1. Use of Software
Unless otherwise stated in Subscription Terms (or in the absence of Subscription Terms), the Software may not be modified or altered in any way; and the Software may not be redistributed.
2. Use of Materials
You may download, store, display on your computer, view, listen to, play and print Materials that CoLife publishes or broadcasts or makes available for download subject to the following: (a) the Materials may not be modified or altered in any way; and (b) the Materials may not be redistributed.
3. Use of Community Services
Community Services are provided as a convenience and CoLife is not obligated to provide any technical support for, or participate in, Community Services. While Community Services may include information regarding CoLife products and services, including information from CoLife employees, they are not an official customer support channel for CoLife.
You may use Community Services subject to the following: (a) Community Services may be used solely for your personal, noncommercial purposes; (b) Content provided on or through Community Services may not be redistributed; and (c) personal data about others may not be stored or collected except where expressly authorized by CoLife.
4. Reservation of Rights
The Site and Content are the intellectual property and copyrighted works of CoLife or a third party provider. All rights, title and interest not expressly granted with respect to the Site and Content provided on or through the Site are reserved. All Content is provided on an "As Is" and "As Available" basis, and CoLife reserves the right to terminate the permissions granted to you and your use of the Content at any time.
5. Your Materials
6. Use of the Site and Content
You agree that you will not use the Site, Software, Community Services nor other Content in a manner, nor Share any material, that: (a) is false or misleading; (b) is defamatory, derogatory, degrading or harassing of another or constitutes a personal attack; (c) invades another's privacy or includes, copies or transmits another's confidential, sensitive or personal information; (d) promotes bigotry, racism, hatred or harm against any group or individual; (e) is obscene or not in good taste; (f) violates or infringes or promotes the violation or infringement of anyone's rights, including intellectual property rights; (g) violates or promotes the violation of any applicable laws or regulations; or (h) contains any viruses, Trojan horses, or other components designed to limit or harm the functionality of a computer. CoLife may report you to the relevant authorities and may act under the fullest extent of applicable laws if you transmit or upload content intended or designed to cause harm.
You acknowledge that the actual damages likely to result from breach of subsection (q) above are difficult to estimate and would be difficult for CoLife to prove. The parties intend that a payment of $1,000 from You to CoLife would serve to compensate CoLife for any breach of Your obligations under subsection (q), and the parties do not intend for the payment to serve as punishment for any such breach.
7. No Unlawful or Prohibited Use
You agree not to use the Site or Content or Share any materials for any purpose that is unlawful or prohibited by this Agreement.
You agree to indemnify and hold harmless CoLife, its officers, directors, employees and agents from and against any and all claims, liabilities, damages, losses or expenses, including reasonable attorneys' fees and costs, due to or arising out of materials that you Share, your violation of this Agreement, or your violation or infringement of any third party rights, including intellectual property rights.
9. Monitoring, Background Checks
CoLife has no obligation to monitor material that is Shared. However, CoLife reserves the right to review and monitor all use and activity and, in its sole discretion, to remove or choose not to make available any Shared material for any reason.
CoLife is not obligated to conduct criminal background or identity verification checks on its users. Even if CoLife implements criminal background or identity verification checks, You understand that such tools are not a guarantee of safety.
COLIFE MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT, IDENTITY, INTENTIONS, LEGITIMACY, OR VERACITY OF USERS. THERE IS A RISK THAT OTHER USERS MAY ENGAGE IN FRAUD, ABUSE, HARASSMENT, OR OTHER SUCH IMPROPER BEHAVIOR.
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS. ALWAYS USE YOUR BEST JUDGMENT AND TAKE APPROPRIATE SAFETY PRECAUTIONS WHEN COMMUNICATING WITH OR MEETING NEW PEOPLE.
Although CoLife strives to encourage a respectful user experience, it is not responsible for the conduct of any user. You agree to use caution in all interactions with other users, particularly if You decide to communicate outside of the Site or meet in person.
