U.S. Terms of Service for Profile Advantage
TERMS OF SERVICE
This terms of service (this “Agreement”) is between you (“User” or “You”) and First Advantage Corporation (“FADV”) and governs your access to and use of FADV’s Profile Advantage website (the “Website”), FADV’s Profile Advantage Mobile Application (the “App”), and your access to and use of all software applications, databases and services made available to you and accessible by you through use of the Website or the App (collectively, “Services”). By subscribing to any Service through use of the Website or the App you agree to the terms and conditions of this Agreement.
1. Electronic Signatures.
By using the Service, you agree to transact electronically through the Site. You agree that your electronic signature is the legal equivalent of your manual signature. You further agree that your use of a key pad, mouse or other device to select an item, button, icon or similar act/action, constitutes your signature as if actually signed by you in writing. You also agree that no certification authority or other third party verification is necessary to validate your electronic signature, and the lack of such certification or third party verification will not in any way affect the enforceability of your electronic signature.
2. Communications Consent.
By providing your telephone number and/or email address, you are providing express written consent to receive communications from FADV with respect to your use of the App or Website, including but not limited to SMS, MMS, text, fax, or email regarding the initiation, reminders, or status update of services made available to you. Additionally, you agree to receive marketing communications from FADV on various services, and any information you may have obtained via your use of the FADV.com Website. Note, regardless of whether your phone number is registered on a state or federal Do Not Call list you agree that FADV is not responsible for any charges to you regarding these communications. You may opt out at any time by way of the opt-out mechanism provided to you in the communications (see additional SMS Terms in Section 3 below), or you may indicate that you do not wish to receive future marketing communications by emailing us at email@example.com.
3. SMS Terms
a. You will be able to receive a variety of messages, all pertaining to the process of collecting your information to fulfill the Services. These include initiation messages with links to the App or Website, reminder messages to start the process or complete an application, and other messages to provide missing information or complete administrative tasks where applicable.
b. You may cancel the SMS service at any time. Just text “STOP” to the short code. After you send the SMS message “STOP” to us, we will send you an SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us. If you want to join again, just sign up as you did the first time and we will start sending SMS messages to you again.
c. If you are experiencing issues with the messaging program you can reply with the keyword HELP for more assistance, or you can get help directly at firstname.lastname@example.org or 800-888-5773.
d. Carriers are not liable for delayed or undelivered messages
e. As always, message and data rates may apply for any messages sent to you from us and to us from you. The message frequency will be dependent on where you are in the process of our fulfillment of the Services. If you have any questions about your text plan or data plan, it is best to contact your wireless provider.
4. FADV Account Registration.
In order to access the features of the Website or the App and to subscribe, upload or download any content on the Website, App or through your use of the Services, you must register and create an account (“Account”). In order to register to use a Service and create an Account, you are required to provide certain personal information to FADV and create a User ID and password associated with your Account. You shall not share your User ID or password with any third party. User must be at least 18 years of age in order to register to use a Service and to create an Account. You hereby represent and warrant to FADV that you are at least 18 years of age or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, representations and warranties set forth in this Agreement. FADV reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, fraudulent or incomplete. You are solely responsible for all activity under your Account, whether or not you have authorized such activities or actions. You will immediately notify FADV of any unauthorized use of your Account.
5. FADV Services.
If you are an individual about whom FADV collects information to provide to third parties, you may be offered the ability to subscribe to a service which allows you to control this background information which FADV accumulates (the “Individual Service”), where available. If you are a commercial client of FADV, you may subscribe to a service related to the Individual Service, but should not use the Profile Advantage website. FADV agrees to provide you with each Service to which you subscribe and provide valid payment (if applicable) in accordance with the terms and conditions of this Agreement. FADV shall provide each Service in accordance with the terms of this Agreement and the terms offered in respect of such Service at the time of your subscription. During the Term (as defined below) of your subscription, you shall be entitled to use all enhancements and updates made generally available in respect of such Service, unless such enhancement or update is separately priced as an additional Service. FADV shall use commercially reasonable efforts to (i) maintain the security of each Service; (ii) provide support to User consisting of telephone help desk during normal business hours; and (iii) make each Service generally available to User, except for: (a) planned down-time, for which FADV gives advance notice that a Service will be unavailable; or (b) down-time caused by circumstances beyond FADV’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer or telecommunications failures or delays involving hardware or software not within FADV’s possession or reasonable control, network intrusions or denial of service attacks, but only if such unavailability results notwithstanding the exercise of reasonable care and due diligence to avoid or mitigate the same in anticipation of or in response to such causes.
a. Subject to this Agreement, FADV hereby grants you a non-exclusive, non-transferable license for you in order to use the Services provided through the Website or the App: (i) to access and use the Website or the App; (ii) to access and use content generated through or available on the Website or the App; and (iii) share such content generated through or available on the Website or the App. All rights not explicitly granted in this Agreement are reserved by FADV. You may not use the Website or the App in any manner inconsistent with these Terms.
b. You shall not remove any copyright, patent, trademark or other proprietary or restrictive notice or legend contained on the Website or the App and you shall reproduce all such notices and legends on all permitted copies of documents, reports and other materials downloaded, printed or distributed from the Website or the App.
