THIS END-USER AGREEMENT (“Agreement”) is made and entered into by and between Hire Image, LLC, its parent, subsidiaries, predecessors, successors, affiliates, directors, officers, fiduciaries, insurers, employees, and agents (jointly, “Hire Image”) and ______________________________________________________________________________ (its parent, subsidiaries, predecessors, successors, affiliates, directors, officers, fiduciaries, insurers, employees, and agents (jointly “End-User”) (collectively referred to as the “Parties”). This Agreement shall be effective on the date of the last signature below (the “Effective Date”).
Hire Image strives to deliver accurate and timely information products to assist End-User in making intelligent and informed decisions for a permissible purpose under applicable law. To this end, Hire Image assembles information from a variety of sources, including databases maintained by consumer reporting agencies containing information from public records, other information repositories and third-party researchers. End-User understands that these information sources and resources are not maintained by Hire Image. Therefore, Hire Image cannot be a guarantor that the information provided from these sources is absolutely accurate or current. Nevertheless, Hire Image will at all times use its best practices consistent with the industry standard to ensure the accuracy and completeness of its information products. Hire Image also has in place procedures designed to respond promptly to claims of incorrect or inaccurate information in accordance with applicable law.
II. End-User’s Certification of Fair Credit Reporting Act Permissible Purpose(s)
End-User hereby certifies that all of its orders for information products from Hire Image shall be made, and the resulting reports shall be used, for the following Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (“FCRA”), permissible purposes only, and for no other purpose:
(Please check or underline all that apply)
Section 604(a)(1). As ordered by a court or federal grand jury subpoena.
Section 604(a)(2). As instructed by the consumer in writing.
Section 604(a)(3)(A). For the extension of credit as a result of an application from a consumer, or the review or collection of a consumer’s account.
Section 604(a)(3)(B). For employment purposes including evaluating a consumer for employment, promotion, reassignment or retention as an employee, where the consumer has given prior written permission.
Section 604(a)(3)(C). For the underwriting of insurance as a result of an application from the consumer.
Section 604 (a)(3)(D). To determine a consumer’s eligibility for a license or other benefit granted by a governmental instrumentality required by law to consider an applicant’s financial responsibility or status.
Section 604(a)(3)(E). For use by a potential investor or servicer, or current insurer, in evaluating and/or assembling the credit or prepayment risk associated with an existing credit obligation.
Section 604(a)(3)(F)(i). Where there is a legitimate business need, in connection with a business transaction that is initiated by the consumer.
Section 604(a)(3)(F)(ii). To review a consumer’s account to determine whether the consumer continues to meet the terms of the account.
Section 604(a)(4) or (5). For use by state and/or local officials in connection with the determination of child support payments, or modifications and enforcement thereof.
III. Hire Image’s Certifications
Hire Image certifies as follows:
1. It is a consumer reporting agency (“CRA”) as defined in the FCRA that provides consumer reports and investigative consumer reports in accordance with applicable sections of the FCRA, as well as other applicable laws; and,
2. It follows reasonable procedures to assure maximum possible accuracy of the information reported and re-investigates any disputed information and takes any necessary corrective action, without charge, in agreement with the FCRA and applicable state laws; and
3. It takes appropriate measures to protect the privacy and confidentiality of all personally identifiable and other confidential consumer information, including appropriate security measures to protect information in all Hire Image systems.
IV. End-User’s Certifications of Legal Compliance
End-User will comply or has complied at all times with the FCRA and all applicable local, state, and federal laws and regulations and, if applicable, any international laws and regulations relating to the use of the background information including but not limited to equal employment laws and regulations. End-User accepts full responsibility for complying with all such laws and for using the information products it receives from Hire Image in a legally acceptable fashion. End-User further accepts full responsibility for any and all consequences of use and/or dissemination of those products.
End-User further agrees to put into place reasonable procedures for the fair and equitable use of background information and to secure the confidentiality of private information. End-User further agrees to comply with any federal, state, local or, if applicable, international laws that regulate the use and storage of confidential or private information, including Social Security numbers, dates of birth and any other personally identifiable information.
End-User agrees to take precautionary measures to protect the security and dissemination of this information including, for example, restricting terminal access, utilizing passwords to restrict access to terminal devices, and securing access to, dissemination of and destruction of electronic and hard copy reports.
End-User agrees to abide by Addendum A – Access Security Requirements. Likewise, as a condition of entering into this Agreement, End-User certifies that it has in place reasonable procedures designed to comply with all applicable local, state, federal laws or, if applicable, international laws. End-User also certifies that it will retain any information it receives from Hire Image in accordance with applicable law. End-Users seeking credit information must provide the information in Addendum B before Hire Image can provide credit information to End-User. Addendums A and B are incorporated into and are part of this Agreement.
