THIS END-USER AGREEMENT (“Agreement”) is made and entered into by and between Mergers Marketing Inc. d/b/a Background Screeners of America,
a California corporation with offices at 9333 Melvin Ave. Northridge, CA 91324 (“Company”) and
(“End-User”). This Agreement shall be effective on the date of last signature below (the “Effective Date”).
End-User is engaged in the business of: (insert description of the industry or nature of your business)
End-User represents that it is a legal entity in good standing with a legitimate permissible
purpose for requesting the Services offered by Company.
In connection with the Services (as such term is defined at backgroundscreenersofamerica.com/services) provided pursuant to the terms of this Agreement,
Company strives to deliver accurate and timely information products to assist End-User in making intelligent and informed decisions for a permissible
purpose under applicable law. To this end, Company assembles information from a variety of sources, including databases maintained by consumer reporting
agencies containing information from public records, other information repositories and third-party researchers. End-User understands that these information
sources and resources are not maintained by Company. Therefore, Company cannot be a guarantor that the information provided from these sources is absolutely
accurate or current. Nevertheless, Company has in place reasonable procedures designed to respond promptly to claims of incorrect or inaccurate
information in accordance with applicable law.
2. End-User’s Certification of Fair Credit Reporting Act (FCRA) Permissible Purpose(s)
End-User hereby certifies that all of its orders for information products from Company shall be made,
and the resulting reports shall be used, for the following Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.,
permissible purposes only (please check all that apply):
Section 604(a)(3)(B). For employment purposes including contractors, volunteers or evaluating a consumer for employment, promotion, reassignment, retention as an employee, where the consumer has given prior written permission.
For Tenant Screening Purposes at the written direction of the consumer to whom the report relates.
End-User will certify the specific permissible purpose at the time the report is requested.
3. End-User’s Certification of Legal Compliance
End-User certifies to Company that the information products it receives will not be used in violation of any applicable federal, state or local laws,
including, but not limited to the Fair Credit Reporting Act and Title VII of the Civil Rights Act of 1964. End-User accepts
full responsibility for complying with all such laws and for using the information products it receives from Company in a legally
acceptable fashion. To that end, End-User agrees to comply with and provide all statutorily required notices in Section 615 of
the Fair Credit Reporting Act or other state laws when using information products. End-User further accepts full responsibility
for any and all consequences of use and/or dissemination of those products. End-User further agrees that each consumer report
will only be used for a one-time use.
End-User agrees to have reasonable procedures for the fair and equitable use of background
information and to secure the confidentiality of
private information. End-User agrees to take precautionary measures to protect the security and
dissemination of all consumer report or
investigative consumer report information including, for example, restricting terminal access,
utilizing passwords to restrict access to
terminal devices, and securing access to, dissemination and destruction of electronic and hard copy
reports. End User agrees to abide by
Addendum A attached hereto which is incorporated into and is part of this Agreement.
As a condition of entering into this Agreement, End-User certifies that it has in place reasonable
procedures designed to comply with all applicable local, state and federal laws. Company will only
keep information it provides to End-User for the lesser of two (2) years or as required by
applicable law. End-User certifies that it will retain information it receives from Company in
accordance with applicable law and will make such information available to Company upon request. In
addition, End-User agrees to abide by all Ban the Box laws and certifies that it will not conduct a
background check until after conditional offer of employment has been provided. End-Users seeking
credit information certify to Company that they have provided all disclosures required by applicable
federal, state or local laws, regulations and ordinances to the consumer in connection with such
requests and must provide information and sign Addendum B before Company can provide credit
information to End-User. Addendum B is incorporated into and is part of this Agreement, if
applicable. End-User acknowledges, and agrees to notify its employees that End-User can access
credit information only for the permissible purposes listed in the FCRA.
