This Agreement executed between Tenstreet, LLC ("Tenstreet") and "Client" (identified below). This Agreement is entered into on September 18, 2018.
This Agreement is for users who have not executed a Master Service Agreement with Tenstreet. This Agreement is for those employers who are not Tenstreet customers and only need employment information that is stored with Tenstreet.
THE OBTAINING OF INFORMATION CONTRARY TO THE FOLLOWING CONDITIONS MAY CONSTITUTE A CRIMINAL OFFENSE SUBJECTING YOU TO CRIMINAL PENALTIES AS WELL AS TO CIVIL LIABILTY, FURTHER, IF WE DISCOVERY ANY MISUSE OF INFORMATION BY YOU, YOUR ACCESS IN THE FUTURE WILL BE DENIED.
Tenstreet maintains an online compliance tool for motor carriers to comply with Federal Motor Carrier Safety Administration requirements for verification of prior employment for driver applicants. Tenstreet personnel will provide guidance in the operation of this service and are available to Client for assistance from 8:00 a.m to 5:00 p.m. CTZ.
Client can retrieve for legally permissible purposes employment history information on drivers whose information is stored by our clients. Your access to the Tenstreet system is subject to the terms and conditions of this Addendum and the Tenstreet Master Service Agreement ("Agreement") between Tenstreet Solutions, Inc. ("Tenstreet"), and the Client that executes this Agreement by electronically accepting below ("Client"). This Agreement is effective as of the date reflected on Client's electronic acceptance ("Effective Date"). The employment history information contained in the Tenstreet system is protected by federal and state law and Client shall only retrieve and use such information as set forth in this Agreement.
TERMS AND CONDITIONS
1. Identity of Client. Tenstreet will confirm Client's identity and determine whether Client has a legitimate reason to request Tenstreet consumer information from Tenstreet ("Reports"). If Client's business purpose or ownership changes, Client shall promptly notify Tenstreet in writing at the following address: Tenstreet LLC, 120 w. 3RD Street, Tulsa, Oklahoma 74103. Tenstreet will then determine Client's right to continue receiving Reports from Tenstreet.
2. Permissible Purposes. Client shall only obtain Reports pursuant to this Agreement for the following permissible purpose(s):
a) Employment by hire or contract
3. Representations and Covenants by Client: Client agrees and represents to Tenstreet the following as a condition to obtaining Reports pursuant to this Agreement:
3.1 Client represents that it is an existing business with a legitimate need for obtaining Reports from Tenstreet.
3.2 Client represents and warrants that all Reports obtained by Client from Tenstreet pursuant to this Agreement will be for the exclusive use of Client, and Client shall neither transfer nor resell any Reports to a third party except as otherwise required by law or permitted by this Agreement.
3.3 Client represents that prior to requesting a Report for employment purposes Client shall:
a) Disclose to the subject of the Report that a consumer report may be obtained;
b) Except as otherwise permitted by law, either:
• Obtain the written consent of the individual allowing Client to obtain the consumer report; or
• In the case of an individual, over whom the United States Secretary of Transportation has the power to establish qualifications and maximum hours of services and who applies for employment by mail, telephone, computer or other similar means, but not in person, Client shall obtain the consent from such individual by oral, written or electronic means;
c) The submission of an order for a report shall be an additional certification that Client has received the authorization to obtain the requested report(s).
d) Provide the individual a summary of the individual's rights under the Fair Credit Reporting Act ('FCRA') and FMCSA if applicable.
e) Not utilize any Report information in violation of any federal or state equal employment opportunity law or regulation.
f) Comply with the FCRA and similar state laws, in regard to all reports, it will follow the requirements of the ("DPPA") and the various state laws implementing the DPPA in regard to motor vehicle reports.
3.4 In using a Report for employment purposes, prior to taking adverse employment action against the subject of the Report, when such action will be based in whole or in part upon the information contained in the Report furnished by Tenstreet by providing a copy of the Report to the individual and a description, in writing, of the individual's rights under the FCRA and FMCSA, if applicable. (Access to a copy of these notices are available at https://resources.tenstreet.com/pdf/fcra_summary_of_rights.pdf and https://resources.tenstreet.com/pdf/fmcsa_notification_of_driver_rights.pdf). If subsequent adverse action is taken, Client shall also follow the requirements set forth in paragraph 3.5 of this Agreement.
