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After reading through the agreement, return to
the Sales Order Form
AGREEMENT dated
____________________ between ____________________ ("Client")
and Advance Network Security, Inc. ("Seal-Tight Security, Inc."),
each with offices at the respective address set forth
on the Sales Order Form attached hereto and made a part
hereof
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| 1.
SERVICES |
A) Client hereby retains
Seal-Tight Security, Inc. to provide, and Seal-Tight Security, Inc. hereby agrees to provide, such
of the screening services indicated on the Sales Order
Form (the "Screening Services").
B) Seal-Tight Security, Inc. shall provide Client with operating guidelines
containing the procedures for the provision by Seal-Tight Security, Inc. and
use by Client of the Screening Services (the "Guide").
Client understands that the Guide may be amended from
time to time by Seal-Tight Security, Inc. and such amendments will be provided
to Client by Seal-Tight Security, Inc.. Client will execute and deliver to
Seal-Tight Security, Inc. any documents and forms as Seal-Tight Security, Inc. deems necessary to
provide to Client the Screening Services under any requirements
of governmental data sources and consumer reporting
agencies for which Seal-Tight Security, Inc. is a reseller, or under applicable
laws and regulations.
C) Seal-Tight Security, Inc. will follow reasonable quality assurance procedures
with respect to obtaining reports hereunder. However,
Client recognizes that information within such reports
is obtained and managed by fallible sources and Seal-Tight Security, Inc.
does not guarantee or ensure the accuracy or depth of
information provided.
D) The parties acknowledge and agree that Seal-Tight Security, Inc. will not
be deemed to be providing legal advice to Client in
connection with the Screening Services.
E) Client shall not use Seal-Tight Security, Inc.'s or its affiliates' names
or marks without Seal-Tight Security, Inc.'s prior written consent.
F) Prior to the commencement of Seal-Tight Security, Inc.'s provision
of Screening Services, Client shall designate in writing
to Seal-Tight Security, Inc. the name or names of one or more persons who
shall serve as Seal-Tight Security, Inc.'s designated contact for the Screening
Services (the "Client Contact"). Client hereby
represents and warrants to Seal-Tight Security, Inc. that the Client Contact
has, and shall at all times have, the requisite authority
to (i) trSeal-Tight Security, Inc.mit information, directions and instructions
on behalf of Client and (ii) issue, execute, grant,
or provide any approvals (other than amendments to this
Agreement), requests, notices, or other communications
required or permitted under this Agreement or requested
by Seal-Tight Security, Inc. in connection with the Screening Services.
G) If the Screening Services require the use by Client
of communication lines to connect to Seal-Tight Security, Inc. facilities,
Client will be responsible for such communication lines.
Client will pay all installation, use, service and repair
charges for the communication lines. Seal-Tight Security, Inc. will not be
responsible for the reliability or availability of the
communication lines used by Client to access the Screening
Services.
H) If Client requests additional services not specified
in this Agreement, and AVERT agrees to provide such
services, (i) such services will be subject to the applicable
terms of this Agreement, and (ii) unless otherwise agreed
in writing, Client will pay Seal-Tight Security, Inc.'s then prevailing fees
for any such Services.
I) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
Seal-Tight Security, Inc. EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT, NON-INTERRUPTION OF USE, AND FREEDOM
FROM PROGRAM ERRORS WITH RESPECT TO THE SCREENING SERVICES.
J) This provision applies to any services which are
provided via the Internet or which Client may access
via the Internet. The security of trSeal-Tight Security, Inc.missions over
the Internet cannot be guaranteed. Seal-Tight Security, Inc. is not responsible
for (i) Client's access to the Internet, (ii) interception
or interruption of communications through the Internet,
or (iii) changes to or losses of data. In order to protect
Client's data, Seal-Tight Security, Inc. may suspend Client's use of the Screening
Services via the Internet immediately, without notice,
pending an investigation, if any breach of security
is suspected.
K) If Client has requested access to and been approved
for Screening Services that include receiving consumer
reports from Seal-Tight Security, Inc., then in connection with requesting
and/or receiving any reports from Seal-Tight Security, Inc., Client certifies
and agrees to:
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| (1) Review the Notice to Users
of Reports: Obligations of Users under the Fair
Credit Reporting Act, as amended ("FCRA"),
at the website address set forth in the Sales
Order or as otherwise provided by Seal-Tight Security, Inc., and perform
legal obligations as set forth in such notice.
