Effective August 10, 2021
Scherzer International Corporation (“SI”), a California corporation with a principal place of business in Woodland Hills, California, provides its clients with specialized background screening reports (the “Reports”). Upon request, acceptance, or use of any Reports, the person or entity who orders the Report is the purchaser of the Report (“Purchaser”) and agrees to the following terms and conditions with SI (the “Terms and Conditions”):
SI prices each Report individually and typically confirms that price by email or in a separate agreement before commencing work. SI does not start work on a Report until SI has an agreed price with Purchaser. If an agreement relates to more than one Report, Purchaser shall pay SI for each Report individually upon its delivery. Purchaser’s payment for each Report will be calculated based on the amount allocated to the particular Report in the underlying agreement. Alternatively, or if there is no allocation in the underlying agreement, SI will calculate the price for each Report on a pro-rata basis, based on the total number of Reports ordered. Any change to the foregoing provisions can only be made with SI’s written consent.
Purchaser shall pay each invoice relating to a Report in full within 30 days from the date of the Report. SI reserves the right to bill for a Report when it is substantially complete, and Purchaser shall pay SI even if the Report is designated as “preliminary.” For example, when a Report is complete except for an item that an unrelated third party will deliver to SI at a future date, and that delivery is in the control of the third party (e.g., a response from a court or other government entity, school, reference, etc.) The person or entity ordering the Report is responsible for payment regardless of whether (a) Purchaser receives reimbursement from a client or other third party or (b) any transaction for which the Report was ordered is consummated. Unless SI agrees otherwise in writing, SI will charge a late payment fee on all overdue amounts in an amount that is the lesser of ten percent (10%) per annum or the maximum rate permitted by law.
Purchaser may specify delivery of the Report by email or other reasonable means. SI will deliver the Report either on the date of the Report or on the day after the date of the Report. Delivery will be complete, depending on the method of delivery, as follows: (A) email – upon sending when SI includes the Report as an attachment to an email and transmits the email from its system or a system designated by Purchaser addressed to the email address supplied by Purchaser; (B) – when SI completes a transmission to the fax number designated by Purchaser; or (C) USPS or other delivery service – when the Report is placed by SI with the USPS or other delivery service for delivery to Purchaser at the address provided by Purchaser. In the case of emails, SI will use reasonable efforts to direct them to the email address specified by Purchaser; however, SI disclaims all liability for any security breach or incident regarding the email beyond SI’s control.
SI will prepare the Report from sources that SI reasonably believes to be reliable. However, SI is unable to provide any assurances that these sources are complete or without error. SI does not have access to confidential, private, or non-public government records. If an error from one of SI’s sources comes to SI’s attention in a way that suggests a Report is inaccurate in any material respect, SI will promptly notify Purchaser of the possible error. In all cases, the Report is limited by the scope of SI’s review and research. The Report will indicate the jurisdictions searched and the periods covered, including, in the case of sources that disclose when they were last updated, the date through which the source was last updated at the time of SI’s research. Although SI generally considers sources to be current if they were updated within 30 days of the Report, this does not mean that SI would or would not discover other relevant information if SI searched other sources or waited for updates to occur. On occasion, SI may recommend specific search strategies. Any recommended search strategies are based on SI’s experience; however, SI does not guarantee that all deficiencies will be revealed. A search conducted according to a recommended search strategy remains subject to scope limitations and any problems caused by incomplete or erroneous underlying data. In all cases, SI will attempt to tailor the scope to Purchaser’s particular needs and specified purpose. SI’s only warranty is that SI conducts its work competently and follows all relevant professional standards, laws, and regulations in every material respect. EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION ABOVE, SI MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO ANY SERVICES PROVIDED, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, AND INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
If Purchaser requests a “database-only” Report, Purchaser assumes the risk inherent in these Reports. For example, although the databases SI searches may be labeled as “national” or “statewide,” the databases do not necessarily contain many records available from the official recordkeeper. Also, the databases may contain records that are inaccurate, incomplete, outdated, or inconsistently updated. Further, some databases are searchable by name only, which increases the risk that information cannot be found or accurately identified to a particular subject. If Purchaser wants to obtain the most accurate, comprehensive, and up-to-date search results, the database information located by SI must be verified directly with the official recordkeeper’s records. In the case of Reports containing database searches only, SI will provide information that SI believes to be accurate, relevant, and reportable within the requirements of the Fair Credit Reporting Act and other laws, as applicable. SI will exclude any information that does not meet this standard, including in some instances information that may relate to the subject. If there is any conflict between this section and section 4, this section shall prevail.
