TERMS AND CONDITIONS
Fidelis Asset Management, LLC (D/B/A RentPrep.com)(hereinafter “RentPrep”), a consumer reporting agency, provides end-users with access to information (“Reports”) regarding consumers for lawful purposes, in accordance with all federal, state, and local laws.
These terms and conditions (“Terms and Conditions” or “Agreement”) govern all information obtained through RentPrep’s service.
These Terms and Conditions constitute a binding agreement between RentPrep and you/your organization (“End-User”).
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. IF YOU ORDER BACKGROUND CHECKS OR CONSUMER REPORTS THROUGH RENTPREP OR USE RENTPREP’S SERVICES IN ANY MANNER, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT ORDER OR USE RENTPREP’S SERVICE IN ANY WAY. IF YOU ARE ACCEPTING THESE TERMS AND CONDITIONS ON BEHALF OF A COMPANY, ORGANIZATION, OR OTHER LEGAL ENTITY, YOU CERTIFY THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY. IF YOU DO NOT HAVE THAT AUTHORITY OR ARE NOT SURE IF YOU HAVE THAT AUTHORITY, YOU MAY NOT ACCEPT THESE TERMS AND CONDITIONS AND YOU MAY NOT ORDER BACKGROUND CHECKS OR CONSUMER REPORTS THROUGH RENTPREP OR USE RENTPREP’S SERVICES IN ANY WAY.
1. Permissible Purpose For Receiving Reports. End-User hereby certifies that it shall request, obtain, and/or use Reports from RentPrep solely for the following permissible purpose under the Fair Credit Reporting Act: for the purpose of screening potential tenants but only upon the express written consent of any person that will be screened. See 15 U.S.C. § 1681b(a)(2). End-User shall not request, obtain, or use Reports for any other purpose. Among other things, End-User shall not request Reports for the purpose of selling, leasing, or renting information obtained under this Agreement to any other party, whether alone, in conjunction with End-User’s own data, or otherwise in any service which is derived from the Reports provided by RentPrep. PLEASE NOTE: THE FCRA PROVIDES THAT ANY PERSON WHO KNOWINGLY AND WILLFULLY OBTAINS INFORMATION ON A CONSUMER FROM A CONSUMER REPORTING AGENCY UNDER FALSE PRETENSES SHALL BE FINED UNDER TITLE 18 OF THE UNITED STATES CODE OR IMPRISONED NOT MORE THAN TWO YEARS, OR BOTH.
2. Additional Legal Certifications For Tenant Screening Reports. End-User understands that various legal requirements apply when it orders Reports. End-User shall comply with all such requirements. In particular, End-User makes the following certifications as to legal compliance:
A. Federal, State, and Local Law Notifications. End-User certifies that before ordering a Report from RentPrep, it shall provide any necessary notifications under applicable federal, state, and local law to the subject of the report (“the Consumer”). End-User agrees that it will work with experienced legal counsel as appropriate to ensure that all applicable requirements are accounted for.
B. Written Consent. End-User certifies that, consistent with the FCRA, before ordering a Report from RentPrep, the Consumer shall authorize in writing the procurement of such Report. Consent paperwork shall appropriately inform the Consumer of the reason for the RentPrep check and the nature of such check, in compliance with the FCRA.
C. Adverse Action Procedures. If End-User decides to take adverse action based upon a Report provided by RentPrep, it shall issue to the Consumer notice of any adverse action taken based in part or whole on a Report, including the statutorily-required notice identified in the Fair Credit Reporting Act. Among other things, such notice shall include: (1) the name, address, and telephone number of the consumer reporting agency, RentPrep, (2) a statement that the consumer reporting agency did not make the decision to take the adverse action and is unable to provide the Consumer the specific reasons why the adverse action was taken, (3) a statement that the Consumer may obtain a free copy of the consumer report from the consumer reporting agency within 60 days pursuant to Section 612 of the Fair Credit Reporting Act, and (4) a statement that the Consumer has the right to dispute with the consumer reporting agency the accuracy or completeness of any information in a consumer report furnished by the agency.
