At times in order to give you the best customer experience we may have to share your information with one of our sister companies, Nowcom, Westlake Financial or Western Funding. If you would not like us to share your information you may opt out. This will require us to call and ask for permission before continuing. Call (888) 669-2669 with questions about this policy.
This DealerCenter and Consumer Credit Report Subscriber Service Agreement (the “Agreement”) is entered into on this, the _______ day of ________________________, 20___ by and between Nowcom Corporation (”Nowcom”) and ____________________________________________(“Subscriber”).
The term “Credit Agency” in this Agreement shall mean any of the following credit reporting agencies: TransUnion LLC, an Illinois limited liability company and Experian Information Solutions, Inc., an Ohio corporation.
A. SCOPE OF AGREEMENT
Nowcom is making available to Subscriber a comprehensive dealer management solution (“the Solution”) which includes, among other things, certain consumer credit reporting services. This Agreement, consisting of the body and Exhibits “A” through “N” consists of the general terms and conditions which shall govern Subscriber’s use of the Solution. If there is a conflict between the general terms and conditions and any Exhibit, the provisions of the Exhibit will govern and control. This Agreement applies to every kind of information, software or service provided by Nowcom to Subscriber, even if a given type of service or information is not specifically referred to in this Agreement or is not currently provided by Nowcom, unless the service is furnished pursuant to a separate written agreement with Nowcom, executed and effective after the effective date of this Agreement, and containing an "entire agreement" or "merger" clause. This Agreement specifically supersedes and replaces any agreement between the parties that predates this Agreement and that relates to the Solution, even if the prior agreement contains an "entire agreement" or "merger" clause, and any such agreements are terminated.
B. IMPLEMENTATION AND ACCESS
Subscriber shall be responsible for providing and installing all hardware and software at its facilities necessary to access and implement the Solution. Nowcom shall provide reasonable consultation to assist in the implementation and training process.
C. GRANT OF LICENSE
Subject to the provisions of this Agreement, Nowcom grants a non-exclusive license to Subscriber to use the information provided through the Solution only as described in this Agreement. Subscriber may reproduce or store the information obtained from Nowcom solely for each of its respective own uses in accordance with this Agreement, and will hold all information licensed under this Agreement in strict confidence and will not reproduce, reveal or make it accessible in whole or in part, in any manner whatsoever, to each other or to any third party unless required by law, or unless Subscriber first obtains Nowcom’s written consent; provided, however, that Subscriber, as applicable, may discuss information in a consumer report with the subject of that consumer report when Subscriber has taken adverse action against the subject based on the consumer report. Subscriber will not provide a copy of the consumer report to the consumer, except as may be required or permitted by law or approved in writing by Nowcom, except in any state where this contractual prohibition would be invalid. Subscriber will not interpret the failure of Nowcom to return information regarding the consumer's eligibility for a credit service as a statement regarding that consumer's credit worthiness, because that failure may result from one or more factors unrelated to credit worthiness.
Subscriber’s use of the Solution is further subject to the terms of the DealerCenter End User License Agreement, attached hereto as Exhibit “E” and incorporated herein by reference.
D. FEE SCHEDULE AND PAYMENT POLICY
Subscriber’s use of the Solution shall be subject to the Fee Schedule and Payment Policy attached hereto as Exhibit “D” and incorporated herein by reference. The Fee Schedule and Payment Policy may be amended from time to time by Nowcom upon thirty (30) days prior written notice
Nowcom Subscriber Agreement v112009 Page 1 of 38
E. SUBSCRIBER’S AFFIRMATIVE COVENANTS
Subscriber and Subscriber’s employees shall:
1. Order consumer reports, as defined by the Federal Fair Credit Reporting Act of 1995, as amended in 2003, 15 U.S.C. 1681 et. seq., as amended in 2003 by the Fair and Accurate Credit Transactions Act (the "FCRA") only when Subscriber intends to use the consumer report: (a) in accordance with the FCRA and all state law FCRA counterparts, and (b) for one of the following FCRA permissible purposes: (i) in connection with a credit transaction involving the consumer on whom the consumer report is to be furnished and involving the extension of credit to, or review or collection of an account of, the consumer; (ii) in connection with the underwriting of insurance involving the consumer; (iii) as a potential investor or servicer, or current insurer, in connection with a valuation of, or an assessment of the credit or prepayment risks associated with, an existing credit obligation; (iv) when Subscriber otherwise has a legitimate business need for the information either in connection with a business transaction that is initiated by the consumer, or to review an account to determine whether the consumer continues to meet the terms of the account; (v) in accordance with the written instructions of the consumer to whom it relates; or (vi) for employment purposes. Client will use each consumer report ordered from Nowcom for one of the foregoing purposes and for no other purpose.
2. Comply with the provisions of the FCRA, the Federal Equal Credit Opportunity Act, as amended (the "ECOA"), all state law counterparts of them, and all applicable regulations promulgated under any of them, including, without limitation, any provisions requiring adverse action notification to the consumer.
3. Hold in strict confidence the any consumer report received by Subscriber and not to distribute a copy to any other party, except as required by law or other lawful order. However, this restriction shall not prohibit Subscriber from discussing with the subject of the report, who is the subject of an adverse action, the content of the report as it relates to the reason for the adverse action.
4. Maintain copies of all written authorizations for a minimum of five (5) years from the date of inquiry.
5. Comply with the terms of the DealerCenter End User License Agreement as set forth in Exhibit “E” hereto.
6. Comply with the Fee Schedule and Payment Policy as set forth in Exhibit “D” hereto.
7. Comply with the terms of the Credit Bureau Access Security Requirements attached hereto as Exhibit “C” and incorporated herein by reference.
14. Comply with the Notice to Users of Consumer Reports: Obligations of Users Under the FCRA attached hereto as Exhibit “M” and incorporated herein by reference.
15. Comply with the Insurance Binder Program Terms and Conditions attached hereto as Exhibit “N” and incorporated herein by reference.
Nowcom Subscriber Agreement v112009 Page 2 of 38
17. Prior to processing vehicle title registration electronically, deliver to Nowcom a duly executed, original CVR Master Services Agreement.
18. Notify Nowcom, in writing, in the event of any change in the applicant information provided in Exhibit “A” hereto.
F. SUBSCRIBER’S NEGATIVE COVENANTS
Subscriber and Subscriber’s employees shall not:
1. Attempt to obtain credit reports on themselves, family members, associates, or any other person except in the exercise of their official duties. (THE FCRA PROVIDES THAT ANY PERSON WHO KNOWINGLY AND WILLFULLY OBTAINS INFORMATION ON A CONSUMER FROM A CONSUMER REPORTING AGENCY UNDER FALSE PRETENSES SHALL BE FINED UNDER TITLE 18, OR IMPRISONED NOT MORE THAN TWO YEARS, OR BOTH).
2. Resell any information provided by Nowcom or the Credit Agency.
3. Deliver credit information via the internet.
4. Request, obtain or use credit reports for any unauthorized purpose including, but not limited to, for the purpose of selling, leasing, renting or otherwise providing information obtained under this Agreement to any other party, whether alone, in conjunction with Subscriber’s own data, or otherwise in any service which is derived from the credit reports. The credit reports shall be requested by, and disclosed by Subscriber only to Subscriber’s designated and authorized employees having a need to know and only to the extent necessary to enable Subscriber to use the credit reports in accordance with this Agreement.
5. Transfer or assign all or any portion of its interest in this Agreement without the prior written consent of Nowcom.
G. TERM AND TERMINATION
This Agreement shall commence on the date first written above and shall continue for an initial term of one year. The Agreement shall thereafter automatically renew on a yearly basis and may be terminated by Subscriber at any time by delivering to Nowcom a written notice of cancellation. A sample of said notice of cancellation is attached hereto as Exhibit “F” and incorporated herein by reference. This Agreement may be terminated by Nowcom at any time upon written notice delivered to Subscriber.
H. LIMITATION OF LIABILITY
1. Subscriber and Nowcom recognize that every business decision represents an assumption of risk and that neither party underwrites or assumes the other's risk in any manner. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, OR ANY AMENDMENT, NEITHER PARTY GUARANTEES OR WARRANTS THE CORRECTNESS, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE INFORMATION OR SERVICES PROVIDED TO THE OTHER. NEITHER PARTY, NOR ANY OF ITS DIRECTORS, OFFICERS, AGENTS, EMPLOYEES, CONTRACTORS, LICENSORS, AFFILIATED COMPANIES OR AFFILIATED CREDIT BUREAUS (“AFFILIATED PERSONS AND ENTITIES”) WILL BE LIABLE TO THE OTHER FOR ANY LOSS OR INJURY ARISING OUT OF, OR CAUSED IN WHOLE OR IN PART BY, THEIR ACTS OR OMISSIONS, EVEN IF NEGLIGENT, IN PROCURING, COMPILING, COLLECTING, INTERPRETING, PROCESSING, REPORTING OR TRANSMITTING ANY INFORMATION. Subscriber recognizes that accessing the consumer credit database with additional or different identification information on a consumer, or at a different time from a prior request for information, may result in file content different from that on the date of the original access. SUBSCRIBER WILL INDEMNIFY AND HOLD HARMLESS NOWCOM AND ITS AFFILIATED PERSONS AND ENTITIES FROM AND AGAINST ANY DIRECT AND ACTUAL LOSS, COST, LIABILITY AND EXPENSE (INCLUDING REASONABLE ATTORNEY FEES) RESULTING FROM CLIENT’S BREACH OF THIS AGREEMENT.
2. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, INCLUDING ANY AND ALL FUTURE AMENDMENTS, NEITHER PARTY, NOR ANY OF ITS AFFILIATED PERSONS AND ENTITIES, WILL BE RESPONSIBLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR SPECIAL DAMAGES, INCLUDING LOST PROFITS.
Nowcom Subscriber Agreement v112009 Page 3 of 38
Subscriber agrees to hold in confidence all consumer report information received, except as provided in Section E.2. Each party acknowledges that all other materials and information disclosed to the other party ("Recipient") in connection with the performance of this Agreement, including the terms of this Agreement consist of confidential and proprietary data. Each Recipient will hold those materials and that information in strict confidence, and will restrict its use of those materials and that information to the purposes anticipated in this Agreement. If the law or legal process requires Recipient to disclose confidential and proprietary data, Recipient will notify the disclosing party of the request. Thereafter the disclosing party may seek a protective order or waive the confidentiality requirements of this Agreement, provided that Recipient may only disclose the minimum amount of information necessary to comply with the requirement. Recipient will not be obligated to hold confidential any information from the disclosing party which (a) is or becomes publicly known, (b) is received from any person or entity who, to the best of Recipient’s knowledge, has no duty of confidentiality to the disclosing party, (c) was already known to Recipient prior to the disclosure, and that knowledge was evidenced in writing prior to the date of the other party's disclosure, or (d) is developed by the Recipient without using any of the disclosing party's information. Each party will indemnify, defend and hold harmless the other from and against any direct and actual loss, cost, liability and expense (including reasonable attorneys’ fees) resulting from the indemnifying party’s breach of this Section I.
