Last Updated: May 15, 2020
This Master Services Agreement (“Agreement”) is a legally binding agreement governing access to and use of Company’s Platform (as defined below). This Agreement is entered into by and between Array, LLC (the “Company”), and the Client executing an applicable Order (as defined below).
By placing an Order, or accessing or using the Platform, you indicate your assent to be bound by this Agreement. If you do not agree to this Agreement, do not use or access the Platform. This Agreement contains mandatory arbitration provisions that require the use of arbitration to resolve disputes. Please read it carefully.
The “Effective Date” of this Agreement is the earlier of (a) the date on which Client first accesses or uses the Platform or (b) the date on which Client executes an Order which is agreed to by the Company.
Company may modify this Agreement from time to time in accordance with Section 12 (Modifications) below.All exhibits or other documents attached hereto, linked to (via hyperlink and web address) and otherwise referred to herein, are hereby incorporated herein and made a part of this Agreement for all purposes as if fully set forth herein.
1.1 Platform Services. The following terms and conditions govern Client’s license, access to and use of Company’s proprietary service oriented platform, which provides access to, integrated display of and delivery of certain consumer data (the “Platform”).
1.1.1 Company shall provide and/or deliver the applicable products and services (the “Products”) through the Platform as set forth in the applicable proposal, work order or pricing schedule (an “Order”).
1.1.2 Access to, use of and delivery of certain consumer data in conjunction with the Products, is subject to additional Consumer Data Terms attached hereto as Exhibit A.
1.1.3 For the purposes of this Agreement, “Client” means any individual, corporation, partnership, limited liability company, association, trust, unincorporated entity or other legal entity placing an Order or otherwise accessing or using the Platform, and its employees, representatives, consultants, contractors, partners, agents or affiliates who are authorized by such Client to access and use the Platform, each of which whom shall agree to be bound by this Agreement.
1.2 License. Subject to Client's compliance with the terms and conditions of this Agreement, and as may be provided in an Order, the Company hereby grants Client during the applicable term of an Order, the non-exclusive, non-transferable, and non-sublicensable right and license to access and use the Platform in accordance with the terms and conditions set forth herein and in the applicable Order, and specifically: (i) to utilize and exploit the Platform solely to market and sell the Products as set forth in an applicable Order; and (ii) to allow Client’s individual end user consumers, customers and/or subscribers (collectively the “Subscribers”) to access and view the applicable Products on or through the Platform. Except as provided herein, Client may not disclose to or provide any third party access to, use of, or rights in or to the Platform, except as third parties may access or use the Platform in relation to the Client’s ordinary course of business. Except for the license granted hereunder, as between the parties, Company retains all right, title and interest in and to the Platform.
1.2.1 Reservation of Client Rights. Except as expressly set forth herein, Company acknowledges and agrees that nothing contained in this Agreement shall grant it any right, title or interest in any information, content, or data obtained by Client from a source other than Company and used by Client in conjunction or association with the Platform and Company shall not make any claim of ownership or interest in any such information, content, or data.
1.3 Restrictions. Except as otherwise explicitly provided herein, or as may be expressly permitted by Applicable Law, Client will not, and will not permit or authorize any third party to: (i) modify, and/or make derivative works of, disassemble, reverse compile and/or reverse engineer any part of the Platform, or reverse engineer, decompile, disassemble, extract, or otherwise derive or attempt to derive the source code of the Platform or any other compiled software provided or made available by Company hereunder; (ii) use or permit the use of, reproduce or otherwise duplicate, disclose, distribute, modify, encumber, time-share, license, sublicense, sell, distribute, assign, rent, lease, or transfer the Platform, any portion thereof, or any of Client’s rights thereto; (iii) frame and/or utilize framing techniques to enclose any trademark, logo, and/or other portion of the Platform (including images, text, page layout, and/or form); (iv) use any metatags and/or other “hidden text” using Company’s name and/or trademarks; (v) use and/or access the Platform in order to build a similar and/or competitive platform; (vi) copy, reproduce, distribute, republish, download, display, post and/or transmit any part of the Platform in any form and/or by any means; (vii) remove, obliterate, or cancel from view any copyright, trademark, or other proprietary or confidentiality notice or legend appearing on or in the Platform or any materials provided or made available by Company hereunder, or fail to reproduce any such notice or legend on any copy made of any such materials; (viii) take any action that materially interrupts or interferes with, or that might reasonably have been expected to materially interrupt or interfere with, the Platform , Company’s business operations or other customers; (ix) run any form of auto-responder and/or “spam” on or through the Platform or use the Platform to otherwise send “spam” to any third-party; (x) use the Platform in any unlawful way or for any unlawful purpose and/or to violate any federal, state, international law, code of conduct and/or other guidelines which may be applicable to the Platform ; (xi) circumvent or disable any security or technological features or measures of the Platform , (xii) use the Platform to access, store, distribute or transmit any viruses, worms, trojan horses, or other similar things or devices that may prevent, impair or otherwise negatively affect the operation of any software, hardware, network, program or data; (xiii) use the Platform to transmit any material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, facilitates illegal activity or causes damage or injury to any person or property; and/or (xiv) use the Platform to conduct or forward illegal contests, pyramid schemes, chain letters, unsolicited or unauthorized advertising, promotional materials, or unsolicited email or multi-level marketing campaigns.
1.4 Access. Client shall ensure that its network and systems comply with the relevant specifications provided by Company from time to time and shall provide Company with information as may be required by Company in order to render access to the Platform . Client is responsible for obtaining, maintaining, and supporting all Internet access, computer hardware, and other equipment and services needed for it to access and/or use the Platform . The Client will determine the access controls for the Subscribers and will be responsible for its activity on or through the Platform , including compliance with this Agreement. Client agrees to use commercially reasonable efforts to prevent unauthorized access to, and/or use of the Platform and notify Company immediately of any unauthorized use of Client’s account and/or any other known breach of security.
1.5 Maintenance. The Company will use its best efforts to provide standard maintenance for the Platform during the term of this Agreement, which will include enhancements, "bug fixes" and other minor modifications as may be identified by the Company from time to time. The Company may make additional modifications or releases to the Platform and the underlying source code as the Company may determine in its sole and absolute discretion.