End-User represents that, if it orders credit reports, End-User will have a policy and procedures in place to investigate any discrepancy in a consumer’s address when notified by the credit bureau that the consumer’s address, as submitted by End-User, substantially varies from the address the credit bureau has on file for that consumer.
A. FCRA Certifications When Consumer Reports and/or Investigative Consumer Reports are Used for Employment Purposes
If the information products End-User obtains from Hire Image are to be used for an employment purpose, End-User certifies that prior to obtaining or causing a “consumer report” to be obtained, a clear and conspicuous disclosure, in a document consisting solely of the disclosure, has been made in writing to the consumer explaining that a consumer report may be obtained for employment purposes. This disclosure satisfies all requirements identified in the FCRA. End-User also certifies that the consumer has authorized, in writing, the obtaining of the report by End-User. If an investigative consumer report (as defined by federal law) is obtained, End-User certifies a separate disclosure will be obtained. End-User certifies that it also has provided the consumer with any notices or disclosures required under applicable state and local law. End-User understands that Hire Image will not initiate a report for employment purposes in the absence of a written authorization. End-User certifies that each time it orders a consumer report, End-User is reaffirming these certifications.
In addition to the disclosure requirements identified above, End-User agrees and certifies that prior to procurement or causing the procurement of an investigative consumer report for employment purposes: (a) It is clearly and accurately disclosed to the consumer that an investigative consumer report including information as to the consumer’s character, general reputation, personal characteristics and/or mode of living may be made; and (b) Such disclosure (i) is made in a writing, mailed, or otherwise delivered, to the consumer, not later than three days after the date on which the report was first requested, (ii) contains a statement informing the consumer of his/her right to request a complete and accurate disclosure of the nature and scope of the requested investigation and his/her right to request a copy of the rights of the consumer under the FCRA titled A Summary of Your Rights Under the Fair Credit Reporting Act, and (iii) satisfied all of the requirements of the FCRA as well as any applicable state or local laws. If the consumer makes a written request within a reasonable amount of time, End-User will provide: (1) information about whether an investigative consumer report has been requested; (2) if an investigative consumer report has been requested, written disclosure of the nature and scope of the investigation requested; and (3) Hire Image’s contact information, including complete address and toll-free telephone number. This information will be provided to the consumer no later than five (5) days after the request for such disclosure was received from the consumer or such report was first requested, whichever is the latter.
End-User certifies that information from any consumer report or investigative consumer report will not be used in violation of any applicable federal or state equal opportunity law or regulation.
If the consumer is denied employment or if other adverse employment action is taken based in whole or in part on the information products provided by Hire Image, prior to taking such action, End-User will provide to the consumer: (1) a copy of the report, (2) a description, in writing, of the rights of the consumer entitled: “A Summary of Your Rights Under the Fair Credit Reporting Act,” (3) applicable jurisdictional required notices, and (4) contact information for Hire Image. After the appropriate waiting period, End-User will issue to the consumer notice of the adverse action taken, including the statutorily required notices identified in Section 615 of the FCRA, as well as any jurisdictional requirements. End-User hereby acknowledges that it has received a copy of the Summary of Rights (16 C.F.R. Part 601, Appendix A) and Notice to Users of Consumer Reports (16 C.F.R. Part 601, Appendix C), and agrees to comply with the terms and conditions contained therein.
If the consumer disputes the accuracy of a consumer report to End-User, End-User will immediately notify Hire Image in order for Hire Image to begin the reinvestigation of the disputed information.
B. California Certifications
In compliance with the California Investigative Consumer Reporting Agencies Act (“ICRAA”), California Civil Code Sections 1786 et seq., and the Consumer Credit Reporting Agencies Act (“CCRAA”), California Civil Code Sections 1785.1 et seq., if End-User is located in the State of California, and/or End-User’s request for and/or use of report pertains to a California resident or worker, End-User certifies and acknowledges the following:
1. Before procuring or causing to be procured an “Investigative Consumer Report” as that term is defined by the California Investigative Consumer Reporting Agencies Act, Cal. Civ. Code § 1786 et seq. (“ICRAA”), End-user certifies that all of the following apply:
a. End-User’s permissible purpose for obtaining such a report is employment purposes, and where applicable, those additional lawful purposes found in Section II above. If there is a change in purpose, End-User must notify Hire Image.