In the course of performance of Subscriber’s duties and obligations under this Agreement, Subscriber may receive nonpublic personal information (i.e., any and all personal financial and/or health information) associated with consumers’ credit reports. Such nonpublic information shall be held in the strictest confidence by Subscriber and its agents, employees, affiliates, and representatives and shall not be used for any purpose other than the performance of its duties and obligations under this Agreement. Subscriber shall establish and adopt appropriate procedures to protect the privacy, confidentiality and security of all such information, consistent with the requirements of the Gramm-Leach-Bliley Act, 15 U.S.C.A. Section 6801 et. seq. (2000) (the “GLB Act”) and any other applicable privacy laws or regulations.
K. GENERAL TERMS AND CONDITIONS
1. Notice. Notices must be in writing, must be delivered according to clause (a) or (b) below, and must be delivered to the address set forth below, or to such other address as a party may designate by notice in accordance with this provision. All notices under this Agreement will be deemed given on the date of delivery (a) by a nationally recognized overnight courier, or (b) by certified mail, return receipt requested: If o Nowctom: If o ubsctribSer:
Nowcom Corporation _______________________________________
Attn: Accounting Department _______________________________________
4751 Wilshire Blvd., Suite 115 _______________________________________
Los Angeles, CA 90010 _______________________________________
Notice shall also be deemed to have been delivered immediately upon the transmission of electronic mail to the following email addresses:
If to Nowcom: email@example.com If to Subscriber: __________________________
2. Force Majeure. Neither party will be liable to the other for any delay or interruption in performance as to any obligation hereunder resulting from governmental emergency orders, judicial or governmental action, emergency regulations, sabotage, riots, vandalism, labor strikes or disputes, acts of God, fires, electrical failure, major computer hardware or software failures, equipment delivery delays, acts of third parties, or delays or interruptions in performance beyond its reasonable control.
3. Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter contained herein and may not be amended except by a written agreement that acknowledges modification of this Agreement, and that is signed by an authorized representative of Subscriber and of Nowcom, or as otherwise expressly provided in this Agreement. This Agreement will not be more strongly construed against either party, regardless of who is more responsible for its preparation.
4. Severability. If any part of this Agreement is found to be illegal or unenforceable, then that part will be curtailed only to the extent necessary to make it, and the remainder of the Agreement, legal and enforceable. Nowcom Subscriber Agreement v112009 Page 4 of 38
5. No Waiver. A waiver of any provision of this Agreement, or any claimed breach thereof, shall not be deemed a waiver of any other provision or breach.
6. Governing Law. This agreement shall be subject to and interpreted under the laws of the state of California applicable to agreements wholly to be performed therein as well as the Copyright law or other law or laws of the United States, where applicable.
7. Venue. Any dispute arising under this Agreement shall be determined only by a court of competent jurisdiction only in the City of Los Angeles, State of California. Both parties expressly consent to personal jurisdiction in such state and in such court.
8. Attorneys Fees. In any action under this Agreement, the prevailing party shall be entitled to attorneys fees and court costs.
9. Independent Contractor. Nothing in this Agreement creates a joint venture, partnership, principal-agent or mutual agency relationship between the parties. No party has any right or power under this Agreement to create any obligation, expressed or implied, on behalf of the other party.
10. Headings. The titles or captions used in this Agreement are for convenience only and will not be used to construe or interpret any provision hereof.
11. Authority. Each person signing below represents and warrants that he or she has the necessary authority to bind the principal set forth below.
12. The Solution incorporates products and services provided by third parties which are not affiliated with Nowcom. Nowcom makes no representations regarding the accuracy or efficacy of such products and services provided by third parties and specifically disclaims any and all liability in connection with any and all products and services provided to Subscriber by any third party.
L. CREDIT RISK SCORE DISCLOSURE
The parties further agree as follows:
1. Subscriber is a credit grantor that purchases credit reports from Nowcom pursuant to this Agreement in connection with credit transactions involving the consumer subjects of such credit reports. As an enhancement to the basic credit report, Nowcom has offered Subscriber the opportunity to purchase one or more credit risk scores provided by Credit Agency.
2. Subscriber agrees to pay Nowcom the applicable fee for each score obtained. All score fees are due in the same manner and subject to the same terms and conditions as the fees in the Agreement. Fees are subject to change upon prior written notice.
3. Subscriber recognizes that all credit risk scores offered hereunder are statistical scores and may not be predictive as to any particular individual. No such score is intended to characterize any individual as to credit capability. Subscriber recognizes that factors other than the credit risk score or scores selected must be considered in making a credit decision, including the credit report, the individual credit application, economic factors, and various other pertinent factors.
4. A statement of the factors that significantly contributed to the credit risk score may accompany the score. If so, such information may be disclosed to the consumer as the reason for taking adverse action. However, the credit risk score itself is proprietary and may not be used as the reason for adverse action. In addition, under the Fair Credit Reporting Act, credit risk scores are not considered part of the consumer’s file. Accordingly, Subscriber agrees not to disclose the actual credit risk score to the consumer, unless otherwise required by law.
5. SUBSCRIBER HAS MADE ITS OWN ANALYSIS OF THE CREDIT RISK SCORE OR SCORES ELECTED BY SUBSCRIBER, INCLUDING THE STATISTICAL RELIABILITY AND THE UTILITY OF USING SUCH SCORES IN CONNECTION WITH SUBSCRIBER’S CREDIT DECISION, AND NEITHER NOWCOM NOR ANY CREDIT AGENCY SHALL BE LIABLE FOR ANY LOSS, COSTS, DAMAGES, OR EXPENSE INCURRED BY SUBSCRIBER RESULTING FROM THE USE OF THE SCORE, OR THE INACCURACY THEREOF. IN NO EVENT SHALL ANY SUCH PERSON BE LIABLE TO SUBSCRIBER FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND THE TOTAL AGGREGATE LIABILITY OF NOWCOM, IN ANY WAY RELATED TO THE USE OF ANY CREDIT RISK SCORE SHALL NOT
Nowcom Subscriber Agreement v112009 Page 5 of 38
EXCEED THE SURCHARGE PAID BY SUBSCRIBER IN CONNECTION WITH THE SCORE TO WHICH THE CLAIM RELATES.
Each Credit Agency requires that you retain the credit application and, if applicable, a purchase agreement for a period of 60 months. When conducting an investigation, particularly following a consumer complaint that your company impermissibly accessed a credit report, any one or all three of the Credit Agencies will contact you and will request a copy of the original application signed by the consumer or, if applicable, a copy of the sales contract. Under Section 621(a)(2)(A) of the FCRA, any person that violates any of the provisions of the FCRA may be liable for a civil penalty of not more than $2,500 per violation. [This record retention policy applies to all credit bureau services.]
I certify that the above information is complete and accurate. I further understand that the information provided herein may be used to obtain a consumer credit report and my creditworthiness may be considered when making a decision to grant membership or review my ongoing creditworthiness. I personally guarantee full and prompt payment of all sums due.
Nowcom Subscriber Agreement v112009 Page 6 of 38
DBA (IF ANY):
CONTACT NAME: TITLE:
LOCATION TYPE: ?? Commercial ?? Residential BUSINESS ESTABLISHED: MONTH __________ YEAR __________
BUSINESS CLASSIFICATION: ?? Sole proprietor ?? Partnership ?? Corporation ?? Other: ___________________________________
NATURE OF BUSINESS: ?? Auto Dealership - Independent ?? Auto Dealership - Franchise ?? Finance ?? Other: _________________ SOTWARE USED TO RUN CREDIT REPORTS (LIST ALL):
IF AUTO DEALER, IS INVENTORY AT BUSINESS ADDRESS? ??YES ??NO IF NO, WHERE?
APPROX. # OF VEHICLES IN INVENTORY: __________________________
THE SUBSCRIBER HAS/HAD SERVICE WITH THE FOLLOWING BUREAUS: ?? Experian ?? Equifax ?? TransUnion
HOW WILL CREDIT INFORMATION BE USED:
BUSINESS NAME AS LISTED WITH PHONE DIRECTORY:
REP'S NAME (PERSON WHO GAVE YOU THIS AGREEMENT):
BUSINESS NAME: ADDRESS:
TYPE OF BUSINESS: PHONE:
BUSINESS NAME: ADDRESS:
TYPE OF BUSINESS: PHONE:
BUSINESS NAME: ADDRESS:
TYPE OF BUSINESS: PHONE:
(Required for Independent / Non-Franchise Subscribers Only)
FULL NAME: TITLE:
RESIDENTIAL (HOME) ADDRESS:
SOCIAL SECURITY #: DATE OF BIRTH:
Nowcom Subscriber Agreement v112009 Page 7 of 38
BILLING METHODS AND EMPLOYEES LIST
METHOD 1: Subscriber requests monthly invoice to be charged to a credit and/or debit card: If yes, please provide the following information:
Name on Card: Card Number:
(3-digits, back of MC/VI; 4-digits, front of AMEX)
Credit Card Billing Address:
**A CLEAR COPY OF A VOIDED CHECK MUST BE SUBMITTED ALONG WITH APPLICATION METHOD 2: Subscriber requests monthly invoice to be debited from a checking/savings account: If yes, please provide the following information:
Name on Account: Bank Name:
Routing Number: Account Number:
Type of Account: ?? Checking ?? Savings
The following must be completed by all Subscribers:
Please list those employees’ full names and titles who will be authorized to access the credit bureau account. Please note that each authorized employee must be set up by the administrator of the account to have his or her own unique username and password. EMPLOYEE NAME EMPLOYEE TITLE EMAIL ADDRESS
Please attach an additional worksheet if necessary.
Nowcom Subscriber Agreement v112009 Page 8 of 38
CREDIT BUREAU ACCESS SECURITY REQUIREMENTS
e must work together to protect the privacy and information of consumers. The following information security measures are designed to reduce unauthorized access to consumer information. It is your responsibility to implement these controls. If you do not understand these requirements or need assistance, it is your responsibility to employ an outside service provider to assist you. Capitalized terms used herein have the meaning given in the Glossary attached hereto. Nowcom reserves the right to make changes to the Access Security Requirements without prior notification. The information provided herewith is intended to provide minimum guidelines for information security.
1. Implement Strong Access Control Measures
1.1 Do not provide your Nowcom Subscriber Codes or passwords to anyone. No one from Nowcom will ever contact you and request your Subscriber Code number or password.
1.2 Proprietary or third party system access software must have Nowcom Subscriber Codes and password(s) hidden or embedded. Account numbers and passwords should be known only by supervisory personnel.
1.3 You must immediately change your Subscriber Code password on-line when:
• Any system access software is replaced by another system access software or is no longer used;
• The hardware on which the software resides is upgraded, changed or disposed of.
Nowcom shall not change passwords under any circumstances.
1.4 Protect Nowcom Subscriber Code(s) and password(s) so that only key personnel know this sensitive information. Unauthorized personnel should not have access to or knowledge of your Subscriber Code(s) and password(s).
1.5 Create a separate, unique user ID for each user to enable individual authentication and accountability for access to Nowcom’s infrastructure. Each user of the system access software must also have a unique logon password.
