortruck drivers wheretheonlyinteraction between theconsumer and thepotential employeris bymail, telephone, or computer. In this case, theconsumermay provide consent orallyorelectronically,and an adverseaction maybemadeorally, in writing, or electronically. The consumermayobtain a copyof anyreport relied upon bythetrucking companybycontactingthe company.
V. SPECIALPROCEDURESFOR EMPLOYEEINVESTIGATIONS
Section 603(x)provides special proceduresforinvestigations ofsuspectedmisconduct by an employeeorfor compliancewith Federal, stateorlocal laws andregulations orthe rules ofa self-regulatoryorganization, and compliancewith written policies ofthe employer. These investigations arenot treated as consumer reports so longas theemployerorits agent complies with theprocedures set forth in Section 603(x), and asummarydescribing thenature and scope oftheinquiryis madeto the employeeif anadverse action is taken based on theinvestigation.
Section 604(g)limits theuseofmedical information obtained from consumer reporting agencies(otherthan payment information that appears in acoded form that does not identifythe medical provider). Iftheinformation is to beused for an insurancetransaction, the consumer must give consent to theuserofthereport ortheinformation must be coded. Ifthe report is to beused foremploymentpurposes – orin connection with a credit transaction (except as provided in regulations issued bythebankingand credit union regulators)– theconsumermust provide specificwrittenconsent and themedical information must be relevant. Anyuserwho receives medical information shall not disclosetheinformation to anyotherperson (except where necessaryto carryout thepurpose forwhich theinformation was disclosed,orapermitted by statute, regulation, ororder).
VII. OBLIGATIONSOFUSERSOF“PRESCREENED” LISTS
The FCRA permits creditors and insurers to obtainlimited consumer reportinformation forusein connection with unsolicited offers ofcredit orinsuranceundercertain circumstances. Sections 603(1), 604(c),604(e), and 615(d). Thispracticeis knownas “prescreening” and typicallyinvolves obtainingalist of consumers from aCRA who meet certain pre-established criteria. Ifanyperson intends to useprescreened lists, that person must (1)beforetheofferis made, establish the criteriathat will be relied upon to maketheoffer andgrant credit or insurance,and (2)maintain such criteriaonfile forathree-yearperiod beginningon thedateon which theofferis madeto eachconsumer. Inaddition, anyusermust providewith each written solicitation a clear andconspicuous statement that:
Information contained ina consumer’s CRA filewas used in connection with the transaction.
- The consumerreceived theofferbecauseheorshesatisfied thecriteria forcredit worthiness orinsurabilityused to screen fortheoffer.
- Credit orinsurancemaynot be extended if, afterthe consumerresponds, it is determined that the consumerdoes not meet the criteriaused forscreeningor anyapplicablecriteria bearingon credit worthiness orinsurability, ortheconsumerdoes not furnish required collateral.
- The consumermayprohibit theuseofinformationin his orher filein connection with futureprescreened offers of credit orinsurancebycontactingthenotification system established bytheCRA that provided thereport. Thestatement must includethe address and toll-freetelephonenumberofthe appropriatenotification system.
- Inaddition, theConsumer Financial Protection Bureau hasestablished theformat, type size, and mannerofthedisclosure required bySection 615(d), with which users must comply. The relevant regulation is 12 CFR1022.54.
A. Disclosure and Certification Requirements Section 607(e)requires anyperson who obtains aconsumer report forresaleto takethe followingsteps:
- Disclosetheidentityofthe end-userto thesource CRA.
- Identifyto thesourceCRA each permissiblepurpose forwhich the report will be furnished to the end-user.
- Establish and follow reasonableprocedures to ensurethat reports areresoldonlyfor permissiblepurposes, includingprocedures to obtain:
(1)theidentifyof all end-users; (2)certifications from all users ofeach purpose for which reports will beused;and (3)certifications that reportswill not beused for anypurposeotherthan thepurpose(s) specified to thereseller. Resellers must make reasonable efforts to verifythis information beforesellingthereport.