7. Restrictions on Use.
a. Except as otherwise expressly permitted by these Terms, you may not download, modify, copy, reproduce, republish, post, resell, upload, transmit or distribute any materials or content, or any portion thereof from or linked to the Website or the App, except with the express written consent of FADV or its third party licensors.
b. In addition, you agree not to:
i. Use or access the Website or the App for any purpose that is unlawful or prohibited by these Terms or display, transmit or otherwise make available on or through the Website or the App material that is infringing, threatening, harassing, libelous, hateful, racially or ethnically objectionable, unlawful, tortious, harmful to children, invasive of another’s privacy or violative of third-party rights;
ii. Reverse engineer, decompile, modify, or create derivative works from any software or materials accessible by or on the Website or the App;
iii. Frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of FADV without express written consent;
iv. Make any commercial or non-fair-use of the copyrights, trademarks, logos, symbols, or any other mark, device, or commercial identifier of FADV or any of our third party licensors without the express written consent of FADV;
v. Use or access the Website or the App in a manner that could damage, disable, overburden, or impair any FADV server or the networks connected to any FADV server;
vi. Interfere with any third party’s use and enjoyment of the Website or the App;
vii. Attempt to gain unauthorized access to the Website or the App, accounts, computer systems, or networks connected to any FADV server through hacking, password mining, or any other means;
viii. Sublicense or otherwise transfer any license granted to the Website or the App or materials on the Website or the App; or
ix. Access the Website or the App in order to build a competitive product or service, or copy any features, functions or graphics of the Website or the App.
8. Your Responsibilities.
You shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all content and data you submit to or publish via the Website or the App; (ii) comply with all applicable laws (including but not limited to export laws) in using the Website or the App; and (iii) use the Website or the App solely in accordance with any online user guides or instructions made available on or through the Website or the App. You shall not disclose or share any ID(s) and password(s) used to access this or any related Website. You are responsible for all activity that occurs under your ID(s) and password(s). You agree to monitor strictly your Users’ use of the Website or the App and enforce these Terms in your organization. You agree to promptly notify FADV in writing upon becoming aware of any unauthorized access or use of the Website or the App by any party.
9. Your Instructions and Requests.
a. You may be able to use certain parts of the Website or the App to share with third parties, create, store, or access reports and other materials (“Materials”). You acknowledge and agree that when these Terms terminate, your access to such Materials through the Website or the App may terminate and that following such termination Materials may be archived or deleted from the Website or the App in accordance with our applicable records retention policies. We do not guaranty the availability of Materials or any other content or
material on the Website or the App and you acknowledge and agree that Materials stored on or through the Website or the App may be archived or deleted periodically in accordance our applicable record retention policies. However, we may make available features on the Website or the App to allow you to download certain Materials to your own computers or servers at any time during the term of these Terms.
b. You agree that if you use the Website or the App to give instructions to FADV or to request a service or content, FADV shall not be deemed to have accepted such instructions or to have processed such requests until FADV communicates acceptance to you or your organization.
10. Term and Renewal.
Unless otherwise expressly provided in the terms governing a Service at the time of your subscription to such Service, all Services are provided on an annual subscription term that commences on the date you subscribe to such Service and expires one (1) year thereafter unless earlier terminated in accordance with this Agreement (the “Initial Term”). Upon expiration of the Initial Term and each Renewal Term (as defined below), you may renew the Services for an additional consecutive one-year period (each such subsequent one-year period, a “Renewal Term” and together with the Initial Term, the “Term”) unless FADV elects not to renew a Service for any reason or no reason at all by delivering a notice of non-renewal to you. You also hereby agree that each renewal of a Service shall be subject to FADV’s then-current Terms of Service as in effect and posted on the Website or the App as of the date of such renewal, and such then-current Terms of Service shall be deemed an amendment of this Agreement.