ALL USERS OF CONSUMER REPORTS MUST COMPLY WITH ALL APPLICABLE REGULATIONS. If You take any adverse action against someone on the basis of a consumer report, it is a violation of this Agreement for You to fail to notify that person of (a) the name, address, and telephone number of the CRA (including a toll-free telephone number, if it is a nationwide CRA) that provided the report, (b) a statement that the CRA did not make the adverse decision and is not able to explain why the decision was made, (c) a statement setting forth the person’s right to obtain a free disclosure of the person’s file from the CRA if the person makes a request within 60 days, and (d) a statement setting forth the person’s right to dispute directly with the CRA the accuracy or completeness of any information provided by the CRA. Although CoLife may assist you in the preparation of an adverse action notification, You are ultimately responsible for making such notice and CoLife disclaims all responsibility for the sufficiency of such notice or compliance with any laws.
10. Host and Guest Obligations
Both hosts and guests who make rental transaction through the Site will maintain sufficient insurance for the duration of the lease or sub-lease. Hosts will either carry landlord insurance or notify their property insurance carrier that a portion of host’s property will be used as a rental. Guests will carry tenant insurance.
Any portion of the Subscription Terms that only apply to the relationship between hosts and guests may be amended, in writing (email is sufficient if acknowledged by the receiving party), by mutual agreement between hosts and guests without CoLife’s approval. For example, if the host and guest originally agreed in the Subscription Terms to a no-pet policy, they may later agree to allow a pet.
If You are a host, You may not use CoLife if You do not satisfy one of the exemptions of 42 USC 3606(b). Failure to satisfy an exemption is a violation of this Agreement. Specifically, (a) You must maintain and occupy the property as your residence, and (b) the property must not contain living quarters occupied (or intended to be occupied) by more than four families living independently of each other. Furthermore, if your state has fair housing regulations more restrictive than the federal Fair Housing Act, then you agree to also follow such regulations when using the Site.
11. Third Party Web Sites, Content, Products and Services
The Site and Content provides links to third party web sites, output from third party APIs, and access to third party products and services (collectively, “third party content”). Third parties may include users, advertisers, affiliates and sponsors. CoLife is not responsible for third party content or for any changes or updates to such third party content, and you bear all risks associated with the access to, and use of, such third party content.
EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE, THE SITE AND CONTENT, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. COLIFE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COLIFE MAKES NO WARRANTY THAT: (A) THE SITE OR CONTENT WILL MEET YOUR REQUIREMENTS; (B) THE SITE OR CONTENT WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR CONTENT WILL BE ACCURATE OR RELIABLE; OR (D) THE QUALITY OF ANY CONTENT PURCHASED OR OBTAINED BY YOU WILL MEET YOUR EXPECTATIONS.
ANY CONTENT ACCESSED, DOWNLOADED OR OTHERWISE OBTAINED BY YOU IS USED AT YOUR OWN DISCRETION AND RISK. COLIFE SHALL HAVE NO RESPONSIBILITY FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF CONTENT.
COLIFE RESERVES THE RIGHT TO MAKE CHANGES OR UPDATES TO, AND MONITOR THE USE OF, THE SITE AND CONTENT AT ANY TIME WITHOUT NOTICE.
13. Limitation of Liability
IN NO EVENT SHALL COLIFE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING FROM YOUR ACCESS TO, OR USE OF, THE SITE OR CONTENT.
14. Exclusions and Limitations
16. Persons Not of Age of Majority
Persons who are not of the age of majority are not eligible to use the Site or Content, and we ask that no information in relation to such persons be submitted to us.
17. Export Restrictions/Legal Compliance
You may not access, download, use or export the Site or the Content in violation of U.S. export laws or regulations, or in violation of any other applicable laws or regulations. You agree to comply with all export laws, restrictions and regulations of any United States or applicable agency or authority, and to not directly or indirectly provide or otherwise make available any services and products of CoLife in violation of any such restrictions, laws or regulations. As applicable, you shall obtain and bear all expenses related to any necessary licenses, authorizations, and/or exemptions with respect to your own use of the services of CoLife outside the U.S.
18. Availability of Products
Information on the Site or Content may reference or cross-reference CoLife products, programs, or services that might not be available in your location. Such references do not imply that CoLife plans to make such products, programs, or services available in your location.
You may not use Content to promote content or activity that is: illegal, fraudulent, false, deceptive, misleading, libelous, defamatory, threatening, extremist, racist, anti-social, malicious or age-inappropriate.
19. Waiver and Severability
The failure of CoLife to exercise or enforce any rights or provisions in this Agreement shall not constitute a waiver of such right or provision. If any part or provision of this Agreement is found to be unenforceable, such part or provision may be modified to make the Agreement, as modified, legal and enforceable. The balance of the Agreement shall not be affected.