1.6 Ensure that user IDs are not shared and that no Peer-to-Peer file sharing is enabled on users’ profiles.
1.7 Keep user passwords Confidential.
1.8 Develop strong passwords that are:
• Not easy to figure out (i.e. your name or company name, repeating consecutive numbers and letters, etc.)
• Contain a minimum of seven (7) alpha/numeric characters for standard user accounts
1.9 Implement password protected screensavers with a maximum fifteen (15) minute timeout to protect unattended workstations.
1.10 Active logins to credit information systems must be configured with a 30 inactive session timeout.
1.11 Restrict the number of key personnel who have access to credit information.
1.12 Ensure that personnel who are authorized to access credit information have a legitimate business need to access such information and understand these requirements to access such information are only for permissible purposes.
1.13 Ensure that you and your employees do not access your own credit reports or those reports of any family member(s) or friend(s) unless it is in connection with a credit transaction or for another permissible purpose.
1.14 Implement a process to terminate access rights immediately for users who access credit information when those users are terminated or when they have a change in their job tasks and no longer require access to that credit information.
1.15 After normal business hours, turn off and lock all devices or systems used to obtain credit information. Nowcom Subscriber Agreement v112009 Page 9 of 38
1.16 Implement physical security controls to prevent unauthorized entry to your facility and access to systems used to obtain credit information.
2. Maintain a Vulnerability Management Program
2.1 Keep operating system(s), Firewalls, Routers, servers, personal computers (laptop and desktop) and all other systems current with appropriate system patches and updates.
2.2 Configure infrastructure such as Firewalls, Routers, personal computers, and similar components to industry best security practices, including disabling unnecessary services or features, removing or changing default passwords, IDs and sample files/programs, and enabling most secure configuration features to avoid unnecessary risks.
2.3 Implement and follow current best security practices for Computer Virus detection scanning services and procedures:
• Use, implement and maintain a current, commercially available Computer Virus detection/scanning products on all computers, systems and networks.
• If you suspect an actual or potential virus, immediately cease accessing the system and do not resume the inquiry process until the virus has been eliminated.
• On a weekly basis at a minimum, keep anti-virus software up-to-date by vigilantly checking or configuring auto updates and installing new virus definition files.
2.4 Implement and follow current best security practices for computer anti-Spyware scanning services and procedures:
• Use, implement and maintain a current, commercially available anti-Spyware scanning product on all computers, systems and networks.
• If you suspect actual or potential Spyware, immediately cease accessing the system and do not resume the inquiry process until the problem has been resolved and eliminated.
• Run a secondary anti-Spyware scan upon completion of the first scan to ensure all Spyware has been removed from your computers.
• Keep anti-Spyware software up-to-date by vigilantly checking or configuring auto updates and installing new anti-Spyware definition files weekly at a minimum. If your company’s computers have unfiltered or unblocked access to the Internet (which prevents access to some known problematic sites), then it is recommended that anti-Spyware scans be completed more frequently than weekly
• Keep anti-Spyware software up-to-date by vigilantly checking or configuring auto updates and installing new anti-Spyware definition files weekly at a minimum. If your company’s computers have unfiltered or unblocked access to the Internet (which prevents access to some known problematic sites), then it is recommended that anti-Spyware scans be completed more frequently than weekly
3 Protect Data
3.1 Develop and follow procedures to ensure that data is protected throughout its entire information media used to store the data (i.e., tape, disk, paper, etc.).
3.2 All data provided by Nowcom is classified as Confidential and must be secured to this requirement at a minimum.
3.3 Procedures for transmission, disclosure, storage, destruction and any other information modalities or media should address all aspects of the lifecycle of the information.
3.4 Encrypt all Nowcom data and information when stored on any laptop computer and in the database using AES or 3DES with 128-bit key encryption at a minimum.
3.5 Only open email attachments and links from trusted sources and after verifying legitimacy.
4 Maintain an Information Security Policy
4.1 Develop and follow a security plan to protect the Confidentiality and integrity of personal consumer information as required under the GLB Safeguard Rule.
4.2 Establish processes and procedures for responding to security violations, unusual or suspicious events and similar incidents to limit damage or unauthorized access to information assets and permit identification and prosecution of violators.
Nowcom Subscriber Agreement v112009 Page 10 of 38
4.3 The FACTA Disposal Rules requires that you implement appropriate measures to dispose of any sensitive information related to consumer credit reports and records that will protect against unauthorized access or use of that information.
4.4 Implement and maintain ongoing mandatory security training and awareness sessions for all staff to underscore the importance of security within your organization.
5 Build and Maintain a Secure Network
5.1 Protect Internet connections with dedicated, industry-recognized Firewalls that are configured and managed using industry best security practices.
5.2 Internal private Internet Protocol (IP) addresses must not be publicly accessible or natively routed to the Internet. Network address translation (NAT) technology should be used.
5.3 Administrative access to Firewalls and servers must be performed through a secure internal wired connection only.
5.4 Any stand-alone computers that directly access the Internet must have a desktop Firewall deployed that is installed and configured to block unnecessary/unused ports, services and network traffic.
5.5 Encrypt Wireless access points with a minimum of WEP 128-bit encryption, WPA encryption where available.
5.6 Disable vendor default passwords, SSIDs and IP addresses on Wireless access points and restrict authentication on the configuration of the access point.
6 Regularly Monitor and Test Networks
6.1 Perform regular tests on information systems (port scanning, virus scanning, vulnerability scanning).
6.2 Use current best practices to protect your telecommunications systems and any computer system or network device(s) you use to provide Services hereunder to access Nowcom systems and networks. These controls should be selected and implemented to reduce the risk of infiltration, hacking, access penetration or exposure to an unauthorized third party by:
• Protecting against intrusions;
• Securing the computer against systems and network devices;
• and protecting against intrusions of operating systems and software.
Record Retention: The Federal Equal Opportunities Act states that a creditor must preserve all written or recorded information connected with an application for 60 months. In keeping with the ECOA, Experian requires that you retain the credit application and, if applicable, a purchase agreement for a period of not less than 25 months. When conducting an investigation, particularly following a consumer complaint that your company impermissibly accessed their credit report, a Credit Agency may contact you and may request a copy of the original application signed by the consumer or, if applicable, a copy of the sales contract. “Under Section 621 (a) (2) (A) of the FCRA, any person that violates any of the provisions of the FCRA may be liable for a civil penalty of not more than $2,500 per violation.”
Nowcom Subscriber Agreement v112009 Page 11 of 38
Computer Virus A Computer Virus is a self-replicating computer program that alters the way a computer operates, without the knowledge of the user. A true virus replicates and executes itself. While viruses can be destructive by destroying data, for example, some viruses are benign or merely annoying.
Confidential Very sensitive information. Disclosure could adversely impact your company.
Encryption Encryption is the process of obscuring information to make it unreadable without special knowledge.
Firewall In computer science, a Firewall is a piece of hardware and/or software which functions in a networked environment to prevent unauthorized external access and some communications forbidden by the security policy, analogous to the function of Firewalls in building construction. The ultimate goal is to provide controlled connectivity between zones of differing trust levels through the enforcement of a security policy and connectivity model based on the least privilege principle.
(Or Data Lifecycle) is a management program that considers the value of the information being stored over a period of time, the cost of its storage, its need for availability for use by authorized users, and the period of time for which it must be retained.
IP Address A unique number that devices use in order to identify and communicate with each other on a computer network utilizing the Internet Protocol standard (IP). Any All participating network devices - including routers, computers, time-servers, printers, Internet fax machines, and some telephones - must have its own unique IP address. Just as each street address and phone number uniquely identifies a building or telephone, an IP address can uniquely identify a specific computer or other network device on a network. It is important to keep your IP address secure as hackers can gain control of your devices and possibly launch an attack on other devices.
Peer-to-Peer A type of communication found in a system that uses layered protocols. Peer-to-Peer networking is the protocol often used for reproducing and distributing music without permission. Router A Router is a computer networking device that forwards data packets across a network via routing. A Router acts as a junction between two or more networks transferring data packets.
Spyware Spyware refers to a broad category of malicious software designed to intercept or take partial control of a computer's operation without the consent of that machine's owner or user. In simpler terms, spyware is a type of program that watches what users do with their computer and then sends that information over the internet.
SSID Part of the Wi-Fi Wireless LAN, a service set identifier (SSID) is a code that identifies each packet as part of that network. Wireless devices that communicate with each other share the same SSID. Subscriber Code Your seven digit Experian account number.
WEP Encryption (Wired Equivalent Privacy) A part of the wireless networking standard intended to provide secure communication. The longer the key used, the stronger the encryption will be. Older technology reaching its end of life.
WPA (Wi-Fi Protected Access) A part of the wireless networking standard that provides stronger authentication and more secure communications. Replaces WEP. Uses dynamic key encryption verses static as in WEP (key is constantly changing and thus more difficult to break than WEP).
Nowcom Subscriber Agreement v112009 Page 12 of 38
FEE SCHEDULE AND PAYMENT POLICY
EXPERIAN ?? Basic Experian Report Standard Report $2.75
?? FICO 2 Score? $0.48
?? FICO AUTO 2 Auto Industry Score? $0.48
?? Profile Summary Report Summary $0.15
?? Direct Check Recent Inquiry List $0.25
?? OFAC Search* Federal List of Terrorists, etc. (*Required) $0.25
?? Social Search Advanced Score $2.00
?? Precise ID Anti-Fraud/ ID Theft Score˜ $2.00
(* To remove OFAC from Experian, you must complete an "Opt Out" Form.)
EQUIFAX ?? Passthrough Report Maintenance fee $0.25
TRANSUNION*** ?? Basic TU Report Standard report $3.40
?? FICO AUTO 4 Auto Industry Score $0.50
?? Credit Summary Credit Summary $0.25
?? OFAC Federal List of Terrorists, etc. $0.50
DEALER CENTER PRODUCTS ?? DealerCenter DMS Subscription $50/Mon th
?? Book Service KBB Subscription† $35/Month
?? Book Service NADA Subscription§ $35/Month
?? Book Service Black Book® Subscription‡ $75/Month
?? BHPH Buy-Here, Pay-Here Subscription $35/Month
?? Web Ad Upload Unlimited Web Ad Uploads $10/Month
?? AutoCheck Vehicle History Report± $10/Full Report
?? Websites Dealer Websites Subscription $40/Month
?? Insurance Binders Insurance Binders° (No monthly fee**)
**The Subscriber charges the customer for the binder at the exact amount indicated on certificate. Nowcom will bill the Subscriber the exact amount the following month. Binder availability is subject to territorial restrictions.
***Additional documentation may be required by TransUnion.
° Binder availability is subject to territorial restrictions. See Exhibit N for Insurance Binder Program Terms and Conditions. PAYMENT POLICY
1. Subscriber shall pay the invoiced amount to Nowcom within ten (10) days following receipt of Nowcom’s monthly invoice. A late fee of 1.5% of the outstanding balance per month shall be payable in any month in which timely payment is not made.
2. A minimum monthly fee of $25.00 shall apply.
3. Subscriber shall be responsible for payment of all applicable taxes.
4. First onsite inspection fee will be paid by Nowcom. Subsequent onsite inspection fees for change of address, account reinstatement, etc. will be invoiced in the amount of $55.00.
