Terms of Service | Checkr.org

This Terms of Service Agreement (this “Agreement”) is made and entered into by and between you, as a User (as defined below), and the Checkr Foundation (“Checkr”). This Agreement contains the terms and conditions that govern the use of Checkr’s Platform (the “Platform”). Checkr, through its website (https://checkr.org) and associated domains (collectively, the “Platform”).

This Agreement is applicable to all persons who use or access the Platform, in their company’s capacity or in an individual capacity, including authorized users representing the company, its employees, or other persons using or accessing the Platform (collectively, “Users” and each, a “User”). If User is agreeing to this Agreement on behalf of a business or an individual other than User, User represents and warrants that User has authority to bind that business or other individual to this Agreement, and User’s agreement to this Agreement will be treated as the agreement of such business or individual. In that event, “User” also refers to that business or individual. By clicking the applicable button to indicate User’s acceptance of this Agreement, or by accessing or using the Platform, User agrees, effective as of the date of such action, to be bound by the Agreement.

Terms for Services

Checkr Foundation’s provision of any service is subject to the terms of this Agreement and any supplemental terms referenced herein or which Checkr Foundation may present User with for review and acceptance at the time User subscribes to such Service (each, “Service Terms”), and any Service Terms shall be incorporated into and form a part of this Agreement. If the terms hereof conflict with any Service Terms, the Service Terms will govern with respect to the matters contemplated thereby.

Privacy Policy and Data Protection Addendum

Please refer to Checkr Foundation’s Privacy Policy located at https://checkr.org/pprivacy-policy for information on how Checkr Foundation collects, uses, and discloses information from Users. User acknowledges and understands that Checkr Foundation may collect, use, and disclose User’s information pursuant to Checkr Foundation’s Privacy Policy, as it may be updated from time to time. Additionally, by accessing or using the Platform, User agrees, effective as of the date of such action, to be bound by all applicable obligations set forth in the Data Protection Addendum attached hereto as Attachment 1.

Use Restrictions

Use of the Platform is conditioned upon User’s full compliance with this Agreement and all applicable laws, rules, and regulations. User represents and warrants that it will not do or attempt to do, or cause any third party to do or attempt to do, any of the following in connection with its use of the Platform:

Access the Platform for improper, illegal, or unauthorized purposes, including, but not limited to, in violation of the Fair Credit Reporting Act, Civil Rights Act, or Equal Employment Opportunity Act;
Use the Platform for the benefit of any third party without Checkr Foundation’s prior written permission;
Modify, decompile, reverse engineer, or disassemble the Platform or otherwise attempt to discover any underlying source code, ideas, algorithms, file formats or programming interfaces; create derivative works based on the Platform; (iv) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Platform;
Use any meta tags, “hidden text,” agents, robots, scripts, spiders, crawlers or other tools or means, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license, download, access or manage the Platform (except caching or as necessary to view the Platform), or the personal information of others without Checkr Foundation’s prior written permission or authorization;
Take any actions that (i) distribute, transmit, upload, post, e-mail, share, distribute, reproduce, or otherwise make available any software viruses, malware, program, code, file, or other technology or material intended to interrupt, disrupt, alter, destroy, or limit any part of the Platform, or that may harm Users; or (ii) use the Platform in a way that violates any of Checkr Foundation’s intellectual property rights, or other rights of any third party, including privacy or publicity rights, or take any action that would jeopardize or impair Checkr Foundation’s rights as owner of the Intellectual Property Rights or the legality and/or enforceability of the Intellectual Property Rights, including challenging or opposing Checkr Foundation’s ownership in the Intellectual Property Rights;
Use the Platform for any reason not explicitly authorized by this Agreement;
Frame or utilize framing techniques to enclose the Platform or any portion thereof;
Intentionally violate any applicable local, state, national, or international law; and/or
Attempt to indirectly undertake any of the foregoing.

