Terms of Service

Effective Date: November 25, 2020

IMPORTANT NOTICE: THESE TERMS OF SERVICE CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER, WHICH AFFECT YOUR LEGAL RIGHTS UNLESS YOU OPT OUT, AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW. PLEASE READ CAREFULLY.

Clear Screening Technologies, LLC (also referred to as “ClearChecks,” “we,” “us,” or “our”) provides the content and services available on the ClearChecks websites, including clearchecks.com, app.clearchecks.com, as they may be modified, relocated and/or redirected from time to time (collectively, the “Site”). Except as expressly provided in these Terms of Service (“Terms”), all services provided by ClearChecks, including but not limited to: accounts on the Site, Screening Reports (defined below), forms, information, communications, or software provided by ClearChecks in connection with any of the foregoing (collectively, the “Services”), are provided subject to these Terms.

These Terms apply to any and all users of the Site and Services, including but not limited to individuals, small and large businesses, nonprofit organizations, any person that orders Screening Reports from us (“Customers”) or that orders our Screening Reports (“Users”), and natural persons about whom we prepare Screening Reports (“Consumers”) (collectively, “you,” or “your”). If you use the Site or Services on behalf of a business entity, you represent and warrant that you have the authority to bind that entity, your acceptance of the Terms will be deemed an acceptance by that entity, and “you” and “your” herein shall refer to that entity.

You must be 18 years old, or the age of majority in your jurisdiction, in order to use the Services on our Site. This Site is not directed to children under 13 years old.

By accessing the Site or using the Services, you agree to be bound by these Terms, including the Arbitration Agreement below (unless you opt-out of arbitration in accordance with the terms of Section 18 below), and our Privacy Policy, which Privacy Policy may be updated from time to time, (“Privacy Policy”), which is incorporated into these Terms by reference. Except as specified in the “Opt-Out” provision of the Arbitration Agreement below, IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE OR ACCESS OUR SITE.

To the extent permitted and except where prohibited by applicable law, these Terms include:

  • Your agreement that the Services are provided "as is" and without warranty (Section 16 – Warranties and Disclaimers).

  • Your agreement to release ClearChecks from liability based on claims relating to the Services (Section 17 – Limitation of Liability).

  • Your agreement to indemnify ClearChecks from certain claims (Section 15 - Indemnification).

  • Your consent to any modifications or amendments to these Terms (Section 1 – Changes to the Terms).

These Terms also include:

  • Your and ClearChecks mutual agreement to arbitrate most types of disputes (Section 18 – Arbitration Agreement).

1) Changes to the Terms

Subject to the conditions in the next paragraph below regarding the Arbitration Agreement in Section 18, we reserve the right, in our sole discretion, to change and revise these Terms at any time by posting the changes on the Site. Any changes are effective immediately upon posting to the Site. The most current version will be available on our website, and the Effective Date of the current version is at the top of this page. By continuing to access or use the Site or Services after those revisions become effective, you agree to be bound by the revised Terms, except as provided in the next paragraph below regarding the Arbitration Agreement in Section 18 below.

The parties agree that any changes or revisions to the Arbitration Agreement must be in writing and the parties agree that ClearChecks may change or revise the Arbitration Agreement and you accept the changes or revisions by continuing to access or use the Site or Services after those revisions become effective; however the changed or revised Arbitration Agreement will not apply to any Claims already asserted by either party. Except for the Arbitration Agreement in Section 18 below, which survives the termination of these Terms, ClearChecks may, with or without prior notice, terminate any of the rights granted by these Terms. We will provide you with any additional notices or choices with respect to such changes as required by applicable law.

2) Accuracy of Submitted Information

You represent and warrant that any information you provide to ClearChecks about yourself, the organization you represent, or any person is accurate.

3) Your Warranty of Compliance with Applicable Law

By accessing the Site or using the Services, you represent and warrant that you shall comply with all applicable federal, state, and local law, including but not limited to FCRA, the Equal Employment Opportunity Act, the Americans with Disabilities Act, and the federal Privacy Act.

4) Privacy Policy

Individually identifiable information that you provide to ClearChecks through the Site, including information about yourself and any individual, is subject to our Privacy Policy.

5) Services Agreement

To the extent that these Terms conflict with a ClearChecks’ services agreement or certification to which you agreed (collectively, “Services Agreement”), the terms of the Services Agreement govern, except that the terms of the Arbitration Agreement in Section 18 of these Terms prevail over the terms of the Services Agreement.

6) Screening Reports

As part of the Services, ClearChecks prepares: consumer reports or investigative consumer reports, as those terms are defined in the Fair Credit Reporting Act as amended (“FCRA”) or applicable state law; drug and alcohol test results; or other information transmitted by ClearChecks to the Customer pertaining to an individual consumer (collectively, “Screening Reports”). ClearChecks prepares Screening Reports in its role as a service provider for Customers and not in the role of an employer, provider of credit, underwriter of insurance, or other user of that information. Therefore, ClearChecks does not take adverse actions on the basis of Screening Reports against Consumers. Consumers should contact the User, and not ClearChecks, about the reasons for any adverse action taken by the User on the basis of Screening Reports.

