Screening Agreement

THIS SCREENING SERVICE AGREEMENT is made and entered into, by and between Intellishield a Utah limited liability company with a mailing address at 12441 South 900 East, Suite 220 Draper UT, 84020 (“Intellishield”) and the undersigned (“User”). This Agreement shall be effective at such time as User indicating its acceptance of the terms and conditions of the Agreement (the “Effective Date”).

WHEREAS, Intellishield is a leading provider of background screening and related services; and

WHEREAS, Client desires Intellishield to provide certain screening and related services          pursuant to the terms and conditions set forth in this Agreement.

In consideration of the mutual promises contained in this Agreement, Client and Intellishield agree as follows:

1. Nature and Scope of Services. This Agreement and the attached Statements of Work and/or          Appendices (each an “SOW” or “Appendix,” as applicable), each fully incorporated herein, together comprise the complete agreement between the parties (the “Agreement”). Intellishield shall provide the services described in this Agreement, and as applicable in each SOW, pursuant to the terms and conditions specified in this Agreement and the applicable SOW (the “Services”).  In general, in the event of a conflict between the Agreement and any SOW or Appendix, the Agreement shall govern; provided however, that with respect to any express specifications and additional terms concerning the Services covered by an SOW, such terms in the SOW shall supersede conflicting terms in this Agreement or any prior SOW pertaining to the same Services.

• Term. The Effective Date of this Agreement is specified above. The Term of the Agreement will begin on the earlier of the Effective Date or the date the first Services are provided and end twelve months thereafter (the “Initial Term”).  Following the Initial Term, the Agreement will renew for successive twelve (12) month terms (each, a “Renewal Term”) until such time as either Party provides the other Party with written notice of termination as provided below, or as otherwise specified in an SOW.  For purposes of this Agreement, the “Term” means and includes the Initial Term and any Renewal Term.

This agreement shall automatically terminate as of the earlier to occur of the following: (1) the date on which Intellishield is no longer legally permitted to provide the Services under this Agreement; or (2) the date Client becomes insolvent, or bankrupt, are subject to liquidation, receivership, or conservatorship.  In the event that only a portion of the Services are determined to be legally impermissible only such services shall be ceased and the Agreement shall otherwise remain in full force and effect.

Notwithstanding anything to the contrary in this Agreement, and except as provided in any SOW, the parties may mutually agree in writing to terminate this Agreement at any time upon advanced written notice of at least 30 days.

• Screening Services to be provided by Intellishield. Upon request and relying upon Client’s representations that it has a legitimate purpose for information, Intellishield will provide consumer reports and/or investigative consumer reports including criminal background checks, verification’s and other information to the Client when available. Intellishield will only furnish a report for a permissible purpose under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (“FCRA”) and no other purpose.

Client understands and agrees that neither Intellishield nor any of its employees are legal counsel and cannot provide legal advice. Client should work with counsel to develop an employment screening program specific to its needs and to ensure that Client’s policies and procedures related to the use of information it receives from Intellishield in the course of providing the Services is in compliance with applicable state and federal laws, in particular with regard to taking adverse action against a consumer based on a consumer report.

• End User Certification.
• Client represents that it is an existing business with a legitimate need for verification and             reports offered by Intellishield.  Client specifically represents that reports will only be      obtained for its own use and it is the end user of the reports.  It will not further distribute, sell,            give or trade such information with any third party.  Client will request reports for solely the             following permissible purposes listed below and if reports are generally requested for     employment purposes the Client will advise if a report is requested for another purpose.
• Client acknowledges receipt by applicants, employees, contractors and volunteers                                    (collectively “consumers” hereunder) all notices required by the FCRA including the Notice to             Users of Consumer Reports, Obligations of Users under the FCRA, A summary of Your Rights             Under the Fair Credit Reporting Act, and Remedying the Effects of identity Theft, and any other             notices and consents that may be required by applicable law in order to perform the Services.
• Client represents that prior to requesting a consumer report or investigative consumer report      for employment purposes (including contractors and volunteers), it will ensure that:

i.        A clear and conspicuous disclosure has been made in writing or electronic consent to           the consumer prior to the request, in a document that consists of only the disclosure,                  that a consumer report will be obtained for employment purposes; and

ii.The consumer has authorized in writing or electronic consent the procurement of the                  report by the Client.