Proprietary Rights

“Checkr Foundation Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and documents, information, or other materials that are posted, generated, provided, or otherwise made available through the Platform by Checkr Foundation. Checkr Foundation Content shall be collectively referred to herein as “Content.” Checkr Foundation and its licensors exclusively own all worldwide right, title, and interest in and to the Checkr Foundation Content, and also in and to the Platform, including in each case all associated intellectual property rights (“Checkr Foundation IP”). User acknowledges that the Platform and Checkr Foundation Content are protected by copyright, trademark, and other laws of the United States and foreign countries. User agrees not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Platform or Checkr Foundation Content. This Agreement does not convey any proprietary interest in or to any Checkr Foundation IP or rights of entitlement to the use thereof except as expressly set forth herein. Subject to User’s compliance with this Agreement, Checkr Foundation grants User a limited, non-exclusive, non-transferable, non-sublicensable license to access, view, and download Checkr Foundation Content solely in connection with User’s permitted use of the Platform for User’s own behalf.

Feedback

By sending us any feedback, comments, questions, or suggestions concerning Checkr Foundation (collectively, “Feedback”), User represents and warrants (a) that User has the right to disclose the Feedback, (b) that the Feedback does not violate the rights of any other person or entity, and (c) that User’s Feedback does not contain the confidential or proprietary information of any third party or parties. By sending Checkr Foundation any Feedback, User further (i) agrees that Checkr Foundation is under no obligation of confidentiality, express or implied, with respect to the Feedback, (ii) acknowledges that Checkr Foundation may have something similar to the Feedback already under consideration or in development, (iii) grants us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback, and (iv) irrevocably waive, and cause to be waived, against Checkr Foundation and its users any claims and assertions of any moral rights contained in such Feedback. This Feedback section shall survive any termination of services provided by Checkr Foundation.

SMS Messages

Checkr Foundation will send SMS messages to end users who have opted in to receive messages about activity in User’s account and service updates. If User would like to opt out of receiving SMS messages, User should reply HELP for help or STOP to cancel.

Support

User may request Platform support during Checkr Foundation’s normal business hours via email sent to foundation@checkr.com. While Checkr Foundation makes commercially reasonable efforts to ensure continuous availability of the Platform, Checkr Foundation makes no representation, warranty or guarantee regarding the continuous availability or performance of the Platform.

Warranty Disclaimers

User’s use of the Platform and Content is entirely at User’s own risk. Checkr Foundation is not in the business of providing legal, regulatory, tax, financial, accounting, employment, or other professional services or advice. Any information provided by Checkr Foundation via the Platform or otherwise is meant for informational purposes only and should not be interpreted as professional advice. User should consult a professional that is trained or licensed in the relevant area if User needs such assistance.

USER ACKNOWLEDGES THAT, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE PLATFORM IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND MADE BY CHECKR FOUNDATION. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CHECKR FOUNDATION DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, AND NON-INFRINGEMENT. FURTHERMORE, CHECKR FOUNDATION MAKES NO WARRANTIES REGARDING THE ACCURACY, RELIABILITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR QUALITY OF ANY INFORMATION OR CHECKR FOUNDATION CONTENT IN OR LINKED TO ANY SERVICES. CHECKR FOUNDATION DOES NOT WARRANT THAT THE PLATFORM OR CHECKR FOUNDATION CONTENT WILL (I) MEET USER’S EXPECTATIONS OR REQUIREMENTS, INCLUDING ANY INDUSTRY-SPECIFIC OR REGULATORY REQUIREMENTS APPLICABLE TO USER’S BUSINESS; (II) BE COMPLETELY SECURE OR FREE FROM ERRORS, BUGS, VIRUSES, OR OTHER HARMFUL COMPONENTS; OR (III) BE FREE FROM INTERRUPTION, THEFT, OR DESTRUCTION.

