THIS PROFESSIONAL SERVICES AGREEMENT (this "Agreement") is entered into in Panama City, Florida effective on the date executed by the client ("Effective Date"), by and between SECURTEST, INC., a Florida corporation ("SecurTest"), located at 600 Grand Panama Blvd, Suite 202, Panama City Beach, FL 32407, company telephone number of (800) 445-8001, and company email of management@securtest.com www.securtest.com and the entity named above hereafter (“Client”.) SecurTest and Client shall be referred individually as a “Party” and collectively as the “Parties.”
WITNESSETH:
WHEREAS, SecurTest is in the business of providing background reports;
WHEREAS, Client is a business with a lawful need to obtain background checks for employment purposes. Client may order background checks from SecurTest for pre-employment and post-employment background screening services, criminal history checks, or consumer reports as defined by the Fair Credit Reporting Act for both employment, non-employment, access control, visitor management, and/or other needs in furtherance of its existing and future business;
WHEREAS, Client desires to obtain background screening services, criminal history checks and consumer reports from SecurTest, and SecurTest desires to provide the same to Client; and
WHEREAS, the Parties desire to enter into this Agreement in order to establish the terms and conditions pursuant to which SecurTest shall provide the aforementioned services for Client.
NOW, THEREFORE, for and in consideration of the agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, SecurTest and Client do hereby agree as follows:
1) Definitions. As used in this Agreement, the following capitalized terms shall have the following meanings:
“Consumers” means subjects from whom Client has obtained signed authorization for SecurTest to perform a background investigation and deliver a consumer report, as defined by the Fair Credit Reporting Act (“FCRA,” as hereinafter more specifically defined) to Client for permissible purposes under applicable law.
“Authorized Users” means those persons designated by Client who are entitled to have access to the Background Reports and other information generated, collected, or provided by SecurTest pursuant to this Agreement and those employees of SecurTest who are responsible for performing Background Checks. No other persons other than Authorized Users shall be given access to any Background Reports or other information generated, collected, or provided by SecurTest pursuant to this Agreement. All such Authorized Users shall be specifically informed of the confidential nature of the information being handled pursuant to this Agreement and shall be required to adhere to the obligations of confidentiality herein set forth.
"Adverse Action" means the process by which consumers can dispute any information contained in their background screening report, and SecurTest’s reinvestigation of any disputed background screening reports. Such reinvestigation shall be performed without additional charge to Client, except where Client has submitted inaccurate identifiers of the Consumer, such as misspellings of the Consumer’s name, incorrect date of birth, incorrect social security number, or other incorrect or inaccurate information. The Client agrees to pay for any reinvestigation at the same rate where it provided inaccurate identifiers.
"Background Report" means a background report prepared by SecurTest that is further described as a Consumer report, as defined by the FCRA.
"Background Screening Services" means those services performed by SecurTest under this Agreement, which include but are not limited to: conducting background screenings; preparing background screening reports; conducting Adverse Action processing where applicable; and collecting, maintaining, and protecting the confidentiality of personally identifiable background screening information.
"Confidential Information" means any and all information in any form (oral, written, electronic or otherwise) provided by either SecurTest or Client in connection with the performance of this Agreement, including, but not limited to, patents, trade secrets, designs, accumulated technical knowledge and proprietary information and information regarding either Party's business, technology, products, marketing plans, sales strategies, research and development activities, financial affairs, pricing information and models, data, information systems, vendors, customers and employees, any other information which either Party is required to keep confidential as the result of a confidentiality agreement with a third Party, any personally identifiable information pertaining to Consumers or any other person, or any information which by its nature would be understood to be confidential or proprietary irrespective of whether it is specifically designates as such. The Confidential Information of either Party does not include information: (i) that is now or becomes generally available to the public through no fault or breach by the receiving Party; (ii) that the receiving Party can document was already known to it prior to disclosure by the disclosing Party and which information was not obtained by breach of any obligation of confidentiality to any other Party; or (iii) that was independently developed by the receiving Party without use of any of the other Party's Confidential Information, and without breach of any obligation of confidentiality to any other Party.
"Fail" or similar terms means a Search that has uncovered potentially adverse or derogatory information that may result in Client’s decision to not hire, to terminate employment, refuse or terminate access to its premises, or other benefits as defined by the FCRA and where Client establishes the criteria for such business decisions. The Client agrees that a report that is identified as a “Fail” does not constitute a recommendation or conclusion formed by SecurTest, but is provided to Client so that it can take additional steps to review the relevance of the adverse or derogatory information, use of the patented iReviewNow System, and comply with law and regulations, such as the EEOC and FCRA, among other federal, state or local laws or regulations.
"Fair Credit Reporting Act" means the Fair Credit Reporting Act, as amended, as set forth in 15 U.S.C. § 1681 et. seq.