11. Termination by FADV.
FADV may terminate this Agreement at any time, and without any liability, upon 30 days’ notice to you. FADV may immediately terminate this Agreement at any time, and without liability, upon the occurrence of any of the following events (each, a “FADV Termination”): (i) User’s failure to pay any amount due hereunder within ten (10) days after such amount became due; or (ii) User’s material breach or violation of any provision of this Agreement that is not cured within ten (10) days of User’s receipt of notice from FADV referencing such breach or violation.
12. Termination by User.
You may terminate this Agreement with respect to all, and not less than all, of the Services without liability (except for amounts due and owing through the effective date of such termination) upon the occurrence of a material breach by FADV of its obligations to provide the Services according to the terms of this Agreement that is not cured within ten (10) business days after written notice from you describing such breach in detail is received by FADV (a “User Termination”). In the event of a User Termination, you shall pay all outstanding amounts payable through the effective date of such termination. You may also terminate this Agreement for your convenience with respect to all, and not less than all, of the Services, by completing and submitting the online cancellation request (a “Cancellation Notice”) provided for on the Website or the App which shall be effective on the next business day following FADV’s receipt of a properly completed Cancellation Notice. If you terminate this Agreement for your convenience or for any reason other than a User Termination, in addition to paying all outstanding amounts payable through the effective date of such termination, you shall also pay to FADV an amount equal to all unpaid recurring fees for the Services from the effective date of such termination through the end of the Initial Term or then-current Renewal Term, as applicable, which fees shall automatically accelerate and become due and payable upon such termination. USER HEREBY ACKNOWLEDGES AGREES THAT ALL AMOUNTS PAID BY USER ARE NON-REFUNDABLE AND USER WILL NOT BE ENTITLED TO ANY REFUND OR CREDIT OF ANY AMOUNTS PRE-PAID BY USER. CUSTOMER HEREBY WAIVES ALL RIGHTS TO ANY SUCH REFUND OR CREDIT.
13. Third Party Websites.
The Website may contain links and pointers to other Internet sites maintained by third parties (each, a “Third Party Website”). FADV does not operate or control any Third Party Website or any of the information, products or services offered on such Third Party Websites. User assumes sole responsibility for use of any Third Party Websites. All links and pointers to Third Party Websites included on the Website are included solely for the convenience of the User. In no event shall any reference to any Third Party Website or third party product or service be construed as an approval or endorsement by FADV of such third party, such Third Party Website or of any product or service provided by such third party.
14. User Data.
a. User is responsible for all activities that occur under User’s Account. User shall: (i) control whether to share content on the Website or the App with third parties (ii) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all data and information submitted by User (“User Data”); (iii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify FADV promptly of any such unauthorized use; (iv) comply with all applicable local, state, federal, and foreign laws in using each of the Services; and (v) not submit to FADV any speculative, false or fraudulent information or documents or any copyrighted or trademarked material, unless given permission by the copyright or trademark owner for such material. User agrees that the Website, App, and Services will be used by User only for valid business purposes contemplated by the Services.
15. Indemnification by User.
User hereby agrees to indemnify and hold harmless FADV, its subsidiaries, their affiliates and each of their respective directors, officers, employees, shareholders and agents (each an “Indemnified Party”) against any losses, claims, damages, liabilities, penalties, actions, proceedings, judgments, or any and all costs thereof (collectively, “Losses”) to which an Indemnified Party may become subject and which Losses arise out of, or relate to (i) User’s breach of this Agreement, (ii) User’s breach of any applicable law, (iii) User’s breach of any confidentiality obligation, (iv) any inaccurate, fraudulent, deceptive or incomplete information provided by User or (v) any alleged infringement of any trademark, copyright, patent or other intellectual property right arising from any act or omission by User and will reimburse an Indemnified Party for all legal and other expenses, including reasonable attorneys’ fees incurred by such Indemnified Party, in connection with investigating, defending, or settling any Loss, whether or not in connection with pending or threatened litigation in which such Indemnified Party is a party.
16. Ownership of IP.
FADV and its licensors own all right, title and interest to each Service, the Website, the App, all content included therein and all derivatives thereof and intellectual property rights related thereto. FADV shall also have sole ownership of all IP addresses and internet addresses provided by FADV to access a Service, all passwords used to access or use the Service and all modifications, ideas, concepts or recommendations provided by User to FADV. This Agreement does not convey or transfer any ownership rights in any Service, the Website, the App, or any content included therein. The FADV name, logo, and trade names are trademarks of FADV and no right is granted to use them except as granted herein.