Indemnity

User agrees to defend, indemnify and hold Checkr Foundation, and its subsidiaries, affiliates, partners, licensors, directors, officers, employees, and agents (the “Indemnified Parties”) harmless for any damages, losses, judgments, costs, or expenses, including reasonable attorneys’ fees, arising from any third party claim, action, or demand (collectively “Claims”) arising out of or relating to: (a) User’s use of the Platform in violation of any law, rule, regulation, or User’s breach of any covenants, representations or warranties of this Agreement or (b) User’s maliciousgross negligence, willful misconduct, or fraudulent conduct relating to any violation described in this section. User also agrees to indemnify the Indemnified Parties for any loss, damages, or costs, including reasonable attorneys’ fees, resulting from User’s use of software robots, spiders, crawlers, or similar data gathering and extraction tools, or any other action User takes that imposes an unreasonable burden or load on Checkr Foundation’s infrastructure.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, CHECKR FOUNDATION AND ITS SUBSIDIARIES, AFFILIATES, PARTNERS, LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS WILL NOT BE RESPONSIBLE OR LIABLE IN CONTRACT, WARRANTY OR IN TORT (INCLUDING NEGLIGENCE) FOR ANY (a) INTERRUPTION OF SERVICES; (b) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE PLATFORM; (c) DATA NON-DELIVERY, MISDELIVERY, CORRUPTION, DESTRUCTION, OR OTHER MODIFICATION; (d) LOSS OR DAMAGES OF ANY SORT INCURRED AS A RESULT OF DEALINGS WITH OR THE PRESENCE OF OFF-WEBSITE LINKS ON THE PLATFORM; (e) COMPUTER VIRUSES, SYSTEM FAILURES, OR MALFUNCTIONS WHICH MAY OCCUR IN CONNECTION WITH YOUR USE OF THE PLATFORM; (f) ANY INACCURACIES, ERRORS OR OMISSIONS IN CONTENT OR (g) EVENTS BEYOND OUR REASONABLE CONTROL.

FURTHER, CHECKR FOUNDATION WILL NOT BE LIABLE IN CONTRACT, WARRANTY, OR IN TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY FOR ANY INDIRECT, PUNITIVE, SPECIAL, RELIANCE, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY KIND (INCLUDING LOSS OF REVENUE OR PROFITS) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PLATFORM OR YOUR USE THEREOF OR FOR ANY INFORMATION OBTAINED FROM OR THROUGH THE PLATFORM, EVEN IF CHECKR FOUNDATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL CHECKR FOUNDATION’S LIABILITY EXCEED THE AMOUNT PAID TO CHECKR FOUNDATION UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE INITIATION OF ANY CLAIM FOR DAMAGES. NOTWITHSTANDING THE FOREGOING, THE LIABILITY CAP IN THIS SECTION SHALL NOT APPLY TO: (I) USER’S VIOLATION OF CHECKR FOUNDATION’S INTELLECTUAL PROPERTY RIGHTS; (II) USER’S BREACH OF CONFIDENTIALITY OR DATA PROTECTION OBLIGATIONS; OR (III) USER’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT.

THE LIMITATION OF LIABILITY DESCRIBED ABOVE SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.

Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply.

Changes to This Agreement, Platform, or Service

Checkr Foundation may modify this Agreement at any time, in Checkr Foundation’s sole discretion. If Checkr Foundation does so, Checkr Foundation shall let User know either by posting the modified Agreement on the Platform or through other communications. It is important that User reviews the Agreement whenever Checkr Foundation modifies it because if User continues to use the Platform after Checkr Foundation has notified User of the modification and the modified Agreement has been posted on the Platform, User is indicating to Checkr Foundation that User agrees to be bound by the modified Agreement. If User does not agree to be bound by the modified Agreement, then User may not continue to use the Platform. Because the Platform is evolving over time, Checkr Foundation may change or discontinue all or any part of the Platform or Checkr Foundation Content at any time and without notice, at Checkr Foundation’s sole discretion.

Notices

Written notices to Checkr Foundation may be sent via first-class mail to CHECKR FOUNDATION LEGAL DEPARTMENT, 1 MONTGOMERY STREET, SUITE 2000, SAN FRANCISCO, CA 94104 or via e-mail to legal@checkr.com. User agrees that Checkr Foundation may send notices regarding User’s use of the Platform by means of electronic mail, a general notice posted on the Platform, or by written communication delivered either by overnight courier or U.S. mail to User’s email or mailing address as appearing in Checkr Foundation’s records from time to time.

Third-Party Links and Services

Through the Platform, User may elect to access links to sites controlled by, or receive services from, partners of Checkr Foundation (each such service, a “Third-Party Service,” and each such partner, a “Partner”). User is solely responsible for, and assumes all risk arising from, User’s election to receive and User’s receipt of any Third-Party Service. Checkr Foundation is not responsible for Third-Party Services or any material, information, or results made available through Third-Party Services. The applicable Partners may require User to agree to terms and conditions or agreements with respect to their provision of the Third-Party Services to User. If User elects to receive a Third-Party Service, User authorizes Checkr Foundation to submit to the applicable Partner any and all documents and information about User, User’s business and User’s business’ employees that are necessary for such Partner to provide the Third-Party Service to User. User expressly relieves Checkr Foundation from any and all liability arising from User’s use of any third-party website, service, or content.