"Pass" means a Search that has not uncovered any disqualifying, adverse or derogatory information as defined based upon the criteria provided by Client.
"Search" means the entire scope of background screening and verification services requested for an individual.
2) Scope of Services. This Agreement covers consumer background screening reports requested by Client for both employment screening purposes as well as workplace-related purposes, such as access control decisions and vendor screening, in connection with its human resources and security policies, procedures and programs and other screening services that use any form of background checks, criminal history checks, or Consumer reports as defined by the FCRA, among other laws and regulations. SecurTest shall perform these services for Client.
3) Accuracy of Reports and Results. Client acknowledges that, in the performance of SecurTest’s services herein, SecurTest will use its best efforts to obtain the most currently available and accurate records and will follow industry best practices to assure maximum possible accuracy of the information reported. Client hereby agrees that it shall mandate the use iReviewNow, which is the patent and intellectual property of iReviewNow LLC and its inventor Steven C. Millwee, as licensed to SecurTest, Inc. iReviewNow is a system wherein Consumers (subjects of the report) are able to view their reports at or near the same time as Client. The Consumerism able to determine the accuracy of his or her report, and electronically dispute any inaccuracies directly to SecurTest. The Consumer can explain any information in the report that may be considered derogatory. Moreover, the Consumer can explain and upload documents to be used by Client in considering any steps or actions taken to self-rehabilitate or demonstrate that the negative information in the report may be viewed by Client in a more favorable manner. iReviewNow does not guarantee the Consumer that Client will receive a favorable outcome, such as employment. iReviewNow effectively automates the various requirements contained in the FCRA and recommended guidelines of the EEOC when considering background reports. iReviewNow provides the Consumers’ feedback in order to assure maximum possible Consumer reporting accuracy of the information reported. Where Consumers use iReviewNow, their responses are incorporated into the SecurTest report. Consumers are solely responsible for the security of their reports; though SecurTest takes reasonable steps to redact dates of birth, social security numbers, or other personal identifier information (PII data.) Client agrees that it will use iReviewNow, as described herein, to verify background screening "hits", “fails”, or reports containing any adverse, derogatory or potential adverse or derogatory information prior to making an employment, termination, or access decision. Client agrees to use the SecurTest iReviewNow Consent in a separate authorization executed by the subject or Consumer before ordering reports from SecurTest. The Client must upload the SecurTest iReviewNow Consent to SecurTest, along with the FCRA Consumer Authorizations at the time reports are ordered from SecurTest. SecurTest will use commercially reasonable efforts to automate removal of personal identifying information. However, in the event such information cannot be removed automatically through computer programming despite SecurTest taking commercially reasonable efforts to remove the same or where personal identifiers remain, including aliases, dates of birth, social security number or other information commonly referred to personally identifiable information, the background report shall be released as it is prepared by SecurTest to Client and the subject of the report. The Client and Consumers receiving copies of their reports shall be responsible for the security of the background reports containing personal identifier or other sensitive information.
4) General Terms
To the fullest extent permitted by law, Client shall and does hereby indemnify, defend, save, and hold harmless, its affiliated companies and assigns, and each of their respective officers, directors, shareholders, agents, employees, and independent contractors (collectively, “SecurTest, Inc. and iReviewNow, LLC Indemnitees”) from and against any and all claims, costs, damages, fines, penalties, and expenses of any kind or nature whatsoever, including without limitation reasonable attorneys’ fees (collectively, “Claims”), arising from or in any way connected to: (I) a breach by Client of this Agreement; (ii) the negligence or willful misconduct of Client; or (iii)the improper or illegal use or disclosure by or any Party acting on behalf of Client of background reports or other information gathered, generated, or prepared pursuant to this Agreement.
To the fullest extent permitted by law, SecurTest shall and does hereby indemnify, defend, save, and hold harmless Client, its affiliated companies, and each of their respective officers, directors, shareholders, agents, employees, and independent contractors (collectively, “Client Indemnitees”)from and against any and all Claims arising from or in any way connected to: (i) a breach by SecurTest of this Agreement; (ii) the negligence or willful misconduct of SecurTest or its employees or agents; (iii) the improper or illegal use or disclosure by SecurTest or any Party acting on behalf of SecurTest of background reports or other information gathered, generated, or prepared pursuant to this Agreement; or (iv) third Party claims of patent, trade secret, copyright infringement, or other intellectual property infringement asserted against Client or Client Indemnitees by virtue of Client’s use of SecurTest’s services or products, including without limitation, iReviewNow.
The foregoing indemnification obligations of Client and SecurTest (as applicable) shall not apply to the extent that any claims arise from the negligence or willful misconduct of the SecurTest Indemnitees or Client Indemnitees (as applicable)
The foregoing indemnification obligations shall survive the expiration or earlier termination of this Agreement.