D.  Further, Client will additionally ensure that prior to requesting of an investigative consumer                   report for employment purposes:

i.        A clear and conspicuous disclosure will be made in writing or electronic consent to the         consumer prior to the report being procured or caused to be procured, in a document                 that consists of only the disclosure and the disclosure set forth in C.i)above, that an                      investigative consumer report including information as to the consumer’s character,                      general reputation, personal characteristics and/or standard of living will be obtained                   for employment purposes; and

ii.       Such disclosure contains a statement advising the consumer of his/her right to request         a complete and accurate statement regarding the nature and scope of the requested            investigative consumer report and his/her right to request a copy of A summary of                      Your Rights Under the Fair Credit Reporting Act.

E.  Additionally to the extent Client requests any reports covered by the California Investigative                   Consumer Reporting Agencies Act which require consent from the consumer, Client also                         affirms that:

i.        the stand-alone disclosure provided to the consumer states Intellishield name,                      mailing address, website address, and toll-free telephone number;

ii.       such disclosure indicates that the report will include information on the consumer’s             character, general reputation, personal characteristics, and mode of living;

iii.      such disclosure indicate the nature and scope of the investigation to be performed;

iv.      such disclosure advises the consumer of his/her right to inspect Intellishield’s files                about the subject by providing proper identification and Intellishield will provide the            subject with trained personnel and explanation of any codes to help understand those                files; and

v.       such disclosure contains a box that the consumer may check to request a copy of the           report and if the consumer checks that box, a copy of the report will be sent to the               consumer within three business days after Client receives the report.

F. In using a report for employment purposes, before taking any adverse action based in whole       or in part on the report, the Client shall provide to the consumer to whom the report relates:

i.        A copy of the report;

ii.       A copy of the Summary of Consumer Rights and any applicable state summary of                  rights; and

iii.      Provide the individual with a reasonable opportunity of time to correct any erroneous          information contained in the report (and provide Intellishield’s name and contact                 information) and if the individual is ultimately disqualified an Adverse Action letter.

G. Client confirms that it will not use the information contained in a report in violation of any             applicable federal, state or local equal employment opportunity or other law, rule, regulation,    code or guideline.

H. Client confirms that it will follow the requirements of the Driver Privacy Protection Act     (“DPPA”) and the various state laws implementing the DPPA in regard to motor vehicle reports.

I. Client represents that prior to requesting a report for residential screening purposes, it will:

i.        disclosure to the individual who is the subject of the report that a consumer report, as         applicable, an investigative consumer report, may be obtained;

ii.       provide to the individual a summary of the individual’s rights under the (“FCRA”);

iii.      Not utilize any information in violation of any federal, state or local equal housing law          or regulation; and

iv.      Provide an adverse action letter and any other information required by applicable law

J.  Client will maintain documentation showing compliance with these certifications for a period      of six (6) years or during the employment, tenancy, etc. Of the subject, whichever is longer.

K.  Client also confirms that information obtained through a Social Security Number trace will          not be used directly to disqualify applicants from employment or employees from continued            employment or for an adverse action related to a potential or actual resident.  In addition, to   the extent credit information, including credit worthiness or payment history information, is           requested, Client confirms such requests are in accordance with applicable state law.

L.  Client acknowledges receipt of Section 2480e of the Vermont Fair Credit Reporting statute          and certifies that it will comply with all applicable provisions of such Act including but not limited      to ordering any employment related information regarding a Vermont resident only after      obtaining the consent of the consumer.

• Confidential Information and Personal Information. Confidential Information. Each party acknowledges that it and its officers, employees, independent contractors, agents or subcontractors may, in the course of the Agreement, be exposed to or acquire information that is proprietary or confidential to the other party.  For purposes of this Agreement, “Confidential Information” shall include: any information relating to a party’s products, research, development, trade secrets, processes, procedures, formulas, business practices, pricing, business plans, strategies, budgets, customer and vendor relationships, financial information and other similar business information of a confidential nature.  The term “Confidential information” shall not include information that is (a) known to the receiving party prior to disclosure by the disclosing party or its personnel; (b) publicly available through no act or omission of the receiving party; or (c) lawfully received by the receiving party from a third party (other than the disclosing party’s former or current personnel) that is not under any confidentiality obligation to the disclosing party.