20. Applicable Laws
The laws of the state of South Carolina govern this Agreement and all matters relating to your access to, and use of, the Site and Content (without giving effect to its conflicts of law principles). Both parties consent to the personal jurisdiction of the state and federal courts in South Carolina. If either party employs attorneys to enforce any rights arising out of or relating to this agreement, the losing party shall reimburse the prevailing party for its reasonable attorneys’ fees; provided that if the losing party proffered an offer of judgment made pursuant to the controlling rules of civil procedure which the prevailing party did not accept, and the prevailing party’s final judgment is not more favorable than the unaccepted offer, than for the time period between the date such offer was made and the judgment the prevailing party shall not be reimbursed for attorneys’ fees and the prevailing party shall reimburse the losing party for its reasonable attorneys’ fees.
21. Copyright Notice for all Content
Copyright © 2019 Co-Life LLC and/or its affiliates. All rights reserved.
Unauthorized copying, distribution, modification, public display, or public performance of copyrighted works may be an infringement of the rights of the copyright owner. You agree that you will not use the Site or any Content to infringe CoLife's intellectual property rights or the intellectual property rights of others. You may not remove, deface, or overprint any notice of copyright, trademark, logo, or other notice of ownership from any originals or copies of CoLife Software, third party software, or any products or Content.
22. Trademark Usage
You may generally use CoLife trademarks to refer to the associated CoLife products or services. For instance, a CoLife Affiliate may issue a press release stating that it is offering services (e.g., flower delivery) through the CoLife™ dating application.
CoLife Affiliates may indicate the relationship of their products or services to CoLife products or services by using accurate, descriptive tag lines in connection with your product or service name. Within text or body copy, such tag lines may appear in the same type as your product or service name. On product, packaging, advertising and other collateral where your product or service name is displayed apart from body copy, make sure that the tag line appears in significantly smaller type than your name. You should also distinguish the tag line from your mark by using a different font or color.
You may not use CoLife trademarks in a manner that could cause confusion as to CoLife sponsorship, affiliation or endorsement.
Proper use of CoLife trademarks reinforces their role as brands for our products and services, and helps prevent them from becoming generic names that can be used by anyone. Examples of former trademarks that became generic terms are "aspirin," "cellophane," and "escalator." By adhering to the following rules, you help protect CoLife's investment in its trademarks.
Use a generic term in association with each CoLife trademark the first time the mark appears in text, and as often as possible after that. You need not include generic names in headlines, package titles and documentation titles.
Except when referring to CoLife as a trade name (see below), CoLife trademarks are adjectives and should not be used as nouns, or in the possessive or plural form.
Do not vary CoLife trademarks by changing their spelling or abbreviating them.
Proper trademark attribution helps makes the public aware of our trademarks, and helps prevent them from becoming generic terms. Accordingly, CoLife would appreciate you attributing ownership of CoLife trademarks to CoLife and using trademark symbols (™ or SM or ®).
Trade names are the actual business names of companies. Trademarks and trade names are not the same, even though many companies use their trade names as trademarks. If you are using “CoLife” as a substitute for Co-Life LLC. you are using it as a trade name. Because they are nouns, trade names can be used in the possessive and do not require a generic term or a trademark symbol. Thus, you should not use a trademark symbol after "CoLife" when it appears as part of the full corporate name or as a trade name.
You agree to not engage in any activities or commit any acts, directly or indirectly, that may contest, dispute, or otherwise impair CoLife’s right, title, and interest therein, nor shall you cause diminishment of value of the trademarks through any act or representation. You will not apply for, acquire, or claim any right, title, or interest in or to any trademarks that is confusingly similar to any CoLife trademark, through advertising or otherwise. All goodwill resulting from any use of CoLife’s intellectual property will inure solely to the benefit of CoLife. You shall not at any time do, fail to do, or permit any act to be done which may in any way impair the rights of CoLife in any of its intellectual property.
You may not assign or transfer any of its rights or obligations under this Agreement (including in connection with an acquisition, change in control, or to an affiliated party) either in whole or in part without the prior written consent of CoLife. Any attempted assignment or delegation without such consent will be void. CoLife shall have the unencumbered right to assign this Agreement, in whole or in part, to any third party. Subject to the foregoing, the terms and conditions of this Agreement shall bind and inure to the parties’ successors and assigns.