17. WARRANTY DISCLAIMER; LIMITATION OF LIABILITY.
A. FADV PROVIDES ALL SERVICES “AS IS” AND HEREBY DISCLAIMS ALL WARRANTIES REGARDING THE SERVICES, THE WEBSITE, THE APP AND THE INFORMATION AND
CONTENT INCLUDED ON THE WEBSITE OR THE APP. ALL WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED, INCLUDING ALL IMPLIED WARRANTIES AND ALL WARRANTIES REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. THE INFORMATION AND CONTENT PUBLISHED BY FADV ON THE WEBSITE OR THE APP MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. UNDER NO CIRCUMSTANCES SHALL FADV BE HELD LIABILE FOR ANY SUCH INACCURACIES OR TYPOGRAPHICAL ERRORS OR IN THE TRANSMISSION OF ANY USER DATA.
B. FADV SHALL NOT BE LIABLE FOR (i) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES UNDER THIS AGREEMENT, OR FOR ANY LOSS OF PROFITS OR LOSS OF REVENUE RESULTING FROM THE USE OF THE SERVICES, THE APP, OR THE WEBSITE BY USER OR ANY THIRD PARTIES OR ANY FAILURE OF THE SERVICES, THE APP, OR THE WEBSITE OR (ii) ANY LOSS OF DATA OR CORRUPTION OF DATA, INCLUDING LOSS OF DATA RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES, SERVICE INTERRUPTIONS OR A FAILURE OF FADV’S NETWORK, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF FADV HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
C. FADV’S TOTAL MAXIMUM AGGREGATE LIABILITY TO USER AND ALL THIRD PARTIES UNDER THIS AGREEMENT AND IN RESPECT OF ALL SERVICES SHALL NOT EXCEED THE GREATER OF (I) THE AMOUNT PAID BY USER DURING THE ONE-YEAR PERIOD PRECEEDING THE DATE UPON WHICH SUCH LIABILITY ACCRUED OR (II) FIVE HUNDRED DOLLARS ($500).
D. ANY CLAIM ARISING OUT OF OR RELATED TO USE OF THE SERVICES, THE APP, OR THE WEBSITE OR THIS AGREEMENT MUST BE FILED BY USER WITHIN ONE (1) YEAR OF THE EVENT THAT UNDERLIES ANY SUCH CLAIM OR BE BARRED FOREVER.
A. THIS AGREEMENT AND ANY DISPUTE ARISING FROM THE PERFORMANCE OR BREACH HEREOF SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA, WITHOUT REFERENCE TO CONFLICTS OF LAWS PRINCIPLES AND EXCLUDING ANY APPLICATION OF THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. USER (I) HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF GEORGIA LOCATED IN ATLANTA, AND THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY BROUGHT BY USER OR FADV OR THEIR RESPECTIVE SUCCESSORS OR ASSIGNS, (II) HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH SUITS, ACTIONS OR PROCEEDINGS MAY BE HEARD AND DETERMINED IN SUCH STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY LAW, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, AND (III) TO THE EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR PROCEEDING ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THE ABOVE-NAMED COURTS, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER OR THAT THIS AGREEMENT OR THE SUBJECT MATTER HEREOF MAY NOT BE ENFORCED IN
OR BY SUCH COURT. A FINAL JUDGMENT OBTAINED IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING REFERRED TO IN THIS SECTION SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT OR JUDGMENT OR IN ANY MANNER AS PROVIDED BY APPLICABLE LAW.
b. Sections 11, 13, 15, 16, and 17 of this Agreement and all of User’s payment obligations under this Agreement shall survive the expiration, cancellation and termination of this Agreement for any reason.
c. User may not assign or transfer any portion of this Agreement without FADV’s prior written consent. FADV may assign this Agreement in whole or in part. This Agreement shall be binding upon and accrue to the benefit of any permitted assignee, and any such assignee shall agree to perform the obligations of the assignor.
d. There shall be no third party beneficiaries to this Agreement.
e. This Agreement constitutes the entire agreement between User and FADV and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the User and FADV.
f. All notices, requests and other communications hereunder shall be sufficiently given if in writing and delivered personally or sent by facsimile transmission or registered or certified mail or in the case of any notice sent by FADV, via email to the address or facsimile number of User listed in User’s Account. Such notices or other communications shall be deemed to have been given (1) on the date delivered (if delivered personally), (2) on the date that return confirmation is received (if sent by facsimile or email), or (3) five days after being sent (if sent by registered or certified mail).
g. Any rights not expressly granted by FADV herein are hereby expressly reserved to FADV.