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User Agreement
The Undersigned Applicant (hereinafter referred to as the "Client" agrees):
1. To comply with all the provisions of Public Law 91-508 (Fair Credit Reporting Act (FCRA)) and all other applicable statutes. Client has received the FCRA Addendum.
2. To certify that consumer inquiries will be made, and/or consumer reports ordered only for the permissible purpose as identified in this contract.
3. To certify that all applicants, on which requests will be made for credit information, have signed a form and/or given consent authorizing Client to investigate their credit histories. Client understands that KCB Screening may request from time to time copies of proof to verify such consent on files ordered through KCB Screening. Client also understands that when ordering a Tenant/ Employment screening Credit Report, a full and complete consumer application is required.
4. To certify that any consumer inquiries/reports will not be used for any form of credit counseling, credit repair or restoration.
5. That any of their employees are forbidden to attempt to obtain reports on themselves, family members, and associates or on any other person, except in the exercise of their official duties.
6. That KCB Screening shall use good faith in attempting to obtain credit information from sources deemed reliable, but does not guarantee the accuracy of the information reported. In no event shall KCB Screening be held liable in any manner whatsoever for any loss or injury to the client resulting from the obtaining or furnishing of such information. Furthermore, that the client agrees to hold KCB Screening and its sources (primarily Trans Union, Equifax and Experian) harmless and indemnify them from any and all claims arising out of alleged liability or failure, or error of omission.
7. That with just cause, such as delinquency or violation of the terms of this contract or a legal requirement, KCB Screening may, upon its election, discontinue serving the Client and cancel this Agreement immediately.
8. The Client has read the attached exhibits and addendum #1 and agrees to comply with the provisions when obtaining these services.
9. To authorize KCB Screening to investigate the references, statements and other data contained in this application or obtained from client or any other person pertaining to client's credit responsibility. Client will furnish other information if requested. It is understood that all information obtained will only be used by KCB Screening to evaluate the application and will be held in the strictest confidence.
10. The Client or End User understands they are not to resell the information in whole or in part to any third party. Client certifies that they have read and accepted all of the above statements and that all of the information provided is accurate. All replications of this Service Agreement shall be deemed an original.
BACKGROUND SCREENING SERVICE ADDENDUM
1. Description of Services. Client may order consumer reports (“Reports”) from Service Provider for “employment purposes” as that term is defined under the Fair Credit Reporting Act 15 USC 1681 et. seq. (“FCRA”) including but not limited to: evaluating the subject of the report (“Consumer”) for employment, promotion, reassignment, or retention as an employee, volunteer, or as an independent contractor (“Employment Purposes”). Client certifies that Client will order and use Reports for Employment Purposes only and for no other purpose. Reports contain the information listed in Schedule A attached hereto (the “Services”). Service Provider does not provide or include any arrest record information in Reports unless such arrest record is part of a pending criminal action and will only provide search results as permitted under applicable laws. Client may also request Services for Consumers who are residents of or have had residence in countries outside of the United States (“International Reports”).
2. Legal Compliance.
a. Client acknowledges that it will comply with all Applicable Laws and regulations when using Reports and International Reports and certifies that it has not been the subject of any proceeding regarding any trust related matter including, but not limited to, fraud, counterfeiting, identity theft and the like, and has not been the subject of any civil, criminal or regulatory matter that would create an enhanced security risk to Service Provider or its data, including but not limited to, any matter involving potential violations of Applicable Laws. With respect to Reports, “Applicable Laws” shall include but not be limited to: the FCRA, the Americans With Disabilities Act, the Drivers Privacy Protection Act (“DPPA”), the Gramm-Leach-Bliley Act (“GLB”), federal and state employment laws, and other applicable laws including but not limited to some state laws which limit the use of credit information in connection with employment decisions. With respect to International Reports, “Applicable Laws” shall refer to country laws, directives, rules, regulations, executive orders, regulatory guidance, regulatory requirements and any form of secondary legislation, resolution, policy guideline, concession or case law from time to time that apply to either party and its affiliates or the services, including (i) data protection, privacy or similar laws and regulations anywhere in the world applicable to persons in possession of personal data or to the processing of personal data, and (ii) employment laws.