3. Electronic Disclosure and Authorization Process. If End-User opts to have RentPrep’s background screening system generate, on End-User’s behalf, the Consumer disclosures and notices identified in Section 2 above and obtain the consumer’s authorization to perform the background screening identified in Section 2 above, End-User acknowledges that such disclosures and notices are being sent, and consumer authorizations requested, solely at End-User’s direction. End-User also acknowledges that it has had the opportunity to review the manner and formatting in which disclosures, notices, and authorizations shall be presented to End-User’s consumers through RentPrep’s system and can request the opportunity to do so again by contacting RentPrep directly. End-User accepts full and exclusive responsibility for the content and formatting of the disclosures, notices, and authorizations to be presented by RentPrep’s system on End-User’s behalf. End-User understands that its use of RentPrep’s system to handle its disclosure and authorization responsibilities is strictly voluntary, and that End-User may at any time elect to use its own materials outside of the system-generated-process described above by providing written notice to RentPrep. End-User further understands and agrees that its use of the electronic process described in this section does not lessen in any way End-User’s independent legal obligation to comply with the applicable requirements of the FCRA and similar state laws (including, without limitation, End-User’s obligations under Sections 2 above). End-User remains fully and exclusively responsible for complying with all background screening laws that apply to it, including the FCRA. End-User hereby agrees to indemnify, defend and hold harmless RentPrep, its affiliates, and subsidiaries and their respective officers, directors, employees, agents, and insurers from and against any and all damages, penalties, losses, liabilities, judgments, settlements, awards, costs, and expenses (including reasonable attorneys’ fees and expenses) arising out of or in connection with any claims, assertions, demands, causes of action, suits, proceedings or other actions, whether at law or in equity, related to the disclosures, notices, authorizations, system, and process discussed in this section.
4. No Legal Advice. End-User acknowledges the importance of complying with its obligations under applicable law and agrees that it will consult with legal counsel as appropriate regarding the acquisition and use of Reports. End-User understands and acknowledges that RentPrep is not a law firm and does not provide legal advice in connection with RentPrep’s furnishing of Reports to End-User or End-User’s use of such Reports. End-User understands that any communications by RentPrep’s employees or representatives regarding searches, verifications or the content of Reports are not to be considered or construed as legal advice. End-User shall consult with counsel as appropriate before deciding whether to act upon information reported by RentPrep. End-User understands that sample forms or documents made available by RentPrep to End-User, including, but not limited to, sample disclosure notices, written authorizations, and adverse action notices are offered solely as a courtesy and should not be construed as legal advice. Accordingly, End-User represents that it has consulted and shall continue to consult with counsel as appropriate to make sure that it is using appropriate documents that comply with any and all applicable federal, state, and local laws. Use of RentPrep’s sample documents—including any paperwork designed to obtain the consumer’s consent to the background check—is entirely optional. Therefore, if End-
User chooses to use RentPrep’s sample documents in part or whole, End-User agrees that such documents should be considered its own (not that of RentPrep), and that End-User has consulted with its own legal counsel to the extent necessary regarding the use of such documents/processes. End-User shall indemnify and hold harmless RentPrep, its affiliates, and subsidiaries and their respective officers, directors, employees, agents, and insurers from and against any and all damages, penalties, losses, liabilities, judgments, settlements, awards, costs, and expenses (including reasonable attorneys’ fees and expenses) arising out of or in connection with any claims, assertions, demands, causes of action, suits, proceedings or other actions, whether at law or in equity (“Claims”) related to End-User’s use of sample forms or sample documents made available by RentPrep.