3.5 After taking adverse action based in whole or in part upon information contained in a Report furnished by Tenstreet, Client shall:
a) Provide notice of such action to the subject of the Report;
b) Provide the name, address and telephone number of Tenstreet;
c) Inform the subject of the Report that he/she is entitled to a free copy of the Report and has a right to dispute the record through Tenstreet and that Tenstreet is unable to provide the specific reasons why the adverse action was taken by Client.
A copy of this notice is available at https://resources.tenstreet.com/pdf/fcra_summary_of_rights.pdf.
3.6 If Client is a motor carrier subject to the regulations of the Federal Motor Carrier Safety Administration ("FMCSA") and Client is requesting information to hire a driver, Client represents that Client has provided the following to the subject of the requested Report. Client has informed the driver that the information supplied by the driver on the application will be used in the hiring process. Client has advised the driver of his/her procedural rights under 49 C.F.R. Part 391.
3.7 Upon request, Tenstreet will provide to Client copies of certifications, consumer consents, notices and summary of rights under the FCRA as well as other forms which Tenstreet finds helpful in meeting its and your obligations under the FCRA and other applicable laws. However, it is the responsibility of the Client to be knowledgeable about and to comply with the FCRA, the Driver Privacy Protection Act, 18 U.S.C. §2721 et seq. ("DPPA") and other applicable federal, state and local laws regulating the release and use of such consumer reports it requests or any other legal matter.
3.8 Client represents in regard to providing information to Tenstreet:
A. Tenstreet shall store information in a secure environment, guarding such against unauthorized access and maintaining the information in a format not to alter the substance of the information furnished. Tenstreet may, from time to time, request Client to verify such stored information as accurate and Client shall promptly respond to such request.
B. Client certifies that it will provide accurate information and will select descriptors of activities that are not misleading to the conduct or experience of the individual even though the descriptor might be technically true. If Client is unsure as to which descriptor(s) to use, Client should contact Tenstreet for guidance. Client should report facts not speculation or rumor. Client shall maintain records to support the descriptors chosen for the information furnished to Tenstreet.
C. If Client knows, or should know, that an individual disputes any information being provided by it to Tenstreet, it shall specify which entry is disputed by the individual.
D. If Client later learns that the information it previously furnished to Tenstreet is inaccurate, Client shall promptly notify Tenstreet and provide Tenstreet with the appropriate corrections to make the previous information accurate. This obligation shall survive termination of this agreement.
E. If Client is notified by Tenstreet that an individual disputes information furnished by Client, Client shall conduct an investigation and within ten (10) business days of notification of the dispute by Tenstreet, respond to Tenstreet and report the results of its investigation. In conducting the investigation, Client will review all information sent by Tenstreet and review it's own files and available witnesses. This obligation shall survive termination of this agreement.
F. Client understands and authorizes Tenstreet to release any information furnished to it by Client to any other client of Tenstreet who has certified to Tenstreet that it has permissible purpose under the Fair Credit Reporting Act to request and use such information.
3.9 Client acknowledges the receipt of the "Notice to Users of Consumer Reports" (may be downloaded at https://resources.tenstreet.com/pdf/notice_to_users_of_consumer_reports.pdf) and the "Notice to Furnishers of Consumer Reports" (may be downloaded at https://resources.tenstreet.com/pdf/notice_to_furnishers_of_consumer_reports.pdf). Client represents that it fully understands its obligations under the FCRA and abides by them, including those obligations described in these two documents, where applicable.