b. Client agrees that each time it orders a Report, the order constitutes Client’s re-assertation of its certifications in the “Permissible Purpose Certification” (attached hereto as Exhibit A) with respect to such Report. Client will establish and follow security measures designed to prevent unauthorized access to Client’s data files. In the instance of a Client Security Event (as defined below), Client shall, in compliance with law, notify the individuals whose information was potentially accessed that a Client Security Event has occurred, and any other parties (including but not limited to regulatory entities and credit reporting agencies) as may be required. Unless required by applicable law, such notification shall not reference Service Provider or Service Provider’s product, nor shall Service Provider be otherwise referenced in connection with the Client Security Event, without Service Provider’s express written consent. Client shall be solely responsible for all costs associated with any other legal or regulatory obligations which may arise under applicable law in connection with a Client Security Event, including but not limited to, costs for credit monitoring. Client shall indemnify Service Provider for a Client Security Event. A Client Security Event shall be defined as the unauthorized acquisition or access to personally identifiable information made available through the provision of the services while in the possession or under the control of Client, including but not limited to, that which is due to use by an unauthorized person or due to an unauthorized use. Client acknowledges it has received a copy of the Consumer Financial Protection Bureau (“CFPB”) “Summary of Consumer Rights”, Notice to Users of Consumer Reports and “Background Checks: What Employers Need to Know” http://business.ftc.gov/documents/0487-background-checks-what-employers-needknow. Client shall use the Reports for a one-time use only and certifies that it shall not disclose the Report to any party not involved in the current employment decision. Furthermore, Client shall not use the data from the Report to create, compile, or maintain a database other than for internal business purposes only. Client acknowledges that Service Provider may be required to respond to Consumer’s requests for access, correction, or deletion of their personal information.
c. Client agrees it is the end-user of all Reports, and will not resell, sub-license, deliver, display, or otherwise distribute any Report, or any information in a Report, to any third party, except to the Consumer or as otherwise required under Applicable Laws. Client agrees not to market the Reports through the Internet. Client warrants that Client’s use of the Reports shall be for only legitimate business purposes relating to its business. Client shall train employees on Client’s obligations under this Addendum prior to use of Services and conduct a review of such obligations with employees who have access to Services no less than annually. Client shall keep records of such training. Client shall notify Service Provider in writing within ten (10) days of any changes to Client’s name, federal tax identification number, address, telephone number, contact person, sale or closure of business, merger or change in ownership of fifty percent (50%) or more of the stock or assets of Client, change in nature of Client’s business. Client understands that certain changes may require additional Client credentialing. Client agrees to notify Service Provider in writing if Client uses a third party processor (the “Third Party Processor”), who will have access to Services or information provided. Client’s Third Party Processor is required to execute a Third Party Processor Agreement with Service Provider. Client is responsible for the acts and omissions of the Third Party Processor.
d. Service Provider may modify the scope of Services at any time upon reasonable notice to Client, unless prior notice cannot be provided due to Service Provider’s obligations to comply with Applicable Laws and/or data provider requirements. Client agrees to comply with all such changes, including any additional fees. Service Provider may at any time mask or cease to provide Client access to any Services or portions thereof which Service Provider may reasonably deem to be sensitive or restricted information due to Applicable Laws or data provider’s requirements.
e. Client acknowledges that Service Provider is not acting as Client’s legal counsel and cannot provide legal advice to Client. Service Provider recommends that Client consult with legal counsel with regards to Client’s obligations under this Agreement including but not limited to, the development of an employment screening program specific to Client’s needs and ensuring that Client’s policies and procedures related to the use of the information provided pursuant to this Agreement is in compliance with applicable state and federal laws. Service Provider also recommends that Client consult with legal counsel to develop a legally compliant adverse action policy. If Client requests Service Provider to make available any of Client’s disclosure and authorization form(s) to its candidates/applicants on its behalf then: (i) Client shall provide a copy of the form(s) to Service Provider, including any required notices, and (ii) Service Provider shall make such form(s) available to Client’s candidates/applicants through Service Provider’s platform. The parties agree if Client requests Service Provider to provide adjudication services on its behalf then: (i) Client shall provide its adjudication matrix to Service Provider, and (ii) Service Provider shall apply the adjudication matrix pursuant to Client’s instructions. Client acknowledges that Service Provider did not provide any advice or counsel with respect to Client’s disclosure and authorization forms or adjudication matrix, including any sample consent form or notice provided to Client as a courtesy.