Nowcom Subscriber Agreement v112009 Page 13 of 38
DealerCenter End User License Agreement
READ THIS DOCUMENT CAREFULLY BEFORE INSTALLING THIS SOFTWARE. BY CLICKING THE "I agree to the terms and rules related to the use of this program" BUTTON, DOWNLOADING, INSTALLING AND USING THIS SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE. YOU AGREE THAT YOUR INSTALLING OR USE OF THE SOFTWARE ACKNOWLEDGES THAT YOU HAVE READ THIS LICENSE, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
This is a legal agreement between you (either an individual or an entity) and Nowcom Corporation, and its suppliers and licensors (collectively "Nowcom Corporation"). This Agreement states the terms and conditions upon which Nowcom Corporation offers to license the DealerCenter, together with all related documentation and accompanying items including, but not limited to, the executable programs, drivers, libraries and data files associated with such programs (collectively, the "Software").
You acknowledge that you are in possession of proprietary and confidential trade secret materials belonging to Nowcom Corporation or its licensors. Except as provided herein, all information and materials provided to you shall be considered "Confidential Information". You promise not to use, disclose or otherwise disseminate any Confidential Information without the express written consent of Nowcom Corporation. Confidential Information does not include information: (i) was already known to you prior to receipt from Nowcom Corporation; (ii) is or becomes public knowledge without breach of your obligations under this Agreement; (iii) is rightfully acquired by you from a third party without restriction on disclosure or use; (iv) was or is disclosed by the Nowcom Corporation to a third party prior to or after the date of this Agreement without restriction or use; (v) is independently developed by you without resort to Nowcom Corporation's disclosure; or (vi) is disclosed or used following your receipt of express written consent from an officer of Nowcom Corporation. Provided, however, that you shall have the burden of proof respecting any of these events on which you rely as relieving you of any restrictions under this Agreement. In addition, prior to any disclosure or use of Confidential Information pursuant to this paragraph, you must first notify Nowcom Corporation, in writing, of the specific Confidential Information you seek to use or disclose pursuant to this paragraph, and the factual and/or legal reasons therefore. Said written notice shall be made at least two weeks before using or disclosing such Confidential Information. You promise to act diligently in keeping Nowcom Corporation’s trade secrets and other Confidential Information secret. You promise to act consistently with the legal requirements to maintain the "trade secret" classification of Nowcom Corporation's confidential business information.
1. Grant of License.
The Software is not sold to you. Rather, it is licensed on a non-exclusive basis solely for use by you, and you alone, under the terms of this Agreement. Nowcom Corporation (and, to the extent applicable, its licensors), retains all title to and ownership of the Software and reserves all rights not expressly granted to you hereby. If you have obtained an evaluation/demo copy of the Software, and have not purchased a license to the Software, Nowcom Corporation grants you a 30-day non-exclusive license to use the Software free of charge for the purpose of evaluating whether you wish to purchase an ongoing license for the Software. WARNING: Evaluation/Demo copies of the Software may become non-functional thirty (30) days following initial installation on your computer. Evaluation/Demo copies of the software may also limit the number of times certain features may be executed. Nowcom Corporation disclaims all liability and responsibility for any loss of data or other information which may occur as a result thereof. BETA RELEASE VERSIONS: In the event that the Software is a Beta Release Version, the terms of this Section shall apply. Your license to use the Software expires 30 days after installation (or such other period as indicated by the Software) and the Software may cease to function. The Software you are receiving may contain more or less features than the commercial release of the Nowcom Corporation Product that Nowcom Corporation intends to distribute. While Nowcom Corporation intends to distribute a commercial release of the Software, Nowcom Corporation reserves the right at any time not to release a commercial release of the Software or, if released, to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the commercial release. You agree that the Beta Release Versions are not suitable for production use and may contain errors affecting their proper operation. You agree that you will not do anything to circumvent or defeat the features designed to stop the Software from operating after the license expires.
Nowcom Subscriber Agreement v112009 Page 14 of 38
2. No Trademark License.
No license is granted to you in this Agreement, either expressly or implicitly, to use any trademark, service mark, names, or logos of Nowcom Corporation or any of its licensors, affiliates, partners or subsidiaries. Nowcom Corporation owns all customer data collected through the registration process.
3. Intentionally Omitted.
4. Lawful Use Only.
You agree that you shall only use the Software and Documentation in a manner that complies with all applicable laws in the jurisdiction in which you use the Software and Documentation, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights. You will not misuse or otherwise use the software in a malicious way that causes injury or disruption to the websites posted to.
The Software is owned by Nowcom Corporation or its licensor, and is protected by United States copyright laws and international treaty provisions. You may not remove the copyright notice from any copy of the Software or any copy of the written materials, if any, accompanying the Software.
6. Intentionally Omitted.
7. Intentionally Omitted.
8. No Merger or Integration.
You may not merge any portion of the Software into, or integrate any portion of the Software with, any other program, except to the extent expressly permitted by the laws of the jurisdiction where you are located. Any portion of the Software merged into or integrated with another program, if any, will continue to be subject to the terms and conditions of this Agreement, and you must reproduce on the merged or integrated portion all copyright and other proprietary rights notices included in the originals of the Software.
9. No Transfer of License.
You may not transfer your license of the Software to anyone.
10. Limitations on Using, Copying, and Modifying the Software. Except to the extent expressly permitted by this Agreement or by the laws of the jurisdiction where you acquired the Software, you may not use, copy or modify the Software. Nor may you sub-license any of your rights under this Agreement.
11. Decompiling, Disassembling, or Reverse Engineering. You acknowledge that the Software contains trade secrets and other proprietary information of Nowcom Corporation and/or its licensors. Except to the extent expressly permitted by this Agreement or by the laws of the jurisdiction where you are located, you may not decompile, disassemble or otherwise reverse engineer the software, or engage in any other activities to obtain underlying information that is not visible to the user in connection with normal use of the Software. In particular, you agree that you will not transmit the Software or display the Software's object code on any computer screen or to make any hardcopy memory dumps of the Software's object code. If you believe you require information related to the interoperability of the Software with other programs, you shall not decompile or disassemble the Software to obtain such information, and you agree to request such information from Nowcom Corporation at the address listed below. Upon receiving such a request, Nowcom Corporation shall determine whether you require such information for a legitimate purpose and, if so, Nowcom Corporation will provide such information to you within a reasonable time and on reasonable conditions.
In any event, you will notify Nowcom Corporation of any information derived from reverse engineering or such other activities, and the results thereof will constitute the confidential information of Nowcom Corporation that may be used only in connection with the Software.
12. Updates and Auto-updating.
This license does not grant you any right to any enhancements or updates to the Software, nor any support services. The Software has an auto-update function that automatically checks Nowcom Corporation's or its licensor's servers on the Internet for updates for the Software, such as bug fixes, patches, database updates, and enhanced functions. You agree that Nowcom Corporation may, through the auto-update function, download updates and install them as part of your Software. Nowcom Subscriber Agreement v112009 Page 15 of 38
13. Privacy and Usage Tracking Nowcom and its licensors, affiliates, partners or subsidiaries may track certain usage and demographics information in connection with the use of the Software. However, this information is not correlated with data about individual consumers. Usage and demographics information is captured and used for statistical analysis in order to improve the quality and efficacy of the Software. Information about individual users is not shared with any third party, except to comply with applicable law or valid legal process or to protect the personal safety of our users or the public. Your usage of the Software indicates your consent to the collection and use of this information.
The license granted to you is effective until terminated. You may terminate it at any time by returning the Software (including any portions or copies thereof) to Nowcom Corporation. The license will also terminate automatically without any notice from Nowcom Corporation if you fail to comply with any term or condition of this Agreement or with the terms of a separate Agreement for Services to be entered into between you and Nowcom Corporation. You agree upon such termination to return the Software (including any portions or copies thereof) to Nowcom Corporation. Upon termination, Nowcom Corporation may also enforce any rights provided by law. The provisions of this Agreement that protect the proprietary rights of Nowcom Corporation will continue in force after termination.
15. DISCLAIMER OF WARRANTY
Nowcom Corporation does not warrant that the functions contained in the Software will meet your requirements or that the operation of the Software will be uninterrupted, error-free or free from malicious code. For purposes of this paragraph, "malicious code" means any program code designed to contaminate other computer programs or computer data, consume computer resources, modify, destroy, record, or transmit data, or in some other fashion usurp the normal operation of the computer, computer system, or computer network, including viruses, Trojan horses, droppers, worms, logic bombs, and the like.
EXCEPT AS STATED ABOVE IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED AS-IS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. NOWCOM CORPORATION IS NOT OBLIGATED TO PROVIDE ANY UPDATES, UPGRADES OR TECHNICAL SUPPORT FOR THE SOFTWARE.
Further, Nowcom Corporation shall not be liable for the accuracy of any information provided by Nowcom Corporation or third-party technical support personnel, or any damages caused, either directly or indirectly, by acts taken or omissions made by you as a result of such technical support.
You assume full responsibility for the selection of the Software to achieve your intended results, and for the installation, use and results obtained from the Software. You also assume the entire risk as it applies to the quality and performance of the Software. Should the Software prove defective, you (and not Nowcom Corporation, or its distributors or dealers) assume the entire cost of all necessary servicing, repair or correction.
16. LIMITATION OF REMEDIES AND DAMAGES
IN NO EVENT WILL NOWCOM CORPORATION OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST PROFITS, LOST SAVINGS, LOST REVENUES OR LOST DATA ARISING FROM OR RELATING TO THE SOFTWARE OR THIS AGREEMENT, EVEN IF NOWCOM CORPORATION OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL NOWCOM CORPORATION'S LIABILITY OR DAMAGES TO YOU OR ANY OTHER PERSON EVER EXCEED THE AMOUNT PAID BY YOU TO USE THE SOFTWARE, REGARDLESS OF THE FORM OF THE CLAIM. If the country/state in which you reside does not allow the limitation or exclusion of liability for incidental or consequential damages, the above limitation or exclusion may not apply to you.
17. U.S. GOVERNMENT RESTRICTED RIGHTS
All Software and related documentation are provided with restricted rights. Use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in subdivision (b)(3)(ii) of the Rights in Technical Data and Computer Software Clause at 252.227-7013. Manufacturer is Nowcom Corporation, 4751 Wilshire Blvd. Suite 115, Los Angeles, CA, 90010. If you are sub-licensing or using the Software outside of the United States, you will comply with the applicable local laws of your country, U.S. export control law, and the English version of this Agreement. You are responsible for complying with all trade regulations and laws both foreign and domestic.
18. EXPORT RESTRICTIONS
You acknowledge that none of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, Sudan, North Korea, Iran, Syria or any Nowcom Subscriber Agreement v112009 Page 16 of 38
other country subject to a U.S. embargo; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Parties List or Entity List. By using the Software you are agreeing to the foregoing and are representing and warranting that (i) no U.S. federal agency has suspended, revoked, or denied you export privileges, (ii) you are not located in or under the control of a national or resident of any such country or on any such list, and (iii) you will not export or re-export the Software to any prohibited county, or to any prohibited person, entity, or end-user as specified by U.S. export controls.