b. End-User has provided the consumer with a clear and conspicuous disclosure in writing at any time before the report is procured or caused to be procured in a document that consists solely of the disclosure, which states:
i. An Investigative Consumer Report may be obtained,
ii. The permissible purpose,
iii. The Investigative Consumer Report may include information on the consumer’s character, general reputation, personal characteristics and mode of living,
iv. The name, address and telephone number and website of the agency conducting the investigation, and
v. The nature and scope of the investigation requested, including a summary of the provisions of Civil Code Section 1786.22 relating to a consumer’s rights to review their files.
c. That the subject of the report has authorized in writing the procurement of the report.
d. End-User has provided a check-off box on appropriate paperwork so that the consumer may request a copy of any report that is ordered.
e. Upon request of the consumer, End-User will provide them with a copy of their Investigative Consumer Report either directly, or through a contract with another party.
2. End-User will provide a check-box on a written form so that the consumer may request a copy of the Investigative Consumer Report, and will provide a copy of such report as follows:
If a copy of the report will be provided to the consumer directly by the End-User: If an investigative consumer report or consumer credit report is requested and the consumer checked the box on the form signifying s/he wants a copy of the investigative consumer report or consumer credit report, and if s/he is entitled to one under California law, then End-User will provide the consumer with a copy of the report, as required by California law, unless the report is requested in connection with an investigation based upon suspicion of wrongdoing or misconduct by the consumer.
If a copy of the report will be provided to the consumer by Hire Image: If an investigative consumer report or consumer credit report is requested and the consumer checked the box on the form signifying s/he wants a copy of the investigative consumer report or consumer credit report when and if s/he is entitled to one under California law, then End-User hereby requests that a copy of the report be sent to the subject of the report unless the report is requested in connection with an investigation based upon suspicion of wrongdoing or misconduct by the consumer and Employer has notified you that a copy should not be provided to the consumer, in accordance with California law.
3. In the event End-User takes adverse action under circumstances in which a report regarding a consumer was obtained, End-User shall so advise the consumer and supply the name and address of agency that provided the report and a written notice of rights under the ICRAA and CCRAA.
C. Credit Reports
End-User understands that the credit bureaus require specific written approval from Hire Image before the following persons, entities and/or businesses may obtain credit reports: private detectives, private detective agencies, private investigative companies, bail bondsmen, attorneys, law firms, credit counseling firms, security services, members of the media, resellers, financial counseling firms, credit repair clinics, pawn shops (except companies that do only Title pawn), check cashing companies (except companies that do only loans, no check cashing), genealogical or heir research firms, dating services, massage or tattoo services, businesses that operate out of an apartment, individuals seeking information for their own private use, adult entertainment services of any kind, companies that locate missing children, companies that handle third party repossession, companies seeking information in connection with time shares, subscriptions companies, individuals involved in spiritual counseling or persons or entities that are not an End-User or decision maker.
D. Additional Requirements for Moving Violation Reports (MVRs) and Driving Records
End-User hereby certifies that Moving Violation Reports and/or Driving Records (“MVRs”) shall only be ordered in strict compliance with the Driver Privacy Protection Act, 18 U.S.C. § 2721 et seq. (“DPPA”) and any related state laws. End-User further certifies that no MVRs shall be ordered without first obtaining the written consent of the consumer to obtain “driving records,” evidence of which shall be transmitted to Hire Image in the form of the consumer’s signed release authorization form. End-User also certifies that it will use this information only in the normal course of business to obtain lawful information relating to the holder of a commercial driver’s license or to verify information provided by a consumer or employee. End-User shall not transmit any data contained in the resulting MVR via the public internet, electronic mail or any other unsecured means.
V. Criminal Record Searches
A. Criminal Record Searches
End-User acknowledges that Hire Image will only provide criminal record information in accordance with this Section V(A) (Criminal Record Searches). Hire Image’s standard information products include felony or misdemeanor criminal record convictions and pending case information only to the extent such records or information are not more than seven years old from the date of End-User’s request for such records or information. Hire Image also does not report information relating to infractions, summary offenses, violations or other sub-criminal information. Hire Image may provide criminal record convictions or pending case information older than seven years, or other adverse information, only if: (1) requested to do so in writing by End-User; and, (2) such provision and use by End-User is allowed by relevant law or regulation. Hire Image complies with all FCRA and state and local laws that restrict the reportability of certain types of adverse information about a consumer. To ensure compliance with such laws, End-User acknowledges and agrees that when including any information about a consumer in a consumer report, Hire Image follows the most restrictive reporting restrictions based on the consumer’s residence address. End-User understands that some state laws allow Hire Image to report convictions where the date of disposition is older than seven years provided the consumer residing in the state is being considered for a position with an annual salary that equals to, or is reasonably expected to equal, $25,000 or more. End-User certifies that if it seeks to have access to convictions with a disposition date that is older than seven years, such information will only be sought for consumers applying for employment with End-User who are being considered for a position with an annual salary that equals, or is reasonably expected to equal, $25,000 or more.