B. Reinvestigations by Resellers
UnderSection 611(f), ifa consumerdisputes theaccuracyor completeness of information in a report prepared byareseller, theresellermust determinewhetherthis is a result of an action oromissionon its part and, ifso, correct ordeletetheinformation. Ifnot, the resellermust send thedisputeto thesourceCRA for reinvestigation. When anyCRA notifies the resellerofthe results ofan investigation, theresellermust immediatelyconveytheinformation to the consumer.
C. FraudAlerts andResellers
Section 605A(f)require sresellers whoreceivefraud alerts oractivedutyalerts from another consumer reportingagencyto include these in their reports.
IX.LIABILITY FOR VIOLATIONS OF THEFCRA
Failureto complywith the FCRA canresult in stategovernment orfederalgovernment enforcement actions, as well as privatelawsuits. Sections 616, 617, and 621. Inaddition, any person who knowinglyand willfullyobtains a consumer report underfalsepretenses mayface criminal prosecution. Section 619.
The Bureau ofConsumer Financial Protection’s website, www.consumerfinance.gov/learnmore, 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
Exhibit XX-2: A Summary of Your Rights under the Fair Credit Reporting Act
Para informacionenespanol, visit www.consumerfinance.gov/learnmore o escribe a la Consumer Financial Protection Bureau, 1700 G Street, N.W., Washington, DC 20552. A Summary ofYour Rights Under theFairCredit Reporting Act The federalFair CreditReporting Act (FCRA)promotes the accuracy,fairness, and privacyof information in the files of consumerreportingagencies. There aremanytypes of consumer reporting agencies, including creditbureaus and specialtyagencies (such asagencies that sellinformation about check writinghistories, medical records, andrental historyrecords). Hereis a summaryofyourmajor rights under theFCRA. Formoreinformation, including informationabout additional rights, go to www.consumerfinance.gov/learnmoreorwrite to:ConsumerFinancialProtection Bureau, 1700 GStreet N.W., Washington, DC20552. You must be toldifinformationinyourfilehasbeen usedagainst you. Anyonewho uses a creditreport oranothertypeof consumer report to deny your application for credit, insurance, oremployment– orto take anotheradverseaction againstyou–musttellyou, and must giveyou the name, address, and phonenumberof theagencythatprovided the information.You have the right to knowwhatisinyour file.You mayrequest and obtain allthe information aboutyou inthe files of a consumer reportingagency(your “file disclosure”). Youwillbe required to provideproper identification, whichmayinclude yourSocial Securitynumber.In manycases, the disclosurewillbe free. You areentitled to a free file disclosureif: • aperson has taken adverse action againstyou because of information inyour credit report; • you arethe victim of identitytheftand placeafraud alert inyour file; • yourfile contains inaccurate information as aresult of fraud; • you areon public assistance; • you areunemployed butexpect to applyfor employment within 60 days.
Inaddition, all consumersareentitled to one freedisclosure every12 months upon request fromeach nationwide creditbureauand from nationwide specialtyconsumer reportingagencies. See www.consumerfinance.gov/learnmorefor additional information.
- You have the right to ask fora credit score. Creditscores arenumericalsummaries of yourcredit-worthiness based on information fromcreditbureaus. You mayrequest a creditscore from consumer reporting agencies thatcreatescores or distributescores used in residential real propertyloans, butyou willhaveto payforit. In somemortgage transactions,you willreceive creditscoreinformation for free from the mortgagelender.
- Consumerreporting agenciesmustcorrect ordeleteinaccurate, incomplete, or unverifiable information.Inaccurate, incompleteor unverifiableinformation must be removed orcorrected, usuallywithin 30 days. However,a consumer reportingagency maycontinueto report information it hasverifiedas accurate.
- Consumerreporting agenciesmay notreport outdated negativeinformation. In mostcases, a consumer reporting agencymaynot report negativeinformation that is morethan sevenyears old, orbankruptcies thataremorethan 10years old.
