Background Checks by ClearCompany - Terms and Conditions

ALL CLEAR SCREENING, LLC.

MASTER SERVICE AGREEMENT

PLEASE READ THIS MASTER SERVICE AGREEMENT CAREFULLY BEFORE USING THE PLATFORM (DEFINED BELOW) OFFERED BY ALL CLEAR SCREENING, LLC (“ACS”).  BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS FOR THE PLATFORM WITH ACS WHICH REFERENCE THIS MASTER SERVICE AGREEMENT (EACH, AN “ORDER FORM”), YOU, ON BEHALF OF THE ENTITY FOR WHICH YOU ARE ENTERING INTO THIS AGREEMENT AGREE TO BE BOUND BY THIS MASTER SERVICE AGREEMENT (TOGETHER WITH ALL ORDER FORMS AND ANY OTHER POLICIES, TERMS AND CONDITIONS REFERENCED IN OR LINKED TO THIS AGREEMENT OR ANY ORDER FORM, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS, AND YOU REPRESENT THAT YOU HAVE LEGAL AUTHORITY TO BIND THE SUBSCRIBER.  IN ADDITION, ANY ONLINE ORDER FORM THAT YOU SUBMIT VIA ACS’S STANDARD ONLINE PROCESS AND THAT IS ACCEPTED BY ACS SHALL BE DEEMED TO BE MUTUALLY EXECUTED.  IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

THIS AGREEMENT MAY BE AMENDED BY ACS BY POSTING ANY NEW OR MODIFIED VERSION OF THIS AGREEMENT ON ACS’ WEBSITE LOCATED AT https://clearco.zendesk.com/hc/en-us/articles/9979391388955 OR ANY SUCCESSOR WEBSITE.  SUBSCRIBER’S SUBMISSION OF ANY ORDER FORM OR CONTINUED USE OF THE PLATFORM AFTER SUCH POSTING SHALL CONSTITUTE ACCEPTANCE OF ANY SUCH NEW OR MODIFIED VERSION OF THIS AGREEMENT.

THIS AGREEMENT IS CONTINGENT UPON ACS RECEIVING AND APPROVING SUBSCRIBER’S APPLICATION TO BECOME A CUSTOMER OF ACS. SUBSCRIBER MUST PROVIDE COMPLETE AND ACCURATE INFORMATION IN SUCH APPLICATION.

1. PLATFORM.

1.1 Platform. For each Order Form, subject to the terms and conditions of this Agreement (including the applicable Order Form) ACS grants Subscriber the right to use ACS’ background screening services platform with respect to Consumers (defined below) for employment purposes as defined under the FCRA (defined below) (“Employment Purposes”), as set forth in such Order Form (collectively, the “Platform”) during the applicable Order Form Term (defined below) for Subscriber’s internal business purposes, only as provided herein and in accordance with ACS’s applicable official user documentation for the Platform (the “Documentation”).“Consumer” means an individual applicant who is the subject of a background check in support of an application for employment or engagement [(or their continued employment or engagement)] as an independent contractor by Subscriber. Upon payment of the fees set forth in each Order Form, pursuant to the Agreement, ACS agrees to use its commercially reasonable efforts to provide the Platform, including using PII, as defined herein, submitted by the Consumer to conduct a background check on the Consumer (the “Background Information”) and generating a consumer report or other applicable screening product offered by ACS (as defined under the FCRA and other applicable Laws (defined below) (a “Report”), including a credit report and an Investigative Consumer Report (as defined under the FCRA), if applicable.

1.2 Updates. ACS may change the features, functionality, format, support, and maintenance of the any portion of the Platform or any Report from time to time, or discontinue the provision of any part of the Platform or any Report, in its sole discretion. ACS will use its commercially reasonable efforts to provide 30 days advance notice of any material and adverse changes to any Platform or Report features or functionality. Subscriber acknowledges and agrees that within 30 days of a Report completion date, ACS may update the Report as part of our quality assurance purposes. In such cases, ACS will provide Subscriber and the Consumer a copy of the updated Report.

2. SUBSCRIBER OBLIGATIONS.

2.1 Compliance with the Fair Credit Reporting Act. Subscriber hereby represents, warrants, certifies and covenants, as of the date of this Agreement and at the time each Order Form is submitted, that: (i) Subscriber is, and shall be at all times during the term of this Agreement, a legitimate business entity properly licensed based on local laws, when applicable; (ii) Subscriber will use the Platform solely for employment purposes only as defined by the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (“FCRA”), including hiring and promotion decisions as permitted by FCRA; (iii) Subscriber will obtain the Consumer’s written authorization as required by any applicable Laws, as defined herein, prior to ordering any Reports using the Platform and will verify that all Consumer personal information provided to ACS is accurate and belongs to the Consumer for whom the Report is requested; (iv) Subscriber is, and will during the term be, the business type stated in the Order Form or other information submitted by Subscriber to ACS; (v) Subscriber has a need for consumer credit information in connection with the foregoing permissible employment purposes; (vi) Subscriber and its Authorized Users have complied with all applicable Laws with respect to the collection, transfer, use or other processing of any Consumer Information uploaded or provided by Subscriber or any Authorized User, including proper disclosures and obtaining all required consents from each Consumer to transfer that Consumer Information to ACS (or its licensors or suppliers) in the United States or elsewhere; (vii) Subscriber shall make available to ACS the minimum amount of PII, as defined herein, necessary for ACS to carry out ACS’s obligations; and (viii) Subscriber is in compliance with, and during the term shall comply with, the FCRA and all other local, state, Federal, national, international and foreign laws, rules, regulations, treaties and requirements (collectively, “Laws”) for obtaining and using consumer credit information.  Subscriber further acknowledges and agrees that the Reports provided by ACS do not verify a Consumer’s identity and that it is Subscriber’s sole responsibility to comply with all applicable Laws in using the Platform and any Reports provided by ACS, including any Laws that require a copy of the Report be provided to the Consumer upon request.   To the extent Subscriber or a Consumer authorizes ACS to provide a copy of the Report to a Consumer, Subscriber hereby authorizes ACS to provide such report to the Consumer.  “Consumer Information” means any of the following: (a) information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular Consumer or other data that constitutes personal information, personal data or any like term under any applicable law, including any Social Security Numbers or driver’s license numbers (“PII”); (b) non-public information as defined in the Graham-Leach-Bliley Act of 1999; and (c) any information in a consumer report as defined in the FCRA.  Subscriber covenants not to sue ACS or any of ACS’ licensors or suppliers of any software, product or service provided or used in connection with the Platform with respect to any PII provided through the Platform .