Unless End-User has specified other search and/or reporting criteria that otherwise complies with applicable law, End-User acknowledges that court record(s) searches are undertaken only in jurisdictions provided by the End-User, provided by the consumer, developed in a Social Security number trace, or as otherwise necessary to help ensure the accuracy of a record. Hire Image does not independently investigate whether other jurisdictions may be appropriate to search. End-User acknowledges that Hire Image will only report information as allowed by the most restrictive jurisdiction searched and according to the other content restrictions discussed above.
B. International Criminal Record Searches
End-User understands that searches of international background screening will be conducted through the services of third-party independent contractors. Because of differences in foreign laws, language, and in the manner in which foreign records are maintained and reported, Hire Image cannot be either an insurer or a guarantor of the accuracy of the information reported. End-User therefore releases Hire Image and its affiliated companies, officers, agents, employees, and independent contractors from any liability whatsoever in connection with erroneous information received as a result of an international background screening report.
C. National/Multi-State Database Searches
Hire Image recommends that End-User screen its applicants or employees at the county court-house or online system, federal, and multi-state/nationwide database levels. End-User understands that if it chooses not to conduct searches at these levels, Hire Image cannot be held responsible for any records that exist that are not included in the End-User’s coverage requested. End-User further understands that the multi-state/nationwide database report will only be offered in conjunction with a county-level verification of any records found and that End-User will bear any additional costs associated with this verification.
VI. Additional Requirements for Equifax Workforce Solutions (formerly TALX) Employment Verifications
Use of Equifax Workforce Solutions (“EWS”) Information will be requested only for End-User’s exclusive use and held in strict confidence except to the extent of disclosure required or permitted by law.
End-User will hold EWS and all its agents harmless on account of any expense or damage arising or resulting from the publishing or other disclosure of EWS Information by End-User, its employees or its agents contrary to applicable law.
EWS may periodically conduct audits of Hire Image which will require information from End-User regarding its compliance with the FCRA and other certifications. Audits will require End-Users to provide documentation as to permissible use of particular EWS Information. End-User agrees that failure to cooperate fully and promptly in the conduct of any audit constitutes grounds for immediate suspension of the EWS service. If EWS terminates the service due to the conditions in the preceding sentence, End-User (i) unconditionally releases and agrees to hold EWS harmless and indemnify it from and against any and all liabilities of whatever kind or nature that may arise from or relate to such termination, and (ii) covenants it will not assert any claim or cause of action of any kind or nature against EWS in connection with such termination.
VII. General Provisions
• End-User agrees not to resell, sub-license, deliver, display or otherwise distribute to any third party any of the information products addressed herein, except as required by law.
• End-User may not assign or transfer this Agreement without the prior written consent of Hire Image.
• If any of the provisions of this Agreement become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be impacted.
• By agreement of the parties, Rhode Island law shall guide the interpretation of this Agreement, if such interpretation is required. All litigation arising out of this Agreement shall be commenced in Rhode Island, and the parties hereby consent to such jurisdiction and venue.
• Any written notice by either party shall be delivered personally by messenger, private mail courier service, or sent by registered or certified mail, return receipt requested, postage prepaid to the addresses listed below.
• This Agreement shall be construed as if it were jointly prepared. Both parties agree that this Agreement constitutes all conditions of service, present and future. Changes to these conditions may be made only by mutual written consent of an authorized representative of End-User and an officer of Hire Image. The headings of each section shall have no effect upon the construction or interpretation of any part of this Agreement.
• This Agreement constitutes the entire agreement between the Parties with respect to the subject matter, and it supersedes any prior agreements and/or representations, whether oral or written.
• End-User agrees that it shall dispose of any and all consumer reports and investigative consumer reports, and any other documentation containing personally identifiable information received from Hire Image in accordance with the Fair and Accurate Credit Transactions Act (FACTA) Disposal Rule.
• End-User agrees to abide by all Ban the Box laws, and End-User certifies that for any consumer applying for a position in New York City, it will not conduct a background check until after conditional offer of employment has been provided.
• Nothing contained in this Agreement is legal advice or should be construed as legal advice. End-User acknowledges that through this Agreement, it has been advised that it should consult with its legal counsel prior to executing this Agreement.