SI will indicate the effective date of the Report (the “Effective Date”) in the body of the Report. SI 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 delivery date. SI does not assume any obligation to update the Report, except upon receipt of an additional request from Purchaser. SI will charge a fee to update a Report, and the Report, as updated, shall continue to be subject to these Terms and Conditions.
(a) IN NO EVENT SHALL SI BE LIABLE TO PURCHASER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED AMOUNT PAID OR PAYABLE TO SI FOR THE REPORT GIVING RISE TO THE CLAIM.
(c) The limitation of liability set forth in section 7(b) above shall not apply to liability resulting from SI’s gross negligence or willful misconduct.
Purchaser may cancel any previously ordered Report by written notice to SI. If a Report is canceled, SI will be entitled to payment of a proportionate part of the previously agreed price based on SI reasonable estimate of the percentage of the total work completed through the date on which SI receives the notice of cancellation. SI will deliver the information that SI has gathered to prepare the Report before the date of cancellation. This material will be provided “AS IS” without warranty of any kind, and Purchaser shall assume all risks resulting from the use or disclosure of this material.
Purchaser shall retain ownership rights to the information that Purchaser submits to SI to prepare a Report. Purchaser grants SI the right to use Purchaser’s information to obtain information from outside sources and prepare the requested Report. SI shall retain all ownership rights to a Report and the information contained therein. SI grants to Purchaser the non-exclusive, perpetual, royalty-free right to use the Report in the form provided to Purchaser, without modification. Purchaser shall notify SI if Purchaser wishes to share the Report with an unrelated third party and may not share the Report until the third party executes and delivers to SI a letter of non-reliance containing terms and conditions acceptable to SI. Purchaser shall not publish the Report or any excerpts from the Report or modify the Report in any way without SI’s prior written consent. Purchaser shall not have a right to assign or sublicense Purchaser’s rights, except in connection with a sale of substantially all of Purchaser’s business. Purchaser’s use of a Report obtained to screen individuals for employment, insurance, or credit is limited by law. Purchaser shall not use these Reports in any manner that would cause SI to violate the law.
Purchaser and SI may be subject to the requirements of the Fair Credit Reporting Act (15 USC §§ 1681 et seq.) (FCRA) depending upon Purchaser’s use of a Report. If Purchaser’s intended use is subject to the FCRA, SI shall comply in all material respects with the FCRA provisions that apply to a consumer reporting agency (“CRA”). The FCRA is a federal law that regulates the collection, dissemination, and use of consumer information, including consumer credit information, as well as consumer reports. The FCRA defines “consumer” as an “individual” and a “consumer report” as “any written, oral, or other communication of any information by a CRA bearing on a consumer’s creditworthiness, 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 (which includes hiring, retention, and promotion), or (C) any other purpose authorized by the FCRA (a href=”https://www.law.cornell.edu/uscode/text/15/1681b” target=”_blank”>see 15 U.S. Code § 1681b). The FCRA also prohibits anyone from obtaining a consumer report from a CRA unless the person has certified to the CRA the permissible purpose for which the Report is being obtained and certifies that the Report will not be used for any other purpose. Accordingly, when Purchaser requests from SI an FCRA-regulated Report, Purchaser agrees that it is certifying that it has a permissible purpose to procure the Report and that Purchaser will use the Report for no other purpose. Purchaser agrees to make the certification in writing if requested by SI. Some states have enacted laws similar to the federal FCRA and, when applicable to any Report, SI and Purchaser will comply with those state laws as well. The Federal Trade Commission (FTC) and the Consumer Financial Protection Bureau (CFPB) enforce the FCRA. Further information about FCRA enforcement activity and the responsibilities of users of consumer reports can be found on the FTC website at “50 years of the FCRA>” and on the CFPB website at “Credit reporting requirements (FCRA).”
