TERMS AND CONDITIONS AGREEMENT
Effective date: May 25, 2018
We are Scherzer International Corporation (“SI” or “we”), a California corporation, with a principal place of business in Woodland Hills, California, and we provide our clients with specialized background screening reports (the “Reports”). Upon request, acceptance or use of any of our Reports, the person who orders the Report is the purchaser of the Report (the “Purchaser”) and agrees to the following terms and conditions with SI (the “Terms and Conditions”):
We price each Report individually and typically confirm that price by email, fax or in a separate agreement before commencing work on the Report. We do not start work on a Report until we have agreed on the price with Purchaser. If an agreement relates to more than one Report, Purchaser shall pay us for each Report individually, upon its delivery. The amount of the payment for each Report shall be calculated based on the amount allocated to the particular Report in the underlying agreement. Alternatively, or if there is no allocation in the underlying agreement, SI shall calculate the price for each Report on a pro rata basis, based on the total number of Reports ordered. We must approve any change by consenting to such change in writing.
Purchaser shall pay each invoice relating to a Report in full within 30 days from the date of the Report. We reserve the right to bill for a Report when it is substantially complete, and Purchaser shall pay SI even if the Report is designated as “preliminary”–for example, when a Report is complete except for an item that an unrelated third-party will deliver to us at a future date, and that delivery is in the control of the third-party (e.g., response from a court or other government entity, school, reference, etc.) The person or entity ordering the Report is the person responsible for payment, and not any third-party, unless the third-party is disclosed to SI in advance, specifically agrees in writing to these Terms and Conditions, and SI agrees in writing to this payment arrangement. Payment is not contingent in any way and is due regardless of whether
(a) Purchaser receives reimbursement from a client or other third-party or (b) any transaction for which the Report was ordered is consummated. Unless SI agrees otherwise in writing, SI will charge a late payment fee on all overdue amounts in the amount that is of the lesser of ten percent (10%) per annum or the maximum rate permitted by law.
Purchaser may specify delivery of the Report by email, fax or other means. SI will deliver the Report either on the date of the Report or on the day after the date of the Report. Delivery will be complete (a) upon receipt by Purchaser when SI encloses the Report as an attachment to an email and transmits the email from its system or from a system designated by Purchaser addressed to the email address supplied by Purchaser; (b) when SI completes a transmission to the number designated by Purchaser if we deliver by
fax; or (c) when the Report is delivered to Purchaser if overnight service is selected. In the case of emails, SI will use reasonable efforts to direct them to the address that Purchaser specifies, but SI disclaims any and all liability for any breach of security that is beyond SI’s control.
We will prepare the Report from sources that SI reasonably believes to be reliable. However, SI is unable to provide any assurances that these sources are complete or without error. SI does not have access to confidential, private or non-public government records. If an error from one of SI’s sources comes to SI’s attention in a way that suggests that a Report is inaccurate in any material respect, SI will promptly notify Purchaser of the possible error. In all cases, the Report is limited by the scope of SI’s review and research. The Report will indicate the jurisdictions searched and the periods covered, including, in the case of sources that disclose when they were last updated, the date through which the particular source was last updated at the time of our research. We generally consider a source to be current if it has been updated within 30 days of the Report. This does not mean that we would or would not discover other relevant information if we searched other sources, extended the time periods or waited for updates to occur. On occasion, we may recommend certain search strategies. The elements and search strategies we recommend are based on our experience and do not guarantee that all deficiencies will be revealed. A search conducted pursuant to a recommended search strategy remains subject to scope limitations and any problems caused by incomplete or erroneous underlying data. In all cases, SI will attempt to tailor the scope to Purchaser’s particular needs and specified purpose. We warrant only that we will conduct our work competently and in accordance with relevant professional standards, laws and regulations in all material respects. EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION ABOVE, WE MAKE NO WARRANTY WHATSOEVER WITH RESPECT TO ANY SERVICES PROVIDED, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD-PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
If Purchaser requests a “database only” Report, Purchaser assumes the risk inherent in these Reports. While the databases SI searches are labeled as “national” or “statewide,” they do not contain many records that are available from the official record keepers’ venue, and may contain records that are inaccurate, incomplete, outdated or inconsistently updated. Some of these databases can be searched by name only, which increases the risk that information cannot be accurately identified to a particular subject. To obtain the most accurate, comprehensive and up-to-date results, the database information must be verified by going directly to the official source’s materials. In the case of Reports that contain database searches only, SI will provide information that we believe to be accurate and relevant, and within the requirements of the Fair Credit Reporting Act (the “FCRA”) and other laws, as applicable. SI will exclude any information that does not meet this standard, including in some instances information that may relate to the subject. To the extent that there is any conflict between the provisions of this paragraph and paragraph 4, the provisions of this paragraph shall prevail.