The Parties recognize that the background reports prepared pursuant to this Agreement contain information derived from the public record other sources not affiliated with either of the Parties and that the accuracy of such information is dependent in turn upon accurate recording of data by courts, law enforcement agencies, and third Parties unrelated to SecurTest or Client, including without limitation, the Consumers (collectively, “Third Parties”). Client acknowledges that SecurTest cannot guaranty the accuracy of information supplied by such Third Parties. Accordingly, each hereby releases the other Party, and the other Party’s affiliates, agents, officers, directors, employees, and independent contractors from liability for any claims solely attributable to the negligence of Third Parties in recording such information. The foregoing notwithstanding, SecurTest shall employ good faith and diligent efforts to confirm the accuracy of information, including information provided by Third Parties, in its and its providers make good faith efforts to find and report the most accurate information in Background Reports provided pursuant to this Agreement.
Client shall be responsible for all charges incurred, including those resulting from Client’s errors in inputting the information for the request and duplicate requests. Invoices are due and payable upon receipt and considered past due after thirty (30) days of date of invoice, and unpaid balances shall bear interest at twelve percent (12%) per annum from date due until paid. The fees for Background Reports exclude out of pocket expenses such as registry fees, school transcripts, court fees, state fees, and 900# fees to verify employment or education and fees for the Services exclude any applicable taxes. SecurTest shall not increase the basic fee for the background report during the Term (as defined below) of this Agreement, as Client is responsible for only the fee and reasonable itemized expenses that are assessed as “out of pocket expenses.” SecurTest shall submit receipts for all out of pocket expenses to Client for approval, which approval shall not be unreasonably withheld, conditioned or delayed. Client will not be responsible for duplicate background reports for the same applicant, employee or Consumer that may be erroneously duplicated on any given invoice.
Without limiting the foregoing, each of Client and SecurTest shall comply with the Vermont Fair Credit Reporting Act, 9 V.S.A. § 2480e, by securing the written consent of the Consumer prior to ordering a Consumer report on a Vermont resident.
With respect to personal information regarding individual Consumers and businesses, the Parties further agree as follows: SecurTest has adopted the “SecurTest’s Commitment to Privacy” ("Commitment to Privacy") and that neither Client nor SecurTest will commit or permit its directors, officers, employees or agents to commit any action which causes Client or SecurTest to be in violation of the Commitment to Privacy.
5) Disclosure of Reports. SecurTest shall not disclose the contents of any Background Report except in accordance with the terms of this Agreement, strictly in accordance with FCRA, to, the Consumer, or government sources providing the information that have a substantial need to know and are entitled to the information pursuant to applicable law. Authorized Client personnel shall have on-line access to applicable background screening reports prepared by SecurTest under this Agreement. The Client shall only allow Authorized Users to have access to Background Reports, account user names, account numbers and passwords. The Authorized Users shall maintain all such information with strict security and confidentiality. SecurTest shall create unique user identifiers and passwords for Authorized Users to have access to the reports. Authorized Users should change their passwords every thirty (30) days and use strong encrypted passwords of no less than eight letters, numbers or characters. All such information shall be considered Confidential Information as defined in Section 1.e. of this Agreement and shall be disclosed solely to the extent required by, and in accordance with, applicable law.
6) Pricing and Fees. Pricing and fees will be billed in accordance with the schedule set forth in Addendum I which is incorporated herein. SecurTest shall not increase pricing under this Agreement without the advance written consent of Client. The Client shall not be responsible for payment of fees, applicable taxes and/or charges made by SecurTest’s information sources for the release of records used in compiling background screening reports, including the fees to court researchers or government or court sources.
Client shall be responsible for all charges incurred, including those resulting from errors in inputting the information for the request and duplicate requests. Net payment is due NET 10 days from the date of the SecurTest invoice.
Services are considered rendered at the time of the order, as SecurTest cannot reverse the automated background screening solutions section. As such, Client agrees that it shall have no chargeback privileges, except as identified below, with any credit card provider, as it affirms that valuable services are instantly rendered by SecurTest at the instant in places an online order with SecurTest.
Chargebacks. Client may be eligible for a credit card chargeback for the following billing errors:
Charges ClientID not authorize and where Client can prove with clear indisputable evidence that ClientID not order the background check from SecurTest;
Charges for undelivered goods or services wherein Client can prove that SecurTest did not begin any portion of its background screening services and never issued Client a partial or complete report;
Charges for goods or services different from what was represented or of the wrong quantity, wherein SecurTest delivers a background check or other service that was not the background check order pursuant to this Agreement;
Charges for goods that were not timely delivered, wherein SecurTest failed to deliver a report to Client within thirty (30) days from the date of the order; and
Where a federal or state statute or law provides chargeback rights that is not covered within this Agreement.
7) Access to Reports. SecurTest will provide Client with an electronic copy of the SecurTest Report unless SecurTest has given access to its secure website.