If End-User is permitted to request consumer reports for employment purposes via Hire Image’s website then, in addition to all other obligations, End-User agrees to abide by such additional conditions that may be imposed to utilize the website, provide all required certifications electronically, maintain complete and accurate files containing all required consent, authorization and disclosure forms with regard to each consumer for whom a report has been requested, and maintain strict security procedures and controls to assure that its personnel are not able to use End-User’s Internet access to obtain reports for improper, illegal or unauthorized purposes. End-User agrees to allow Hire Image to audit its records at any time, upon reasonable notice given.
Breaches of this Agreement and/or violations of applicable law discovered by Hire Image may result in immediate suspension and/or termination of the account, legal action and/or referral to federal or state regulatory agencies.
Neither party shall reveal, publish or otherwise disclose any Confidential Information to any third party without the prior written consent of the other party. “Confidential Information” means any and all proprietary or secret data; sales or pricing information relating to either party, its operations, employees, products or services; and, all information relating to any customer, potential customer, agent, and/or independent sales outlet. The Parties agree to keep this information confidential at all times during the term of this Agreement and continuing for five (5) years after receipt of any Confidential Information. Notwithstanding anything to the contrary herein, in no event shall Hire Image be required to destroy, erase or return any consumer reports, investigative consumer reports, or consumer data related thereto in Hire Image’s files, all of which Hire Image shall maintain as a consumer reporting agency in strict accordance with all applicable local, state, and federal laws or, if applicable, international laws.
IX. Fees and Payment
End-User agrees to pay nonrefundable fees and other charges for Hire Image’s background check services. At Hire Image’s option, payments not received thirty (30) days after the date of the invoice may cause the End-User’s account to be placed on temporary interruption, with no additional requests being processed until the balance due is paid in full or arrangements have been made with Hire Image’s Accounts Payable Department. Accounts with invoices unpaid ninety (90) days or more will be assessed an interest charge of 1 1/2 % per month, as allowed by applicable law. If the account goes to collection, End-User agrees to pay all collection expenses, including attorneys’ fees and court costs. End-User agrees that providing credit card information and submitting it electronically to Hire Image represents a legal authorization to credit or debit the card for the orders placed or for non-payment per the 30 day terms. End-User agrees that fees for third-party services are subject to change without notice, although Hire Image will make every reasonable effort to give notice of such change before it becomes effective. Any account that remains inactive for a period of twelve (12) months will be deemed inactive and may be terminated by Hire Image.
X. Warranties and Remedies
End-User understands that Hire Image obtains the information reported in its information products from various third-party sources “AS IS,” and therefore is providing the information to End-User “AS IS.” Hire Image makes no representation or warranty whatsoever, express or implied, including, but not limited to, implied warranties of merchantability or fitness for particular purpose, or implied warranties arising from the course of dealing or a course of performance with respect to the accuracy, validity, or completeness of any information products and/or consumer reports, that the information products will meet end-user’s needs, or will be provided on an uninterrupted basis; Hire Image expressly disclaims any and all such representations and warranties.
HIRE IMAGE WILL NOT BE LIABLE TO END-USER FOR DAMAGES, AND END-USER HEREBY RELEASES HIRE IMAGE FROM ANY LIABILITY FOR DAMAGES ARISING UNDER ANY THEORY OF LEGAL LIABILITY TO THE FULLEST EXTENT THAT END-USER MAY LEGALLY AGREE TO RELEASE HIRE IMAGE FROM LIABILITY FOR SUCH DAMAGES. NONETHELESS, IN THE EVENT HIRE IMAGE IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE LIABLE TO END-USER FOR ANY MATTER ARISING UNDER OR RELATING TO THIS AGREEMENT, WHETHER ARISING IN CONTRACT, EQUITY, TORT OR OTHERWISE (INCLUDING WITHOUT LIMITATION ANY CLAIM FOR NEGLIGENCE), THE AMOUNT OF DAMAGES RECOVERABLE AGAINST HIRE IMAGE FOR ALL SUCH MATTERS WILL NOT EXCEED, IN THE AGGREGATE, THE AMOUNT PAID TO HIRE IMAGE BY END-USER FOR THE SERVICE TO WHICH A GIVEN CLAIM RELATES PROVIDED PURSUANT TO THIS AGREEMENT AND RECOVERY OF THE AMOUNT IS END-USER’S SOLE AND EXCLUSIVE REMEDY HEREUNDER. IN THE EVENT HIRE IMAGE IS LIABLE TO END-USER FOR ANY MATTER RELATING TO THIS AGREEMENT, WHETHER ARISING IN CONTRACT, EQUITY OR TORT (INCLUDING WITHOUT LIMITATION ANY CLAIM FOR NEGLIGENCE), AND IN ADDITION TO ANY OTHER LIMITATION OF LIABILITY OR REMEDY SET FORTH IN THIS AGREEMENT, THE AMOUNT OF DAMAGES RECOVERABLE AGAINST HIRE IMAGE WILL NOT INCLUDE ANY AMOUNTS FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES FOR LOSS OF PROFITS, WHETHER INCURRED AS A RESULT OF NEGLIGENCE OR OTHERWISE, EVEN IF HIRE IMAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
End-User shall indemnify, defend and hold harmless Hire Image from and against any and all claims, suits, proceedings, damages, costs, expenses (including, without limitation, reasonable attorneys’ fees and court costs) brought or suffered by any third party arising or resulting from, or otherwise in connection with, products provided by Hire Image, the content, compliance, method of delivery or effectiveness of any notices, pre-adverse or adverse action letters, any breach by End-User of any of its representations, warranties, or agreements in this Agreement or its negligence or willful misconduct. Hire Image shall have no responsibility for consequences of the actions of End-User upon the information which Hire Image provides End-User, and End-User will indemnify and hold Hire Image harmless from any loss, liability, damage, judgment, attorney’s fees, costs or penalties which may result from the use by End-User of the information provided by Hire Image.
