TERMS OF SERVICE

ATOMIC INNOVATION LLC

CUSTOMER TERMS AND CONDITIONS

Last updated: April 28, 2017

These Terms of Service (“Terms of Service” or “Agreement” govern the use of the services offered (the “Services”) by Atomic Innovation LLC (its parent, subsidiaries, predecessors, successors, affiliates, directors, officers, fiduciaries, insurers, employees and agents) (jointly “AI”), via Company’s mobile application, website or other similar software platforms or mediums (collectively, the “AI Platform”). Customer’s use of the AI Platform constitutes Customer’s acceptance of and agreement to all of the terms and conditions in these Terms of Service and any future amendments and additions to this Agreement (as defined below) as AI may publish from time to time. Customer represents and warrants that that Customer has the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that Customer will so abide. Customer is required to agree to and accept these Terms of Service and other policies or terms of AI to access and use the AI Platform. The term “Customer”, as used in this Agreement, shall be deemed to referred to you, the company for which you work and any party using the Services or accessing the AI Platform.

SERVICES OFFERED BY AI.

Pursuant to these terms, AI will provide consumer reports to the Customer via the AI Platform. Customer may, in its discretion and in accordance with both this Agreement and Laws, choose to share, distribute or sell these consumer reports.

DEFINITIONS.

The following terms shall have the meanings set forth below.

  • “Content” shall mean any information, materials, data or other content made available to Customer in connection with the Services, including any Screening Reports.
  • “End-User” shall mean any person, company or other legal entity who receives the Content or Services from Customer for its own internal purposes and not for resale to, or use on behalf of, others.
  • “Services” shall mean the performance of background screening services by AI through its various partners and affiliates.
  • “Screening Reports” shall mean the specific electronic notifications and/or written reports provided by AI to Customer that detail the results of the Services.

DUTIES OF CUSTOMER.

Customer shall be responsible for managing the relationship with any End-Users, if any (including, if applicable, billing and collections).

In addition to the foregoing, Customer agrees that compliance with all federal, state, and local laws, rules, ordinances, and regulations (“Laws”) applicable to: (i) its use or distribution of the Content , and/or Screening Reports, (ii) the particular industry in which Customer does business, and/or (iii) Customer’s business operations or structure, is the sole responsibility of Customer. Specifically, Customer also agrees that, as a distributor of the Content, Customer may be deemed to be a type of consumer reporting agency, and as such it will comply, to the extent applicable, with all applicable requirements of the Fair Credit Reporting Act, 15 U.S.C. 1681 et seq. (FCRA) and further agrees to the following:

To the extent required by law, provide End-Users with the Federal Trade Commission’s prescribed notices including, Notice to Users, Summary of Identity Theft Rights, and A Summary of Your Rights Under the Fair Credit Reporting Act, which Customer also certifies it has received from AI and which are available on the Federal Trade Commission’s website at www.ftc.gov.

Require its End-Users to comply with the requirements of the FCRA.

The laws relating to the furnishing and use of Consumer Reports are nuanced and subject to change. It is the sole and exclusive responsibility of Customer to comply with the then current Law (including, without limitation, the FCRA and Title VII of the Civil Rights Act of 1964). Further, AI does not undertake any obligation to advise Customer of its legal obligations and specifically advises Customer to seek its own counsel relating to Customer’s legal obligations. Without limiting any of the foregoing, Customer shall be solely responsible to ensure that any applicant receives an Adverse Action letter from Customer when such letter is required by law.

INTELLECTUAL PROPERTY.

All patents, copyrights, trade secrets, methodologies, modifications, improvements, ideas, inventions, concepts, know-how, techniques or other intellectual property developed or provided by AI to Customer or contained within the AI Platform (and any future modifications thereto) are and remain solely AI property. Neither party grants the other the right to use its trademarks, trade name or other designations in any promotion or publication. However, AI may include Customer’s name in its Customer lists and may describe in general terms the nature of the relationship and the work being performed. All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively “Proprietary Material”) that Customers see or read through the AI Platform is, as to between AI and Customers, owned by AI. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. AI owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws.