8) Default. Either Party may terminate this Agreement at any time by providing at least sixty (60) days written notice to the other Party of the effective date of such termination. In addition, either Party has the right to terminate this Agreement if the other Party materially breaches or is in default of any obligation hereunder, which default is incapable of cure or which, being capable of cure, has not been cured within thirty (30) calendar days after receipt of written notice of such default (or such additional cure period as the non-defaulting Party may authorize in writing). Neither Party shall be in default because of delays from natural disaster, new actions or decrees of governmental bodies, or from unforeseeable communication line failure, electrical failure, and/or major computer hardware or software failures, so long as such Party has taken reasonable corrective/protective steps. Finally, Client may terminate immediately upon written notice to SecurTest in the event of a violation by SecurTest of any applicable law, including without limitation the FCRA, HIPAA, any regulation enforced by Equal Employment Opportunity Commission, the Privacy Act of 1974, or any other applicable federal, state or local law, rule or regulation governing or pertaining to requests for, use of, or dissemination of personally identifiable information obtained or provided in connection with this Agreement, or in the event of any unauthorized disclosure by SecurTest of Confidential Information.
9) Acts of Insolvency. Either Party may immediately terminate this Agreement by prior written notice to the other and may regard the other Party as in default of this Agreement, if the other Party becomes insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition for bankruptcy, suffers or permits the appointment of a receiver for its business or assets or becomes subject to any proceedings under any domestic or foreign bankruptcy or insolvency law or has wound up or liquidated, voluntarily or otherwise. In the event that any of the above events occurs, that Party shall immediately notify the other Party of its occurrence.
10) Limitation of Liability. IN NO EVENT WILL EITHER PARTY, INCLUDING IREVIEWNOW LLC, BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. THE FOREGOING LIMITATION OF LIABILITY NOTWITHSTANDING, SUCH LIMITATION SHALL NOT APPLY TO FINES, PENALTIES, COSTS, DAMAGES, OR ATTORNEYS’ FEES INCURRED BY A PARTY AS THE RESULT OF THE OTHER PARTY’S VIOLATION OF APPLICABLE LAW, INCLUDING WITHOUT LIMITATION, THE FCRA, HIPAA, THE PRIVACY ACT OF 1974, OR ANY OTHER APPLICABLE FEDERAL, STATE OR LOCAL LAW, RULE OR REGULATION WITH RESPECT TO REQUESTS FOR, USE OF, OR DISSEMINATION OF PERSONALLY IDENTIFIABLE INFORMATION OBTAINED OR PROVIDED IN CONNECTION WITH THIS AGREEMENT, OR THE UNAUTHORIZED DISCLOSURE OF ANY CONFIDENTIAL INFORMATION AS DEFINED IN THIS AGREEMENT.
11) Certification. In accordance with the FCRA, as amended by the Consumer Credit Reporting Reform Act of 1996, Client agrees, certifies and warrants to SecurTest as follows:
Requests by Client to SecurTest for Background Reports will be for purposes permitted under the FCRA.
Prior to requesting the background screening report, Client shall have provided the Consumer with a clear and conspicuous written or electronic disclosure informing him/her that a background screening report(s) is being obtained using the authorization form provided by SecurTest, which shall be saved by Client and uploaded to SecurTest at the time of ordering a background report unless the Consumer is using the SecurTest or iReviewNow portals to order his or her background investigation directly from SecurTest. (SecurTest and iReviewNow have secure online systems wherein can provide a hyperlink, password, and instructions to Consumers or subjects to complete the information and execute the required authorizations and consents for the SecurTest Background Authorization, hereafter referred to as the “Secure Applicant Portal.”
Prior to requesting the background screening report directly with SecurTest, Client shall have the Consumer execute the iReviewNow Authorization form provided by SecurTest, which shall be saved by Client and uploaded to SecurTest at the time of ordering a background report, except where the consumer is ordering the background investigation directly with SecurTest using the “Secure Applicant Portal.”
Prior to requesting the background screening report, Client shall have obtained a written or electronic authorization from the Consumer specifically authorizing the procurement of a background screening report(s) by Client, except where the consumer is ordering the background check directly from SecurTest using the “Secure Applicant Portal.” SecurTest covenants and agrees to provide to Client the various Consumer notices or authorizations that are in all respects compliant with FCRA and any other applicable law with respect to the Background Reports being prepared hereunder. Client represents, warrants, and covenants that any and all authorization and other forms shall in all respects comply with FCRA and any and all other applicable law. Where SecurTest provides sample forms, Client agrees that it shall have all forms approved by legal counsel and that said sample forms are not to be construed as legal counsel to Client. Client holds SecurTest harmless for compliance with all forms as required by both federal, state and other laws.