Hire Image does not guarantee End-User’s compliance with all applicable laws in its use of reported information and makes no effort to provide compliance related services in connection with its furnishing of reports. End-User understands that any documents, information, conversations or communication with Hire Image’s representatives regarding searches, verifications or other services offered by Hire Image are not to be considered a legal opinion regarding such use. End-User agrees that (1) it will consult with its own legal or other counsel regarding the use of background screening information, including but not limited to, the legality of using or relying on reported information and to review any forms as well as the content of prescribed notices, adverse or pre-adverse action letters and any attachments to this Agreement for compliance with all applicable laws and regulations and (2) the provision of such notices, pre-adverse or adverse action letters and the contents thereof is the sole responsibility of End-User not Hire Image. End-User acknowledges and agrees that it has no obligation to use, and is solely responsible for independently vetting the contents of, any sample forms that Hire Image has provided to End-User in connection with this Agreement.
Hire Image may adjudicate any consumer reports based on criteria established and provided by End-User (“Criteria”). Hire Image makes no representations regarding the validity, legality, or appropriateness of the Criteria. Hire Image may provide the administration of pre-adverse and adverse action notices, copies of reports, and other required notices to the consumer in connection with employment reports. Adjudication services and the administration of notices shall be deemed to be purely clerical in nature and shall be performed by Hire Image on behalf of End-User. All employment-related decisions, including hiring, contracting and site-access decisions, are made exclusively by End-User, not by Hire Image. End-User understands that consumer notifications are the ultimate responsibility of End-User under the FCRA and other applicable federal, state, and local laws, and as such, End-User is responsible for any claims arising out of the timing and/or method of notice requested by End-User for Hire Image to follow. End-User shall assume full responsibility for such decisions and shall indemnify and hold Hire Image harmless from any and all claims, losses, damages, and any costs (including attorneys’ fees) that may be related to or arise therefrom.
XI. Term and Termination
The term of this Agreement shall begin on the date it is executed by End-User and shall be in effect for one (1) year (“Term”) beginning on the first day of the assigned date below and renewed automatically for one (1) year each year on its anniversary date, if no written notice is received by either party within thirty (30) days prior to end of the Term.
Hire Image reserves the right to change its fees under this Agreement upon ten (10) days’ notice to End-User; provided, Hire Image will not increase its own fees during the first six (6) months of this Agreement.
For clarification, references to Hire Image’s fees do not include changes based on entities other than Hire Image (such as surcharges and other fees levied by federal, state, county, other governmental agencies, educational institutions, employer verification lines and licensing agencies) since such changes are out of Hire Image’s control.
Either party may cancel this Agreement by giving sixty (60) days written notice to the other party. Hire Image may terminate or revise the provisions of this Agreement immediately upon written notice if End-User is the debtor in a bankruptcy action or in an assignment for the benefit of creditors or if End-User undergoes a change in ownership. Termination of this Agreement by either party does not release End-User from its obligation to pay for services rendered.
In addition to any and all other rights a party may have available according to law, if a party defaults by failing to perform any provision, term or condition of this Agreement the other party may terminate the Agreement by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have fifteen (15) days from the receipt of such notice to cure the default(s). Unless waived by a party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Agreement.
