1. AGREEMENT. This End User License Agreement (the “Agreement”) is entered into by and between “Host” (hereinafter defined) and the company (the “Company”) providing access to the credit information retrieval web site (the “Web Site”) and the customer accessing the Web Site, (“Customer,” “You” or “Your”) and is effective (the “Effective Date”) upon Customer’s electronic acceptance of the terms and conditions herein.
2. ACCESS TO THE WEBSITE. Company and Host (hereinafter, the “Parties”), each a “consumer reporting agency” and a “reseller of consumer reporting services” as such terms are currently or hereafter defined in the “FCRA,” hereby grant to Customer, a nontransferable, nonexclusive license to access the Company Web Site, hosted by MicroBilt Corporation, (“Host”) a Delaware corporation with its principal place of business at 1640 Airport Road, Suite 115, Kennesaw, GA 30144, during Customer’s normal hours of operation, solely for the purpose of performing credit research and related work in the regular course of Customer’s business. Customer understands and agrees that its access to and use of consumer credit and other information (“Credit Information”) from one or more of the national consumer credit reporting agencies, Trans Union, Experian, Equifax (“Credit Bureaus”) and/or other consumer or business data (“Data”) and/or industry information (“Industry Information” and together with Credit Information and Data, “Information”) from various Data and Information providers (together with the Credit Bureaus, “Repositories” and each a “Repository”) through the Web Site is subject to requirements imposed upon Customer by the Repositories, as well as applicable local, state and federal laws. Customer agrees to comply with all such Repository requirements, which are incorporated herein by reference. Customer further acknowledges and warrants that: (a) it shall sign an appropriate agreement to obtain its own credit Repository subcodes (“Subcodes”) directly from such credit Repository; (b) it has received copies of, has read, understands and agrees to abide by and accept responsibility for accessing, processing and using the Information in accordance with the Fair Credit Reporting Act, 15 U.S.C. §1681 et. seq., (“FCRA”) as amended by the Fair and Accurate Credit Transactions Act of 2003 (“FACTA”) and thereafter from time to time, the Gramm-Leach-Bliley Act of 1999 (“GLBA”), the Driver Privacy Protection Act (“DPPA”), the laws of the applicable state issuing Motor Vehicle Records (“MVRs”), and with the requirements of the Repositories providing access to the Information, as well as all other applicable local, state and federal laws governing access thereto; (c) compliance and keeping up to date with such requirements and laws is the responsibility of the Customer; (d) in order to receive consumer Information through the Web Site, it shall have and continue to have, a “permissible purpose” as defined under the FCRA and the Parties must otherwise be permitted to provide access to such Information by the Repositories and under the FCRA and other applicable laws; (e) it shall establish and enforce all necessary procedures to prevent unauthorized access to the Information through the Web Site; and (f) Information will not be altered from the form in which it is received. The Parties hereto, as well as the Repositories, reserve the right at any time and without prior notice to limit Customer’s access to the Web Site in order to perform repairs, make modifications or enhancements, or per industry, contractual or legal mandate or as a result of circumstances beyond their reasonable control.
3. INQUIRIES REGARDING INFORMATION. All questions or comments concerning the availability or delivery of the Information should be directed to Company at the address, phone and fax numbers indicated on the Web Site. Questions or comments regarding the material contained within the Information itself should be directed to the Credit Bureau, Repository or other official custodian of the public record. Customer further agrees to provide the relevant Credit Bureau’s or Repository’s name, address and phone number to any subject of the Information who has questions or comments about the Information. During an inquiry, the subject of the Information has the right to learn the name of the Customer ordering the Information and has the right to see the Information ordered by the Customer.
4. PASSWORDS. To permit authorized Customer personnel to process Information through the Web Site, Company shall assign username(s) and password(s) to Customer. Customer is responsible and will be billed for all services used under the usernames assigned to it. If Customer learns or suspects that unauthorized use of its account is taking place, Customer shall notify Company immediately and Company will replace the password.
5. SOLE USE. The Information accessed through the Web Site is for the sole and internal use of the Customer and except as permitted by a separate writing signed by all parties hereto, may not be resold, sub-licensed, distributed or in any way delivered to any third party for any purpose not authorized herein. Customer agrees that it will secure consumer credit and other information on individuals solely for its use in credit, collection, underwriting or employment transactions between itself and the individual to whom information refers and/or for such other “permissible purposes” related to a business transaction as are defined by the FCRA and that it will neither request nor use any such information for any other purpose.