SI will indicate the effective date of the Report (the “Effective Date”) in the body of the Report. SI will provide information for the period or periods specified in the Report ending on the Effective Date, although that date may be earlier than the date of delivery. SI does not assume any obligation to update the Report, except upon receipt of an additional request from Purchaser. We will charge a fee to update the Report, and the Report, as updated, shall continue to be subject to these Terms and Conditions.
(a) IN NO EVENT SHALL SI BE LIABLE TO PURCHASER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SI IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
(c) The limitation of liability set forth in Section 7(b) above shall not apply to (i) liability resulting from SI’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from SI’s negligent acts or omissions.
Purchaser may cancel any previously ordered Report by written notice to us. If a Report is cancelled, we will be entitled to payment of a proportionate part of the previously agreed price based on our reasonable estimate of the percentage of the total work completed through the date on which we receive the notice of cancellation. We will deliver the information that we have gathered to prepare the Report prior to the date of cancellation. This material will be provided “AS IS” without warranty of any kind, and Purchaser shall assume all risks resulting from the use or disclosure of this material.
Purchaser shall retain ownership rights to the information that Purchaser submits to us to prepare a Report. Purchaser grants to us the right to use Purchaser’s information to obtain information from outside sources and to prepare the requested Report. We shall retain all ownership rights to a Report and to the information contained therein. We grant to Purchaser the non-exclusive perpetual, royalty-free right to use the Report in the form provided to Purchaser, without modification. Purchaser shall notify us if Purchaser wishes to share the Report with an unrelated third-party, and may not share the Report until such third-party has executed and delivered to us a letter of non-reliance containing terms and conditions acceptable to us. Purchaser shall not publish the Report or any excerpts from the Report or modify the Report in any way, without our prior written consent. Purchaser shall not have a right to assign or sublicense Purchaser’s rights, except in connection with a sale of substantially all of Purchaser’s business. Purchaser’s use of a Report obtained to screen individuals for employment, insurance or credit is limited by law, and Purchaser shall not use these Reports in any manner that would cause SI to violate the law.
Purchaser and SI may be subject to the requirements of the Fair Credit Reporting Act (15 U.S.C. §§ 1681 et seq.) (the “FCRA”) depending upon Purchaser’s use of a Report. We require Purchaser to disclose to us the intended use of each Report. If that use falls within the scope of the FCRA, we agree to comply in all material respects with its provisions to the extent they are imposed upon us as a consumer reporting agency (“CRA”). The FCRA is a federal law that regulates the collection, dissemination, and use of consumer information, including consumer credit information. Under 15 U.S.C. § 1681a, a “consumer” is defined as
an “individual,” and a “consumer report” in general, means any written, oral, or other communication of any information by a CRA bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for (A) credit or insurance to be used primarily for personal, family, or household purposes, (B) employment purposes, or (C) any other purpose authorized under § 1681b of the FCRA. The FCRA prohibits any person from obtaining a consumer report from a CRA unless the person has certified to the CRA the permissible purpose for which the report is being obtained and certifies that the report will not be used for any other purpose. Accordingly, when Purchaser requests from us FCRA-regulated Report(s), Purchaser agrees that it is certifying that it has a permissible purpose to procure the Report(s) as provided under the FCRA and that Purchaser will use the Report(s) for no other purpose. The full text of the FCRA and further information about the responsibilities of users of consumer reports are set forth at http://www.ftc.gov/os/statutes/031224fcra.pdf and http://www.consumerfinance.gov/learnmore/.
Before we undertake the preparation of Reports on an employee or potential employee, we require Purchaser to provide to us a signed Client Agreement and Certification in the form set forth at https://portal.scherzer.com/become-a-client/client-agreement (“Employment-Purpose Certification”), certifying that (A) Purchaser will request a consumer Report as defined by the FCRA only when Purchaser intends to use the Report in accordance with the FCRA and its state law counterparts for employment purposes and for no other purpose; (B) before ordering the Report, Purchaser will clearly and conspicuously disclose to the consumer in a written, stand-alone document that Purchaser may obtain a Report for employment purposes; (C) Purchaser will obtain the consumer’s written authorization to obtain or procure the Report; (D) Purchaser will follow the FCRA-prescribed two-step adverse action notice process if Purchaser intends to take adverse action based in whole or in part on the information contained in the Report; (E) Purchaser will not take the action without first providing to the consumer a copy of the Report and notice of the consumer’s rights under the FCRA in the form issued by the Consumer Financial Protection Bureau and provided to Purchaser by us, as well as any notices of rights that may be applicable under state or local laws; and (F) Purchaser will not use any information from the Report in violation of any applicable federal or state equal employment opportunity law or regulation. While we believe that there is no conflict between the Employment Certification and these Terms and Conditions, should a court or arbitrators determine that such a conflict exists, the provisions of these Terms and Conditions shall prevail.
