FedCheck® Terms and Conditions
(last updated September 10, 2020)
The following terms and conditions (“Terms and Conditions”) are part of the FedCheck License and Services Agreement that references or is accompanied by these Terms and Conditions (the “Agreement”). By signing or otherwise accepting the Agreement, or by using Ident’s software or services that are offered subject to these Terms and Conditions, you are accepting and agreeing to be bound by these Terms and Conditions.
In these Terms and Conditions, the words “Ident,” “we,” and “us” refer to Ident Solutions, LLC. The words “Customer” and “you” refer to the customer of our products or services, whether a corporation, government agency, or other entity, as identified on the cover page or other customer information section of the Agreement. You may not use the FedCheck Services unless you accept these Terms and Conditions and have the power and legal right to form a contract with us. Any individual subscribing to our services in the name of a company or other organization represents and warrants that he or she is authorized and intends by those actions to bind the company or other organization to these Terms and Conditions, and any individual having access to our software or services under Customer’s account may access and use them only in accordance with these Terms and Conditions.
The following terms and any others defined in these Terms and Conditions will be interpreted according to the definitions given.
2.1 “Authorized Facilities” means your facility or facilities (which may include equipment, computer networks, or other access-controlled resources as well as physical premises) for which you are procuring the FedCheck Services, as identified in the Order Form.
2.2 “Authorized User” means an individual employee or agent of yours who has been assigned unique credentials to access and use the FedCheck Services.
2.3 “Database-Specific Terms” means any usage limitations and other terms and conditions that are referenced in the Agreement, or that you may otherwise accept (such as a Facility Agreement or data access agreement executed by you, Ident, and a law enforcement agency or database provider), in relation to your use of the FedCheck Services to query or obtain information from any particular data source or collection or type of data sources.
2.4 “FedCheck App” means the mobile software application that Ident makes available to you for use in connection with, and to provide access to, the FedCheck Services.
2.5 “FedCheck Services” means Ident’s online database-querying services designed for use in screening individuals for facility access, as more specifically identified in the Order Form and described in our relevant published documentation, and where applicable, the associated web-based administrative tools that Ident makes available for use by your Authorized Users.
2.6 “Order Form” means Ident’s order form, as submitted by Customer and accepted by Ident, that specifies the licenses and services being purchased by Customer, and that references these Terms and Conditions or is otherwise made a part of the Agreement.
3. SERVICES AND LICENSE
3.1 Service Subscription. Subject to your compliance with these Terms and Conditions and any Database-Specific Terms, Ident will provide your Authorized Users with access to and use of the FedCheck Services during your paid-up subscription period (as described below) and within any service usage limits indicated in the Order Form, solely for the purpose of screening individuals for access to the Authorized Facilities in accordance with Ident’s relevant end-user documentation and the Database-Specific Terms. The FedCheck Services may be accessed only through the FedCheck App and/or our designated web-based interface, as applicable.
3.2 Software License. Subject to your compliance with these Terms and Conditions and any Database-Specific Terms, Ident grants to you a non-exclusive, non-transferable, paid-up (for the fees specified in the Order Form), royalty-free license to install and run the FedCheck app during your paid-up subscription period, only on devices that you own or control and that meet our published compatibility criteria, solely in connection with your use of the FedCheck Services as authorized above.
3.4 Usage Limitations. You may not, and agree not to, use or permit any person to use the FedCheck Services for any credit-verification or credit-reporting purposes, or in connection with any hiring or other employment-related actions (other than screening for access to the Authorized Facilities), or to screen individuals or otherwise discriminate based on race, color, national origin, religion, age, gender, sexual orientation, or disability or on any other unlawful or improper basis. In addition to these Terms and Conditions, your and your Authorized Users’ rights to access and use the FedCheck Services and FedCheck App are subject to the relevant Database-Specific Terms and any limitations and restrictions indicated in the Order Form. To the extent of any conflict or inconsistency between or among any of these documents, the more restrictive terms will govern.