ClearChecks may choose not to retain Screening Reports or other documentation about the Services provided to you, except as required by law. Users and Consumers should maintain their own copies of Screening Reports, disclosure and authorization forms, adverse action letters, and other forms as necessary to fulfill their documentation needs and to comply with applicable law.

ClearChecks may archive a Screening Report 60 days after delivering the Screening Report to the Customer. When archived, a Customer may view the Screening Report in the Customer’s online account with ClearChecks, but cannot request that ClearChecks send adverse action letters or request modifications, or additional services, to the archived Screening Report.

ClearChecks may disable a Customer’s access to the Screening Report from within the Customer’s online account 120 days after delivering a Screening Report to the Customer. After access is disabled, the Customer’s online account may still display order details, such as the date and time the Screening Report was delivered to the Customer. Although a Screening Report may not be available in the Customer’s online account, ClearChecks will retain a copy of the Screening Report in accordance with Federal and state laws.

a) Obligations of Users of Screening Reports

User will obtain and use Screening Reports (i) only after completing a Credentialing Application with, and End User Certification to, ClearChecks, (ii) solely for the permissible purpose(s) designated by the User in the Credentialing Application, and (iii) ONLY in accordance with the requirements in the End User Certification.

Unless otherwise provided in the Services Agreement executed between the User and ClearChecks, Users have the responsibility of obtaining all authorizations from Consumers, and providing all disclosures to Consumers, imposed on Users by applicable law with respect to obtaining and using Screening Reports. Such authorizations include, without limitation, the authorizations required by FCRA, the Federal Motor Carrier Safety Administration, and state law. Such notifications include, without limitation: the disclosure, pre-adverse action letter, and final adverse action letter required by FCRA and equivalent state laws; drug and alcohol testing policies; and state and local notices such as the California Consumer Privacy Act Notice at Collection, San Francisco Fair Chance Ordinance notice, and the City of Boulder drug testing ordinance.

User agrees that they will share Screening Reports only as required by law or to the Consumer, unless permitted in writing by ClearChecks. User also agrees that it will use one Screening Report for no more than one adverse action against a Consumer.

If ClearChecks informs the User that the Consumer has filed a dispute with ClearChecks about the content of a consumer report or investigative consumer report about that Consumer, User will not take an adverse action against that Consumer based in whole, or in part, on the content of the consumer report or investigative consumer report until ClearChecks has resolved the dispute.

User represents and warrants that it will comply with all obligations imposed on the User by applicable law with respect to Screening Reports. The User of consumer reports or investigative consumer reports from ClearChecks further agrees that it has reviewed and fully understood the following statutory notices:

User shall allow ClearChecks to audit User’s compliance with this Section 6 by providing ClearChecks with User’s documentation of any of its screening processes that incorporate the Services. User will provide this documentation within ten (10) business days of a written request by ClearChecks. ClearChecks shall protect the confidentiality of this documentation. If requested by User, ClearChecks shall execute a nondisclosure agreement, upon terms mutually agreed upon by the parties. The fact that ClearChecks inspects, or fails to inspect, or has the right to inspect, User does not relieve User of its responsibility to comply with these Terms, nor does ClearChecks’ (i) failure to detect, or (ii) detection, but failure to notify User or require User’s remediation, of any unsatisfactory practices or policies, constitute acceptance of such practices or policies or a waiver of ClearChecks’ enforcement rights.

b) Consumers

In the Services, you may authorize ClearChecks to prepare consumer reports or investigative consumer reports about you. If you provide such authorization, you understand and agree that: 1) the report may contain information about your character, general reputation, personal characteristics, and/or mode of living, which can involve personal interviews with sources such as your neighbors, friends, or associates; 2) reports may include checks regarding your criminal history, credit history, eviction records, social security trace, motor vehicle records (“driving records”), drug screening, verification of your education or employment history or other background checks; and 3) any law enforcement agency, administrator, state or federal agency, institution, school or university (public or private), information service bureau, employer, or insurance company may furnish any and all background information requested by ClearChecks.

By authorizing the preparation of a consumer report or investigative consumer report about you, you further acknowledge receipt of, and certify that you have reviewed and fully understand, the following two statutory notices:

Nothing in these Terms shall affect a Consumer’s rights: a) to access certain information in the Consumer’s file by contacting us, or b) to notify us and request that we investigate information in your consumer report or investigative consumer report that you believe is inaccurate or incomplete, as provided in FCRA and applicable law.