NOTICE OF PENALTY UNDER THE FCRA. 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 OF THE UNITED STATES CODE OR IMPRISONED NOT MORE THAN TWO YEARS, OR BOTH.

2.2 Reports. Upon ACS’s request, Subscriber may need to supply written authorization to report the requested Subscriber Data. Subscriber agrees that ACS will not commence the requested Platform services until the requested written authorization is received. Subscriber agrees that if for any reason ACS executes its responsibilities to conclude a Platform service but cannot complete information requested by Subscriber because a third party fails to supply the information (i.e., the Consumer or any organization that was designated by the Consumer to ACS did not provide the information in response to inquiries for that information), ACS’s obligations will have been satisfied and Subscriber will be billed and responsible for that Platform service.  Subscriber shall: (i) request and use each Report only for the permissible purpose(s) that Subscriber certified in the applicable Order Form and for which Subscriber is permitted by Laws to use the Report; (ii) use each Report within 30 days of its completion date; (iii) develop and follow reasonable procedures for compliance with Laws and for the fair and equitable use of the Reports and information contained therein; (iv) make any decisions based on the Reports in compliance with applicable Law; (v) hold the Reports in strict confidence and not disclose the Reports, unless required by Law, to any third parties; (vi) strictly comply with all confidentiality and security obligations set forth in this Agreement; (vii) provide all notices to the Consumer required under FCRA and any other applicable Laws when using the Reports or any information contained therein; (viii) maintain up-to-date compliance locations with each Report request, based on Subscriber’s applicable package configuration and account segmentation, and ensure such information is correctly reflected as communicated with ACS and entered in the Platform; (ix) maintain complete and accurate records of all required consents, authorizations and disclosure forms of each Consumer for whom Subscriber requests a Report, as required by Law, and make such records available to ACS upon request, including any forms provided through the Platform that Subscriber has adopted and approved for its own use; and (x) provide notice and obtain the Consumer’s consent to receive from Subscriber and from ACS, as applicable, any privacy, legal or other notices and communications electronically, including by email, phone or SMS message, and to obtain such consent in compliance with U.S. Electronic Signatures in Global and National Commerce Act of 2000.

2.3 Acknowledgement. Subscriber acknowledges receipt of and certifies that it has reviewed and fully understands the following three statutory notices:

(i) Summary of Rights Under the Fair Credit Reporting Act (16 C.F.R. Part 601) located at https://files.consumerfinance.gov/f/201504_cfpb_summary_your-rights-under-fcra.pdf

(ii) Remedying the Effects of Identity Theft located at https://files.consumerfinance.gov/f/201410_cfpb_summary_remedying-the-effects-of-id-theft-fcra.pdf

(iii) Notice to Users of Consumer Reports (16 C.F.R. Part 601) located at https://www.govinfo.gov/app/details/CFR-2005-title16-vol1/CFR-2005-title16-vol1-part601/summary

Subscriber authorizes the use of the documents and links above with its individual Consumers through ACS and the Platform. Subscriber shall provide each such Consumer the documents and links above when applicable, as well as any statutory notices required by applicable Law.

2.4 California Certification. To the extent applicable to Subscriber or any Report requested by Subscriber, Subscriber certifies that, under the Investigative Consumer Reporting Agencies Act (“ICRAA”), California Civil Code Sections 1786 et seq., and the Consumer Credit Reporting Agencies Act (“CCRAA”), California Civil Code Sections 1785.1 et seq., if Subscriber is located in the State of California, and/or Subscriber’s request for and/or use of Reports pertains to a California resident or worker, Subscriber certifies to all of the following:

(i) When, at any time, Reports are sought for Employment Purposes, unless a legal exception otherwise applies, Subscriber has provided a clear and conspicuous disclosure in writing to the Consumer, which solely discloses: (1) that an Investigative Consumer Report may be obtained; (2) the permissible purpose of the Investigative Consumer Report; (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 investigation requested, including a summary of the provisions of California Civil Code Section 1786.22.
(ii) When, at any time, Reports are sought for Employment Purposes, unless a legal exception otherwise applies, Subscriber will only request a Report if the applicable Consumer has authorized in writing the procurement of the Report.

(iii) In accordance with California Civil Code Sections 1786.16(a)(5) and (b). Subscriber will provide a means by which the Consumer may indicate on a written form, by means of a box to check, that he/she wishes to receive a copy of any Reports that are prepared. If the Consumer wishes to receive a copy of the Report, Subscriber shall send (or contract with another entity to send) a copy of the Report to the Consumer within three business days of the date that the Report is provided to Subscriber. The copy of the Report shall contain the name, address, and telephone number of ACS, who issued the report, and how to contact ACS.

(iv) Under all applicable circumstances, Subscriber will comply with California Civil Code Sections 1785.20 and 1786.40 in the taking of adverse action, 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 Report, informing the Consumer in writing of Subscriber’s name, address, and telephone number, and provide the Consumer of a written notice of his/her rights under the ICRA and the CCRAA.

