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Last Revision: August 16, 2019
This Terms of Service agreement (the “Agreement” or “Terms”) is between You and Whitepages Consumer, Inc. (“Whitepages”, “we”, “us” or “our”), and sets forth the legally binding terms for your access and use of the Whitepages TenantCheck website and mobile application (“Whitepages TenantCheck”), including any content, functionality and services offered on or through Whitepages TenantCheck.
Please note there are services and content available through Whitepages TenantCheck that are provided by third parties (e.g., landlord-side and prospective tenant-side use cases provided by TransUnion), and Whitepages TenantCheck only provides a processing platform for those services and content (the “Third-Party Content”). All use of Whitepages TenantCheck and Third-Party Content is subject to these Terms, and the terms and conditions governing the Third Party Content with respect to landlords and leasing agents and prospective tenants.
Please read this Agreement carefully before you start using TenantCheck, and pay special attention to the dispute resolution policy in Section 10.10, which requires binding arbitration in most circumstances.
By using TenantCheck, or accepting or agreeing to use any aspect of TenantCheck or the Third Party Content when these options are made available to you, you accept and agree to be bound and abide by these Terms as well as our Privacy Policy, which is incorporated by reference herein.
IF YOU DISAGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR USE WHITEPAGES TENANTCHECK AND ASSOCIATED THIRD-PARTY CONTENT AND SERVICES.
Electronic Communications: By accessing TenantCheck, you consent to have this Agreement provided to you in electronic form and that all agreements, disclosures, and other communications that we may provide to you in electronic form satisfy any legal requirements that our communications with you be in writing. You acknowledge that when you provide us with your contact information, including an email address or telephone number (“Contact Information”), sharing this information with us constitutes a “purchase” or “inquiry” that establishes a business relationship between you and us.
You expressly agree that we may communicate with you about Whitepages TenantCheck, using any or all Contact Information you provide to us. You also represent and warrant that you have the legal authority over any telephone number you provide to us. We may contact you, in person or by recorded message, by e-mail, telephone and/or mobile telephone number (including use of automated dialing equipment), text message (SMS or MMS), or any other means of communication that your telecommunications device may be capable of receiving. You may elect to opt out of receiving marketing emails at any time by following the instructions and link provided in the email. Please allow up to ten business days for our systems to reflect your marketing communication preferences.
1.1 Eligibility to Use Whitepages TenantCheck
Whitepages TenantCheck is offered and available to users who are 18 years of age or older who reside in the United States or its territories, unless you are barred from receiving these services under United States law or the laws of any other jurisdiction. If you are using Whitepages TenantCheck on behalf of your employer, you represent and warrant that you are authorized by them to accept these Terms, and that you will be using Whitepages TenantCheck for internal business use only. We reserve the right to suspend, terminate or deny your access to Whitepages TenantCheck for any (or no) reason, with or without notice and without further obligation.
1.2 Accounts and Security
Account Creation. In order to access and use TenantCheck, you will be asked to register and create a user account (an “Account”). As part of the Account creation process, you will create login credentials by selecting a password, providing an e-mail address, and answering all inquiries marked “required” (such credentials, the “Registration Data”). You agree: (i) that the Registration Data you provide will be true, accurate, current and complete at the time you provide it; (ii) to maintain and update such Registration Data to keep it true, accurate, current and complete; and (iii) that Whitepages may contact you and require you to confirm some or all of your Registration Data before using or continuing to use TenantCheck. We reserve the right to terminate the limited licenses granted to you and to refuse to provide you with any and all current or future use of Whitepages TenantCheck if, in our sole discretion, we determine or are of the opinion that any of your Registration Data is, or appears to be, untrue, inaccurate, not current or incomplete.
If you create or log into Whitepages TenantCheck using your credentials for a social media account such as Facebook, Twitter, LinkedIn or Google+, or link a social media account with your Whitepages account, you may be redirected to a sign-in request page. By signing-in using your credentials for that social media service, you agree that Whitepages may access certain information received from that service, as specified in the sign-in process or otherwise allowed by such social media service. We may use such information to facilitate your log-in and improve and provide Whitepages TenantCheck to you, as further described in our Privacy Policy.
Account Security. You are responsible for maintaining the confidentiality of your account credentials, including your password, and for all activities, charges and/or liabilities that occur from your Account, whether or not authorized by you. You agree that you will not share your username and password, or transfer, sub-license, sell or assign your rights in your Account to any other person or entity. You may not open multiple Accounts for Whitepages TenantCheck, and we will close Accounts associated with the same credit or debit card. You must immediately notify Whitepages of any unauthorized use of your Account, login credentials, or any other breach of security of which you become aware by emailing support@whitepages.com. We will not be liable for any loss or damage arising from your failure to comply with this section. Any fraudulent, abusive, or otherwise illegal activity may be grounds for immediate suspension or termination of your account, at our sole discretion, and we may refer you to appropriate law enforcement agencies. Whitepages has no obligation to retain any data associated with your Account if it is terminated.
Audit. Whitepages reserves the right to audit your use of Whitepages TenantCheck services and content. You agree to cooperate and to provide us all documentation reasonably requested related to the use of your account.
1.3 Privacy Policy
Whitepages maintains a Privacy Policy describing the collection, retention, and use of information related to your use of Whitepages TenantCheck, including your Contact Information and Registration Data. You can find this policy at https://www.whitepages.com/data-policy. Registration Data will be transferred to a third party (TransUnion) so that you may use the landlord- and tenant-side products available through TransUnion.
1.4 Payment Policy
Paid Content. Some of the content, including Third Party Content, offered through Whitepages TenantCheck is only available for a fee (such Content, “Paid Content”). By purchasing Paid Content, you agree to receive Whitepages TenantCheck offered, subject to the billing terms provided to you at that time. Both reports and subscription plans are considered Paid Content.
Payment Method and Provider. You agree to pay for all charges for the purchase of credits or the use of Paid Content using your Account, plus any applicable taxes. All prices are in US Dollars and do not include foreign exchange fees or charges that you may incur from other providers, such as your Internet service or telephone provider. Without limiting any other terms of this Agreement, Whitepages TenantCheck may change fees and charges in effect, or add new fees and charges from time to time, but you will always know the fees that may be charged before you are asked to provide payment.
Purchases made through Whitepages. You authorize us to charge your chosen payment provider for these charges. You also authorize us (or a third party working on our behalf) to collect and store that payment method, along with other related transaction information. We may update your payment method with information provided by the applicable payment service provider, and you authorize us to continue to charge the fee for Paid Content to the updated payment method. The terms of your payment will be based on your method of payment and may be determined by agreements between you and the financial institution, credit card issuer, or other provider of your chosen method of payment (your “Payment Provider”). If your purchase results in an overdraft or other fee from your banking institution, you are responsible for paying that fee.
If Whitepages does not receive payment from your Payment Provider, you agree to pay all amounts due on your Account upon demand. In the event we are advised of insufficient funds in your account or credit to cover your payment by credit card, we may re-submit the payment to your Payment Provider. You are responsible for maintaining a current payment method to continue to access Paid Content, and if we are unable to charge your payment method, your access to Paid Content may be terminated. We reserve the right to correct any errors or mistakes that we may make, even if we have already requested or received payment, and to update your information from available third-party sources.
Cancellation and Refunds. If Subscription Plans are available and you chose to purchase one, you may choose not to renew your Subscription Plan at any time. WE DO NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL-MONTH SUBSCRIPTION PERIODS, OR UNUSED PAID CONTENT. If you cancel your Subscription Plan, your Subscription Plan will automatically terminate at the end of your current billing period. To see when your next payment is due, or to cancel auto-renew, log in to your account and go to your account settings page. You acknowledge that any use of the Paid Content that violates these Terms may result in termination of your access to Paid Content, without eligibility for a refund.
Pre-approval. When you purchase credits or Paid Content with a credit or debit card, we may charge your card $1.00 to verify that your card is active. We will refund that amount to your card in 24 hours or less. The pre-approval amount may not be immediately available to you, even if you cancel the transaction. You may or may not see these transactions on your bill.
2.1 Limited License
Except for allowing you to access and use Whitepages TenantCheck when you use Whitepages TenantCheck, you are not receiving a license or any other rights from Whitepages, including intellectual property or other proprietary rights of Whitepages. You understand that you have no rights to Whitepages TenantCheck or Paid Content or any other Whitepages property except as indicated in these Terms and all rights and licenses not expressly granted to you in this Agreement are retained by Whitepages. To the extent any component of Whitepages TenantCheck or Paid Content may be offered under an open source license, we will make that license available to you and the provisions of that license may expressly override some of these Terms.
Whitepages may revoke or terminate the license granted above in its sole discretion, at any time. Without limiting the generality of the foregoing, we may revoke or terminate the license if you: (i) breach any obligation in this Agreement or in any other agreement between you and us, (ii) violate any policy or guideline applicable to Whitepages TenantCheck or Paid Content, or (iii) use Whitepages TenantCheck or the Paid Content other than as specifically authorized in this Agreement, without our prior written permission.
2.2 No Unauthorized Access
You may not do any of the following while accessing or using Whitepages TenantCheck:
3.1 Fair Credit Reporting Act and Fair Housing Act
Whitepages is not a Consumer Reporting Agency. Whitepages is not a consumer reporting agency for purposes of the Fair Credit Reporting Act, 15 U.S.C. Sec. 1681 et seq. (“FCRA”). However, Whitepages TenantCheck provides a platform for you to access consumer reports from TransUnion, which is a Consumer Reporting Agency as defined by the FCRA. Please see the landlord terms and tenant terms from TransUnion that explain your rights and obligations pursuant to the FCRA.
IF YOU ARE A LANDLORD/LESSOR/LEASING AGENT, YOU ARE EXCLUSIVELY RESPONSIBLE FOR ADHERING TO THE FAIR HOUSING ACT (see http://www.justice.gov/crt/fair-housing-act-2) AS WELL AS ANY STATE OR LOCAL LAWS. We encourage you to seek legal counsel regarding compliance; regardless, under no circumstances shall we provide guidance regarding compliance or otherwise assume liability for fair housing act or other housing legal compliance.
3.2 Marketing and Resale Restrictions
You may not use, or allow a third party to use, Whitepages TenantCheck for any marketing purposes, including making telemarketing calls and transmitting unsolicited advertisements via paper mail, fax or email. You may not use, or allow a third party to use, Whitepages TenantCheck to prepare any database (or compare one database to another) to append, verify or create a new database. Content received through Whitepages TenantCheck may not be published, sold, or rented to any third party.
3.3 Automated Searching
We do not allow scraping or automated collection of our content. If we determine that you are using use automated means (e.g., robot or spider) to retrieve, distribute or index any portion of our, or our licensors’ content, or more than one individual is using your Account at any one time, your Account may be turned off or your access otherwise blocked, without notification, for further investigation. If you feel your Account has been turned off or your access to Whitepages TenantCheck has been blocked in error please contact our Customer Support team.
3.4 General Restrictions
You also agree to adhere to the following:
Whitepages has the right to investigate and bring claims for violations of any of the above to the fullest extent of the law. We may, but are not required to, provide notice of such violations beforehand.