To request that ClearChecks fulfill your rights pursuant to FCRA and applicable law, contact ClearChecks as described in Section 21 (General) below. ClearChecks may request verification of your identity and contact information before fulfilling your request. It is your sole responsibility to provide ClearChecks with an accurate and secure means to communicate with you (“Means of Communication”). ClearChecks disclaims any liability for the compromise, corruption, or loss of information received by, or for the malfunction of, your Means of Communication.

7) Accuracy of Information; Forms; No Legal Advice

We attempt to be accurate when describing our Services on the Site; however, we do not warrant that the content available on the Site is accurate, complete, reliable, current, or error-free. This Site may contain typographical errors or inaccuracies and may not be complete or current. We therefore reserve the right to correct any errors, inaccuracies, or omissions, and to change or update information at any time without prior notice, except as provided in the Arbitration Agreement in Section 18 below.

The Site and Services may offer information, guidance, forms, materials, and/or other content for informational purposes, which are not intended to, and shall not constitute, legal or professional advice, either express or implied. Users agree that they are responsible for complying with their obligations to provide Consumers with legally compliant forms and information in compliance with laws applicable to users of Screening Reports, including FCRA. Although ClearChecks provides forms for informational purposes, including but not limited to consumer report disclosure forms, consumer report authorization forms, pre-adverse action notices, and final adverse action notices, in the course of providing the Services, Users have the responsibility to review these forms for compliance with their legal obligations.

You agree not to rely on ClearChecks for, nor shall ClearChecks render, legal or professional advice. You acknowledge and agree that you are solely responsible for your decisions and that you will consult with your own legal counsel (at your discretion) regarding all legal matters, including but not limited to your legal obligations with respect to your procurement and use of the Services and Screening Reports.

8) Fees; Refunds & Cancellations

a) Fees

In connection with your use of the Services, ClearChecks may charge certain fees (“Fees”) such as when you order a Screening Report. You agree to pay all applicable Fees based on the terms then in effect. Customers must pay the Fees for Screening Reports in full at the time of ordering the Screening Report, except that Customers must pay for Passthrough Surcharges based on the information provided by the consumer and billed at the time the consumer completes their background screening application. Monitoring services are billed upon ordering and renew annually.

b) Refunds & Cancellations

Incomplete Consumer Applications:
ClearChecks will not begin preparing a Screening Report on a Consumer until: (i) the Customer has provided ClearChecks with contact information for the Consumer; (ii) ClearChecks has sent a Consumer application to the Consumer, (iii) the Consumer has submitted the completed application, including providing any necessary authorizations, to ClearChecks (“Completed Consumer Application”).

To the extent that ClearChecks has not received a Completed Consumer Application, the Customer, within 120 days of paying the Fees for the Screening Report, may request (i) a full refund of the Fees for that Screening Report to the original method of payment or in the form of account credits or (ii) to reassign the Fees for that Screening Report to an order for a new screening report.

Erroneous or Mistaken Consumer Applications:
After ClearChecks has received and processed a Completed Consumer Application, ClearChecks will not issue a refund for the ordered Screening Report if the Customer requests the refund on the grounds that the Consumer erroneously or mistakenly completed the Consumer Application.

Monitoring Services
ClearChecks will refund Fees for monitoring services, including criminal monitoring services, on a pro-rated basis for those monitoring services not yet rendered at the time that the Customer requests cancellation.

Completed Screening Reports:
ClearChecks will not refund Fees for any Completed Consumer Application Screening Report.

Passthrough Surcharges:
ClearChecks will not refund passthrough surcharges from federal, state, and county courts, employers, educational institutions, or state Departments of Motor Vehicles to the extent that ClearChecks has already been billed for the surcharge.

Requests:
To cancel an order, request a refund of Fees, or reassign paid Fees to a new order, the Customer must contact our Customer Support team at support [at] clearchecks . com or 1-800-942-1366.

9) Your Account

You may need to register an account with ClearChecks in order to utilize some Services. You are responsible for maintaining the confidentiality of your account and login credentials and for restricting access to your computer. If there has been unauthorized use of your login credentials or account, please notify us immediately. You are responsible for providing and maintaining current, complete, accurate and truthful information on your account. You will provide us with such proof of identity as we may reasonably request from time to time. You are solely and fully responsible for all activities that occur using your login credentials or account. ClearChecks has no control over the use of any user's account by the user or third parties and expressly disclaims any liability resulting from such use. We reserve the right to refuse service and/or terminate accounts without prior notice if these Terms are violated or if we decide, in our sole discretion, that it would be in our best interest to do so.