XII. Force Majeure
End-User agrees that Hire Image is not responsible for any events or circumstances beyond its control (e.g., including, but not limited to, war, riots, embargoes, strikes and/or Acts of God) that prevent Hire Image from meeting its obligations under this Agreement.
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. A signature on a copy of this Agreement received by either party by facsimile is binding upon the other party as an original. The parties shall treat a photocopy of such facsimile as a duplicate original. The individuals signing below represent that they are duly authorized to do so.
Each party represents and warrants that: (i) it has the full power and authority to enter into this Agreement and to carry out the transactions contemplated by it, and has taken all action necessary to authorize the execution, delivery, and performance of the Agreement; (ii) it has read and understands the Agreement and agrees to be bound by it; and (iii) it has direct knowledge of all facts certified herein.
Access Security Requirements
The parties acknowledge they must work together to protect the privacy of consumers. The following measures are designed to reduce unauthorized access of consumer reports. In accessing consumer information, End-User agrees to the following:
1. End-User will take reasonable procedures to protect its account number and password so that only key personnel employed by End-User know this sensitive information, including not posting this information anywhere in the facility. End-User agrees to change account passwords immediately if a person who knows the password leaves its company or no longer needs to have access due to a change in duties.
2. End-User agrees that system access software, whether developed by your company or purchased from a third-party vendor, will have End-User’s account number and password “hidden” or embedded and be known only by supervisory personnel. End-User will assign each user of its system access software a unique logon password. If such system access software is replaced by different access software and therefore no longer is in use or, alternatively, the hardware upon which such system access software resides is no longer being used or is being disposed of, or if the password has been compromised or believed to be compromised in any way, End-User will change its password immediately.
3. End-User agrees it will not discuss its account number or password by telephone with any unknown caller, even if the caller claims to be an employee of Hire Image.
4. End-User will restrict the ability to obtain consumer information to a few key personnel.
5. End-User agrees to place all terminal devices used to obtain consumer information in a secure location within its facility so that unauthorized persons cannot easily access them.
6. End-User agrees it will turn off and lock all devices or systems used to obtain consumer information.
7. End-User will secure hard copies and electronic files of consumer reports within its facility so that unauthorized persons cannot easily access them.
8. End-User agrees to shred and/or destroy all hard copy consumer reports when they are no longer needed and erase and overwrite or scramble electronic files containing consumer information when no longer needed and when applicable regulation(s) permit destruction.
9. End-User agrees to notify its employees that End-User can access consumer information only for the permissible purposes listed in the Fair Credit Reporting Act.
Documents Required Before Requesting Credit Report Information
Before End-User will be allowed to access credit report information, Hire Image requires that End-User provide one (1) of the following (if End-User is not publicly traded):
1. Business license status from a government web site (please include entire web page print out);
2. Business license, copy or documented verification;
3. Documented corporation verification with state or federal government;
4. Copy of Articles of Incorporation with proof of filing;
5. State and/or federal tax records originating from the state or federal government;
6. FDIC Certification; or
7. 501(c)(3) certificate for non-profit organizations.
If End-User is a publicly traded company, the following items are acceptable methods for verifying that the End-User is a bona fide entity:
1. Documentation of ticker symbol information from trading website; or
2. Certified copy of audited annual or quarterly statements submitted to the SEC.
Substance Abuse Testing and Occupational Health Tests and Screening Services
1. Services to be Provided by Hire Image
A. Upon request and relying upon End-User’s representations that it has a legitimate purpose for information, Hire Image will provide substance abuse testing and/or occupational health tests and screening services to End-User. Hire Image will only furnish a report for a permissible purpose under the Fair Credit Reporting Act, 15 U.S.C. §1681 et seq. (“FCRA”) and no other purpose.
B. Hire Image contracts with companies and laboratories to collect specimens, analyze specimens, and provide medical review services. End-User acknowledges receipt of the Consumer Financial Protection Bureau Notice of Consumer’s Rights and Notice to Users.
C. Hire Image agrees to perform the following services for End-User:
a) Provide “set-up” services for each of the End-User’s locations, including instructions regarding laboratory account numbers, specimen shipping information, Medical Review Officer (“MRO”) information, test reporting, paperwork, and billing information.
b) Serve as the primary contact for clinic questions.
c) Pay all drug test bills for End-User as contemplated under this Addendum.
d) Order necessary supplies for clinics, sub-contractors, and End-User.
e) Replace, at its sole discretion, providers who repeatedly fail to use appropriate collection, testing, and billing procedures or otherwise fail to perform to Hire Image standards.
f) Forward pricing or service change information received from providers.
g) Locate lost specimens.
h) Hire Image shall use its best efforts to provide high quality, timely, and accurate information to End-User; however, End-User recognizes that Hire Image cannot guarantee the accuracy of the information provided because such information is obtained from third party sources.