Each party agrees to use Confidential Information received from the other party pursuant this Agreement solely in connection with the performances of such party’s obligations under this Agreement.  Each party agrees to use reasonable measures, no less stringent than those measures used by the party to protect its own confidential and proprietary information, to protect the Confidential Information of the other party from disclosure to any third party.  Unless authorized to do so in writing by the other party, neither party, nor any third party acting on either’s behalf, will for any reason use or disclose to any person any of the other party’s Confidential Information.  The term “person” as used in this Section shall be interpreted to include, without limitation, any individual, partnership, corporation or other entity.  Nothing in this Agreement shall be construed as granting any rights to the receiving party, by license or otherwise , to any of the disclosing party’s Confidential Information, except as expressly stated in this Agreement.  In the event that a party is required to disclose Confidential Information to a court or governmental agency or pursuant to any other applicable law, such party shall, to the extent practicable prior to such disclosure, and as soon as practicable and by the best available means, notify the other party to allow it an adequate opportunity to object to the disclosure order or to take another actions to preserve the confidentiality of the information.  Prior to any disclosure pursuant to this Section, a party required to disclose Confidential Information shall cooperate with the party claiming confidentiality of the information in such party’s reasonable efforts to limit the disclosure by means of a protective order or a request for confidential treatment.

Personal Information. Intellishield acknowledges that, in the course of performing Services, Intellishield may receive personal information concerning consumers.  Intellishield will implement reasonable safeguards to protect personal information belonging to the consumers in accordance with the guidelines outlined in Appendix A.  In addition, Client agrees to maintain and implement reasonable safeguards substantially similar to those in Appendix A including, without limitation (i) allowing only those employees who need such information to perform their job duties to have access to the same, and (ii) disposing of any such information when it no longer has a legitimate need for such information by cross shredding, burning or electronic destruction as required by federal or state, whichever is more stringent.

• Waiver and Release.  Client acknowledges that Intellishield relies totally on the information furnished by others.  Intellishield also relies on the information contained in the records of various governmental agencies for other reports.  Intellishield is not responsible for inaccurate or false information received from others and sent to Client.  Client agrees to assert no claim and waives liability against Intellishield for any inaccurate or false information included in any report unless Intellishield had actual knowledge of the error and failed to correct it if it had the legal ability to alter such information.

• Warranties. Intellishield represents and warrants to the Customer:

1. Intellishield is a legal entity duly organized and existing, and is in good standing under the           laws of the jurisdiction of its organization.

B. The Services to be provided by Intellishield hereunder will be performed in a professional,             competent, and workmanlike manner.

C. Intellishield has and will maintain during the Term any professional licenses, registrations,           and permits necessary for provision of the Services at Intellishield’s sole cost and expense.

D. The Services, and their use as contemplated by this Agreement, do not and shall not violate or             infringe the copyright, trademark, patent, trade secret, privacy, publicity or reputational rights of             any third party.

E. Intellishield is an independent contractor and not an employee or agent of Client. 

EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, Intellishield SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, RESPRESENTATIONS, EXPRESS OR IMPLIED, ARISING BY LAW OR CUSTOM OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  NEITHER PARTY MAKES ANY WARRANTY HEREUNDER TO ANY THIRD PARTY ON BEHALF OF THE OTHER PARTY.

• Fees. Client agrees to pay the fees for the Services in the amounts specified in each SOW, as applicable, and shall pay in the time and manner specified herein, except as otherwise provided in each SOW, as applicable.  Fees are exclusive of all sales, use and similar taxes.  Client is responsible for paying the amount of any applicable sales, use or service tax, fees or charges for Services delivered and invoiced to Client (except for any tax imposed on Intellishield’s net income), which Intellishield may be required to collect because of its performance of this Agreement.  If Client pays any tax to Intellishield and the tax is later determined not to be due or is subject to a refund, Intellishield shall immediately refund the amount thereof to Client.  If Client disputes and refuses to pay any tax, Client agrees to indemnify and hold Intellishield harmless if such tax is later determined to be due and payable by Client. Payment should follow the EOAP Net 30 payment terms.

