THIS AGREEMENT is between VICTIG (“VICTIG”) and (“Client”). This Agreement is entered into on .
- Services to be Provided by VICTIG
- Upon request and relying upon Client’s representations that it has a legitimate purpose for information, VICTIG will provide background checks, verifications and other consumer reports to the Client when available. VICTIG 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.
- Periodically and upon request, VICTIG will provide to Client copies of certifications, consumer consents, notices and summary of rights under the FCRA as well as other forms which VICTIG finds helpful in meeting its obligations under the FCRA and other applicable laws. Client acknowledges receipt of the Federal Trade Commission Notice of Consumer’s Rights and Notice to Users.
- Representations of Client when ordering reports
- Client represents that it is an existing business with the legitimate need for verification and reports offered by VICTIG. The nature of Client’s business is: . Client specifically represents that reports will only be obtained for its own one time use and it is the end user of the reports. It will not further distribute, sell, give or trade such information with any third party. Notwithstanding the above, Client may share a report, except credit, for joint use as described in Section 2B below. Client will request and use reports for the following permissible purposes listed below.
- Client may share reports with another entity for joint use. The FCRA permits end users of consumer reports to share the consumer report with another entity if Client and the other entity will use the report for the same transaction and for the same purpose. Examples include: a staffing company sharing a report with its customer with whom the consumer will be placed; a subcontractor sharing reports of its employees with the general contractor or owners of the project on which subcontractor is working. These examples are not exclusive, but demonstrate the acceptable “joint use” that is permitted. However, prior to sharing a consumer report, Client on behalf of VICTIG will determine and verify the identity of the joint user and that such joint user shares the same permissible purpose for use of the consumer report as does Client and the joint user will only use the consumer report for this one transaction with Client. This Agreement is a certification by Client that any joint user is a legitimate business and will use the report for the same permissible purpose Client represents to VICTIG when ordering the consumer report(s) on the individual consumer or as provided in Section 2 of this Agreement. Client agrees to indemnify and hold VICTIG harmless from any claims, liability or losses asserting that the joint use was improper in any way, violated the FCRA or otherwise, and additionally, if the joint user used the consumer reports for any reason than as represented by Client to VICTIG. Such indemnification includes all costs, expenses and reasonable attorney fees incurred by VICTIG.
- Client represents that prior to requesting a report for employment purposes (including contractors and volunteers), it will:
(i) disclose to the individual who is the subject of the report that a consumer report or, as applicable, an investigative consumer report, may be obtained;
(ii) obtain the written consent of the individual allowing the obtaining of the consumer report. Client agrees that submission of an order is a certification that it has obtained the consent of the consumer;
(iii) provide to the individual a summary of the individual’s rights required under the (“FCRA”) and any applicable state law; and
(iv) not utilize any information in violation of any federal or state equal employment opportunity law or regulation.
(v) not order criminal record information prior to the time permitted by applicable law, ordinance or regulation commonly referred to as “ban-the-box” restrictions.
(vi) provide a reasonable amount of time prior to taking adverse employment action against the individual who is the subject of the report, when such action will be based in whole or in part upon the information contained in the report furnished by VICTIG, the Client will, except as otherwise provided by law, advise the subject of the intent to take adverse action and provide a copy of the report to the individual and a description, in writing, of the individual’s rights under the FCRA.
(vii) provide after taking adverse action based in whole or in part upon information contained in a report furnished by VICTIG, the Client shall:
(a) provide notice of such action to the individual;
(b) provide the name, address and telephone number of VICTIG; and
(c) inform the individual that he/she is entitled to a free copy of the report and a right to dispute the record through VICTIG and that VICTIG is unable to provide the individual the specific reasons why the adverse action was taken by you.
(viii) that it will comply with the FCRA and similar state laws, in regard to all reports, it will follow the requirements of the (“DPPA”) and the various state laws implementing the DPPA in regard to motor vehicle reports.