4.1 Third Party Content
You specifically acknowledge that any Third Party Content, including but not exclusively, potential name, address, phone number, any credit history and/or score, rental history, and employment history/verification that is provided by you to Whitepages TenantCheck may be provided by Whitepages to third parties (including but not limited to potential lessors, credit reporting services, third-party vendors, advertisers, and service providers, or other third parties). YOU ARE PROVIDING PERMISSION FOR WHITEPAGES TO COLLECT THIS INFORMATION, AND TO PROVIDE IT TO THIRD PARTIES. ACCORDINGLY, YOU WAIVE ALL CLAIMS OF LIABILITY AGAINST WHITEPAGES FOR SUCH ACTIVITIES.
Credit reporting is conducted through TransUnion Rental Screening Solutions (“TransUnion”). TransUnion provides an internet-based platform to collect data for TransUnion services. IN NO EVENT IS WHITEPAGES ENTERING INTO A CONTRACT WITH YOU WITH RESPECT TO TRANSUNION SERVICES. Any issues or communication regarding TransUnion should be addressed to TransUnion Rental Screening Solutions, Inc., Attn: TURSS GVP, 6430 S. Fiddler’s Green Circle, Suite 500, Greenwood Village, CO 80111.
The Service Agreement for Transunion services for a consumer (usually a potential tenant/applicant/screened party) is attached for your reference. The Service Agreement for TransUnion services for end users (usually a landlord/lessor/leasing agent) is also attached for your reference. Whether either service agreement applies to you is a matter of contractual interpretation between you and TransUnion; regardless, Whitepages has no contractual relationship to you regarding either TransUnion agreement.
Whitepages is not responsible in any way for, and does not make any representation, warranty, guarantee or endorsement regarding any third-party Web sites and resources, including TransUnion’s, which may be accessed through us. In addition, Whitepages does not endorse or adopt, and is not directly or indirectly responsible or liable for: (i) any content, advertising, goods or services, or other materials available on or from such Web sites or resources; or (ii) any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, advertising, goods, services or other materials on or available from such Web sites or resources.
You acknowledge sole responsibility for and assume all risk arising from your use of any third-party Web sites or resources.
5.1 Megan’s Law Disclaimer
Informational Only. The Company and the government agencies that provide this data have not considered or assessed the specific risk that any convicted sex offender displayed in a search of Whitepages TenantCheck will commit another offense, or the nature of any future crimes that may be committed.
Legal Limits on Disclosures. Under some state’s laws, certain registered sex offenders are not subject to public disclosure, so they are not included in sex offender databases. Offenses other than the crimes for which the convicted sex offender is required to register are generally not included in sex offender databases, so the content may not reflect the entire criminal history of a particular individual.
Mistaken Identities. Extreme care must be taken in the use of information because mistaken identification may occur when relying solely upon name, age, and address to identify individuals.
Errors and Omissions. Sex offender data is compiled from reports by local law enforcement. Much of that information is gathered from persons who are required to register as sex offenders and to provide, at least once a year, their addresses and other information to local law enforcement. Because information can change quickly, and there may be gaps in data received, we make no representation, either express or implied, that the information on this site is complete or accurate. Whitepages shall not be held responsible for any errors or omissions in the content, including Third Party Content, or produced by secondary dissemination of this information.
Notice of Corrections. If you believe that any sex offender information provided by Whitepages TenantCheck is in error, please contact the appropriate police or sheriff’s department, or contact the Department of Justice. See http://NSOPW.gov for more information.
Legal and Illegal Uses. The information obtained through Whitepages TenantCheck is made available solely to protect the public. In some states, it is illegal to use information obtained through public records to commit a crime against a registered sex offender or to engage in discrimination or harassment against a registered sex offender. Criminal misuse of this information may subject the person who misuses it to a sentence enhancement, in addition to the punishment for the crime committed.
5.2 California Consumer Notice
Under California Civil Code Section 1789.3, if you are a California resident, you are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
Ownership of Content and Marks. Whitepages TenantCheck, and all material published on Whitepages TenantCheck, including, but not limited to text, photographs, video, graphics, music, images, animations, audio, “applets” incorporated into the software data, sounds, messages, comments, ratings, and other materials that are part of Whitepages TenantCheck, is owned by Whitepages or its licensors, and is protected by copyright, trademark, and other laws of both the United States and foreign countries.
All trademarks, service marks, trade names, and trade dress contained in Whitepages TenantCheck (“Marks”), are proprietary to Whitepages or its licensors, and may not be used by you unless expressly authorized to do so. This prohibition includes, but is not limited to, unauthorized copying or distribution of any of the content displayed or used on Whitepages TenantCheck, framing content, using Meta tags or “hidden text,” creating any unauthorized derivative work, or in any other way exploiting the Marks, the content or Whitepages TenantCheck. You agree you will not reproduce, publish, transmit, perform, sell, create derivative works of, or in any way exploit, any of the Marks, or Whitepages TenantCheck, in whole or in part. You acknowledge that you do not acquire any ownership rights in any content downloaded from Whitepages TenantCheck. All right, title and interest in and to Whitepages TenantCheck is and will remain the exclusive property of Whitepages and its licensors. Any feedback, comments, or suggestions you may provide regarding Whitepages or Whitepages TenantCheck, including correspondence with Customer Service (collectively, “Feedback”), is entirely voluntary. We shall have no obligation to you of any kind, monetary or non-monetary, with respect to Feedback and shall be free to reproduce, use, disclose, exhibit, display, transform, create derivative works from and distribute the Feedback to others without limitation or obligation.
We may use third-party trademarks in Whitepages TenantCheck to identify the owners of these marks. Use of any third-party trademark is intended only to identify the trademark owner and its goods and services, and is not intended to imply any association between the trademark owner and Whitepages.
No Other License Granted. Except for allowing you to use Whitepages TenantCheck as set forth above, when you use Whitepages TenantCheck, you are not receiving a license or any other rights from Whitepages, including intellectual property or other proprietary rights of Whitepages. You understand that you have no rights to Whitepages TenantCheck or any other Whitepages property except as described in these Terms.
Content You Provide or Transmit. In the course of using Whitepages TenantCheck, you may transmit or otherwise make available certain content to us, including information about yourself. You grant us a world-wide, royalty-free, perpetual, irrevocable license to use, reproduce, modify, perform, display, distribute, create derivative works in, store and archive such content. You understand and agree that Whitepages retains the right to reformat, excerpt or translate any content provided or transmitted by you. You also agree that we may collect and use technical information such as your IP address, device ID, and other information including, but not limited to, technical data about your mobile device and system software and peripherals, for product improvement, customer support, and to provide other services to you related to Whitepages TenantCheck. We have no obligation to monitor content you provide and submit through Whitepages TenantCheck, but we do reserve the right to monitor and review such content, for the purpose of operating Whitepages TenantCheck, to ensure your compliance with this Agreement, or to comply with applicable law or the requirement of a court, administrative agency or other governmental body.
Whitepages strives to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act and other applicable intellectual property laws, which may include removing or disabling access to material claimed to be the subject of infringing activity. If you believe that any of the materials available on or through Whitepages TenantCheck infringes on any copyright you own or control, or that any link made available on or through Whitepages TenantCheck directs users to another Web site that contains material that you own or control, please send us a notice of infringement (an “Infringement Notice”). An Infringement Notice must be in writing (sent by fax or regular mail – not by email) and should set forth the items specified below. Please note that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that a product or activity is infringing your copyrights.
To expedite our ability to process an Infringement Notice, please provide the following information:
Sign the Infringement Notice and send the written communication to:
Attn: Venkat Balasubramani
900 First Avenue S., Suite 201
Seattle, WA 98104
Fax: (206) 260-3966
8.1 Special Provisions Applicable to Software
If you download or use certain Services, such as an app or a browser plug-in, you agree that, from time to time, the software may download and install upgrades, updates, and additional features from us in order to improve, enhance, and further develop Whitepages TenantCheck.
8.2 Special Provisions Applicable to Users Outside the United States
The following provisions apply to users who interact with Whitepages outside the United States, its territories and possessions:
Whitepages makes no representation that Whitepages TenantCheck are available for use in any particular location. To the extent you choose to access and/or use Whitepages TenantCheck, you are responsible for compliance with any applicable laws including, but not limited to, applicable local laws.
9.1 Disclaimer of Warranty
YOU USE WHITEPAGES TENANTCHECK AT YOUR SOLE RISK. YOU EXPRESSLY AGREE THAT YOU WILL BE SOLELY RESPONSIBLE FOR (A) ANY DAMAGE, INCLUDING DAMAGE TO YOUR COMPUTER SYSTEM, OR LOSS OF DATA, THAT RESULTS FROM YOUR USE OF WHITEPAGES TENANTCHECK, AND (B) FOR ANY DISCLOSURE OF INFORMATION THAT YOU UNDERTAKE WHILE USING WHITEPAGES TENANTCHECK OR THE CONTENT OBTAINED THEREFROM. TO THE EXTENT PERMITTED APPLICABLE LAW, WHITEPAGES PROVIDES WHITEPAGES TENANTCHECK AND ALL CONTENT, INCLUDING THIRD PARTY CONTENT “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS,” WITHOUT WARRANTY OF ANY KIND.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WHITEPAGES AND ITS AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF WHITEPAGES IS ADVISED OF SUCH PURPOSE), AND IMPLIED WARRANTIES ARISING FROM A PARTICULAR COURSE OF DEALING OR USAGE OR TRADE.
WITHOUT LIMITING THE FOREGOING, NEITHER WHITEPAGES NOR ANY OF ITS AFFILIATES OR LICENSORS, NOR ANY OF THEIR OFFICERS, DIRECTORS, LICENSORS, EMPLOYEES OR REPRESENTATIVES (COLLECTIVELY, THE “PROVIDERS”), REPRESENT OR WARRANT (I) THAT WHITEPAGES TENANTCHECK WILL MEET YOUR REQUIREMENTS OR BE ACCURATE, TRUTHFUL, COMPLETE, RELIABLE, OR ERROR FREE; (II) THAT WHITEPAGES TENANTCHECK WILL ALWAYS BE AVAILABLE OR WILL BE UNINTERRUPTED, ACCESSIBLE, TIMELY, RESPONSIVE, OR SECURE; (III) THAT ANY ERRORS OR DEFECTS WILL BE CORRECTED, OR THAT WHITEPAGES TENANTCHECK WILL BE FREE FROM VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL PROPERTIES; (IV) THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF ANY CONTENT AVAILABLE ON OR THROUGH WHITEPAGES TENANTCHECK; (V) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; OR (VI) THAT ANY CONTENT OBTAINED THROUGH WHITEPAGES TENANTCHECK IS NON-INFRINGING.
NO INFORMATION OR ADVICE PROVIDED THROUGH WHITEPAGES TENANTCHECK, BY THE COMPANY, OR BY THE COMPANY’S EMPLOYEES OR AGENTS SHALL CREATE ANY WARRANTY.
Some states do not allow the exclusion of certain warranties. Accordingly, some of the above limitations and exclusions may not apply to you.