Violations of the Fair Credit Reporting Act, Privacy Act. Any violation by either Party of the FCRA, the Privacy Act of 1974, or any other applicable federal, state or local law, rule or regulation with respect to requests for, use of, or dissemination of personally identifiable information obtained or provided in connection with this Agreement, will, in addition to any other remedy available to the other Party under this Agreement or by law, entitle the other Party to terminate this Agreement immediately effective upon written notice(notwithstanding any other provision of this Agreement to the contrary). Neither Party undertakes any obligation to advise the other Party of their legal obligations under the FCRA or any other law, rule or regulation. Each Party shall fully cooperate with the other to ensure compliance with applicable laws, rules and regulations.
12) Term. This Agreement shall commence on the Effective Date and shall continue thereafter for a period of three (3) years unless sooner terminated (the "Initial Term"). Thereafter, this Agreement shall automatically extend for successive periods of one (1) year (each, an "Extension Term", and, all Extension Terms, collectively with the Initial Term, being the "Term") unless either Party provides the other Party with written notice of such Party's intention not to extend this Agreement at least thirty (30) days prior to the end of the Initial Term or then-current Extension Term (as applicable).
13) Assignment. Neither Party shall be permitted to assign its rights or obligations under this Agreement without first obtaining the written consent of the other Party; provided, however, that either Party shall have the right to assign its rights and obligations under this Agreement to a Party that is acquiring substantially all of the assets of the Party or otherwise acquiring a Party by way of a merger, share exchange or direct stock purchase.
14) Entire Agreement. Except as otherwise provided herein, this Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings. This Agreement may be supplemented, amended or modified only by a written instrument signed by the Parties hereto.
15) Counterparts. This Agreement may be signed in counterparts which, when taken together, shall constitute the fully executed Agreement. Facsimile or electronic signatures are deemed to have the same force and effect as original signatures.
16) Governing Law and Arbitration. This Agreement shall be governed by the laws of the State of Florida in Bay County, Florida.
17) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the respective Parties and their permitted assigns and successors in interest.
18) Severability. Should any term or provision hereof be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect.
19) Waiver. No waiver of any provision of this Agreement shall be valid or binding unless in writing and signed by both Parties.
20) Notices. Any notices sent pursuant to this Agreement shall be in writing and shall be deemed to have been duly given: (a) if by hand delivery, on the date of such hand delivery; or (b) if by nationally-recognized overnight courier service, on the date that is one (1) day after the depositing of such notice with such courier service. The Parties agree to send any notice of change of address within ten (10) business days of the change of address, including physical or mailing address.
21) iReviewNow and SecurTest Additional Terms. The Client agrees to use iReviewNow as follows:
Client will provide Consumers with either:
A SecurTest provided secure URL so that Consumers may provide their biographical data and execute a Consumer authorization and the iReviewNow Authorization in the form to be provided by SecurTest as approved by Client and Client’s legal counsel, which form shall in all respects be compliant with applicable law, including without limitation the FCRA.
A paper version of a Consumer authorization, as approved by Client and Client’s legal counsel, and the iReviewNow Authorization in the form to be provided by SecurTest, which form shall in all respects be compliant with applicable law, including without limitation the FCRA.
Client shall use a Consumer authorization as required by FCRA and any other applicable laws, which form shall in all respects be compliant with FCRA and applicable law. The Consumer authorization shall be obtained and furnished to SecurTest prior to any information being assembled or reviewed in connection with the preparation of a Background Report. The form of Consumer authorization may be modified from time to time as may be required by changes in applicable law. Where the consumer is ordering the background check directly from SecurTest using the Secure Applicant Portal, the Consumer will securely log-in, create his or her profile, personal information, and complete the various Consumer authorizations and iReviewNow Consent and Agreement online. The Client agrees that it is its sole responsibility to obtain signed authorizations from consumers or subjects of the background report and securely maintain said authorizations for the period proscribed by federal and state laws.
SecurTest represents, warrants, and covenants that it will employ state of the art security precautions to protect the profile and personally identifiable information of Consumers who order their Background Check directly from SecurTest. SecurTest assumes full responsibility for such security and agrees to, and hereby does, indemnify, defend, save, and hold harmless Client and Client’s Indemnitees from and against any and all Claims arising from or in connection with a breach of internet security in such a situation.
Where Consumers do not have Internet access, the various Consumer authorizations and iReviewNow Consent and Agreement may be provided by the Client to the Consumer in other forms, completed by the Consumer, and transmitted to SecurTest by fax, mail, overnight express, or other delivery methods by the Client or Consumer. Where the Consumer completes the Consumer authorization and iReviewNow Consent and Agreement directly with SecurTest online, these documents will be viewable and printable by the Client by logging in securely online to its assigned SecurTest account. The Consumer authorization and iReviewNow Consent and Agreement are a means of verification that the Consumer has agreed to the background investigation pursuant to the FCRA and various state laws.