- Client represents that prior to requesting a report for residential screening purposes, it will:
(i) disclose to the individual who is the subject of the report that a consumer report or, as applicable, an investigative consumer report, may be obtained;
(ii) provide to the individual a summary of the individual’s rights under the (“FCRA”); and
(iii) not utilize any information in violation of any federal, state or local equal housing law or regulation.
(iv) provide after taking adverse action e.g., rejecting, increasing rental rates, increasing deposit requirements, etc. against the subject of the report, based in whole or in part upon information contained in a report furnished by VICTIG, the Client shall:
(a) provide notice of such action to the individual;
(b) provide the name, address and telephone number of VICTIG;
(c) inform the individual that he/she is entitled to a free copy of the report and a right to dispute the record through VICTIG and that VICTIG is unable to provide the individual the specific reasons why the adverse action was taken by you; and
(d) providing a copy of the individual’s rights under the FCRA.
- Client represents that, if it orders credit reports: (a) Client will comply with all state restrictions on requesting consumer reports. When consumer consent is required, such as by Vermont Law: 9 V.S.A. §2480e, it shall, as part of the FCRA required written disclosure and authorization, that a credit report may be obtained and Client shall so certify compliance to VICTIG prior to requesting the credit report. (b) It 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 the client, substantially varies from the address the credit bureau has on file for that consumer. Further, if client hires the consumer and in the ordinary course of its business it furnishes information to the credit bureau from which the report came, that it will advise the credit bureau of the address it has verified as accurate if that address is different from the one provided by the credit bureau.
- Client will maintain documentation showing compliance with these certifications for a period of six (6) years or during the employment, tenancy, etc. of the subject, whichever is longer.
- Compliance with Applicable Law
- The laws relating to the furnishing and use of information are subject to change. It is the responsibility of Client to become knowledgeable in such laws and to comply with them. The failure to comply with the then current applicable law may result in a breach of this agreement, termination of service, civil and criminal liability. VICTIG does not undertake any obligation to advise Client of its legal obligations.
- VICTIG does not act as legal counsel for Client. Client is responsible for retaining counsel to advise it regarding proper use of consumer reports; compliance with the FCRA, the Driver Privacy Protection Act, 18 U.S.C. §2721 et seq (“DPPA”) and other applicable federal, state and local laws; and development of an appropriate screening program for Client’s use of consumer reports.
- Client agrees to promptly execute and return to VICTIG all documentation required, now or in the future, by any government agency or VICTIG to permit release of information or to ensure compliance with applicable laws or regulations. Such documentation shall become part of this agreement. The failure to return such documentation will result in Client being blocked from receiving the information related to the documentation, and, in some circumstances, all services may be terminated without additional notice.
- Client consents to any reasonable request by VICTIG to audit records of the Client in person or by requesting copies of documents and to communicate with employees of the Client, with notice to Client, to determine the appropriateness of any present or past request(s) for information by Client. A failure to cooperate with an audit may result in the immediate termination or suspension of service.
- Fees for Services
- VICTIG will charge a fee for each request made by Client, in accordance with VICTIG’s current fees schedule. VICTIG reserves the right to change the fees charged upon thirty (30) days notice to Client. Applicable sales or other taxes will be added to all fees. Client understands that VICTIG may incur access charges imposed by courts and other governmental agencies which are passed along to Client in addition to fees. These costs are subject to change without notice.
- Payment on all invoices will be due thirty (30) days after billing. For any invoice not paid within thirty (30) days, VICTIG will add and collect a SERVICE CHARGE of one and a half percent (1½%) per month (or the maximum permitted by applicable law, if lower) with a minimum service charge of $2. Client agrees to pay VICTIG’s reasonable attorney’s fees and costs incurred in enforcing the terms of this Agreement and in the collection of amounts due under this Agreement.
5. Confidentiality of Information
- Information provided by VICTIG to its Clients is considered confidential by law. Upon its receipt, Client shall treat the information as confidential. Such information shall be maintained in confidential files to which access is restricted. Only those employees who need such information to perform their job duties shall have access to the same. Client shall ensure that such employees shall not attempt to obtain any consumer reports on themselves, family, friends or associates except in the exercise of their official duties. Client shall supply to VICTIG the name and phone number of the contact person or persons with whom VICTIG may discuss the contents of reports furnished to Client. At the time that Client disposes of any report received it shall cause such to be destroyed by cross shredding, burning or electronic destruction as required by regulations issued by the Federal Trade Commission. 16 CFR §682.1 et seq.