As noted in section 10 above, the FCRA defines a report used for an employment purpose as a “consumer report.” The term “employment purpose” includes screening an applicant for hiring or rehiring, as well as evaluating an existing employee for retention or promotion. Before SI undertakes to preparation of a Report regarding an applicant for employment or existing employee, SI requires Purchaser to provide to SI a signed client certification agreement in the form set forth at https://portal.scherzer.com/become-a-client/client-agreement (“Employment-Purpose Certification”), certifying that (A) Purchaser will request a consumer Report as defined by the FCRA only when Purchaser intends to use the Report in accordance with the FCRA and its state law counterparts for employment purposes and no other purpose; (B) before ordering the Report, Purchaser will disclose to the consumer in a written, clear and conspicuous, stand-alone document that Purchaser may obtain a Report for employment purposes; (C) Purchaser will obtain the consumer’s written authorization to obtain or procure the Report; (D) Purchaser will follow the FCRA-prescribed two-step adverse action notice process if Purchaser intends to take adverse action based in whole or in part on the information contained in the Report; (E) Purchaser will not take the action without first providing to the consumer a copy of the Report and notice of the consumer’s rights under the FCRA in the form issued by the Consumer Financial Protection Bureau and provided to Purchaser by SI, as well as any notices of rights that may be applicable under state or local laws; and (F) Purchaser will not use any information from the Report in violation of any applicable federal or state equal employment opportunity law or regulation. While SI believes that there is no conflict between the Employment-Purpose Certification and these Terms and Conditions, should a court or arbitrator determine that such a conflict exists, the provisions of these Terms and Conditions shall prevail. In connection with the Purchaser’s request for employment-purpose reports, SI may provide to Purchaser model FCRA disclosure and authorization forms, state and local notices and other documents for Purchaser’s use. These sample documents are provided “AS IS” solely as a courtesy and shall not be construed as legal advice, guidance, or counsel. Laws governing the content of such documents change frequently. Purchaser shall consult with its own legal counsel about Purchaser’s compliance responsibilities under the FCRA and applicable international, federal, state, and local laws, including using the appropriate documents that comply with these laws.
To prepare a Report, SI relies on information provided to SI by Purchaser. If Purchaser supplies Social Security or other government-issued identification numbers for use in the preparation of a Report, Purchaser represents and warrants that Purchaser has the required permission from the person identified. SI will maintain all information provided by Purchaser in confidence and use the information solely to prepare the Report. SI will not sell the Purchaser’s information to any third parties. SI will use the same care and discretion to avoid disclosure of Purchaser’s confidential information, including any information that is classified as personally identifiable information (“PII”) under federal and state laws as SI uses with similar information that SI does not wish to have disclosed. SI will not disclose any of Purchaser’s confidential information to any third parties outside of the SI organization and SI’s network of suppliers, outside sources, and independent contractors, unless and until (A) the information is or becomes available in the public domain, without SI’s fault, (B) SI receives the same information from another source, without a similar restriction on its use, or (C) a subpoena or court order or process in any governmental proceeding directs SI to disclose the information. SI will comply in all material respects with 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) (15 U.S.C. § 6801 et seq.) (GLBA), the FCRA, 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, Data Protection Act of 2018 (UK), and the General Data Protection Regulation (GDPR) – Regulation 2016/679 of the European Parliament and of the Council of the European Union, and the European Commission of April 27, 2016, on the protection of natural persons, the processing of Personal Data (as defined by the GDPR) concerning data subjects (as defined by the GDPR) and on the free movement of such data, applicable regulations, and any applicable secondary legislation, regulations, and orders.