9.2 Limitation of Liability
IN NO EVENT SHALL WHITEPAGES OR ANY OF THE PROVIDERS BE LIABLE, WHETHER UNDER ANY IMPLIED INDEMNITIES OR OTHERWISE, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE ARISING OUT OF OR IN ANY WAY CONNECTED WITH: (I) USE OF WHITEPAGES TENANTCHECK, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE CAUSED BY ANY RELIANCE ON, OR ANY DELAYS, INACCURACIES, ERRORS OR OMISSIONS IN, WHITEPAGES TENANTCHECK, WHETHER PROVIDED BY WHITEPAGES OR BY THIRD PARTIES; (II) ANY USE OR INABILITY TO USE OR ACCESS WHITEPAGES TENANTCHECK FOR ANY REASON, (III) UNAUTHORIZED ACCESS, USE, OR ALTERATION OF YOUR SEARCHES, OR ACCOUNT INFORMATION, (IV) ANY CONTENT PROVIDED BY OR CONDUCT OF ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF THIRD PARTIES; OR (IV) ANY CONTENT OR SERVICES DISCUSSED, PURCHASED OR OBTAINED, DIRECTLY OR INDIRECTLY, THROUGH WHITEPAGES TENANTCHECK, EVEN IF WHITEPAGES AND/OR THE PROVIDERS ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF WHITEPAGES OR THE PROVIDERS ARISING OUT OF OR RELATING TO THE USE OF WHITEPAGES TENANTCHECK AND/OR THE CONTENT OBTAINED THEREFROM EXCEED THE GREATER OF U.S. $100.00 OR THE AMOUNT YOU PAY TO WHITEPAGES, IF ANY, IN THE PAST SIX MONTHS, FOR ACCESS TO OR USE OF WHITEPAGES TENANTCHECK.
Some states do not allow the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and exclusions may not apply to you.
9.3 Indemnification
You agree to hold harmless, defend, and indemnify Whitepages and the Providers from all liabilities, claims, demands and expenses, (including, but not limited to, reasonable attorneys’ fees), that are due to, arise from, or otherwise relate to your use or misuse of Whitepages TenantCheck or the Third Party Content including, without limitation, any actual or threatened suit, demand or claim made against Whitepages or any Provider that arises out of or relates to: (i) any intellectual property rights or other proprietary rights of any third party, and (ii) your breach of this Agreement. Whitepages may assume exclusive control of any defense of any matter subject to indemnification by you (which shall not excuse your obligation to indemnify Whitepages), and you agree to cooperate with Whitepages in such event. You shall not settle any dispute subject to your indemnification under this Agreement without prior written consent from Whitepages.
10.1 Controlling Law
These Terms will be governed by the laws of the State of Washington without regard to or application of its conflict of law provisions or your state or country of residence.
10.2 Severability and Waiver.
Waiver. Whitepages’s failure to enforce a provision of this Agreement is not a waiver of its right to do so later or to enforce any other provision.
Severability. If any provision of these Terms of Service are held to be unenforceable for any reason, such provision will be reformed only to the extent necessary to make it enforceable, and such decision will not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances.
10.3 Assignment
You may not assign any of your rights or obligations under this Agreement, and any such attempt will be void. Whitepages may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with Whitepages TenantCheck.
10.4 Changes to the Service
We reserve the right, at any time and in our sole discretion, to amend, modify, suspend, or terminate Whitepages TenantCheck and any part thereof, without notice to you. Whitepages shall have no liability to you or any other person or entity for any modification, suspension, termination, or loss of information.
10.5 Termination
These Terms will remain in full force and effect while you use Whitepages TenantCheck. If you wish to terminate this Agreement or your Account, you may simply discontinue using Whitepages TenantCheck. Whitepages may terminate your access to all or any part of Whitepages TenantCheck or Content at any time, with or without cause, with or without notice, effective immediately. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, payment obligations, warranty disclaimers, release of claims, indemnity, and limitations of liability.
Nothing in this section shall affect Whitepages’ right to change, limit, or stop the provision of Whitepages TenantCheck without prior notice, as provided in section 10.4.
10.6 No Third Party Beneficiaries
Except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement.
10.7 Headings
The headings of the sections contained in these Terms are for convenience only and shall not be deemed to control or affect the meaning or construction of any provision of the Terms.
10.8 Changes to Terms
We reserve the right to change these Terms of Service at any time by posting the most current version of the Terms with a new Effective Date shown. It is your responsibility to review these Terms of Service prior to each use of Whitepages TenantCheck, and by continuing to use Whitepages TenantCheck, you agree to any changes. If you do not agree to these Terms, you must discontinue using Whitepages TenantCheck immediately.
10.9 Additional Terms
Special terms or rules may apply to some services offered on our Web site or mobile applications, such as rules for special promotions or other features or activities. Any such terms are in addition to these Terms. In the event of any conflict or inconsistency between these Terms, our Privacy Policy, and any rules, restrictions, limitations, terms and/or conditions that may be communicated to users of the Service, Whitepages shall determine which rules, restrictions, limitations, terms and/or conditions shall control and prevail, in our sole discretion, and you specifically waive any right to challenge or dispute such determination.
10.10 Dispute Resolution: Agreement to Arbitrate
Please read the following sections carefully, as they affect your rights.
ANY DISPUTE, CLAIM OR CONTROVERSY BETWEEN YOU AND WHITEPAGES RELATING IN ANY WAY TO THIS AGREEMENT OR YOUR ACCESS TO OR USE OF WHITEPAGES TENANTCHECK OR CONTENT OBTAINED THEREFROM, WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT (INCLUDING, WITHOUT LIMITATION, FRAUD, MISREPRESENTATION, FRAUDULENT INDUCEMENT, OR NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY (“DISPUTE”), WILL BE RESOLVED BY BINDING ARBITRATION IF IT CANNOT BE RESOLVED THROUGH NEGOTIATION AS SET FORTH IN THIS SECTION 10.10. ARBITRATION MEANS THAT THE DISPUTE WILL BE RESOLVED BY A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY. THE ARBITRATOR WILL DECIDE ALL THRESHOLD QUESTIONS, INCLUDING BUT NOT LIMITED TO, ISSUES RELATING TO THE ENFORCEABILITY, REVOCABILITY, OR VALIDITY OF THIS SECTION 10.10 AND WHETHER EITHER PARTY LACKS STANDING TO ASSERT THEIR CLAIM(S).
NOTWITHSTANDING THE FOREGOING, YOU AND WHITEPAGES AGREE THAT (A) ANY DISPUTE THAT MAY BE BROUGHT IN SMALL CLAIMS COURT MAY BE INSTITUTED IN SMALL CLAIMS COURT IN YOUR COUNTY OF RESIDENCE OR KING COUNTY, WASHINGTON INSTEAD OF BEING RESOLVED THROUGH ARBITRATION, AND (B) EITHER PARTY MAY SEEK INJUNCTIVE RELIEF IN ANY COURT OF COMPETENT JURISDICTION TO (I) ENJOIN INFRINGEMENT OR OTHER MISUSE OF ANY PARTY’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING, WITHOUT LIMITATION, VIOLATION OF ANY DATA USE RESTRICTIONS CONTAINED IN THIS AGREEMENT OR OTHER MISUSE OF THE THIRD PARTY CONTENT), OR (II) ENJOIN SCRAPING, WEB CRAWLING OR UNAUTHORIZED ACCESS TO EITHER PARTY’S WEB SITES OR SERVICES.
If you have a Dispute with Whitepages, you must send written notice describing the Dispute to Whitepages to allow Whitepages an opportunity to resolve the Dispute informally through negotiation. You must send your notice to the following address: Whitepages, Inc., Attn: Legal Department, 1301 Fifth Ave, Suite 1600, Seattle, WA 98101. If we have a Dispute with you, we will send written notice (e-mail or letter) describing the Dispute to you. The parties agree to negotiate resolution of a Dispute in good faith for no fewer than 45 days after notice of a Dispute has been provided. If the Dispute is not resolved within 45 days from receipt of notice of the Dispute, you or Whitepages may proceed to have the Dispute resolved through arbitration as each party’s exclusive Dispute resolution process (except for the limited exceptions set forth above).
Any arbitration, if required, will be conducted by AAA under its then current and applicable rules and procedures, which are located at http://www.adr.org, and these rules will govern the payment of all filing, administration, and arbitrator fees, unless this Section 10.10 expressly provides otherwise. The party submitting a dispute for resolution through arbitration will pay AAA’s filing fee. Each party will pay their pro rata share of administration and arbitrator fees under AAA’s rules; provided however, if AAA’s Consumer Arbitration Rules are applicable, Whitepages will make arrangements to pay all necessary administration and arbitrator fees directly to AAA. If AAA’s Consumer Arbitration Rules are applicable and you lose the claim(s) you assert against Whitepages, you agree to reimburse Whitepages for your pro rata share of administration and arbitrator fees; provided however, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Whitepages will pay as much of the administration and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to litigation. If the arbitrator determines the claim(s) you assert in the arbitration are frivolous or that you asserted the claim(s) for harassment or any other improper purpose, you agree to reimburse Whitepages for all administration and arbitrator fees paid by Whitepages. The party that ultimately loses will pay the reasonable documented attorneys’ fees and costs of both parties.
The arbitration shall be held in Seattle, Washington, in English. If the value of the relief sought is US$25,000 or less, the arbitration will be conducted based solely on written submissions; provided, however, either of us may request to have the arbitration conducted by telephone or in-person hearing, which request shall be subject to the arbitrator’s discretion. Attendance at any in-person hearing may be made by telephone by you and/or us, unless the arbitrator requires otherwise. Keeping in mind that arbitration must remain a fast and economical process, no discovery or exchange of information between us is contemplated. Upon request by either of us, the arbitrator may direct specific information be exchanged and may issue a protective order limiting the use and disclosure of exchanged information; provided however, the scope of information the arbitrator may direct to be exchanged shall be limited to what the arbitrator determines is needed to provide for a fundamentally fair process. Either party may file a dispositive motion to narrow the issues.
YOU AND WHITEPAGES EACH WAIVE ALL RIGHTS TO CONDUCT DISPUTE RESOLUTION PROCEEDINGS IN A CLASS ACTION OR CONSOLIDATED ACTION. YOU AND WHITEPAGES EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS, WITH THE SOLE EXCEPTION OF REPRESENTATIVE SUITS THAT ARE PERMITTED BY, AND DEEMED UNWAIVABLE UNDER, STATE LAW. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.
If any clause within this Section 10.10 (other than the class action waiver clause above) is determined to be illegal or unenforceable, that clause will be severed from this Section 10.10, and the remainder of this Section will be given full effect. If the arbitrator determines this Section 10.10 is unenforceable, invalid, or has been revoked as to any claim(s), then the Dispute as to such claim(s) will be decided by the courts in the state of Washington, King County, or the United States District Court for the Western District of Washington, and the parties irrevocably submit to the exclusive jurisdiction of such courts. If the class action waiver clause is determined to be illegal or unenforceable, this entire Section 10.10 will be unenforceable, and the Dispute will be decided by the courts of the state of Washington, King County, or the United States District Court for the Western District of Washington, and the parties irrevocably submit to the exclusive jurisdiction of such courts.