• Intellishield will charge the clients Credit Card at the time of order for each Report or . Client must notify Intellishield of any dispute concerning any payment within 15 business days after receipt of the invoice.  Client may withhold such portion of the invoice as represents the amount in dispute pending resolution of the dispute.  Intellishield and Client will use their good faith efforts to resolve any disputed fee amount or refusal of payment.  Intellishield may, in addition to asserting any of Intellishield’s other rights, suspend any further services if Client’s non-payment continues beyond 60 business days. Indemnity.  Each party (“Indemnifying Party”) agrees to indemnify, defend and hold harmless the other, their affiliates, the present and former officers, members, shareholders, directors, employees, representatives, attorneys, and agents of any of these, and their successors and assigns (each, an “Indemnified Party”) from and against any and all losses, liabilities, demands, claims, suits, costs, penalties, fines, damages and expenses (including reasonable attorneys’ fees and costs of investigation and litigation)(collectively, “Claims and Losses”) incurred by the Indemnified Party as the result of (i) any claim by a third party arising out of the Indemnifying Party’s gross negligence or willful misconduct, and (ii) in the event Intellishield is the Indemnified Party, Client’s breach of the End User Certification in Section 4 hereof;provided, however, that the Indemnifying Party shall not be required to reimburse the Indemnified Party for such amounts to the extent the court rendering the judgment or the agency making the award determines that the liability underlying the judgment or award (and attorneys’ fees or penalties with respect thereto) was caused by the negligence, breach, fraud or criminal conduct of the Indemnified Party.  The Indemnified Party shall promptly notify the Indemnifying Party of any potential claim covered by this indemnity, cooperate with the Indemnifying Party in the investigation and defense of the same, and allow the Indemnifying Party to control the negotiation, litigation and settlement of the claim. The Indemnifying Party’s undertaking to defend, indemnify and hold harmless shall be limited to the extent that any delay by the Indemnified Party in giving notice to adversely affects the defense of, or ability to settle, such losses, liabilities, claims, damages or expenses.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OF THE OTHER PARTY OR ANY THIRD PART, OR FOR LOSS OF BUSINESS, PROFITS, BUSINESS INTERRUPTION, OR LOSS OF DATA, REGARDLESS OF WHETHER SUCH PARTY RECEIVES NOTICE OF THE POTENTIAL FOR SUCH DAMAGES.  NOTWITHSTANDING ANY PROVISION OF THIS PARAGRAPH, THIS AGREEMENT, AND EXCEPT AS EXPRESSLY SET FORTH IN ANY APPLICABLE SOW ENTERED INTO PURSUANT TO THIS AGREEMENT, IN NO EVENT (OTHER THAN A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) SHALL EITHER PARTY’S AGGREGATE LIABILITY FOR ANY CLAIMS, ACTIONS, FEES, COSTS, MITIGATION-RELATED OR OTHER EXPENSES, PENALITIES OR SIMILAR AMOUNTS RELATING TO OR ARISING HEREUNDER REGARDLESS OF THE FORM OF ACTION (INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, PRODUCTS LIABILITY, STRICT LIABILITY, COMPLIANCE REVIEW OR SIMILAR INQUIRY), EXCEED ONE YEAR OF FEES PAID HEREUNDER FOR THE SERVICES PROVIDED.

