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Recurring Monthly Service Agreement
This Reseller Agreement (the “Agreement”) is dated 2/28/2021 6:55:27 AM (the “Effective
Date”) between Priority Backgrounds, LLC d/b/a Vantage Point Services, with its
principal offices located at P.O. Box 1589, Fuquay, NC 27526 (“Priority
Backgrounds”), and {your company - filled in below}, with its principal offices
located at {your address - filled in below} (“Reseller”).
Whereas, Priority Backgrounds obtains information regarding criminal records of individuals (“Information”)
from a variety of sources, including public court records, other information repositories and third-party researchers;
Whereas, Priority Backgrounds also offers a service called VPS Alert (“VPS Alert Services”) which is an automated data
publishing service published 6 days per week, except for specified holidays, accessible on www.vpscreening.com (the “Website”),
which produces a list or report of open North Carolina court case records that either fully or partially match some or all of
the name and/or identifying information regarding individuals (“Subject Person”) identified using Reseller’s search criteria;
Now, therefore, in consideration of the mutual promises set forth herein, and other good and valuable consideration,
the parties agree as follows:
1. LICENSE GRANT
1.1 License Grant.
Subject to the terms and conditions of this Agreement, Priority Backgrounds hereby
grants to Reseller a limited, non-exclusive license to resell Information and VPS
Services solely to Reseller’s clients for such clients’ use to evaluate persons for
employment, promotion, reassignment or retention as employees, and for such clients’
internal business, provided that all such uses are in compliance with Applicable Laws
(the “Permitted Purpose”).
1.2 License Limitations.
Reseller shall: (i) provide Information and VPS Services to Reseller’s clients in
full compliance with the provisions of the Fair Credit Reporting Act
(15 U.S.C. § 1681 et seq.), the Driver’s Privacy Protection Act (18 U.S.C. § 2721 et seq.)
and all other applicable local, state and federal laws, rules and regulations
regarding the access, use or disclosure of Information, including without limitation
of consumer reports (the “Applicable Laws”); (ii) provide Information and VPS Services
solely pursuant to written agreements with Reseller’s clients requiring such clients
to (a) comply with all duties of users of consumer reports, including without limitation
obtaining and retaining any required consents and provision of all disclosures,
reports and descriptions of consumers’ rights in accordance with the Applicable Laws,
and (b) use the Information and VPS Services solely for the Permitted Purpose in full
compliance with all federal and state laws and regulations, including without limitation
the Applicable Laws; (iii) obtain from its clients in advance written certifications
as to compliance with all duties of users of consumer reports and that Information,
VPS Services and any reports or records provided in connection therewith shall be used
solely for the Permitted Purpose in full compliance with the Applicable Laws and not
in violation of any federal or state equal employment opportunity laws or regulations;
and (iv) hold in strict confidence and not disclose or share with any third party the
Information, VPS Services or any reports or records received in connection therewith,
except as permitted under this Agreement or as otherwise required under the Applicable Laws.
Reseller shall retain written records of all permitted activities of Reseller and Reseller’s
clients under or in connection with this Agreement, including without limitation all written
agreements, certifications and consents required by this Section 1.2 and all reports and
records provided to Reseller clients in connection with the services provided hereunder
for five (5) years following such activities. Reseller shall permit representatives of
Priority Backgrounds to inspect at all reasonable times any and all such records for the
purpose of verifying compliance with the terms and conditions of this Agreement.
1.3 Reseller Obligations. Pursuant to Priority
Background’s Licensing Agreement (“NCAOC Agreement”) with the North Carolina
Administrative Office of the Courts (“NCAOC”), Reseller agrees as follows: (i)
Reseller shall not provide inaccurate data to its clients; (ii) Reseller shall
update its records, in chronological order, with any extract of new, updated, or
deleted records from a recurring extract within twenty-four (24) hours of the
updated extract file’s availability on the NCAOC extract server; (iii) if
Reseller has access to the Automated Criminal/Infractions System (“ACIS”)
Historical Demographic Extract each quarter, as provided and maintained by the
NCAOC, Reseller will completely replace its historical extract within
twenty-four (24) hours of the quarterly extract’s availability on NCAOC’s
extract server; (iv) Reseller shall not provide to any of its clients any data
other than the data in its most recently updated records; (v) if Reseller has
access to the ACIS Demographic Extract, as provided and maintained by the NCAOC,
each time Reseller updates its records, Reseller will purge from all of its
records, in all forms, all data related to a case prefaced by the “delete”
instruction code in the ACIS Daily Demographic Extract. No deleted record will
be made available in any way or form to any person at any time for any reason.