Arbitration and Class Action Waiver

PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS USER’S LEGAL RIGHTS AND GOVERNS HOW USER AND CHECKR FOUNDATION CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE USER AND CHECKR FOUNDATION TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION IN COURT.

Agreement to Arbitrate

In exchange for the benefits of the speedy, economical, and impartial dispute resolution procedure of arbitration, User and Checkr Foundation mutually agree to give up their right to resolve disagreements in a court of law by a judge or jury, and, as described below, agree to binding and final arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. § 1, et seq.

User and Checkr Foundation agree that this arbitration agreement is governed by the Federal Arbitration Act, and shall survive even after this Agreement terminates.

Claims Covered by Arbitration

User and Checkr Foundation agree that any Claim arising out of or relating in any way to this Agreement (including its enforcement, breach, performance, interpretation, validity, or termination), or User’s access to and/or use of the Platform, shall be resolved by final and binding arbitration to the fullest extent allowed by law.

Delegation to Arbitrator

If there is a disagreement about the arbitrability of any Claim (including questions about the scope, applicability, interpretation, validity, and enforceability of this arbitration agreement), User and Checkr Foundation agree that this threshold disagreement shall be delegated to the arbitrator (not a court) and that the arbitrator shall have initial authority to resolve such threshold disagreements.

Claims Not Covered by Arbitration

This arbitration agreement shall not require arbitration of the following types of claims: (1) small claims actions demanding $10,000 or less brought on an individual basis and within a small claims court’s jurisdiction; and (2) applications for provisional remedies, preliminary injunctions, and temporary restraining orders, including those relating to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.

Class Action Waiver

Except as otherwise required under applicable law, User and Checkr Foundation agree to bring and resolve any Claims only on an individual basis, and not as a named-plaintiff or class member in any class or representative proceeding. User and Checkr Foundation acknowledge and agree that we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, or any other representative proceeding as to all Claims (hereinafter, “Class Action Waiver”). Further, the arbitrator may not consolidate more than one party’s claims and may not preside over any class, consolidated, or representative proceeding, unless User and Checkr Foundation agree otherwise in writing.

Notwithstanding any other provision of this arbitration agreement or the AAA Rules, specific disagreements about the scope, applicability, enforceability, revocability or validity of this Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If there is a final determination that the Class Action Waiver is unenforceable as to certain claims brought on a class or representative basis, then those claims shall be severed from any remaining claims and may proceed in court, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to any remaining claims to the fullest extent possible.

Arbitration Rules, Procedures, and Costs

User and Checkr Foundation agree that the arbitration shall be administered by the American Arbitration Association (“AAA”) before a single arbitrator mutually agreed upon by the parties, and if the parties cannot agree within thirty (30) days after names of potential arbitrators have been proposed, then by a single arbitrator who is chosen by the AAA. The arbitrator will apply the terms of this arbitration agreement and the applicable AAA rules, which are available at www.adr.org or by calling 1–800–778–7879. If User is an individual person, the arbitrator shall apply the AAA Consumer Arbitration Rules. If User is not an individual person, but is an entity or company, the arbitrator shall apply the AAA Commercial Arbitration Rules.

If User is an individual person and brings a claim solely for monetary relief of $10,000 or less: Checkr Foundation will agree to pay for any filing, administrative, or hearing fees charged by the AAA. If the arbitrator finds that the substance of User’s claim or the relief sought is frivolous or brought for an improper purpose, however, then the allocation of fees will be governed by the AAA Consumer Arbitration Rules.

If User is an individual person and brings a claim for monetary relief exceeding $10,000: The AAA Consumer Arbitration Rules will govern payment of administrative or hearing fees charged by the AAA, including limiting User’s filing fee to $200. In addition, fee waivers or other forms of cost relief at the arbitrator’s discretion may be available. If the arbitrator finds that the substance of User’s claim or the relief sought is frivolous or brought for an improper purpose, however, then the allocation of fees will be governed by the AAA Consumer Arbitration Rules.

If User is not an individual person: The AAA Commercial Arbitration Rules will govern payment of administrative or hearing fees charged by the AAA.