1.6 Suspension. Client is responsible for maintaining the security of its account, and Client is fully responsible for all activities that occur with respect to its use of the Platform and by any Subscribers. Notwithstanding anything herein to the contrary, Company reserves the right, without liability to the Client, to disable or suspend the Client’s access to the Platform in the event (i) of any breach or anticipated breach of this Section 1; (ii) Client or its Subscribers use of the Platform disrupts or poses a security risk to the Platform or any customer, may harm Company’s systems, or any provider of any third-party services, or may subject Company or any third-party to liability; (iii) Client or its Subscribers are using the Platform for fraudulent or illegal activities; or (iv) Company’s continued provision of any of the Platform is prohibited by Applicable Law or regulation.
2.1 Fees. In consideration of the access to and use of the Platform , Client agrees to pay Company the fees set forth in the applicable Order in accordance with the terms and conditions set forth herein, as may be amended or revised from time to time (“Fees”). All Fees, expenses and taxes due hereunder will be paid in U.S. dollars and shall be remitted to the Company within ten (10) days of invoicing. All Fees due and payable by Client to Company under this Agreement must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law. If a Client fails to pay the full amount of the charges detailed in any invoice within thirty (30) days after the invoice date, then the unpaid amounts of such invoice shall accrue interest at a rate of 1.5% per month or, if less, the maximum rate permitted by law.
2.2 Payment. Client shall pay Company for the Fees due hereunder via check, wire transfer, ACH, or credit card. If Client elects to pay via credit card, Fees shall be deducted from a credit card account designated by Client. In such event, Client authorizes Company to automatically charge the credit card account for the Fees (plus applicable sales tax) in advance or as otherwise agreed to by the parties in writing without any further authorization from Client. Client acknowledges that the authorization will remain in effect until Client cancels such authorization by providing written notice to Company. If Client’s credit card account on file is closed or the account information is changed, or if, for any reason, a charge is rejected, Client shall immediately update Client’s credit card account or supply a new payment account, as appropriate.
2.3 Taxes. The Fees do not include sales, use, or excise taxes, or any other similar taxes or fees assessed by any state or local authority (collectively, "Sales Taxes"). If applicable, Client shall disclose to Subscribers that Sales Taxes will be charged and the amount thereof. Client shall be solely responsible for collecting all Sales Taxes due in connection with sales of the Products and remitting, when due, to the appropriate governmental authorities, all such Sales Taxes. Client agrees to provide the Company, upon request with evidence of all Sales Tax payments to governmental authorities concurrently with payment. Client shall indemnify, defend, and hold harmless the Company for any and all such Sales Taxes and any damages incurred by the Company in connection with Client's failure to properly collect and deliver to the appropriate government authorities on a timely basis all required Sales Taxes.
2.4 Disputed Amounts. If Client disputes any charge or amount on any invoice or statement, and such dispute cannot be resolved promptly through good-faith discussions between the parties, Client shall pay the amounts due under this Agreement minus the disputed amount and the parties shall diligently proceed to resolve such disputed amount through arbitration, as set forth in Section 13.10, within forty-five (45) days from the date of the invoice. An amount will be considered disputed in good faith if (i) Client delivers a written statement to Company on or before the due date of the invoice, describing in detail the basis of the dispute and the amount of the dispute or amount being withheld by Client, (ii) such written statement represents that the amount in dispute has been determined after due investigation of the facts and that such disputed amount has been determined in good faith, and (iii) all other amounts due from Client that are not in dispute have been paid in accordance with the terms of this Agreement.
2.5 Access. Company may, without liability to Client, disable the password, account, and/or access to all or part of the Platform if any undisputed Fees are not paid within thirty (30) days of such Fees first becoming due and payable under this Agreement. In the event of the foregoing, the Company shall not be obligated to provide access to or use of the Platform until such Fees are paid in full.
3.1 Term. This Agreement shall commence on the Effective Date and shall continue thereafter, unless and until terminated in accordance with this Agreement. Unless otherwise specified in an Order, (i) the initial term shall continue for a period of three (3) years (the “Initial Term”), and (ii) after the Initial Term, this Agreement shall automatically renew for additional one (1) year terms (each a “Renewal Term”), unless either party delivers written notice at least thirty (30) days prior to the end of the Initial term or Renewal Term of such party's intent to terminate this Agreement. (the Initial Term and all such Renewal Terms, collectively the “Term”). Termination shall not relieve either party of obligations incurred prior thereto.
3.2 Termination. Either party may terminate this Agreement immediately upon written notice to the other party (i) if the other party files a petition for bankruptcy, becomes insolvent, or makes an assignment for the benefit of its creditors, or a receiver is appointed for the other party or its business, or (ii) if the other party breaches in any material respect any of its material obligations under this Agreement, and in the event that the breach is not cured within seven (7) days after receipt by that party of written notice of the breach.
3.3 Obligations After Termination. Upon termination, Client will pay all outstanding fees, charges and expenses owed through the Term of this Agreement, or any period thereafter that Client’s then current Subscribers continue to access and use the Platform.
4.1 Applicable Law.
4.1.1 Each party represents and warrants that it will comply with all local, state and federal laws, rules and regulations, as applicable, including, without limitation, the Gramm-Leach Bliley Act, 15 U.S.C. §§6801-6809, the Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. §§6101-6108, the Telemarketing Sales Rule Act, 16 C.F.R. pt. 310, the Fair Credit Reporting Act (U.S.C. §1681m(a)), the Federal Trade Commission Act, the Children’s Online Privacy Protection Act, the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act (42 U.S.C. 227), provisions relating to the National Do Not Call Registry ((16. C.F.R. Part 310) and applicable state Do Not Call List requirements, the Fair Debt Collection Practices Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act including but not limited to Section 1031 and 1036, 12 U.S.C §§5531, 5536, Section 5 of the FTC Act, the Fair Debt Collection Practices Act, the Federal Communications Act, and any other relevant local, state, federal or international laws (collectively, “Applicable Laws”).