(2) Use the information provided by Seal-Tight Security, Inc. for
the permissible purposes (the "Permissible
Purposes") only, and only in accordance
with applicable law. The Permissible Purposes
are: (i) legitimate business need in connection
with a trSeal-Tight Security, Inc.action initiated by a consumer,
(ii) for the underwriting of insurance as a
result of an application from the consumer or
the review or collection of a consumer's account
(iii) for use by a potential investor or servicer,
or current insurer, in validation of, or an
assessment of, the credit repayment risks associated
with an existing credit obligation (iv) for
employment purposes. Client may disclose information
within any report obtained from Seal-Tight Security, Inc. hereunder,
to the consumer or potential employee who is
the subject of such report, in accordance with
applicable law. Client certifies that it will
use the information only for the specific Permissible
Purposes set forth in the Sales Order.
(3) If reports will be used for employment
decisions, make a clear and conspicuous disclosure
to the applicant or employee, in writing and
in a separate document, that a consumer report
may be obtained for employment purposes.
(4) Make a clear and accurate disclosure to
the applicant or employee if an investigative
consumer report (reference check) will be obtained,
including a statement informing the subject
of the report that additional information is
available if requested.
(5) Obtain the proper written authorization
from the applicant or potential employee for
each consumer report and investigative consumer
report prior to requesting any report.
(6) Provide proper additional notice to the
applicant or employee, a copy of the report
obtained, and a Summary of Rights, as required
by the FCRA, if an adverse decision is going
to be made due to information in any report
obtained from Seal-Tight Security, Inc.. If reports will be used for
employment decisions, Client certifies and agrees
to provide such additional notice, copy of the
report and Summary of Rights to the applicant
or employee in advance of any adverse decision
regarding employment.
(7) Ensure that reports will be requested only
by Client's designated representatives and only
for the Permissible Purposes listed in the Sales
Order.
(8) Be responsible for the final verification
of the applicant's identity.
(9) Be responsible for the security and dissemination
of the customer number provided to Client by
Seal-Tight Security, Inc..
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| 2. FEES;
TAXES; PAYMENTS |
A) Client
shall pay Seal-Tight Security, Inc. for the Screening Services at the rates
set forth in the Sales Order form for the first twelve
months after the date this Agreement is accepted. Seal-Tight Security, Inc.
may increase prices at any time thereafter upon at least
30 days prior written notice to Client. In the event
that, due to changes in legal requirements in connection
with the Screening Services, Seal-Tight Security, Inc. is required to provide
additional services not otherwise included in the Screening
Services, such additional services shall be provided
subject to additional charge. In addition, if any change
in the implementation of the Screening Services occurs
that requires Seal-Tight Security, Inc. to devote resources, expend time or
otherwise incur costs not contemplated by this Agreement,
Client agrees to pay such additional costs as are required
in accordance with Seal-Tight Security, Inc.'s standard change control policy.
B) Client will pay to Seal-Tight Security, Inc. all applicable sales, use
or similar taxes levied or based on this
Agreement, exclusive of taxes based on Seal-Tight Security, Inc.'s net income.
In addition, the fees do not include, and Client shall
be responsible to pay, all production-related disbursements
to be paid to third parties in connection with the Screening
Services, including, without limitation, postage and
courier services, plus a reasonable administrative fee
in connection with such disbursements. |
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| 3. LIABILITY
AND INDEMNIFICATION |
A) Client agrees to defend,
indemnify and hold harmless Seal-Tight Security, Inc., its affiliates and
their directors, officers, employees, legal representatives,
agents, successors, and assigns from and against all
claims, losses, liabilities, damages, demands, causes
of action, costs and expenses (including reasonable
attorneys' fees and costs of litigation) (collectively
"Losses") as a result of entering into and
performing services under this Agreement or any other
cause arising out of this Agreement, except to the extent
those Losses resulted from the negligence, willful misconduct
or willful breach of this Agreement by Seal-Tight Security, Inc. in the performance
of the Screening Services.
B) Notwithstanding anything to the contrary, Seal-Tight Security, Inc.'s liability
under this Agreement for damages under any circumstances
for claims of any type or character arising from or
related to the Screening Services will be limited in
each instance to the amount of actual damages incurred
by Client, provided however, that in no event will Seal-Tight Security, Inc.'s
aggregate liability hereunder during any calendar year
exceed the average monthly fee paid by Client to AVERT
for the Screening Services during such calendar year.
IN NO EVENT WILL EITHER PARTY BE RESPONSIBLE FOR SPECIAL,
INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHER SIMILAR
DAMAGES IN CONNECTION WITH THE SCREENING SERVICES, EVEN
IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
C) Each of Seal-Tight Security, Inc. and Client will use reasonable efforts
to mitigate any potential damages or other adverse consequences
arising from or related to the Screening Services. Nothing
in this Agreement is intended to limit either party's
obligation to mitigate damages.