The arbitrator shall have the power to decide any motions, including dispositive or summary judgment motions, brought by any party to the arbitration. The arbitrator may grant any remedy, relief, or outcome that the parties could have received in court to resolve the party’s individual claim, including awards of attorney’s fees and costs, in accordance with the law or laws that apply to the Claim. The arbitrator shall provide in writing to the parties the basis for any award or decision. Judgment upon any award rendered in such arbitration will be binding and may be entered in any court with proper jurisdiction.

Severability

If any clause within this arbitration agreement is found to be illegal or unenforceable, that specific clause will be severed from this arbitration agreement, and the remainder of the arbitration agreement will be given full force and effect.

Opt-out

If User is an individual person, User has the right to opt-out and not be bound by this arbitration agreement by sending written notice to Checkr Foundation—clearly indicating User’s intent to opt out of this arbitration agreement and including the name, phone number, and email address associated with User’s account—via email (arbitration@checkr.com) or U.S. Mail (Checkr Foundation, Legal Department, 1 Montgomery Street, Suite 2000, San Francisco, CA 94104). Your opt-out notice must be sent within 30 days of User’s acceptance of this Agreement.

If User does not opt-out of this arbitration agreement within the 30-day period, User and Checkr Foundation shall be bound by the terms of this arbitration agreement in full. If User opts-out of this arbitration agreement within the 30-day period, it will not affect any other, previous, or future arbitration agreements that User may have with Checkr Foundation.

Pre-Arbitration Notification and Negotiation Process

Prior to initiating an arbitration, You and Checkr Foundation each agree to first attempt to negotiate an informal resolution of any Claims. This pre-arbitration negotiation shall be initiated by providing written notice to the other party—including a brief written statement describing the name, address, and contact information of the notifying party, the facts giving rise to the Claim, and the relief requested. You must send such written notice to Checkr Foundation via email (legal@checkr.com) or U.S. Mail (Checkr Foundation, Legal Department, 1 Montgomery Street, Suite 2000, San Francisco, CA 94104); Checkr will send such written notice to the email address You have provided to Checkr Foundation.

During this pre-arbitration negotiation, all offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability, in arbitration or other proceeding involving the parties.

After a good faith effort to negotiate, if You or Checkr Foundation believe a Claim cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) must be provided to the other party, as specified in the AAA Rules.

General

Governing Law

Except for Section 18, which is governed by the Federal Arbitration Act, this Agreement is governed by the laws of the State of California without regard to choice of law rules or principles. The choice of law provision is only intended to specify the use of California law to interpret this Agreement and is not intended to create and substantive right to non-Californians to assert claims under California law whether by statute, common law, or otherwise. Any disputes shall be resolved exclusively in the state or federal courts located in San Francisco, California, and the parties hereby consent to the personal jurisdiction of such courts

Assignment

User may not assign any of its rights or obligations under this Agreement without the prior written consent of Checkr Foundation. Subject to the foregoing, this Agreement inure to the benefit of and is binding on the parties’ permitted assignees, transferees and successors. Any attempted assignment in violation of this clause is void. Notwithstanding the foregoing, Checkr Foundation may assign this Agreement, or any of its rights or obligations hereunder, without User’s prior written consent, including in connection with any merger, acquisition, reorganization, or sale of all or substantially all of Checkr Foundation’s assets.

Integration

User acknowledges and agrees that this Agreement constitutes the parties’ complete and exclusive agreement concerning the use of the Platform and supersedes and governs any and all prior or contemporaneous proposals, agreements, or other communications relating to the Platform.

Miscellaneous

The parties are independent contractors. Nothing contained in this Agreement shall be construed as creating any employment, agency, partnership, franchise, joint venture, or other form of joint enterprise or authority to bind the other party. There are no third-party beneficiaries to this Agreement. If any provision is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provisions essential purpose. Any waiver of a provision of this Agreement will only be valid if provided in writing and applies only to the specific occurrence so waived. Failure to enforce any provision will not constitute a waiver. Nothing in this Agreement will limit a party’s ability to seek equitable relief. Section headings are not to be used in the interpretation hereof.

Attachment 1: Data Protection Addendum

This Data Protection Addendum (“DPA”) supplements the Agreement by and between You and any of Your Approved Affiliates (collectively, “Customer”) and Checkr Foundation (“Checkr Foundation”). In the event of any conflict between the Agreement and the terms of this DPA, this DPA shall govern.

