We are Scherzer International Corporation, a California corporation with our principal place of business in Woodland Hills, California. Upon request, acceptance or use of any of our reports (the “Report”), the person who orders the Report is the purchaser of the Report (the “Purchaser”) and agrees to the following Terms and Conditions:
We price each Report and confirm that price by email, fax or in a separate agreement before commencing work on the Report. We do not start work on a Report until we and the Purchaser have agreed on the price. If an agreement relates to more than one Report, we shall be entitled to payment as each Report is delivered based on the amount allocated to the particular Report, or if there is no allocation on a pro rata basis, based on the number of Reports ordered. We must approve any change in previously established fees.
The Purchaser will be obligated to pay the invoice relating to the Report in full within 30 days from the date of the Report. We reserve the right to bill for a Report when it is substantially complete—for example, when it is complete except for an item that an unrelated third party will deliver at a future date and which is not expected to have an adverse effect—even though the Report is designated “preliminary” until we receive that item and reference it in the Report. The person ordering the Report is the person responsible for payment, and not any third person, unless the third person is disclosed to us in advance, specifically agrees in writing to these Terms and Conditions, and is approved by us. Payments to us are not contingent in any way and are due whether or not the Purchaser receives reimbursement from a client or other third party and whether or not any transaction for which the Report was ordered is completed. Unless we agree otherwise in writing, we will charge a late-payment fee on all overdue amounts in the amount of the lesser of (i) ten percent (10%) per annum or (ii) the maximum rate permitted by law.
The Purchaser may specify delivery by hand, by fax or by email. If the Purchaser specifies hand delivery, we will include a charge for the costs we incur to make the delivery. We will deliver all Reports on the date of the Report or on the day after the date of the Report. We will not charge for fax or email delivery. Delivery will be complete upon receipt if we deliver by hand, when we complete a transmission to the machine designated by the Purchaser if we deliver by fax, and when we include the Report as an attachment to an email and transmit the email from our system or from a system designated by the Purchaser, addressed to the email address supplied by the Purchaser. In the case of emails, we will use reasonable efforts to direct them to the address that the Purchaser specifies but we will not be responsible for any breach of security that is beyond our control. If the Purchaser fails to specify a particular means of delivery, we will deliver all reports by e-mail to the last known e-mail address that the Purchaser has supplied to us.
We will prepare the Report from sources that we believe to be reliable. However, we are unable to provide any assurances that these sources are complete or without error. We do not have access to confidential, private or non-public governmental records. If an error from one of our sources comes to our attention in a way that suggests to us that the Report is inaccurate in any material respect, we will promptly notify the Purchaser of the possible error. In all cases, the Report is limited by the scope of our review and research. We will indicate the scope in the Report. For example, many records, including those regarding liens, judgments, criminal activity and litigation, are local. We cannot search all files for all time periods to prepare a report. Additionally, many third-party sources are frequently outdated and, in some cases, the last update may be considerably prior to the date of our search. Accordingly, our Report will indicate the jurisdictions searched and the periods covered. This includes, in the case of sources that disclose when they were last updated, the date through which the particular source was last updated at the time of our search, if that date is more than 30 days prior to the date of our search and we are aware of that fact. We generally consider a source to be current if it has been updated within 30 days of the Report. This does not mean that we would or would not discover other relevant information if we searched other sources, extended the time periods or waited for updates to occur. On occasion, we may recommend certain search strategies. The search strategies we recommend are based on our experience but do not guarantee that all deficiencies will be revealed. A search conducted pursuant to a recommended search strategy is still subject to scope limitations and any problems caused by incomplete, inaccurate or erroneous underlying data. In all cases, we attempt to tailor the scope to the Purchaser’s needs and specified purpose. We warrant that we will conduct our work competently and in accordance with relevant professional standards, laws and regulations, but we do not warrant that the Report will be merchantable or fit for a particular purpose.
If the Purchaser requests a “database-only search” Report, the Purchaser assumes the risk inherent in these Reports. While the databases we search are often labeled as “national” or “statewide,” they do not contain many records that are available from the official record keepers’ venue, and may contain records that are inaccurate, incomplete, outdated or inconsistently updated. Many of these databases can be searched by name only, which increases the risk that information cannot be accurately identified to a particular subject. To attain the most accurate, comprehensive and up-to-date results, the database information must be verified by going directly to the official source’s materials. In the case of all database-only searches, we will provide information that we believe to be accurate and relevant, and within the requirements and scope of the Fair Credit Reporting Act (the “FCRA”) and other laws, as applicable. We will exclude any information that does not meet this standard, including some instances in which information may possibly relate to the subject. To the extent that there is any conflict between the provisions of this paragraph and paragraph 4, the provisions of this paragraph shall prevail.
We will indicate the effective date of the Report (the “Effective Date”) in the Report. We will provide information for the period or periods specified in the Report ending on the Effective Date, although that date may be earlier than the date of delivery. We do not assume any obligation to update the Report, except upon receipt of an additional request from the Purchaser. We will charge a fee to update the Report and the Report, as updated, shall continue to be subject to these Terms and Conditions.