- Client acknowledges that it will receive personal identifying information on the subjects of the reports it receives. Client shall maintain reasonable procedures to protect the information from unauthorized internal or external access. Within 30 days of the execution of this Agreement, Client will outline its protections in regard to the receipt, usage and storage of this information. Client shall, upon request, advise us of the status of Client’s security measures. If Client experiences a breach of security regarding this information or discontinues any security measure, Client shall notify us within 24 business hours of the breach or discontinuance. With seven (7) business days of such an event, Client shall advise us what steps have been taken to protect the information from the reoccurrence of the breach or to restore protection of the information.
- Waiver and Release
- Client acknowledges that VICTIG relies totally on the information furnished by others. VICTIG also relies on the information contained in the records of various governmental agencies for other reports. VICTIG is not responsible for inaccurate or false information received from others and sent to Client. Client agrees to assert no claim and waives liability against VICTIG for any inaccurate or false information included in any report unless VICTIG had actual knowledge of the error and failed to correct it if it had the legal ability to alter such information.
- Client agrees to hold VICTIG harmless and will indemnify VICTIG from all claims and losses resulting from Client’s breach of this Agreement or violation of any applicable law. VICTIG agrees to hold Client harmless for all claims and losses arising from VICTIG’s violation of any applicable law. Such indemnifications include all costs and reasonable attorney fees incurred by the indemnified party.
- If the party seeking indemnification proposes to settle any claim it believes is subject to indemnification, it must notify the indemnifying party of such settlement and the indemnifying party must approve such settlement. Such approval shall not be unreasonably withheld. The indemnifying party can also disapprove of such settlement on the basis that the claim is not within those claims or losses covered by the indemnification. If the indemnifying party accepts the request to indemnify, but disagrees with the settlement amount, the indemnifying party shall take over the defense of the claim.
- Misuse of Information
- The FCRA prohibits the obtaining of information from a consumer reporting agency for an impermissible purpose. Further, those involved in such improper requesting may be subject to criminal penalties of imprisonment up to two years and/or a fine of $5,000 for each offense. 15 U.S.C. § 1681q. However such punishments are subject to change as the FCRA is amended. Further, the DPPA prohibits obtaining information under false pretenses and restricts the resale or redisclosure of personal information contained in state motor vehicle records. A violation of the DPPA may also result in criminal penalties. 18 U.S.C. § 2733(a). If a Client or one of its employees misrepresents to VICTIG the reason for a report or requests a report for an impermissible purpose, VICTIG may terminate service without notice in addition to other remedies available to VICTIG. Client understands that its misuse of or improper request for information may have a direct impact upon VICTIG and may cause it to be unable to obtain information for any of its clients resulting in substantial damages for which Client would be liable.
- Neither party shall, during the term of this Agreement, and any extension thereof and for a reasonable time thereafter disclose to another or use, unless authorized by the disclosing party, any of the disclosing party’s “Confidential Information”. The purpose of this section, “Confidential Information” shall mean all the party’s prospect list, client information, any customer records/information, employee list, financial data, business plans, business strategies, proprietary software and any other information of a party disclosed by one party to the other. Notwithstanding anything to the contrary contained in this Agreement, the receiving party shall not be precluded from: a) the use or disclosure of any Confidential Information which is currently known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement; b) the use or disclosure of any Confidential Information that becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party, provided that such source is not known by the receiving party to have a legal obligation prohibiting the disclosure of such information; or c) the use or disclosure of any Confidential Information that was developed independently by the receiving party, or d) the disclosure of the Confidential Information is required by law or legal process.
- Termination of Agreement
- Client may terminate this Agreement at any time upon written notice to VICTIG. Client will remain liable for all charges made to its account prior to termination and will promptly pay all sums due on termination.