4.2 Client Representations. Client represents, warrants, covenants and agrees that:
4.2.1 Client will avoid deceptive, misleading or unethical practices that are or might be detrimental to the Company or its service and data providers, or their respective business or reputation;
4.2.2 Client will make no intentionally false or misleading representations with regard to the Company or its service and data providers;
4.2.3 Client will not intentionally publish or employ, or cooperate in the publication or employment of, any misleading or deceptive advertising material with regard to the Company or any Products;
4.2.4 Client will make no representations, warranties or guarantees with respect to the specifications, features or capabilities of the Products that are inconsistent with the representations made by the Company.
4.2.5 Client will comply with the Free Annual File Disclosures Rule, 16 CFR Part 610 (the "Rule") if Client advertises for free credit reports and, accordingly, Client agrees to include the disclosure required by the Rule, as may be amended from time to time.
4.2.6 Client will (a) not modify any credit related data or Products in any manner (other than the "look and feel"), and (b) use commercially reasonable efforts to ensure and safeguard that only Client’s servers have access to Subscribers' data.
4.2.7 Client acknowledges that all of the Company’s application programming interfaces (APls) are intended solely for the use of enrollment, authentication, customer service and Product delivery and such other intended uses as may be determined by the Company from time to time.
5.1 Confidential Information. "Confidential Information" means any non-public data, information and other materials regarding the products, software, services, customer list, or business of a party (and/or, if either party is bound to protect the confidentiality of any third party’s information, of a third party) provided to the other party where such information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where such information should, by its nature, be reasonably considered to be confidential and/or proprietary. Without limiting the foregoing, any software, performance data, benchmark results, and technical information relating thereto, pricing information and the terms and conditions of this Agreement (but not its existence) shall be deemed Confidential Information. The party disclosing Confidential Information shall be referred to herein as the “Disclosing Party” and the party receiving Confidential Information shall be referred to herein as the “Receiving Party.
5.2 Disclosure. Each party shall at all times keep and maintain the confidentiality of all Confidential Information, and shall not use or reproduce Confidential Information except for the purposes provided herein and shall not disclose any Confidential Information to any third party. Each party shall inform its employees, marketers, agents and contractors of the nondisclosure requirements set forth in this Agreement and shall obtain their respective commitments to abide by such requirements. Each party hereto shall be responsible for the actions of any of its employees, marketer, agents, affiliates or contractors that would constitute a violation of such party's rights under this section if such violation had been committed directly by such party.
5.3 Exclusions. Confidential Information shall not include information that: (i) is or becomes generally known or available to the public at large other than as a result of a breach by the Receiving Party of any obligation to the Disclosing Party; (ii) was known to the Receiving Party free of any obligation of confidence prior to disclosure by the Disclosing Party; (iii) is disclosed to the Receiving Party on a non-confidential basis by a third-party who did not owe an obligation of confidence to the Disclosing Party and does not reasonably appear to have obtained the information improperly or from an unauthorized source; or (iv) is developed by the Receiving Party independently of and without reference to any part of the Confidential Information. Confidential Information shall not be deemed to be in the public domain or generally known or available to the public merely because any part of said information is embodied in general disclosures or because individual features, components or combinations thereof are now or become known to the public.
5.4 Injunction. Each party acknowledges that a breach of this Section 5 may result in irreparable and continuing damage to the Disclosing Party for which monetary damages may not be sufficient, and agrees that the Disclosing Party will be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive or all other equitable relief, and such further relief as may be proper from a court of competent jurisdiction. The terms of this Section 5 shall survive the expiration or termination of this Agreement.
5.5 Non-Solicitation. During the term of this Agreement and one (1) year thereafter, Client agrees not to, and to ensure that its affiliates do not, directly or indirectly, solicit or attempt to solicit any persons employed by the Company to perform work for Client, either as an employee, independent contractor or otherwise, except as may specifically be consented to in writing by the Company.
6.1 No Warranty. USER’S USE OF THE PLATFORM AND ANY DELIVERABLES IS AT ITS SOLE RISK. THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE COMPANY MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NO WARRANTIES WILL BE CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE, AND THE COMPANY EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES. USER DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE PLATFORM OR DELIVERABLES. IN ADDITION, THE COMPANY DOES NOT WARRANT THAT THE PLATFORM WILL BE FREE FROM ERRORS, WILL MEET THE COMPANY'S OR CONSUMER USER'S NEEDS, OR WILL BE PROVIDED ON AN UNINTERRUPTED BASIS SUBJECT TO THE BOUNDARIES OF THIS AGREEMENT.
6.2 Limited Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT AND/OR ANY ORDER, COMPANY AND ITS SERVICE AND DATA PROVIDERS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE AND/OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF USE, LOSS OF DATA, OR OTHER INTANGIBLE LOSSES ARISING OR RESULTING FROM USE OF THE PLATFORM AND/OR ANY PRODUCTS, EVEN IF THE COMPANY OR USER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL COMPANY OR ITS SERVICE OR DATA PROVIDERS TOTAL AND CUMULATIVE LIABILITY FOR DAMAGES ARISING OUT OF AND/OR IN CONNECTION WITH THIS AGREEMENT REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AMOUNTS, IF ANY, THAT COMPANY HAS RECEIVED DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE ACTION OR CLAIM. THIS LIMITATION OF LIABILITY IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND USER.
7.1 Indemnification. COMPANY AND USER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE OTHER, ITS AFFILIATES AND AGENTS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES, FROM AND AGAINST ALL THIRD PARTY CLAIMS, LOSSES, DAMAGES, COSTS (INCLUDING ATTORNEY'S FEES AND COURT COSTS), SUITS. JUDGMENTS, EXPENSES AND DEMANDS (COLLECTIVELY, "CLAIMS") ARISING OUT OF, FROM, OR RELATED TO (I) THE BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT HEREIN, (II) THE USE OF THE PLATFORM OR PRODUCTS OTHER THAN IN ACCORDANCE WITH THIS AGREEMENT, (III) ANY NEGLIGENT ACT OR OMISSION OR WILLFUL MISCONDUCT OF THE INDEMNIFYING PARTY IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY OBLIGATION UNDER THIS AGREEMENT, OR (IV) ANY ACTS OF THE INDEMNIFYING PARTY OUTSIDE THE SCOPE OF THIS AGREEMENT. COMPANY RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY USER, IN WHICH EVENT USER WILL ASSIST AND COOPERATE WITH COMPANY IN ASSERTING ANY AVAILABLE DEFENSES. USER AGREES NOT TO SETTLE ANY MATTER WITHOUT THE PRIOR WRITTEN CONSENT OF COMPANY.