2.5 Massachusetts Criminal Record Information Policy. To the extent applicable to Subscriber or any Report requested by Subscriber, Subscriber certifies that, under the Commonwealth of Massachusetts’s Criminal Offender Record Information (“CORI”) law, if Subscriber is located in the Commonwealth of Massachusetts, and/or Subscriber’s request for and/or use of Reports pertains to a Massachusetts resident or worker, Subscriber certifies to all of the following:

(i) Before asking a Consumer about their criminal records, Subscriber will provide the Consumer with copies of these records if Subscriber is in possession of such records;

(ii) Before taking adverse action based, in whole or in part, on criminal history records, Subscriber will notify the Consumer of the potential adverse employment decision by sending required pre-adverse and adverse action notices and any other applicable notices. The pre- adverse action notice will include the criminal history records, the sources of the records, a copy of Subscriber’s CORI policy, and a copy of information from the state agency about the process for correcting a criminal record; and

(iii) Subscriber will also provide the Consumer with an opportunity to dispute the accuracy of the criminal history records by waiting at least five business days before taking final adverse action.

2.6 International Background Screenings. To the extent applicable to Subscriber or any Report requested by Subscriber, Subscriber certifies that Subscriber will comply with all international Laws, including but not limited to the GDPR (defined below) belonging to the country in which the Consumer currently resides or will be employed within. In addition to all other applicable certifications in this Section, Subscriber certifies and agrees:

(i) To take into consideration the nature, scope and context of the purpose to which Subscriber certifies in each applicable Order, and to only request screenings that are directly relevant and necessary to the certified purpose;

(ii) To only request screenings when a lawful basis of processing can be relied upon; and

(iii) To limit use of Background Information to the purpose to which Subscriber certifies in each applicable Order.

2.7 Employment Purposes. If Subscriber uses or requests a Report for Employment Purposes, Subscriber certifies and agrees as follows:

(i) Subscriber will not request a Report for Employment Purposes unless: (a) Subscriber has made a clear and conspicuous disclosure in writing to the Consumer before the Report is obtained, in a document that consists solely of the disclosure that a consumer report may be obtained for Employment Purposes; (b) the Consumer has authorized in writing the procurement of the Report; and (c) information from the Report will not be used in violation of any employment opportunity Laws.

(ii) Before taking adverse action in whole or in part based on a Report for Employment Purposes, Subscriber will provide the Consumer with: (a) copy of the Report for Employment Purposes, as applicable; (b) a copy of the Consumer’s rights, in the format approved by the Consumer Financial Protection Bureau; and (c) the required pre-adverse action notice and any other assessment forms or notices required by applicable Law.

(iii) Subscriber understands that ACS will not initiate a Report for Employment Purposes in the absence of a written authorization.

(iv) Subscriber shall request a Report for Employment Purposes pursuant to procedures prescribed by ACS from time to time only when Subscriber is considering the Consumer inquired upon for employment, promotion, reassignment or retention as an employee or contractor, and for no other purpose.

(v) If, and only if, Subscriber requests credit bureau data, Subscriber is not any of the following types of persons, entities and/or businesses: bail bondsmen, credit counseling firms, 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, 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.

(vi) Even though ACS will use commercially reasonable efforts to notify Subscriber of a failure to deliver any notices, authorizations, disclosures, pre-adverse or adverse action letters, Subscriber understands that the use of the Platform, including without limitation, the adverse action features, does not relieve Subscriber of its responsibilities under this Agreement. If ACS notifies Subscriber of a delivery failure for any notice or adverse action letter, it is Subscriber’s responsibility as an end user to monitor and complete deliverability or take any other appropriate action necessary to complete Subscriber’s required obligations.

2.8 Motor Vehicle Record (“MVR”) Purposes. If Subscriber requests MVRs and/or driving records, it certifies and agrees as follows:

(i) Subscriber is ordering the MVRs and/or driving records in strict compliance with the Driver Privacy Protection Act (“DPPA”, at 18 U.S.C. § 2721 et seq.), if it applies, and any other applicable Laws;

(ii) Subscriber has the Consumer’s written consent to obtain “driving records” and MVRs, and have stored original copies of such consents for audit by MVR regulators if they so request, or have otherwise satisfied this obligation (e.g., the Consumer consent secured via the Platform).

(iii) Subscriber will not transmit any data contained in the MVR via the public internet, email or any other unsecured means.

(iv) Default MVR filters are made available as a reference solely for Subscriber’s efficiency, and Subscriber’s use of such MVR filters means that Subscriber has reviewed and approved such categories.

2.9 Investigative Reports. If Subscriber requests an Investigative Consumer Report, Subscriber certifies and agrees as follows:

(i) Subscriber has clearly and accurately disclosed to the Consumer, not later than three days after the date on which the Investigative Consumer Report was first requested, that (a) an Investigative Consumer Report including information as to the Consumer’s character, general reputation, personal characteristics and mode of living may be made and (b) the Consumer has the right to request a complete and accurate disclosure of the nature and scope of the investigation requested (“Investigative Report Disclosure”).

(ii) The Investigative Report Disclosure shall include a copy of the Consumer’s rights, in the format approved by the Consumer Financial Protection Bureau.

(iii) If the Consumer makes a written request within a reasonable amount of time after receipt of the Investigative Report Disclosure, Subscriber will make a complete and accurate written disclosure of the nature and scope of the investigation requested. 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 later.