This Agreement is binding on you as well as your employees, employers, contractors and agents, and on any successors and assignees. Neither the Software nor any information derived therefrom may be exported except in accordance with the laws of the U.S. or other applicable provisions. This Agreement is governed by the laws of the State of California (except to the extent federal law governs copyrights and federally registered trademarks) without regard to conflicts of law provisions, and you hereby consent to the exclusive jurisdiction of the state and federal courts sitting in the State of California. This License Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. With the exception of the Agreement for Services between you and Nowcom Corporation, this Agreement is the entire agreement between you and Nowcom Corporation and supersedes any other understandings or agreements, including, but not limited to, advertising, with respect to the Software. If any provision of this Agreement is deemed invalid or unenforceable by any country or government agency having jurisdiction, that particular provision will be deemed modified to the extent necessary to make the provision valid and enforceable, and the remaining provisions will remain in full force and effect. The terms and conditions contained in this License Agreement may not be modified unless both you and an authorized representative of Nowcom Corporation execute a separate written instrument.
20. Injunctive Relief.
You acknowledge that the Software contains Nowcom Corporation's proprietary and confidential information, and that disclosure of such information or misuse of the Software will give rise to irreparable injury to Nowcom Corporation, inadequately compensable in damages. Accordingly, Nowcom Corporation may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. Said relief will be available without the requirement of posting a bond or undertaking.
Nowcom Subscriber Agreement v112009 Page 17 of 38
NOTICE OF CANCELLATION
This letter is to cancel all current services with Nowcom. Your account will remain on file in the event you wish to reinstate your service, which you may do by calling (888) NOWCOM-9. Please note that if you choose to reinstate in the future, an aonsite inspection fee of $55.00 will apply, if applicable.
Your account will be cancelled effective immediately upon the signed receipt of this notice. Your outstanding balance will be billed and final payment must be received in accordance with the terms of the Agreement for Service. You may contact the Accounting Department if you have any questions regarding an outstanding balance (if any) at (323) 692-4119. We appreciate your past business, and hope you will consider Nowcom again in the future! Please cancel our account effective immediately:
Dealership Name: _____________________________ Nowcom ID: _______________
Print Name: __________________________________ Title: _____________________
Signature: ___________________________________ Date: _____________________
Reason for Cancellation:
?? Out of business
?? Other (please explain): __________________________________________
Fax to Nowcom at: (866) CRED-APP [866-273-3277]
Nowcom Subscriber Agreement v112009 Page 18 of 38
KELLY BLUE BOOK DATABASE
1. Subscriber acknowledges that the trade names, trademarks and service marks “Kelly Blue Book,” “Blue Book,” “Bluebook,” (collectively, the “Kelley Marks”) and the Kelly Blue Book seal are the exclusive property of Kelly and shall be considered and treated by Subscriber as the proprietary information of Kelly (the “Kelley Proprietary Information”). With the exception of the Subscriber’s use of the Database through the Solution in accordance with this Agreement, Subscriber shall not, directly or indirectly, disclose, sell or otherwise transfer or exploit Kelley Proprietary Information, or any portion thereof, to any other person or entity or allow any other person or entity to use the Kelley Proprietary Information, or any portion thereof, without the prior written consent of Kelley, which may be withheld in Kelley’s sole discretion. Subscriber acknowledges and agrees that Kelley is the owner of the Kelley Marks and the Kelley Proprietary Information and Subscriber agrees that it has no right, title, or interest in any of the Kelley Marks and the Kelley Proprietary Information.
2. Nowcom hereby grants Subscriber a personal, non-transferable and non-exclusive limited license to use the Solution consisting of a compilation of various modules of the Solution combined with the Database and the Kelley Proprietary Information and further grants to Subscriber a personal, nontransferable and nonexclusive limited sublicense to use the Database and the Kelley Proprietary Information within the Solution under a license granted by Kelley to Subscriber. Subscriber is only authorized to use the Database to access the Database within the Solution for the purpose of retrieving values on a vehicle for it’s own internal inventory analysis purposes for inventory valuation and inventory management processes for those vehicles within it’s used car inventory.
Subscriber agrees that Kelley owns al rights, title and interest in and to the Database, and any derivative works thereof, including but not limited to all literary property rights, copyrights, trademarks, trade secrets, tradenames or service marks, including goodwill and all rights, title and that all rights, title and interest shall remain with Kelley and use of the Database by Subscriber or
any information therein by any person or firm other than Subscriber’s or its employees (on a need to know basis) is prohibited by Kelley. Subscriber shall keep confidential the Database or any information therein and use its best efforts to prevent and protect the contents of the Database from unauthorized disclosure, copying or use. ALTHOUGH KELLEY MAY COMPILE THE DATABASE CONTAINED WITHIN THE SOLUTION, KELLEY DOES NOT WARRANT THE SOLUTION OR THE CONTENTS THEREIN. THEREFORE, THE DATABASE IS PROVIDED “AS IS” AND NAR MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE ACCURACY OF THE DATA FROM WHICH THE DATABASE IS COMPILED, THAT THE DATABASE IS FREE FROM ERRORS AND OMISSIONS, THE MERCHANTABILITY AND FITNESS OF THE DATABASE FOR A PARTICULAR PURPOSE, OR USE, OR PERFORMANCE OR RESULTS OBTAINED BY USING THE DATABASE WITHIN THE SOLUTION. UNDER NO CIRCUMSTANCES SHALL KELLEY BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR CHARACTER INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, ALL OTHER COMMERCIAL DAMAGES OR LOSSES IN CONNECTION WITH THE DATABASE. KELLEY EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE SOLUTION, AND SHALL HAVE NO LIABILITY WHATSOEVER WITH RESPECT THERETO.
Subscriber’s obligations concerning misuse and confidentiality of the Database and Kelley’s right of action or claim against Subscriber for any breach thereof shall survive the termination of this Agreement. Failure of Kelley at any time or times to enforce its rights under this Agreement shall in no manner affect its rights at a later time to enforce the same.
Nowcom Subscriber Agreement v112009 Page 19 of 38
BLACK BOOK® NATIONAL AUTO RESEARCH DATABASE
1. Subscriber acknowledges that the Database and the Black Book® logo are protected by Copyright © 2007 Hearst Business Media Corp. ALL RIGHTS RESERVED. Black Book® is a registered trademark of Hearst Business Corporation (“Licensor”). REPRODUCTION OF THE TRADE NAME AND OR CONTENTS OF THE DATABASE IN WHOLE OR IN PART, IN ANY FORM BY ELECTRONIC OR MECHANICAL MEANS INCLUDING INFORMATION STORAGE AND RETRIEVAL SYSTEMS IS STRICTLY PROHIBITED. THE DATABASE IS PROVIDED “AS IS” AND LICENSOR MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE ACCURACY OF THE DATA FROM WHICH THE DATABASE IS COMPILED, THAT THE DATABASE IS FREE FROM ERRORS AND OMISSIONS, AND THE MERCHANTABILITY AND FITNESS OF THE DATABASE FOR A PARTICULAR PURPOSE OR USE OR THE PERFORMANCE OR RESULTS OBTAINED BY USING THE DATABASE. NATIONAL AUTO RESEARCH HAS BEEN DILIGENT IN PROVIDING ACCURATE AND COMPLETE INFORMATION, HOWEVER, THE DATABASE IS PROVIDED “AS IS” AND NATIONAL AUTO RESEARCH PROVIDES NO WARRANTIES EXPRESS OR IMPLIED.
2. Subscriber shall not, and shall not allow others to, directly or indirectly (i) disassemble, decompile, reverse engineer or otherwise modify or alter, enhance, customize the Database (i.e. either by addition, deletion, augmentation, change or otherwise); (ii) copy or reproduce in any form or medium all or any part of the Database; (iii) create any derivative work from, or adaptation of the Database; (iv) assign, transfer, market, lease, license, sell, or otherwise publish, communicate, distribute or display to third parties or utilize in any form or medium all or any part of the Database; (v) create any vehicle valuation guides, directories or services, in whole or part on the data from the Database; (vi) download the Database to PCs or any other computer or electronic device, store the Database in a retrieval system; (vii) establish a network for use of the Database, provide database services to any third party, or (viii) transmit, in any form, or by any means, electronic, mechanical, photocopying, recording, or otherwise, in whole or in part, the Database and associated user documentation consisting of a record layout.
3. Nowcom hereby grants Subscriber a personal, non-transferable and non-exclusive limited license to use the Solution consisting of a compilation of various modules of the Solution combined with NAR’s proprietary database consisting of fifteen model years of information relating to the vehicle identification number, model year, make, model, series and body style, universal vehicle code, engine descriptions, extra clean, clean, average and rough retail value, loan value, MSRP and extra clean, clean, average and rough wholesale United States pricing information for used cars, vans and light trucks (the “Database”) and further grants to Subscriber a personal, nontransferable and nonexclusive limited sublicense to use the Database within the Solution under a license granted by National Auto Research Division, Hearst Business Media Corporation’s (“NAR”) to Subscriber. NAR is a third party beneficiary under this Agreement and may enforce its rights hereunder directly against Subscriber, which shall be governed by the laws of the State of New York without giving effect to any principles of conflict of laws and subject to the jurisdiction and venue of the State and Federal courts located in New York. Subscriber is only authorized to use the Database to access the Database within the Solution for the purpose of retrieving values on a vehicle by vehicle look-up basis or on a multiple vehicle basis as a batch process for its own internal inventory analysis purposes for inventory valuation and inventory management processes for those vehicles within its used car inventory.
Subscriber agrees that NAR owns al rights, title and interest in and to the Database, and any derivative works thereof, including but not limited to all literary property rights, copyrights, trademarks, trade secrets, trade names or service marks, including goodwill and all rights, title and that all rights, title and interest shall remain with NAR and use of the Database by Subscriber or any information therein by any person or firm other than Subscriber’s or its employees (on a need to know basis) is prohibited by NAR. Subscriber shall keep confidential the Database or any information therein and use its best efforts to prevent and protect the contents of the Database from unauthorized disclosure, copying or use. The Database is protected by copyright, registered U.S. Patent Office Reg. No. 767893.
ALTHOUGH NAR MAY COMPILE THE DATABASE CONTAINED WITHIN THE SOLUTION, NAR DOES NOT WARRANT THE SOLUTION OR THE CONTENTS THEREIN. THEREFORE, THE DATABASE IS PROVIDED “AS IS” AND NAR MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE ACCURACY OF THE DATA FROM WHICH THE DATABASE IS Nowcom Subscriber Agreement v112009 Page 20 of 38 COMPILED, THAT THE DATABASE IS FREE FROM ERRORS AND OMISSIONS, THE MERCHANTABILITY AND
FITNESS OF THE DATABASE FOR A PARTICULAR PURPOSE, OR USE, OR PERFORMANCE OR RESULTS OBTAINED BY USING THE DATABASE WITHIN THE SOLUTION. UNDER NO CIRCUMSTANCES SHALL NAR BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR CHARACTER INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, ALL OTHER COMMERCIAL DAMAGES OR LOSSES IN CONNECTION WITH THE DATABASE. NAR EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE SOLUTION, AND SHALL HAVE NO LIABILITY WHATSOEVER WITH RESPECT THERETO.