6. OTHER LEGAL REQUIREMENTS. Customer agrees: that it will obtain and retain on file appropriate consumer credit applications or release, and/or authorization forms from any credit applicant, job applicant or other individual on whom such a report is sought; that it will disclose to each such individual as and when required by law, that consumer credit Information and other information (if applicable) will be sought on such individual; that it will advise the individual when credit is denied, terminated or changed or when an application is declined, based in whole or in part on the consumer credit Information (adverse action notices in such case to include name and address of applicable Repository); that it will retain the applications or releases and/or authorization forms described above, along with a copy of the consumer credit Information, for a minimum of sixty (60) months and promptly make available such applications and authorizations/releases to the Parties or Repositories upon request; and that it will take all reasonable precautions to ensure that consumer credit and other Information on individuals will be held in strict confidence, disclosed only to those of its employees whose duties reasonably relate to the legitimate business purpose for which the Information was requested and not disclosed to any other person in whole or in part unless required by valid subpoena or court order.
7. INDEMNIFICATION. Customer agrees to indemnify and hold harmless Company, Host, the Repositories, their parents, affiliates and/or subsidiaries and their officers, directors, employees and shareholders from any and all damages, costs, expenses or penalties (including reasonable attorneys’ fees) and any other liabilities imposed by local, state or federal laws or regulations or claims by any third party which result from or arise out of any breach by Customer by action or omission of any warranty or term contained herein or any misuse by Customer of any Information accessed through the Web Site.
8. PAYMENT. The then current prices for services (“Fees”) are posted on the Web Site, which may be amended from time to time, via Web Site posting, email, fax or mail, with or without notice. Customer agrees to pay for all transactions processed through the Web Site under Customer’s account number, either via a valid and approved credit card issued in Customer’s name or via Automated Clearing House (ACH) and Customer agrees to provide all of the necessary information to effectuate prompt billing and payment. Access privileges to the Web Site may be suspended without notice if payment cannot be processed and/or is not received timely. Customer will assume responsibility for and pay all applicable state, local, federal or other taxes (exclusive of taxes based on the Parties’ net income), which result from this Agreement or the products and services provided hereunder. In the event that payment cannot be processed, Customer will be invoiced, along with a $30.00 service charge and the invoice will be due upon receipt. Invoices not paid in full by Customer upon receipt of the invoice are subject to a late fee of 1.75% per month (or the maximum fee allowable by law, if this is less). Without limiting any other remedies for non payment or late payment of invoices, Customer shall be liable for any and all interest, late fees, costs of collection, court costs and reasonable attorneys’ fees relating to any action or proceeding regarding invoices for services rendered pursuant to this Agreement remaining unpaid after the due date.
9. TERM. This Agreement shall commence as of the Effective Date and shall remain in effect for a minimum initial period of one (1) year (the “Initial Term”) after which it shall automatically and continuously renew for additional one (1) year periods, (the “Renewal Term(s)” and with the Initial Term, each a “Term”) until terminated by either party on sixty (60) days written notice to the other, prior to the end of the then existing Term, or upon termination as set forth below. Obligations for the payment of Fees for services rendered or otherwise owed for the length of the Term of this Agreement and for the continuation of confidentiality and maintenance of Information and records related thereto, however, shall survive any termination.
10. TERMINATION. Either party may terminate this Agreement, should the other party breach any material term or condition herein, provided that the non-breaching party has given written notice of the breach to the breaching party and afforded the breaching party a thirty (30) day opportunity to cure. In whole or in part, the Parties may suspend provision of one or more products or services hereunder and/or terminate this Agreement at any time, with or without notice and with no liability to Customer, if: (a) the Parties reasonably determine that the provision of services hereunder violates any credit reporting or other law; or (b) the Parties are required to do so by any Repository; or (c) the Parties or a Repository eliminates, modifies or restricts a product or service; or (d) Customer violates or upon reasonable belief is suspected of violating a consumer protection regulation, Repository guideline or agreement, the FCRA or any applicable local, state or federal law; or (e) Customer exhibits rude, untruthful, illegal or immoral actions or omissions or there is a general breakdown in the relationship between the parties; or (f) Customer fails to timely pay all undisputed amounts due hereunder, for which the Parties may immediately suspend services; or (g) Customer fails to resolve payment delinquencies within thirty (30) days of written notice, for which the Parties may terminate this Agreement; or (h) Customer’s payments have been delinquent on more than two (2) occasions during the Term of this Agreement, even if previously timely resolved, for which the Parties may immediately terminate this Agreement. All Fees for services rendered during or otherwise owed for the length of the Term of this Agreement shall be immediately due and payable upon termination of this Agreement for any reason.
11. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY. NEITHER THE PARTIES NOR THE REPOSITORIES MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE PERFORMANCE OF THE WEB SITE OR THE DECISIONING, MODEL(S), ADVICE, ASSISTANCE OR MATERIALS SUPPLIED OR PROVIDED THEREUNDER. THE INFORMATION ACCESSED THROUGH THE WEB SITE IS FURNISHED BY VARIOUS REPOSITORIES. THE INFORMATION IS PROVIDED “AS IS” AND NEITHER THE PARTIES, NOR THE REPOSITORIES IN ANY WAY WARRANT OR ASSUME ANY LIABILITY FOR THE ACCURACY AND/OR COMPLETENESS OF ANY INFORMATION ACCESSED THROUGH THE WEB SITE. CUSTOMER ACKNOWLEDGES THAT NEITHER THE PARTIES NOR THE REPOSITORIES WARRANT OR GUARANTEE THE TIMELINESS, CURRENCY, ACCURACY, ADEQUACY, COMPLETENESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE WEB SITE, THE INFORMATION OR ANY OTHER INFORMATION, PRODUCTS OR SERVICES PROVIDED VIA THE WEB SITE AND ALL SUCH WARRANTIES ARE SPECIFICALLY DISCLAIMED.
CUSTOMER ACKNOWLEDGES THAT EVERY BUSINESS DECISION INVOLVES THE ASSUMPTION OF A RISK AND THAT THE PARTIES DO NOT AND WILL NOT UNDERWRITE THAT RISK IN ANY MANNER WHATSOEVER. In the event the Parties are found liable for any cost or damage suffered by Customer, liability is hereby limited to the Fees paid by Customer for the particular Information in question. The remedies set forth in this paragraph and termination of this Agreement are Customer’s exclusive remedies for claims or damages arising out of or relating in any way to this Agreement or the Information, products or services provided hereunder. IN NO EVENT SHALL THE PARTIES OR ANY REPOSITORY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES.
12. OWNERSHIP OF LICENSE, NAMES AND CONFIDENTIAL INFORMATON. Nothing in this Agreement shall be construed to convey to Customer any right, title or ownership interest in the Web Site or in the intellectual property rights relating to the Web Site or the software or documentation relating to such. All rights, title and interest in such, whether or not in the nature of copyright, trade secret, trademark, service mark, trade name, patent or otherwise, vest solely in the proper Parties.
Customer acknowledges that the Parties consider the Web Site and all software, source code, object code, technology and documentation relating to such to include confidential trade secrets, to include confidential information and to be proprietary to the proper Parties.
Each party to this Agreement agrees that all such proprietary and confidential information disclosed to it by the other parties, including without limitation this Agreement, the Information and any usage statistics, shall not be disclosed to any third party, other than the applicable Repository, and shall be used only for the purpose described in this Agreement. Each party to this Agreement agrees to treat all proprietary and confidential information of the other parties in the same manner in which it treats its own information, including prohibition of and sanction against the use of such by any third party for direct or indirect gain and against any employee, agent or associate of a party to this Agreement so revealing and/or using such information for direct or indirect gain.
The Parties’, Credit Bureau and/or Repository products, services, names and marks identified under this Agreement are protected by applicable copyright laws, with all ownership rights retained by the applicable party and/or their vendor. Except as specifically authorized in this Agreement or with prior written consent of the applicable party, the use, publication, duplication, sale or distribution of any such product, service, name or mark contrary to the terms and conditions herein, is strictly prohibited, for which violators may be prosecuted. Customer agrees not to infringe any copyright or other proprietary interest of the Parties, Credit Bureau and/or Repository or any third party vendor of same. The Parties may at any time, after reasonable prior written notice to Customer via mail, fax, email or Website posting, restrict, remove, add to or modify any name or mark of the Parties, Credit Bureau and/or Repository.
13. GENERAL PROVISIONS. This Agreement shall be governed by and construed in accordance with the sole and exclusive law, jurisdiction and venue of the State of New Jersey and may not be assigned in whole or in part by Customer without the prior written consent of the Parties. Except as set forth otherwise herein, all notices required or permitted hereunder shall be in writing and shall be sent via registered or certified US mail return receipt requested, overnight carrier or hand delivery to the other party. Performance by the Parties or the Repositories may be subject to interruption and delay due to causes beyond their reasonable control such as acts of God, government, weather, fire, power or telecommunications failure, inability to obtain supplies, breakdown of equipment or interruption in Host or Credit Bureau services or communications, for which no liability shall be incurred. If any provision of this Agreement is held to be illegal, invalid or unenforceable under the applicable laws of any jurisdiction to which this Agreement is subject, all other provisions shall survive. Each party shall have, in addition to any other relief at law or in equity, the right to injunctive relief to redress any breach of this Agreement by the other party. Customer may not hire any employee of (or contractor/consultant to) the Parties engaged in fulfilling the terms of this Agreement without the prior written consent of the proper Parties. This Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the Parties and Customer.