Definitions

For purposes of this DPA:

“CCPA” means the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq. and any applicable regulations.
“Customer Data” means Personal Data provided by or collected on behalf of Customer for purposes of accessing and using the Platform or obtaining services under the Agreement.
“Data Controller” means the entity that determines the purposes and means of the Processing of Personal Data, including as applicable any “business” as that term is defined by the CCPA.
“Data Privacy Laws” means all applicable laws, regulations, and other legal or self-regulatory requirements in any jurisdiction relating to privacy, data protection, data security, communications secrecy, breach notification, or the Processing of Personal Data, including without limitation, to the extent applicable, the CCPA, GDPR, the UK GDPR, and the Swiss Federal Act on Data Protection 2020. For the avoidance of doubt, if the parties’ processing activities involving Personal Data are not within the scope of a given Data Privacy Law, such law is not applicable for purposes of this DPA.
“Data Subject” means an identified or identifiable natural person about whom Personal Data relates.
“EU Personal Data” means Personal Data the sharing of which pursuant to this Agreement is regulated by the General Data Protection Regulation or the Swiss Federal Act on Data Protection 2020.
“GDPR” means the General Data Protection Regulation, Regulation (EU) 2016/679 of the European Parliament and of the Council together with any subordinate legislation or regulation implementing the General Data Protection Regulation.
“Personal Data” includes “personal data” as defined by the GDPR, “personal information” as defined by the CCPA, and “personally identifiable information” as defined by other applicable Data Privacy Laws. Personal Data does not include publicly available information excluded from the definition of “Personal Data” under applicable Data Privacy Laws. Further Personal Data does not include data exempted under applicable Data Privacy Laws, including but not limited to CCPA §§1798.145(d)-(f).
“Process”, “Processed” and/or “Processing” mean any operation or set of operations performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, creating, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction.
“Processor” means the entity which Processes Personal Data on behalf of the Controller, including as applicable any “service provider” as that term is defined by the CCPA.
“Security Breach” means any accidental or unlawful acquisition, destruction, loss, alteration, disclosure of, or access to, Customer Data.
“Sell,” “Sale,” “Share,” or “Sharing” shall have the meaning set forth in the CCPA.
“Services” mean the Services provided by Checkr Foundation to Customer, as provided in the Agreement.
“Standard Contractual Clauses” means the annex found in EU Commission Decision of 4 June 2021 on standard contractual clauses for the transfer of personal data to processors established in third countries under Regulation (EU) 2016/679 of the European Parliament and of the Council, incorporated herein by reference, completed as described in the “Data Transfers” section below.
“Subprocessor” means any Checkr affiliate or subcontractor engaged by Checkr for the Processing of Customer Data.
“UK Addendum” means the UK Addendum to the EU Standard Contractual Clauses.
“UK GDPR” means the UK General Data Protection Regulation, amended by the Data Protection Act 2018.
“UK Personal Data” means Personal Data the sharing of which pursuant to this Agreement is regulated by the UK GDPR.

Scope and Purposes of Processing

Customer agrees to determine the purposes and general means of Checkr’s Processing of Customer Data in accordance with the Agreement. Checkr will Process Customer Data, including Personal Data contained therein, solely for the purposes set forth in the Agreement, including for the purpose of generating a consumer report as defined by 15 U.S.C 1681a(d), and in compliance with applicable law. Customer will not instruct Checkr to Process Customer Data in violation of applicable law. Checkr will inform Customer if, Checkr discovers, in its opinion, an instruction from Customer infringes applicable law.