3.5 General Restrictions. You may not: (i) copy, reproduce, modify, decompile, disassemble, or reverse engineer the FedCheck Services, FedCheck App, or any associated software or materials (except to the extent that applicable law prohibits or restricts reverse engineering restrictions); (ii) provide any third parties with access to the FedCheck Services or FedCheck App, or use either of them for time sharing or similar purposes for the benefit of any third party; (iii) remove any copyright or proprietary notices contained in the FedCheck Services or FedCheck App or any output thereof; (iv) breach, disable, tamper with, or develop or use (or attempt) any workaround for, any security measure provided or used by the FedCheck Services or FedCheck App; (v) access the FedCheck Services via any bot, web crawler or non-human user, or to perform any data scraping, data mining, caching, or similar function; (vi) introduce or transmit any virus or other malicious code to or through the FedCheck App or FedCheck Services; or (vii) access or use (or permit a third party to access or use) the FedCheck Services or FedCheck App for any unlawful purpose, or for purposes of monitoring the availability, performance or functionality of the FedCheck Services or for any other benchmarking or competitive purposes.
3.6 Availability. We will use reasonable efforts to make the FedCheck Services available through the FedCheck App on a 24/7/365 basis, subject to periodic downtime for scheduled maintenance during non-peak hours; however, the parties recognize that Internet connectivity issues, unavailability of third-party databases and systems, or other factors outside of our reasonable control may limit or restrict this availability from time to time. We will use reasonable efforts to restore service in the event of unplanned unavailability within our control, and to provide you with advance notice of any scheduled unavailability.
3.7 Maintenance and Support. If the Order Form or Ident’s relevant documentation states that you will receive maintenance and/or technical support in connection with the FedCheck Services or FedCheck App, then (unless otherwise set forth in the Order Form or such Ident documentation): (i) maintenance will consist of access to new features or performance improvements in the FedCheck Services if and when Ident makes any such features or improvements generally available to its subscriber base at no additional charge, and (ii) technical support will consist of first-level telephone or email assistance in accordance with Ident’s standard practices and procedures.
4. CUSTOMER RESPONSIBLITIES
4.1 Generally. You retain full responsibility for your and your Authorized Users’ use of the FedCheck Services and FedCheck App, including how you or they use any information obtained through the FedCheck Services, and for any decisions and actions that you or they make or undertake in reliance on the FedCheck Services or such information. For clarity, the preceding sentence does not diminish any usage restrictions or limitations set forth in the Agreement. The FedCheck Services rely on various sources of data that are compiled or controlled by third parties, and neither we nor they will be liable to you or any other person for any inaccuracy, omission, or other defect in that data or any output based on that data. Furthermore, the FedCheck Services provide only indications of possible records that may be of interest to you in connection with screening individuals for access to your Authorized Facility, and you must perform additional steps and exercise your own business judgment to determine how you may and will use such information.
4.2 Compliance. You are solely responsible for ensuring that you and your Authorized Users are aware of and comply with these Terms and Conditions, any Database-Specific Terms, and all laws and regulations that pertain to your use of the FedCheck Services or the information made available through the FedCheck Services. You represent and warrant that you are knowledgeable as to all federal, state, and local laws and regulations pertaining to your business, operations or intended use of the FedCheck Services. We encourage you to consult with legal counsel before using the FedCheck Services.
4.3 Additional Responsibilities. Without limiting the foregoing, you are solely responsible for: (i) obtaining appropriate permissions, waivers, and the like from individuals you screen, which must be at least as protective of our and your interests as any template or sample waiver that we may furnish from time to time (in our reasonable discretion and upon reasonable notice to you), it being understood that our templates and samples are not guaranteed to provide sufficient protection or meet all applicable legal requirements, nor do they diminish your ultimate responsibility for these matters, (ii) assigning and revoking all Authorized User and administrator privileges under your account (provided, however, that we may suspend or terminate any individual’s access to the FedCheck Services as we deem appropriate to prevent or curtail unauthorized or improper use), (iii) maintaining the confidentiality of any user IDs, passwords and other credentials associated with your account, (iv) all activities that occur with respect to your account, and (v) any Customer-furnished data.
5. FEES AND PAYMENT
5.1 Fees. In consideration for our providing the license and services under the Agreement, you agree to pay us the corresponding fees set forth in the Order Form.
5.2 Renewal Fees. For each subscription Renewal, recurring fees will be billed and paid at the rates specified in the Order Form or, if applicable, such other rates as we may establish with notice to you at least 30 days before the Renewal.
5.3 Excess Usage Fees. Our service plans may include usage limits as indicated in the Order Form or our applicable published documentation. If usage under your account exceeds the applicable limits, we may upgrade you to a higher service plan as needed to cover the additional usage and charge you for the difference in service plan fees at our then-current published rates.