10) Text (SMS) Messages and Phone Calls

a) Automated (SMS) Messages and Pre-Recorded Phone Calls

By providing your telephone number to ClearChecks, you consent to ClearChecks using that number, to the extent permitted by applicable law, to send you pre-recorded messages and, if such telephone number is a mobile number, to send text (SMS) messages to you with an automatic telephone dialing system, to communicate with you regarding the Services. Standard call or message charges or other charges from your phone carrier may apply to these messages. You may opt-out of receiving text (SMS) messages from us via an automatic telephone dialing system by replying with the word "STOP" to a text message from us. You may opt out of pre-recorded voice messages by contacting Customer Support.

b) Marketing Text (SMS) Messages

ClearChecks may send information about the Services via automated text (SMS) messages or pre-recorded voice messages (the “Marketing Program”).

i) How to Sign Up and Your Consent
By providing your mobile phone number and checking the box to receive future recurring automated marketing text (SMS) messages and pre-recorded voice messages to the mobile number you provided, you agree to the terms and conditions in this Section 10(b). If you do not consent to the terms and conditions in this Section 10(b) and do not agree to receive recurring automated marketing text (SMS) messages and pre-recorded voice messages to the mobile number you provided, you must not consent to receive marketing text (SMS) messages or pre-recorded voice messages or, if you have so consented, you must opt out as described below. You also acknowledge that your agreement to receive ClearChecks marketing text (SMS) messages or pre-recorded voice messages is not required as a condition of any purchase.

ii) How to Opt Out
You can unsubscribe at any time from the Marketing Program by texting “STOP”. ClearChecks reserves the right to remove subscribers from our messaging database at our discretion.

iii) Participating Carriers & Fees
Message and data rates may apply. All charges are billed by, and payable to, your mobile service provider and not to ClearChecks. ClearChecks is not liable for any delays in the receipt of any SMS messages or for any undelivered messages.

iv) Your Information
Data obtained from you in connection with the Marketing Program may include your cell phone number, your carrier's name, the date, time and content of your messages, and other information you provide to us as part of the Marketing Program. ClearChecks may use this information to contact you and to provide the services you request from us.

11) Emails

ClearChecks may send you confirmation and other transactional emails regarding the Services. ClearChecks may also send you emails about products or services that we think might interest you ("Marketing Emails"). You can unsubscribe from Marketing Emails at any time by clicking unsubscribe in ClearChecks’ email communications.

12) Intellectual Property and Limited License

ClearChecks and/or its licensors are, and shall continue to be, the sole and exclusive owner of all right, title and interest in and to all intellectual property rights in the Site and Services. These rights include database rights, patents, copyrights, trademarks (whether registered or unregistered), trade dresses, trade secrets, design rights (whether registered or unregistered), know-how, mask works, moral rights, and all similar rights that may exist now or later in any jurisdiction, including without limitation any applications and registrations for the foregoing, and the ClearChecks name, logos, designs, domain names, graphics, icons, scripts, service marks, features, functions, text, graphics, button icons, scripts, service marks, images, software, data compilations and other distinctive brand features, and the compilation and organization thereof (collectively, “Intellectual Property Rights”). All such Intellectual Property Rights are protected by United States and international laws, including laws governing copyrights and trademarks.

ClearChecks grants you a worldwide, limited, revocable, non-exclusive license to access and use the Site and Services as they are provided to you by ClearChecks for employment purposes only (the “License”). The License is non-transferable and non-assignable, and you shall not grant to any third party any right, permission, license, or sublicense with respect to any of the rights granted hereunder without ClearChecks’ prior written permission, which it may withhold in its sole discretion. Except as permitted under the License, you may not use, copy, make derivative works of, distribute, publish, display, perform, sell, make, or access the Site or Services.

Violation of any provision of this License may result in immediate termination of the License, in ClearChecks’ sole discretion.

13) Use Restrictions

You represent and warrant that you will not do, attempt to do, or cause any third party to do or attempt to do any of the following in connection with your use of the Site or Services:

  • use the Site or Services for the benefit of any third party without ClearChecks’ prior written permission;

  • (i) copy, distribute, rent, lease, lend, sublicense, or transfer the Services, or make the Services available to any third party, including your affiliates, parents or subsidiaries, without ClearChecks’ express prior written consent; (ii) modify, decompile, reverse engineer, or disassemble the Site or Services or otherwise attempt to discover any underlying source code, ideas, algorithms, file formats or programming interfaces; (iii) mirror or archive any part of the Site or Services without ClearChecks’ written permission; (iv) modify, remove, or obscure any copyright, trademark, patent, or other notices or legends that appear on the Services; or (v) use the Services to develop a competitive product offering;

  • use any meta tags, “hidden text,” agents, robots, scripts, spiders, crawlers or other tools or means, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license, download, access or manage the Services, Site (except caching or as necessary to view the Site), or the personal information of others without ClearChecks’ prior written permission or authorization;

  • access the Site or Services for improper, illegal, or unauthorized purposes, including, but not limited to, in violation of FCRA, Civil Rights Act, Equal Employment Opportunity Act, or fair chance or ban-the-box laws, or drug screening laws;

  • misrepresent yourself, your identity, or information about you;

