1STWEST BACKGROUND DUE DILIGENCE LLC
BACKGROUND REPORT END-USER / PURCHASER TERMS & CONDITIONS
1STWEST strives to deliver accurate and timely information products to assist End-User/Purchaser in making intelligent and informed decisions for a permissible purpose under applicable law. To this end, 1STWEST assembles information from a variety of sources, including databases maintained by consumer reporting agencies containing information from public records, other information repositories and third-party vendors/researchers. End-User/Purchaser understands that these information sources and resources are not maintained by 1STWEST. Therefore, 1STWEST cannot be a guarantor that the information provided from these sources is absolutely accurate or current. Nevertheless, 1STWEST has in place reasonable procedures designed to respond promptly to claims of incorrect or inaccurate information in accordance with applicable law.
Independent Contractor: The End-User/Purchaser and 1STWEST agree that the relationship created by this Agreement is that of independent contractor and not that of employer/employee, principal/agent, partnership, joint venture or representative of the other. Except as authorized hereunder, neither End-User/Purchaser nor 1STWEST shall represent to third parties that it is the employer, employee, principal, agent, joint venture or partner with, or representative of the other party.
Fees and Payment: End-User/Purchaser agrees to pay nonrefundable fees and other charges or costs for 1STWEST’s background check services within 30 days of receipt of an invoice. Any charges or costs, including but not limited to surcharges; court access fees; postage / UPS / Fed Ex fees; third-party fees; and other fees levied by federal, state, county, other governmental agencies, educational institutions, employer verification lines and licensing agencies, etc. incurred by 1STWEST in servicing End-User/Purchaser, will be passed onto End-User. At 1STWEST’s option, payments not received thirty (30) days after the date of the invoice may cause the account to be placed on temporary interruption, with no additional requests being processed until the balance due is paid in full or arrangements have been made with 1STWEST. Accounts with invoices unpaid thirty (30) days or more may be assessed a fee of $25.00 every 30 days from the first invoiced date, as allowed by applicable law. A $20.00 fee may be assessed for all returned checks. If the account goes to collection, End-User agrees to pay all collection expenses, including attorneys’ fees and court costs. End-User/Purchaser agrees that providing credit card information and submitting it electronically to 1STWEST represents a legal authorization to debit the card for the orders placed. End-User agrees that prices for services are subject to change without notice, although 1STWEST will make every reasonable effort to give notice of such change before it becomes effective. Payment is not contingent in any way and is due regardless of whether (a) End User/Purchaser receives reimbursement from a client or other third-party or (b) any transaction for which the Report was ordered is consummated. 1STWEST reserves the right to bill for a Report when it is substantially complete, and End User/Purchaser shall pay 1STWEST 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 us at a future date, and that delivery is in the control of the third-party (e.g., response from a court or other government entity, school, reference, etc.) The person or entity ordering the Report is the person responsible for payment, and not any third-party, unless the third-party is disclosed to 1STWEST in advance, and specifically agrees in writing to these Terms and Conditions, and 1STWEST agrees in writing to this payment arrangement.
Report Delivery: End User/Purchaser may specify delivery of the Background Report by email with link to ShareFile or other secure means. 1STWEST 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 (a) upon receipt by End User/Purchaser when 1STWEST encloses the Report as an attachment to an email and transmits the email from its system or a system designated by End User/ Purchaser addressed to the email address supplied by End User/ Purchaser. In the case of emails, 1STWEST will use reasonable efforts to direct them to the address that End User/Purchaser specifies, but 1STWEST disclaims all liability for any breach of security that is beyond 1STWEST’s control.
Warranties and Remedies and Limitation of Liability: End-User/Purchaser understands that 1STWEST obtains the information reported in its information products from various third-party sources “AS IS”, and therefore is providing the information to End-User/Purchaser “AS IS”. 1STWEST makes no representation or warranty whatsoever, express or implied, including but not limited to, implied warranties of merchantability or fitness for particular purpose, or implied warranties arising from the course of dealing or a course of performance with respect to the accuracy, validity, or completeness of any information products and/or consumer reports, that the information products will meet End-User/Purchaser’s needs, or will be provided on an uninterrupted basis; 1STWEST expressly disclaims any and all such representations and warranties.
1STWEST will prepare the Background Report from sources that we reasonably believe to be reliable. However, 1STWEST is unable to provide any assurances that these sources are complete or without error. 1STWEST does not have access to confidential, private or non-public government records. If an error from one of 1STWEST sources comes to our attention in a way that suggests that a Report is inaccurate in any material respect, 1STWEST will promptly notify End User/Purchaser of the possible error. In all cases, the Report is limited by the scope of 1STWEST’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 particular source was last updated at the time of our research. In general, we consider a source to be current if it has been updated within 30 days of the Report; however, 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.