24. CoLife Affiliate
Affiliate represents and warrants in favor of CoLife that: (a) it has the full corporate right and authority to perform the acts and obligations required of it under this Agreement, including execute and deliver the Subscription Terms, if applicable; (b) its performance under this Agreement shall not violate any agreement to which it is a party or by which it is bound; (c) this Agreement constitutes the legal, valid and binding obligation of such party, enforceable against it in accordance with its terms; and (d) if it knows or should know of any claims it has against CoLife, its officers, directors, employees or agents, it has disclosed those claims in writing prior to executing the Affiliate Agreement or it waives such claims.
25. Confidential Information
CoLife may identify CoLife Affiliates in its marketing efforts.
The breach of this Section will cause irreparable harm to the other party and monetary damages may not be a sufficient remedy for an unauthorized disclosure of the Confidential Information. If the breaching party discloses the Confidential Information in violation of this agreement, the other party may, without waiving any other rights or remedies and without posting a bond or other security, seek an injunction, specific performance, or other equitable remedy to prevent competition or further disclosure, and may pursue other legal remedies.
26. Reports; Fees; Payment Terms; Termination.
Invoiced charges are due immediately and reoccurring charges will be due prior to the start of a new billing period. If applicable, credit cards will be charged prior to the start of any billing period. Unless a term is specified in Subscription Terms, you may cancel at any time. You will not be refunded any amount (pro-rated or otherwise) for the remainder of the unused billing period after cancellation.
You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information. Any amount not paid when due will be subject to finance charges equal to 1.5% percent of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less. You will reimburse any costs or expenses, including without limitation, reasonable attorneys’ fees, incurred by CoLife to collect any amount not paid when due. Further, we may, without limiting our other rights and remedies, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable.
Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible we will invoice you and you will pay that amount. For clarity, we are solely responsible for taxes assessable against us based on our income, property and employees.
You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.
If applicable, You agree that, CoLife has earned its full fee upon consummation of a rental arrangement between a host and a guest, and CoLife disclaims all responsibility if either a host or guest subsequently breaches the rental arrangement and such breach will not release You from fee obligations to CoLife.
You agree that CoLife may, in its sole discretion, at any time, terminate or limit your access to, or use of, the Site or any Content. You agree that CoLife shall not be liable to you or any third-party for any termination or limitation of your access to, or use of, the Site or any Content, including materials that you may have Shared. Such termination of access is independent of the termination of this Agreement.
Either You or CoLife may terminate this Agreement upon written notice if any of the following events occur: (a) a breach of Section 25, (b) the other party fails to fails to cure a material breach of this Agreement (other than a breach of Section 25) within ten (10) days after receipt of written notice of such breach and opportunity to cure, (c) either party becomes the subject of a proceeding under bankruptcy, receivership, insolvency, or similar law, which is not dismissed within thirty days after being instituted, (d) this Agreement, or the actions of either party, is in violation of any law, other than a technical violation that is curable and cured within ten (10) days after receipt of written notice of such violation from the non-violating party. Termination of Subscription Terms or this Agreement will not release You from fee obligations.
If an Affiliate Agreement requires that CoLife produce a transaction report, such report shall be deemed conclusive for all purposes.
27. Applicability of Revisions
28. Notice To Users Of Consumer Reports: Obligations Of Users Under The FCRA
The Fair Credit Reporting Act (FCRA), 15 U.S.C. §1681-1681y, requires that this notice be provided to inform users of consumer reports of their legal obligations. State law may impose additional requirements. The text of the FCRA is set forth in full at the Consumer Financial Protection Bureau’s (CFPB) website at www.consumerfinance.gov/learnmore. At the end of this document is a list of United States Code citations for the FCRA. Other information about user duties is also available at the Bureau’s website. Users must consult the relevant provisions of the FCRA for details about their obligations under the FCRA.
The first section of this summary sets forth the responsibilities imposed by the FCRA on all users of consumer reports. The subsequent sections discuss the duties of users of reports that contain specific types of information, or that are used for certain purposes, and the legal consequences of violations. If you are a furnisher of information to a consumer reporting agency (CRA), you have additional obligations and will receive a separate notice from the CRA describing your duties as a furnisher.