Obligations of the Parties

Compliance with Laws. Each party shall comply with all laws, whether state, federal, local or international, including Data Privacy Laws. Each party shall promptly notify the other party in writing if it is no longer able to meet its obligations under Data Privacy Laws applicable to this DPA.
Compliance with Data Controller Obligations. To the extent such party is acting as a Data Controller, each party shall independently fulfill all duties required of Data Controllers under Data Privacy Laws. Checkr is a Data Controller with respect to Personal Data.
No Joint Controllership. Unless otherwise agreed in writing, the parties acknowledge and agree that each is acting independently as a Data Controller with respect of Personal Data and the parties are not joint Controllers as defined in the General Data Protection Regulation and UK GDPR.
No CCPA Sale or Sharing. Neither party shall Sell or Share to a third party any Personal Data made available to it by the other party except to the extent such Personal Data or Sale or Sharing thereof is exempted from Data Privacy Laws. The parties agree that for the purposes of the CCPA, Checkr acts as a service provider with regard to the Processing of Customer Data. Customer does not Sell or Share Customer Personal Data to Checkr because Checkr shall only use Customer Personal Data for the purposes specified in the Agreement.
Data Subject Requests. For the avoidance of doubt, to the extent the party is a Data Controller, each party shall have an independent obligation to respond to requests received from Data Subjects seeking to exercise their rights under applicable Data Privacy Laws, including, but not limited to, access and deletion requests made pursuant to the Data Privacy Laws. The recipient of the Data Subject request shall be responsible for responding to the Data Subject. If applicable, and to the extent legally permitted, each party shall provide the other party with reasonable cooperation and assistance in relation to the handling of a Data Subject’s request.
Disclosures and Consent. Each party shall comply with applicable Laws, including, but not limited to, the FCRA (as applicable) and Data Privacy Laws, to provide legally required notices to Data Subjects regarding the purpose and nature of the Processing of Personal Data in connection with the Services. Customer shall ensure that Data Subjects have provided legally sufficient consent or other appropriate legal basis (including under the GDPR and all other applicable Data Privacy Laws), wherever such consent or other appropriate legal basis is necessary to enable Checkr to perform the Services.

Customer Data Processing Requirements

Checkr will:

Ensure that the persons it authorizes to Process Customer Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
Upon written request of Customer, assist Customer in the fulfillment of Customer’s obligations to respond to verifiable requests by Data Subjects (or their representatives) for exercising their rights with respect to Customer Data under Data Privacy Laws.
Promptly, and in any event within ten days, notify Customer of any third-party or Data Subject requests or complaints regarding the Processing of Customer Data. Customer agrees to, at Checkr’s request, designate to Checkr a single point of contact responsible for receiving and responding to such requests or complaints.
Provide reasonable assistance to and cooperation with Customer for Customer’s performance of a data protection impact assessment of Processing or proposed Processing of Customer Data.
Provide reasonable assistance to and cooperation with Customer for Customer’s consultation with regulatory authorities in relation to the Processing or proposed Processing of Customer Data, including complying with any obligation applicable to Checkr under Data Privacy Laws to consult with a regulatory authority in relation to Checkr’s Processing or proposed Processing of Customer Data.

Subprocessors

Checkr may subcontract the collection or other Processing of Customer Data in compliance with Data Privacy Law to provide the Services. Checkr will impose contractual obligations on the Subprocessor that are at least the same level of protection as those imposed on Checkr under this DPA and will remain liable for its Subprocessors’ performance to the same extent Checkr is liable for its own performance, consistent with the limitations of liability set forth herein.
If GDPR is applicable to the Services,Checkr shall notify Customer of any changes made to Subprocessors at least thirty (30) days prior to any such change by sending an email to the email address designated by Customer to receive notifications. Customer may reasonably object to Checkr’s use of a new Subprocessor by notifying Checkr promptly in writing within five (50) business days after Checkr’s notice is sent pursuant to this DPA. Customer shall explain its reasonable grounds for objection. In the event Customer objects to a Subprocessor, the parties shall discuss Customer’s concerns in good faith with a view to achieving a commercially reasonable resolution. If no such resolution can be reached, Checkr will, at its sole discretion, either (i) not appoint the Subprocessor; or (ii) in the event that Checkr cannot provide the Services without such objected to Subprocessor, then Checkr will permit Customer to terminate the Services. Checkr may replace a Subprocessor if the need for the change is urgent and necessary to provide the Services. In such instance, Checkr shall notify Customer of the replacement as soon as reasonably practicable, and Customer shall retain the right to object to the replacement Subprocessor pursuant to this Section.

Security

Taking into account the nature of Processing and the information available to Checkr, Checkr shall implement technical and organizational measures, without prejudice to Checkr’s right to make future replacements or updates to the measures that do not lower the level of protection of Customer Data.
Security Breach. Checkr shall notify Customer promptly of any Security Breach of Customer Data and provide related information to Customer as set forth by Data Privacy Laws. Customer shall notify Checkr promptly of any actual or suspected unauthorized access to Customer’s systems or compromise of Customer’s credentials used to access the Services. Taking into account the nature of Processing and the information available to Checkr, the parties reasonably shall work together to address any such compromise, including taking steps to mitigate the effects of the Security Breach or system compromise and reduce the risk to Data Subjects whose Personal Data in the Customer Data was involved. Customer is solely responsible for complying with legal requirements for incident notification applicable to Customer and fulfilling any third-party notification obligations. Nothing shall be construed to require Checkr to violate, or delay compliance with, any legal obligation it may have with respect to a Security Breach or other security incidents generally.