1STWEST WILL NOT BE LIABLE TO END-USER/PURCHASER FOR DAMAGES, AND END-USER/PURCHASER HEREBY RELEASES 1STWEST FROM ANY LIABILITY FOR DAMAGES ARISING UNDER ANY THEORY OF LEGAL LIABILITY TO THE FULLEST EXTENT THAT END-USER MAY LEGALLY AGREE TO RELEASE 1STWEST FROM LIABILITY FOR SUCH DAMAGES, PROVIDED HOWEVER, THAT END-USER/PURCHASER DOES NOT RELEASE 1STWEST FROM ANY LIABILITY ARISING SOLELY FROM THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF 1STWEST (UNLESS ATTRIBUTED OR IMPUTED TO 1STWEST BY REASON OF ANY ACT OR OMISSION OF END-USER/PURCHASER WHETHER AS AN AGENT OF 1STWEST OR OTHERWISE). IN THE EVENT 1STWEST IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TOBE LIABLE TO END-USER FOR ANY MATTER ARISING UNDER OR RELATING TO THIS AGREEMENT, WHETHER ARISING IN CONTRACT, EQUITY, TORT OR OTHERWISE (INCLUDING WITHOUT LIMITATION ANY CLAIM FOR NEGLIGENCE), THE AMOUNT OF DAMAGES RECOVERABLE AGAINST 1STWEST FOR ALL SUCH MATTERS WILL NOT EXCEED, IN THE AGGREGATE, THE AMOUNT PAID TO 1STWEST BY END-USER/PURCHASER FOR THE SERVICE TO WHICH A GIVEN CLAIM RELATES PROVIDED PURSUANT TO THIS AGREEMENT, AND RECOVERY OF THE AMOUNT IS END-USER/PURCHASER’S SOLE AND EXCLUSIVE REMEDY HEREUNDER, AND IN ADDITION TO ANY OTHER LIMITATION OF LIABILITY OR REMEDY SET FORTH IN THIS AGREEMENT, THE AMOUNT OF DAMAGES RECOVERABLE AGAINST 1STWEST WILL NOT INCLUDE ANY AMOUNTS FOR INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, LOST INCOME, OR LOST SAVINGS, OR FOR ANY AMOUNTS WITH RESPECT TO CLAIMS AGAINST 1STWEST, EVEN IF 1STWEST HAS BEEN ADVISED OF THE POSSIBILITY FOR SUCH DAMAGES.
End-User/Purchaser agrees to indemnify, defend and hold harmless 1STWEST, its successors and assigns, officers, directors, employees, agents vendors, credit bureaus and suppliers from and against any and all claims, suits, proceedings, damages, costs, expenses (including, without limitation, reasonable attorneys’ fees and court costs) brought or suffered by any third party arising or resulting from or otherwise in connection with information products provided by 1STWEST, any breach by End-User/Purchaser of any of its representations, warranties or agreements in this Agreement, or its negligence or willful misconduct.
1STWEST nevertheless agrees to be responsible for actual damages to the extent of and maximum stated herein for third party claims directly resulting from 1STWEST’s sole negligence in assembling the consumer report. 1STWEST does not guarantee End-User/Purchaser’s compliance with all applicable laws in its use of reported information and does not provide legal or other compliance related services upon which End-User/Purchaser may rely in connection with its furnishing of reports. End-User/Purchaser understands that any documents, information, conversations or communications with any representative of 1STWEST regarding searches, verifications or other services offered by 1STWEST or use of such information by End-User/Purchaser are not to be considered legal counsel or legal opinion regarding such use. End-User/Purchaser agrees that it will consult with its own legal or other counsel regarding the use of background screening information, including but not limited to, the legality of using or relying on reported information.
Background Report Cancellation: End User/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 on which we receive the notice of cancellation. We will deliver the information that we have gathered to prepare the Report prior to the date of cancellation. This material will be provided “AS IS” without warranty of any kind, and End User/Purchaser shall assume all risks resulting from the use or disclosure of this material.