D) Seal-Tight Security, Inc. shall not be liable for any delay or failure
to perform under this Agreement resulting, directly
or indirectly, from strike, fire, war, insurrection,
riot, power failure or a circumstance beyond Seal-Tight Security, Inc.'s reasonable
control. In case of errors or lost data caused by power
failure, mechanical difficulties with information storage
and retrieval systems, or other events not attributable
to its own negligence or willful misconduct, Seal-Tight Security, Inc.'s sole
obligation will be to use its reasonable efforts to
reconstruct any records maintained by Seal-Tight Security, Inc. and to amend
any reports prepared by it which may have been affected
by such event, at its own expense.
E) The parties acknowledge that the fees for the Screening
Services to be provided hereunder reflect the allocation
of risk as set forth in this Section 3. This Section
3 sets forth the full extent of Seal-Tight Security, Inc.'s liability hereunder
for any claim against Seal-Tight Security, Inc., and sets forth Client's sole
remedies. |
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| 4. TERM
AND TERMINATION |
| Except as otherwise provided
herein, this Agreement shall have an initial term of
one (1) year from the date hereof, and thereafter, it
shall continue unless either party terminates this Agreement
on 90 days prior written notice. If Client fails to
pay any amount due hereunder within 10 days after the
due date thereof then Seal-Tight Security, Inc. may by written notice to Client
terminate this Agreement. If either party (a) defaults
in the performance of its obligations hereunder and
such failure continues for a period of 60 days after
receipt of written notice thereof (specifying in reasonable
detail the nature of such failure), (b) commits an act
of bankruptcy or becomes the subject of any Bankruptcy
Act proceeding or becomes insolvent, or if any substantial
part of its property becomes subject to any levy/seizure,
assignment, application or sale for or by any creditor
or governmental agency, or (c) has any material adverse
change in its financial condition, then, in any such
event, the other party may, upon written notice thereof,
terminate this Agreement. Within ten (10) days following
Seal-Tight Security, Inc.'s request, Client shall make available to Seal-Tight Security, Inc. for
audit such records as Seal-Tight Security, Inc. deems necessary under any
audit requirements of governmental data sources and
consumer reporting agencies for which Seal-Tight Security, Inc. is a reseller,
and to review Client's compliance with all applicable
laws and regulations relating to the Screening Services
being provided to Client. If Seal-Tight Security, Inc. determines that Client
has failed to comply with any provision of Section 7
of this Agreement, Seal-Tight Security, Inc. may, in its sole discretion and
upon notice to Client, immediately terminate the Screening
Services. If the Screening Services are terminated pursuant
to this Section 4, Client will immediately pay all fees
and charges invoiced by Seal-Tight Security, Inc. to Client relating to the
Screening Services, and shall pay to Seal-Tight Security, Inc. promptly upon
invoice all amounts due for Screening Services provided
up to the date of termination. Upon termination of this
Agreement, all rights granted to Client hereunder will
become null and void, all materials provided by either
party to the other hereunder will be returned promptly
and Seal-Tight Security, Inc. shall have no further duties or responsibilities
to Client with respect to the Screening Services. |
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| 5. CONFIDENTIALITY |
| All Confidential Information
disclosed hereunder will remain the exclusive and confidential
property of the disclosing party. The receiving party
will not disclose the Confidential Information of the
disclosing party and will use at least the same degree
of care in protecting the Confidential Information of
the disclosing party as it uses with respect to its
own confidential information. The receiving party will
limit access to Confidential Information to its employees
and advisors with a need to know and will instruct such
employees and advisors to keep such information confidential.
Notwithstanding the foregoing, the receiving party may
disclose Confidential Information to the extent necessary
to comply with any law, ruling, regulation or rule applicable
to it or to the extent necessary to enforce its rights
under this Agreement. In addition, Seal-Tight Security, Inc. may also disclose
Client Confidential Information (i) to the extent that
disclosure of such information is required to perform
the Screening Services, or (ii) as Seal-Tight Security, Inc. deems necessary
under any requirements of governmental data sources
and consumer reporting agencies for which Seal-Tight Security, Inc. is a reseller,
or under applicable laws and regulations (including,
without limitation, in connection with an audit or regulatory
examination by a governmental authority). For purposes
of this Section, "Confidential Information"
shall mean: all information of a confidential or proprietary
nature provided by the disclosing party to the receiving
party for use in connection with the Screening Services,
but does not include (a) information that is already
known by the receiving party without an obligation of
confidentiality, (b) information that becomes generally
available to the public other than as a result of disclosure
by the receiving party in violation of this Agreement,
and (c) information that becomes known to the receiving
party from a source other than the disclosing party
on a non-confidential basis. Confidential Information
of Seal-Tight Security, Inc. also includes the Guide and any Seal-Tight Security, Inc. operating
guidelines which may be provided hereunder and all trade
secrets, processes, proprietary data, information or
documentation related thereto of Seal-Tight Security, Inc. or its affiliates
and any pricing or product information furnished to
Client by Seal-Tight Security, Inc. or its affiliates. |
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| 6. GRANT
OF LICENSE |
| Client's use of any pre-packaged
third-party software will be governed by the terms and
conditions of the applicable third-party license agreements
delivered to Client hereunder with such pre-packaged
third-party software. Client's use of the Application
Programs delivered to Client in connection with the
Screening Services will be governed by the license agreement
(whether written, or on-line) delivered to Client hereunder
with such Application Programs; provided, however, that
in the event that no license agreement is delivered
to Client with such Application Programs, Seal-Tight Security, Inc. hereby
grants to Client a personal, non-exclusive, non-trSeal-Tight Security, Inc.ferable
right and license to use solely for the internal business
usage of the Client Group the Application Programs delivered
to Client in connection with the Screening Services.