5.4 Billing; Payment. We will bill you in advance at the beginning of the subscription period and each Renewal (and, in the case of excess usage fees, upon upgrading you to a higher service plan). If the Order Form specifies payment by credit card or another method that we can initiate, you authorize us to initiate such payment at that time, and in any case, any invoice not paid within thirty (30) days of the invoice date will be overdue. Overdue amounts will accrue interest at the rate of 1.5% per month, but in no event greater than the highest rate of interest allowed by law.
5.5 Taxes. The fees specified in the Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). You will be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than our U.S. federal and state income taxes. Such Taxes will be itemized in the applicable invoice.
6. TERM AND TERMINATION
6.1 Duration and Renewal. Your subscription for the FedCheck Services will remain in effect throughout the initial subscription term specified in the Order Form (unless terminated as set forth below), and will automatically renew for successive periods of the same duration or (if applicable) such other duration as may be specified in the Order Form (each, a “Renewal”)…”] unless either party gives the other party written notice of non-renewal at least thirty (30) days in advance. The Agreement will expire at the end of your subscription as described above.
6.2 Termination. A party may terminate the Agreement for a material breach by the other party that remains uncured more than 30 days after receiving written notice of the breach. In addition, Ident may terminate the Agreement 5 business days following Customer’s receipt of written notice that it is late in paying fees due. We may also terminate upon 30 days’ notice if we become unable to provide the FedCheck Services due to unavailability of third-party databases or other causes outside our reasonable control, or if we discontinue the FedCheck Services generally; if that occurs, we will provide you with a prorated refund of prepaid fees for the period affected by our termination.
6.3 Effect of Termination; Survival. Upon expiration or termination of the Agreement for any reason, all outstanding fees will immediately become due and payable, your subscription for the FedCheck Services and your license for the FedCheck App will automatically terminate, and you will immediately cease using the same and delete the FedCheck App from your devices. If requested in writing within 15 days after expiration or termination, we will provide you with an exported copy of the log data then stored under your account. The following provisions will survive expiration or termination of the Agreement: Sections 4, 3.5, 5 (to the extent of any outstanding payment obligations), 6.3, 7, 8, 9, 10, 11, and 12.
7. INTELLECTUAL PROPERTY, DATA, AND SECURITY
7.1 Ident IP. As between Ident and Customer, Ident is and will remain the sole owner of the FedCheck Services, FedCheck App, and all software and technologies embodied in or used to provide the FedCheck Services or FedCheck App, and all intellectual property rights therein or relating thereto. We reserve all rights in the foregoing other than the limited, non-exclusive license and access rights that we expressly grant to you in these Terms and Conditions. If you provide any suggestions or other feedback in relation to our products and services, we will be free to use (or not use) the same without restriction and without any compensation or other obligations to you.
7.2 Your Data. Subject to any underlying rights of individuals from whom you gather information, and of any third-party service providers, licensors, and other entities whose data or databases are queried or used in connection with the FedCheck Services, you will have and retain sole ownership and control of: (i) all data that you submit to or through the FedCheck App or FedCheck Services, and (ii) all query logs and other output of the FedCheck Services (collectively, “Your Data”). The parties acknowledge and agree that we will transmit, store, and otherwise process Your Data only as a data processor, and not as a data controller.
7.3 Providers’ Data. Our third-party service providers, licensors, and other entities whose data or databases are queried or used in connection with the FedCheck Services retain any rights they may have with respect to such data and databases, as applicable. To the extent, if any, that we transmit, store, or otherwise process any such data, we do so only as a data processor for such third parties, and not as a data controller.
7.4. Our Security Measures. We will employ reasonable and appropriate (and all legally mandated) environmental, safety and facility procedures, data security and backup procedures, and other safeguards to protect against the unauthorized accessing, use, destruction, corruption, loss or alteration of Your Data as stored or otherwise processed by the FedCheck Services. Ident’s data security measures are outlined in more detail in our [Data Security Whitepaper], as the same may be updated from time to time (our “Security Whitepaper”). Updates to our Security Whitepaper will be furnished to you upon request. We will promptly notify you of any actual or suspected breach of Ident’s security that compromises or is anticipated to compromise Your Data, and we will indemnify you against any third-party claims by the subjects of Your Data to the extent those claims arise from any such security breach that is caused by our negligent or intentional failure to meet the standards or requirements specified in our Security Whitepaper.