- Accessto yourfileis limited. A consumerreportingagencymayprovideinformation aboutyou onlyto peoplewith a valid need– usuallyto consideran application with a creditor, insurer, employer, landlord, orother business. The FCRA specifiesthose with a valid need foraccess.
- You must giveyourconsent for reports to beprovidedto employers.Aconsumer reportingagencymaynot give out information aboutyou toyour employer, or apotential employer, withoutyourwritten consentgiven to theemployer. Written consent generally is notrequired in thetruckingindustry. For moreinformation, go to www.consumerfinance.gov/learnmore.
- You may limit “prescreened” offers ofcredit andinsuranceyouget based on informationinyour credit report.Unsolicited “prescreened”offers for creditand insurancemustincludeatoll-freephonenumberyou can callifyouchooseto remove yourname andaddressfrom theliststheseoffers arebased on.Youmayopt-out with the nationwide creditbureaus at 1-888-5-OPTOUT (1-888-567-8688).
- You may seek damagesfromviolators.If a consumer reportingagency, or, in some cases, a user ofconsumerreports orafurnisherofinformation to a consumer reporting agencyviolates theFCRA,you maybe able to suein state or federal court.
- Identity theft victims andactiveduty militarypersonnel haveadditional rights.For moreinformation, visit www.consumerfinance.gov/learnmore.
- States may enforce the FCRA, and many states have their own consumer reporting laws. In some cases, you may have more rights under state law. For more information, contact your state or local consumer protection agency or your state Attorney General. For information about your federal rights, contact:
|TYPE OF BUSINESS:||CONTACT:|
|1.a.Banks, savings associations,andcredit unions withtotalassetsofover$10billionandtheiraffiliates.
b.Suchaffiliates thatarenot banks, savings associations, orcreditunionsalsoshouldlist, in additionto theCFPB:
|a. ConsumerFinancialProtection Bureau1700 G StreetNW Washington, DC20552
b. FederalTradeCommission:ConsumerResponseCenter– FCRA Washington, DC20580 (877)382-4357
|2. To theextentnot includedin item1 above:
a. Nationalbanks, federalsavings associations, andfederalbranchesandfederalagenciesof foreignbanks
b. Statememberbanks,branches andagenciesof foreignbanks(otherthanfederalbranches,federalagencies,andInsuredStateBranches ofForeignBanks), commerciallendingcompaniesownedorcontrolledbyforeignbanks, andorganizations operatingundersection25or25AoftheFederalReserveAct
c. NonmemberInsuredBanks, InsuredStateBranchesofForeignBanks, andinsuredstatesavings associations
|a. Officeof theComptrollerof theCurrencyCustomerAssistanceGroup 1301McKinney Street, Suite3450 Houston, TX77010-9050
b. FederalReserveConsumerHelpCenter P.O. Box1200Minneapolis,MN55480
c. FDICConsumerResponseCenter1100Walnut Street, Box#11 KansasCity,MO64106
d. NationalCredit UnionAdministrationOfficeofConsumerProtection(OCP) Divisionof ConsumerCompliance
|4.Creditors Subject toSurfaceTransportationBoard||Officeof Proceedings, SurfaceTransportationBoardDepartmentofTransportation 395 E Street, S.W.Washington,|
|5.Creditors Subject toPackers andStockyards Act, 1921||Nearest Packers andStockyardsAdministrationareasupervisor|
|6.Small Business InvestmentCompanies||AssociateDeputy AdministratorforCapital AccessUnitedStates Small Business Administration 409ThirdStreet, SW, 8th|
|7.BrokersandDealers||Securities andExchangeCommission100 FStNE Washington, DC20549|
|8.FederalLandBanks,FederalLandBank Associations, FederalIntermediateCreditBanks,andProductionCredit Associations||FarmCredit Administration1501FarmCredit|
|9.Retailers, FinanceCompanies, and All OtherCreditorsNotListedAbove||FTC RegionalOfficeforregioninwhichthecreditoroperatesorFederalTradeCommission:ConsumerResponseCenter–FCRAWashington, DC20580|