End-User understands that the credit bureaus require specific written approval from Company before
the following persons, entities and/or businesses may obtain credit reports: private detectives,
private detective agencies, private investigative companies, bail bondsmen, attorneys, law firms,
credit counseling firms, security services, members of the media, resellers, financial counseling
firms, credit repair clinics, pawn shops (except companies that do only Title pawn), check cashing
companies (except companies that do only loans, no check cashing), genealogical or heir research
firms, dating services, massage or tattoo services, businesses that operate out of an apartment,
individuals seeking information for their own private use, adult entertainment services of any kind,
companies that locate missing children, companies that handle third party repossession, companies
seeking information in connection with time shares, subscriptions companies, individuals involved in
spiritual counseling or persons or entities that are not an End-User or decision maker.
End-User represents that, if it orders credit reports, End-User will have a policy and procedures in
place to investigate any discrepancy in a consumer’s address when notified by the credit bureau that
the consumer’s address, as submitted by End-User, substantially varies from the address the credit
bureau has on file for that consumer.
End-User hereby acknowledges that it has received a copy of the
Summary of Rights
(16 C.F.R. Part 601, Appendix A) and Notice of Users of Consumer Reports (16 C.F.R. Part 601, Appendix C).
End User hereby certifies that, under the Investigative Consumer Reporting Agencies Act (“ICRA”),
California Civil Code Sections 1786 et seq., and the Consumer Credit Reporting Agencies Act
(“CCRAA”), California Civil Code Sections 1785.1 et seq., if the End User is located in the State of
California, and/or the End User’s request for and/or use of Information Products pertains to a
California resident or worker, End User will do the following:
- Request and use Information Products solely for permissible purpose(s) identified under
California Civil Code Sections 1785.11 and 1786.12.
- When, at any time, Information Products are sought for employment purposes other than suspicion
of wrongdoing or misconduct by the consumer who is the subject of the investigation, provide a
clear and conspicuous disclosure in writing to the consumer, which solely discloses: (1) that
investigative Information Products may be obtained; (2) the permissible purpose of the
investigative Information Products; (3) that information on the consumer’s character, general
reputation, personal characteristics and mode of living may be disclosed; and (4) the name,
address, telephone number, and website of the Consumer Reporting Agency conducting the
investigation; and (5) the nature and scope of the investigation requested, including a summary
of the provisions of California Civil Code Section 1786.22.
- When, at any time, Information Products are sought for employment purposes other than suspicion
of wrongdoing or misconduct by the consumer who is the subject of the investigation, only
request an Information Product if the applicable consumer has authorized in writing the
procurement of the Information Product.
- When Information Products are sought in connection with the hiring of a dwelling unit, notify
the consumer in writing that an Information Product will be made regarding the consumer’s
character, general reputation, personal characteristics. The notification shall include the name
and address of End User as well as a summary of the provisions of California Civil Code Section
1786.22, no later than three days after the date on which the Information Product was first
- When Information Products are sought in connection with the underwriting of insurance, clearly
and accurately disclose in writing at the time the application form, medical form, binder, or
similar document is signed by the consumer that an Information Product regarding the consumer’s
character, general reputation, personal characteristics, and mode of living may be made, or, if
no signed application form, medical form, binder, or similar document is involved in the
underwriting transaction, the disclosure shall be made to the consumer in writing and mailed or
otherwise delivered to the consumer not later than three days after the report was first
requested. The disclosure shall include the name and address of End User, the nature and scope
of the investigation requested, and a summary of the provisions of California Civil Code Section
- Provide the consumer a means by which he/she may indicate on a written form, by means of a box
to check, that the consumer wishes to receive a copy of any Information Products that are
- If the consumer wishes to receive a copy of the Information Products, the End User shall send
(or contract with another entity to send) a copy of the Information Product to the consumer
within three business days of the date that the Information Product is provided to End User. The
copy of the Information Product shall contain the name, address, and telephone number of the
person at End User who issued the report and how to contact him/her.
- Under all applicable circumstances, comply with California Civil Code Sections 1785.20 and
1786.40 if the taking of adverse action is a consideration, which shall include, but may not be
limited to, advising the consumer against whom an adverse action has been taken that the adverse
action was based in whole or in part upon information contained in the Information Product,
informing the consumer in writing of End User’s name, address, and telephone number, and provide
the consumer of a written notice of his/her rights under the ICRA and the CCRAA.