3. Fees. Client shall pay Service Provider for all Services as outlined in Schedule A.
4. Audit. In order to comply with all Applicable Laws or contractual obligations with its data providers, and its internal policies, Service Provider, or its designee, may conduct periodic reviews of Client’s use of the Services through written requests for information and may, upon reasonable notice and during Client’s regular business hours, no more than once annually unless required by Service Provider’s regulators or data providers, audit Client’s records, processes and procedures related to Client’s use, storage and disposal of those Services and information received therefrom, including performing site visits at Client’s premises. Client agrees to cooperate fully with all audits and to respond to any audit inquiry within ten (10) business days, unless an expedited response is required.
5. Miscellaneous.
a. Motor Vehicle Records. To the extent Client orders Motor Vehicle Reports (“MVRs”) from Service Provider, the following shall apply: Client shall complete any specific state forms, certificates of use or other documents or agreements including any changes, supplements or amendments thereto imposed by the states. Further, Client shall use MVRs only for purposes permitted by the DPPA and any equivalent state laws, and obtain the written authorization of the Consumer before ordering such MVR. All employees, officers, and temporary employees of Client that receives and has access to MVRs from Service Provider shall be bound by similar confidentiality obligations to those contained in the MSA. Client shall at all times maintain safeguards and procedures to ensure the security and protection of data and documents furnished by Service Provider. Minimum security measures shall include controlling access to data storage and production areas, secure destruction of data and documents, and other reasonable security measures. For any MVRs distributed to Client via the internet, Client must use a web server that supports and enables Secure Socket Layer (SSL), password-protected membership and then-current encryption technology. Client may only distribute MVRs to its employees using a web server that supports and enables SSL, password-protected membership and then-current encryption technology.
b. Operations in New York. To the extent Client has operations in the State of New York the following shall apply: Client shall comply with all relevant privacy and anti-discrimination laws in using any information provided by Service Provider. Any adjudication matrix or instructions provided by Client in connection with the Direct Advantage (or equivalent) platform (including, but not limited to, any FCRA required consent and disclosure forms or language) that Client has provided to Service Provider (or instructed Service Provider to implement) have been reviewed by Client’s legal counsel or advisors and will comply with applicable federal, state, and local privacy and anti-discrimination laws, including but not limited to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.; New York State General Business Law §§ 380 et seq.; New York Executive Law §§ 296(1), (15) and (16); New York Correction Law §§ 752-53; and New York City Administrative Code § 8-107(10). Client acknowledges that Service Provider has provided the “Notice to Clients Operating Within the State of New York". Client is advised to review such notice prior to its execution of this Addendum. Vermont Residents. To the extent Client orders a credit report on a Vermont resident, Client shall comply with the Vermont Labor Law, 21 V.S.A. § 495i and with the Vermont Fair Credit Reporting Act, 9 V.S.A. § 2480e.
c. International Screening. To the extent that the Services include International Reports, the following shall apply: Each party shall comply with its own obligations under Applicable Laws regarding the collection, processing, use, disclosure, retention and transfer of personal information (as defined under applicable data protection law). With respect to the processing of personal information that is transferred from the European Economic Area to the United States, Service Provider self-certifies to and complies, and will maintain such self-certification and compliance, with the EU-US Privacy Shield Framework, as administered by the US Department of Commerce. Client shall ensure that personal information can be lawfully processed in the manner anticipated hereunder. Client agrees that it will collect personal information only for specified and lawful purposes and will provide any required notices to and obtain necessary consents from the Consumer concerning the collection and processing of personal information pursuant to this Addendum. Such notices and consents must comply with all data protection requirements under Applicable Laws. Service Provider shall process personal information in accordance with the rights of Consumers pursuant to Applicable Laws and with the processing instructions issued by Client. Client hereby acknowledges and agrees that, when providing International Reports to Client, Service Provider may be considered a data “processor” and Client may be considered a data “controller”, to the extent those terms are defined under Applicable Laws. The parties shall comply with Applicable Laws regarding the Consumer’s right to access personal information collected about him or her, as well as with requests to correct or delete inaccurate or incomplete data. In those cases where the parties have executed a local country agreement (“LCA”), the terms and conditions of the LCA shall take precedence over the terms of this Section 5(c) and any other terms of this Addendum that apply to the Service Provider’s provision of and the Client’s receipt of
International Reports.