8.1 Insurance. During the term of this Agreement, Client shall maintain at least the following insurance coverages with insurance carriers with an A.M. Best rating of at least A-VII, or such other insurance carriers approved in writing by the Company: (a) comprehensive / commercial general liability insurance (which shall provide for minimum limits of $1,000,000 per occurrence); and (B) professional liability (also known as errors and omissions) insurance with combined single limits of not less than $2,000,000. Upon request, Client shall provide the Company with evidence of such insurance coverage(s).
9.1 Intellectual Property. The Company has the sole and exclusive right, title, interest and/or ownership in and to any existing or hereafter acquired Intellectual Property developed and/or utilized pursuant to this Agreement and any other materials provided or made available to Client by Company hereunder. As used herein, "Intellectual Property" means all patents, designs, inventions, trademarks, service marks, trade names and trade dress, copyrights and copyrightable works (including software programs and related documentation), trade secrets, know-how, design rights and database rights, that are now or hereafter owned by or licensed to Company, and all modifications, compilations, and derivative works thereof; provided that, in the case of any such Intellectual Property that is licensed to Company from a third party, such Intellectual Property will be included in the Company Intellectual Property only to the extent that Company has the right to sublicense such Intellectual Property to Client within the scope of the license granted hereunder.
9.2 Ownership. Each of the Company and Client acknowledges that the other owns and/or licenses certain Intellectual Property used in the performance of this Agreement. Each of the Company and Client specifically disclaims any ownership or other right with respect to the Intellectual Property owned and/or licensed by the other, except as otherwise provided herein. Except as expressly provided herein, neither party grants or transfers to the other, nor does the other party obtain, any right, title, claim, license or other interest in or to any of the Intellectual Property, information, consumer information database, systems, forms manuals or other proprietary information utilized or provided by the other party. Each party expressly prohibits any direct or indirect use, reference to, or other employment of its name, trademarks, service marks or trade names licensed to the other party, except as specified in this Agreement or as expressly authorized in writing by such party.
9.3 Termination. Each party will, on termination of this Agreement, or upon request of the other party, discontinue its use of the other party's name, trademarks, trade names, logos, insignia, lettering or any related copyright notices, trademarks or other proprietary markings on, or included with the Platform.
10.1 Records. Client shall maintain complete and accurate books and records of its activities performed pursuant to this Agreement, including all transactions that trigger a payment to Company, and Client’s compliance with Applicable Laws: (i) related to the use and retention of consumer data, and (ii) related to lead generation and sales and marketing activities. Client shall keep such records during the Term for such period as required under Applicable Law but in any event for a period no less than five (5) years.
10.2 Audit. During the Term, and for three (3) years thereafter, Company shall have the right to examine, inspect, audit, and review all such book sand records required in Section 10.1 above, and any source documents used in the preparation thereof during normal business hours upon written notice to Client at least five (5) business days prior to the commencement of such audit, as well as Client’s compliance with any Applicable Laws and industry standards. Such audit will be performed at Company’s expense and during normal business hours at Client’s premises and may be conducted by Company or, upon Company’s election, by a third party on Company’s behalf, however, if an audit determines Client overbilled or underpaid Company by more than five percent, such audit shall be at the sole cost and expense of Client. Client shall use commercially reasonable efforts to cooperate with such assessments by providing access to knowledgeable personnel, physical premises, documentation, infrastructure and software.
11.1 By using the Platform, Client agrees to receive certain communications from us electronically in connection with the Platform. Such communications include by way of email, text message, posting notices, delivering notifications through our mobile applications or through other electronic means. Client agrees that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
12.1 From time to time, Company may modify the terms of this Agreement. Company will use commercially reasonable efforts to notify Client of the modifications and the effective date of such modifications through communications via Client’s account, email, or other means. Client must accept the modifications to continue accessing or using the Platform. If a Client objects to the modifications, unless otherwise agreed by Company, its exclusive remedy is to cease any and all access and use of the Platform. Client may be required to click to accept or otherwise agree to the modified terms in order to continue accessing or using the Platform, and in any event continued access or use of the Platform after the modified version of these terms goes into effect will constitute Client’s acceptance of such modified version.
13.1 Entire Agreement. This Agreement constitutes the full and complete understanding and agreement of Client and the Company and supersedes all prior negotiations, understandings and agreements pertaining to the subject matter hereof, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
13.2 Assignment. Neither party may assign its rights or obligations under this Agreement without the written consent of the other party, which consent shall not be unreasonably withheld. However, Company shall be able to assign this Agreement to a parent, subsidiary or affiliated entity or in connection with a merger, acquisition, or sale of all or substantially all of Company’s assets without having to obtain the consent of Client. Any attempted assignment that is prohibited under this section shall be null and void. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
13.3 Survival. Upon termination or expiration of this Platform Agreement, the provisions of Sections 1.2, 1.3, 3.3, 4, 5, 6, 7, 9, 10 and 13 shall survive.
13.4 Equitable Remedies. Each party acknowledges and agrees that any breach of this Agreement could cause such other party to incur irreparable harm and significant injury that would be difficult to ascertain and would not be compensable by damages alone. Accordingly, each party acknowledges and agrees that, in addition to any and all remedies that the non-breaching party may have at law or otherwise with respect to such a breach, the non-breaching party will be entitled to specific performance, injunction or other appropriate equitable relief without posting bond and without being obligated to prove actual damage or harm.
13.5 Relationship. The Company and Client are independent contractors with respect to one another under this Agreement. This Agreement shall not be deemed to establish any agency, joint venture or partnership relationship. Each party shall be responsible for the payment of all employee compensation, benefits and employment and other taxes pertaining to its employees and business. Neither party shall have the authority to legally bind the other to any contract, proposal or other commitment or to incur any debt or create any liability on behalf of the other.
13.6 Notices. Any notice, request, designation or other communication required or permitted to be given hereunder shall be in writing and may be given by personal delivery regular mail, overnight mail, facsimile or email, and shall be deemed sufficiently given if delivered or addressed to parties at the respective addresses set forth below, or to such other addresses as may be designated by a party in writing. All notices shall be deemed received when (i) delivered personally; (ii) three (3) business days following deposit in the mail, postage prepaid; or (ii) one (1) day after deposit with a commercial express courier specifying next day delivery, with written verification of receipt.