Our liability in connection with or arising out of the presentation or use of a Report whether under breach of contract, breach of statutory provision, breach of confidentiality or any other legal theory shall not exceed the amount or amounts that the Purchaser has paid to us for the Report. We shall not, in any event, be responsible for consequential damages, however caused. We will remain responsible for our own intentional misconduct and gross negligence, should they occur.
The Purchaser may cancel any previously ordered Report by written notice to us. If a Report is cancelled, we will be entitled to payment of a proportionate part of the previously agreed price based on our reasonable estimate of the percentage of the total work completed through the date we received the notice of cancellation. We will deliver the information that we have gathered to prepare the Report prior to the date of cancellation that we believe is accurate and relevant. This material will not be a Report, even if we choose to deliver it in the form of a partial report, and we will deliver it “AS IS” without warranty of any kind. The Purchaser shall assume all risks resulting from the use or disclosure of this material.
The Purchaser will retain ownership rights to the information that the Purchaser submits to us to prepare a Report. The Purchaser grants to us the right to use the Purchaser’s information to obtain information from outside sources and to prepare the requested Report. We retain all ownership rights to a Report and to the information contained therein. We grant to the Purchaser the non-exclusive perpetual, royalty-free right to use the Report in the form provided to the Purchaser, without modification. The Purchaser may make additional copies of the Report. The Purchaser may share the report with others who the Purchaser believes have a need to know the information in the Report. The Purchaser shall not publish the Report or any excerpts from the Report or modify the Report in any way, without our prior written consent. The Purchaser does not have a right to assign or sublicense the Purchaser’s rights, except in connection with a sale of substantially all of the Purchaser’s business. The Purchaser’s use of a Report obtained to screen individuals for employment, insurance or credit is limited by law, and the Purchaser shall not use these Reports in any manner which would cause us to violate the law.
The Purchaser and we may be subject to the requirements of the FCRA (15 U.S.C. §§ 1681 et seq.) depending upon the Purchaser’s use of a Report. We rely on Purchaser to tell us the intended use of each Report. If that use falls within the scope of the FCRA, we agree to comply with its provisions to the extent they are imposed on us as a consumer reporting agency (a “CRA”). The FCRA is a federal law that regulates the collection, dissemination and use of consumer information, including consumer credit information. Under 15 U.S.C. § 1681a, a “consumer” is defined as an “individual,” and a “consumer report,” in general, means any written, oral or other communication of any information by a CRA bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics or mode of living, which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for (A) credit or insurance to be used primarily for personal, family or household purposes; (B) employment purposes; or (C) any other purpose authorized under § 1681b of this title. The FCRA prohibits any person from obtaining a consumer report from a CRA unless the person has certified to the CRA the permissible purpose(s) for which the report is being obtained and certifies that the report will not be used for any other purpose. Accordingly, when the Purchaser requests from SI an FCRA-regulated Report(s), the Purchaser agrees that it is certifying that it has a permissible purpose to procure the Report(s) as provided under the FCRA, and will use the Report(s) for no other purpose. If any “adverse action,” as defined in the FCRA, is taken based in whole or in part on a Report, the Purchaser must consider the Purchaser’s obligation to deliver a copy of the Report to the subject. The full text of the FCRA and further information about the responsibilities of users of consumer reports are set forth at http://www.ftc.gov/os/statutes/031224fcra.pdf and http://www.consumerfinance.gov/learnmore/.
Before we undertake the preparation of a Report on an employee or potential employee, we require the Purchaser to provide to us a signed Client Agreement and Certification in the form set forth at https://ordering.scherzer.com/Client_Agreement.html (“Employment-Purpose Certification”) and in accordance with the Employment-Purpose Certification, to give a clear and conspicuous written disclosure to the proposed subject of a Report that the Purchaser intends to obtain a consumer report or an investigative consumer report from us, and to obtain a written authorization from the proposed subject. In cases where the Purchaser requests a Report concerning possible employee misconduct, we may waive this requirement upon the Purchaser’s delivery to us of a written certification as to the purpose of the Report. We may require notice(s) to the subject of a Report and consent(s) from the subject in other circumstances. While we believe that there is no conflict between the Employment Certification and these Terms and Conditions, should a court or arbitrators determine that such a conflict exists, the provisions of these Terms and Conditions shall prevail.