I. Obligations of All Users of Consumer Reports
A. Users Must Have a Permissible Purpose
Congress has limited the use of consumer reports to protect consumers’ privacy. All users must have a permissible purpose under the FCRA to obtain a consumer report. Section 604 contains a list of the permissible purposes under the law. These are:
• As ordered by a court or federal grand jury subpoena. Section 604(a)(1)
• As instructed by the consumer in writing. Section 604(a)(2)
• For the extension of credit as a result of an application from a consumer, or the review or collection of a consumer’s account. Section 604(a)(3)(A)
• For employment purposes, including hiring and promotion decisions, where the consumer has given written permission. Section 604(a)(3)(B) and 604(b)
• For the underwriting of insurance as a result of an application from a consumer. Section 604(a)(3)(C)
• When there is a legitimate business need, in connection with a business transaction that is initiated by the consumer. Section 604(a)(3)(F)(i)
• To review a consumer’s account to determine whether the consumer continues to meet the terms of the account. Section 604(a)(3)(F)(ii)
• To determine a consumer’s eligibility for a license or other benefit granted by a governmental instrumentality required by law to consider an applicant’s financial responsibility or status. Section 604(a)(3)(D)
• For use by a potential investor or servicer, or current insurer, in a valuation or assessment of the credit or prepayment risks associated with an existing credit obligation. Section 604(a)(3)(E)
• For use by state or local officials in connection with the determination of child support payments, or modifications and enforcement thereof. Sections 604(a)(4) and 604(a)(5).
In addition, creditors and insurers may obtain certain consumer report information for the purpose of making "prescreened" unsolicited offers of credit or insurance. Section 604(c). The particular obligations of users of "prescreened" information are described in Section VII below.
B. Users Must Provide Certifications
Section 604(f) prohibits any person from obtaining a consumer report from a consumer reporting agency (CRA) unless the person has certified to the CRA the permissible purpose(s) for which the report is being obtained and certifies that the report will not be used for any other purpose.
C. Users Must Notify Consumers When Adverse Actions Are Taken
The term “adverse action” is defined very broadly by Section 603. “Adverse actions” include all business, credit, and employment actions affecting consumers that can be considered to have a negative impact as defined by Section 603(k) of the FCRA – such as denying or canceling credit or insurance, or denying employment or promotion. No adverse action occurs in a credit transaction where the creditor makes a counteroffer that is accepted by the consumer.
1. Adverse Actions Based on Information Obtained From a CRA
If a user takes any type of adverse action as defined by the FCRA that is based at least in part on information contained in a consumer report, Section 615(a) requires the user to notify the consumer. The notification may be done in writing, orally, or by electronic means. It must include the following:
• The name, address, and telephone number of the CRA (including a toll-free telephone number, if it is a nationwide CRA) that provided the report.
• A statement that the CRA did not make the adverse decision and is not able to explain why the decision was made.
• A statement setting forth the consumer’s right to obtain a free disclosure of the consumer’s file from the CRA if the consumer makes a request within 60 days.
• A statement setting forth the consumer’s right to dispute directly with the CRA the accuracy or completeness of any information provided by the CRA.
2. Adverse Actions Based on Information Obtained from Third Parties Who Are Not Consumer Reporting Agencies
If a person denies (or increases the charge for) credit for personal, family, or household purposes based either wholly or partly upon information from a person other than a CRA, and the information is the type of consumer information covered by the FCRA, Section 615(b)(1) requires that the user clearly and accurately disclose to the consumer his or her right to be told the nature of the information that was relied upon if the consumer makes a written request within 60 days of notification. The user must provide the disclosure within a reasonable period of time following the consumer's written request.
3. Adverse Actions Based on Information Obtained From Affiliates
If a person takes an adverse action involving insurance, employment, or a credit transaction initiated by the consumer, based on information of the type covered by the FCRA, and this information was obtained from an entity affiliated with the user of the information by common ownership or control, Section 615(b)(2) requires the user to notify the consumer of the adverse action. The notice must inform the consumer that he or she may obtain a disclosure of the nature of the information relied upon by making a written request within 60 days of receiving the adverse action notice. If the consumer makes such a request, the user must disclose the nature of the information not later than 30 days after receiving the request. If consumer report information is shared among affiliates and then used for an adverse action, the user must make an adverse action disclosure set forth in I.C.1 above.