To prepare a Report, we rely on information provided to us by Purchaser. If Purchaser supplies Social Security or other government-issued identification numbers for use in the preparation of a Report, Purchaser represents and warrants that Purchaser has the required permission from the person identified. We will maintain all information provided by Purchaser in confidence and use the information solely to prepare the Report. We will not sell the Purchaser’s information to any third-parties. We will use the same care and discretion to avoid disclosure of Purchaser’s confidential information, including any information that is classified as personally identifiable information (“PII”) under federal and state laws as we use with our own similar information that we do not wish to have disclosed. We will not disclose any of Purchaser’s confidential information to any third-parties outside of our organization and our network of suppliers, outside sources and independent contractors, unless and until (A) the information is or becomes available in the public domain, without our fault, (B) we receive the same information from another source, without a similar restriction on its use, or (C) a subpoena or court order or process in any governmental proceeding directs us to disclose the information. We will comply in all material respects with laws relating to privacy and data protection that are or may be applicable, including but not limited to the Gramm-Leach-Bliley Act (P.L. 106-102) (15 U.S.C. § 6801 et seq.) (the “GLBA”), the FCRA, the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d), the fair information principles published by the United States Federal Trade Commission, and the General Data Protection Regulation 2016/679 of the European Parliament and of the Council of the European Union, and the European Commission of April 27, 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and applicable regulations, and any applicable secondary legislation, regulations, and orders.
If Purchaser is a financial institution that has an obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers’ PII under Title V of the GLBA) and Purchaser has informed us of this obligation, then in addition to maintaining confidentiality as required by Section 12 above, any information that Purchaser supplies to us will remain Purchaser’s property or the property of Purchaser’s suppliers and licensors, as the case may be. We will not use any non-public personal information about Purchaser’s customers in any manner prohibited by the GLBA, and will use the information only to assist us in the preparation of the Report. We will disclose the information only within our organization and our network of suppliers, outside sources, and subcontractors and to those employees and affiliates who have a need to know and to other persons only with Purchaser’s written consent. If we are directed to disclose information in connection with a court or administrative proceeding, we will do so only after giving Purchaser prompt notice so that Purchaser may seek a protective order.
We comply with the EU-US Privacy Shield (the “Shield”) and rely on this privacy framework when transferring personal data of any natural person who is located in the European Economic Area (the “EEA”) which includes the 25-member states of the EU plus Iceland, Liechtenstein and Norway, to the United States. (“Personal Data” means any information relating to an individual located in the EEA that can be used to identify that individual either on its own or in combination with other readily available data.) In instances where you act as a controller of the Personal Data, you agree to comply with the “notice” and “choice” principles under the Shield, as set forth at https://www.privacyshield.gov/. (“Controller” means a person or organization which, alone or jointly with others, determines the purposes and means of the processing of Personal Data.) Accordingly, where you act as a Controller, you agree that (i) Personal Data may only be processed for the limited and specified purposes consistent with the individual's consent; (ii) you will provide at least the same level of protection as required by the Shield principles; (iii) you will notify us if you make a determination that you can no longer meet these obligations; and (iv) when such a determination is made, you will cease processing or take other reasonable and appropriate remedial measures to cure the deficiency.
15. GDPR Compliance.
Both Purchaser and SI shall comply with their respective obligations as set forth in the GDPR. “GDPR” means Regulation 2016/679 of the European Parliament and of the Council of the European Union, and the European Commission of April 27, 2016 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data, known as the General Data Protection Regulation. SI states that it shall only process Personal Data (as defined by the GDPR) concerning Data Subjects (as defined by the GDPR) for the necessary time, nature, and purpose to fulfill its obligations as set forth in a separate written agreement between Purchaser and SI.SI agrees that at any time during which SI processes Purchaser’s Personal Data of natural persons located in the EEA, SI will: (i) process the Personal Data only in accordance with the documented (i.e. written) instructions of Purchaser, as set forth in any written agreement between Purchaser and SI (unless required by law to act without such instructions); (ii) ensure that persons authorized to process the Personal Data on behalf of SI have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality; (iii) take all measures to protect the security of processing all Personal Data that are required pursuant to Article 32 of the GDPR; (iv) wherever feasible by taking into account the nature of SI’s processing of Personal Data, assist Purchaser by appropriate technical and organizational measures, to fulfill Purchaser’s obligation to respond to requests for exercising the data subject’s rights as provided in Chapter III (Articles 15 through 22) of the GDPR; (v) assist Purchaser in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR taking into account the purpose of the written agreement between Purchaser and SI; (vi) at the choice of Purchaser, delete or return all Personal Data to Purchaser after the end of the provision of services relating to the processing, and deletes existing copies unless Union or Member State law requires storage of the personal data; (vii) to the extent that SI engages a sub-processor, it will only do so with the prior consent of Purchaser and a written contract that complies with all necessary obligations under the GDPR; (viii) make available to Purchaser all information necessary to demonstrate compliance with the obligations set forth under Article 28 of the GDPR; and (ix) allow for and contribute to audits, including inspections, conducted by Purchaser or another auditor mandated by Purchaser.