By agreeing to use iReviewNow, the Consumer will agree that all communications of reports, ability or opportunity to review the reports, pre or post adverse action letters, matters involving FCRA Consumer rights, disputes, or any other communication or correspondence shall be made by the Consumer using iReviewNow. The Client may provide SecurTest custom pre-adverse and post-adverse action letters, which can be used by SecurTest to transmit to the Consumer. The Client may also send to SecurTest its internal adverse action evaluation and process to be transmitted to the Consumer by SecurTest. Client agrees to send its internal adverse action evaluation and process to SecurTest upon execution of this Agreement, and any subsequent changes, for SecurTest to review SecurTest shall review and comment on any such forms provided by Client and shall advise SecurTest of any changes to such forms necessary to bring such forms into compliance with FCRA and any other applicable law.
Where the Consumer has no online access and has agreed to share his or her information with SecurTest in accordance with the FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT (FERPA), Client will collect an email address and a cell phone number from the Consumer, unless the Consumer has no such information, and provide such to SecurTest with each order it places directly with SecurTest. Where the Consumer has online access, SecurTest will collect an email address and a telephone number, if any, from the Consumer requesting the background check directly from SecurTest. The iReviewNow Consent will be used to notify each Consumer on how to view his or her report SecurTest will provide the required language for such email, application or registration notification and SecurTest and Client shall develop a mutually acceptable form for such notifications. Client will encourage Consumers to use the benefits of iReviewNow, and where an Authorized User or Consumer opts to not use iReviewNow, he or she will be informed of the benefits that each is forgoing.
Where the Consumer does not have online access and is not ordering the background investigation directly from SecurTest, Client agrees to notify the Consumer at the time of application or registration with instructions supplied by SecurTest to view the report at iReviewNow.com. The Consumer must agree to use the iReviewNow compliance system at the time of registration or application with Client or allow notifications to be transmitted to his or her employer, where such is the client of Client. Client agrees to upload to SecurTest the FCRA Consumer Authorization and iReviewNow Consent at the time of each order for services and maintain the original as provided by the statute of limitations or federal laws.
Where the Consumer does not provide an email to Client and where the Consumer report is graded as a Fail or where Client intends to not hire, continue the employment, or provide access to vendors or visitors based on information contained in the background or Consumer reports, Client agrees to send an email to the Consumer with language provided by SecurTest that instructs the Consumer how to view the Consumer report. Where the Consumer does not have an email or computer and Internet access, the customer of Client shall agree to have the Consumer return to the workplace to privately use iReviewNow.com to receive the benefits of iReviewNow.
The Parties agree that the Consumer will be instructed to submit any dispute involving his or her Consumer report within five (5) business days from the date the report is provided to the Consumer for the Consumer 's review. Except where applicable law may provide the Consumer additional time to dispute his or her Consumer report, each report shall be deemed accurate as reported in the event the Consumer fails to dispute the report using iReviewNow. However, the Consumer shall have access to his or her Consumer report through iReviewNow.com for a period of thirty days (or a longer period if required by applicable law) to dispute and/or view the report.
Client agrees that it shall be responsible for mailing or hand delivering, emailing, or otherwise providing Consumer reports, notices of FCRA rights, pre-adverse and post-adverse action letters to Consumer who do not agree to use iReviewNow or where such clients of Client refuse to use the benefits of iReviewNow. Client may request that SecurTest handle the provision of such Consumer reports, notices of FCRA rights, and pre-adverse and post-adverse action letters for Consumers who do not agree to use iReviewNow, and in such event SecurTest shall assume all liability and responsibility for ensuring that such reports, notices, and letters are compliant with FCRA and any and all other applicable law.
Sample documents, forms, authorizations, or other materials provided by SecurTest shall NOT be construed as legal advice, guidance or counsel. Client agrees that it shall consult with and rely on its own attorney about all compliance responsibilities under the FCRA and applicable, federal, state, or local law. SecurTest, Inc. expressly disclaims any warranties or responsibility or damages associated with or arising out of information provided. Employers seeking credit reports must provide additional notices pursuant to state law.
SecurTest will grade the report based on existing or future grading codes as defined by the Client during the term of this Agreement. However, Client is solely responsible for defending its hiring and retention decisions based on the grade codes provided to SecurTest as well as the content and relevance of the reports based on prevailing state and federal laws.
The "Summary Section" of each report will describe which convictions or records were specifically considered or used in determining that the subject did not meet the criteria defined by Client or its clients, which is further described as a "Fail," “Ineligible,” or similar language. This Summary Section will notify the Consumer that the report may contain other information, but only those records identified were used to determine the reasons for a Fail.
Appropriate disclaimers will be incorporated in reports with "official information" that only those records highlighted in the Summary Section of the report were used in determining the reasons for considering whether the candidate met the criteria for approval by Client or its clients.
Appropriate disclaimers will be added to the SSN Trace file (where fingerprints were not used to match the record) that the SSN History was only used to authenticate the Consumer's identification, and that the address history was not used in determining whether the Consumer met the criteria for participation in the program.