Nothing in this provision shall prevent Reseller from retaining backup copies of
each file received of the ACIS Daily Demographic Extract, but such backup copies
may be retained only for the purpose of database restoration and shall not be
made available in any form or to any person at any time for any reason. This
duty shall survive the termination of this Agreement and shall be observed by
Reseller forever; (vi) Reseller shall not state that its source for data was the
NCAOC, since Reseller did not receive information directly from the NCAOC; (vii)
Reseller shall comply with all procedures and security measures associated with
the use of the Website and the services as posted on the Website, as such
procedures and security measures may be revised from time to time; and (viii)
Reseller shall not remove or modify any disclaimers that appear (a) on reports
or records, or (b) at any search access portal made available hereunder, and
shall ensure that any third parties to which Reseller makes available such
reports or records agrees in writing to the terms of this subsection (viii).
1.4 Source of Information and Reports. Reseller
acknowledges and understands that the Information, the VPS Services and the
reports and records generated thereby have been compiled from public records and
other third party sources, and that the Information and the VPS Alert Services,
including but not limited to such reports and records, may be affected by the
completeness and accuracy of the record-keeping practices of third parties that
collect and maintain such information, the availability of such information from
such third parties and the accuracy and completeness of the Search Criteria (as
defined below) used by Reseller and/or Reseller’s clients. Reseller acknowledges
and understands that Priority Backgrounds: (i) will not render any opinions on
or in connection with the Information and VPS Alert Services; (ii) is not
responsible for the record-keeping practices of third parties such as, but not
limited to: the N.C. Department of Motor Vehicles; the N.C. Administrative
Office of Court; county, state and federal courts; state repositories; state and
regional prisons; local police stations; federal civil courts and bankruptcy
courts; state medical boards and other professional licensing organizations; and
other local, state and federal entities; (iii) that modification, maintenance,
system outages or interruptions of database systems by the NCAOC or unauthorized
parties can interrupt access to the Information and the VPS Services and that
Priority Backgrounds cannot and shall not be liable for such interruptions; and
(iv) that, by providing the Information and the VPS Services, Priority
Backgrounds makes no representation or assertion of any illegal action by any
person.
1.5 Search Criteria. Reseller’s clients must provide
search criteria related to Subject Persons in order to access the Information
and the VPS Services, which includes at least one individual identifier in
addition to Subject Person’s name (collectively, “Search Criteria”). Such
identifier (in addition to name) must include at least one of the following: (a)
Subject Person’s date of birth; (b) the last four digits of Subject Person’s
social security number; or (c) Subject Person’s driver’s license number. In the
event that Search Criteria is either incomplete, or inaccurate, the results of
the Information and VPS Services may be incomplete and inaccurate. Priority
Backgrounds is not responsible for incorrect or incomplete Information, VPS
Services, or records or reports resulting from inaccurate or incomplete Search
Criteria, and Reseller shall assume full responsibility and liability therefor.
1.6 Intellectual Property. As between the parties,
the Information, the VPS Services, the Website and all related software and all
copyrights, trademarks and other intellectual property rights therein, are the
exclusive property of Priority Backgrounds. Reseller shall not reproduce or
distribute any proprietary content of Priority Backgrounds or sublicense any of
the rights granted under this Agreement. Only the licenses expressly granted
herein shall be of legal force and effect. No license rights shall be created
hereunder by implication, estoppel or otherwise.
2. PRICE AND INVOICES.
Reseller shall pay Priority Backgrounds the license fee as specified in Attachment A hereto (as such Attachment A may be modified
from time to time by Priority Backgrounds). All Priority Background invoices shall be due and payable within thirty (30) days of the
invoice date.