5. Obligations Regarding The Security of Reports. End-User understands that Reports contain sensitive, personal information. Accordingly, End-User agrees to do the following in order to preserve the security of the information being provided pursuant to this Agreement:
A. Prevent Misuse Of Services Or Information. End-User shall only request Reports for one-time use. End-User agrees to take appropriate measures so as to protect against the misuse and/or unauthorized access of Reports. End-User agrees that RentPrep may temporarily suspend End-User’s access pending an investigation of End-User’s use or access. End-User agrees to cooperate fully with any and all investigations. If any misuse or unauthorized access is found, RentPrep may immediately terminate this Agreement.
B. Properly Maintain The End-User Account. End-User is responsible for the administration and control of Account IDs and shall identify a security administrator to coordinate with RentPrep. End-User shall manage all Account IDs and notify RentPrep promptly if any Account ID becomes inactive or invalid. End-User shall follow the policies and procedures of RentPrep with respect to account maintenance as communicated to End-User from time to time.
C. Limit Access Within Organization. End-User shall disclose Reports internally only to End-User’s designated and authorized employees having a need to know and only in accordance with the Agreement and applicable law. End-User shall ensure that such designated and authorized employees shall not attempt to obtain any Reports on themselves, associates, or any other person except in the reasonable exercise of their official duties.
D. Limit Distribution Outside of Organization. End-User shall hold any Report obtained from RentPrep in strict confidence, and not disclose it to any third-parties except as necessary to comply with adverse-action requirements under the Fair Credit Reporting Act or as otherwise required by law.
E. Properly Handle Any Potential Or Actual Security Breaches. In the event that End-User learns or has reason to believe that Report data has been disclosed to or accessed by an unauthorized party, End-User shall comply with any and all applicable data breach laws.
6. TransUnion Rental Screening Solutions Terms. End-User acknowledges that special requirements are imposed by TransUnion Rental Screening Solutions (“TURSS”) before access to its “SmartMove” service is provided by RentPrep. If End-User orders “SmartMove” services or information from RentPrep, End-User agrees to TURSS Service Agreement found here: https://rentprep.com/transunion-user-agreement/ End-User understands and agrees that TURSS Service Agreement supplements, but does not replace, these Terms and Conditions.
7. Scope of Information Provided. RentPrep shall deliver information consistent with the service descriptions set forth on its website at https://RentPrep.com at the time of the relevant request. End-User understands that it will not receive information from RentPrep that falls outside of the search scope, and that it will not receive information that RentPrep determines—in its sole discretion—to be unreportable under applicable law.
8. Responsibility for Decision-Making. End-User understands and agrees that RentPrep does not make the decision to take any adverse action based on any reported findings in the RentPrep investigation process. This responsibility rests solely with End-User. End-User accepts full responsibility for any decision or adverse action made in part or whole on a Report provided by RentPrep.
9. Warranties, Remedies, and Indemnification.
A. End-User understands that RentPrep obtains the information in its Reports from various third-party sources “AS IS” and, therefore, is providing the information to End-User “AS IS”. RENTPREP MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM THE COURSE OF DEALING OR A COURSE OF PERFORMANCE; RENTPREP EXPRESSLY DISCLAIMS ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES.
B. In addition to any indemnification obligation set forth elsewhere in this Agreement, End-User shall indemnify and hold harmless RentPrep, its affiliates, and subsidiaries and their respective officers, directors, employees, agents, and insurers from and against any and all damages, penalties, losses, liabilities, judgments, settlements, awards, costs, and expenses (including reasonable attorneys’ fees and expenses) arising out of or in connection with any claims, assertions, demands, causes of action, suits, proceedings or other actions, whether at law or in equity (“Claims”) related to: (i) any breach by End-User of this Agreement or addenda to this Agreement, (ii) End-User’s violation of applicable laws or ordinances, or (iii) End-User’s negligence, misconduct, recklessness, errors or omissions.