2.10 Subscriber Custom Rules. If Subscriber elects, in its sole discretion, to implement and/or customize the set of rules that control how Report content is filtered, categorized, or displayed on a Report (“Subscriber Custom Rules”), Subscriber certifies as follows:

(i) To the extent Subscriber elects to implement and/or customize Subscriber Custom Rules and to the extent permitted by Law, Subscriber authorizes ACS to apply such Subscriber Custom Rules to the information contained in a Report in order to facilitate Subscriber’s adjudication process provided that, Subscriber acknowledges and agrees that it is solely responsible for: (a) the Subscriber Custom Rules and for any decisions taken based on the Subscriber Custom Rules; (b) determining when and whether to apply the outcomes from the application of the Subscriber Custom Rules to Subscriber’s evaluation of a Report; (c) reviewing the content of the Reports in the manner and method prescribed by applicable Law, including, but not limited to, conducting and/or documenting individualized assessments and performing final adjudications on all Reports; and (d) ensuring that Subscriber’s utilization of the Subscriber Custom Rules in evaluating the Reports and in Subscriber’s final adjudication is in compliance with all applicable Laws. Subscriber acknowledges and agrees that ACS is not liable for any application of the Subscriber Custom Rules, and application of the Subscriber Custom Rules is purely clerical in nature and performed by ACS on Subscriber’s behalf. Subscriber further acknowledges and agrees that ACS is not authorized to make any decision regarding employment, or any other decision on Subscriber’s behalf, based on the information contained in a Report.

(ii) Subscriber certifies that it has reviewed and will review the Subscriber Custom Rules to ensure that they comply with applicable Law, and that Subscriber will regularly update such Subscriber Custom Rules in order to ensure Subscriber’s ongoing and continued compliance with applicable Law.

(iii) With each order for a Report, Subscriber reaffirms the statements and certification in this Section.

(iv) Subscriber certifies and agrees that the application and/or customization of any Subscriber Custom Rules is made available as a reference solely to facilitate Subscriber’s adjudication obligations and Subscriber’s use of such Subscriber Custom Rules means that Subscriber has reviewed and approved ACS’s classification of record categories and that Subscriber adopts the Subscriber Custom Rules as its own.

2.11 Drug Tests. This Section shall apply if Subscriber elects, in its sole discretion, to order drug tests for a Consumer. ACS will arrange for such drug tests as Subscriber may request and will include the results of those tests for a Consumer received from drug test providers in Reports. Subscriber understands and represents that any drug test that Subscriber may request or require is requested in accordance with any applicable Laws, including the FCRA, if applicable. Drug tests for a Consumer will be performed by a third-party vendor in accordance with directions received by Subscriber.

2.12 Continuous Check Service. If Subscriber elects, in its discretion, to use the Continuous Check Service, the following shall apply:

(i) At Subscriber’s election and for the price(s) set forth on the applicable Order Form, ACS will provide criminal record monitoring services and products to identify other criminal activity of a specific Consumer after such Consumer’s initial onboarding and Report by ACS and monitor for subsequent court-related activity as an extension of ACS’s existing background screening process (the “Continuous Check Service”). ACS will provide a new Report whenever any component of the Continuous Check Service returns pointers to reportable information on such Consumer to the extent permitted by law. ACS must have completed a Report with a criminal search on such Consumer on Subscriber’s behalf in order to enroll such Consumer in the Continuous Check Service.

(ii) Subscriber shall be responsible for obtaining and maintaining all required disclosures, notices, and consents from each such Consumer (including any state-specific consent requirements) prior to such Consumer’s inclusion in the Continuous Check Service. Subscriber reaffirms the certifications made with its ongoing use of the Continuous Check Services. Subscriber is solely responsible for maintaining an up-to-date list of each such Consumer to be included in the Continuous Check Service in accordance with applicable Laws and re-obtaining consent if such Consumer is removed and later re-subscribed in the Continuous Check Service.

(iii) Subscriber shall pay ACS a monthly fee for each Consumer subscribed to the Continuous Check Service at any time within a calendar month, as set forth the applicable Order or an exhibit attached thereto (“Subscription Fee”). Subscriber is solely responsible for maintaining an up-to-date list of each such Consumer to be included in the Continuous Check Service for invoicing purposes.

2.13 Third Party Services. Subscriber may, in its sole discretion, choose to take advantage of certain services offered by ACS that are created, offered, supported and maintained by third parties unaffiliated with ACS or its affiliates (collectively, “Third Party Services”). Notwithstanding anything to the contrary in this Agreement, Subscriber acknowledges and agrees that: (i) Subscriber accesses or deploys Third Party Services through ACS at Subscriber’s sole discretion; (ii) Subscriber is responsible for reading, and should read, the terms and conditions and privacy policies associated with any Third Party Services which govern Subscriber’s use of such Third Party Services; and (iii) ACS does not own or control any providers of Third Party Services. Subscriber further acknowledges and agrees that ACS is not responsible or liable for any such Third Party Services or acts or omissions of any developer or provider of such Third Party Services, under any circumstances. ACS does not in any way warrant the accuracy, reliability, security, completeness, usefulness, non-infringement, or quality of any Third Party Services (including without limitation the content contained therein). Subscriber acknowledges and agrees that it bears all risks associated with using or relying on any Third Party Services. If Subscriber has any questions about Third Party Services or the terms that govern the use of such Third Party Services, it should contact the provider of the applicable Third Party Services directly.

2.14 National/Multi-State/County Database; Additional Costs. ACS recommends that Subscriber screen applicants at the county courthouse or online system, federal, and multi­state/nationwide database levels. If Subscriber elects not to conduct certain searches or searches at these levels, ACS is not liable for any records that exist at such levels that are not included in the Report.

2.15 Notices. ACS will provide applicable pre-adverse and adverse action notices when requested by Subscriber to Consumers in order to meet the requirements under Sections 604 and 615, as applicable, of the FCRA.  ACS will provide these notices on Subscriber’s behalf limited to the Adverse Action Notices required by the FCRA and does not ensure compliance with any Laws.  All Adverse Action Notices will be delivered either by electronic mail or regular mail to the Consumer’s address provided by Subscriber [or by the Consumer].  ACS does not guarantee the delivery of notices by regular mail and accepts no liability for undelivered mail. Adverse Action Notices will be delivered to a Consumer at the request of Subscriber and send the Adverse Action Notice to the Consumer no less than five (5) business days after the delivery date of the pre-Adverse Action Notice, considering that no dispute has been received.  If a dispute is received from the Consumer, All Clear Screening will suspend any searches regarding such Consumer and immediately notify such Consumer and the Subscriber of the pending dispute and reinvestigation.  Once the reinvestigation is complete, the Subscriber and Consumer will be notified of the results of the reinvestigation.