If Purchaser is a financial institution that 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 GLBA and Purchaser has informed SI of this obligation, then in addition to maintaining confidentiality as required by section 12 above, any information that Purchaser supplies to SI will remain Purchaser’s property or the property of Purchaser’s suppliers and licensors, as the case may be. SI will not use any non-public personal information about Purchaser’s customers in any manner prohibited by the GLBA and will use the information only to assist SI in the preparation of the Report. SI will disclose the information only within the SI organization and SI’s network of suppliers, outside sources, and subcontractors and to those employees and affiliates who need to know and to other persons only with Purchaser’s written consent. If SI is directed to disclose information in connection with a court or administrative proceeding, SI will do so only after giving Purchaser prompt notice so that Purchaser may seek a protective order.
As more fully set forth in SI’s EU GDPR Notice (which is incorporated herein by this refence), both Purchaser and SI shall comply with their respective obligations as set forth in the GDPR. SI states that it will only process Personal Data (as defined by the GDPR) concerning Data Subjects (as defined by the GDPR) for the necessary time, nature, and purpose to fulfill its obligations as set forth in a separate written agreement between Purchaser and SI. SI agrees that at any time during which SI processes Purchaser’s Personal Data of natural persons located in the European Economic Area (EEA), SI will: (A) process the Personal Data only in accordance with the documented (i.e., written) instructions of Purchaser, as set forth in any written agreement between Purchaser and SI (unless required by law to act without such instructions); (B) ensure that persons authorized to process the Personal Data on behalf of SI have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality; (C) take all measures to protect the security of processing all Personal Data that is required pursuant to Article 32 of the GDPR; (D) wherever feasible by taking into account the nature of SI’s processing of Personal Data, assist Purchaser by appropriate technical and organizational measures, to fulfill Purchaser’s obligation to respond to requests for exercising the data subject’s rights as provided in Chapter III (Articles 15 through 22) of the GDPR; (E) assist Purchaser in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR taking into account the purpose of the written agreement between Purchaser and SI; (F) at the choice of Purchaser, delete or return all Personal Data to Purchaser after the end of the provision of services relating to the processing, and delete existing copies unless union or member state law requires storage of the personal data; (G) to the extent that SI engages a sub-processor, it will only do so with the prior consent of Purchaser and a written contract that complies with all necessary obligations under the GDPR; (H) make available to Purchaser all information necessary to demonstrate compliance with the obligations set forth under Article 28 of the GDPR; and (I) allow for and contribute to audits, including inspections, conducted by Purchaser or another auditor mandated by Purchaser.
As more fully set forth in SI’s UK-GDPR and DPA Notice (which is incorporated herein by this refence), both Purchaser and SI shall comply with their respective obligations as set forth in the (1) Data Protection Act (DPA) of 2018 to implement the EU’s GDPR into United Kingdom (UK) law; and (2) the UK-GDPR that took effect on January 31, 2020, which alongside the DPA governs all processing of personal data from individuals located inside the UK. The UK-GDPR is significantly derived from the EU’s GDPR and generally the terms and core concepts used in the UK-GDPR have the same meaning as they do in the EU’s GDPR. The rights and obligations of the parties as stated in section 14 are fully incorporated herein by this reference.