22) SURVIVAL. The provisions of this Agreement that expressly survive the expiration or termination of this Agreement and any other provisions of this Agreement that, by their nature, are intended to survive the expiration or termination of this Agreement, including, but not limited to, all provisions relating to governing law and interpretation or construction of this Agreement, shall survive the expiration or termination of this Agreement.
23) NOTICE. The federal Fair Credit Reporting Act (the “FCRA imposes criminal or civil penalties – including a fine, up to two years in prison, or both – against anyone who knowingly and willfully obtains information on a Consumer from a Consumer Reporting Agency under false pretenses, and other penalties for anyone who obtains such Consumer information without a permissible purpose. Moreover, various states and cities have similar penalties that the Client agrees to follow.
24) ADDITIONAL TERMS AND CONDITIONS
A. Client agrees that, subject to these Terms and Conditions, iReviewNow, LLC (“iReviewNow”) hereby grants a non-exclusive, non-transferable license for subjects of background reports in order to use the software provided through iReviewNow.com (hereafter “Site”): (i) to access and use the Site; (ii) to access and use content generated through or available on the Site; and (iii) communicate with Und Users or Providers through the Site. All rights not explicitly granted in this license grant are reserved by iReviewNow. Client agrees it will not use the Site in any manner inconsistent with these Terms. In addition, Client agrees not to:
Use or access the Site for any purpose that is unlawful or prohibited by these Terms or display, transmit or otherwise make available on or through the Site material that is infringing, threatening, harassing, libelous, hateful, racially or ethnically objectionable, unlawful, tortious, harmful to children, invasive of another's privacy or violative of third-party rights;
Reverse engineer, decompile, modify, or create derivative works from any software or materials accessible by or on the Site;
Frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of iReviewNow without express written consent;
Make any commercial or non-fair-use of the copyrights, trademarks, logos, symbols, or any other mark, device, or commercial identifier of iReviewNow or any of our third party licensors without the express written consent of iReviewNow;
Use or access the Site in a manner that could damage, disable, overburden, or impair any iReviewNow server or the networks connected to any iReviewNow server;
Interfere with any third party's use and enjoyment of the Site;
Attempt to gain unauthorized access to the Site, accounts, computer systems, or networks connected to any iReviewNow server through hacking, password mining, or any other means;
Sublicense or otherwise transfer any license granted to the Site or materials on the Site; or
Access the Site in order to build a competitive product or service, or copy any features, functions or graphics of the Site
B. I agree that iReviewNow and its licensors own all right, title and interest to the Site, all technology included therein and all derivatives thereof and intellectual property rights related thereto. iReviewNow shall also have sole ownership of all IP addresses and internet addresses provided by iReviewNow to access the Site, all passwords used to access or use the Site and all modifications, ideas, concepts or recommendations provided by User to iReviewNow. This Agreement does not convey or transfer any ownership rights in any service, technology, the Site or any content included therein. The iReviewNow name, logo, and trade names are trademarks of iReviewNow and no right is granted to use them except as granted herein.
C. Client agrees and understands that iReviewNow is a software provider, not an employer or Consumer Reporting Agency as defined by the Fair Credit Reporting Act (“FCRA”).
D. Client agrees to require the subject or consumer to review the complete background or consumer report for accuracy and completeness by exclusively using iReviewNow. Client agrees that it will have consumers or subjects of reports go to the Site to view their reports or other notices, answer questions, and dispute any misleading, inaccurate or incomplete information within five business days from the first text, email message, or notice that the report is completed (hereafter “Agreed Time”).
E. Client instructs SecurTest and iReviewNow to not mail any information or copies of reports to consumers or subjects, as it will require use of iReviewNow or be responsible for providing a copy of the report, notices, rights, and adverse action notices to the consumer or subject.
F. Client authorizes all notices, letters, reports, consumer rights, and other communications to be transmitted to consumers or subject on the Site. Client agrees to obtain an active email address from each subject or consumer. Client instructs SecurTest and/or iReviewNow to publish the report to Client if the subject or consumer fails to review or dispute any information in the report within the Agreed Time.
G. Client understands that iReviewNow and SecurTest do not make any employment or access privilege decisions for the Client. Client hereby releases and forever hold harmless iReviewNow and SecurTest for providing reports through the Site. Client agrees to have all subjects or consumers go to the Site to register for automated notification of a report or to view the report when notified.