Subscriber’s obligations concerning misuse and confidentiality of the Database and NAR’s right of action or claim against Subscriber for any breach thereof shall survive the termination of this Agreement. Failure of NAR at any time or times to enforce its rights under this Agreement shall in no manner affect its rights at a later time to enforce the same.
Nowcom Subscriber Agreement v112009 Page 21 of 38
The following terms shall be applicable to all Subscribers electing to use credit scores and reason codes generated by the Experian/Fair, Isaac Model:
1. Subscriber hereby warrants and represents that it has a “permissible purpose” under the Fair Credit Reporting Act, as it may be amended from time to time, to obtain the information derived from the Experian/Fair, Isaac Model.
2. Subscriber shall limit its use of the credit scores and reason codes derived from the Experian/Fair, Isaac Model only for its own business with no right to transfer or otherwise sell, license, sublicense or distribute the credit scores or reason codes to third parties.
3. Subscriber shall maintain internal procedures, such as those set forth in Exhibit “C” of this Agreement, to minimize the risk of unauthorized disclosure. Subscriber shall hold the credit scores and reason codes in strict confidence and disclose only to those of its employees with a “need to know” and to no other person.
4. Notwithstanding any contrary provision of the Agreement, Subscriber may disclose the credit scores provided under the Agreement to applicants, when accompanied by the corresponding reason codes, in the context of bona fide lending transactions and decisions only.
5. Subscriber shall comply with all applicable laws and regulations in using the credit scores and reason codes purchased from Nowcom.
6. Neither the Subscriber nor its employees, agents or subcontractors shall use the trademarks, service marks, logos, names, or any other proprietary designations, whether registered or unregistered, of Experian Information Solutions, Inc. or Fair, Isaac and Company, or the affiliates of either of them, or of any other party involved in the provision of the Experian/Fair, Isaac Model without obtaining such entity’s prior written consent.
7. Subscriber shall not attempt in any manner, directly or indirectly, to discover or reverse engineer any confidential and proprietary criteria developed or used by Experian/Fair, Isaac in performing the Experian/Fair, Isaac Model.
8. Experian/Fair, Isaac warrants that the Experian/Fair, Isaac Model is empirically derived and demonstrably and statistically sound and that to the extent the population to which the Experian/Fair, Isaac Model is applied is similar to the population sample on which the Experian/Fair, Isaac Model was developed, the Experian/Fair, Isaac Model score may be relied upon by Nowcom and/or Subscribers to rank consumers in the order of the risk of unsatisfactory payment such consumers might present to Subscribers. Experian/Fair, Isaac further warrants that so long as it provides the Experian/Fair, Isaac Model, it will comply with regulations promulgated from time to time pursuant to the Equal Credit Opportunity Act, 15 USC Section 1691 et seq. THE FOREGOING WARRANTIES ARE THE ONLY WARRANTIES EXPERIAN/FAIR, ISAAC HAVE GIVEN NOWCOM AND/OR SUBSCRIBERS WITH RESPECT TO THE EXPERIAN/FAIR, ISAAC MODEL AND SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, EXPERIAN/FAIR, ISAAC MIGHT HAVE GIVEN NOWCOM AND/OR SUBSCRIBERS WITH RESPECT THERETO, INCLUDING, FOR EXAMPLE, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Nowcom and each respective Subscriber’s rights under the foregoing Warranty are expressly conditioned upon each respective Subscriber’s periodic revalidation of the Experian/Fair, Isaac Model in compliance with the requirements of Regulation B as it may be amended from time to time (12 CFR Section 202 et seq.).
9. In no event shall the aggregate liability of Experian/Fair, Isaac to Subscriber shall exceed the lesser of (a) the fees paid by Nowcom to Experian/Fair, Isaac pursuant to the terms of the applicable reseller agreement between Nowcom and Experian/Fair, Isaac for the Experian/Fair, Isaac Model resold to the Subscriber during the six (6) month period immediately preceding the Subscriber’s claim, or (b) the fees paid by the Subscriber to Nowcom under this Agreement during said six (6) month period. IN NO EVENT SHALL EXPERIAN/FAIR, ISAAC BE LIABLE TO SUBSCRIBER FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Nowcom Subscriber Agreement v112009 Page 22 of 38
The following terms shall be applicable to all Subscribers electing to use Autocheck services (the “Services”):
A. Subscriber shall only use the Services for evaluating trade-in vehicles or in marketing vehicles to potential consumer or wholesale buyers
B. Subscriber shall not use the Services for any Fair Credit Reporting Act (15U.S.C. 1681 et seq.) purpose such as credit extension, insurance, employment or other purposes under Section 604 of the FCRA.
C. With the exception of Subscriber’s fulfillment of a consumer request for Services, Client shall not resell or license the Services to any third party.
D. Notwithstanding the Services, neither Nowcom nor any of the credit reporting agencies represent, warrant or otherwise certify the quality of any vehicle. Neither Nowcom nor any of the credit reporting agencies shall bear any responsibility whatsoever for the condition of any vehicle sold by Subscriber to a consumer.
Nowcom Subscriber Agreement v112009 Page 23 of 38
The following terms shall be applicable to all Subscribers electing to use Experian’s identity authentication services known as Precise ID With Knowledge IQ (the “Services”):
1. Subscriber shall not use the Services unless Subscriber has a “permissible purpose” under the FCRA.
a. If such “permissible purpose” is based on the written instructions of the consumer via the Internet, then Subscriber shall substantially comply with the following web site requirements:
(i) Subscriber will prominently display a message specifically informing the consumer that his or her credit profile will be consulted for the purpose for which it is to be used and no other purpose, and that clicking on the “I AGREE” button following such notice constitutes written instructions to the Subscriber under the FCRA.
Subscriber agrees that the notice provided by Subscriber will be substantially as follows:
“You understand that by clicking on the I AGREE button immediately following this notice, you are providing ‘written instructions’ to (Subscriber) under the Fair Credit Reporting Act authorizing (Subscriber) to obtain information from your personal credit profile or other information from Experian. You authorize (Subscriber) to obtain such information solely to _____________________________ (insert purpose e.g. to confirm your identity to avoid fraudulent transactions in your name.)
(ii) The “I AGREE” button must immediately follow the notice provided for above. The notice and “I AGREE” button must be separate from any other notice or message contained on the web site.
(iii) The consumer must have the ability to fully review any of the terms to which he or she is agreeing immediately preceding the consensual click.
(iv) The consumer must not be able to proceed in the process without affirmatively agreeing to the terms in the notice.
(v) The consumer must have the ability (should they choose) to print out the terms to which he or she is agreeing, including their consent.
(vi) The record of the consumer’s ‘written instruction’ by clicking “I AGREE” must be retained by Subscriber in a form that is capable of being accurately reproduced for later reference by the parties. b. If Subscriber obtains consumer’s consent to access credit data over the telephone, Subscriber shall substantially comply with the following requirements which are designed to comply with the Electronic Records and Signatures in Commerce Act:
(i) Subscriber will ask each consumer to confirm his or her consent to access such persons credit report for authentication purposes by asking the following: “In order to verify your identity, you need to authorize Subscriber to access your credit report for authentication purposes. Please confirm your authorization to access your credit report for authentication purposes by pressing the # key now”;
(ii) The consumer must not be able to proceed in the process without affirmatively agreeing to allow access to his credit report as provided above; and
(iii) The record of the consumer’s ‘written instruction’ by pressing the # symbol must be retained by Subscriber in a form that is capable of being accurately reproduced for later reference by the parties.
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Subscriber shall use the Services to protect or prevent actual or potential fraud, unauthorized transactions, claims or other liability only, in accordance with the Gramm-Leach-Bliley Act, 15 U.S.C.A. Section 6801 et. seq. (2000) (the “GLB Act”).
2. Subscriber shall use the Services and the information therein for its own business purpose and shall not request, use or request the Services for the purpose of publication, transmission, resale, sublicensing, dissemination or distribution to any third parties, in any form or by any means, regardless whether permitted by law.
3. The term “OFAC Name Matching” means the application of a name matching service performed by Experian wherein the consumer’s name is compared to an Experian file containing limited identifying information of consumers listed by the United States Treasury Department, Office of Foreign Asset Control (“OFAC”) of Specially Designated Nationals whose property is blocked, to assist the public in complying with the various sanctions programs administered by OFAC. Based upon Subscriber’s request, Experian will perform a match of characters in the consumer’s name, social security number and year of birth, when available, and Experian will transmit a message to Subscriber indicating either a “no match” or, if applicable, which fields match, such as “match to full name only.” Subscriber will request and use the OFAC Name Matching information received from Experian hereunder solely in connection with transactions involving the consumer as to whom such information is sought, and will not request or use such information for purposes prohibited by law. Under no circumstances shall Subscriber take any adverse action against a consumer in whole or in part based upon an OFAC Statement.
4. Matching of names to the OFAC list is based on very limited identification information. A match does not necessarily indicate that the consumer about whom Subscriber inquired is the same person referenced by OFAC. Accordingly, if Subscriber receives an OFAC result code in Subscriber’s Precise ID Services, Subscriber acknowledges that any action taken by Subscriber regarding a consumer shall be taken based on Subscriber’s complete investigation of the consumer and not based solely on the OFAC information.
5. If Subscriber elects to use vehicle ownership data in the Authentication Services, Subscriber hereby certifies that its use is in compliance with the Driver’s Privacy Protection Act of 1994 (18 U.S.C. Sec. 2721(b)(3)) which specifically states that it must be (b)(3) for use in the normal course of business by a legitimate business or its agents, employees or contractors, but only (A) to verify the accuracy of personal information submitted by the individual to the business or its agents, employees, or contractors; and (B) if such information as so submitted is not correct or is no longer correct, to obtain the correct information, but only for the purposes of preventing fraud by, pursuing legal remedies against, or recovering on a debt or security interest against, the individual. Such data will be used for authentication purposes only.
6. Certain product options offer questions which use information from Experian's non-FCRA data sources ('alternate source data'). If Subscriber elects to use FCRA regulated product options, Subscriber hereby certifies that it will obtain the consumer’s written instructions prior to accessing any questions based on alternate source data. Moreover, Subscriber hereby certifies that it will not use the Services provided hereunder for the granting of or denial of credit or any other FCRA permissible purpose when using the alternate source data.
7. If Nowcom or Experian believe that Subscriber has breached a material obligation contained herein, Nowcom or Experian may suspend or terminate Subscriber’s Internet access immediately by providing Subscriber notice of such action.