d. Criminal Records Watch and Healthcare Exclusions Actions and Licensure Checks (HEAL). To the extent the Services include Criminal Records Watch or HEAL services, these are subscription-based products/services “Subscription Services” and Client agrees to the following additional terms: (i) Client shall provide to Service Provider an up-to-date and current employee/contractor roster for which Client has a permissible purpose to receive Reports and shall keep Service Provider updated on any and all changes to such roster, (ii) Client reasserts the certification in Exhibit A, and as may also be required under applicable laws, and (iii) Client acknowledges and understands that Service Provider will deliver no arrest information in Reports. The term of each Subscription Service shall begin on the date set forth in Schedule A and shall continue as specified in Schedule A. Except for Client’s termination pursuant to Section 6 “Early Termination” as set forth in the MSA, in no event will early termination or cancellation of any Subscription Services relieve Client of its responsibilities for payment of any and all fees and costs for the Subscription Services for the remainder of the term.
e. Equifax Data. To the extent Client obtains Equifax data from Service Provider as part of the Services (the “Equifax Data”) and notwithstanding anything to the contrary in this Agreement, Client agrees to the following terms, as required by Equifax:
(i) Service Provider may terminate for its convenience the Services that contain Equifax Data upon ten (10) days prior written notice to Client without incurring any liability to Client resulting therefrom and (ii) Client shall hold Equifax and its agents harmless from and against any and all claims, suits, proceedings, damages, costs, expenses (including, without limitation, reasonable attorneys’ fees and court costs) brought against, or suffered by Equifax related to Client’s use or receipt of Equifax Data.
f. Experian Data.To the extent Client obtains Experian data from Service Provider as part of the Services (the “Experian Data”) and notwithstanding anything to the contrary in this Agreement, Client agrees to the following terms, as required by
Experian:
i. Client acknowledges that the Services containing Experian Data may also contain information from the Death Master File as issued by the Social Security Administration (“DMF”). Client certifies pursuant to Section 203 of the Bipartisan Budget Act of 2013 and 15 C.F.R. § 1110.102 that, consistent with its applicable FCRA or GLB use of Experian Data, Client’s use of deceased flags or other indicia within the Experian Data is restricted to legitimate fraud prevention or business purposes in compliance with applicable laws, rules regulations, or fiduciary duty, as such business purposes are interpreted under 15 C.F.R. § 1110.102(a)(1). Client further certifies that Client will not take any adverse action against any Consumer without further investigation to verify the information from the deceased flags or other indicia within the Experian Data.
ii. Client certifies that it shall implement and maintain a comprehensive information security program written in one or more readily accessible parts and that contains administrative, technical, and physical safeguards that are appropriate to Client’s size and complexity, the nature and scope of its activities, and the sensitivity of the information provided to Client by Service Provider; and that such safeguards shall include the elements set forth in 16 C.F.R. § 314.4 and shall be reasonably designed to (i) insure the security and confidentiality of the information provided by Service Provider, (ii) protect against any anticipated threats or hazards to the security or integrity of such information, and (iii) protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to any Consumer.
Permissible Purpose Certification
(Not applicable to International Reports)
As a condition to ordering and obtaining consumer reports from KCB Screening LLC (“Service Provider”), “Client” (defined as the employer/company identified below), agrees to the terms set forth herein. Further, Client agrees that each time it orders a consumer report, the order constitutes Client’s reaffirmation of the below certification.