If to Company:
Name: Array, LLC
Attn: Legal Department
Address: 304 Ponce De Leon Ave Suite 0105
City, State, Zip: San Juan, PR 00918
If to Client:
The address provided in the applicable Order.
13.7 Waiver. No delay or omission or failure to exercise any right or remedy provided for herein will be deemed to be a future waiver thereof and any single or partial exercise of any such right or remedy, power or privilege will not preclude any later exercise thereof.
13.8 Severability. In the event that any provision of this Agreement is held to be invalid, illegal or unenforceable under present or future laws, then such provision will be fully severable and this Agreement will be construed and enforced as if such invalid, illegal or unenforceable provision were not a part hereof.
13.9 Headings. The headings of sections herein are for convenience only and will not be deemed to affect in any way the scope, intent or meaning of the provisions to which they refer.
13.10 Governing Law and Arbitration. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware, without resort to the conflict of law principles thereof. In the event of any controversy, claim or dispute between the parties arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, conscionability or validity thereof, including any determination of the scope or applicability of this Agreement to arbitrate, such controversy, claim or dispute shall be resolved by mandatory, binding arbitration, rather than in court. The parties agree that the arbitration shall be administered by the American Arbitration Association (AAA), or other nationally recognized arbitrator as agreed upon by the parties and the parties shall be bound by any and all rules of AAA or other mutually accepted rules and any award/decision rendered. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all decisions. Any such arbitration shall include a written record of the arbitration hearing, and shall be conducted by an arbitrator as agreed upon by the parties, or if no agreement can be made, then an arbitrator shall be selected by AAA experienced in complex business transactions. The award rendered by the arbitrator shall be final and shall not be subject to vacation or modification. Judgment on the award made by the arbitrator may be entered in any court having jurisdiction over the parties. If either party fails to comply with the arbitrator's award, the injured party may petition the circuit court for enforcement. The parties agree that either party may bring claims against the other only in his/her or its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Further, the parties agree that the arbitrator may not consolidate proceedings of more than one person's claims, and may not otherwise preside over any form of representative or class proceeding. The parties shall share the cost (not any attorneys' fees) of arbitration equally. In the event a party fails to proceed with arbitration, unsuccessfully challenges the arbitrator's award, or fails to comply with the arbitrator's award, the other party is entitled to costs of suit, including a reasonable attorney's fee for having to compel arbitration or defend or enforce the award. Binding Arbitration means that both parties give up the right to a trial by a jury or to use the court system except to enforce this section. It also means that both parties give up the right to appeal from the arbitrator's ruling except for a narrow range of issues that can or may be appealed. It also means that discovery may be severely limited by the arbitrator. This section and the arbitration requirement shall survive any termination.
13.11 Non-Exclusive Remedy. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
13.12 Force Majeure. Neither party will be responsible for any failure or delay in its performance or service under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, by way of illustration but not limitation, network failures, acts of civil or military authorities, fires, interruptions in third party telecommunications, Internet equipment, servers or other third party services, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, terrorism, riot, acts of God or governmental action.
13.13 Conflict. To the extent there is any inconsistency or conflict between this Agreement and an Order or any exhibit or attachment, such Order, exhibit or attachment shall control.
13.14 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A facsimile or electronic delivery of the signature page hereto shall be deemed an original for all purposes hereof.
Last Updated: May 15, 2020
These Consumer Data Terms are hereby incorporated and made a part of the Master Services Agreement (“Agreement”). If these Consumer Data Terms and the terms of the Agreement conflict or are inconsistent, these Consumer Data Terms shall govern and control. Any capitalized terms used herein but not defined shall have the meanings ascribed to them in the Agreement.
Consumer Data. Client understands and agrees that the consumer data offered through the Platform and/or used in conjunction with the Products (“Consumer Data”) is collected and compiled from various sources, such as credit reporting agencies, including but not limited to Experian, Equifax and Transunion and/or other third party data providers (each a “Data Provider”). As such, Consumer Data is not being provided by the Company and is solely hosted and/or provided by and through such Data Providers. In addition to these Consumer Data Terms, Data Providers may have additional terms and conditions or requirements that will govern the use of certain Consumer Data.
Authorization. Client is granted a non-exclusive license and right to access and use, and all Subscribers to access and use the Consumer Data solely for the purposes contemplated in the Agreement, and subject to Client’s compliance with all Applicable Law.
Warranties. Client represents and warrants that it shall (a) market the Consumer Data and related Products solely and directly to the Subscribers, and will use the Consumer Data for no other purpose; (b) provide the Consumer Data and related Products to Subscribers only in accordance with the written instructions and consent of the Subscribers to whom such Products relate, and only to the Subscribers who have been authenticated as required by Applicable Laws; and (c) maintain strict procedures to ensure that such Products are not obtained by any unauthorized person and/or entity.
Changes. Company shall have the right to modify these Consumer Data Terms or discontinue delivery of any or all of the Consumer Data, if it believes in good faith that it cannot provide the Consumer Data without violating Applicable Laws or the requirements of any contract with a Data Provider. In addition, Data Providers may have additional terms and conditions or requirements that will govern the use of certain Consumer Data. Under the foregoing circumstances, Client agrees that the Company can terminate delivery of such affected Consumer Data and related Products or modify these Consumer Data Terms, as the case may be, without penalty, financial obligation, or liability of any kind to Client.
Sample Subscriber Disclosures.
Marketing Materials. Client agrees that it shall not use the terms and/or phrases listed below in any marketing and/or advertising of the Consumer Data and related Products:
• Client must not use the following terms, "improve," "enhance," "boost," "raise," or "increase" in the same phrase as "score" or "rating,"
• Client must not use the phrases "credit repair," "credit rebuilding," "credit fix," "repair your credit," "fix your credit," or combinations of those words.
• Client must not use the terms "advice," "tips," "suggestions" or "instructions" in the same phrase as "improving," "enhancing," "boosting," "raising" or "increasing" a credit score or credit rating.