  • take any action that (i) may unreasonably encumber the Site or Services’ infrastructure; (ii) bypasses measures that are used to prevent or restrict access to the Site or Services; (iii) circumvents, disables, or otherwise interferes with security features of the Site or Services; (iv) distribute, transmit, upload, post, e-mail, share, distribute, reproduce, or otherwise make available any software viruses, malware, program, code, file, or other technology or material intended to interrupt, disrupt, alter, destroy, or limit any part of the Site or Services, or that may harm users; (v) upload files to the Site that contain viruses, Trojans, corrupted files, or any other similar software that may damage the operation of another's computer; or (vi) use the Site or Services in a way that violates any of the Intellectual Property Rights, or other rights of any third party, including privacy or publicity rights, or take any action that would jeopardize or impair ClearChecks’ rights as owner of the Intellectual Property Rights or the legality and/or enforceability of the Intellectual Property Rights, including challenging or opposing ClearChecks’ ownership in the Intellectual Property Rights;

  • use the Site or Services for any reason not explicitly authorized by these Terms;

  • frame or utilize framing techniques to enclose the Site or any portion thereof;

  • intentionally violate any applicable local, state, national, or international law; and/or

  • attempt to indirectly undertake any of the foregoing.

Notice of Penalty under FCRA: FCRA PROVIDES THAT ANY PERSON WHO KNOWINGLY AND WILLFULLY OBTAINS INFORMATION ON A CONSUMER FROM A CONSUMER REPORTING AGENCY UNDER FALSE PRETENSES SHALL BE FINED UNDER TITLE 18 OF THE UNITED STATES CODE OR IMPRISONED NOT MORE THAN TWO YEARS, OR BOTH.

14) Feedback

By sending us any feedback, comments, questions, or suggestions concerning ClearChecks or our Services (collectively, “Feedback”), you represent and warrant (a) that you have the right to disclose the Feedback, (b) that the Feedback does not violate the rights of any other person or entity, and (c) that your Feedback does not contain the confidential or proprietary information of any third party or parties. By sending us any Feedback, you further (i) agree that we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (ii) acknowledge that we may have something similar to the Feedback already under consideration or in development, (iii) grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, make, modify, prepare derivative works, publish, distribute, and sublicense the Feedback through multiple levels, and (iv) irrevocably waive, and cause to be waived, against ClearChecks and its users any claims and assertions of any moral rights contained in such Feedback. This Section 14 shall survive any termination of the Services.

15) Indemnification

You agree to defend, indemnify, and hold ClearChecks and its subsidiaries, affiliates, partners, licensors, directors, officers, employees, and agents (the “Indemnified Parties”) harmless for any damages, losses, judgments, costs, monetary penalties, expenses, reasonable attorneys’ fees, claims, investigations, and actions arising out of or relating to: (a) your use of the Site or Services in violation of any law, rule, regulation; (b) your breach of any terms, conditions, covenants, representations, or warranties in these Terms; (c) your failure as a User to comply with any law applicable to a user of Screening Reports including providing compliant disclosure forms, authorization forms, pre-adverse action forms, and final adverse action forms; (d) the inaccuracy of any information you provide to ClearChecks; or (e) your willful or malicious conduct relating to any violation described in this Section 15. ClearChecks reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any such claim or matter without the prior written consent of ClearChecks.

16) Warranties and Disclaimers

Each party represents and warrants to the other party that: (i) it has the full power and authority to enter into the terms and conditions of these Terms; and (ii) the Terms constitute a legal, valid and binding obligation.

YOU ACKNOWLEDGE THAT THE SITE AND THE SERVICES ARE PRESENTED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CLEARCHECKS DISCLAIMS REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, OR IMPLIED WARRANTIES ARISING FROM THE COURSE OF DEALING OR A COURSE OF PERFORMANCE IN CONNECTION WITH THESE SITE TERMS OR THE SITE OR ITS CONTENT OR SERVICES, INCLUDING BUT NOT LIMITED TO THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY INFORMATION PROVIDED THROUGH THE SITE OR SERVICES, THAT THE SITE OR SERVICES WILL MEET YOUR NEEDS, OR WILL BE PROVIDED ON AN UNINTERRUPTED BASIS. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE AND SERVICES IS AT YOUR SOLE RISK.

17) Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, CLEARCHECKS AND ITS SUBSIDIARIES, AFFILIATES, PARTNERS, LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS WILL NOT BE RESPONSIBLE OR LIABLE IN CONTRACT, WARRANTY, OR TORT (INCLUDING NEGLIGENCE) FOR ANY (a) INTERRUPTION OF THE SITE OR SERVICES; (b) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE SITE; (c) DATA NON-DELIVERY, MISDELIVERY, CORRUPTION, DESTRUCTION, OR OTHER MODIFICATION; (d) LOSS OR DAMAGES OF ANY SORT INCURRED AS A RESULT OF DEALINGS WITH OR THE PRESENCE OF OFF-WEBSITE LINKS ON THE SITE; (e) COMPUTER VIRUSES, SYSTEM FAILURES, OR MALFUNCTIONS WHICH MAY OCCUR IN CONNECTION WITH YOUR USE OF THE SITE OR SERVICES; (f) ANY INACCURACIES, ERRORS, OR OMISSIONS IN INFORMATION PROVIDED THROUGH THE SITE OR SERVICES, OR (g) EVENTS BEYOND OUR REASONABLE CONTROL.

FURTHER, CLEARCHECKS WILL NOT BE LIABLE IN CONTRACT, WARRANTY, OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY FOR ANY INDIRECT, PUNITIVE, SPECIAL, RELIANCE, INCIDENTAL, CONSEQUENTIAL, OR SIMILAR DAMAGES OF ANY KIND (INCLUDING LOSS OF REVENUE OR PROFITS) ARISING OUT OF OR RELATING TO THESE TERMS, THE SITE OR YOUR USE THEREOF, INCLUDING THE USE OR INABILITY TO USE THE SITE OR SERVICES, OR FOR ANY INFORMATION OBTAINED FROM OR THROUGH THE SITE OR SERVICES, EVEN IF CLEARCHECKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF CLEARCHECKS EXCEED THE AMOUNT PAID TO CLEARCHECKS UNDER THESE TERMS DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE INITIATION OF ANY CLAIM FOR DAMAGES.

Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you. If any portion of this Section 17 is held to be invalid, the invalidity of such portion shall not affect the validity of the remaining portions of this Section 17.

18) Arbitration and Class Action Waiver (“Arbitration Agreement”)

PLEASE READ THIS SECTION 18 CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND CLEARCHECKS CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION 18 WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND CLEARCHECKS TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION IN COURT.

a) Agreement to Arbitrate

In exchange for the mutual promises to arbitrate claims, you and ClearChecks mutually agree to give up our rights to resolve disagreements in a court of law by a judge or jury, and, as described below, agree to binding and final arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. § 1, et seq.

You and ClearChecks agree that this Arbitration Agreement is governed by the Federal Arbitration Act, and shall survive even after these Terms or any Services terminate.

b) Claims Covered by Arbitration Agreement

This Arbitration Agreement is intended to be as broad as legally permissible, and, other than the exceptions below, you and ClearChecks agree that any disagreement, claim, or controversy, past, present, or future, based on any legal theory whatsoever, including negligence, breach of contract, tort, fraud, misrepresentation, the common law, or any statute, regulation or ordinance, and including without limitation, arising out of or relating in any way to these Terms (including its enforcement, breach, performance, interpretation, validity, or termination), or your access to and/or use of the Services, or the provision of content, services, and/or technology on or through the Services (hereinafter, “Claims”), shall be resolved by final and binding arbitration.

c) Claims not Covered by Arbitration Agreement and Limitations to how this Arbitration Agreement Applies

Claims that controlling federal statutes state cannot be arbitrated or subject to a pre-dispute arbitration agreement are not covered by this Arbitration Agreement; and claims under California law for an injunction on behalf of the general public, which may only be maintained in a court of competent jurisdiction; however, that court proceeding shall be stayed until the completion of arbitration in accordance with this Arbitration Agreement of all other remedies sought under California law (such as damages and private injunctive relief).

Either party has the right to file an individual action in small claims court demanding $10,000 or less that is within the jurisdiction of the small claims court. The defendant or counterclaim defendant in such a small claims court action may not elect to have the claim resolved by binding arbitration. If your jurisdiction permits small claims court judgments to be appealed to a court of general jurisdiction for a trial de novo, we agree that any such appeal shall be resolved in arbitration in accordance with this Arbitration Agreement instead of in that court of general jurisdiction. This Arbitration Agreement does not cover criminal proceedings initiated by you or ClearChecks, and initiating or participating in criminal proceedings shall not be a waiver of any right to arbitrate under this Arbitration Agreement.

Additionally, either party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy, including without limitation, any dispute arising out of or related to, actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. The court to which the application is made is authorized to consider the merits of the arbitrable controversy to the extent it deems necessary in making its ruling, but only to the extent permitted by applicable law. All determinations of final relief, however, will be decided in arbitration.

d) Delegation to Arbitrator

Except with respect to the Class Action Waiver below, the arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the validity, applicability, enforceability, unconscionability, or waiver of this Arbitration Agreement, including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable.

e) Class Action Waiver

You and ClearChecks agree to bring and resolve any Claims only on an individual basis. YOU AND CLEARCHECKS WAIVE ANY RIGHT FOR ANY DISPUTE TO BE BROUGHT, HEARD, DECIDED OR ARBITRATED AS A CLASS, REPRESENTATIVE, AND/OR COLLECTIVE ACTION AND THE ARBITRATOR WILL HAVE NO AUTHORITY TO HEAR OR PRESIDE OVER ANY SUCH CLAIM (hereinafter, “Class Action Waiver”). Further, the arbitrator may not consolidate more than one party’s claims and may not preside over any class, consolidated, or representative proceeding, unless you and ClearChecks agree otherwise in writing.