D. Medical Review Officer (“MRO”)
a) If End-User purchases MRO Services: these will be provided through the medical sub-contractor of Hire Image’s choice. The MRO will be responsible for (i) donor identification; (ii) Chain of Custody (“COC”) form completion and documentation; (iii) signature requirements; (iv) test result analysis of positive results; (v) resolution of correctible flaws on COC forms; (vi) donor contact to verify positive, cancelled, substituted, adulterated and unacceptable results; (vii) Designated Employee Representative (“DER”) contact if unable to contact consumer; (viii) determination of alternative explanations for positive, cancelled, substituted, adulterated, and unacceptable results; (ix) modification or verification of results based on consumer contact; (x) report positive findings to End-User through Hire Image; and (xi) maintenance of drug test reports pursuant to applicable federal and state laws and regulations.
b) If End-User has not purchased MRO services from Hire Image, End-User shall be solely responsible for reviewing and interpreting information as well as for determining a course of action based on the test result in a manner consistent with applicable laws and regulations. Pursuant to SAMSHA, DOT, NRC, or other testing regulations in which an MRO is required, if End-User has not purchased this service through Hire Image, End-User acknowledges that Hire Image is not responsible for delivery of such services. However, if MRO services are required by applicable law or regulation, End-User agrees that it will obtain the same and will not request testing services from Hire Image until such MRO services are in place. An order by End-User is a certification that required MRO services are in place and End-User is in compliance with applicable laws and regulations relating to the testing.
E. Occupational Health Tests and Screening Services
a) If End-User desires to obtain occupational health tests and screening services, End-User acknowledges that Hire Image contracts with a network of independent Service Providers who represent themselves to be trained and qualified. A “Service Provider” is any person or entity who provides services to End-User in connection with drug and alcohol or occupational health testing requirements. This includes, but is not limited to, collectors, Breath Alcohol Technicians and Saliva Testing Technicians, laboratories, clinics, MROs, and substance abuse professionals. Service Providers also include those who perform Occupational Healthcare and Wellness services. Hire Image will provide End-User, as needed, with the names and locations of Service Providers. In doing so, however, End-User acknowledges that Service Providers are independent of Hire Image and not under Hire Image’s control and Hire Image is not responsible or liable for Service Provider’s acts or omissions.
2. Compliance with Applicable Law
A. The laws relating to the furnishing and use of information and substance testing are subject to change. It is the responsibility of End-User to become knowledgeable in such laws and to comply with them. The failure to comply with then current applicable law may result in a breach of this Agreement, termination of service, and/or civil and criminal liability. Hire Image does not undertake any obligation to advise End-User of its legal obligations.
B. Hire Image does not act as legal counsel for End-User. End-User is responsible for retaining counsel to advise it regarding proper use of consumer reports and substance test results; compliance with the FCRA, and other applicable federal, state and local laws; and development of an appropriate screening program for End-User’s use of consumer reports.
3. Fees for Services
A. Hire Image will charge a fee for each request made by End-User, in accordance with Hire Image’s current fee schedule. End-User understands that Hire Image may incur access charges imposed by medical entities which are passed along to End-User in addition to fees. These costs are subject to change without notice. Consumers have the right to dispute the substance test results per the FCRA, which requires free investigations of disputes. As such, consumers cannot be required to pay for retesting. End-User will be responsible for the cost of retesting.
4. Waiver and Release
A. End-User acknowledges that Hire Image relies totally on the information furnished by the laboratory and/or MRO. Hire Image is not responsible for inaccurate or false information received from others and sent to End-User. End-User agrees to assert no claim and waives liability against Hire Image for any inaccurate or false information included in any report unless Hire Image had actual knowledge of the error and failed to correct it if it had the legal ability to alter such information.
B. Hire Image contracts with a network of providers (“Providers”) who represent themselves to be qualified to collect urine specimens for analysis and to analyze breath samples for compliance with the procedures and requirements of 49 CFR Part 40. Under the terms of this Addendum, Hire Image will provide End-User, as needed, with the names and locations of Providers and further to coordinate arrangements for End-User’s use of the services of Providers. In doing so, however, End-User recognizes that Providers are independent of Hire Image and not under Hire Image’s control. As a result, End-User agrees that Hire Image is not responsible for Providers’ acts or omissions and agrees to indemnify, hold harmless and defend Hire Image from and against any and all claims arising out of or related to Providers’ acts or omissions.