3. TERM AND TERMINATION
3.1 Term This Agreement shall terminate upon either
party giving the other party at least thirty (30) days prior written notice.
3.2 Termination. This Agreement may be terminated by
any party at any time upon thirty (30) days written notice in the event of a
material breach of the terms of this Agreement by any other party, provided the
other party has not cured such breach within the notice period.
3.3 Effect of Termination. Upon termination of this
Agreement, all license rights granted herein shall immediately cease.
Termination of this Agreement shall not relieve either party hereto of any
obligation accruing to such party prior to such termination, or result in the
waiver of any right or remedy by a party hereto accruing to such party prior to
such termination. Upon any termination of this Agreement, Reseller shall, at its
own expense, promptly destroy or return to Priority Backgrounds all Information
and all information and data provided hereunder and stored by Reseller in any
tangible or intangible forms. If requested, Reseller shall provide to Priority
Backgrounds satisfactory proof and certification by an officer of Reseller of
such return or destruction.
4. WARRANTY DISCLAIMER.
RESELLER AGREES THAT THE INFORMATION, THE VPS SERVICES, AND THE REPORTS AND RECORDS GENERATED IN CONNECTION THEREWITH ARE
PROVIDED “AS IS” AND PRIORITY BACKGROUNDS DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES WITH REGARD TO THE INFORMATION,
THE VPS SERVICES, AND SUCH REPORTS AND RECORDS (WHETHER EXPRESS OR IMPLIED), INCLUDING WITHOUT LIMITATION (A) ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE, (B) ANY WARRANTY OF QUALITY,
FUNCTIONALITY, OPERABILITY, USE OR PERFORMANCE OF THE INFORMATION, (C) ANY WARRANTY OF THE ACCURACY, COMPLETENESS, TIMELINESS
OR VALIDITY OF THE INFORMATION, OR (D) ANY WARRANTY OF THE CONTINUOUS AVAILABILITY OF THE INFORMATION OR THE VPS SERVICES, OR
THAT THE INFORMATION OR VPS SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. RESELLER HEREBY RELEASES PRIORITY BACKGROUNDS, ITS
AGENTS, EMPLOYEES, SUPPLIERS AND LICENSORS FROM ANY AND ALL LIABILITY FOR INACCURATE OR INCOMPLETE INFORMATION CONTAINED IN
INFORMATION, THE VPS SERVICES OR IN CONNECTION THEREWITH.
5. LIMITATION ON LIABILITY.
IN NO EVENT SHALL PRIORITY BACKGROUNDS, ITS OFFICERS, EMPLOYEES, LICENSORS AND SUPPLIERS BE LIABLE TO RESELLER, OR ANY
RESELLER CLIENT OR SUBJECT PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION
LOST PROFITS OR REVENUE, LOST SAVINGS, LOSS OF USE OF INFORMATION OR VPS SERVICES OR ANY COMPONENT OF SUBPART THEREOF, BUSINESS
INTERRUPTION, OR COST OF SUBSTITUTED FACILITIES, EQUIPMENT OR SERVICES, OR OTHER ECONOMIC LOSS ARISING OUT OF BREACH OF ANY OF
REPRESENTATIONS, WARRANTIES OR AGREEMENTS CONTAINED IN THIS AGREEMENT, WHETHER OR NOT PRIORITY BACKGROUNDS HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, NEGLIGENCE OR TORT
(INCLUDING STRICT LIABILITY) IN CONNECTION WITH THE PREPARATION, MAINTENANCE, TRANSMISSION, USE, OR OTHERWISE IN CONNECTION
WITH THE INFORMATION, THE VPS SERVICES, OR THE RECORDS AND REPORTS GENERATED IN CONNECTION THEREWITH. IN NO EVENT SHALL
PRIORITY BACKGROUNDS’ AGGREGATE LIABILITY TO RESELLER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT,
REGARDLESS OF THE FORM OF CLAIM OR ACTION, EXCEED THE TOTAL AMOUNT OF PAYMENTS ACTUALLY RECEIVED BY PRIORITY BACKGROUNDS
FROM RESELLER UNDER THIS AGREEMENT FOR THE INFORMATION OR VPS SERVICES TO WHICH THE LIABILITY RELATES.