If there is a final determination that the Class Action Waiver is unenforceable as to certain claims brought on a class, collective, and/or representative basis, then those claims shall be severed from any remaining claims and may proceed in court, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to any remaining claims to the fullest extent possible. The arbitrator is nevertheless without authority to preside over a class, collective and/or representative action.

Notwithstanding any other provision of this Arbitration Agreement or the applicable American Arbitration Association Rules (referenced below), disagreements about the scope, applicability, enforceability, revocability or validity of this Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator.

f) Procedures and Costs

You and ClearChecks agree that the arbitration shall be administered by the American Arbitration Association (“AAA”) before a single arbitrator. The arbitrator will apply the terms of this Arbitration Agreement and the applicable AAA rules, which are available at www.adr.org or by calling 1–800–778–7879. However, if there is any conflict between this Arbitration Agreement and the applicable AAA Rules, the parties agree this Arbitration Agreement shall govern.

  • If you are an individual person, the arbitrator shall apply the AAA Consumer Arbitration Rules. If you are not an individual person, but are an entity or company, the arbitrator shall apply the AAA Commercial Arbitration Rules.

    If you are an individual person and bring a claim solely for monetary relief of $10,000 or less: ClearChecks will agree to pay for any filing, administrative, or hearing fees charged by the AAA.

  • • If you are an individual person and bring a claim for monetary relief exceeding $10,000: The AAA Consumer Arbitration Rules will govern payment of administrative or hearing fees charged by the AAA, including limiting your filing fee to $200. In addition, fee waivers or other forms of cost relief at the arbitrator’s discretion may be available.

    If you are not an individual person: The AAA Commercial Arbitration Rules will govern payment of administrative or hearing fees charged by the AAA.

If the arbitrator finds that either party’s claim is frivolous or brought for an improper purpose, the arbitrator may award sanctions as allowed by applicable law.

g) Selection of Arbitrator and Procedures

For claims seeking relief valued at $75,000.00 or less (in both your and ClearChecks’ assessment), excluding attorney’s fees and costs, the AAA shall appoint the Arbitrator in accordance with its rules and procedures. For all claims seeking relief above $75,000.00 in value (in either your or ClearChecks’ assessment), excluding attorney’s fees and costs, unless prohibited by the AAA (in which case the AAA’s rules and procedures for arbitrator selection shall apply), the arbitrator shall be selected as follows: The AAA shall give each party a list of five (5) arbitrators drawn from its roster of arbitrators. Each party shall have ten (10) calendar days from the receipt of the list to strike all names on the list it deems unacceptable. If only one common name remains on the lists of all parties, that individual shall be designated as the arbitrator. If more than one common name remains on the lists of both parties, the parties shall strike names alternately from the list of common names until only one remains. The party who did not initiate arbitration shall strike first. If no common name remains on the lists of all parties, the AAA shall furnish an additional list of five (5) arbitrators from which the parties shall strike alternately, with the party who initiated arbitration striking first, until only one name remains. That person shall be designated as the arbitrator.

The arbitrator shall have the power to decide any motions, including dispositive or summary judgment motions, brought by any party to the arbitration. The arbitrator may grant any remedy, relief, or outcome that the parties could have received in court to resolve the party’s individual claim, including awards of attorney’s fees and costs, in accordance with the law or laws that apply to the Claim. The arbitrator shall provide in writing to the parties the basis for any award or decision. Judgment upon any award rendered in such arbitration will be binding and may be entered in any court with proper jurisdiction.

h) Severability

Except as stated in the Class Action Waiver above, if any clause within this arbitration agreement is found to be illegal or unenforceable, that specific clause will be severed from this arbitration agreement, and the remainder of the arbitration agreement will be given full force and effect. Additionally, if this Arbitration Agreement or any future arbitration agreement between the parties is deemed invalid, inapplicable, or unenforceable, any previous agreement to arbitrate between the parties shall continue to apply.

i) Opt-out

If you are an individual person, you have the right to opt-out and not be bound by this Arbitration Agreement by sending written notice to ClearChecks—clearly indicating your intent to opt out of this arbitration agreement and including the name, phone number, and email address associated with your account—via email to support [at] clearchecks [dot] com. In order to be effective, your opt-out notice must be sent within 30 days of your agreement to these Terms.

If you do not opt-out of this Arbitration Agreement within the 30-day period, you and ClearChecks shall be bound by the terms of this Arbitration Agreement in full. If you opt-out of this arbitration agreement within the 30-day period, it will not affect any other, previous, or future Arbitration Agreements that you may have with ClearChecks.

j) Pre-Arbitration Notification and Negotiation Process.