• When making a statement about the performance of analytic tools available in conjunction with the Credit Products (e.g., a score simulator), marketing and advertising materials must not suggest that a simulated score (or its equivalent) is “always” predictive of one's actual score.
No Warranty. ALL THE CONSUMER DATA PROVIDED BY COMPANY AND/OR A DATA PROVIDER IS PROVIDED "AS IS.". THE COMPANY AND DATA PROVIDERS MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY CONSUMER DATA INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY CONSUMER DATA (OR ANY INFORMATION CONTAINED THEREIN). NO WARRANTIES WILL BE CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE, AND THE COMPANY AND DATA PROVIDERS EXPRESSLY DISCLAIM ALL SUCH REPRESENTATIONS AND WARRANTIES. IN ADDITION, THE COMPANY AND DATA PROVIDERS DO NOT WARRANT THAT THE CONSUMER DATA (OR ANY INFORMATION THEREIN) WILL BE FREE FROM ERRORS, WILL MEET THE CLIENT’S OR SUBSCRIBER’S NEEDS, OR WILL BE PROVIDED ON AN UNINTERRUPTED BASIS SUBJECT TO THE BOUNDARIES OF THESE CONSUMER DATA TERMS.
Last updated: May 15, 2020
THE FOLLOWING PROVISIONS WILL ONLY APPLY IF CLIENT USES THE WHITE LABEL SERVICES.
These White Label Terms are hereby incorporated and made a part of the Master Services Agreement (“Agreement”). If these White Label Terms and the terms of the Agreement conflict or are inconsistent, these White Label Terms shall govern and control. Any capitalized terms used herein but not defined shall have the meanings ascribed to them in the Agreement.
White Label Service. The White Label Service is a service offered by the Company where the Company integrates Client’s branding with the Platform, offering a full line of Products and Services, including management and support services, as set forth herein these White Label Terms.
Marketing and Advertising.
• Website. Company shall provide Client with access to pre-coded web styling and features to build a Client website with Platform integration and access to the Products. Company shall assist in Client website branding, including incorporation of Client name and logo and skinning of the website in Client’s selected primary and secondary colors. Client shall utilize the Platform to market and offer supported Products to its Subscribers.
• Domains. Client is responsible for securing a URL, however, custom URLs may be available upon request for a fee indicated by the Company. Client is responsible for clearing any trademark or other intellectual property concerns connected with a URL as well as securing the URL via a registrar service. A copyright notice with Client’s name and Terms of Service shall appear on the Client white-label website.
• Marketing. Client is responsible for all marketing efforts to the prospective Subscribers. Client acknowledges that the Company may request from time to time that Client submit for prior approval, which approval will not be unreasonably withheld, any and all brochures, press releases, internet postings, marketing, advertising promotional or any other materials to be used by Client in conjunction with the White Label Service.
• Reputation. Client acknowledges and agrees that it will maintain relationships with applicable business reputation, consumer marketplace and/or consumer review businesses and websites (e.g. Better Business Bureau, Consumer Business Alliance, etc.) (hereinafter “Business Review Sites”), and will timely respond to all inquiries and requests from any Business Review Site. Additionally, Client acknowledges and agrees that it will timely respond to any governmental agency or governmental authority (e.g. Attorney General, Federal Trade Commission, etc.) inquiry or request.
• Data Collection. Company may collect, use, share, sell and store data made available via the white-label website solely in connection with the Platform and in accordance with the Agreement and all applicable laws.
Merchant Processing and Account Settlement Services. Company does not provide merchant processing accounts. Client shall establish its own merchant and/or payment processing relationships, and collect payments from Subscribers using its own merchant processing account(s). Additionally, Client agrees to comply with all Visa and Mastercard and other merchant rules and regulations and all payment processing requirements which may change from time to time. Company shall assist with merchant account coordination, including being a liaison with the Client merchant processor, integrate Client merchant accounts, and monitor transaction health.
Chargeback Services. Each Client is fully responsible for providing its own merchant processing and mitigating chargebacks and fraud relating to such merchant processing. Company can provide chargeback services, including responding and reporting services on behalf of Client (collectively the “Chargeback Services”) as set forth herein to assist the Client with its chargeback mitigation process.
• Services and Tools. Upon request, the Company shall assist with website and sales process review for compliance processes and procedures. Company shall utilize inhouse tools used with incoming sales through the Platform, including scrubbing subscribers against internal chargeback databases and negative IP addresses, site utilization metrics, velocity screening, and IP geolocation. Additionally, Company shall provide access to third party tools, such as digital fingerprinting, knowledge based authentication, and shared device reputation.
• Responding. Company will flag customer records that initiated chargebacks through our inhouse system, respond to retrieval requests, and respond to certain properly documented chargebacks based on reason codes, and other criteria as agreed to by Company and Client.
• Reporting. Company shall provide access to internal diagnostic reporting and forecasting. Analytics available include order id, case id, chargeback date, reason code, order source, chargeback status, and more.
• Access to Daily Chargeback and Retrievals. In order to provide Chargeback Services, Client shall provide Company with access to all incoming chargeback and retrieval requests and any other merchant and customer data required to perform services.
• No Warranties or Guarantees. Company does not provide any warranties or guarantees with respect to the Chargeback Services. Disputing a chargeback does not guarantee the issuing bank will reach an agreement in Client’s favor or that there will be a positive outcome. Chargeback dispute resolutions are are solely determined by the rules and regulations set by financial institutions and card payment brands.
• No Liability. Third party mitigation tools or software are not owned, operated or controlled by Company, and Company does not endorse, guarantee, or make any representations or warranties regarding any third party tools or software, and Company expressly disclaims any and all liability in connection with any of the Chargeback Services including but not limited to such third party tools or software. Client acknowledge that any use or reliance upon the Chargeback Services or such third party mitigation tools or software shall be at the Client’s sole risk. Company is not responsible or liable, indirectly or directly, for any damage or loss caused or alleged to be caused by or in connection with such use or reliance on such Chargeback Services or third party mitigation tools or software, and Client waives the right to bring or assert any claim against the Company relating to any use or reliance on the Chargeback Services or such third party mitigation tools, and Client further releases Company from any and all liability for or relating to any Chargeback Service or use or reliance on such mitigation tools.
