TERMS
AND CONDITIONS AGREEMENT
Effective date: January
1, 2020
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”):
1. Price.
We price each Report individually and typically
confirm that price by email 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 will 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 will 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.
2. Payment.
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, unless the third-party is disclosed to SI in advance
and 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.
3. Delivery.
Purchaser may specify delivery of the Report by
email 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 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 all liability for any
breach of security that is beyond SI’s control.
4. Disclaimer
and Warranty.
We will prepare the Report from sources that we
reasonably believe 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; however, this does
not mean that we would or would not discover other relevant information if we
searched other sources, extended the time or waited for updates to occur. On
occasion, we may recommend specific 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 according 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. Our only warranty is that we conduct our work competently and by
following 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.
5. Database-Only
Searches.
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 recordkeepers’ 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. The most accurate, comprehensive, and up-to-date results can only be
obtained if the database information is verified directly with 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.
6. Effective
Date.
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.
7. Limitation
of Liability.
(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.
8. Cancellation.
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.
9. Property
Rights.
Purchaser shall retain ownership rights to the
information that Purchaser submits to us to prepare a Report. Purchaser grants
us the right to use Purchaser’s information to obtain information from outside
sources and prepare the requested Report. We shall retain all ownership rights
to a Report and 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.
10. The
Fair Credit Reporting Act.
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 creditworthiness, 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 https://www.consumer.ftc.gov/articles/pdf-0111-fair-credit-reporting-act.pdf
and Notice to users
of consumer reports.pdf
11. Employment-Purpose
Reports.
Before we undertake the preparation of a Report
on an employee or potential employee, we require Purchaser to provide to us a
signed client certification agreement 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 no other purpose; (B) before ordering the Report, Purchaser will disclose
to the consumer in a written, clear and conspicuous, 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-Purpose
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.
12. Confidential
Information.
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 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.)
(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 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, applicable regulations, and any applicable secondary
legislation, regulations, and orders.
13. Financial
Institution – Privacy.
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 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.
14. European
Union (“EU”) and Swiss Data Transfers.
We comply with the EU-US Privacy Shield (the
“Shield”) and the Swiss-U.S. Privacy Shield Framework (collectively “Privacy Shield”)
and rely on these privacy frameworks when transferring personal data of any
natural person who is located in Switzerland or the European Economic Area (the
“EEA”) which includes the 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, 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.
16. CCPA
Compliance
Both Purchaser and SI shall comply with their
respective obligations of the California Consumer Privacy Act of 2018 as set
forth in California Civil Code §§ 1798.100 - 1798.199, and all subsequent
amendments and applicable regulations (“CCPA”). SI states that it shall only
process Personal Information (as defined by the CCPA) that identifies, relates
to, describes, is capable of being associated with, or could reasonably be
linked, directly or indirectly, with a particular California consumer or
household for the purpose of fulfilling its obligations as stated 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
California, SI will: (i) process the Personal Data only in accordance with the
documented 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 reasonable measures to
protect the security of processing all Personal Data; (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 a California
consumer’s CCPA rights; (v) to the extent that SI engages a vendor, it will
only do so with a written contract that complies with all necessary obligations
under the CCPA; (viii) make available to Purchaser all information necessary to
demonstrate compliance with CCPA obligations; and (ix) allow for and contribute
to audits, including inspections, conducted by Purchaser or another auditor
mandated by Purchaser.
17. Access
to Client Portal.
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 login identification
and passwords. Without limiting the foregoing, Purchaser shall protect the
integrity of all passwords in its possession and will not use the login
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
canceled. 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 login identification and any password assigned to
Purchaser shall be the sole responsibility of Purchaser. Any information
delivered by us through the SBN is provided AS IS, WHERE IS, WITH ALL FAULTS,
and we expressly disclaim any warranty, express or implied. We reserve the
right to cancel a Purchaser’s access to the SBN and all passwords with or
without notice for any reason or no reason.
18. Record
Retention and Destruction.
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 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.
19. Attorneys'
Fees.
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.
20. Applicability.
These Terms and Conditions apply to all of our
Reports and are hereby incorporated into the Reports as if fully set forth
therein.
21. Miscellaneous.
All provisions of these Terms and Conditions,
together with requesting emails, and any specific agreements between Purchaser
and us relating to a specific Report constitute the full electronic and written
agreement between Purchaser and us (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 law
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.) or 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 authorization.
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, 18, and 21 of these terms and Conditions shall survive
termination for previously delivered or canceled Reports. Purchaser’s
obligation to pay any outstanding amounts properly charged shall survive any
termination.
Scherzer International