7.5 Your Security Measures. You agree to limit access to the FedCheck App and FedCheck Services to only those Authorized Users who have a need to know the output of the same as a part of their official duties for you. You must immediately deactivate (or notify us to deactivate) the access credentials of any of Authorized User who has been terminated or who no longer has a need to know. You shall ensure that your Authorized Users keep their access credentials secure and that individual credentials are assigned to and known by no more than one Authorized User. You shall take reasonable and appropriate (and all legally mandated) measures to prevent unauthorized physical or electronic access to the FedCheck App or FedCheck Services by any unauthorized persons, and to prevent any unlawful access to or use of Your Data. Such measures will include appropriate data destruction policies where applicable. Without limiting the foregoing or any applicable Database-Specific Terms, if you are using a version of the FedCheck Services that enable queries of the FBI’s National Crime Information Center, you must comply with all relevant provisions of the most current version of the Criminal Justice Information Services (CJIS) Security Policy located at https://www.fbi.gov/services/cjis/cjis-security-policy-resource-center, as may be updated or amended from time to time.
7.6 Verification. Upon our request, you agree to provide us with: (i) documentation establishing and/or confirming that you are a legitimate business entity in good standing, and that you have a lawful and appropriate purpose for use of the FedCheck Services; and (ii) access to your pertinent records, equipment, and facilities (subject to reasonable security policies and confidentiality restrictions), including the devices on which the FedCheck App has been installed, as reasonably necessary for us to verify that your use of the FedCheck App and FedCheck Services is within the scope of rights granted in these Terms and Conditions and otherwise in compliance with the requirements of the Agreement. This provision will expire one year after expiration or termination of the Agreement.
8.1 Obligations. “Confidential Information” means (subject to the exclusions below) any non-public information relating to or disclosed by one party to the other in connection with the Agreement or our services that should be reasonably understood to be confidential (including our pricing). The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but no less than reasonable care, will not disclose Confidential Information to any third party without prior written authorization, and will use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights expressly reserved or granted under these Terms and Conditions. The receiving party will promptly return or destroy the other party’s Confidential Information upon request.
8.2 Exclusions. Confidential Information does not include information that: (i) is or becomes publicly available through no fault of the receiving party; (ii) was already in possession of the receiving party without confidentiality restrictions at the time of receipt from the other party, as evidenced by written records; or (iii) was independently developed by the receiving party without violation of this Section. If a receiving party is required to disclose Confidential Information by law, the receiving party will promptly notify the disclosing party and reasonably cooperate with its efforts to limit or protect the required disclosure, but will otherwise not be in violation of this Section on account of making the required disclosure.
EXCEPT AS EXPRESSLY PROVIDED FOR IN THESE TERMS AND CONDITIONS, THE FEDCHECK SERVICES, FEDCHECK APP, AND ANY RELATED MATERIALS OR SERVICES WE MAY FURNISH UNDER THE AGREEMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. IDENT DISCLAIMS, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10.1 By Ident. We will defend and indemnify you against any claims, demands, suits or proceedings made or brought by a third party (“Claims”) against you to the extent based upon an allegation that the FedCheck Services or FedCheck App, as furnished by Ident hereunder and used by Customer within the scope of these Terms and Conditions, infringe any copyright or any U.S. patent or trademark rights of any third party. THE FOREGOING STATES THE ENTIRE OBLIGATION OF IDENT WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE FEDCHECK SERVICES OR FEDCHECK APP. Ident will have no liability under this Section 1 to the extent that any Claims are based on any combination of the FedCheck Services or FedCheck App with products, services, methods, content or other elements not furnished by Ident, or any use of the FedCheck Services or FedCheck App in a manner that violates these Terms and Conditions, any Database-Specific Terms, or our applicable documentation.
10.2 Mitigation Measures. In the event of any Claim or potential Claim covered by Section 1, Ident may, in its discretion, seek to mitigate the impact of such Claim by modifying the FedCheck Services or FedCheck App to avoid the infringement, and/or by suspending or terminating your access to the FedCheck Services and FedCheck App upon reasonable notice (provided, in the case of such suspension or termination, that we will refund a portion of any fees that you have prepaid for the then-current subscription period, based on the portion of that subscription period that is affected by our suspension or termination).
10.3 By Customer. You will defend and indemnify us against any Claims arising from or related to (i) your violation of these Terms and Conditions or the Database-Specific Terms, or (ii) any decisions, acts, or omissions that you or your Authorized Users make or undertake in connection with your screening of individuals for access to the Authorized Facilities or other use of the FedCheck Services or FedCheck App, including but not limited to any Claims asserting that individuals were improperly denied or allowed access to the Authorized Facilities, and any Claims that your collection or disclosure of any individuals’ personal information, or our processing of their information through the FedCheck Services on your behalf, violates their privacy or other rights.