Upon request from Purchaser that regularly purchases Reports, we may grant access to Purchaser to the Scherzer Business Network (the “SBN”) to among other things, submit Report orders. Each Purchaser seeking access shall be solely responsible for the use of logon identification and passwords. Without limiting the foregoing, Purchaser shall protect the integrity of all passwords in its possession and will not use the logon identification or any password in furtherance of any illegal or immoral act. Purchaser shall not (A) attempt to access any area of our computer systems outside of its ‘client area,” (B) communicate through the portal by sending threatening or harassing messages, or (C) operate in any way to infringe on intellectual property rights whether owned or possessed by us. Purchaser shall be solely responsible for the security, use or misuse of all passwords and shall inform us promptly when any person whose name is associated with a password leaves Purchaser’s employ or otherwise should have his or her password cancelled. Purchaser shall notify us promptly if Purchaser becomes aware of any unauthorized use of a password assigned to Purchaser or of any other breach of security in any way related to the use of a password. Any liability resulting from the misuse of the logon identification and any password assigned to Purchaser shall be the sole responsibility of Purchaser. Any information delivered by us through the SBN is delivered AS IS, WHERE IS, WITH ALL FAULTS and we expressly disavow any warranty, express or implied. We reserve the right to cancel a Purchaser’s access to the SBN and any and all passwords with or without notice for any reason and without reason.
We may destroy the Report and all other materials relating to the Report, including materials belonging to Purchaser, at any time on or after the seventh anniversary of the Effective Date of the Report. We will return Purchaser’s materials to Purchaser at Purchaser’s cost, if Purchaser requests their return prior to destruction. We follow the Federal Trade Commission’s disposal rule for records destruction by securely destroying all documents for which recordkeeping requirements have been satisfied, through methods such as burning, pulverizing, or shredding, and disposing of electronic information so that it cannot be read or reconstructed.
The prevailing party in any proceeding concerning a Report, including a proceeding to collect unpaid fees, in addition to other costs and damages, shall be entitled to recover its reasonable attorneys’ fees and costs of collection.
These Terms and Conditions apply to all of our Reports and are hereby incorporated into the Reports as if fully set forth therein.
All provisions of these Terms and Conditions, together with requesting emails, and any specific agreements between us and Purchaser relating to a specific Report constitute the full electronic and written agreement between us and the Purchaser (the “Agreement”) and the Agreement shall survive the delivery of the Report, Purchaser’s payment in full for the Report and any termination of our relationship, whether or not it is reflected in a separate agreement. We may amend or modify these Terms and Conditions from time to time, but any modifications or amendments we make shall be effective only after we provide notice to Purchaser and shall apply only to Reports ordered after we have posted on our website the modified or amended Terms and Conditions. Except as provided in the preceding sentence, the provisions of these Terms and Conditions and the Agreement shall not be modified or amended, except by a written or electronic document specifically referring to these Terms and Conditions or to a Report otherwise ordered pursuant to these Terms and Conditions, signed in handwriting or by electronic means by each of us. The Agreement shall be governed by the laws of California in both its interpretation and application, without regard to the conflicts of laws provisions of those laws. The Agreement may be executed in one or more counterparts and may be executed entirely in electronic form. Electronic terms, conditions, signatures and deliveries created or effected by pressing the submit button, by email, by facsimile transmission or by any other means permitted under the California Uniform Electronic Transactions Act (California Civil Code
§§1633.1 et seq.) and/or under the federal law contained in 15 U.S.C. §§7001 et seq. shall be binding and effective in all respects. The term “person” used in these Terms and Conditions and the Agreement shall mean any individual, corporation, business trust, estate, trust, partnership, limited liability company, association or any other legal or commercial entity. All individuals submitting and signing on behalf of another person shall be deemed to have the authority to make the submission, unless we receive notice before the work commences on the requested Report that the person does not have the required authority. Either of us shall have the right to terminate this Agreement at any time by notice to the other. The provisions of paragraphs 2, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 20 of these terms and Conditions shall survive termination with respect to previously delivered or canceled Reports. A termination shall not terminate Purchaser’s obligation to pay any outstanding amounts properly charged.
Scherzer International