Property Rights: End User/Purchaser shall retain ownership rights to the information that End User/Purchaser submits to us to prepare a Background Report. End User/Purchaser grants us the right to use End User/ Purchaser’s information to obtain information from outside sources and prepare the requested Report. We shall retain all ownership rights to a Report and to the information contained therein. We grant to End User/Purchaser the non-exclusive perpetual, royalty-free right to use the Report in the form provided to End User/Purchaser, without modification. End User/Purchaser shall notify us if End User/Purchaser wishes to share the Report with an unrelated third-party, and may not share the Report until such third-party has executed and delivered to us a letter of non-reliance containing terms and conditions acceptable to us. End User/Purchaser shall not publish the Report or any excerpts from the Report or modify the Report in any way, without our prior written consent. End User/ Purchaser shall not have a right to assign or sublicense End User/Purchaser’s rights, except in connection with a sale of substantially all of End User/Purchaser’s business. End User/Purchaser’s use of a Report obtained to screen individuals for employment, insurance or credit is limited by law, and End User/Purchaser. End User/Purchaser shall not use these Reports in any manner that would cause 1STWEST to violate the law.
(FCRA) Fair Credit Reporting Act: End User/Purchaser and 1STWEST may be subject to the requirements of the Fair Credit Reporting Act (15 U.S.C. §§ 1681 et seq.) (FCRA) depending upon Purchaser’s use of a Report. We require End User/ Purchaser to disclose to us the intended use of each Report. If that use falls within the scope of the FCRA, we will comply in all material respects with its provisions to the extent they are imposed upon us as 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. 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 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, or (C) any other purpose authorized under § 1681b of the FCRA. The FCRA prohibits any person 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 End User/ Purchaser requests from us FCRA-regulated Report(s), End User/End User/Purchaser agrees that it is certifying that it has a permissible purpose to procure the Report(s) as provided under the FCRA and that End User/Purchaser will use the Report(s) for no other purpose. The full text of the FCRA and further information about the responsibilities of users of consumer reports are set forth at https://www.ftc.gov/os/statutes/031224fcra.pdf and https://www.consumerfinance.gov/learnmore/
Employment Purpose Reports: Before we begin the preparation of a Background Report on an employee or potential employee, we require End/Purchaser to provide to us a signed client Authorization Form, certifying that (A) End User/Purchaser will request a consumer Report as defined by the FCRA only when End User/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, End User/Purchaser will disclose to the consumer in a written, clear and conspicuous, stand-alone document that End User/Purchaser may obtain a Report for employment purposes; (C) End User/Purchaser will obtain the consumer’s written authorization to obtain or procure the Report; (D) End User/Purchaser will follow the FCRA-prescribed two-step adverse action notice process if End User/Purchaser intends to take adverse action based in whole or in part on the information contained in the Report; (E) End User/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 End User/Purchaser by us, as well as any notices of rights that may be applicable under state or local laws; and (F) End User/Purchaser will not use any information from the Report in violation of any applicable federal or state equal employment opportunity law or regulation. While we believe that there is no conflict between the Employment-Purpose 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.
Confidential Information: To prepare a Background Report, we rely on information provided to us by End User/Purchaser. If End User/Purchaser supplies Social Security or other government-issued identification numbers for use in the preparation of a Report, End User/Purchaser represents and warrants that End User/Purchaser has the required permission from the person identified. We will maintain all information provided by End User/Purchaser in confidence and use the information solely to prepare the Report. We will not sell the End User/Purchaser’s information to any third-parties. We will use the same care and discretion to avoid disclosure of End User/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 End User/Purchaser’s confidential information to any third-parties outside of our organization and our network of suppliers, outside sources and independent contractors, unless and until (A) the information is or becomes available in the public domain, without our fault, (B) we receive 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 us to disclose the information. We 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, and the General Data Protection Regulation 2016/679 of the European Parliament and the Council of the European Union, and the European Commission of April 27, 2016 on the protection of natural persons 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.
Financial Institution Privacy: If End User/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 End User/ Purchaser has informed us of this obligation, then in addition to maintaining confidentiality as required by Section 12 above, any information that End User/Purchaser supplies to us will remain End User/Purchaser’s property or the property of End User/Purchaser’s suppliers and licensors, as the case may be. We will not use any non-public personal information about End User/Purchaser’s customers in any manner prohibited by the GLBA, and 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 End User/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 End User/Purchaser prompt notice so that End User/Purchaser may seek a protective order.