1. Client certifies that the nature of its business is:
#NatureofBusiness#
2. Client orders Consumer Reports from Service Provider for the following purposes under the FCRA and as such reports will not be used for any other purpose:
Please identify which of the following apply by selecting “yes” or “no”:
Employment (which includes hiring, promotion, assignment, and retention decisions):
Pre/Post Employment
Volunteer
Contractor
3. Client certifies to Service Provider that with respect to each consumer report (“report”) ordered from Service Provider:
a. It will use such report solely for employment purposes and for no other purpose. Employment purposes include the evaluation of the subject of the report for employment, promotion, reassignment, or retention as an employee, volunteer or independent contractor. The subject of the report (“Applicant”) includes any consumer who is an applicant, potential employee or employee.
b. Prior to ordering the report, or causing the report to be ordered:
i. Client has made a clear and conspicuous written disclosure to the Applicant, in a document consisting solely of the disclosure, that a report may be obtained for employment purposes; and ii. Client has obtained the Applicant’s written authorization to obtain the report; such authorization may be in the same document as the disclosure.
c. Prior to taking any adverse action based in whole or in part on the report, Client will provide the following to the Applicant: i. A copy of the report; and ii. A written description of the rights of the Applicant under the Fair Credit Reporting Act (“FCRA”) as prescribed by the Consumer Financial Protection Bureau (“FCRA Summary of Rights”). Service Provider has provided Client a copy of the FCRA Summary of Rights, and it can be obtained from Service Provider’s website or the CFPB’s website (http://www.consumerfinance.gov/).
d. Before Client takes any adverse action against the Applicant based in whole or in part on the report, Client shall give the Applicant a reasonable amount of time after the copy of the report and FCRA Summary of Rights have been received to dispute the accuracy and completeness of the information in the report.
e. If Client takes any adverse action with respect to the Applicant based in whole or in part on any information in the report, it will provide the Applicant with all of the following: i. Notice of the adverse action; ii. Service Provider’s name, address, and toll-free telephone number; iii. A statement that Service Provider did not make the decision to take the adverse action and is unable to provide the Applicant the specific reasons why the adverse action was taken; iv. Notice of the Applicant’s right to obtain a free copy of the report from Service Provider if, within 60 days after receipt of the notice, he or she requests a copy from Service Provider; and v. Notice of the Applicant’s right under the FCRA to dispute with Service Provider the accuracy or completeness of any information in the report.
f. Client will not use any information in the report in violation of any applicable Federal or State equal employment opportunity law or regulation.
4. In some cases, Client may order a report from Service Provider for employment purposes that would also constitute an “investigative consumer report.” (In general, an investigative consumer report is one in which information has been obtained through personal interviews with friends, neighbors, or associates of the Applicant or others with whom the Applicant is acquainted or who may have knowledge concerning any such items of information, and the information is more than just a verification of facts.) In the event that Client orders from Service Provider any investigative consumer report, then in addition to the other certifications herein, Client certifies as follows with respect to each investigative consumer report ordered:
a. Not later than 3 days after the date of requesting such report from Service Provider, Client will mail or otherwise deliver a written disclosure to the Applicant containing the following information: i. A statement that clearly and accurately discloses that an investigative consumer report on the Applicant may be made and such report may contain information as to his or her character, general reputation, personal characteristics and mode of living (as applicable); and ii. A statement informing the Applicant of his or her right to request in writing additional disclosures about the nature and scope of the investigation and a written summary of rights (FCRA Summary of Rights).
b. Upon written request by the Applicant within a reasonable period of time following the Applicant’s receipt of the disclosure referred to in subsection a. above, Client shall make a complete and accurate written disclosure of the nature and scope of the investigation requested. Client will mail or otherwise deliver the nature and scope disclosure to the Applicant not later than 5 days after the date on which the request for such disclosure was received from the Applicant or such investigative consumer report was first requested, whichever is later.