- VICTIG may terminate this agreement by providing a sixty (60) day written notice but upon the occurrence of the following events, VICTIG may, immediately and without notice terminate or suspend this Service Agreement:
(i) Default in payment of charges for VICTIG Services;
(ii) Misuse of information contained in a VICTIG report;
(iii) Improper request for information;
(iv) Failure of Client to comply with or assist VICTIG in complying with the FCRA or any other applicable law;
(v) A material breach of this Agreement or violation of any law or regulation governing the request, use or release of the information in the reports by Client.
(vi) Unauthorized release of information in a consumer report to a third party or the reselling of any report.
- Notice of Change in Client’s Business
- Client shall immediately notify VICTIG of any of the following events: change in ownership of the Client (over 50%); a merger, change in name or change in the nature of Client’s business that in any way affects Client’s right to request and receive consumer reports.
- Miscellaneous Provisions
- This Agreement constitutes the entire understanding between the parties and supersedes all previous agreements, negotiations and representations. This Agreement may only be modified in writing signed by both parties; however, subsequent representations by Client to show compliance with existing or future laws are effective when signed by Client and become a part of this Agreement. This Agreement is for the exclusive benefit of the parties hereto and no benefit is intended for any third party.
- All communications and notices to be given under this Agreement will be made to the addresses, street and e-mail, and telephone numbers set forth herein. Each party will notify the other promptly of any change of address or telephone number.
- This Agreement is intended to be subject to, and in compliance with, all applicable state and federal statutes and regulations. Insofar as this Agreement or any provision may subsequently be determined to be at variance or not in compliance with any such statute or regulation, it will be considered to be amended or modified to the extent necessary to make it comply, and VICTIG and Client hereby consent and agree to any such amendment or modification. Further, the invalidity of any one provision shall not affect the validity of the other provisions.
- This Agreement is deemed to have become effective and to have been entered into upon its acceptance in the State of Utah by VICTIG. Therefore, this Agreement will be interpreted and enforced in accordance with the laws of the State of Utah, without reference to its conflict of laws.
- VICTIG may make changes to the software or methods used to provide service to Client and Client must make any necessary changes to maintain working connection to the service at Client’s sole cost.
- Force Majeure
- Neither Party is responsible for any events or circumstances beyond its control that prevent it from meeting its obligations, which include but are not limited to: war, terrorism, riots, embargos, strikes, disruptions in communications or acts of God.
End User is a (enter business type) and has a need for consumer credit information in connection with the evaluation of individuals for employment, promotion, reassignment or retention as an employee ("Consumer Report for Employment Purposes").
End User shall request Consumer Report for Employment Purposes pursuant to procedures prescribed by Reseller from time to time only when it is considering the individual inquired upon for employment, promotion, reassignment or retention as an employee, and for no other purpose.
End User certifies that it will not request a Consumer Report for Employment Purposes unless:
- A clear and conspicuous disclosure is first made in writing to the consumer by End User before the report is obtained, in a document that consists solely of the disclosure that a consumer report may be obtained for employment purposes;
- The consumer has authorized in writing the procurement of the report; and
- Information from the Consumer Report for Employment Purposes will not be used in violation of any applicable federal or state equal employment opportunity law or regulation.
End User further certifies that before taking adverse action in whole or in part based on the Consumer Report for Employment Purposes, it will provide the consumer with:
- A copy of the Consumer Report for Employment Purposes; and
- A copy of the consumer’s rights, in the format approved by the Federal Trade Commission.
End User shall use the Consumer Report for Employment Purposes only for a one-time use, and shall hold the report in strict confidence, and not disclose it to any third parties that are not involved in the employment decision.
End User will maintain copies of all written authorization for a minimum of five (5) years from the date of inquiry.
With just case, such as violation of the terms of End User’s contract or a legal requirement, or a material change in existing legal requirements that adversely affects End User’s Agreement, Reseller may, upon its election, discontinue serving the End User and cancel the agreement immediately.
DRIVER’S PRIVACY PROTECTION ACT (18 U.S.C. §2721 et. Seq.)