8. Experian updates its file periodically from OFAC. Neither Nowcom nor Experian is an insurer or guarantor of the accuracy or reliability of the OFAC Name Matching or the data contained in its file. Subscriber acknowledges that the existence of a match based on very limited identifying information provided by OFAC does not necessarily indicate that the consumer for whom the Subscriber inquired is the same consumer referenced by OFAC. The use of the OFAC Name Matching does not attempt to, nor does it, satisfy any of Subscriber’s legal obligations which may be administered by OFAC or any other governmental agency. Nowcom and Experian shall have no obligation or liability to Subscriber for or on account of any mechanical or other breakdown, malfunction or defect in the Internet connection accessed by Subscriber. NOWCOM AND EXPERIAN MAKE NO WARRANTIES, EXPRESS OR IMPLIED, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, IN CONNECTION WITH THIS SECTION 9. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION 9, UNDER NO CIRCUMSTANCES WILL NOWCOM AND EXPERIAN HAVE ANY OBLIGATION OR LIABILITY TO SUBSCRIBER FOR ANY CLAIM, INJURY OR DAMAGE RELATING TO, ARISING OUT OF, OR RESULTING FROM SUBSCRIBER’S INTERNET ACCESS TO THE SERVICES.
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9. NOTWITHSTANDING ANY OTHER PROVISION HEREINABOVE, UNDER NO CIRCUMSTANCES SHALL NOWCOM OR EXPERIAN BE LIABLE TO SUBSCRIBER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY INDIRECT DAMAGES ARISING FROM THE LOSS OF BUSINESS, DATA, PROFITS OR GOODWILL WHICH ARE NOT DIRECT DAMAGES) INCURRED OR SUFFERED BY SUBSCRIBER BY REASON OF NOWCOM’S OR EXPERIAN’S PERFORMANCE OR NONPERFORMANCE, OR FOR ANY OTHER REASON, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES.
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The following terms shall be applicable to all Subscribers electing to subscribe use the NADA e-Valuator® database (the “NADA Database”):
With respect to services incorporating the NADA e-Valuator® (hereinafter, the “NADA Program”), Subscriber agrees as follows:
1. Subscriber acknowledges that the right to use the NADA Program shall not permit Subscriber to market, license or utilize the NADA Program separate from or independent of the Subscriber Agreement.
2. Subscriber agrees to not disassemble, decompile, reverse engineer or otherwise modify or alter the NADA Program.
3. Subscriber agrees that the NADA Database shall not be used as a data source from which a new valuation data base or valuation system may be created, and that vehicles will be valued individually as needed.
4. Subscriber shall not reproduce, store in a retrieval system or transmit, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, any vehicle valuation information contained in the N.A.D.A. Official Used Care Guide® (hereinafter, the “NADA Values”) without the prior written consent of Nowcom and NADA Services Corporation (“NADA”).
5. Subscriber acknowledges and agrees that the NADA Database, the NADA Values, all enhancements and derivative works, are the sole property of NADA Services Corporation, and are subject to a valid copyright. Subscriber acknowledges that NADA has created the NADA Values and the NADA Database at great time and expense and that the NADA Values and the NADA Database contain confidential and proprietary information protected by copyright and trade secret laws. Subscriber further acknowledges that certain of its employees will become familiar with the NADA Database, and that NADA may suffer great harm in Subscriber, or its employees disclose the NADA Database to a third party. Subscriber, therefore, agrees to: (a) hold the NADA Database in strict confidence; (b) disclose the NADA Database only to Subscriber’s employees to whom knowledge is required for its proper use hereunder; (c) cause such employees to hold the NADA Database in strict confidence; and (d) take steps to prevent the accidental or otherwise unauthorized disclosure of the NADA Database. The confidentiality obligations of Subscriber contained in this paragraph shall survive termination of the Subscription Agreement .
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All users subject to the Federal Trade Commission’s jurisdiction must comply with all applicable regulations, including regulations promulgated after this notice was prescribed in 2004. Information about applicable regulations currently in effect can be found at the Commission’s Web site, www.ftc.gov/credit. Persons not subject to the Commission’s jurisdiction should consult with their regulators to find any relevant regulations.
NOTICE TO USERS OF CONSUMER REPORTS:
OBLIGATIONS OF USERS UNDER THE FCRA
The Fair Credit Reporting Act (FCRA), 15 U.S.C. 1681-1681y, requires that this notice be provided to inform users of consumer reports of their legal obligations. State law may impose additional requirements. The text of the FCRA is set forth in full at the Federal Trade Commission's Website at www.ftc.gov/credit. At the end of this document is a list of United States Code citations for the FCRA. Other information about user duties is also available at the Commission’s Web site. Users must consult the relevant provisions of the FCRA for details about their obligations under the FCRA.
The first section of this summary sets forth the responsibilities imposed by the FCRA on all users of consumer reports. The subsequent sections discuss the duties of users of reports that contain specific types of information, or that are used for certain purposes, and the legal consequences of violations. If you are a furnisher of information to a consumer reporting agency (CRA), you have additional obligations and will receive a separate notice from the CRA describing your duties as a furnisher.
I. OBLIGATIONS OF ALL USERS OF CONSUMER REPORTS
A. Users Must Have a Permissible Purpose
Congress has limited the use of consumer reports to protect consumers' privacy. All users must have a permissible purpose under the FCRA to obtain a consumer report. Section 604 contains a list of the permissible purposes under the law. These are:
• As ordered by a court or a federal grand jury subpoena. Section 604(a)(1)
• As instructed by the consumer in writing. Section 604(a)(2)
• For the extension of credit as a result of an application from a consumer, or the review or collection of a consumer's account. Section 604(a)(3)(A)
• For employment purposes, including hiring and promotion decisions, where the consumer has given written permission. Sections 604(a)(3)(B) and 604(b)
• For the underwriting of insurance as a result of an application from a consumer. Section 604(a)(3)(C)
• When there is a legitimate business need, in connection with a business transaction that is initiated by the consumer. Section 604(a)(3)(F)(i)
• To review a consumer's account to determine whether the consumer continues to meet the terms of the account. Section 604(a)(3)(F)(ii)
• To determine a consumer's eligibility for a license or other benefit granted by a governmental instrumentality required by law to consider an applicant's financial responsibility or status. Section 604(a)(3)(D)
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• For use by a potential investor or servicer, or current insurer, in a valuation or assessment of the credit or prepayment risks associated with an existing credit obligation. Section 604(a)(3)(E
• For use by state and local officials in connection with the determination of child support payments, or modifications and enforcement thereof. Sections 604(a)(4) and 604(a)(5) In addition, creditors and insurers may obtain certain consumer report information for the purpose of making “prescreened” unsolicited offers of credit or insurance. Section 604(c). The particular obligations of users of "prescreened" information are described in Section VII below.
B. Users Must Provide Certifications
Section 604(f) prohibits any person from obtaining a consumer report from a consumer reporting agency (CRA) unless the person has certified to the CRA the permissible purpose(s) for which the report is being obtained and certifies that the report will not be used for any other purpose.
C. Users Must Notify Consumers When Adverse Actions Are Taken
The term "adverse action" is defined very broadly by Section 603. "Adverse actions" include all business, credit, and employment actions affecting consumers that can be considered to have a negative impact as defined by Section 603(k) of the FCRA – such as denying or canceling credit or insurance, or denying employment or promotion. No adverse action occurs in a credit transaction where the creditor makes a counteroffer that is accepted by the consumer.
1. Adverse Actions Based on Information Obtained From a CRA
If a user takes any type of adverse action as defined by the FCRA that is based at least in part on information contained in a consumer report, Section 615(a) requires the user to notify the consumer. The notification may be done in writing, orally, or by electronic means. It must include the following:
• The name, address, and telephone number of the CRA (including a toll-free telephone number, if it is a nationwide CRA) that provided the report.
• A statement that the CRA did not make the adverse decision and is not able to explain why the decision was made.
• A statement setting forth the consumer's right to obtain a free disclosure of the consumer's file from the CRA if the consumer makes a request within 60 days.
• A statement setting forth the consumer's right to dispute directly with the CRA the accuracy or completeness of any information provided by the CRA.
2. Adverse Actions Based on Information Obtained From Third Parties Who Are Not Consumer Reporting Agencies
If a person denies (or increases the charge for) credit for personal, family, or household purposes based either wholly or partly upon information from a person other than a CRA, and the information is the type of consumer information covered by the FCRA, Section 615(b)(1) requires that the user clearly and accurately disclose to the consumer his or her right to be told the nature of the information that was relied upon if the consumer makes a written request within 60 days of notification. The user must provide the disclosure within a reasonable period of time following the consumer's written request.
3. Adverse Actions Based on Information Obtained From Affiliates If a person takes an adverse action involving insurance, employment, or a credit transaction initiated by the consumer, based on information of the type covered by the FCRA, and this information was obtained from an entity affiliated with the user of the information by common ownership or control, Section 615(b)(2)
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requires the user to notify the consumer of the adverse action. The notice must inform the consumer that he or she may obtain a disclosure of the nature of the information relied upon by making a written request within 60 days of receiving the adverse action notice. If the consumer makes such a request, the user must disclose the nature of the information not later than 30 days after receiving the request. If consumer report information is shared among affiliates and then used for an adverse action, the user must make an adverse action disclosure as set forth in I.C.1 above.
D. Users Have Obligations When Fraud and Active Duty Military Alerts are in Files When a consumer has placed a fraud alert, including one relating to identity theft, or an active duty military alert with a nationwide consumer reporting agency as defined in Section 603(p) and resellers, Section 605A(h) imposes limitations on users of reports obtained from the consumer reporting agency in certain circumstances, including the establishment of a new credit plan and the issuance of additional credit cards. For initial fraud alerts and active duty alerts, the user must have reasonable policies and procedures in place to form a belief that the user knows the identity of the applicant or contact the consumer at a telephone number specified by the consumer; in the case of extended fraud alerts, the user must contact the consumer in accordance with the contact information provided in the consumer’s alert.
E. Users Have Obligations When Notified of an Address Discrepancy Section 605(h) requires nationwide CRAs, as defined in Section 603(p), to notify users that request reports when the address for a consumer provided by the user in requesting the report is substantially different from the addresses in the consumer’s file. When this occurs, users must comply with regulations specifying the procedures to be followed, which will be issued by the Federal Trade Commission and the banking and credit union regulators. The Federal Trade Commission’s regulations will be available at www.ftc.gov/credit.
F. Users Have Obligations When Disposing of Records
Section 628 requires that all users of consumer report information have in place procedures to properly dispose of records containing this information. The Federal Trade Commission, the Securities and Exchange Commission, and the banking and credit union regulators have issued regulations covering disposal. The Federal Trade Commission’s regulations may be found at www.ftc.gov/credit.
II. CREDITORS MUST MAKE ADDITIONAL DISCLOSURES
If a person uses a consumer report in connection with an application for, or a grant, extension, or provision of, credit to a consumer on material terms that are materially less favorable than the most favorable terms available to a substantial proportion of consumers from or through that person, based in whole or in part on a consumer report, the person must provide a risk-based pricing notice to the consumer in accordance with regulations to be jointly prescribed by the Federal Trade Commission and the Federal Reserve Board. Section 609(g) requires a disclosure by all persons that make or arrange loans secured by residential real property (one to four units) and that use credit scores. These persons must provide credit scores and other information about credit scores to applicants, including the disclosure set forth in Section 609(g)(1)(D) (“Notice to the Home Loan Applicant”).