D. Users Have Obligations When Fraud and Active Duty Military Alerts are in Files
When a consumer has placed a fraud alert, including one relating to identity theft, or an active duty military alert with a nationwide consumer reporting agency as defined in Section 603(p) and resellers, Section 605A(h) imposes limitations on users of reports obtained from the consumer reporting agency in certain circumstances, including the establishment of a new credit plan and the issuance of additional credit cards. For initial fraud alerts and active duty alerts, the user must have reasonable policies and procedures in place to form a belief that the user knows the identity of the applicant or contact the consumer at a telephone number specified by the consumer; in the case of extended fraud alerts, the user must contact the consumer in accordance with the contact information provided in the consumer's alert.
E. Users Have Obligations When Notified of an Address Discrepancy
Section 605(h) requires nationwide CRAs, as defined in Section 603(p), to notify users that request reports when the address for a consumer provided by the user in requesting the report is substantially different from the addresses in the consumer's file. When this occurs, users must comply with regulations specifying the procedures to be followed. Federal regulations are available at www.consumerfinance.gov/learnmore.
F. Users Have Obligations When Disposing of Records
Section 628 requires that all users of consumer report information have in place procedures to properly dispose of records containing this information. Federal regulations have been issued that cover disposal.
II. Creditors Must Make Additional Disclosures
If a person uses a consumer report in connection with an application for, or a grant, extension, or provision of, credit to a consumer on material terms that are materially less favorable than the most favorable terms available to a substantial proportion of consumers from or through that person, based in whole or in part on a consumer report, the person must provide a risk-based pricing notice to the consumer in accordance with regulations prescribed by the Consumer Financial Protection Bureau.
Section 609(g) requires a disclosure by all persons that make or arrange loans secured by residential real property (one to four units) and that use credit scores. These persons must provide credit scores and other information about credit scores to applicants, including the disclosure set forth in Section 609(g)(1)(D) ("Notice to the Home Loan Applicant").
III. Obligations Of Users When Consumer Reports Are Obtained For Employment Purposes
A. Employment Other Than in the Trucking Industry
If information from a CRA is used for employment purposes, the user has specific duties, which are set forth in Section 604(b) of the FCRA. The user must:
• Make a clear and conspicuous written disclosure to the consumer before the report is obtained, in a document that consists solely of the disclosure, that a consumer report may be obtained.
• Obtain from the consumer prior written authorization. Authorization to access reports during the term of employment may be obtained at the time of employment.
• Certify to the CRA that the above steps have been followed, that the information being obtained will not be used in violation of any federal or state equal opportunity law or regulation, and that, if any adverse action is to be taken based on the consumer report, a copy of the report and a summary of the consumer’s rights will be provided to the consumer.
• Before taking an adverse action, the user must provide a copy of the report to the consumer as well as the summary of the consumer’s rights. (The user should receive this summary from the CRA). A Section 615(a) adverse action notice should be sent after the adverse action is taken.
An adverse action notice also is required in employment situations if credit information (other than transactions and experience data) obtained from an affiliate is used to deny employment. Section 615(b)(2).
The procedures for investigative consumer reports and employee misconduct investigations are set forth below.
B. Employment in the Trucking Industry
Special rules apply for truck drivers where the only interaction between the consumer and the potential employer is by mail, telephone, or computer. In this case, the consumer may provide consent orally or electronically, and an adverse action may be made orally, in writing, or electronically. The consumer may obtain a copy of any report relied upon by the trucking company by contacting the company.
IV. Obligations When Investigative Consumer Reports Are Used
Investigative consumer reports are a special type of consumer report in which information about a consumer’s character, general reputation, personal characteristics, and mode of living is obtained through personal interviews by an entity or person that is a consumer reporting agency. Consumers who are the subject of such reports are given special rights under the FCRA. If a user intends to obtain an investigative consumer report, Section 606 requires the following:
• The user must disclose to the consumer that an investigative consumer report may be obtained. This must be done in a written disclosure that is mailed, or otherwise delivered, to the consumer at some time before or not later than three days after the date on which the report was first requested. The disclosure must include a statement informing the consumer of his or her right to request additional disclosures of the nature and scope of the investigation as described below, and the summary of consumer rights required by Section 609 of the FCRA. (The summary of consumer rights will be provided by the CRA that conducts the investigation.)
• The user must certify to the CRA that the disclosures set forth above have been made and that the user will make the disclosure below.