Data Transfers

For transfers of EU Personal Data to Checkr for processing by Checkr in a jurisdiction other than a jurisdiction in the EU, the EEA, or the European Commission-approved countries providing ‘adequate’ data protection, each party agrees it will use Module 2 of the Standard Contractual Clauses for Controller to Processor transfers, which are incorporated herein by reference.

In case of conflict between the Standard Contractual Clauses and this DPA, the Standard Contractual Clauses will prevail. Notwithstanding the foregoing, where the transfers contemplated under this Section 7 result in transfers of UK Personal Data to Checkr for processing by Checkr in a jurisdiction other than in the UK or UK Information Commissioner’s Office-approved countries providing ‘adequate’ data protection, then (a) the Standard Contractual Clauses used for EU Personal Data shall also apply to transfers of UK Personal Data; (b) the UK Addendum shall be deemed executed between Customer and Checkr; and (c) the SCCs between the parties shall be deemed amended as specified in the UK Addendum in respect of the transfer of such UK Personal Data. The UK Information Commissioner is the exclusive Supervisory Authority for the transfers of UK Personal Data under this Agreement.

Audits

Reasonable Audits. If GDPR is applicable to the Services, Checkr shall allow for and contribute to audits, including inspections, conducted by Customer or another auditor mandated by Customer subject to the following conditions: so long as the Agreement remains in effect and at Customer’s sole expense, Customer may request that Checkr provide it with documentation, data, and records (“Records”) no more than once annually relating to Checkr’s compliance with this DPA with respect to Customer Data (an “Audit”). To the extent Customer uses a third-party representative to conduct the Audit, Customer shall ensure that such third-party representative is bound by obligations of confidentiality no less protective than those contained in this Agreement. Customer shall provide Checkr with fourteen (14) days prior written notice of its intention to conduct an Audit. Customer shall conduct its Audit in a manner that will result in minimal disruption to Checkr’s business operations and shall not be entitled to receive data or information of other clients of Checkr or any other confidential information of Checkr that is not directly relevant for the authorized purposes of the Audit. If any material non-compliance is identified by an Audit, Checkr shall take prompt action to correct such non-compliance. Any information that Customer receives under this Section is Confidential Information of Checkr.
Limitations. For the avoidance of doubt, this provision does not grant Customer any right to conduct an on-site audit of Checkr’s premises. Customer shall reimburse Checkr for any time expended for an Audit at the Checkr’s then-current reasonable rates, which shall be made available to Customer upon request. Nothing herein will require Checkr to disclose or make available: (a) any data of any other Customer of Checkr; (b) access to systems; (c) Checkr’s internal accounting or financial information; (d) any trade secret of Checkr; (e) any information or access that, in Checkr’s reasonable opinion, could (i) compromise the security of Checkr systems or premises; or (ii) cause Checkr to breach its obligations under applicable law or applicable contracts; or (f) any information sought for any reason other than the good faith fulfilment of Customer’s obligations under Applicable Law to audit compliance under this DPA.
Return or Destruction. Upon termination of the Services or on reasonable written request from Customer’s authorized representative Checkr shall, at the choice of Customer, return or deletesuch Customer Data in accordance with its requirements under applicable Data Privacy Law, unless applicable law prevents Checkr from returning or deleting all or part of the Customer Data. In such case, Checkr agrees to preserve the confidentiality of the Customer Data retained by it that it will only Process such Customer Data in order to comply with applicable law. Notwithstanding the foregoing, this provision will not require Checkr to delete Customer Data from archival and back-up files except as provided by Checkr’s internal data deletion practices or as required by applicable law. For avoidance of doubt, Checkr may continue to Process Customer Data that has been anonymized or aggregated in a manner that does not identify individuals.
Miscellaneous. Nothing in this DPA shall confer any benefits or rights on any person or entity other than the parties to this DPA.The provisions of this DPA shall survive the termination or expiration of the Agreement as long as either party continues to Process Personal Data in connection with the Agreement.