III. OBLIGATIONS OF USERS WHEN CONSUMER REPORTS ARE OBTAINED FOR EMPLOYMENT PURPOSES
A. Employment Other Than in the Trucking Industry If information from a CRA is used for employment purposes, the user has specific duties, which are set forth in Section 604(b) of the FCRA. The user must:
• Make a clear and conspicuous written disclosure to the consumer before the report is obtained, in a document that consists solely of the disclosure, that a consumer report may be obtained.
Nowcom Subscriber Agreement v112009 Page 30 of 38
• Obtain from the consumer prior written authorization. Authorization to access reports during the term of employment may be obtained at the time of employment.
• Certify to the CRA that the above steps have been followed, that the information being obtained will not be used in violation of any federal or state equal opportunity law or regulation, and that, if any adverse action is to be taken based on the consumer report, a copy of the report and a summary of the consumer's rights will be provided to the consumer.
• Before taking an adverse action, the user must provide a copy of the report to the consumer as well as the summary of consumer’s rights. (The user should receive this summary from the CRA.) A Section 615(a) adverse action notice should be sent after the adverse action is taken. An adverse action notice also is required in employment situations if credit information (other than transactions and experience data) obtained from an affiliate is used to deny employment. Section 615(b)(2) The procedures for investigative consumer reports and employee misconduct investigations are set forth below.
B. Employment in the Trucking Industry
Special rules apply for truck drivers where the only interaction between the consumer and the potential employer is by mail, telephone, or computer. In this case, the consumer may provide consent orally or electronically, and an adverse action may be made orally, in writing, or electronically. The consumer may obtain a copy of any report relied upon by the trucking company by contacting the company.
IV. OBLIGATIONS WHEN INVESTIGATIVE CONSUMER REPORTS ARE USED
Investigative consumer reports are a special type of consumer report in which information about a consumer's character, general reputation, personal characteristics, and mode of living is obtained through personal interviews by an entity or person that is a consumer reporting agency. Consumers who are the subjects of such reports are given special rights under the FCRA. If a user intends to obtain an investigative consumer report, Section 606 requires the following:
• The user must disclose to the consumer that an investigative consumer report may be obtained. This must be done in a written disclosure that is mailed, or otherwise delivered, to the consumer at some time before or not later than three days after the date on which the report was first requested. The disclosure must include a statement informing the consumer of his or her right to request additional disclosures of the nature and scope of the investigation as described below, and the summary of consumer rights required by Section 609 of the FCRA. (The summary of consumer rights will be provided by the CRA that conducts the investigation.)
• The user must certify to the CRA that the disclosures set forth above have been made and that the user will make the disclosure described below.
• Upon the written request of a consumer made within a reasonable period of time after the disclosures required above, the user must make a complete disclosure of the nature and scope of the investigation. This must be made in a written statement that is mailed, or otherwise delivered, to the consumer no later than five days after the date on which the request was received from the consumer or the report was first requested, whichever is later in time.
V. SPECIAL PROCEDURES FOR EMPLOYEE INVESTIGATIONS
Section 603(x) provides special procedures for investigations of suspected misconduct by an employee or for compliance with Federal, state or local laws and regulations or the rules of a self-regulatory organization, and compliance with written policies of the employer. These investigations are not treated as consumer reports so long as the employer or its agent complies with the procedures set forth in Section 603(x), and a summary describing the nature and scope of the inquiry is made to the employee if an adverse action is taken based on the investigation.
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VI. OBLIGATIONS OF USERS OF MEDICAL INFORMATION
Section 604(g) limits the use of medical information obtained from consumer reporting agencies (other than payment information that appears in a coded form that does not identify the medical provider). If the information is to be used for an insurance transaction, the consumer must give consent to the user of the report or the information must be coded. If the report is to be used for employment purposes – or in connection with a credit transaction (except as provided in regulations issued by the banking and credit union regulators) – the consumer must provide specific written consent and the medical information must be relevant. Any user who receives medical information shall not disclose the information to any other person (except where necessary to carry out the purpose for which the information was disclosed, or as permitted by statute, regulation, or order).
VII. OBLIGATIONS OF USERS OF "PRESCREENED" LISTS
The FCRA permits creditors and insurers to obtain limited consumer report information for use in connection with unsolicited offers of credit or insurance under certain circumstances. Sections 603(l), 604(c), 604(e), and 615(d). This practice is known as "prescreening" and typically involves obtaining from a CRA a list of consumers who meet certain preestablished criteria. If any person intends to use prescreened lists, that person must (1) before the offer is made, establish the criteria that will be relied upon to make the offer and to grant credit or insurance, and (2) maintain such criteria on file for a three-year period beginning on the date on which the offer is made to each consumer. In addition, any user must provide with each written solicitation a clear and conspicuous statement that:
• Information contained in a consumer's CRA file was used in connection with the transaction.
• The consumer received the offer because he or she satisfied the criteria for credit worthiness or insurability used to screen for the offer.
• Credit or insurance may not be extended if, after the consumer responds, it is determined that the consumer does not meet the criteria used for screening or any applicable criteria bearing on credit worthiness or insurability, or the consumer does not furnish required collateral.
• The consumer may prohibit the use of information in his or her file in connection with future prescreened offers of credit or insurance by contacting the notification system established by the CRA that provided the report. The statement must include the address and toll-free telephone number of the appropriate notification system.
In addition, once the Federal Trade Commission by rule has established the format, type size, and manner of the disclosure required by Section 615(d), users must be in compliance with the rule. The FTC’s regulations will be at www.ftc.gov/credit.
VIII. OBLIGATIONS OF RESELLERS
A. Disclosure and Certification Requirements
Section 607(e) requires any person who obtains a consumer report for resale to take the following steps:
• Disclose the identity of the end-user to the source CRA.
• Identify to the source CRA each permissible purpose for which the report will be furnished to the end-user.
• Establish and follow reasonable procedures to ensure that reports are resold only for permissible purposes, including procedures to obtain:
(1) the identity of all end-users;
(2) certifications from all users of each purpose for which reports will be used; and Nowcom Subscriber Agreement v112009 Page 32 of 38
(3) certifications that reports will not be used for any purpose other than the purpose(s) specified to the reseller. Resellers must make reasonable efforts to verify this information before selling the report.
B. Reinvestigations by Resellers
Under Section 611(f), if a consumer disputes the accuracy or completeness of information in a report prepared by a reseller, the reseller must determine whether this is a result of an action or omission on its part and, if so, correct or delete the information. If not, the reseller must send the dispute to the source CRA for reinvestigation. When any CRA notifies the reseller of the results of an investigation, the reseller must immediately convey the information to the consumer.
C. Fraud Alerts and Resellers
Section 605A(f) requires resellers who receive fraud alerts or active duty alerts from another consumer reporting agency to include these in their reports.
IX. LIABILITY FOR VIOLATIONS OF THE FCRA
Failure to comply with the FCRA can result in state government or federal government enforcement actions, as well as private lawsuits. Sections 616, 617, and 621. In addition, any person who knowingly and willfully obtains a consumer report under false pretenses may face criminal prosecution. Section 619. The FTC’s Web site, www.ftc.gov/credit, has more information about the FCRA, including publications for businesses and the full text of the FCRA.
Citations for FCRA sections in the U.S. Code, 15 U.S.C. § 1681 et seq.:
Section 602 15 U.S.C. 1681
Section 603 15 U.S.C. 1681a
Section 604 15 U.S.C. 1681b
Section 605 15 U.S.C. 1681c
Section 605A 15 U.S.C. 1681cA
Section 605B 15 U.S.C. 1681cB
Section 606 15 U.S.C. 1681d
Section 607 15 U.S.C. 1681e
Section 608 15 U.S.C. 1681f
Section 609 15 U.S.C. 1681g
Section 610 15 U.S.C. 1681h
Section 611 15 U.S.C. 1681i
Section 612 15 U.S.C. 1681j
Section 613 15 U.S.C. 1681k
Section 614 15 U.S.C. 1681l
Section 615 15 U.S.C. 1681m
Section 616 15 U.S.C. 1681n
Section 617 15 U.S.C. 1681o
Section 618 15 U.S.C. 1681p
Section 619 15 U.S.C. 1681q
Section 620 15 U.S.C. 1681r
Section 621 15 U.S.C. 1681s
Section 622 15 U.S.C. 1681s-1
Section 623 15 U.S.C. 1681s-2
Section 624 15 U.S.C. 1681t
Section 625 15 U.S.C. 1681u
Section 626 15 U.S.C. 1681v
Section 627 15 U.S.C. 1681w
Section 628 15 U.S.C. 1681x
Section 629 15 U.S.C. 1681y
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BANKERS SYSTEMS FORMS
The following terms shall be applicable to all Subscribers electing to use documentation services known as the Bankers Systems Forms module of the Solution (the “Form” or “Forms”):
For purposes of this Exhibit O, the term “Transaction” shall mean a retail installment sales transaction in which the Form documents for the transaction are prepared through the Solution. If multiple sets of the documents are prepared to correct typographical errors or to make other minor changes under the same transaction number or other code assigned to each unique transaction, the multiple sets shall constitute one Transaction. The documents need not be executed by the consumer for the retail sales transaction to be a Transaction.
1. Subscriber shall be charged a document fee (set forth in Exhibit D) for every ten (10) sets of documents printed per Transaction.
2. Subscriber shall not grant access to the Forms to anyone other than authorized employees of Subscriber.
3. The Forms may only be completed through the Solution.
4. The Forms may not be downloaded, uploaded, printed, or otherwise stored, reproduced, or used outside the Solution.
5. Except for photocopying, downloading, or printing of completed Forms, Subscriber shall not use or reproduce any of the Forms except through the Solution.
6. THE FORMS ARE PROVIDED AS IS, AND NOWCOM MAKES NO WARRANTY, EXPRESS, IMPLIED, BY DESCRIPTION, BY SAMPLE OR OTHERWISE, AND IN PARTICULAR WITHOUT LIMITATION, MAKES NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS OF PURPOSE. NOWCOM DOES NOT EXPRESSLY WARRANT OR GUARANTEE THE UTILITY OR LEGALITY OF ANY OF THE FORMS PROVIDED. SUBSCRIBER MUST MAKE ITS OWN INDEPENDENT DETERMINATION REGARDING THE UTILITY AND LEGALITY OF EACH OF THE FORMS.
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_____I the undersigned (1) make the above representations, which are certified correct, for the purpose to secure credit; (2) authorize Westlake Flooring Services to obtain credit reports on me periodically and to gather employment and business history as they consider necessary and appropriate; (3) obtain consumer credit reports on me; (4) understand that Westlake Flooring Services will retain this application whether or not credit is approved, and that it is the applicant’s responsibility to notify the creditor of any changes in name, ownership, address, or contact information. This application will be confidential and not shared with outside parties.
_____To comply with the USA Patriot Act, Westlake Flooring Services is required to verify the identity of members applying for and opening new accounts or services with our financial institution. Information we are required to obtain includes name, mailing and residence address, tax identification number or social security number, date of birth and a copy of a government issued photo ID. Additional information may also be gathered depending on the type of account applied for or opened. Identification and information on existing members will be gathered as they open or use additional services offered by Westlake Flooring Services. The Act requires us to maintain records of the identification verification and to periodically update this information. Confidentiality of the information gathered and used by the credit union will be maintained as required under the Privacy Act.
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