To prepare a Report, we will rely on information provided by the Purchaser. If the Purchaser supplies Social Security or other government-issued identification numbers for use in the preparation of a Report, the Purchaser represents and warrants to us that the Purchaser has obtained the numbers in a lawful manner and has the required permission from the person identified. We agree that we will maintain all information provided by the Purchaser to us in confidence except as may be required to prepare a Report. We shall use the Purchaser’s information to obtain information for use in our Reports from suppliers, online and offline databases, and subcontractors and the like, but in connection with these arrangements, the Purchaser’s information may be delivered to persons beyond our control. We will not sell the Purchaser’s information to any third parties. We will use the same care and discretion to avoid disclosure of the Purchaser’s confidential information, including any information that is classified as personally identifiable information (PII) under federal and state laws, as we use with our own similar information that we do not wish to have disclosed. We will not disclose any of the Purchaser’s confidential information to any third parties outside our organization and our network of suppliers, outside sources and independent contractors, unless and until (i) the information is or becomes available in the public domain, without our fault; (ii) we receive the same information from another source, without a similar restriction on its use; or (iii) a subpoena or court order or process in any governmental proceeding directs us to disclose the information. We further agree that we will comply with all laws relating to privacy and data protection that are or may be applicable, including but not limited to the Gramm-Leach-Bliley Act (P.L. 106-102), the Fair Credit Reporting Act (15 U.S.C. §1681 et seq.), the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. §1320d), the fair information principles published by the United States Federal Trade Commission, and The Data Protection Act of 1998 and Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and applicable regulations, and any applicable secondary legislation, regulations and orders.
If the Purchaser is a financial institution, which has an obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers’ PII under Title V of the Gramm-Leach-Bliley Act (15 U.S.C. §§ 16801 et seq.) (the “GLBA”), and the Purchaser has informed us of this obligation, then in addition to maintaining confidentiality as required by Section 10 above, any information that the Purchaser supplies to us will remain the Purchaser’s property or the property of the Purchaser’s suppliers and licensors, as the case may be. We will not use any non-public personal information about the Purchaser’s customers in any manner prohibited by the GLBA. We will use the information only to assist us in the preparation of the Report. We will disclose the information only within our organization and our network of suppliers, outside sources and subcontractors and to those employees and affiliates who have a need to know and to other persons only with the Purchaser’s written consent. If we are directed to disclose information in connection with a court or administrative proceeding, we will do so only after giving the Purchaser prompt notice so that the Purchaser may seek a protective order.
We adhere to the U.S. Safe Harbor Privacy Principles of Notice, Choice, Onward Transfer, Security, Data Integrity, Access and Enforcement that apply to certain transfers of data from the European Union and Switzerland, and we have registered with the U.S. Department of Commerce’s Safe Harbor program. To the extent that we make an onward transfer to you of any information, you agree and acknowledge that the subject of our report will have previously had notice of the transfer and had the choice to prevent the transfer by either refusing to sign the disclosure/authorization or by some other appropriate means. To the extent we are deemed to be your agent with respect to the information coming from you and delivered to us that originated in the European Union or Switzerland or in any other jurisdiction applying European Union data principles, we agree that we will provide at least the same level of privacy protection as is required by the Safe Harbor principles. You will not, in any event, be our agent with respect to any of this data.
Upon request from a Purchaser that regularly purchases Reports, we may grant access to the Scherzer Business Network (the “SBN”) and to a dedicated area within the SBN where the Purchaser, among other things, will have access to the Reports it has requested and to information on work in progress for the Purchaser (the “Client Area”). Each Purchaser seeking access will be solely responsible for the use of login identification and passwords. Without limiting the foregoing, the Purchaser will protect the integrity of all passwords in its possession and will not use the login identification or any password in furtherance of any illegal or immoral act. The Purchaser will not (i) attempt to access any area of our computer systems outside the Client Area, (ii) communicate through the SBN by sending any threatening or harassing messages, (iii) operate in any way to infringe on intellectual property rights whether owned or possessed by us, or (iv) attempt to access any personally identifiable information or other confidential information other than that specifically set forth in the Client Area. The Purchaser will be solely responsible for the security, use or misuse of all passwords, and will inform us promptly when any person whose name is associated with a password leaves the Purchaser’s employ or otherwise should have his or her password cancelled. The Purchaser will notify us promptly if the Purchaser becomes aware of any unauthorized use of a password assigned to the Purchaser or of any other breach of security in any way related to the use of a password. Any liability resulting from the misuse of the login identification and any password assigned to the Purchaser shall be the sole responsibility of the Purchaser. All information delivered by us through the SBN is delivered AS IS, WHERE IS, WITH ALL FAULTS, and we expressly disavow any warranty express or implied. The information in the Client Area is for the convenience of the Purchaser and no Report referred to in the Client Area shall be modified in any respect by information in the Client Area. The posting of a Report in the Client Area in all cases is as of the date indicated in the Report and any subsequent delivery of the Report through the Client Area does not modify the Report effective date or imply that a search after that effective date would not reveal other significant information. We reserve the right to cancel a Purchaser’s access to the SBN and any and all passwords with or without notice for any reason and without reason.
We may destroy the Report and all other materials relating to the Report, including materials belonging to the Purchaser, at any time on or after the seventh anniversary of the Effective Date of the Report. We will return the Purchaser’s materials to the Purchaser at the Purchaser’s cost, if the Purchaser requests their return prior to destruction.
The prevailing party in any proceeding concerning a Report, including a proceeding to collect unpaid fees, in addition to other costs and damages, shall be entitled to recover its reasonable attorneys’ fees and costs of collection.
These Terms and Conditions apply to all of our Reports and are incorporated into the Reports as if set forth in full.