FEES AND PAYMENT TERMS.

Customer agrees to pay nonrefundable fees and other charges or costs for AI Content and Services. Any charges or costs, including but not limited to surcharges and other fees levied by federal, state, county, other governmental agencies, educational institutions, employer verification lines and licensing agencies, incurred by AI in servicing Customer, will be passed onto Customer. Customer agrees that providing credit card information and submitting it electronically to AI represents a legal authorization to debit the card for the orders placed. Customer agrees that prices for services are subject to change without notice, although AI will make every reasonable effort to give notice of such change before it becomes effective.

TERM AND TERMINATION.

Either party may cancel this Agreement by giving sixty (60) day written notice to the other party. AI may terminate or revise the provisions of this Agreement immediately upon written notice if Customer is the debtor in a bankruptcy action or in an assignment for the benefit of creditors or if Customer undergoes a change in ownership or in the event AI has a good faith belief that Customer has breached its obligations hereunder. Termination of this Agreement by either party does not release Customer from its obligation to pay for services rendered or other responsibilities and agreements made.

CONFIDENTIALITY.

During the term of this Agreement and at all times thereafter, neither party shall reveal, publish or otherwise disclose any Confidential Information to any third party without the prior written consent of the other party. “Confidential Information” means any and all proprietary or secret data; sales or pricing information relating to either party, its operations, employees, products or services; and, all information relating to any customer, potential customer, Agent, and/or independent sales outlet. The Parties agree to keep this information confidential at all times during the term of this Agreement, and continuing for five years after receipt of any Confidential Information Confidential Information shall not include any information that: (i) is in the public domain; (ii) is independently delivered by the receiving party; (iii) is already in the possession of such party prior to disclosure; (iv) is rightfully received from a third party not under a confidentiality obligation to the other party; or (v) is legally required to be maintained for compliance purposes or disclosed by the receiving party; provided that disclosing party has been given notice thereof and an opportunity to waive its rights or to seek a protective order or other appropriate remedy.

WARRANTIES.

Each party hereby represents and warrants to the other that: (a) it has the right and ability to enter into this Agreement; (b) this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, (c) the execution, delivery and performance of this Agreement has been authorized by all necessary corporate action or actions and (d) it will apply with any and all Laws relevant to the subject matter of this Agreement.

INDEMNITY.

AI agrees to be responsible for actual damages to the extent of and maximum stated herein for third party claims directly resulting from AI’s sole negligence in assembling Consumer Reports. AI does not, however, guarantee Customer’s compliance with all applicable laws in its use of reported information, and does not provide legal or other compliance related services upon which Customer may rely in connection with its furnishing of reports. Customer will pay for all liabilities and expenses incurred by AI as a result of Customer's breach of any term or condition of this Agreement or Customer's failure to comply with the FCRA or other applicable laws. Customer shall indemnify, defend and hold harmless AI from and against any and all claims, suits, proceedings, damages, costs, expenses (including, without limitation, reasonable attorneys’ fees and court costs) arising or resulting from, or otherwise in connection with Customer's, its agents, affiliates, subsidiaries, directors, managers, members, representatives, subcontractors, and/or employees’: (i) breach of this Agreement; (ii) negligence, act or omission in connection with the Agreement; or (iii) violation of any applicable law.

WARRANTY, DISCLAIMER AND LIMITATION OF LIABILITY.

OTHER THAN THE EXPRESS LIMITED WARRANTIES SET FORTH HEREIN, AI DISCLAIMS AND CUSTOMER WAIVES ALL OTHER WARRANTIES AND OBLIGATIONS OF AI, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY SERVICES, PRODUCTS OR OTHER ITEMS DELIVERED BY OR ON BEHALF OF AI UNDER OR RELATED TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. . Customer acknowledges that AI substantially relies on the information contained in the records of various governmental, private agencies and other third parties for the reports provided pursuant to this Agreement. AI is not responsible for inaccurate, incomplete, false or omitted information. Customer agrees to assert no claim and waives liability against AI for any inaccurate, false or omitted information included in any report of for information.

IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR THE LIKE, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY HERETO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT AI IS LIABLE TO CUSTOMER FOR ANY MATTER ARISING UNDER OR RELATING TO THIS AGREEMENT, WHETHER ARISING IN CONTRACT, EQUITY, TORT OR OTHERWISE (INCLUDING WITHOUT LIMITATION ANY CLAIM FOR NEGLIGENCE), THE AMOUNT OF DAMAGES RECOVERABLE AGAINST AI FOR ALL SUCH MATTERS WILL NOT EXCEED, IN THE AGGREGATE, THE AMOUNT PAID TO AI BY CUSTOMER FOR THE SERVICE TO WHICH A GIVEN CLAIM RELATES PROVIDED PURSUANT TO THIS AGREEMENT, AND RECOVERY OF THE AMOUNT IS CUSTOMER'S SOLE AND EXCLUSIVE REMEDY HEREUNDER.

GENERAL.

This Agreement constitutes the entire understanding between the parties and supersedes all previous agreements, negotiations and representations.

Customer must register with AI and create an account to use the AI Platform. Customer are the sole authorized user of Customer account. Customer are responsible for maintaining the confidentiality of any password and account number provided by Customer or AI for accessing the AI Platform. Customer are solely and fully responsible for all activities that occur under Customer password or account. AI has no control over the use of any User's account and expressly disclaims any liability derived therefrom. Should Customer suspect that any unauthorized party may be using Customer password or account or Customer suspect any other breach of security, Customer will contact AI immediately. By providing Customer mobile phone number and using the AI Platform, Customer hereby affirmatively consent to our use of Customer mobile phone number for calls and texts in order to perform and improve upon the AI Platform. AI will not assess any charges for calls or texts, but standard message charges or other charges from Customer wireless carrier may apply.

Insofar as this Agreement or any provision may subsequently be determined to be at variance or not in compliance with any Law or legal precedent, it will be considered to be amended or modified to the extent necessary to make it comply, and AI and Customer hereby consent and agree to any such amendment or modification. Further, the invalidity of any one provision shall not affect the validity of the other provisions.

The parties shall act as independent contractors for all purposes under this Agreement. Nothing contained herein shall be deemed to constitute either party as an agent or representative of the other, or both parties as joint ventures or partners for any purpose.

If Customer and AI are unable to resolve a dispute through informal negotiations, all claims arising from use of the Services and the AI Platform finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. CUSTOMER UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. Customer arbitration fees and Customer share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, Customer and AI may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.

AI reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this Agreement and review, improve, modify or discontinue, temporarily or permanently, the AI Platform or any content or information through the AI Platform at any time, effective with or without prior notice and without any liability to AI. AI will endeavor to notify Customer of these changes by email, but will not be liable for any failure to do so. If any future changes to this Agreement are unacceptable to Customer or cause Customer to no longer be in compliance with this Agreement, Customer must terminate, and immediately stop using, the AI Platform. Customer continued use of the AI Platform following any revision to this Agreement constitutes Customer complete and irrevocable acceptance of any and all such changes. AI may change, modify, suspend, or discontinue any aspect of the AI Platform at any time without notice or liability. AI may also impose limits on certain features or restrict Customer access to parts or all of the AI Platform without notice or liability.

CUSTOMER HEREBY ACKNOWLEDGE THAT CUSTOMER HAS READ AND UNDERSTAND THE FOREGOING TERMS OF SERVICE, PRIVACY POLICY AND BEST PRACTICES GUIDE AND AGREE THAT CUSTOMER’S USE OF THE AI PLATFORM IS AN ACKNOWLEDGMENT OF CUSTOMER’S AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.