3. RESTRICTIONS.

3.1 Authorized Users.  Subscriber shall require each of its employees who is authorized to access and use the Platform (each, an “Authorized User”) to have a unique user name and password that is not used for any other website or service and shall instruct each Authorized User to keep the Authorized User’s user name and password confidential and not to share that information with any other person.  Authorized Users shall not provide or make available their usernames or passwords to any other person.  An Authorized User account is not permitted to be shared among users. Subscriber shall not, and represents and warrants that it will not, permit any  natural person to be an Authorized User unless that person has undergone a criminal history background check, and the background check report did not contain any felony or misdemeanor conviction for the seven years preceding the report which causes, or should cause, Subscriber to question whether the person can be trusted to use Confidential Information (defined below) only for legitimate business purpose and not disclose such information except as permitted by this Agreement. Subscriber will retain each background check report for as long as an individual is an Authorized User and for two years thereafter, and will make such background check reports available for review by ACS upon reasonable request. Subscriber is responsible for all access and activity through any Authorized User account or any of Subscriber’s systems, and the use of the Platform by any person to whom Subscriber has given access to the Platform, even if Subscriber did not authorize such activity or use.  Subscriber shall terminate an Authorized User’s access to the Platform and notify ACS of such termination within 24 hours of the termination of that Authorized User’s relationship with Subscriber.  Subscriber shall use reasonable efforts to prevent any unauthorized use of the Platform and any misuse by its Authorized Users.

3.2 Restrictions on Use. Subscriber will not (and will not allow any third party to), directly or indirectly:  (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Platform (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on, or decompile, disassemble or reverse engineer, the Platform or any portion thereof; (iii) copy, rent, lease, sublicense, distribute, pledge, assign, or otherwise transfer or encumber rights to the Platform; (iv) use the Platform for the benefit of a third party; (v) use the Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; (vi) use the Platform for any unauthorized purposes; (vii) remove or otherwise alter any proprietary notices or labels from the Platform or any portion thereof; (viii) use the Platform to build an application or product that is competitive with any ACS product or service; (ix) interfere or attempt to interfere with the proper working of the Platform or any activities conducted on the Platform; (x) use any agents, robots, scripts spiders or other automated means to access or manage the Platform; or (xi) bypass any measures ACS may use to prevent or restrict access to the Platform (or other accounts, computer systems or networks connected to the Platform).

3.3 Compliance with Laws.  Subscriber is solely responsible for all of Subscriber’s activity in connection with the Platform, including but not limited to uploading Subscriber Data (as defined below) into the Platform.  Subscriber (i) will use the Platform in compliance with all applicable Laws in connection with Subscriber’s use of the Platform (including those related to data privacy, such as the California Consumer Privacy Act (“CCPA”), Children’s Online Privacy Protection Act (“COPPA”) and the General Data Protection Regulation (“GDPR”), international communications, export laws and the transmission of technical or personal data laws), and (ii) will not use the Platform in a manner that violates any third party privacy, intellectual property, contractual or other proprietary rights.

4. SUBSCRIBER DATA.

4.1 Definition. For purposes of this Agreement, “Subscriber Data” shall mean any data, information or other material provided, uploaded, or submitted by Subscriber to the Platform in the course of using the Platform.  ACS regards all documents sent, received, and stored in ACS’s system as the property of the Subscriber and will provide archival copies upon request.   Subscriber shall retain all right, title and interest in and to the Subscriber Data, including all intellectual property rights therein. ACS is not responsible to Subscriber, and ACS shall have no liability TO SUBSCRIBER OR ANY THIRD PARTY, for unauthorized access to Subscriber Data or the unauthorized use of the Platform unless such access is due to ACS’s gross negligence or willful misconduct. 

4.2 Subscriber Data Obligations. Subscriber, not ACS, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Subscriber Data.  ACS will use commercially reasonable efforts to maintain the security and integrity of the Platform and the Subscriber Data. 

4.3 Subscriber Data Deletion; Aggregated Data. Subscriber agrees and acknowledges that Subscriber Data may be irretrievably deleted if Subscriber’s account is ninety (90) days or more delinquent.  Notwithstanding anything to the contrary, Subscriber acknowledges and agrees that ACS may (i) internally use and modify (but not disclose) Subscriber Data for the purposes of (A) providing the Platform to Subscriber and (B) generating Aggregated Anonymous Data (as defined below), and (ii) freely use and make available Aggregated Anonymous Data for ACS’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing ACS’s and its licensors’ and suppliers’ products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by ACS or its licensor or supplier in connection with, or derived from,  Subscriber’s use of the Platform, but only in aggregate, anonymized form which does not identify [Subscriber].

5. OWNERSHIP; FEEDBACK.

5.1 Ownership.  Except for the rights expressly granted to Subscriber under this Agreement, as between the parties, ACS retains all right, title, and interest in and to the Platform and all data, software, products, works, and other intellectual property created, used, or provided by or through ACS for the purposes of this Agreement, including all data collected by ACS or any of its licensors or suppliers related to operation or use of the Platform (including performance metrics and analysis, but excluding Background Information and public records data) and any copies and derivative works of any the foregoing.  Any software which is accessed and used by or otherwise provided to Subscriber hereunder (including without limitation any software identified on an Order Form) shall be deemed a part of the Platform and subject to all of the terms and conditions of this Agreement.  No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement.