Exclusivity. In consideration of the Agreement and these White Label Terms, and for the Company to provide the White Label Services to Client and to charge Client at the Fees set forth on an applicable Order, Client agrees that the Agreement shall be exclusive as to the Client, and that Company will be the sole provider of the Platform, including providing access to supported Products, for the term of the Agreement. CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT CLIENT’S FAILURE TO COMPLY WITH THE OBLIGATIONS SET FORTH HEREIN SHALL BE DEEMED A MATERIAL BREACH OF THE AGREEMENT.
Platform Pricing. Platform Services are billed at 30% of the Net Revenue (as such term is defined and mutually agreed to by the parties) generated by the Client from each of the Subscribers, unless otherwise set forth in an applicable Order (“Platform Fee”). Platform Fees may be amended, supplemented or updated from time to time upon thirty (30) days notice and agreement by the parties.
Last Updated: May 15, 2020
THE FOLLOWING PROVISIONS WILL ONLY APPLY IF CLIENT USES THE OFFERS ENGINE PRODUCT.
These Offers Engine Terms are hereby incorporated and made a part of the Master Services Agreement (“Agreement”). If theseOffers Engine Terms and the terms of the Agreement conflict or are inconsistent, these Offers Engine Terms shall govern and control. Any capitalized terms used herein but not defined shall have the meanings ascribed to them in the Agreement.
Offers Engine Service.
Offers Engine is an online credit reporting tool whereby a Client can order and view a report of certain defined consumer credit data (“OE Report”) via a soft credit pull, for the purpose of providing personalized credit offers to the consumer (“Offers Engine Service”). Offers Engine only needs the consumer’s name and address to generate the OE Report, which can then be used to determine targeted products or services that could be offered to the consumer.
Prior to requesting an OE Report, the Client must first obtain the consumer’s name and address, and proper written consent from the consumer to pull the consumer credit data. Typically during the lead collection process, the Client or Client marketing partner shall require the consumer to authorize and consent to obtaining the consumer’s credit data for the purpose of targeted offers for products and services. Once consent is collected and the Client provides the name and address to the Company via API, then the OE Report will be generated and provided to the Client.
Form of Consent.
A standard disclosure should be displayed to the consumer in the following or similar text and format:
You understand by clicking on the “Submit” button below, you agree you are providing "written instructions" to [COMPANY] authorizing [COMPANY] to obtain your credit profile from any consumer reporting agency which can be used to evaluate your financial history for the purpose of providing you with targeted offers based on your credit profile.
Representations and Warranties.
Client represents and warrants that (1) Client shall obtain proper consumer consent for the use of the consumer credit data prior to requesting an OE Report; (2) Client shall use the OE Report to match the consumer with relevant offers based on the consumer’s credit data, and shall use the OE Report for no other purpose; and (3) Client shall not provide or display the OE Report to the consumer.
When requesting credit data from a consumer, Client shall request and use the consumer credit data strictly in accordance with the FCRA. Client acknowledges and warrants that Client’s use of the consumer credit data will be limited to a permissible purpose and no other purpose, and Client will not request or use the consumer credit data for any other purpose including, without limitation, any purpose prohibited by law. USER ACKNOWLEDGES THAT 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.
Notice to Clients.
Client acknowledges that it has received, read and understands the Notice to Clients of Consumer Reports available here.
Last Updated: May 15, 2020
THE FOLLOWING PROVISIONS WILL ONLY APPLY IF CLIENT USES THE REPORT SHARE PRODUCT.
These Report Share Terms are hereby incorporated and made a part of the Master Services Agreement (“Agreement”). If these Report Share Terms and the terms of the Agreement conflict or are inconsistent, these Report Share Terms shall govern and control. Any capitalized terms used herein but not defined shall have the meanings ascribed to them in the Agreement.
Report Share is an online service provided by Company that connects a consumer with a Client, and whereby a consumer authorizes a Client, for a limited time, to view certain and limited consumer data reports (“Reports”), which may include consumer credit information and additional consumer background data about the consumer (the “Report Share Service”).
Client may request consumer Reports through the Report Share Service by providing the consumer’s personal information, including name, address, cell phone and email addresses of those consumers that Reports are desired. Company will send an email and/or SMS on Client’s behalf requesting consumer authorization to access and view the Reports.
A consumer that participates in the Report Share Service shall be required to provide written instructions and authorization (a) to Client to access and view certain and limited consumer credit data; (b) to Client to access and view certain and limited consumer background data; and (c) to Company to provide and share certain and limited consumer credit data and background data to a Client.
When a consumer authorizes Company to provide a Report to a Client, including the consumer’s credit data and background data, and authorizes specific Clients to access and view the Report, then the Clients will have access for up to thirty days from the date of the consumer’s most recent order for the Report (“Access Period”). Each Client may access the consumer’s then current credit data during the Access Period associated with the applicable order for credit data unless the consumer cancels or terminates the authorization for any such Client. The Access Period can only be extended upon a new authorization from the consumer.
When requesting credit information from a consumer, Client shall request and use the credit data strictly in accordance with the FCRA. Client acknowledges and warrants that Client’s use of the credit data will be limited to a permissible purpose and no other purpose, and Client will not request or use the credit data for any other purpose including, without limitation, any purpose prohibited by law. USER ACKNOWLEDGES THAT 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.
Notice to Clients.
Client acknowledges that it has received, read and understands the Notice to Clients of Consumer Reports available here.
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 Web site. 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.
A. Users Must Have a Permissible Purpose
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:
• As ordered by a court or a federal grand jury subpoena. Section 604(a)(1)
• As instructed by the consumer in writing. Section 604(a)(2)
• For the extension of credit as a result of an application from a consumer, or the review or collection of a consumer's account. Section 604(a)(3)(A)
• For employment purposes, including hiring and promotion decisions, where the consumer has given written permission. Sections 604(a)(3)(B) and 604(b)
• For the underwriting of insurance as a result of an application from a consumer. Section 604(a)(3)(C)
• When there is a legitimate business need, in connection with a business transaction that is initiated by the consumer. Section 604(a)(3)(F)(i)
• To review a consumer's account to determine whether the consumer continues to meet the terms of the account. Section 604(a)(3)(F)(ii)
• To determine a consumer's eligibility for a license or other benefit granted by a governmental instrumentality required by law to consider an applicant's financial responsibility or status. Section 604(a)(3)(D)
• For use by a potential investor or servicer, or current insurer, in a valuation or assessment of the credit or prepayment risks associated with an existing credit obligation. Section 604(a)(3)(E)
• For use by state and local officials in connection with the determination of child support payments, or modifications and enforcement thereof. Sections 604(a)(4) and 604(a)(5)
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.