The Federal Arbitration Act, applicable federal law, and the laws of the state of Washington, without regard to principles of conflict of laws, will govern this Agreement and any Dispute that might arise between Whitepages and you.
10.11 Entire Agreement
These Terms, Payment Policy, and Privacy Policy are the entire and exclusive agreement between you and Whitepages (excluding any services for which you have a separate agreement with Whitepages that is explicitly in addition to or in place of these Terms), and these Terms supersede and replace any prior agreements between Whitepages and you regarding Whitepages TenantCheck. For the avoidance of doubt, our Whitepages Pro® product is not considered a Service hereunder, and its use is not subject to these Terms.
Welcome to TransUnion® SmartMove® ("SmartMove" or "Service"). SmartMove makes its information available through the Whitepages integration platform (the "Site"). SmartMove is a product of TransUnion Rental Screening Solutions ("TURSS"). This Terms of Use Agreement ("Agreement") contains the terms and conditions upon which you ("you," or the "member") may access SmartMove’s features and information through the Site. You agree to be legally bound by these terms.
General Terms
TURSS provides access to SmartMove to allow you to authorize and agree to provide your credit and public record information ("Credit Information") to third parties through this platform. From time to time TURSS and or the owner of this Site may revise these terms and conditions. Revisions will be effective when posted or as otherwise stated. Additional terms and conditions may apply to specifics of other products and services, or to the participation in future contests or surveys.
After agreeing to the terms of this Agreement, you will be requested to authenticate your identity (using information from public records and credit information related to the identifying information that you provide (e.g., Social Security Number, Date of Birth) ("Identifying Information")) and acknowledge that upon successful completion of identity verification, your Credit Information will be scored by TURSS and provided to the third parties indicated on your request via this Site. You acknowledge and agree that TURSS and the Site provider are not responsible for any actions or decisions made by any third parties with whom you have agreed to share your Credit Information.
The images, text, screens, web pages, materials, data, content and other information ("Content") used and displayed through the Site or, if applicable, SmartMove, are the property of TURSS or its licensors and are protected by copyright, trademark and other laws. In addition to its rights in individual elements of the Content available through the Site, TURSS owns intellectual property rights in the selection, coordination, arrangement and enhancement of such Content. None of the Content may be copied, displayed, distributed, downloaded, licensed, modified, published, reposted, reproduced, reused, sold, transmitted, used to create a derivative work or otherwise used for public or commercial purposes without the express written permission of TURSS or the owner of the Content.
Fees and Payments.
You are responsible for the full payment of any SmartMove services obtained through the Site. The fees associated with the Services are described on the Site and are incorporated by reference into this Agreement. The fees shall be collected by the Site via credit card.
Disclaimer of Warranties and Liabilities
SMARTMOVE AND THE SITE, INCLUDING ALL CONTENT, CREDIT INFORMATION, PRODUCTS AND SERVICES MADE AVAILABLE ON OR ACCESSED THROUGH THIS SITE, ARE PROVIDED TO YOU "AS IS". TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, NEITHER TURSS NOR ITS AFFILIATES NOR ITS DATA PROVIDERS MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER AS TO THE CONTENT, CREDIT INFORMATION, PRODUCTS OR SERVICES AVAILABLE ON OR ACCESSED THROUGH SMARTMOVE AND THE SITE, THAT YOU OR A THIRD PARTY WILL HAVE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO SMARTMOVE OR THE SITE, PRODUCTS OR SERVICES OR THAT SMARTMOVE, THE SITE, PRODUCTS OR SERVICES WILL BE ERROR-FREE. IN ADDITION, TURSS AND ITS AFFILIATES AND ITS DATA PROVIDERS DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND INFORMATIONAL CONTENT. THEREFORE, YOU AGREE THAT YOUR ACCESS TO AND USE OF SMARTMOVE, THE SITE, PRODUCTS, SERVICES AND CONTENT ARE AT YOUR OWN RISK. ADDITIONALLY, YOU AGREE THAT THE CREDIT INFORMATION THAT YOU AUTHORIZE TURSS TO SHARE WITH THIRD PARTIES IS NOT ERROR-FREE AND MAY INCLUDE INFORMATION THAT DOES NOT PERTAIN TO YOU AND TURSS AND ITS AFFILIATES AND ITS DATA PROVIDERS ARE NOT RESPONSIBLE OR LIABLE FOR ANY ACTION OR DECISION TAKEN BY A THIRD PARTY BASED ON THE CREDIT INFORMATION. BY USING OUR SITE, YOU ACKNOWLEDGE AND AGREE THAT NEITHER TURSS NOR ITS AFFILIATES NOR ITS DATA PROVIDERS HAVE ANY LIABILITY TO YOU (WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR ACCESS TO OR USE OF SMARTMOVE, THE SITE, CONTENT, PRODUCTS OR SERVICES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING LIABILITY ASSOCIATED WITH ANY VIRUSES WHICH MAY INFECT YOUR COMPUTER EQUIPMENT. YOU ACKNOWLEDGE AND AGREE THAT TURSS’S DATA PROVIDERS ARE A THIRD-PARTY BENEFICIARY OF THE PROVISIONS OF THIS SECTION, WITH RIGHT OF ENFORCEMENT.
TURSS reserves the right to publish or use any responses, questions or comments emailed to this address for promotional or other purposes without any further permission, notice or payment of any kind to the sender. All such submissions are the property of TURSS.
Registration and Accurate Information
If you decide to register on the Site or use SmartMove through the Site, you may be required to register, provide personal information, and select a user name and password. You agree to provide accurate information in your registration and not to share your password with third parties. You agree not to impersonate another person or to select or use a user name or password of another person. You agree to notify TURSS promptly of any unauthorized use of your account and of any loss, theft or disclosure of your password. Failure to comply with these requirements shall constitute a breach of these terms and conditions and shall constitute grounds for immediate termination of your account and your right to use the Site.
Our Privacy Policy
By using Smartmove via the Site, or purchasing SmartMove products or services, you agree that we may use and share your personal information in accordance with the terms of our Privacy Statement. Our privacy statement can be reached at https://www.mysmartmove.com/privacy-policy.html.
Fair Credit Reporting Act
The Fair Credit Reporting Act allows you to obtain from each credit reporting agency a disclosure of all the information in your credit file at the time of the request. Full disclosure of information in your file at a credit reporting agency must be obtained directly from such credit reporting agency. The credit reports provided or requested through our Site are not intended to constitute the disclosure of information by a credit reporting agency as required by the Fair Credit Reporting Act or similar laws.
You are entitled to receive a free copy of your credit report from a credit reporting agency if:
In addition, if you are a resident of Colorado, Maine, Maryland, Massachusetts, New Jersey, or Vermont, you may receive one free copy of your credit report each year from the credit bureaus. If you are a resident of Georgia, you may receive two free copies of your credit report each year from the credit bureaus. Otherwise, a consumer reporting agency may impose a reasonable charge for providing you with a copy of your credit report.
The Fair Credit Reporting Act provides that you may dispute inaccurate or incomplete information in your credit report. YOU ARE NOT REQUIRED TO PURCHASE YOUR CREDIT REPORT FROM THE SITE OR SMARTMOVE IN ORDER TO DISPUTE INACCURATE OR INCOMPLETE INFORMATION IN YOUR REPORT OR TO RECEIVE A COPY OF YOUR REPORT FROM EQUIFAX, EXPERIAN OR TRANSUNION, THE THREE NATIONAL CREDIT REPORTING AGENCIES, OR FROM ANY OTHER CREDIT REPORTING AGENCY.
Term and Termination; Modification
This Agreement will take effect at the time you click "I Accept," and shall terminate (a) when either party gives notice of its intention to terminate to the other party hereto, to TURSS via the toll-free number set forth on the Site, or (b) if TURSS discontinues providing SmartMove access via the Site.
TURSS may (i) change the terms of this Agreement or the feature of the Service, or (ii) cause the Site provider to change the Site, including eliminating or discontinuing any content or feature of the Site related to the Service, restricting the hours of availability, or limiting the amount of use permitted, by posting notice of such modification on a page of the Site or notifying you on your account dashboard before the modification takes effect. All changes shall be effective immediately upon posting of such notice. If you use SmartMove and/or the Site after TURSS has notified you of a change in the Agreement you agree to be bound by all of the changes. You are expected to review the Site periodically to ensure familiarity with any posted notices of modification.
Policy Regarding Children
We define children as individuals under the age of 18. The Site is not intended for the use of children and we do not intend to collect information about children through the Site. You must be at least 18 to access any products through the Site.
Notices
You should send any notices or other communications regarding SmartMove or the Site to TransUnion Rental Screening Solutions, 6430 S. Fiddler’s Green Circle, Suite 500, Greenwood Village, CO 80111.
Except as otherwise provided, we may send any notices to you to the most recent e-mail address you have provided to the Site provider or us or, if you have not provided an e-mail address, to any e-mail or postal address that we believe is your address. If you wish to update your registration information, please log in to your account on the Site and visit the 'Your Account' section from the main menu.
Applicable Law
The laws applicable to the interpretation of these terms and conditions shall be the laws of the State of Illinois, USA, and applicable federal law, without regard to any conflict of law provisions. TURSS can provide credit reports only on individuals who have established credit in the United States. Those who choose to access this Site from outside the United States do so on their own initiative and are responsible for compliance with local laws. You agree that any and all disputes arising under this Agreement or out of TURSS's provision of the Services to you, if submitted to a court of law, shall be submitted to the state and federal courts of Northern District of Illinois, USA.
Permission Statement
You understand that by clicking on the "I Accept" button immediately following this notice, you are providing "written instructions" to TransUnion Rental Screening Solutions to obtain information from your personal credit profile from TransUnion and public records sources. You authorize TransUnion Rental Screening Solutions to obtain such information and to score such information and provide it to certain identified third parties who are requesting this information about you. Before you may use TransUnion SmartMove, we must obtain "written instructions" from you to give us permission to obtain your TransUnion credit history and public records report and share them with certain identified third parties.
Permission Confirmation
Please confirm your authorization for TransUnion Rental Screening Solutions to obtain your credit profile from TransUnion and public records sources and to score such information and provide it to certain identified third parties who are requesting this information about you.
This is the service agreement to use TransUnion® SmartMove® (“Service Agreement”) made available via the Whitepages integration platform that you are accessing (the “Site”). Your acknowledgement and agreement to these terms, as well as the terms and conditions of the Site, are required to access and/or use TransUnion SmartMove. You agree to be legally bound by these terms. This Service Agreement is made and entered into as by and between TransUnion Rental Screening Solutions, Inc. (“TURSS") and you/your company (“Subscriber”, “You” or “Property Owner”). In consideration of the promises and mutual covenants hereinafter set forth, TURSS and Subscriber hereto agree as follows:
Scope of Agreement. This Agreement applies to any of those information services which Subscriber may desire to receive from TURSS and which TURSS offers to Subscriber via this Site. Such information services shall herein be collectively referred to as "Services" and all information derived therefrom shall be collectively referred to as "Services Information." Subscriber enters in this Agreement on behalf of itself and its affiliates under common ownership and control, all of which are referred to collectively as Subscriber.