5.2 Public Records. Any data collected on Subscriber’s behalf with respect to running background checks on consumers, including DMV records, criminal records and other publicly available information, constitute public records that ACS is free to retain, use, disclose and delete in its discretion and as required or permitted by Law, provided that ACS retains such public records in a manner that does not identify Subscriber.

5.3 Feedback. To the extent Subscriber provides ACS with any suggestions, ideas, enhancement requests, feedback, recommendations and other information relating to the Platform (including, without limitation, feedback related to usability, performance, interactivity, bug reports and test results) (“Feedback”), Subscriber shall, and hereby does, grant to ACS a nonexclusive, worldwide, perpetual, irrevocable, transferable, sub-licensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Feedback, even if designated as confidential by Subscriber, shall not create any confidentiality obligation for ACS notwithstanding anything else.  Nothing in this Agreement will impair ACS’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Subscriber may develop, produce, market, or distribute.

6. CREDIT INQUIRIES AND CREDIT REPORTING. ACS is authorized to check the Subscriber's credit for the purposes of determining credit worthiness at the time of this Agreement or thereafter in connection with the same transaction. ACS is further authorized to provide history information to others about ACS’s credit experience with Subscriber, including outside collection agencies and outside counsel.

7. FEES; PAYMENT.

7.1 Fees; Invoicing. Subscriber will pay ACS the fees as set forth in each Order Form (“Fees”).  ACS will invoice Subscriber for any applicable setup fees plus the first monthly payment in advance or in arrears or annual payment (depending on which is applicable, as set forth in the Order Form) as of the Order Form Billing Start Date (“Billing Start Date”) unless otherwise specified. Implementation services shall be extended upon receipt of initial required payment.

7.2 Payment. ACS reserves the right at any time to establish specific billing terms for each Subscriber based upon ACS’s assessment of a Subscriber's credit worthiness in ACS’s sole discretion, including without limitation, requiring advance payment for services. All Fees will be invoiced as stated in the applicable Order Form and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice.

7.3 Fee Changes. The Fees are subject to an annual increase not to exceed ACS’s then-current Order Form list price. We will provide notice of such increase in Fees at least 90 days prior to the end of the current term, and the increase will be effective upon renewal. Fees related to subscriptions billed monthly are subject to change at any time.

7.4 Collections; Taxes. Unpaid invoices are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all expenses of collection.  Subscriber shall be responsible for all (i) taxes associated with Fees other than taxes based on ACS’s net income, and (ii) ACS’s costs of collection in the event of Subscriber’s delinquent payment.  All Fees paid are non-refundable (except as otherwise expressly set forth in the applicable Order Form) and not subject to set-off. 

7.5 Attorneys’ Fees. If there is any dispute relating to any amounts owed or payments under in this Agreement, ACS is entitled to, and the Subscriber shall pay, the costs and expenses incurred by ACS in the dispute, including but not limited to all out-of-pocket costs of collection, court costs, and reasonable attorney fees and expenses.

8. TERM; TERMINATION.

8.1 Term. Subject to earlier termination as provided below, this Agreement shall commence on the Subscription Start Date (“Effective Date”) set forth in the first Order Form. If no Order Form has been mutually executed by the parties within one (1) year of the Effective Date, this Agreement shall automatically terminate.

8.2 Order Forms. Upon execution of an Order Form, the Term shall continue, and shall last until the expiration of all Order Form Terms.  For each Order Form, unless otherwise specified therein, the “Order Form Term” shall begin as of the subscription start date set forth on such Order Form, and unless earlier terminated as set forth herein, (a) shall continue for the initial Agreement Term specified on such Order Form (the “Order Form Initial Term”), and (b) following the Order Form Initial Term, shall automatically renew for additional successive periods of equal length to the Order Form Initial Term (each, an “Order Form Renewal Term”) unless either party notifies the other party in writing of such party’s intention not to renew no later than ninety (90) days (or such other period as set forth in the Order Form) prior to the expiration of the Order Form Initial Term or then-current Order Form Renewal Term, as applicable.

8.3 Termination for Cause. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days (ten (10) days in the case of non-payment) of receipt of such notice.

8.4 Suspension. Without limiting the foregoing, ACS may suspend or limit Subscriber’s access to or use of the Platform if (i) Subscriber’s account is more than sixty (60) days past due, or (ii) Subscriber’s use of the Platform results in (or is reasonably likely to result in) damage to or material degradation of the Platform which interferes with ACS’s ability to provide access to the Platform to other subscribers; provided that in the case of subsection (ii): (a) ACS shall use reasonable good faith efforts to work with Subscriber to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, ACS shall use commercially reasonable efforts to provide notice to Subscriber describing the nature of the damage or degradation; and (c) ACS shall reinstate Subscriber’s use of or access to the Platform, as applicable, if Subscriber remediates the issue within thirty (30) days of receipt of such notice.

8.5 Survival. Upon termination of this Agreement, all rights granted herein and in each Order Form to Subscriber will terminate and Subscriber will make no further use of the Platform.  The following provisions will survive termination of this Agreement:  Sections 2-5, 7, 8.6, and 9-13.

9. CONFIDENTIALITY; INFORMATION SECURITY.

9.1 Confidentiality Obligations. During the term of this Agreement, each party (a “Disclosing Party”) may provide the other party (a “Receiving Party”) with confidential and/or proprietary materials and information, whether in oral, written, or other tangible form, that the disclosing party designates as being confidential or which, under the circumstances surrounding the disclosure, the receiving party knows or should have reason to know should be treated as confidential (“Confidential Information”), including Subscriber Data, individual information, books and records reflecting transactions under this Agreement, technical, financial, and marketing information, software (including program specifications and source code), inventions, research and development information, business plans, and customer lists pertaining to the respective businesses and technologies of the parties (including with respect to ACS, of ACS’s licensors and suppliers).  Subscriber acknowledges that ACS shall not be held liable for any uses of data by third parties where that data was provided to the third party with Subscriber’s or the applicable Consumer’s permission. For the avoidance of doubt, the Platform and terms of this Agreement are Confidential Information of ACS.  Receiving Party shall maintain the confidentiality of the Confidential Information and will not disclose such information to any third party without the prior written consent of Disclosing Party; provided that ACS may disclose Subscriber’s Confidential Information to ACS’s affiliates, contractors and sub-contractors and to providers of Third Party Services for the purpose of performing their respective obligations under this Agreement or any Third Party Services.  Receiving Party will only use the Confidential Information for the purposes contemplated hereunder.