A copy of the FMCSA Notification of Driver Rights is available at https://resources.tenstreet.com/pdf/fmcsa_notification_of_driver_rights.pdf
4. Client shall not, directly or indirectly, sell, transfer or, except as otherwise set forth herein above, disclose the contents of or distribute the Reports, in whole or in part, to any third-party, except those who assist Client in its hiring and safety functions and to government inspectors. Client shall use the Reports solely as an end-Client, for a single, one-time use. Client acknowledges that Tenstreet will not render any opinions regarding Report content, and Client shall base its screening processes, guidelines and decisions on its own policies and procedures. Any consultation, training and forms provided by Tenstreet are provided for informational purposes only, and not for the purpose of providing legal advice. TENSTREET STRONGLY RECOMMENDS THAT CLIENT CONSULT WITH ITS OWN LEGAL COUNSEL FAMILIAR WITH CLIENT'S UNIQUE REQUIREMENTS AND LEGAL/REGULATORY OBLIGATIONS RELATED TO THE COMPLIANT PROCUREMENT AND USE OF REPORTS OBTAINED PURSUANT TO THIS AGREEMENT.
5. Disclaimer of Warranty. Client acknowledges that Tenstreet relies upon the information furnished by its clients to be stored by Tenstreet to prepare Reports. Tenstreet shall use commercially reasonable efforts to ensure complete and accurate transmission of the information to Client; however, Tenstreet does not guarantee the accuracy of any Report. Tenstreet is not responsible for inaccurate or false information, unless Tenstreet had actual knowledge of the error and failed to correct it. Except as otherwise expressly set forth in the immediately preceding sentence, TENSTREET DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INLCUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY, ANY IMPLIED WARRANTY ARISING FROM THE COURSE OF DEALING, FITNESS FOR A PARTICULAR PURPOSE, NON-INNFRINGEMENT, AND NON-INTERRUPTION OF SYSTEM USE.
a) Client shall indemnify, defend and hold Tenstreet and its officers, directors, employees, agents and contractors (collectively, "Representatives") harmless from and against any and all claims, demands, suits, judgments, costs, expenses and liabilities, (including, without limitation, reasonable attorney's fees asserted against Tenstreet or any of its Representatives to the extent caused by, arising out of, or otherwise related to Client's breach of this Agreement or violation of applicable law.
b) A party seeking indemnification pursuant to this Agreement shall provide the indemnifying party with prompt written notice of a claim and shall cooperate with the indemnifying party in good faith and in all reasonable respects in connection with the defense of any such action at the expense of the indemnifying party. The indemnified party may, at its option, participate in the defense of any such claim, with its separate counsel and at its own cost, and the indemnifying party agrees to cooperate in good faith and in all reasonable respects with such counsel; provided, however, that the indemnifying party shall have sole control of the defense and any settlement of such claim or action, and the indemnified party shall not compromise or settle any such Claim without the prior written consent of the Indemnifying Party. An indemnifying party shall not without the consent of the indemnified party (such consent not to be unreasonably withheld, conditioned or delayed), enter into any settlement that requires a finding or admission of fault of the indemnified party, or reasonably can be expected to require a material affirmative obligation of, result in any ongoing material liability to, or otherwise prejudice the indemnified party.
7. Termination of Agreement. This Agreement shall commence on the Effective Date and can be terminated at any time by either party with or without cause upon the terminating party providing written notice to the other party.
8. Electronic Acceptance. Client represents that this Agreement has been electronically executed on its behalf by a representative authorized to bind Client with respect to the undertakings and obligations contained in this Agreement. By electronic acknowledgement hereto, Client represents that it accepts the terms and conditions contained in this Agreement.
9. Misuse of Information: The FCRA prohibits the obtaining of information from a consumer reporting agency for an impermissible purpose. Further, those involved in such improper requesting may be subject to criminal penalties of imprisonment up to one year and/or a fine of $5,000 for each offense. 15 U.S.C. § 1681q. Further, the DPPA prohibits obtaining information under false pretenses and restricts the resale or redisclosure of personal information contained in state motor vehicle records. A violation of the DPPA may also result in criminal penalties. 18 U.S.C. § 2733(a). If a Client or one of its employees misrepresents to Tenstreet the reason for a report or requests a report for an impermissible purpose, Tenstreet may terminate service without notice in addition to other remedies available to Tenstreet. Client understands that its misuse of or improper request for information may have a direct impact upon Tenstreet and may cause it to be unable to obtain information for any of its clients resulting in substantial damages for which Client would be liable.