- Comply with all other requirements under applicable California law, including, but, not limited
to any statutes, regulations and rules governing the procurement, use and/or disclosure of any
Information Products, including, but not limited to, the ICRA and CCRAA.
When Information Products are Used for Employment Purposes
If the information products End-User obtains from Company are to be used for an employment
purpose, End-User certifies that prior to obtaining or causing a “consumer report” and/or
“investigative consumer report” to be obtained, a clear and conspicuous disclosure, in a
document consisting solely of the disclosure, has been made in writing to the consumer
explaining that a consumer report and/or investigative consumer report may be obtained for
employment purposes. Such disclosure satisfies all requirements identified in the FCRA, as
well as any applicable state or local laws and the consumer has authorized, in writing, the
obtaining of the report by End-User. End-User understands that Company will not initiate a
report for Employment Purposes in the absence of a written authorization. End-User certifies
that each time it orders a report, it is reaffirming the above certification.
Prior to taking adverse employment action based in whole or in part on the information
products provided by Company, End-User will provide to the consumer: (1) a copy of the
report, and (2) a description, in writing, of the rights of the consumer entitled: “A
Summary of Your Rights Under the Fair Credit Reporting Act.” After the appropriate waiting
period, End-User will issue to the consumer notice of the adverse action taken, including
the statutorily required notices identified in Section 615 of the Fair Credit Reporting Act.
Before taking adverse action based on a criminal record the EEOC Criminal History Guidance
recommends that you perform an individualized assessment and or other considerations. To
obtain a copy of the EEOC Criminal History Guidance please go to the following website:
Please note, as it relates to criminal history information, Company only reports conviction
records and does not report non-conviction information unless a case is pending with a next
court date scheduled.
When Information Products are Used for the Permissible Purpose of Tenant Screening
End-User certifies that it will obtain written authorization from the consumer tenant or
resident applicant prior to the procurement of the any consumer report or investigative
consumer report by the End-User.
If the consumer’s tenant application is denied, or other adverse action is taken based in
whole or in part on the information products provided by Company End-User will provide to
the consumer: a description, in writing, of the rights of the consumer entitled: “A Summary
of Your Rights Under the Fair Credit Reporting Act”, the right to obtain a copy of his/her
consumer report and provide the tenant or resident applicant a reasonable opportunity of
time to correct any erroneous information contained in the report. End-User certifies that
any adverse action notice will comply with the FCRA including but not limited to satisfying
all requirements under the FCRA if credit history is a disqualifying factor. If using a
credit score, End-User certifies that it will comply with the Dodd-Frank Act and all
applicable regulations relating to using a credit score.
Investigative Consumer Reports
In addition to the disclosure requirements identified above, if the consumer makes a written
request within a reasonable amount of time, End-User will provide: (1) information about
whether an investigative consumer report has been requested; (2) if an investigative
consumer report has been requested, written disclosure of the nature and scope of the
investigation requested; and (3) Company’s contact information, including complete address
and toll-free telephone number. This information will be provided to the consumer no later
than five (5) days after the request for such disclosure was received from the consumer or
such report was first requested, whichever is the latter.
International Criminal Record Searches
End-User understands that searches of international background screening will be conducted
through the services of a third-party independent contractor. Because of differences in
foreign laws, language, and the way foreign records are maintained and reported. Company
cannot be either an insurer or guarantor of the accuracy of the information reported.
End-User therefore releases Company and its affiliated companies, officers, agents,
employees, and independent contractors from any liability whatsoever about erroneous
information received as a result of an international background screening report.
National/Multi-State Database Searches
Company recommends that End-User screen its applicants or employees at the county
court-house or online system, federal, and multi-state/nationwide database levels. End-User
understands that if it chooses not to conduct searches at these levels, Company cannot be
held responsible for any records that exist that are not included in the End-User’s coverage
requested. End-User further understands that the multi-state/nationwide database report will
only be offered in conjunction with a county-level verification of any records found and
that End-User will bear any additional costs associated with this verification.