9.2 Exceptions. The obligations in this Section shall not apply to any information that:  (i) is made generally available to the public without breach of this Agreement, (ii) is developed by the Receiving Party independently from the Disclosing Party’s Confidential Information, (iii) is disclosed to Receiving Party by a third party without restriction, or (iv) was in the Receiving Party’s lawful possession prior to the disclosure to the Receiving Party and was not obtained by the Receiving Party either directly or indirectly from the Disclosing Party.  Receiving Party may disclose Confidential Information as required by law or court order; provided that, Receiving Party provides Disclosing Party with prompt written notice thereof and uses its best efforts to limit disclosure. At any time, upon Disclosing Party’s request, Receiving Party shall return to Disclosing Party all Disclosing Party’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof.  Notwithstanding the foregoing, (a) Receiving Party may disclose Confidential Information to any third-party to the limited extent necessary to exercise Receiving Party’s rights, or perform Receiving Party’s obligations, under this Agreement; provided that, all such third parties are bound in writing by obligations of confidentiality and non-use at least as protective of the Disclosing Party’s Confidential Information as this Agreement and (b) all Feedback shall be solely ACS’s “Confidential Information.”

9.3 Information Security. Subscriber shall maintain a comprehensive written information privacy and security program that includes reasonable and appropriate measures, including technical, physical, and administrative safeguards appropriate to the size and complexity of Subscriber’s operations and the nature and scope of its activities, to protect against risks to the security, confidentiality and integrity of Confidential Information which risks could result in the unauthorized disclosure, use, alteration, destruction or other compromise of the Confidential Information when stored in the Platform or on ACS’s or its licensors’ or suppliers’ information systems. Subscriber represents and warrants that such program complies with all applicable Laws concerning the protection of Confidential Information and all guidelines and standards thereunder. Subscriber has, and will maintain, a process for identifying, assessing and mitigating the risks to the Platform and information systems, and to the Confidential Information stored on them, resulting from access from Subscriber’s information systems to the Platform, including (i) installation of, and regular updates to, anti-malware protection; (ii) implementation of, and regular updates to, a robust firewall and intrusion detection system; and (iii) proper network configuration and segmentation.

10. DISCLAIMERS.

10.1 NO WARRANTY. THE PLATFORM, REPORTS AND FORMS AND ANY OTHER INFORMATION OR MATERIALS PROVIDED BY ACS ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND TO THE MAXIMUM EXTENT PERMITTED BY LAW ACS DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND GUARANTEES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. ACS DOES NOT MAKE ANY WARRANTY AS TO THE ACCURACY, VALIDITY, COMPLETENESS, OR TIMELINESS OF ANY REPORTS, DATA, FORMS OR OTHER INFORMATION OR MATERIALS PROVIDED THROUGH THE PLATFORM, THAT SUCH REPORTS, DATA, FORMS OR OTHER INFORMATION OR MATERIALS WILL MEET SUBSCRIBER’S NEEDS, OR THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM OR ANY REPORTS, DATA, FORMS OR OTHER INFORMATION OR MATERIAL PROVIDED IN CONNECTION WITH THE PLATFORM.  ACS AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT THAT THE FUNCTIONALITY AND INFORMATION PROVIDED BY THE PLATFORM WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. NOTHING PROVIDED BY ACS CONSTITUTES LEGAL ADVICE.  SUBSCRIBER IS SOLELY RESPONSIBLE FOR ITS LEGAL REGULATORY AND OTHER LEGAL COMPLIANCE OBLIGATIONS AND ANY HIRING DECISIONS MADE BY SUBSCRIBER.

10.2 Reports. As part of the Platform services, ACS agrees to make accessible to Subscriber Reports utilizing a variety of automated, non-automated manual research and investigative methods. The scope of any results provided by ACS are subject to revisions and updates and are made accessible to the Subscriber through the ACS’s screening portal. ACS assumes no responsibility for Reports which include outcomes that are inaccurate or incomplete due to errors by Subscriber, its employees, prospective employees or agents in entering search criteria. Referenced Reports may be subject to additional access fees charged by third party providers which will be passed through directly to Subscriber on Subscriber’s monthly invoice from ACS. ACS shall have no obligation or liability to Subscriber for any delay or failure to deliver Reports caused by a delay on the part of any party providing data or information to ACS or by any other third‐party. ACS is a federally regulated Consumer Reporting Agency as defined by the FCRA, for the objective of offering background screening services to its customers in accordance with all applicable guidelines and confidentiality as stipulated within applicable statues. 

10.3 Forms and Other Materials.  ACS provides sample forms (disclosures, notifications and authorizations) and other information and materials and support for account configuration and Platform settings to assist Subscriber with its use of the Platform and compliance obligations; however, none of these forms, information, materials or support services have been prepared specifically for Subscriber or on Subscriber’s behalf, and all use thereof, whether as part of the Platform or otherwise, is at Subscriber’s sole risk.  Subscriber acknowledges, agrees and certifies that: (i) it is responsible for reviewing, fully understanding and obtaining, and Subscriber shall obtain, independent legal advice on the contents and effects of any such forms, information, materials, configurations and settings as they relate to Subscriber’s legal compliance or liability and (ii) Subscriber is solely responsible for the use thereof and any actions taken or omissions made as a result of such use. Nothing provided by ACS constitutes legal advice.