1. Miscellaneous Provisions
2. This Agreement constitutes the entire understanding between the parties and supersedes all             previous discussions, agreements, negotiations and representations.  This Agreement may only be modified in writing signed by both parties; however, subsequent representations by Client to     show compliance with existing or future laws are effective when signed by Client and become a           part of this Agreement.
3. This Agreement may be executed in two or more counterparts, each of which shall be     deemed an original, but all of which together shall constitute one and the same Agreement.  The parties may deliver signed copies of this Agreement via facsimile or as a PDF via email, and     such copies shall be deemed originals.  Communication by electronic mail shall not be    construed as an effective amendment to the Agreement unless accompanied by a manually         signed attachment.
4. This Agreement is intended to be subject to, and in compliance with, all applicable state and             federal statutes and regulations.  Insofar as this Agreement or any provision may subsequently   be determined to be at variance or not in compliance with any such statute or regulation, it will      be considered to be amended or modified to the extent necessary to make it comply, and    Intellishield and Client hereby consent and agree to any such amendment or modification.             Further, the invalidity or unenforceability of any one provision shall not affect the validity or           enforceability of the other provisions.
5.  No term or condition of this Agreement shall be deemed waived, and no breach shall be             deemed excused, unless such waiver or excuse is in writing an dis executed by the party from             whom such waiver or excuse is claimed.  No such waiver shall be deemed a waiver of any                        preceding or succeeding breach or right in the same or in any other provision hereof.
6. Section numbers and headings are used for convenience and are not to be construed as             limitations of the substance of any provision.
7. This agreement shall be governed by and construed in accordance with the laws of the             Commonwealth of Pennsylvania without regard for its conflicts of law provisions.  Each party             irrevocably agrees that any legal action, suit or proceeding brought by it in any way arising out of             this Agreement must be brought solely and exclusively in state or federal courts located in the             Commonwealth of Pennsylvania, and each party irrevocably submits to the sole and exclusive             jurisdiction of these courts in person, generally and unconditionally with respect to any action,   suit or proceeding brought by it or against it by the other party.
8. With the exception of a party’s obligation to make payments properly due to the other party,             neither party shall be deemed in default or otherwise liable under this Agreement for any             cessation, interruption or delay in the performance of its obligations hereunder due to causes             beyond its reasonable control, including, but not limited to, natural disaster, act of God, labor             controversy, civil disturbance, disruption of the public markets, war or armed conflict, or the             inability to obtain sufficient materials or services required in the conduct of its business, including Internet access, or any change in or the adoption of any law, judgment or decree.
9. Neither this Agreement nor any right or obligation arising hereunder may be assigned     (voluntarily, by operation of law, or otherwise), in whole or in part, by either party without the           prior written consent of the other party, such consent not to be unreasonably withheld;           provided, however, that either party shall have the right, upon written notice to the other party,    to assign this Agreement to any person or entity that acquires all or substantially all such party’s    business or assets or any entity controls, is controlled by, or is under common control with party.      This Agreement shall be binding upon, and inure to the benefit of, the parties and their           respective successors and permitted assigns.
10. Nothing express or implied in this Agreement is intended to confer, nor shall anything herein             confer, upon any person other than parties and their respective successors or assigns, any rights,             remedies or obligations whatsoever.
11. All notices provided for herein shall be sent by confirmed facsimile, or guaranteed overnight        mail, with tracing capability, or by first class United States mail, with postage prepaid, addressed         to the other party at their respective addresses set forth above or such other addresses as either        party may designate in writing to the other from time to time for such purposes.  All notices            provided for herein shall be deemed given or made when received.

Appendix A – Data Security Guidelines

Intellishield takes the privacy and cybersecurity very seriously and is committed to having comprehensive policies, procedures and practices to safeguard consumer data.  For this reason, Intellishield maintains a comprehensive written information security program (Program).  The following guidelines are key elements of that Program.

1. Administrative Safeguards

i. Intellishield employees are subject to criminal background checks as permitted by law.

ii. The company designed an employee to be responsible for complying with Intellishield privacy and cybersecurity obligations.

iii. The company conducts an annual risk assessment to identity and remediate threats and vulnerabilities identified in the assessment.

iv. The company maintains an incident response plan and follows that plan when investigating and responding to a data incident involving consumer data.

v. Before being permitted to access consumer data, Intellishield employees are required to undergo employee privacy and cybersecurity training.  Thereafter, employees are required to participate in the company’s ongoing training and security awareness program. The training program includes guidance on identifying phishing attacks, social engineering, and other forms of attacks.

B. Physical Safeguards.

i. Intellishield’s facilities are secured by locks, a commercial-grade and monitored alarm system, and equipped with surveillance cameras.

ii. Intellishield employees have limited access to our facilities and inside our facilities to those areas where they have a business reason to be.  Intellishield employees are not permitted on the company’s premises during non-working hours.

iii. Access to the company’s data center and server room is limited to employees in the IT department and certain other employees and members of management.  These rooms also are temperature controlled.

iv. Hard copy documents containing consumer data are required to be shredded and all electronic storage devices are purged prior to being disposed of, reissued or re-purposed.

C.Technical Safeguards.

i. Employees are subject to detailed password policy which includes minimum requirements for selecting a password and periodically changing passwords.

ii. The company maintains up-to-date firewall, virus and malware protections, and has procedures in place to promptly deploy updates.  Server firewalls are configured to deny-all by default and only allow needed services.

iii. All consumer data maintained on Intellishield’s information systems is encrypted.

iv. Intellishield information systems utilize access controls, including two-factor authentication, as well as logging of all access and ex filtration, and retention of such access control logs for a period of no less than one (1) year.

V. The company maintains a comprehensive backup, contingency and disaster recovery plan which includes, nightly backups, on and off-site encrypted backup servers, and contingency protocols in the event of a natural disaster and other business interruptions.