C.RENTPREP SHALL NOT BE LIABLE TO END-USER FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, OR INDIRECT DAMAGES (INCLUDING LOST PROFITS OR SAVINGS), EVEN IF RENTPREP WAS ADVISED OF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES. IN ADDITION, RENTPREP SHALL NOT BE LIABLE TO END-USER FOR AN AMOUNT THAT EXCEEDs THE TOTAL FEES PAID TO RENTPREP DURING THE 12 MONTHS BEFORE SUCH LIABILITY AROSE. BOTH PARTIES AGREE THAT THE PRICES AFFORDED TO END-USER ARE PREMISED ON THIS CAP ON DAMAGES.
10. Fees. End-User is responsible for paying all costs and fees for services rendered to it, consistent with RentPrep’s then-applicable prices. End-User understands and agrees that charges are not dependent on any specific findings or results in Reports ordered.
11. Term. This Agreement may be terminated by either Party for any reason whatsoever upon 30 days’ prior written notice to the other Party. Notwithstanding the above, RentPrep may terminate this Agreement immediately upon written notice if End-User is the debtor in a bankruptcy action or in an assignment for the benefit of creditors or if End-User undergoes a change in ownership. In addition,
RentPrep may terminate the Agreement immediately if it determines that End-User has violated the Agreement or a separate legal requirement, or if it determines that there has been a material change in existing legal requirements that adversely affects the Agreement.
A. Independent Contractor. Each party is and shall remain an independent contractor. Neither party is authorized to assume or create an obligation or responsibility, express or implied, on behalf of or in the name of the other party or to bind the other party in any manner.
B. Address Change. End-User shall notify RentPrep if End-User changes its name or address.
C. General Legal Compliance. End-User shall comply with all laws applicable to its ordering, receipt, or use of Reports from RentPrep.
D. Receipt of Federal Notices. End-User acknowledges that it has received a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act” and “Notice to Users of Consumer Reports,” which are attached here.
E. Audits. RentPrep shall have the right to conduct periodic audits of End-User’s compliance with this Agreement. In addition, certain third-party vendors require the right to audit End-User either directly or through RentPrep. The scope and frequency of any audit shall be at the reasonable discretion of RentPrep and will be subject to requirements imposed by third-party vendors. RentPrep will provide reasonable notice prior to conducting any audit provided that RentPrep has received reasonable notice from any third-party vendor involved in the audit process. Any violations discovered as a result of such audit may be cause for immediate action by RentPrep, including, but not limited to, immediate termination of this Agreement.
F. Forum Selection and Choice of Law. New York law and federal law will govern this Agreement for all matters except for collections. The parties agree that any legal disputes other than collection matters will be handled in state court in New York (County of Erie) or federal court in New York (Western District of New York). Both parties agree that personal jurisdiction exists in New York.
G. Validity of Agreement. The invalidity or unenforceability of any one provision of this Agreement shall not impair the validity and enforceability of the remaining provisions.
H. Force Majeure. The obligation of RentPrep to perform under this Agreement shall be excused if caused by matters beyond its reasonable control, including, without limitation, government regulation or law, war or insurrection, civil commotion, destruction of production facilities or material by earthquake, fire, flood, storm or other natural disaster, labor disturbances, epidemic or failure of suppliers, public utilities or common carriers.
I. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, provided, however, End-User shall not assign or otherwise transfer this Agreement or any interest herein without the prior written consent of RentPrep.
J. No Third-Party Beneficiaries. Except as specifically provided for herein, this Agreement shall not confer any rights or remedies upon any person other than the parties hereto and their respective successors and permitted assigns.
K. No Waiver. The failure of either party to insist on prompt performance of their duties shall not constitute a waiver of that duty.
L. Exhibits and Schedules Incorporated. All Exhibits and Schedules attached hereto are incorporated herein.
M. Survival. The following provisions shall survive termination of this Agreement: 3 (indemnification), 4 (indemnification), 5, 6, 8, 9, 10, 12C, and 12F.
N. Entire Agreement. This Agreement and any attachments hereto constitute the entire agreement between the parties and supersede all prior understanding, written or oral, between the parties with respect to the subject matter hereof. No changes or alterations may be made to this Agreement unless in writing signed by duly-authorized representatives of each party to this Agreement.