Prior to initiating an arbitration, you and ClearChecks each agree to first attempt to negotiate an informal resolution of any Claims. This pre-arbitration negotiation shall be initiated by providing written notice to the other party—including a brief written statement describing the name, address, and contact information of the notifying party, the facts giving rise to the Claim, and the relief requested. You must send such written notice to ClearChecks via email to support[at]clearchecks[dot]com ; ClearChecks will send such written notice to the email address you have provided to ClearChecks.

During this pre-arbitration negotiation, all offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability, in arbitration or other proceeding involving the parties.

After a good faith effort to negotiate, if you or ClearChecks believe a Claim cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) must be provided to the other party, as specified in the applicable AAA Rules.

19) Third-Party Links

The Services may contain links to third-party websites and other resources that are not owned or controlled by ClearChecks. These links do not imply any endorsement by ClearChecks or the assumption of any responsibility for any such third-party sites, information, materials, products, or services. If you access a third-party website or resource from the Services, you do so at your own risk, and you understand that these Terms and ClearChecks’ Privacy Policy do not apply to your use of such links. Any contract entered with, and any damages caused by, a third party will be between you and that third party.

You expressly relieve ClearChecks from any and all liability arising from your use of any third-party website, service, or content. You acknowledge and agree that ClearChecks is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. You should carefully review the privacy policies and terms and conditions of the third party websites you visit.

20) Term and Termination; Survival

a) Term

These Terms shall continue in full force and effect until such time as they are terminated by you or by us.

b) Termination by ClearChecks

ClearChecks may terminate these Terms or terminate or suspend your right to use the Site or Services at any time for any or no reason by providing you with notice of such termination to the Means of Communication you have provided us. Termination will be effective immediately upon such notice. ClearChecks will refund payments for Services that have not been delivered in accordance with Section 8 (Fees; Refunds & Cancellations) above.

c) Termination by You

You may terminate these Terms by completely and permanently ceasing to use the Site and Services, provided that you do not owe Fees for any Services. If you attempt to terminate these Terms while there are Services outstanding, your termination of these Terms will automatically cancel those Services.

d) Survival

All provisions that should by their nature survive the expiration or termination of these Terms, including without limitation, Sections 3, 6, 7, 10, 12, 14, 15-18, shall so survive.

21) General

a) Governing Law; Jurisdiction

Except for the Arbitration Agreement, which is governed by the Federal Arbitration Act, these Terms are governed by the laws of the Arizona without regard to choice of law rules or principles. For all disputes not subject to arbitration, you agree to submit to the personal and exclusive jurisdiction and venue of the courts located within Arizona.

b) Assignment

You may not assign any of your rights or obligations under these Terms without the prior written consent of ClearChecks. Subject to the preceding sentence, these Terms inure to the benefit of and are binding on ClearChecks’ assignees, parents, subsidiaries, and affiliates, future affiliates, transferees and successors, and on your assignees, transferees and successors, to the extent approved by ClearChecks. Any attempted assignment in violation of this clause is void.

c) Integration

You acknowledge and agree that these Terms constitute the parties’ complete and exclusive agreement concerning the use of the Site and Services, and, subject to Section 5 (Services Agreement), supersede and govern any and all prior or contemporaneous proposals, agreements, or other communications relating to the Site and Services.

d) Force Majeure

ClearChecks will not be responsible for any failure or delay in its performance under these Terms due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, pandemics, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.

e) Miscellaneous

The parties are independent contractors. Nothing contained in these Terms shall be construed as creating any employment, agency, partnership, franchise, joint venture, or other form of joint enterprise or authority to bind the other party. There are no third-party beneficiaries to these Terms. If any provision is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose. Any waiver of a provision of these Terms will only be valid if provided in writing and applies only to the specific occurrence so waived. Failure to enforce any provision will not constitute a waiver. Nothing in these Terms will limit a party’s ability to seek equitable relief. Section headings are not to be used in the interpretation of these Terms.

f) Notices and Consent to Receive Notices Electronically

You consent to receive any agreements, notices, disclosures, and other communications (collectively, “Notices”) to which these Terms refer from us electronically including without limitation by e-mail or by posting notices on this Site. You agree that all Notices that we provide to you electronically satisfy any legal requirement that such communications be in writing.

Unless otherwise specified in these Terms, all Notices under these Terms will be in writing and will be deemed to have been duly given (i) when received, if personally delivered or sent by certified or registered mail, return receipt requested; (ii) when receipt is electronically confirmed, if transmitted by facsimile or email; or (iii) the day after it is sent, if sent for next day delivery by recognized overnight delivery service.

Written notice to ClearChecks may be sent via email to support [at] clearchecks [dot] com

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