4. Additional Requirements for Motor Vehicle Records (MVRs) and Driving Records
End-User hereby certifies that Motor Vehicle Records and/or Driving Records (MVRs) shall only be
ordered in strict compliance with the Driver Privacy Protection Act (“DPPA”, at 18 U.S.C. § 2721 et
seq.) and any related state laws. End-User further certifies that no MVRs shall be ordered without
first obtaining the written consent of the consumer to obtain “driving records,” evidence of which
shall be transmitted to Company in the form of the consumer’s signed release authorization form.
End-User also certifies that it will use this information only in the normal course of business to
obtain lawful information relating to the holder of a commercial driver’s license or to verify
information provided by an applicant or employee. End-User shall not transmit any data contained in
the resulting MVR via the public internet, electronic mail or any other unsecured means.
During the course of completing background checks, Company may uncover active arrest warrants which
are outstanding against the subject. In these cases, Company may be contacted by the law enforcement
agency seeking the subject. End-User understands that Company will furnish to law enforcement any
information contained within the subject’s file to assist in the apprehension of the subject.
Additionally, Company may contact End-User, and End-User agrees to release to Company, any and all
information End-User may have which will further the apprehension of the wanted individual.
6. General Provisions
End-User agrees not to resell, sub-license, deliver, display or otherwise distribute to any third
party any of the information products addressed herein, except as required by law. End-User may not
assign or transfer this Agreement without the prior written consent of Company. In addition,
End-User shall immediately notify Company of any of the following events: change in ownership of
End-User (over 50%), a merger, change in name or change in the nature of End-User’s business. The
parties understand that this Agreement is for the sole benefit of Company and End-User and no third
party shall be deemed a third-party beneficiary of this Agreement. If any of the provisions of this
Agreement become invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions shall not in any way be impacted. By agreement of the
parties, California law shall guide the interpretation of this Agreement, if such interpretation is
required. All litigation arising out of this Agreement shall be commenced in California, and the
parties hereby consent to such jurisdiction and venue. Any written notice by either party shall be
delivered personally by messenger, private mail courier service, or sent by registered or certified
mail, return receipt requested, postage prepaid to the addresses listed below. This Agreement shall
be construed as if it were jointly prepared. Both parties agree that this Agreement constitutes all
conditions of service, present and future. Changes to these conditions may be made only by mutual
written consent of an authorized representative of End-User and an officer of Company. The headings
of each section shall have no effect upon the construction or interpretation of any part of this
If End-User is permitted to request consumer reports for employment purposes via Company’s website,
then, in addition to all other obligations, End-User agrees to abide by such additional conditions
that may be imposed to utilize the website, provide all required certifications electronically, to
maintain complete and accurate files containing all required consent, authorization and disclosure
forms with regard to each consumer for whom a report has been requested, and maintain strict
security procedures and controls to assure that its personnel are not able to use End-User’s
Internet access to obtain reports for improper, illegal or unauthorized purposes. End-User agrees to
obtain the consumer’s electronic consent to receive any legal or other notices electronically.
End-User agrees to allow Company to audit its records at any time, upon reasonable notice given.
Breaches of this Agreement and/or violations of applicable law discovered by Company may result in
immediate suspension and/or termination of the account, legal action and/or referral to federal or
state regulatory agencies.
7. Monitoring Products
It is the sole responsibility of End-User, and End-User represents and warrants that it maintains
reasonable procedures, to promptly notify Company of any personnel changes that are relevant to
ensuring accuracy of the checks performed in connection with the monitoring products, including but
not limited to MVR, Criminal and Health Care Compliance. In addition, End-User shall comply with all
applicable federal, state and local laws in connection with use of the monitoring products,
including but not limited to any additional consent requirements under California law.
Neither party shall reveal, publish or otherwise disclose any Confidential Information to any third
party without the prior written consent of the other party. “Confidential Information” means any and
all Proprietary Intellectual Property (defined below) or secret data; sales or pricing information
relating to either party, its operations, employees, products or services; and, all information
relating to any customer, potential customer, Agent, and/or independent sales outlet. The Parties
agree to keep this information confidential at all times during the term of this Agreement, and
continuing for five years after receipt of any Confidential Information. Notwithstanding anything to
the contrary herein, in no event shall Company be required to destroy, erase or return any consumer
reports or applicant data related thereto in Company’s files, all of which Company shall maintain as
a consumer reporting agency in strict accordance with all applicable federal, state, and local laws.