• Upon written request of a consumer made within a reasonable period of time after the disclosures required above, the user must make a complete disclosure of the nature and scope of the investigation. This must be made in a written statement that is mailed, or otherwise delivered, to the consumer no later than five days after the date on which the request was received from the consumer or the report was first requested, whichever is later in time.
V. Special Procedures for Employee Investigations
Section 603(x) provides special procedures for investigations of suspected misconduct by an employee or for compliance with Federal, state or local laws and regulations or the rules of a self-regulatory organization, and compliance with written policies of the employer. These investigations are not treated as consumer reports so long as the employer or its agent complies with the procedures set forth in Section 603(x), and a summary describing the nature and scope of the inquiry is made to the employee if an adverse action is taken based on the investigation.
VI. Obligations Of Users Of Medical Information
Section 604(g) limits the use of medical information obtained from consumer reporting agencies (other than payment information that appears in a coded form that does not identify the medical provider). If the information is to be used for an insurance transaction, the consumer must give consent to the user of the report or the information must be coded. If the report is to be used for employment purposes - or in connection with a credit transaction (except as provided in federal regulations) - the consumer must provide specific written consent and the medical information must be relevant. Any user who receives medical information shall not disclose the information to any other person (except where necessary to carry out the purpose for which the information was disclosed, or as permitted by statute, regulation, or order).
VII. Obligations Of Users Of “Prescreened” Lists
The FCRA permits creditors and insurers to obtain limited consumer report information for use in connection with unsolicited offers of credit or insurance under certain circumstances. Section 603(l), 604(c), 604(e), and 615(d). This practice is known as “prescreening” and typically involves obtaining from a CRA a list of consumers who meet certain pre-established criteria. If any person intends to use prescreened lists, that person must (1) before the offer is made, establish the criteria that will be relied upon to make the offer and to grant credit or insurance, and (2) maintain such criteria on file for a three-year period beginning on the date on which the offer is made to each consumer. In addition, any user must provide with each written solicitation a clear and conspicuous statement that:
• Information contained in a consumer’s CRA file was used in connection with the transaction.
• The consumer received the offer because he or she satisfied the criteria for credit worthiness or insurability used to screen for the offer.
• Credit or insurance may not be extended if, after the consumer responds, it is determined that the consumer does not meet the criteria used for screening or any applicable criteria bearing on credit worthiness or insurability, or the consumer does not furnish required collateral.
• The consumer may prohibit the use of information in his or her file in connection with future prescreened offers of credit or insurance by contacting the notification system established by the CRA that provided the report. This statement must include the address and the toll-free telephone number of the appropriate notification system.
In addition, once the CFPB has established the format, type size, and manner of the disclosure required by Section 615(d), with which users must comply. The relevant regulation is 12 CFR 1022.54.
VIII. Obligations of Resellers
A. Disclosure and Certification Requirements
Section 607(e) requires any person who obtains a consumer report for resale to take the following steps:
• Disclose the identity of the end-user to the source CRA.
• Identify to the source CRA each permissible purpose for which the report will be furnished to the end-user.
• Establish and follow reasonable procedures to ensure that reports are resold only for permissible purposes, including procedures to obtain:
1) the identity of all end-users;
2) certifications from all users of each purposes for which reports will be used; and
3) certifications that reports will not be used for any purpose other than the purpose(s) specified to the reseller. Resellers must make reasonable efforts to verify this information before selling the report.
B. Reinvestigations by Resellers
Under Section 611(f), if a consumer disputes the accuracy or completeness of information in a report prepared by a reseller, the reseller must determine whether this is a result of an action or omission on its part and, if so, correct or delete the information. If not, the reseller must send the dispute to the source CRA for reinvestigation. When any CRA notifies the reseller of the results of an investigation, the reseller must immediately convey the information to the consumer.
C. Fraud Alerts and Resellers
Section 605A(f) requires resellers who receive fraud alerts or active duty alerts from another consumer reporting agency to include these in their reports.
IX. Liability For Violations Of The FCRA
Failure to comply with the FCRA can result in state government or federal government enforcement actions, as well as private lawsuits. Sections 616, 617, and 621. In addition, any person who knowingly and willfully obtains a consumer report under false pretenses may face criminal prosecution. Section 619.
The CFPB’s website, www.consumerfinance.gov/learnmore , has more information about the FCRA, including publications for businesses and the full text of the FCRA.
Last Revised: June 3, 2019