10.4 Procedures. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party will promptly notify the indemnifier in writing of the applicable Claim; (ii) the indemnifier will have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle any Claim in a manner that would impair any of the aggrieved party’s rights or interests without prior written consent, which will not be unreasonably withheld); and (iii) the aggrieved party will, at the indemnifier’s expense, provide all cooperation, information and assistance reasonably requested by the indemnifier for the defense of such Claim.
11. LIMITATION OF LIABILITY
11.1 Wavier of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IDENT AND ITS AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, (COLLECTIVELY, THE “IDENT ENTITIES”) WILL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR OTHER DAMAGES, OR FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR INFORMATION, OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF THE AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE OR SERVICES TO BE PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2 Liability Cap. THE CUMULATIVE LIABILITY OF THE IDENT ENTITIES FOR DAMAGES ARISING FROM OR RELATED TO THE AGREEMENT OR THE SOFTWARE OR SERVICES TO BE PROVIDED HEREUNDER SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO IDENT UNDER THE AGREEMENT FOR THE SERVICE PERIOD TO WHICH SUCH DAMAGES PERTAIN.
11.3 Basis of Bargain. The foregoing exclusions of damages and limitations of liability, and the allocation of risk they represent, are an essential, bargained-for part of the Agreement, and will apply to the fullest extent permitted by law, even if any limited remedy fails of its essential purpose.
12.1 Publicity. Ident may identify Customer, by name and (upon your approval) by logo, as a customer of the FedCheck Services on Ident’s website and other marketing materials. Otherwise, neither party will issue any press release or other public communications regarding the parties’ relationship under this Agreement without the other party’s prior written consent, which will not be unreasonably withheld.
12.2 Assignment. You may not assign the Agreement, in whole or in part, without our prior written consent, which will not be unreasonably withheld. Any attempt by you to assign the Agreement without such consent will be null and of no effect. We may assign the Agreement to any of our affiliates or to any successor or acquirer of our business or of our rights or assets associated with the FedCheck Services. Subject to the foregoing, the Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
12.3 Force Majeure. Neither party shall be liable for any delay or failure in performance (other than non-payment of amounts owing) due to causes beyond its reasonable control.
12.4 Export Compliance. Customer agrees to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the FedCheck Services, nor any direct product thereof, are: (i) exported or re-exported directly or indirectly in violation of such export laws and regulations; or (ii) used for any purposes prohibited by the such export laws and regulations.
12.5 Government Rights. If Customer is the U.S. government or any agency or other division thereof, Ident’s software and services are furnished under the Agreement as a “commercial item,” and more specifically as “commercial computer software” and “commercial computer software documentation” (as applicable), as those terms are defined and used in the U.S. Code of Federal Regulations (48 C.F.R. § 2.101) and other applicable regulations, and the government’s rights with respect to such software and services (and to any associated technical data or other materials) are limited to those rights expressly granted in these Terms and Conditions.
12.6 Severability. If any part of the Agreement is held to be unenforceable or invalid, in whole or in part, by a court of competent jurisdiction, its remaining provisions will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
12.7 Waiver. The waiver of a breach of any provision of the Agreement will not operate or be interpreted as a waiver of any other or subsequent breach of that or any other provision.
12.8 Notices. All notices permitted or required under the Agreement shall be in writing, will reference the Agreement, and shall be delivered in person, by overnight courier or express delivery service, or by first class, registered or certified mail, postage prepaid, or by confirmed email delivery, to the address of the party specified on the Order Form or such other address as either party may specify by notice as described above. Notices will be deemed to have been given upon receipt.
12.9 Governing Law. The Agreement will be governed by both the substantive and procedural laws of Utah, excluding its conflict of law rules and the United Nations Convention for the International Sale of Goods. Any legal action or proceeding arising under the Agreement will be brought exclusively in the federal or state courts located in the state of Utah, and the parties irrevocably consent to the personal jurisdiction and venue therein.
12.10 Revisions to Terms and Conditions. We may change these Terms and Conditions and our policies from time to time. We may inform you of any such changes by posting the revised version to our website at the same URL as the original version. Unless otherwise agreed by the parties, any such changes will take effect for your subscription upon the next Renewal if we have posted or otherwise informed you of the revision prior to the deadline for giving non-renewal notice.
12.11 Entire Agreement. Except as provided in Section 10, any amendment or modification to the Agreement must be in writing signed by both parties. The Agreement constitutes the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof.
[End of FedCheck Terms and Conditions