5. If Client operates in California or orders a report on a California resident, in addition to the other certifications herein Client hereby certifies for each California report ordered from Service Provider that:
a. Client will identify Service Provider including the name, address, and telephone number to the Applicant when it provides the disclosure to or obtain the consent from the Applicant along with a reference to Service Provider’s privacy policy URL;
b. It will provide a disclosure with a box that can be checked by the Applicant to indicate that he/she wants to obtain a free copy of the Report and Client will send such a copy within three (3) business days of Client’s receipt of the Report if the box is checked; and
c. Client will provide the Applicant a summary of his or her rights under California Civil Code Section 1786.22.
d. Client is not a retail seller, as defined in Section 1802.3 of the California Civil Code and does not issue credit to consumers who appear in person on the basis of applications for credit submitted in person. Furthermore, if Client becomes a Retail Seller who extends credit in Point of Sale transactions, Client agrees to provide written notice of such to Service Provider prior to using credit reports with Point of Sale transactions as a Retail Seller, and will comply with the requirements of a Retail Seller conducting Point of Sale transactions, as provided in the California Civil Code.
6. Client is aware that in addition to the FCRA and other federal laws, state laws may be applicable to the ordering and use of consumer and/or investigative consumer reports, including but not limited some state laws which limit the use of credit information in connection with employment, and agree to comply with all applicable federal and state laws and any changes or revisions to such laws.
7. Client certifies to Service Provider that with respect to each driving record information or motor vehicle report ordered from Service Provider, it will comply with each of the above requirements relating to consumer reports, and will also comply with the Driver's Privacy Protection Act of 1994 and any of its amendments in ordering and use of the driving record information or motor vehicle report.
8. Client agrees that all certifications and agreements herein are of a continuing nature and are intended to apply to each consumer and/or investigative consumer report ordered from Service Provider. Client agrees to keep all documentation signed by the Applicant required herein for at least five (5) years after the date of the report to which such documentation relates and to provide Service Provider copies upon request.
9. In the event that Client is intending to include in its adverse action letter the notice required by Section 380g of the New York General Business Law, Client acknowledges and agrees that the adverse action letter mailing services, if subscribed to with Service Provider, only fulfill the requirements of New York law to the extent that the inclusion of a criminal record in a Consumer Report would result in an adverse action against the Consumer. Client acknowledges and agrees that it shall retain responsibility for the delivery of any and all notices required by New York law under any other circumstances.
Any person who knowingly and willfully obtains information on a consumer from a consumer reporting agency under false pretenses, shall be fined under title 18, United States Code, imprisoned for not more than two (2) years, or both.
GLB PERMISSIBLE PURPOSE
Some services may use and/or display nonpublic personal information that is governed by the privacy provisions of the Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et seq.) and its implementing regulations. Client certifies it has the written consent of the Consumer, in accordance with 15 U.S.C. 6802, and Client further certifies it will use such information obtained from services only for the purpose(s) to which such Consumer has consented. Client acknowledges and agrees that it will recertify its permissible uses of GLB data upon request by Service Provider. Client certifies with respect to GLB data received through the Services that it complies with the Interagency Standards for Safeguarding Customer Information issued pursuant to the GLB.
DPPA PERMISSIBLE USES
Some services may use and/or display personal information, the use of which is governed by the Drivers Privacy Protection Act (18 U.S.C. § 2721 et seq.) and related state laws (collectively, “DPPA”). Client certifies it has the written consent of the Consumer to which the information pertains and further certifies it will use such information obtained from services only for the purpose(s) to which such Consumer has consented. The text of the DPPA may be found at http://www.gpo.gov/fdsys/pkg/USCODE-2009-title18/html/USCODE-2009-title18.htm. Client acknowledges and agrees that it will recertify, in writing, its permissible uses of DPPA data upon request by Service Provider.
I, ON BEHALF OF THE CLIENT, HEREBY AGREE TO COMPLY WITH THE PERMISSIBLE PURPOSE CERTIFICATION NOTED HEREIN. I FURTHER CERTIFY THAT I HAVE DIRECT KNOWLEDGE OF THE FACTS CERTIFIED HEREIN AND AM AUTHORIZED BY THE CLIENT TO AGREE TO THESE ITEMS HEREIN ON ITS BEHALF