SI requires the subject’s consent for any Report that includes in-county searches outside of the United States. SI will provide, as a courtesy, a form of an authorization; however, Purchaser shall rely on its own legal counsel’s advice as to the sufficiency of the authorization to meet Purchaser’s compliance obligations. For database only Reports regarding subjects located in the EEA or the UK, if the Purchaser (or controller of the information) cannot obtain the individual’s consent, Purchaser may still request these Reports if Purchaser has a legitimate interest in obtaining the individual’s Personal Data or needs the data to perform a contract. In such cases, Purchaser certifies to SI that the data subject has received notice of Purchaser’s intention to request such searches. Notice can be given in several ways, including directly to the individual, in an engagement letter or similar document, or by publication on Purchaser’s company’s website. The manner in which the notice is provided is Purchaser’s decision. SI follows the EU-US Privacy Shield and the Swiss-U.S. Privacy Shield Framework (collectively “Privacy Shield”) privacy frameworks when transferring Personal Data of any natural person who is located in the EEA and Switzerland, as more fully set forth in SI’s EU-U.S. and Swiss-U.S. Privacy Shield Policy (which is incorporated herein by this refence). In instances where Purchaser acts as a Controller (defined herein) of the Personal Data, Purchaser agrees to comply with the “notice” and “choice” principles under the Privacy Shield, as set forth by the International Trade Administration of the U.S. Department of Commerce at Requirements of Participation. (“Controller” means a person or organization which, alone or jointly with others, determines the purposes and means of the processing of Personal Data.) Accordingly, when acting as a Controller, Purchaser agrees that (A) Personal Data may only be processed for the limited and specified purposes consistent with the individual’s consent; (B) Purchaser will provide at least the same level of protection as required by the Shield principles; (C) Purchaser will notify SI if Purchaser makes a determination that Purchaser can no longer meet these obligations; and (D) when such a determination is made, Purchaser will cease processing or take other reasonable and appropriate remedial measures to cure the deficiency.
Both Purchaser and SI shall comply with their respective obligations of the California Consumer Privacy Act of 2018 as set forth in California Civil Code §§ 1798.100 – 1798.199, and all subsequent amendments and applicable regulations (CCPA). SI states that it shall only process Personal Information (as defined by the CCPA) that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular California consumer or household for the purpose of fulfilling its obligations as stated in a separate written agreement between Purchaser and SI. SI agrees that at any time during which SI processes Purchaser’s Personal Information of natural persons located in California, (A) SI will process the Personal Information only in accordance with the documented instructions of Purchaser, as set forth in any written agreement between Purchaser and SI (unless required by law to act without such instructions); (B) ensure that persons authorized to process the Personal Information on behalf of SI have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality; (C) take reasonable measures to protect the security of processing all Personal Information; (D) wherever feasible by taking into account the nature of SI’s processing of Personal Information, assist Purchaser by appropriate technical and organizational measures, to fulfill Purchaser’s obligation to respond to requests for exercising a California consumer’s CCPA rights; (E) to the extent that SI engages a vendor, it will only do so with a written contract that complies with all necessary obligations under the CCPA; (F) make available to Purchaser all information necessary to demonstrate compliance with CCPA obligations; and (G) allow for and contribute to audits, including inspections conducted by Purchaser or another auditor mandated by Purchaser.
Upon request from Purchaser that regularly purchases Reports, SI may grant access to Purchaser to the Scherzer Business Network (the “SBN”) to, among other things, submit Report orders. Each Purchaser seeking access shall be solely responsible for the use of login identification and passwords. Without limiting the foregoing, Purchaser shall 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. Purchaser shall not (A) attempt to access any area of SI computer systems outside of its “client area,” (B) communicate through the portal by sending threatening or harassing messages, or (C) operate in any way to infringe on intellectual property rights whether owned or possessed by SI. Purchaser shall be solely responsible for the security, use, or misuse of all passwords and shall inform SI promptly when any person whose name is associated with a password leaves Purchaser’s employ or otherwise should have their password canceled. Purchaser shall notify SI promptly if Purchaser becomes aware of any unauthorized use of a password assigned to 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 Purchaser shall be the sole responsibility of Purchaser. Any information delivered by SI through the SBN is provided AS IS, WHERE IS, WITH ALL FAULTS, and SI expressly disclaims any warranty, express or implied. SI reserves the right to cancel a Purchaser’s access to the SBN and all passwords with or without notice for any reason or no reason.
SI may destroy the Report and all other materials relating to the Report, including materials belonging to Purchaser, at any time on or after the seventh anniversary of the Effective Date of the Report. SI follows the FTC’s disposal rule for records destruction by securely destroying all documents for which recordkeeping requirements have been satisfied through methods such as burning, pulverizing, or shredding, and disposing of electronic information so that it cannot be read or reconstructed.
These Terms and Conditions apply to all Reports and are hereby incorporated into the Reports as if fully set forth therein.