End User Agreement
2. ACCESS TO THE WEBSITE. Company and Host (hereinafter, the “Parties”) hereby grant to Customer, a nontransferable, nonexclusive license to access the Company web site (the “Web Site”), hosted by Host, during Customer’s normal hours of operation, solely for the purpose of performing credit research and related work in the regular course of Customer’s business. Customer understands and agrees that its access to and use of credit reports and credit information (the “Credit Information”) through the Web Site is subject to restrictions imposed upon Customer by any number of the three main consumer credit reporting agencies, Experian, Equifax and Trans Union (the “Bureaus”) and other data repositories (“Repositories”), as well as applicable local, state and federal laws. Customer agrees to comply with all such Bureau restrictions and such restrictions are incorporated herein by reference. Customer further acknowledges and warrants that: (a) it has received copies of, has read, understands and agrees to abide by the Fair Credit Reporting Act (FCRA) as amended by the Fair and Accurate Credit Transactions Act of 2003 (FACT Act), the Americans with Disabilities Act (ADA) and other applicable equal opportunity laws, the Gramm-Leach-Bliley Act of 1999 (GLBA) and the Driver Privacy Protection Act (DPPA), as well as the laws of the applicable state issuing Motor Vehicle Records (MVRs); (b) it accepts responsibility for processing and using the Credit Information in accordance with the FCRA, the ADA and other applicable equal opportunity laws, the GLBA and the DPPA and with the requirements of the Bureaus and all other applicable local, state and federal laws that regulate the use of the Credit Information; (c) compliance and keeping up to date with such requirements and laws is the responsibility of the Customer; and (d) it has a permissible purpose as defined in the FCRA and obtained a proper release and authorization from each applicant prior to requesting Credit Information on that applicant. The Parties hereto, as well as Company’s service providers and the Bureaus (collectively “Suppliers”) reserve the right at any time and without prior notice to limit Customer’s access to the Web Site in order to perform repairs, make modifications, per industry or legal mandate or as a result of circumstances beyond the reasonable control of the Parties and the Suppliers. 3. INQUIRIES REGARDING CREDIT INFORMATION. All questions or comments concerning the availability or delivery of the Credit Information should be directed to Company at the address, phone and numbers indicated on the Web Site. Questions or comments regarding the material contained within the Credit Information itself should be directed to the Bureau, Repository or other official custodian of the public records. Customer further agrees to provide the relevant Bureau’s or Repository’s name, address and phone number to any subject of the Credit Information who has questions or comments about the Credit Information as well. In order to comply with the FCRA, Customer understand that Customer and/or the Parties must maintain a log on consumer Credit Information secured by consumers, with transaction details, for a minimum of twenty-five months. During an inquiry, the subject of the Credit Information has the right to learn the name of the Customer ordering the Credit Information and has the right to see the Credit Information ordered by the Customer. 4. PASSWORDS. To permit authorized Customer personnel to process Credit Information through the Web Site, Company shall assign username(s) and password(s) to Customer. Customer is responsible and will be billed for all use of the services used under the usernames assigned to it. If Customer learns or suspects that unauthorized use of its account is taking place, Customer shall notify Company immediately and Company will replace the password. 5. SOLE USE. The Credit Information accessed through the Web Site is for the sole and internal use of the Customer and except as permitted by a separate writing signed by both parties, may not be resold, sub-licensed or otherwise revised in any way or delivered to any third party. Customer agrees that it will secure consumer credit and other information on individuals solely for its use in credit, collection, underwriting or employment transactions between itself and the individual to whom information refers and/or for such other “permissible purposes” related to a business transaction as are defined by the FCRA and that it will neither request nor use any such information for any other purpose. 6. OTHER LEGAL REQUIREMENTS. Customer agrees that it will obtain and retain on file appropriate release, application and/or authorization forms from any credit applicant, job applicant or other individual on whom such a report is sought; that it will disclose information to each such individual as and when required by law; and that credit report information and other information (if applicable) will be sought on such individual; and that it will advise the individual when credit is denied, terminated or changed or when an application is declined, based in whole or in part on the Credit Information (advisees in such case to include name and address of applicable Credit Bureau or Repository). Customer agrees that it will retain the releases, applications and/or authorization forms described above for twenty-five months and that it will make available such releases, applications and/or authorization forms to the Parties upon request. Customer further agrees to take all reasonable precautions to ensure that consumer credit and other information on individuals will be held in strict confidence, disclosed only to those of its employees whose duties reasonably relate to the legitimate business purpose for which the information was requested and not disclosed to any other person in whole or in part unless required by valid subpoena or court order. 