PROHIBITION ON RELEASE AND USE OF CERTAIN PERSONAL INFORMATION FROM STATE MOTOR VEHICLE RECORDS
SEC. 2721. PROHIBITION ON RELEASE AND USE OF CERTAIN PERSONAL INFORMATION FROM STATE MOTOR VEHICLE RECORDS.
(a) In General. A State department of motor vehicles, and any officer, employee, or contractor, thereof, shall not knowingly
disclose or otherwise make available to any person or entity:
(1) personal information, as defined in 18 U.S.C. 2725(3), about any individual obtained by the department in connection with a motor vehicle record, except as provided in subsection (b) of this section; or
(2) highly restricted personal information, as defined in 18 U.S.C. 2725(4), about any individual obtained by the department in connection with a motor vehicle record, without the express consent of the person to whom such information applies, except uses permitted in subsections (b)(1), (b)(4), (b)(6), and (b)(9): Provided, That subsection (a)(2) shall not in any way affect the use of organ donation information on an individual’s driver’s license or affect the administration of organ donation initiatives in the States.
(b) Permissible Uses. -Personal information referred to in subsection (a) shall be disclosed for use in connection with matters of motor vehicle or driver safety and theft, motor vehicle emissions, motor vehicle product alterations, recalls, or advisories, performance monitoring of motor vehicles and dealers by motor vehicle manufacturers, and removal of non-owner records from the original owner records of motor vehicle manufacturers to carry out the purposes of titles I and IV of the Anti-Car Theft Act of 1992, the Automobile Information Disclosure Act (15 U.S.C. 1231 et seq.), the Clean Air Act (42 U.S.C. 7401 et seq.), and chapters 301, 305, and 321-331 of title 49 (49 U.S.C.S. 30101 et seq., 30501 et seq., 32101 et seq.-33101 et seq.), and, subject to subsection (a)(2), may be disclosed as follows:
(1) For use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf of a Federal, State, or local agency in carrying out its functions.
(2) For use in connection with matters of motor vehicle or driver safety and theft; motor vehicle emissions; motor vehicle product alterations, recalls, or advisories; performance monitoring of motor vehicles, motor vehicle parts and dealers; motor vehicle market research activities, including survey research; and removal of non-owner records from the original owner records of motor vehicle manufacturers.
(3) For use in the normal course of business by a legitimate business or its agents, employees, or contractors, but only -
(A) to verify the accuracy of personal information submitted by the individual to the business or its agents, employees, or contractors; and
(B) if such information as so submitted is not correct or is no longer correct, to obtain the correct information, but only for the purposes of preventing fraud by, pursuing legal remedies against, or recovering on a debt or security interest against, the individual.
(4) For use in connection with any civil, criminal, administrative, or arbitral proceeding in any Federal, State, or local
court or agency or before any self-regulatory body, including the service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders, or pursuant to an order of a Federal, State,or local court.
(5) For use in research activities, and for use in producing statistical reports, so long as the personal information is not published, redisclosed, or used to contact individuals.
(6) For use by any insurer or insurance support organization, or by a self-insured entity, or its agents, employees, or contractors, in connection with claims investigation activities, antifraud activities, rating or underwriting.
(7) For use in providing notice to the owners of towed or impounded vehicles.
(8) For use by any licensed private investigative agency or licensed security service for any purpose permitted under this subsection.
(9) For use by an employer or its agent or insurer to obtain or verify information relating to a holder of a commercial driver's license that is required under Chapter 313 of title 49 [49 U.S.C.S secs. 31301 et seq.].
(10) For use in connection with the operation of private toll transportation facilities.
(11) For any other use in response to requests for individual motor vehicle records if the State has obtained the express consent of the person to whom such personal information pertains.
(12) For bulk distribution for surveys, marketing or solicitations if the State has obtained the express consent of the person to whom such personal information pertains.
(13) For use by any requester, if the requester demonstrates it has obtained the written consent of the individual to whom the information pertains.
(14) For any other use specifically authorized under the law of the State that holds the record, if such use is related to the
operation of a motor vehicle or public safety.