H. Client agrees that it is responsible for the security the SecurTest or iReviewNow accounts containing background reports on the Site. Client is responsible for maintaining the confidentiality of any password(s) giving access to SecurTest or iReviewNow, and is fully responsible for all activities that occur under provided password(s). Where a user name, password or any other piece of information is provided by SecurTest or iReviewNow as part of its security procedures, Client will treat such information as confidential, and shall not disclose it to any other person or entity. Client also acknowledges that its account is for the exclusive us of the Client and its employees and agrees not to provide any other unauthorized person with access to this Site or portions of it using a designated user name, password or other security information. Client also agrees to ensure that it logs out or exits from SecurTest or iReviewNow accounts at the end of each session. Client will use particular caution when accessing accounts from a public or shared computer so that others are not able to view or record password or other personal information. I agree to notify iReviewNow and SecurTest immediately of any unauthorized use of my password(s).
I. We acknowledge it is a crime to use another person’s information for unlawful reasons, including, but not limited to gaining access to another person’s consumer or background report without their written consent.
J. We agree that all notices, such as pre-adverse action and post-adverse action letters, and legal rights as defined by the FCRA and similar laws may be transmitted to the subject or consumer through the Site or email.
K. We agree to submit color copies of sufficient quality of official government identifications upon request to verify the identity of subjects.
L. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE, THE SITE, AND ALL CONTENT, MATERIALS, INFORMATION, PRODUCTS AND SOFTWARE PROVIDED ON THE SITE, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. YOUR USE OF THE WEBSITES OF SECURTEST, INC. AND IREVIEWNOW, LLC AND ITS CONTENT OR ITEMS OBTAINED THROUGH THE SITES ARE AT YOUR OWN RISK. IREVIEWNOW AND SECURTEST EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IREVIEWNOW MAKES NO WARRANTY THAT: (A) THE SITE WILL MEET YOUR REQUIREMENTS; (B) THE SITES WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITES WILL BE ACCURATE OR RELIABLE; OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR EXPECTATIONS. ANY CONTENT, MATERIALS OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITES ARE DONE AT YOUR OWN DISCRETION AND RISK. IREVIEWNOW AND SECURTEST SHALL HAVE NO RESPONSIBILITY FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY CONTENT, MATERIALS, OR INFORMATION. SecurTest and iReviewNow cannot guarantee or warrant that such files available for downloading will be free of viruses or other destructive code. Client agrees that we are responsible for implementing sufficient procedures and checkpoints to satisfy our particular requirements for anti-virus protection and accuracy of data input and output. IREVIEWNOW AND SECURTEST RESERVES THE RIGHT TO MAKE CHANGES OR UPDATES TO THE SITE AT ANY TIME WITHOUT NOTICE.
M. IN NO EVENT SHALL IREVIEWNOW, ITS AFFILIATES, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR DAMAGES FOR PERSONAL INJURY, EMOTIONAL DISTRESS, LOSS OF PROFITS, REVENUE, GOODWILL, DATA OR USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), ARISING FROM YOUR ACCESS TO, OR USE OF, THE SITE, EVEN IF FORESEEABLE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
N. Client agrees to defend, indemnify and hold harmless iReviewNow, LLC, SecurTest, Inc., its officers, directors, employees and agents from and against any and all claims, liabilities, damages, judgments, awards, losses or expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with my access to, or use of, the Site, information obtained from the Site, and violations of these Terms and Conditions.
O. SEVERABILITY. If one or more of the provisions of this Agreement shall be held to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired. The invalid or unenforceable part or provisions shall be replaced with a provision that accomplishes, to the extent possible, the original business purpose of such part or provisions in a valid enforceable manner.
P. We agree that Sections 1, 2, 3, 9, 13, 17, 18, 19, and 22 of these Terms and Conditions (ADDITIONAL TERMS AND CONDITIONS) shall survive the expiration, cancellation and termination of these Terms and Conditions for any reason.
Q. All matters relating to your access to, and use of, the Site shall be governed by U.S. federal law or the laws of the State of Florida. Any legal action or proceeding relating to your access to, or use of, the Site shall be instituted in a state or federal court in Panama City Beach, (Bay County) Florida. The Parties agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding.
R. We understand and agree that these Terms and Conditions constitute the entire agreement between the Parties and they supersede all prior or contemporaneous communications and proposals; whether electronic, oral, or written; between the Parties.
S. We affirm that I have read and understand these Terms and Conditions, been fully advised, have had ample opportunity to seek and obtain legal advice, and voluntarily agree to use the Sites.
25) ELECTRONIC SIGNATURES. The Parties agree than an electronic signature is the same as a handwritten signature. In resolving a civil dispute involving a secure electronic signature, it shall be reputably presumed that the secure electronic signature is the signature of the person to whom it correlates. In accordance with the Uniform Electronic Transactions Act (UETA) and the Electronic Signatures in Global and National Commerce Act, or E-Sign (the Act), and other applicable local or state legislation regarding Electronic Signatures and Transactions, the Parties do hereby expressly authorize and agree to the use of electronic signatures as an additional method of signing and/or initialing this Contract. The Parties hereby agree that either Party may sign electronically by utilizing a digital signature service.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed through their respective authorized representatives.