7. INDEMNIFICATION. Customer agrees to indemnify and hold harmless Company, Host, its Suppliers, their parents, affiliates and/or subsidiaries and their officers, directors, employees and shareholders from any and all damages, costs, expenses or penalties (including reasonable attorneys’ fees) and any other liabilities imposed by local, state or federal laws or regulations or claims by any third party which result from or arise out of any breach by Customer of any warranty or agreement contained herein or any misuse by Customer of any Credit Information accessed through the Web Site. 8. PAYMENT. The current prices for services are posted on the Web Site. Customer agrees to pay for all transactions processed through the Web Site under Customer’s account number, either via a valid and approved credit card issued in Customer’s name or via Automated Clearing House (ACH) and Customer agrees to provide all of the necessary information to effectuate prompt billing and payment. Access privileges to the Web Site may be suspended without notice if payment cannot be processed and/or is not received timely. Customer will assume responsibility for and pay all applicable state, local, federal or other taxes (exclusive of taxes based on the Parties’ net income), which result from this Agreement or the products and services provided hereunder. In the event that payment cannot be processed, Customer will be invoiced, along with a $30.00 service charge and the invoice will be due upon receipt. Invoices not paid in full by Customer within 15 days of the invoice date are subject to a late fee of 1.75% per month (or the maximum fee allowable by law, if this is less). Without limiting any other remedies for non payment or late payment of invoices, Customer shall be liable for any and all interest, late fees, costs of collection, court costs and reasonable attorneys’ fees relating any action or proceeding regarding invoices for services rendered pursuant to this Agreement and remaining unpaid after the due date. 9. TERMINATION. Customer, Company or Host may terminate this Agreement at any time and for any reason, upon thirty (30) days prior written notice. Customer agrees however, to pay for all transactions processed through the Web Site prior to termination. Customer further agrees that the Parties or the Suppliers may suspend or terminate access to the Web Site without notice in the event that Customer is suspected of violating the FCRA or otherwise breaching any material term of this Agreement. 10. DISCLAIMERS AND LIMITATION OF LIABILITY. NEITHER THE PARTIES NOR THE SUPPLIERS MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE PERFORMANCE OF THE WEB SITE OR THE DECISIONING, MODEL(S), ADVICE, ASSISTANCE OR MATERIALS SUPPLIED OR PROVIDED THEREUNDER. THE CREDIT INFORMATION ACCESSED THROUGH THE WEB SITE IS SUPPLIED BY VARIOUS SUPPLIERS. THE CREDIT INFORMATION IS PROVIDED “AS IS” AND NEITHER THE PARTIES, NOR THE SUPPLIERS IN ANY WAY WARRANT OR ASSUME ANY LIABILITY FOR THE ACCURACY AND/OR COMPLETENESS OF ANY CREDIT INFORMATION ACCESSED THROUGH THE WEB SITE. CUSTOMER ACKNOWLEDGES THAT NEITHER THE PARTIES NOR THE SUPPLIERS WARRANT OR GUARANTEE THE TIMELINESS, CURRENCY, ACCURACY, ADEQUACY, COMPLETENESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE WEB SITE, THE CREDIT INFORMATION OR ANY OTHER INFORMATION, PRODUCTS OR SERVICES PROVIDED HEREUNDER AND THE PARTIES SPECIFICALLY DISCLAIM ALL SUCH WARRANTIES. CUSTOMER ACKNOWLEDGES THAT EVERY BUSINESS DECISION INVOLVES THE ASSUMPTION OF A RISK AND THAT THE PARTIES DO NOT AND WILL NOT UNDERWRITE THAT RISK IN ANY MANNER WHATSOEVER. In the event the Parties are found liable for any cost or damage suffered by Customer, liability is hereby limited to the fees paid by Customer for the particular Credit Information in question. The remedies set forth in this paragraph and termination of this Agreement are Customer’s exclusive remedies for claims or damages arising out of or relating in any way to this Agreement or the Credit Information, products or services provided hereunder. IN NO EVENT SHALL THE PARTIES OR ANY SUPPLIER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES. 11. OWNERSHIP OF LICENSE AND CONFIDENTIAL INFORMATON. Nothing in this Agreement shall be construed to convey to Customer any right, title or ownership interest in the Web Site or in the intellectual property rights relating to the Web Site or the software or documentation relating to such. All rights, title and interest in such, whether or not in the nature of copyright, trade secret, trademark, service mark, trade name, patent or otherwise, vest solely in the proper Parties. Customer acknowledges that the Parties consider the Web Site and the software and documentation relating to such to include confidential trade secrets, to include confidential information and to be proprietary to the proper Parties. Customer agrees to hold all technical information relating to such as it may learn in trust and confidence, in the same manner that Customer holds its own confidential information of like kind. Each party to this Agreement agrees that all proprietary information disclosed to it by the other