Subscriber's business. Subscriber certifies that it is utilizing the Services solely for assisting with making a residential or storage leasing decision.
Consumer Reporting Services.
1.1 Consumer Report Information. TURSS makes certain consumer report information services from consumer reporting databases, including but not limited to consumer credit reports and criminal record reports (“Consumer Report Information”) available to its customers who have a permissible purpose for receiving such information in accordance with the Fair Credit Reporting Act (15 U.S.C. §1681 et seq.) including, without limitation, all amendments thereto ("FCRA"). For the purposes of this Agreement, the term “adverse action” shall have the same meaning as that term is defined in the FCRA.
1.2 FCRA Penalties. THE FCRA PROVIDES THAT ANY PERSON WHO KNOWINGLY AND WILLFULLY OBTAINS INFORMATION ON A CONSUMER FROM A CONSUMER REPORTING AGENCY UNDER FALSE PRETENSES SHALL BE FINED UNDER TITLE 18, OR IMPRISONED NOT MORE THAN TWO YEARS, OR BOTH.
1.3 Subscriber Certifications. Subscriber certifies that it shall request Consumer Report Information pursuant to the written authorization of the consumer who is the subject of the Consumer Report Information. Subscriber certifies that each such written authorization will expressly authorize Subscriber to obtain the Consumer Report Information, and will contain at a minimum the subject’s name, address, social security number (where available) and signature. Subscriber shall use such Consumer Report Information solely for Subscriber’s exclusive one-time use and pursuant to the consumer’s written authorization, use such information solely for assisting with making a residential or storage leasing decision and for no other purpose; subject however, to the additional restrictions set forth herein. Moreover, if requested by TURSS, Subscriber agrees to, and shall, individually certify the permissible purpose for each Consumer Report Information it requests. Such individual certification shall be made by Subscriber pursuant to instructions provided from time to time to Subscriber by TURSS. Nothing in this certification, or elsewhere in this Agreement, is intended to allow Subscriber to purchase Consumer Report Information for the purpose of selling or giving the report, or information contained in or derived from it, to the subject of the report, or to any other third party, and Subscriber expressly agrees to refrain from such conduct.
1.4 Recommendations. Using potential applicant and/or tenant consumer information provided to TURSS by Subscriber ("Applicant/Tenant Information"), TURSS will obtain consumer reports relating to each applicant and/or tenant and TURSS will evaluate the consumer reports ("Applicant/Tenant Reviews"). Based on the results of the Applicant/Tenant Reviews, TURSS will provide to Subscriber a recommendation with respect to the applicant and/or tenant, based on the initial thresholds established by TURSS (“Recommendation”). Such thresholds, delivery specifications and decision criteria, and any changes thereto, shall be supplied or confirmed by Subscriber in writing. As part of the Recommendation service, TURSS shall also provide to Subscriber a sample letter containing information as to why the Applicant and/or Tenant was or was not approved. It is Subscriber’s obligation, however, to ensure compliance with any legal obligations when providing any information to an applicant and/or tenant.
1.4.2 All rental decisions are to be made by Subscriber. Subscriber acknowledges and agrees that TURSS provides only Recommendations as to actions concerning an applicant or a tenant, and further acknowledges and agrees that all decisions of whether or not to rent property to a particular applicant or tenant, as well as the length of and terms of any such rental, will be made by Subscriber. TURSS shall have no liability to Subscriber or to any applicant, tenant or other person or entity for any rental, or the failure to rent, to any applicant or tenant, or the terms of any such rental, regardless of whether or not Subscriber's decision was based on Recommendations, Consumer Report Information, public records, or other information provided to Subscriber by TURSS.
1.5 Compliance with Laws. Subscriber shall be responsible for compliance with all applicable federal (including, but not limited to the FCRA) and state laws, rules, regulations and judicial actions, as now or as may become effective, to which it is subject.
1.6 Subscriber certifies it shall comply with all requirements related to the public record information (“Public Record Information”) and other applicable data use restrictions described at rentalscreening.transunion.com/datasourcerequirements, which may be altered by TURSS from time to time, and certifies that any distribution of the Public Record Information or a Consumer Report shall comply with and contain the state-specific requirements described at rentalscreening.transunion.com/datasourcerequirements, which may be altered by TURSS from time to time.
2 Ancillary Services
2.1 Fraud Prevention Services. TURSS offers several fraud prevention services that evaluate inquiry input elements against other input elements and/or against proprietary databases, to identify potential discrepancies and/or inaccuracies. Fraud prevention service messages may be delivered with Consumer Report Information as a convenience, but are not part of a consumer’s file nor are they intended to be consumer reports. In the event Subscriber obtains any fraud prevention services from TURSS in conjunction with Consumer Report Information or as a standalone service, Subscriber shall not use the fraud prevention services, in whole or in part, as a factor in establishing an individual’s creditworthiness or eligibility for credit or insurance, or employment, nor for any other purposes under the FCRA. Moreover, Subscriber shall not take any adverse action, which is based in whole or in part on the fraud prevention services, against any consumer. As a result of information obtained from the fraud prevention services, it is understood that Subscriber may choose to obtain additional information from one or more additional independent sources. Any action or decision as to any individual which is taken or made by Subscriber based solely on such additional information obtained from such additional independent source(s) shall not be deemed prohibited by this paragraph.
2.2 Scores. Subscriber may request, in writing, that TURSS provide Subscriber certain scores (e.g. scores received from credit reporting agencies (“Bureau Score”), SmartMove Score, or CreditRetrieverSM Score), in connection with the delivery of a consumer report obtained hereunder, collectively referred to herein as “Scores,” for Subscriber’s exclusive use. TURSS agrees to perform such processing as reasonably practicable. Subscriber shall use Scores only in accordance with its permissible purpose under the FCRA and may store Scores solely for Subscriber’s own use in furtherance of Subscriber’s original purpose for obtaining the Scores. Subscriber shall not use the Scores for model development or model calibration and shall not reverse engineer the Scores.
2.2.1 Adverse Action Factors. Subscriber recognizes that factors other than the Scores may be considered in making a decision as to a consumer. Such other factors include, but are not limited to, the credit report, the individual account history, application information, and economic factors. TURSS may provide score reason codes to Subscriber, which are designed to indicate the principal factors that contributed to the Bureau Score, and may be disclosed to consumers as the reasons for taking adverse action, as required by the Equal Credit Opportunity Act ("ECOA") and its implementing regulation (“Reg. B”). The Bureau Score itself, when accompanied by the corresponding reason codes, may also be disclosed to the consumer who is the subject of the Bureau Score. However, the Bureau Score itself may not be used as the reason for adverse action under Reg. B.
2.2.2 Confidentiality of Scores. The CreditRetrieverSM Score and the SmartMove Score are proprietary to TURSS and the BureauScore is proprietary to the credit reporting agency supplying the Bureau Score and, accordingly, without appropriate prior written consent, neither the CreditRetrieverSM Score, the SmartMove Score, or the Bureau Score may be sold, licensed, copied, reused, disclosed, reproduced, revealed or made accessible, in whole or in part, to any Person except: (a) as expressly permitted herein; (b) to those employees of Subscriber with a need to know and in the course of their employment; (c) to those third party processing agents of Subscriber who have executed an agreement that limits the use of the Scores by the third party only to the use permitted to Subscriber and contains the prohibitions set forth herein regarding model development, model calibration and reverse engineering; (d) when accompanied by the corresponding reason codes, to the consumer who is the subject of the Score; or (e) as required by law. Subscriber shall not, nor permit any third party to, publicly disseminate any results of the validations or other reports derived from the Scores without prior written consent.
2.2.3 Score Performance. Certain Scores are implemented with standard minimum exclusion criteria. TURSS shall not be liable to Subscriber for any claim, injury or damage suffered directly or indirectly by Subscriber as a result of any Subscriber requested changes to the exclusion criteria which result in normally excluded records being scored by such Scores. TURSS warrants that the scoring algorithms used in the computation of the scoring services provided under this Agreement are empirically derived from credit data and are a demonstrably and statistically sound method of rank-ordering candidate records with respect to the purpose of the Scores when applied to the population for which they were developed, and that no scoring algorithm used by a Score uses a "prohibited basis" as that term is defined in ECOA and Reg. B promulgated thereunder. The Bureau Score may appear on a credit report for convenience only, but is not a part of the credit report nor does it add to the information in the report on which it is based.
2.3 Third Party Scores and Other Third Party Services. TURSS has the capability to offer scores derived from models built jointly with third parties, and other services provided by third parties, which are subject to additional warranties offered or terms imposed by such third parties. If desired by Subscriber, such third party scores and services shall be made available pursuant to separate agreement, which shall be appended as a schedule to this Agreement.
2.4 Subscriber Forms. TURSS may offer the ability to electronically maintain and make available to Subscriber, at Subscriber’s request and direction, Subscriber’s forms including, but not limited to, lease forms, lease addenda and consumer correspondence. Subscriber acknowledges and agrees that it is Subscriber’s obligation to ensure the accuracy and completeness of the forms and to ensure its compliance with all applicable laws related to the use of such forms. TURSS makes no representations or warranties as to the content or use of such forms.
2.5 Subscriber Access. Subscriber agrees that TURSS may store data provided to Subscriber hereunder on behalf of Subscriber to be used by Subscriber solely for audit purposes and for no other purpose. All data stored on behalf of Subscriber by TURSS shall be owned by Subscriber and may not be modified in any manner.
3.1 Confidentiality. Subscriber shall hold all Services Information in confidence and shall not disclose the Services to any third party, except as required by law (i.e., an order of a court or data request from an administrative or governmental agency with competent jurisdiction) to be disclosed; provided however, that Subscriber shall provide TURSS ten (10) days’ prior written notice before the disclosure of such information pursuant to this Paragraph 5.1. However, this restriction shall not prohibit Subscriber from disclosing to the subject of the Consumer Report Information, who is the subject of an adverse action, the content of the Consumer Report Information as it relates to any such adverse action.
3.2 Web Site Access. TURSS will provide Subscriber with access to the Service via the Site so that Subscriber may, by accessing the Site, (i) initiate Applicant Reviews and Tenant Reviews and (ii) obtain or review TURSS's Recommendations to Subscriber. Subscriber represents and warrants that it will use its best reasonable efforts to ensure that: (1) only authorized Subscriber employees have access to the Services through workstations; (2) TURSS Services obtained by Subscriber via the Site are not accessible by unauthorized parties via Subscriber's connection to the Internet or otherwise; (3) all passwords are kept confidential and secure by such authorized Subscriber employees (e.g., Subscriber shall ensure that passwords are not stored on any workstation nor other storage and retrieval system and/or media and that Internet browser caching functionality is not used to store passwords; (4) each User ID and password is used solely by the authorized Subscriber employee to whom such User ID and password was issued; and (5) all documentation and other materials provided by TURSS to Subscriber under this Agreement are held in confidence by Subscriber (and accessible only to those Subscriber employees who Subscriber has authorized to use the Services via the Site). In the event of any compromise of security involving User Ids or Passwords, Subscriber shall immediately notify TURSS.