10.4 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, NEITHER PARTY NOR ANY OF EITHER PARTY’S AFFILIATES, CONTRACTORS, SUBCONTRACTORS, LICENSORS, OR SUPPLIERS, SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY:  (A) ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY, OR LOSS OF BUSINESS; (B) INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; (C) MATTERS BEYOND SUCH PARTY’S REASONABLE CONTROL; OR (D) AMOUNTS IN THE TOTAL AGGREGATE THAT EXCEED THE FEES PAID OR PAYABLE BY SUBSCRIBER TO ACS UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION ACCRUES. ACS SHALL NOT HAVE ANY LIABILITY HEREUNDER FOR ANY THIRD PARTY SERVICES.  THE PARTIES ACKNOWLEDGE AND AGREE THAT THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN SHALL APPLY EVEN IF ANY LIMITED REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

11. INDEMNITY.

11.1 By Subscriber. Subscriber shall defend, indemnify, and hold harmless ACS, its affiliates and each of its and its affiliates’ employees, contractors, subcontractors, officers, directors, shareholders, licensors, suppliers and representatives from all liabilities, losses, claims, suits, investigations, proceedings, penalties, fines, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”), that arise from or relate to: (i) Subscriber’s failure to comply with the requirements of the FCRA or any other applicable Law, including any laws related to PII; (ii) Subscriber’s regulatory compliance obligations; (iii) any PII made available by Subscriber or a Consumer; (iv) the accuracy of, or Subscriber’s or a Consumer’s use of, the Platform or any Report or data provided in connection therewith; (v) any claim that the Subscriber Data or Subscriber’s or a Consumer’s use of the Platform or any Report infringes, violates, or misappropriates any third party intellectual property or proprietary right or right of privacy (except to the extent the claim is subject to indemnification by ACS under Section 12.2; (vi) breach of this Agreement or willful or malicious conduct by Subscriber or any of its employees, contractors or agents.

11.2 By ACS. ACS shall defend, indemnify, and hold harmless Subscriber, its affiliates and each of its and its affiliates’ employees, contractors, subcontractors, officers, directors, shareholders, licensors, suppliers and representatives from all Losses that arise from or relate to any claim (i) based on ACS’s failure to comply with its obligations under applicable Law to Consumers as a consumer reporting agency, but only to the extent such claim is caused by ACS’s gross negligence or willful misconduct in performing this Agreement or (ii) that Subscriber’s use of the Platform as authorized under this Agreement infringes, violates, or misappropriates any third party’s U.S. patent, copyright or other intellectual property right. In the event of any such claim, ACS shall have the right, at its expense, to (a) secure the right for Subscriber to continue to use the Platform, (b) modify the Platform so that it does not infringe or violate such intellectual property right or (c) terminate the Agreement.

11.3 Indemnification Process.  The obligations of the indemnifying party (the “Indemnitor”) under this Section shall be conditioned upon the indemnified party (the “Indemnitee”) providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense and the Indemnitor will not enter into any settlement without the Indemnitee’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense).

11.4 Exceptions. The foregoing obligations of ACS do not apply with respect to the Platform or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by ACS (including without limitation any Subscriber Data); (ii) made in whole or in part in accordance to Subscriber instructions or specifications; (iii) modified after delivery by ACS; (iv) combined with other products, processes or materials not provided by ACS (where the alleged Losses arise from or relate to such combination); (v) where Subscriber continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (vi) Subscriber’s use of the Platform is not strictly in accordance herewith.

12. NON-SOLICITATION. During the term of this Agreement and for one (1) year thereafter, Subscriber will not encourage or solicit any employee or consultant of ACS to leave ACS for any reason.

13. MISCELLANEOUS.

13.1 Severability; Waiver. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any failure by a party to enforce any terms and conditions of this Agreement shall not constitute a waiver of any such terms or conditions at any future time and shall not prevent such party from insisting on the performance of and compliance with such terms and conditions at any later time.

13.2 Assignment. This Agreement is not assignable or transferable by either party except with the other party’s prior written consent; provided that, a party may transfer and assign its rights and obligations under this Agreement without consent to an affiliate, in connection with a reorganization, or to a successor to all or substantially all of its assets or business to which this Agreement relates.

13.3 Entire Agreement; Amendment; Interpretation. This Agreement (together with all Order Forms) is the complete and exclusive statement of the mutual understanding of the parties with respect to the subject matter hereof and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. This Agreement and any Order Form may only be amended by ACS as set forth in this Agreement or in a written amendment executed by the parties. As used herein, “include”, “includes” and “including” means “without limitation”.

13.4 Relationship of the Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement. 

13.5 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.  Notices must be sent to the contacts for each party set forth on the signature blocks below or on an applicable Order Form.  Either party may update its address set forth above by giving notice in accordance with this section.

13.6 Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts and that exclusive jurisdiction and venue for any litigation shall be federal or state courts located in Boston, Suffolk County, Massachusetts.

13.7  Force Majeure. If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term “Force Majeure” shall include, without limitation, acts of God, plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages or other labor disputes, or supplier failures. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.

13.8 Publicity. ACS may use Subscriber’s name and logo to identify Subscriber as an ACS customer on its website and in other marketing materials. Subscriber agrees that ACS may create a case study and/or issue a press release within 90 days of execution of this Agreement concerning Subscriber’s use of the Platform. These materials will be statements of facts about the relationship between Subscriber and ACS and will also constitute an endorsement. ACS will not publicly distribute final versions of such documents without Subscriber’s prior written consent. Subscriber further consents to the use of Subscriber’s name in ACS’s marketing and sales materials, including on its website.

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