parties, including without limitation this Agreement and any usage statistics shall not be disclosed to any outside party other than the applicable Supplier, and shall be used only for the purpose of this Agreement. Each party to this Agreement agrees to treat all proprietary information of the other parties in the same manner in which it treats its own proprietary information, including prohibition of and sanction against the use of such by any outside party for direct or indirect gain and against any employee, agent or associate of a party to this Agreement so revealing and/or using such information for direct or indirect gain. 12. GENERAL PROVISIONS. This Agreement shall be governed by and construed in accordance with the sole and exclusive law, jurisdiction and venue of the State of New Jersey and may not be assigned in whole or in part by Customer without the prior written consent of the Parties. All notices required or permitted hereunder shall be in writing and shall be sent via regular US mail return receipt requested, overnight carrier or hand delivery. Performance by the Parties or the Suppliers may be subject to interruption and delay due to causes beyond their reasonable control such as acts of God, government, weather, fire, power or telecommunications failure, inability to obtain supplies, breakdown of equipment or interruption in Bureau services or communications, for which no liability shall be incurred. If any provision of this Agreement is held to be illegal, invalid or unenforceable under the applicable laws of any jurisdiction to which this Agreement is subject, all other provisions shall survive. Each party shall have, in addition to any other relief at law or in equity, the right to injunctive relief to redress any breach of this Agreement by the other party. Customer may not hire any employee of (or contractor/consultant to) the Parties engaged in fulfilling the terms of this Agreement without the prior written consent of the proper Parties. This Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the Parties and Customer. By electronic signature hereto, Customer agrees, acknowledges and consents that the Credit Information will be for its exclusive use in its credit, insurance, or other business decisions and that all consumer credit reports and allied information will be held in strict confidence. Further, use of such information for unfair or deceptive practices is strictly prohibited and information on current or prospective employees will only be secured by designated authorized representative(s) of Customer. Additionally, Customer hereby expressly nominates and appoints Host and its Suppliers as its Agent for the sole and limited purpose of obtaining access to credit bureau products and information and hereby gives its express permission to the consumer credit reporting agencies to provide Host and its Suppliers with any and all related information. Customer employees are forbidden from obtaining Credit Information about themselves, associates or any other employee, except in the performance of their official duties. Finally, Credit Information will not be disclosed to the subject of the information except in the case of adverse action; and in addition such subject(s) will be referred, upon need or legitimate inquiry, to the Credit Bureau office identified on the consumer credit information. Customer further agrees, acknowledges and consents that it is not in business as a credit repair office, a skip tracer or private investigator, a member of the news media or journalist, or a detective agency. Customer agrees to on-site inspection at its premises prior to commencement of service hereunder, to include inquiry into and/or review of Customer's procedures and processes in acquiring information, security practices and other measures in place to ensure Customer compliance with the terms hereof. Further, Customer agrees to periodic audit of similar nature by the Parties for reassurance thereafter. 13. ACKNOWLEDGMENT AND ACCEPTANCE. Customer agrees, acknowledges and consents that it has thoroughly read, understood and agreed with this Agreement and the terms contained herein as written on behalf of his / her organization or business and certifies and represents that he / she is authorized to accept on behalf of the Customer. Customer further agrees, acknowledges and consents that it has independently evaluated and weighed the risks and benefits of participating in this Agreement and Customer has agreed to all the terms of this Agreement without reliance on any representation, guarantee or statement existing outside of this Agreement. The terms set forth in this Agreement constitute the entire understanding and agreement between the Parties and Customer with regard to the subject matter contained herein and any previous or additional or different terms or conditions, verbal or set forth in any other document shall be of no effect. This Agreement may be modified or waived only in writing, signed by all parties. Customer agrees, acknowledges and consents that its acceptance of this Agreement transmitted electronically constitutes a valid mark and will be binding on Customer and has the same force and effect as a signed original. Customer must press the "I Accept" button to indicate acceptance of this Agreement. Shortly after receipt, Company will send an email to Customer, confirming acceptance and providing instructions about obtaining a username and password and further describing how to begin accessing the Web Site. Information subject to change without notice. | ||