3.3 Safeguards. Each party shall implement, and shall take measures to maintain, reasonable and appropriate administrative, technical, and physical security safeguards ("Safeguards”) to (a) insure the security and confidentiality of non-public personal information; (b) protect against anticipated threats or hazards to the security or integrity of non-public personal information; and (c) protect against unauthorized access or use of non-public personal information that could result in substantial harm or inconvenience to any consumer. When a consumer’s first name or first initial and last name in combination with a social security number, driver’s license or Identification Card Number, or account number, credit or debit card number, in combination with any required security code, access code, or password that would permit access to an individual’s financial account (“Personal Information”), is delivered to Subscriber unencrypted, Subscriber shall implement and maintain reasonable security procedures and practices appropriate to the nature of the information and to protect the Personal Information from unauthorized access, destruction, use, modification, or disclosure. Subscriber shall notify TURSS in writing as soon as practicable but in no event later than forty-eight hours after which Subscriber becomes aware of any potential and/or actual misappropriation of, and/or any unauthorized disclosures of, any information provided to Subscriber by TURSS, including, but not limited to theft, loss or interception of Consumer Report Information, unauthorized use of TURSS subscriber codes and passwords, unauthorized entry to the facilities where TURSS data may have been accessible, or unauthorized release of or access to TURSS data by an employee or Agent of Subscriber. Subscriber shall fully cooperate with TURSS in any communications to consumers regarding the data incident and mitigating, to the extent practicable, any damages due to such misappropriation and/or unauthorized disclosure. Such cooperation shall include, but not necessarily be limited to, allowing TURSS to participate in the investigation of the cause and extent of such misappropriation and/or unauthorized disclosure. Such cooperation shall not relieve Subscriber of any liability it may have as a result of such a misappropriation and/or unauthorized disclosure. Moreover, without TURSS’s prior consent, Subscriber shall make no public notification, including but not limited to press releases or consumer notifications, of the potential or actual occurrence of such misappropriation and/or unauthorized disclosure of any such information provided to Subscriber.
3.4 Authorized Requests. Subscriber shall use the Services: (a) for its certified permissible purpose above to assist in making a residential or storage leasing decision; (b) solely for Subscriber’s exclusive one-time use; and (c) subject to the terms and conditions of this Agreement. Subscriber shall not request, obtain or use Services for any other purpose including, but not limited to, for the purpose of selling, leasing, renting or otherwise providing information obtained under this Agreement to any other party, whether alone, in conjunction with Subscriber’s own data, or otherwise in any service which is derived from the Services. Services shall be requested by and disclosed by Subscriber to only Subscriber’s designated and authorized employees having a need to know and only to the extent necessary to enable Subscriber to use the Services in accordance with this Agreement. Subscriber shall ensure that such Subscriber designated and authorized employees shall not attempt to obtain any Services on themselves, associates, or any other person except in the exercise of their official duties.
3.5 Third Party Intermediaries. In the event Subscriber will utilize a third party intermediary (e.g., Internet service provider or other network provider) for the purpose of receiving Services via the Site, Subscriber shall first enter into an agreement with such third party under which such third party acts solely as a network conduit for the delivery of the Services to Subscriber and which prohibits such third party from using, or otherwise accessing, the Services for any other purpose. Subscriber shall be solely liable for any actions or omissions of such third parties which result in a breach of this Agreement.
3.6 Rights to Services. Subscriber shall not attempt, directly or indirectly, to reverse engineer, decompile, or disassemble Services or any confidential or proprietary criteria developed or used by TURSS relating to the Services provided under this Agreement. Except as explicitly set forth in this Agreement, the entire right, title and interest in and to the Services shall at all times vest exclusively in TURSS. TURSS reserves all rights not explicitly granted to Subscriber under this Agreement.
3.6.1 Notwithstanding anything to the contrary in the Agreement, TURSS hereby grants a limited, non-exclusive, non-transferable license to the Public Record Information, and the Services derived from the Public Record Information. The material content of the Public Record Information and the Consumer Reports delivered by TURSS via the Site may not be altered, edited, or otherwise changed without the prior written consent from TURSS.
3.7 Fees and Payments. Though Subscriber has the option to request that the applicant/prospective tenant pay for the Services, the Subscriber is ultimately responsible for the full payment of the Services. The fees associated with the Services are as stated on the Site and are incorporated by reference. Upon delivery of the Services, Subscriber will be responsible for immediate payment, and outstanding amounts will be subject to a late charge of one and one-half percent (1.5%) per month (18% per year) or the maximum allowed by law, whichever is less. If collection efforts are required, Subscriber shall pay all costs of collection, including reasonable attorney’s fees. Any periodic and/or minimum Subscriber fees under this Agreement are non-refundable, in whole or in part, in the event of a termination of this Agreement. TURSS and the Site provider reserve the right to change the fees and charges from time to time, with such changes referenced on the Site.
3.7.1 In addition, in the event that TURSS’s cost of rendering Services increases as a result of federal, state or local laws, ordinances or other regulatory, administrative or governmental acts, then TURSS may implement a surcharge subject to the following: (a) any surcharge will be applicable generally to TURSS’s customers; and (b) any surcharge will be applied only to services pertaining to consumers in the geographic area so affected. A legislative surcharge is imposed on certain types of reports pertaining to consumers residing in the United States, and an additional surcharge is imposed on certain reports pertaining to only Colorado residents.
3.8 Term, Termination and Survival. The term of this Agreement shall commence upon the agreeing to the terms of this Agreement and shall remain in effect until terminated by any party hereto for any reason whatsoever.
3.8.1 With the exception of TURSS's obligation to provide Services under this Agreement, all provisions of this Agreement shall survive any such termination of this Agreement including, but not limited to, all restrictions on Subscriber's use of Services Information. Moreover, any such termination shall not relieve Subscriber of any fees or other payments due to TURSS through the date of any such termination nor affect any rights, duties or obligations of either party that accrue prior to the effective date of any such termination.
3.9 Limited Warranty. TURSS represents and warrants that the Services will be provided in a professional and workmanlike manner consistent with industry standards. TURSS DOES NOT WARRANT THE SERVICES TO BE UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICES WILL MEET SUBSCRIBER'S REQUIREMENTS. THE WARRANTY SET FORTH IN THIS SECTION 3.9 IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES THAT MIGHT BE IMPLIED FROM A COURSE OF PERFORMANCE OR DEALING OR TRADE USAGE OR WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
3.10 Limitation of Liability. TURSS’S SOLE LIABILITY, AND SUBSCRIBER’S SOLE REMEDY, FOR VIOLATIONS OF THIS AGREEMENT BY TURSS OR FOR BREACH OF TURSS’S OBLIGATIONS SHALL BE THE CORRECTION OF ANY DEFECTIVE SERVICE OR THE REFUND OF FEES PAID FOR SAME.
3.10.1 IN NO EVENT SHALL TURSS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF GOOD WILL AND LOST PROFITS OR REVENUE, WHETHER OR NOT SUCH LOSS OR DAMAGE IS BASED IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, INDEMNITY, OR OTHERWISE, EVEN IF TURSS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
3.10.2 ADDITIONALLY, TURSS SHALL NOT BE LIABLE TO SUBSCRIBER FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT BROUGHT MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION HAS ACCRUED.
3.10.3 Notwithstanding anything to the contrary in the Agreement, use of Public Record Information, and the Services derived from the Public Record Information, from TURSS shall be subject to the following: THE PUBLIC RECORD INFORMATION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TURSS AND ITS DATA PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PUBLIC RECORD INFORMATION AND DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES WITH RESPECT THERETO. WITHOUT LIMITING THE FOREGOING, TURSS AND ITS DATA PROVIDERS DO NOT GUARANTEE OR WARRANT THE ACCURACY, TIMELINESS, COMPLETENESS, CURRENTNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OF THE PUBLIC RECORD INFORMATION AND SHALL NOT BE LIABLE FOR ANY LOSS OR INJURY ARISING OUT OF OR CAUSED IN WHOLE OR IN PART BY USE OF THE PUBLIC RECORD INFORMATION. Subscriber shall indemnify, defend, and hold harmless TURSS and its data providers, from and against any and all liabilities, damages, losses, claims, costs, fees, and expenses (including but not limited to reasonable attorney and expert witness fees and expenses) arising out of or related to Subscriber’s use of the Public Record Information obtained from TURSS. Subscriber acknowledges and agrees that TURSS’s data providers are a third party beneficiary of the provisions of this section, with rights of enforcement.
3.11 Assignment and Subcontracting. Neither party may assign or otherwise transfer this Agreement, in whole or in part without the prior written consent of the other. Notwithstanding the foregoing, TURSS may assign or transfer this Agreement to a wholly-owned subsidiary or in the event of a purchase of all or substantially all of TURSS’s assets or in the event of a corporate form reorganization (e.g., LLC to C-Corporation). Moreover, TURSS shall have the unrestricted right to subcontract the Services to be provided to Subscriber by TURSS under this Agreement; provided however, that such subcontracting shall not relieve TURSS of its obligations under this Agreement. The limited warranty and limitation of liability provisions set forth in this Agreement shall also apply for the benefit of TURSS’s licensors, subcontractors and agents.
3.12 No Waiver. No failure on the part of either party to enforce any covenant, agreement, or condition of this Agreement shall operate as a discharge of such covenant, agreement, or condition, or render the same invalid, or impair the right of either party to enforce the same in the event of any subsequent breach by the other party.
3.13 Independent Contractors. This Agreement is not intended to create or evidence any employer-employee arrangement, agency, partnership, joint venture, or similar relationship.
3.14 Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.
3.15 Force Majeure. TURSS shall not be liable for any delay in performance or failure to perform under this Agreement if such delay or failure us caused by conditions beyond TURSS’ reasonable control.
3.16 Audit Rights. During the term of this Agreement and for a period of five (5) years thereafter, TURSS may audit Subscriber’s policies, procedures and records which pertain to this Agreement, to ensure compliance with this Agreement, upon reasonable notice and during normal business hours.
3.17 Governing Law. This Agreement shall be construed and governed by the laws of the State of Illinois, without reference to the choice of law principles thereof.