10. Miscellaneous Provisions.
A. This Agreement is for the exclusive benefit of the parties hereto and no benefit is intended for any third party.
B. This Agreement is intended to be subject to, and in compliance with, all applicable state and federal statutes and regulations. Insofar as this Agreement or any provision may subsequently be determined to be at variance or not in compliance with any such statute or regulation, it will be considered to be amended or modified to the extent necessary to make it comply, and Tenstreet and Client hereby consent and agree to any such amendment or modification. Further, the invalidity of any one provision shall not affect the validity of the other provisions.
C. If Client executes a Master Service Agreement ("MSA"), the MSA and this Agreement shall be construed as one agreement. If inconsistencies exists then the terms, to the extent of the inconsistency, of the MSA shall control.
D. This Agreement is deemed to have become effective and to have been entered into upon its acceptance in the State of Oklahoma by Tenstreet. Therefore, this Agreement will be interpreted and enforced in accordance with the laws of the State of Oklahoma, without reference to its conflict of laws.
E. Tenstreet may make changes to the software or methods used to provide service to Client and Client must make any necessary changes to maintain working connection to the service at Client's sole cost.
In agreeing to use this service, I understand that my use is governed by state and federal law and any misuse may subject me to civil and/or criminal penalties. You should print a copy of this agreement for your records. I accept this Agreement and will abide by its terms and the law governing my performance.
Client Identification / Acceptance By:
Signature Date: September 18, 2018
IP Address: 126.96.36.199
ELECTRONIC CONSENT DISCLOSURE
This disclosure is being provided to you pursuant to the federal Electronic Signatures in Global and National Commerce Act ("E-Sign Act") codified at 15 USC § 7001 and applicable state law. The E-Sign Act requires certain disclosures be made to consumers prior to their use of electronic signatures, and prior to the use of electronic records to provide consumers with certain written information. Accordingly, please review the following disclosures carefully:
Consent. By signing this Agreement (electronically or otherwise), your signature shall apply to
(1) receiving applicable disclosures and notifications in an electronic form, and (2) using electronic means to sign documents such as this Agreement (if applicable), amendments thereto, and other electronic documents associated with Tenstreet services. If you do not wish to consent to the use of electronic documents, records and signatures, Tenstreet will not be able to establish your account and perform its services for you.
Hard Copies. Following your acceptance by electronic signature and/or your electronic receipt of the applicable document(s), you will have the opportunity to view and print a pdf version of the document(s) that you have e-signed and/or received. You may request at any time from Tenstreet a hard copy of such electronically signed document(s) for a $15.00 service charge. For assistance with viewing a PDF copy or with obtaining the original document, or to update your contact information (e.g. your email address) after consent, please contact Tenstreet Customer Service at email@example.com or call 877-219-9283.
Withdrawing Consent. Once you have consented to the use of electronic documents, records and signatures, you may withdraw your continuing consent by notifying Tenstreet through a written statement of withdrawal in electronic or non-electronic form by sending an email to firstname.lastname@example.org or writing to Tenstreet at Tenstreet, Inc., Attention Tenstreet Customer Service - Consent Withdrawal, 120 W. 3rd Street, Tulsa, Oklahoma 74103. Such withdrawal shall not apply to the validity of, and/or your surviving obligations under, this Agreement; however, upon receipt of notice of such withdrawal, Tenstreet may choose to terminate your account access and no longer provide its services to you.
Hardware and Software Requirements. The hardware and software requirements to access and retain electronic records are as follows: (i) a computer and modem, or other device capable of accessing the Internet, and the ability to receive HTML files; (ii) an active "Internet Service Provider"; (iii) a Web Browser that supports 128 bit SSL encryption; (iv) the ability to download (to your hard disk drive or flash drive or print agreements and disclosures; and (v) Adobe Acrobat Reader software.