By electronic signature hereto, Customer agrees, acknowledges and consents that the Information will be for its exclusive use in its credit, insurance, or other business decisions and that all consumer credit reports and allied information will be held in strict confidence. Further, use of such information for unfair or deceptive practices is strictly prohibited and information on current or prospective employees will only be secured by designated authorized representative(s) of Customer. Additionally, Customer hereby expressly nominates and appoints Host as its “Agent” for the sole and limited purpose of obtaining access to Credit Bureau Information over the Internet in accordance with Credit Bureau policies, thereby giving its express permission to the Credit Bureaus to relinquish and provide Host with any and all related information to facilitate same from time to time. Customer employees are forbidden from obtaining Information about themselves, associates or any other employee, except in the performance of their official duties. Finally, Information will not be disclosed to the subject of the information except in the case of adverse action; and in addition such subject(s) will be referred, upon need or legitimate inquiry, to the Credit Bureau office identified on the consumer credit Information.
Customer shall not be permitted access, if it is a business which is considered restricted by Host, the Repositories or legal policy, as amended from time to time. As necessary, in accordance with FCRA, FACTA, GLBA, DPPA and other local, state and federal laws, as well as Credit Bureau, Repository and the Parties’ policies, prior to accessing consumer Credit Information or other Data, Customer agrees to undergo and pay for compliance certification, credentialing, an on-site inspection at its business premises (“Site Survey”), criminal, consumer credit and other background checks on Customer’s business and its principal (owner or officer), performed by ComplyTraq, LLC, to initially determine and review Customer’s procedures, processes and need for accessing, using and storing Information, security practices and other protective measures in place, so as to ensure Customer’s initial compliance with the terms hereof, as well as periodically for reassurance thereafter. Further, the Parties may, at any time after reasonable prior written notice to Customer via mail, fax, email or Website posting, add to, delete or modify any Credit Bureau, Repository or Parties’ contractual or legal compliance / security procedure, which shall be incorporated herein by reference and which shall promptly and fully be adhered to by Customer within a reasonable time after notification, to avoid the suspension of one or more products or services hereunder and/or termination of this Agreement.
During the Term of this Agreement and continuing for one (1) year after termination, the Parties may at any time, after reasonable prior written notice to Customer via mail, fax, email or Website posting and at mutually convenient times during normal business hours, audit Customer’s compliance with the provisions of this Agreement and the legal requirements applicable to it, including the FCRA and any other applicable laws or regulations, via on-site visits, financial and/or document requests, which shall promptly and fully be responded to by Customer within a reasonable time after notification, to avoid the suspension of one or more products or services hereunder and/or termination of this Agreement.
14. ACKNOWLEDGMENT AND ACCEPTANCE. Customer agrees, acknowledges and consents on behalf of his or her business, that it has thoroughly read, understands and agrees with this Agreement and the terms contained herein as written and certifies and represents that he / she is authorized to accept on behalf of the Customer. Customer further agrees, acknowledges and consents that it has independently evaluated and weighed the risks and benefits of participating in this Agreement and Customer has agreed to all the terms of this Agreement without reliance on any representation, guarantee or statement existing outside of this Agreement. The terms set forth in this Agreement constitute the entire understanding and agreement between the Parties and Customer with regard to the subject matter contained herein and any previous or additional or different terms or conditions, verbal or set forth in any other document shall be of no effect. Except as otherwise set forth herein, this Agreement may be modified or waived only in writing, signed by all parties. By its electronic submission, which shall constitute a valid and binding mark, with the same force and effect as a physically signed original, Customer agrees, acknowledges and consents to the terms of this Agreement and Fees and to the electronic delivery and acceptance thereof and all exhibits, documents, notices, updates, addenda and amendments related thereto, as well as any other documents to be delivered by the Parties during the Term of this Agreement. Customer understands that it will need a valid e-mail address and access to the Internet, as well as the appropriate software and/or programs, including, but not limited to, Adobe Acrobat, in order to access this Agreement and Fees electronically. Customer also understands that it may update its information, obtain a full description of systems requirements, revoke this consent, or request one or more paper documents at any time by contacting Company in writing. Shortly after Customer’s electronic acceptance of this Agreement, Company will send an email to Customer, confirming acceptance and providing instructions about obtaining a username and password and further describing how to access and use the Web Site and products and services therein.