(c) Resale or Redisclosure. - An authorized recipient of personal information (except a recipient under subsection (b)(11) or (12)) may resell or redisclose the information only for a use permitted under subsection (b) (but not for uses under subsection b)(11) or (12)). An authorized recipient under subsection (b)(11) may resell or redisclose personal information for any purpose. An authorized recipient under subsection (b)(12) may resell or redisclose personal information pursuant to subsection (b)(12). Any authorized recipient (except a recipient under subsection (b)(11)) that resells or rediscloses personal information covered by this title must keep for a period of 5 years records identifying each person or entity that receives information and the permitted purpose for which the information will be used and must make such records available to the motor vehicle department upon request.
(d) Waiver Procedures. - A State motor vehicle department may establish and carry out procedures under which the department or its agents, upon receiving a request for personal information that does not fall within one of the exceptions in subsection (b), may mail a copy of the request to the individual about whom the information was requested, informing such individual of the request, together with a statement to the effect that the information will not be released unless the individual waives such individual's right to privacy under this section.
(e) Prohibition on conditions. No State may condition or burden in any way the issuance of an individual’s motor vehicle record as defined in 18 U.S.C. 2725(1) to obtain express consent. Nothing in this paragraph shall be construed to prohibit a State from charging an administrative fee for issuance of a motor vehicle record.
Sec. 2722. Additional unlawful acts
(a) Procurement for Unlawful Purpose. - It shall be unlawful for any person knowingly to obtain or disclose personal information, from a motor vehicle record, for any use not permitted under section 2721(b) of this title.
(b) False Representation. - It shall be unlawful for any person to make false representation to obtain any personal information from an individual's motor vehicle record.
Sec. 2723. Penalties
(a) Criminal Fine. - A person who knowingly violates this chapter shall be fined under this title.
(b) Violations by State Department of Motor Vehicles. - Any State department of motor vehicles that has a policy or practice of substantial noncompliance with this chapter shall be subject to a civil penalty imposed by the Attorney General of not more than $5,000 a day for each day of substantial noncompliance.
Sec. 2724. Civil action
(a) Cause of Action. - A person who knowingly obtains discloses or uses personal information, from a motor vehicle record, for a purpose not permitted under this chapter shall be liable to the individual to whom the information pertains, who may bring a civil action in a United States district court.
(b) Remedies. - The court may award -
(1) actual damages, but not less than liquidated damages in the amount of $2,500;
(2) punitive damages upon proof of willful or reckless disregard of the law;
(3) reasonable attorneys' fees and other litigation costs reasonably incurred; and
(4) such other preliminary and equitable relief as the court determines to be appropriate.
Sec. 2725. Definitions In this chapter -
(1) ''motor vehicle record'' means any record that pertains to a motor vehicle operator's permit, motor vehicle title, motor vehicle registration, or identification card issued by a department of motor vehicles;
(2) ''person'' means an individual, organization or entity, but does not include a State or agency thereof; and
(3) ''personal information'' means information that identifies an individual, including an individual's photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver's status;
(4) '”highly restricted personal information” means an individual’s photograph or image, social security number, medical or disability information; and
(5) ''express consent” means consent in writing, including consent, conveyed electronically that bears an electronic signature as defined in section 106(5) of Public Law 106-229 [15 U.S.C.S § 7006(5)].
The amendments made by section 300002 shall become effective on the date that is 3 years after the date of enactment of this Act (Sept. 13, 1994). After the effective date, if a State has implemented a procedure under section 2721(b)(11) and (12) of title 18, United States Code, as added by section 300002(a), for prohibiting disclosures or uses of personal information, and the procedure otherwise meets the requirements of subsection (b)(11) and (12), the State shall be in compliance with subsection (b)(11) and (12) even if the procedure is not available to individuals until they renew their license, title, registration or identification card, so long as the State provides some other procedure for individuals to contact the State on their own initiative to prohibit such uses or disclosures. Prior to the effective date, personal information covered by the amendment made by section 300002 may be released consistent with State law or practice.