6. INDEMNIFICATION.
Reseller will indemnify and hold Priority Backgrounds and its officers, directors, employees, suppliers and licensors
harmless from and against any and all claims, demands, actions and liabilities (including damages, costs, expenses, reasonable
attorneys’ fees and expert witness fees and costs) resulting from or arising out of (i) Reseller’s or Reseller’s clients’ use of
Information or any results, extracts or other work product derived therefrom; (ii) Reseller’s or Reseller’s clients’ use of
VPS Services or any records, reports, results, extracts or other work product derived therefrom; or (iii) any breach of any
covenant or agreement to be performed by Reseller hereunder.
7. GENERAL
7.1 Relationship of Parties. Priority Backgrounds and
Reseller agree that each party’s legal relationship to the other under this
Agreement is as an independent contractor. Nothing in this Agreement shall be
deemed to create a joint venture, agency, partnership, or other relationship
between Priority Backgrounds and Reseller, and neither shall have any power by
virtue of this Agreement to enter into any contract or commitment on behalf of
the other or to bind the other in any respect whatsoever.
7.2 Severability. In the event any provision of this
Agreement is held to be invalid or unenforceable, the remaining provisions of
this Agreement will remain in full force.
7.3 Entire Agreement. This Agreement constitutes the
entire agreement and supersedes all other prior agreements and understandings,
both written and oral, among the parties with respect to its subject matter.
This Agreement may be amended, modified or supplemented only by a written
agreement (referring specifically to this Agreement) of the parties.
7.4 Notices. All notices and other communications
hereunder shall be in writing and may be delivered by regular mail,
hand-delivery, e-mail communication, or by courier, to the parties at the
addresses specified above (or at such other address for a party as shall be
specified by like notice; provided that notices of a change of address shall be
effective only upon receipt thereof). Any such notice shall be effective upon
receipt, if personally delivered, or one day after delivery to a courier for
next-day delivery.
7.5 Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of North Carolina,
without giving effect to the provisions thereof relating to conflicts of law.
7.6 Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same agreement.
7.7 Assignment. This Agreement and the rights,
interests and obligations hereunder shall be binding upon, inure to the benefit
of and be enforceable by the parties hereto and their respective successors and
permitted assigns; provided, however, that, Reseller may not assign or otherwise
transfer its rights, interests or obligations under this Agreement without
Priority Backgrounds’ prior written consent. Any attempted assignment not in
compliance with this Section 6.7 shall be null and void.
Client or Priority Backgrounds may terminate this Agreement immediately for any reason at any
time. Without limiting the prior sentence, Priority Backgrounds may terminate this Agreement or
temporarily or permanently discontinue any or all Services to Client at any
time, immediately without prior notice or liability, for any conduct which Priority Backgrounds
suspects to violate this Agreement or to be otherwise harmful to Priority Backgrounds s interest
or the interest of others. Client agrees that its sole and exclusive right and
remedy with respect to any dissatisfaction with the Services or any provision of
this Agreement is to terminate this Agreement as provided in this paragraph.
This Agreement and any dispute or controversy arising our of or relating thereto
shall in all respects be governed by and construed in accordance with the laws
of the State of North Carolina, excluding its conflicts of laws principles.
Except as otherwise stated above with respect to price changes, no changes in
the Agreement may be made except by consent in writing by an officer of Priority Backgrounds;
such changes shall be posted on the Website (or Client shall be notified by
other means), and Client’s use of the Services after such posting or other
notice shall be deemed Client’s acceptance of such change(s). This Agreement may
be executed in any number of counterparts, and all such counterparts together
shall constitute but one and the same instrument; this Agreement may be executed
by facsimile signature(s), which shall be deemed for all purposes as original,
handwritten signature(s) and fully valid. This Agreement represents the complete
and exclusive statement of the agreement and understanding of the parties with
respect to the Services provided hereunder, and supersedes all prior oral or
written negotiations, representations, agreements, understandings and
statements.
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