B. Users Must Provide Certifications
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.
C. Users Must Notify Consumers When Adverse Actions Are Taken
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.
1. Adverse Actions Based on Information Obtained From a CRA
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:
• The name, address, and telephone number of the CRA (including a toll-free telephone number, if it is a nationwide CRA) that provided the report.
• A statement that the CRA did not make the adverse decision and is not able to explain why the decision was made.
• A statement setting forth the consumer's right to obtain a free disclosure of the consumer's file from the CRA if the consumer makes a request within 60 days.
• A statement setting forth the consumer's right to dispute directly with the CRA the accuracy or completeness of any information provided by the CRA.
2. Adverse Actions Based on Information Obtained From Third Parties Who Are Not 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 60 days of notification. The user must provide the disclosure within a reasonable period of time following the consumer's written request.
3. Adverse Actions Based on Information Obtained From Affiliates
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 as set forth in I.C.1 above.
D. Users Have Obligations When Fraud and Active Duty Military Alerts are in Files
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.
E. Users Have Obligations When Notified of an Address Discrepancy
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, which will be issued by the Consumer Financial Protection Bureau and the banking and credit union regulators. The Consumer Financial Protection Bureau's regulations will be available at www.consumerfinance.gov/learnmore.
F. Users Have Obligations When Disposing of Records
Section 628 requires that all users of consumer report information have in place procedures to properly dispose of records containing this information. The Consumer Financial Protection Bureau, the Securities and Exchange Commission, and the banking and credit union regulators have issued regulations covering disposal. The Consumer Financial Protection Bureau's regulations may be found at www.consumerfinance.gov/learnmore.
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 to be jointly prescribed by the Consumer Financial Protection Bureau and the Federal Reserve Board.
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").
A. Employment Other Than in the Trucking Industry
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:
• Make a clear and conspicuous written disclosure to the consumer before the report is obtained, in a document that consists solely of the disclosure, that a consumer report may be obtained.
• Obtain from the consumer prior written authorization. Authorization to access reports during the term of employment may be obtained at the time of employment.
• Certify to the CRA that the above steps have been followed, that the information being obtained will not be used in violation of any federal or state equal opportunity law or regulation, and that, if any adverse action is to be taken based on the consumer report, a copy of the report and a summary of the consumer's rights will be provided to the consumer.
• Before taking an adverse action, the user must provide a copy of the report to the consumer as well as the summary of consumer's rights. (The user should receive this summary from the CRA.) A Section 615(a) adverse action notice should be sent after the adverse action is taken.
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.
B. Employment in the Trucking Industry
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 subjects 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:
• The user must disclose to the consumer that an investigative consumer report may be obtained. 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.)
• The user must certify to the CRA that the disclosures set forth above have been made and that the user will make the disclosure described below.
• Upon the written request of a consumer made within a reasonable period of time after the disclosures required above, the user must make a complete disclosure of the nature and scope of the investigation. This must be made in a written statement that is mailed, or otherwise delivered, to the consumer no later than five days after the date on which the request was received from the consumer or the report was first requested, whichever is later in time.
SectiSection 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 regulations issued by the banking and credit union regulators) – 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).on 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 regulations issued by the banking and credit union regulators) – 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).
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. Sections 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:
• Information contained in a consumer's CRA file was used in connection with the transaction.
• The consumer received the offer because he or she satisfied the criteria for credit worthiness or insurability used to screen for the offer.
• Credit or insurance may not be extended if, after the consumer responds, it is determined that the consumer does not meet the criteria used for screening or any applicable criteria bearing on credit worthiness or insurability, or the consumer does not furnish required collateral.
• The consumer may prohibit the use of information in his or her file in connection with future prescreened offers of credit or insurance by contacting the notification system established by the CRA that provided the report. The statement must include the address and toll-free telephone number of the appropriate notification system.
In addition, once the CFPB has established the format, type size, and manner of the disclosure required by Section 615(d), users must be in compliance with the rule.
A. Disclosure and Certification Requirements
Section 607(e) requires any person who obtains a consumer report for resale to take the following steps:
• Disclose the identity of the end-user to the source CRA.
• Identify to the source CRA each permissible purpose for which the report will be furnished to the end-user.
• Establish and follow reasonable procedures to ensure that reports are resold only for permissible purposes, including procedures to obtain:
(1) the identity of all end-users;
(2) certifications from all users of each purpose 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.
B. Reinvestigations by Resellers
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.
C. Fraud Alerts and Resellers
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 Web site, 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 60215 U.S.C. 1681
Section 60315 U.S.C. 1681a
Section 60415 U.S.C. 1681b
Section 60515 U.S.C. 1681c
Section 605A15 U.S.C. 1681cA
Section 605B15 U.S.C. 1681cB
Section 60615 U.S.C. 1681d
Section 60715 U.S.C. 1681e
Section 60815 U.S.C. 1681f
Section 60915 U.S.C. 1681g
Section 61015 U.S.C. 1681h
Section 61115 U.S.C. 1681i
Section 61215 U.S.C. 1681j
Section 61315 U.S.C. 1681k
Section 61415 U.S.C. 1681l
Section 61515 U.S.C. 1681m
Section 61615 U.S.C. 1681n
Section 61715 U.S.C. 1681o
Section 61815 U.S.C. 1681p
Section 61915 U.S.C. 1681q
Section 62015 U.S.C. 1681r
Section 62115 U.S.C. 1681s
Section 62215 U.S.C. 1681s-1
Section 62315 U.S.C. 1681s-2
Section 62415 U.S.C. 1681t
Section 62515 U.S.C. 1681u
Section 62615 U.S.C. 1681v
Section 62715 U.S.C. 1681w
Section 62815 U.S.C. 1681x
Section 62915 U.S.C. 1681y