3.18 Notices. Subscriber acknowledges and agrees that any notice provided by TURSS to any electronic mail address provided by Subscriber shall suffice for proper notice under this Agreement. Additionally, all of Subscriber’s communications or notices required or permitted by this Agreement shall be sufficiently given for all purposes hereunder if given in writing and delivered to TURSS (i) personally, (ii) by United States first class mail, (iii) by reputable overnight delivery service, (iv) by electronic mail, or (v) by facsimile. All notices delivered in accordance with this Section for TURSS shall be sent to the appropriate address or number, as set forth below:
TURSS: TransUnion Rental Screening Solutions
6430 S. Fiddler’s Green Circle, Suite 500, Greenwood Village, CO 80111
3.19 Trademarks. Both Subscriber and TURSS shall submit to the other party for written approval, prior to use, distribution, or disclosure, any material including, but not limited to, all advertising, promotion, or publicity in which any trade name, trademark, service mark, and/or logo (hereinafter collectively referred to as the “Marks") of the other party are used (the "Materials"). Both parties shall have the right to require, at each party's respective discretion and as communicated in writing, the correction or deletion of any misleading, false, or objectionable material from any Materials. Neither party shall remove any of the other party’s Marks from any information materials or reports provided to the other party and shall comply with the other party’s instructions with respect to the use of any such Marks. Moreover, when using the other party’s Marks pursuant to this Agreement, a party shall take all reasonable measures required to protect the other party’s rights in such Marks, including, but not limited to, the inclusion of a prominent legend identifying such Marks as the property of the other party. In using each other’s Marks pursuant to this Agreement, each party acknowledges and agrees that (i) the other party’s Marks are and shall remain the sole properties of the other party, (ii) nothing in this Agreement shall confer in a party any right of ownership in the other party’s Marks, and (iii) neither party shall contest the validity of the other party’s Marks. Notwithstanding anything in this Agreement to the contrary, without the prior written approval of Subscriber, TURSS shall have the right to disclose to third parties Subscriber’s marks in consumer credit reports containing Subscriber’s account information.
3.20 By signing this Agreement, Subscriber acknowledges receipt of a copy of the Federal Trade Commission’s “Notice to Users of Consumer Reports: Obligations of Users Under the FCRA" and a copy of the Federal Trade Commission's "Notices to Furnishers of Information: Obligations of Furnishers Under the FCRA".
3.21 The individual executing this Agreement has direct knowledge of all facts certified and the authority to both execute this Agreement on behalf of Subscriber and bind Subscriber to the terms of this Agreement.
3.22 ID Manager Service: In connection with the Services, Subscriber desires to obtain TransUnion’s ID Manager Service pursuant to the following additional terms and conditions:
3.22.1 With respect to request for ID Manager Service, Subscriber hereby certifies that its use of the ID Manager Service will be requested, obtained and used for one or more of the following permitted uses as described in, and as may be interpreted from time to time, by competent legislative, regulatory or judicial authority, as being encompassed by, Section (6802) (e) of the Gramm-Leach-Bliley Act (GLB), Title V, Subtitle A, Financial Privacy (15 U.S.C. § 6801-6809) and the United States Federal Trade Commission rules promulgated thereunder.
o To protect against or prevent actual fraud, unauthorized transactions, claims or other liability; or
o To comply with Federal, State or local laws, rules and other applicable legal requirements.
3.22.2 Subscriber further represents that:
(a) Subscriber shall not request, obtain or use such ID Manager Service for any other purpose including, but not limited to, in whole or in part, as a factor in establishing an individual’s creditworthiness or eligibility for (i) credit or insurance, or (ii) employment, nor for any other purpose under the FCRA. Moreover, Subscriber shall not take any adverse action, which is based in whole or in part on the ID Manager Service, against any consumer.
(b) Subscriber shall comply with all other applicable federal, state and local laws, statutes, rules and regulations including, but not limited to, the Drivers Privacy Protection Act.
3.22.3 To the extent that the ID Manager Service requested by Subscriber utilize, in whole or in part, Consumer Reports as defined in the FCRA, Subscriber certifies that it will request and use each such request ID Manager Service solely for one of the permissible purposes certified below:
o In connection with a credit transaction involving the individual on whom the information is to be furnished and involving the extension of credit to the individual.
o Pursuant to the written authorization of the individual who is subject of the individual ID Manager Service request.
o In connection with a business transaction initiated by the individual.
3.22.4 Subscriber expressly acknowledges and agrees that where the ID Manager Service to be provided to Subscriber under this Agreement utilizes Consumer Reports TURSS expresses no opinion regarding a Consumer’s creditworthiness in rendering such ID Manager Service. Moreover, in the event Subscriber’s requested ID Manager Service utilize, in whole or in part, Consumer Reports, without limiting Subscriber’s obligations set forth elsewhere in this Agreement, Subscriber shall comply with any and all adverse action notice requirements of the FCRA.
Entire Agreement. THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ALL EXHIBITS AND ATTACHMENTS HERETO, CONSTITUTES THE ENTIRE AGREEMENT BETWEEN TURSS AND SUBSCRIBER AND SUPERSEDES ALL PREVIOUS AGREEMENTS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, SOLELY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. THIS AGREEMENT MAY NOT BE ALTERED, AMENDED, OR MODIFIED EXCEPT BY WRITTEN INSTRUMENT SIGNED BY THE DULY AUTHORIZED REPRESENTATIVES OF BOTH PARTIES.
All users of consumer reports must comply with all applicable regulations. Information about applicable regulations currently in effect can be found at the Consumer Financial Protection Bureau’s website, www.consumerfinance.gov/learnmore
The Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §1681-1681y, requires that this notice be provided to inform users of consumer reports of their legal obligations. State law may impose additional requirements. The text of the FCRA is set forth in full at the Consumer Financial Protection Bureau’s (“CFPB”) website at www.consumerfinance.gov/learnmore. At the end of this document is a list of United States Code citations for the FCRA. Other information about user duties is also available at the Bureau’s website. Users must consult the relevant provisions of the FCRA for details about their obligations under the FCRA.
The first section of this summary sets forth the responsibilities imposed by the FCRA on all users of consumer reports. The subsequent sections discuss the duties of users of reports that contain specific types of information, or that are used for certain purposes, and the legal consequences of violations. If you are a furnisher of information to a consumer reporting agency (“CRA”), you have additional obligations and will receive a separate notice from the CRA describing your duties as a furnisher.
Congress has limited the use of consumer reports to protect consumers’ privacy. All users must have a permissible purpose under the FCRA to obtain a consumer report. Section 604 contains a list of the permissible purposes under the law. These are:
Section 604(a)(3)(C)
604(a)(3)(E)
In addition, creditors and insurers may obtain certain consumer report information for the purpose of making "prescreened" unsolicited offers of credit or insurance. Section 604(c). The particular obligations of users of "prescreened" information are described in Section VII below.
Section 604(f) prohibits any person from obtaining a consumer report from a consumer reporting agency (“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.
The term “adverse action” is defined very broadly by Section 603. “Adverse actions” include all business, credit, and employment actions affecting consumers that can be considered to have a negative impact as defined by Section 603(k) of the FCRA – such as denying or canceling credit or insurance, or denying employment or promotion. No adverse action occurs in a credit transaction where the creditor makes a counteroffer that is accepted by the consumer.
If a user takes any type of adverse action as defined by the FCRA that is based at least in part on information contained in a consumer report, Section 615(a) requires the user to notify the consumer. The notification may be done in writing, orally, or by electronic means. It must include the following:
Consumer Reporting Agencies
If a person denies (or increases the charge for) credit for personal, family, or household purposes based either wholly or partly upon information from a person other than a CRA, and the information is the type of consumer information covered by the FCRA, Section 615(b)(1) requires that the user clearly and accurately disclose to the consumer his or her right to be told the nature of the information that was relied upon if the consumer makes a written request within sixty (60) days of notification. The user must provide the disclosure within a reasonable period of time following the consumer's written request.
If a person takes an adverse action involving insurance, employment, or a credit transaction initiated by the consumer, based on information of the type covered by the FCRA, and this information was obtained from an entity affiliated with the user of the information by common ownership or control, Section 615(b)(2) requires the user to notify the consumer of the adverse action. The notice must inform the consumer that he or she may obtain a disclosure of the nature of the information relied upon by making a written request within 60 days of receiving the adverse action notice. If the consumer makes such a request, the user must disclose the nature of the information not later than 30 days after receiving the request. If consumer report information is shared among affiliates and then used for an adverse action, the user must make an adverse action disclosure set forth in I.C.1 above.
When a consumer has placed a fraud alert, including one relating to identity theft, or an active duty military alert with a nationwide consumer reporting agency as defined in Section 603(p) and resellers, Section 605A(h) imposes limitations on users of reports obtained from the consumer reporting agency in certain circumstances, including the establishment of a new credit plan and the issuance of additional credit cards. For initial fraud alerts and active duty alerts, the user must have reasonable policies and procedures in place to form a belief that the user knows the identity of the applicant or contact the consumer at a telephone number specified by the consumer; in the case of extended fraud alerts, the user must contact the consumer in accordance with the contact information provided in the consumer's alert.
Section 605(h) requires nationwide CRAs, as defined in Section 603(p), to notify users that request reports when the address for a consumer provided by the user in requesting the report is substantially different from the addresses in the consumer's file. When this occurs, users must comply with regulations specifying the procedures to be followed. Federal regulations are available at www.consumerfinance.gov/learnmor.
Section 628 requires that all users of consumer report information have in place procedures to properly dispose of records containing this information. Federal regulations have been issued that cover disposal.
If a person uses a consumer report in connection with an application for, or a grant, extension, or provision of, credit to a consumer on material terms that are materially less favorable than the most favorable terms available to a substantial proportion of consumers from or through that person, based in whole or in part on a consumer report, the person must provide a risk-based pricing notice to the consumer in accordance with regulations prescribed by the Consumer Financial Protection Bureau.
Section 609(g) requires a disclosure by all persons that make or arrange loans secured by residential real property (one to four units) and that use credit scores. These persons must provide credit scores and other information about credit scores to applicants, including the disclosure set forth in Section
609(g)(1)(D) (”Notice to the Home Loan Applicant”).
III. Obligations Of Users When Consumer Reports Are Obtained For Employment Purposes
If information from a CRA is used for employment purposes, the user has specific duties, which are set forth in Section 604(b) of the FCRA. The user must:
An adverse action notice also is required in employment situations if credit information (other than transactions and experience data) obtained from an affiliate is used to deny employment. Section
615(b)(2).
The procedures for investigative consumer reports and employee misconduct investigations are set forth below.
Special rules apply for truck drivers where the only interaction between the consumer and the potential employer is by mail, telephone, or computer. In this case, the consumer may provide consent orally or electronically, and an adverse action may be made orally, in writing, or electronically. The consumer may obtain a copy of any report relied upon by the trucking company by contacting the company.
Investigative consumer reports are a special type of consumer report in which information about a consumer’s character, general reputation, personal characteristics, and mode of living is obtained through personal interviews by an entity or person that is a consumer reporting agency. Consumers who are the subject of such reports are given special rights under the FCRA. If a user intends to obtain an investigative consumer report, Section 606 requires the following:
This must be done in a written disclosure that is mailed, or otherwise delivered, to the consumer at some time before or not later than three days after the date on which the report was first requested. The disclosure must include a statement informing the consumer of his or her right to request additional disclosures of the nature and scope of the investigation as described below, and the summary of consumer rights required by Section 609 of the FCRA. (The summary of consumer rights will be provided by the CRA that conducts the investigation.)
Section 603(x) provides special procedures for investigations of suspected misconduct by an employee or for compliance with Federal, state or local laws and regulations or the rules of a self- regulatory organization, and compliance with written policies of the employer. These investigations are not treated as consumer reports so long as the employer or its agent complies with the procedures set forth in Section 603(x), and a summary describing the nature and scope of the inquiry is made to the employee if an adverse action is taken based on the investigation.