SUCH APPLICATION PROGRAMS ARE PROVIDED TO CLIENT AS-IS
WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY NATURE.
Client will not have any interest in the Application
Programs, except for the license granted to it under
this Agreement. Without limitation of the foregoing,
Client will not copy, recompile, disassemble, reverse
engineer, or make or distribute any other form of or
any derivative work from, the Application Programs.
Seal-Tight Security, Inc. will deliver to Client, at no additional cost, all
improvements, enhancements, modifications and updates
to any Application Programs that are included in the
Screening Services if and as they are made generally
available by Seal-Tight Security, Inc. to its other clients at no additional
cost. All other improvements, enhancements, modifications
and updates to any Application Programs will be made
available by Seal-Tight Security, Inc. to Client at Seal-Tight Security, Inc.'s then prevailing
prices. All such improvements, enhancements, modifications
and updates may, if applicable, be delivered to Client
in the form of computer media and will be installed
by Client. If, at the election of Client, such improvements,
enhancements, modifications and/or updates to the Application
Programs are not installed prior to the release of two
subsequent versions of the Application Programs, Seal-Tight Security, Inc.
will have no further obligation to provide Client with
support of the Application Programs and the Screening
Services may be unavailable to Client until such current
Application Programs are installed by the Client. |
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| 7. COMPLIANCE
WITH LAWS |
| Seal-Tight Security, Inc. agrees to comply
with all laws applicable to the preparation and trSeal-Tight Security, Inc.mission
of consumer reports, as defined in the FCRA. In order
to remain in compliance with laws and regulations governing
consumer reports Seal-Tight Security, Inc. may modify this Agreement from
time to time. These modifications may be mailed to the
Client, and the Client's use of the Screening Services
after the date specified in such notice will be construed
as Client's agreement and consent to such modifications.
Client will use the Screening Services and the reports
received from Seal-Tight Security, Inc. hereunder in strict compliance with
all provisions of the FCRA, the Drivers Privacy Protection
Act, as applicable, the AmericSeal-Tight Security, Inc. with Disabilities
Act (ADA 1990), and all other applicable federal and
state laws and regulations including (if applicable)
federal and state equal opportunity laws and regulations.
Client shall be responsible for any use it may make
of the Screening Services to assist it in complying
with such laws and governmental regulations. |
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| 8. GENERAL |
A) This Agreement
shall not be assigned by Client without the prior written
consent of Seal-Tight Security, Inc., and any attempt to assign any rights,
duties or obligations which arise under this Agreement
without such consent will be void.
B) Client has not been induced to enter into this Agreement
by any representation or warranty not set forth herein.
This Agreement and the Sales Order Form contain the
entire agreement of the parties with respect to its
subject matter and supersede all existing agreements
and all other oral, written or other communications
between them concerning its subject matter. This Agreement
shall not be modified except by a writing signed by
the parties.
C) Client acknowledges, confirms and agrees that there
are no intended third party beneficiaries (including
any current, prospective or former employees of Client
or any agent or other person associated with Client)
under this Agreement.
D) Any notice under this Agreement shall be given in
writing and hand delivered or mailed by certified or
registered mail to the relevant party, or sent by nationally
recognized courier service. Notices and payments sent
by mail shall be deemed to have been mailed on the date
of the postmark thereof. Notices shall be deemed received
on the date of delivery if delivered in person or by
courier service and five business days after mailing
if mailed by certified or registered mail.
E) This Agreement shall be governed by the laws of the
State of Illinois, without regard to conflict of laws
provisions. |
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| IN
WITNESS WHEREOF, Seal-Tight Security, Inc. and Client have executed this
Agreement as of the date set forth above. |
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| Seal-Tight Security,
Inc |
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CLIENT:________________________________ |
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| Approved by:___________________________ |
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Approved by:_____________________________ |
| Name:_________________________________ |
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Name:___________________________________ |
| Title:________________Date:
_____________ |
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Title:____________________Date:
___________ |
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