In connection with Services, End-User may have access to Confidential Information relating to
Company’s intellectual property, including but not necessarily limited to trade secrets, service
marks, trademarks, trade names, logos, symbols, brand names, software, technology, inventions,
processes (that are subject to a patent or otherwise pending) collectively “Proprietary Intellectual
Property.” End-User acknowledges and agrees that Company is the sole exclusive owner of all right,
title and interest in such Proprietary Intellectual Property and it shall not disclose to any third
party the nature or details of any such Proprietary Intellectual Property. End-User further agrees
that it has no right to publish, reproduce, prepare derivative works based upon, distribute, perform
or otherwise display any of Company’s Proprietary Intellectual Property.
9. Independent Contractor
The parties agree that the relationship of the parties created by this Agreement is that of
independent contractor and not that of employer/employee, principal/agent, partnership, joint
venture or representative of the other. Except as authorized hereunder, neither party shall
represent to third parties that it is the employer, employee, principal, agent, joint venture or
partner with, or representative of the other party.
10. Warranties, Remedies, and Limitation of Liability
End-User understands that Company obtains the information reported in its information products from
various third-party sources “AS IS”, and therefore is providing the information to End-User “AS IS”.
Company makes no representation or warranty whatsoever, express or implied, including but not
limited to, implied warranties of merchantability or fitness for particular purpose, or implied
warranties arising from the course of dealing or a course of performance with respect to the
accuracy, validity, or completeness of any information products and/or consumer reports, that the
information products will meet End-User’s needs, or will be provided on an uninterrupted basis;
Company expressly disclaims any and all such representations and warranties.
COMPANY WILL NOT BE LIABLE TO END-USER FOR DAMAGES, AND END-USER HEREBY RELEASES COMPANY FROM ANY
LIABILITY FOR DAMAGES ARISING UNDER ANY THEORY OF LEGAL LIABILITY TO THE FULLEST EXTENT THAT
END-USER MAY LEGALLY AGREE TO RELEASE COMPANY FROM LIABILITY FOR SUCH DAMAGES. NONETHELESS, IN THE
EVENT COMPANY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE LIABLE TO END-USER FOR ANY
MATTER ARISING UNDER OR RELATING TO THIS AGREEMENT, WHETHER ARISING IN CONTRACT, EQUITY, TORT OR
OTHERWISE (INCLUDING WITHOUT LIMITATION ANY CLAIM FOR NEGLIGENCE), THE AMOUNT OF DAMAGES RECOVERABLE
AGAINST COMPANY FOR ALL SUCH MATTERS WILL NOT EXCEED, IN THE AGGREGATE, THE AMOUNT PAID TO COMPANY
BY END-USER FOR THE SERVICE TO WHICH A GIVEN CLAIM RELATES PROVIDED PURSUANT TO THIS AGREEMENT AND
RECOVERY OF THE AMOUNT IS END-USER'S SOLE AND EXCLUSIVE REMEDY HEREUNDER. IN THE EVENT COMPANY IS
LIABLE TO END-USER FOR ANY MATTER RELATING TO THIS AGREEMENT, WHETHER ARISING IN CONTRACT, EQUITY OR
TORT (INCLUDING WITHOUT LIMITATION ANY CLAIM FOR NEGLIGENCE), AND IN ADDITION TO ANY OTHER
LIMITATION OF LIABILITY OR REMEDY SET FORTH IN THIS AGREEMENT, THE AMOUNT OF DAMAGES RECOVERABLE
AGAINST COMPANY WILL NOT INCLUDE ANY AMOUNTS FOR INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING LOST
PROFITS, LOST INCOME, OR LOST SAVINGS, OR FOR ANY AMOUNTS WITH RESPECT TO CLAIMS AGAINST COMPANY,
EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY FOR SUCH DAMAGES.