Section 604(g) limits the use of medical information obtained from consumer reporting agencies (other than payment information that appears in a coded form that does not identify the medical provider). If the information is to be used for an insurance transaction, the consumer must give consent to the user of the report or the information must be coded. If the report is to be used for employment purposes - or in connection with a credit transaction (except as provided in federal regulations) - the consumer must provide specific written consent and the medical information must be relevant. Any user who receives medical information shall not disclose the information to any other person (except where necessary to carry out the purpose for which the information was disclosed, or as permitted by statute, regulation, or order).
VII. Obligations Of Users Of “Prescreened” Lists
The FCRA permits creditors and insurers to obtain limited consumer report information for use in connection with unsolicited offers of credit or insurance under certain circumstances. Section 603(l),
604(c), 604(e), and 615(d). This practice is known as “prescreening” and typically involves obtaining from a CRA a list of consumers who meet certain pre-established criteria. If any person intends to use prescreened lists, that person must (1) before the offer is made, establish the criteria that will be relied upon to make the offer and to grant credit or insurance, and (2) maintain such criteria on file for a three-year period beginning on the date on which the offer is made to each consumer. In addition, any user must provide with each written solicitation a clear and conspicuous statement that:
In addition, once the CFPB has established the format, type size, and manner of the disclosure required by Section 615(d), with which users must comply. The relevant regulation is 12 CFR 1022.54.
VIII. Obligations of Resellers
Section 607(e) requires any person who obtains a consumer report for resale to take the following steps:
1) the identity of all end-users;
2) certifications from all users of each purposes for which reports will be used; and
3) certifications that reports will not be used for any purpose other than the purpose(s) specified to the reseller. Resellers must make reasonable efforts to verify this information before selling the report.
Under Section 611(f), if a consumer disputes the accuracy or completeness of information in a report prepared by a reseller, the reseller must determine whether this is a result of an action or omission on its part and, if so, correct or delete the information. If not, the reseller must send the dispute to the source CRA for reinvestigation. When any CRA notifies the reseller of the results of an investigation, the reseller must immediately convey the information to the consumer.
Section 605A(f) requires resellers who receive fraud alerts or active duty alerts from another consumer reporting agency to include these in their reports.
Failure to comply with the FCRA can result in state government or federal government enforcement actions, as well as private lawsuits. Sections 616, 617, and 621. In addition, any person who knowingly and willfully obtains a consumer report under false pretenses may face criminal prosecution. Section 619.
The CFPB’s website, www.consumerfinance.gov/learnmore, has more information about the FCRA, including publications for businesses and the full text of the FCRA. Citations for the FCRA sections in the U.S. Code, 15 U.S.C. § 1681 et seq.:
Section 602 15 U.S.C. 1681
Section 603 15 U.S.C. 1681a
Section 604 15 U.S.C. 1681b
Section 605 15 U.S.C. 1681c
Section 605A 5 U.S.C. 1681cA
Section 605B 15 U.S.C. 1681cB
Section 606 15 U.S.C. 1681d
Section 607 15 U.S.C. 1681e
Section 608 15 U.S.C. 1681f
Section 609 15 U.S.C. 1681g
Section 610 15 U.S.C. 1681h
Section 611 15 U.S.C. 1681i
Section 612 15 U.S.C. 1681j
Section 613 15 U.S.C. 1681k
Section 614 15 U.S.C. 1681l
Section 615 15 U.S.C. 1681m
Section 616 15 U.S.C. 1681n
Section 617 15 U.S.C. 1681o
Section 618 15 U.S.C. 1681p
Section 619 15 U.S.C. 1681q
Section 620 15 U.S.C. 1681r
Section 621 15 U.S.C. 1681s
Section 622 15 U.S.C. 1681s-1
Section 623 15 U.S.C. 1681s-2
Section 624 15 U.S.C. 1681t
Section 625 15 U.S.C. 1681u
Section 626 15 U.S.C. 1681v
Section 627 15 U.S.C. 1681w
Section 628 15 U.S.C. 1681x
Section 629 15 U.S.C. 1681y
All furnishers of consumer reports must comply with all applicable regulations. Information about applicable regulations currently in effect can be found at the Consumer Financial Protection Bureau’s website, www.consumerfinance.gov/learnmore.
The federal Fair Credit Reporting Act (“FCRA”), 15 U.S.C. 1681-1681y, imposes responsibilities on all persons who furnish information to consumer reporting agencies (“CRAs”). These responsibilities are found in Section 623 of the FCRA, 15 U.S.C. 1681s-2. State law may impose additional requirements on furnishers. All furnishers of information to CRAs should become familiar with the applicable laws and may want to consult with their counsel to ensure that they are in compliance. The text of the FCRA is available at the website of the Consumer Financial Protection Bureau (“CFPB”): www.consumerfinance.gov/learnmore. A list of the sections of the FCRA cross-referenced to the U.S. Code is at the end of this document.
Section 623 imposes the following duties upon furnishers:
Accuracy Guidelines
The FCRA requires furnishers to comply with federal regulations dealing with the accuracy of information provided to CRAs by furnishers. Federal regulations and guidelines are available at www.consumerfinance.gov/learnmore. Section 623(e).
General Prohibition on Reporting Inaccurate Information
The FCRA prohibits information furnishers from providing information to a CRA that they know or have reasonable cause to believe is inaccurate. However, the furnisher is not subject to this general prohibition if it clearly and conspicuously specifies an address to which consumers may write to notify the furnisher that certain information is inaccurate. Section 623(a)(1)(A) and (a)(1)(C).
Duty to Correct and Update Information
If at any time a person who regularly and in the ordinary course of business furnishes information to one or more CRAs determines that the information provided is not complete or accurate, the furnisher must provide complete and accurate information to the CRA. In addition, the furnisher must notify all CRAs that received the information of any corrections, and must thereafter report only the complete and accurate information. Section 623(a)(2).
Duties After Notice of Dispute from Consumer
If a consumer notifies a furnisher, at an address specified by the furnisher for such notices, that specific information is inaccurate, and the information is, in fact, inaccurate, the furnisher must thereafter report the correct information to CRAs. Section 623(a)(1)(B).
If a consumer notifies a furnisher that the consumer disputes the completeness or accuracy of any information reported by the furnisher, the furnisher may not subsequently report that information to a CRA without providing notice of the dispute. Section 623(a)(3).
Furnishers must comply with federal regulations that identify when an information furnisher must investigate a dispute made directly to the furnisher by a consumer. Under these regulations, furnishers must complete an investigation within 30 days (or 45 days, if the consumer later provides relevant additional information) unless the dispute is frivolous or irrelevant or comes from a "credit repair organization." Section 623(a)(8). Federal regulations are available at www.consumerfinance.gov. Section 623(a)(8).
Duties After Notice of Dispute from Consumer Reporting Agency
If a CRA notifies a furnisher that a consumer disputes the completeness or accuracy of information provided by the furnisher, the furnisher has a duty to follow certain procedures. The furnisher must:
Duty to Report Voluntary Closing of Credit Accounts:
If a consumer voluntarily closes a credit account, any person who regularly and in the ordinary course of business furnished information to one or more CRAs must report this fact when it provides information to CRAs for the time period in which the account was closed. Section 623(a)(4).
Duty to Report Dates of Delinquencies:
If a furnisher reports information concerning a delinquent account placed for collection, charged to profit or loss, or subject to any similar action, the furnisher must, within 90 days after reporting the information, provide the CRA with the month and the year of the commencement of the delinquency that immediately preceded the action, so that the agency will know how long to keep the information in the consumer’s file. Section 623(a)(5)
Any person, such as a debt collector, that has acquired or is responsible for collecting delinquent accounts and that reports information to CRAs may comply with the requirements of Section 623(a)(5) (until there is a consumer dispute) by reporting the same delinquency date previously reported by the creditor. If the creditor did not report this date, they may comply with the FCRA by establishing reasonable procedures to obtain and report delinquency dates, or, if a delinquency date cannot be reasonably obtained, by following reasonable procedures to ensure that the date reported precedes the date when the account was placed for collection, charged to profit or loss, or subjected to any similar action. Section 623(a)(5).
Duties of Financial Institutions When Reporting Negative Information
Financial institutions that furnish information to "nationwide" consumer reporting agencies, as defined in Section 603(p), must notify consumers in writing if they may furnish or have furnished negative information to a CRA. Section 623(a)(7). The CFPB has prescribed model disclosures, 12 CFR Part 222, App.B.
Duties When Furnishing Medical Information
A furnisher whose primary business is providing medical services, products, or devices (and such furnisher's agents or assignees) is a medical information furnisher for the purposes of the FCRA and must notify all CRAs to which it reports of this fact. Section 623(a)(9). This notice will enable CRAs comply with their duties under Section 604(g) when reporting medical information.
Duties When ID Theft Occurs
All furnishers must have in place reasonable procedures to respond to notifications from CRAs that information furnished is the result of identity theft, and to prevent refurnishing the information in the future. A furnisher may not furnish information that a consumer has identified as resulting from identity theft unless the furnisher subsequently knows or is informed by the consumer that the information is correct. Section 623(a)(6). If a furnisher learns that it has furnished inaccurate information due to identity theft, it must notify each CRA of the correct information and must thereafter report only complete and accurate information. Section 623(a)(2). When any furnisher of information is notified pursuant to the procedures set forth in Section 605B that a debt has resulted from identity theft, the furnisher may not sell, transfer, or place for collection the debt except in certain limited circumstances. Section 615(f).
The CFPB’s website, www.consumerfinance.gov/learnmore, has more information about the FCRA, including publications for businesses and the full text of the FCRA.
Citations for FCRA sections in the U.S. Code, 15 U.S. C § 1681 et seq.:
Section 602 15 U.S.C. 1681
Section 603 15 U.S.C. 1681a
Section 604 15 U.S.C. 1681b
Section 605 15 U.S.C. 1681c
Section 605A 15 U.S.C. 1681c-1
Section 605B 15 U.S.C. 1681c-2
Section 606 15 U.S.C. 1681d
Section 607 15 U.S.C. 1681e
Section 608 15 U.S.C. 1681f
Section 609 15 U.S.C. 1681g
Section 610 15 U.S.C. 1681h
Section 611 15 U.S.C. 1681i
Section 612 15 U.S.C. 1681j
Section 613 15 U.S.C. 1681k
Section 614 15 U.S.C. 1681l
Section 615 15 U.S.C. 1681m
Section 616 15 U.S.C. 1681n
Section 617 15 U.S.C. 1681o
Section 618 15 U.S.C. 1681p
Section 619 15 U.S.C. 1681q
Section 620 15 U.S.C. 1681r
Section 621 15 U.S.C. 1681s
Section 622 15 U.S.C. 1681s-1
Section 623 15 U.S.C. 1681s-2
Section 624 15 U.S.C. 1681t
Section 625 15 U.S.C. 1681u
Section 626 15 U.S.C. 1681v
Section 627 15 U.S.C. 1681w
Section 628 15 U.S.C. 1681x
Section 629 15 U.S.C. 1681