GDPR Compliance: Both End User/Purchaser and 1STWEST shall comply with their respective obligations as set forth in the GDPR. “GDPR” means 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 and on the free movement of such data, known as the General Data Protection Regulation. 1STWEST states that it shall 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 1STWEST. 1STWEST agrees that at any time during which 1STWEST processes Purchaser’s Personal Data of natural persons located in the EEA, 1STWEST will: (i) 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 1STWEST (unless required by law to act without such instructions); (ii) ensure that persons authorized to process the Personal Data on behalf of 1STWEST have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality; (iii) take all measures to protect the security of processing all Personal Data that are required pursuant to Article 32 of the GDPR; (iv) wherever feasible by taking into account the nature of 1STWEST’s processing of Personal Data, assist Purchaser by appropriate technical and organizational measures, to fulfill End User/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; (v) assist End User/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 End User/Purchaser and 1STWEST; (vi) at the choice of End User/Purchaser, delete or return all Personal Data to End User/Purchaser after the end of the provision of services relating to the processing, and deletes existing copies unless Union or Member State law requires storage of the personal data; (vii) to the extent that SI engages a sub-processor, it will only do so with the prior consent of End User/Purchaser and a written contract that complies with all necessary obligations under the GDPR; (viii) make available to End User/Purchaser all information necessary to demonstrate compliance with the obligations set forth under Article 28 of the GDPR; and (ix) allow for and contribute to audits, including inspections, conducted by End User/Purchaser or another auditor mandated by End User/Purchaser.
CALIFORNIA CONSUMER PRIVACY ACT (“CCPA”) Compliance: Both End User/Purchaser and 1STWEST 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”). 1STWEST 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 End User/Purchaser and 1SRWESR. 1STWEST agrees that at any time during which 1STWEST processes End User/Purchaser’s Personal Data of natural persons located in California, 1STWEST will: (i) process the Personal Data only in accordance with the documented instructions of End User/Purchaser, as set forth in any written agreement between End User/Purchaser and 1STWEST (unless required by law to act without such instructions); (ii) ensure that persons authorized to process the Personal Data on behalf of 1STWEST have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality; (iii) take reasonable measures to protect the security of processing all Personal Data; (iv) wherever feasible by taking into account the nature of 1STWEST’s processing of Personal Data, assist End User/Purchaser by appropriate technical and organizational measures, to fulfill End User’s/Purchaser’s obligation to respond to requests for exercising a California consumer’s CCPA rights; (v) to the extent that 1STWEST engages a vendor, it will only do so with a written contract that complies with all necessary obligations under the CCPA; (viii) make available to End User/Purchaser all information necessary to demonstrate compliance with CCPA obligations; and (ix) allow for and contribute to audits, including inspections, conducted by End User/Purchaser or another auditor mandated by End User/Purchaser.
1STWEST SecureStartApp™ Portal: Upon a completed background order form from End User/Purchaser, 1STWEST will e-mail Subject of Investigation a secure portal link to obtain digital signature authorizing a background investigation by the End User/ Purchaser. All information obtained will remain confidential and will not be shared with any third parties.
Record Retention and Destruction: We may destroy the Report and all other materials relating to the Report, including materials belonging to End User/Purchaser, at any time on or after the seventh anniversary of the Effective Date of the Report. We follow the Federal Trade Commission’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.
Miscellaneous: All provisions of these Terms and Conditions, together with requesting emails, and any specific agreements between us and End User/Purchaser relating to a specific Report constitute the full electronic and written agreement between us and the End User/Purchaser (the “Agreement”) and the Agreement shall survive the delivery of the Report, End User/Purchaser’s payment in full for the Report and any termination of our relationship, whether or not it is reflected in a separate agreement. We may amend or modify these Terms and Conditions from time to time, but any modifications or amendments we make shall be effective only after we provide notice to End User/Purchaser and shall apply only to Reports ordered after we have posted on our website the modified or amended Terms and Conditions. Except as provided in the preceding sentence, the provisions of these Terms and Conditions and the Agreement shall not be modified or amended, except by a written or electronic document specifically referring to these Terms and Conditions or to a Report otherwise ordered pursuant to these Terms and Conditions, signed in handwriting or by electronic means by each of us. The Agreement shall be governed by the laws of Colorado in both its interpretation and application, without regard to the conflicts of laws provisions of those laws. The Agreement may be executed in one or more counterparts and may be executed entirely in electronic form. Electronic terms, conditions, signatures and deliveries created or effected by pressing the submit button, by email, by facsimile transmission or by any other means permitted under the Colorado Uniform Electronic Transactions Act or the federal law contained in 15 U.S.C. §§7001 et seq. shall be binding and effective in all respects. The term “person” used in these Terms and Conditions and the Agreement shall mean any individual, corporation, business trust, estate, trust, partnership, limited liability company, association or any other legal or commercial entity. All individuals submitting and signing on behalf of another person shall be deemed to have the authority to make the submission, unless we receive notice before the work commences on the requested Report that the person does not have the required authorization. Either of us shall have the right to terminate this Agreement at any time by notice to the other. The provisions of paragraphs 2, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 21 of these terms and Conditions shall survive termination with respect to previously delivered or canceled Reports. Purchaser’s obligation to pay any outstanding amounts properly charged shall survive any termination.