End-User shall indemnify, defend and hold harmless Company, its successors and assigns, officers,
directors, employees, agents, vendors, credit bureaus and suppliers from and against any and all
claims, suits, proceedings, actual damages, costs, expenses (including, without limitation,
reasonable attorneys’ fees and court costs) (“Losses”) brought or suffered by any third party
arising or resulting from, or otherwise in connection with information products provided by Company,
the content, compliance, method of delivery or effectiveness of any notices, pre-adverse or adverse
action letters, any breach by End-User of any of its representations, warranties, or agreements in
this Agreement or its negligence or willful misconduct.
Company does not guarantee End-User’s compliance with all applicable laws in its use of reported
information, and does not provide legal or other compliance related services upon which End-User may
rely in connection with its furnishing of reports. End-User understands that any documents,
information, conversations or communication with Company’s representatives regarding searches,
verifications or other services offered by Company are not to be considered a legal opinion
regarding such use. End-User agrees that (1) it will consult with its own legal or other counsel
regarding the use of background screening information, including but not limited to, the legality of
using or relying on reported information and to review any forms as well as the content of
prescribed notices, adverse or pre-adverse action letters and any attachments to this Agreement for
compliance with all applicable laws and regulations and (2) the provision of such notices,
pre-adverse or adverse action letters and the contents thereof is the sole responsibility of
End-User not Company. End-User acknowledges and agrees that it has no obligation to use, and is
solely responsible for independently vetting the contents of, any sample forms that Company has
provided or may in the future provide to End-User in connection with this Agreement.
11. Term and Termination
The term of this Agreement shall begin on the date it is executed by End-User and shall be in effect
for one (1) year beginning on the first day of the assigned date below and renewed automatically for
one (1) year each year on its anniversary date, if no written notice is received by either party
within thirty (30) days prior to end of term.
Except as otherwise provided for herein, either party may cancel this Agreement by giving thirty
(30) day written notice to the other party. Company may terminate or revise the provisions of this Agreement
immediately upon written notice if End-User undergoes a change in ownership. Termination of this
Agreement by either party does not release End-User from its obligations or other responsibilities and agreements made.
In addition to any and all other rights a party may have available according to law, if a party
defaults by failing to perform any provision, term or condition of this Agreement the other party
may terminate the Agreement by providing written notice to the defaulting party. This notice shall
describe with sufficient detail the nature of the default. The party receiving such notice shall
have fifteen (15) days from the receipt of such notice to cure the default(s). Unless waived by
party providing notice, the failure to cure the default(s) within such period shall result in the
automatic termination of this Agreement.
12. Force Majeure
End-User agrees that Company is not responsible for any events or circumstances beyond its control
(e.g., including but not limited to war, riots, embargoes, strikes and/or Acts of God) that prevent
Company from meeting its obligations under this Agreement.
The failure of either party to insist in any one or more cases upon the strict performance of any
term, covenant or condition of this Agreement will not be construed as a waiver or subsequent breach
of the same or any other covenant, term or condition; nor shall any delay or omission by either
party to seek a remedy for any breach of this Agreement be deemed a waiver by either party of its
remedies or rights with respect to such a breach.
If any provision of this Agreement, or the application thereof to any person or circumstance, shall
be held invalid or unenforceable under any applicable law, such invalidity or unenforceability shall
not affect any other provision of this Agreement that can be given effect without the invalid or
unenforceable provision, or the application of such provision to other persons or circumstances,
and, to this end, the provisions hereof are severable.
15. Entire Agreement & Execution
This Agreement and all attachments and exhibits hereto, constitute the entire agreement of the
parties and shall supersede any prior agreements governing the subject matter contained herein. This
Agreement may be executed in any number of counterparts, each of which shall be deemed an original,
but all of which taken together shall constitute one and the same instrument. Both parties agree
that an electronic signature on this agreement will be considered valid. A signature on a copy of
this Agreement received by either party by facsimile is binding upon the other party as an original.
The parties shall treat a photocopy of such facsimile as a duplicate original. The individuals
signing below represent that they are duly authorized to do so.