Invisible Apps, Inc. (dba: Aptly)
(Last Updated: January 2023)
All references to “you” or “your” in these Terms mean the person that registers for, accesses, or uses the Site, App, or the Platform. If you use or access the Platform on behalf of an entity or individual, you represent and warrant that you have the authority to bind that entity or individual, and “you” and “your” refers to that entity or individual as well. Our Platform is not intended for those under the age of 18 – if you access our Platform, you represent and warrant that you are at least 18 years of age. Please note that these Terms contain an arbitration provision and waiver of class action and jury trial.
Third Party Links and Content
To access and use the Platform, we may require you to first register for an account (“Account”). You agree to provide accurate, current, and complete information during the registration process, and to update such information to keep it accurate, current, and complete. If you create an Account, you are responsible for maintaining the confidentiality of your account and password, and for restricting access to your computer or device, and you agree to accept responsibility for all activities that occur under your registration, username, password, and/or Account. We therefore urge you not to share your Account credentials with anyone. We may, in our sole discretion, terminate your password, account (or any part thereof) or use of the Platform at any time and for any or no reason. We will not be liable to you or any third party for any termination of your access to the Platform. If your status as a user of the Platform is terminated, you will (i) stop using the Platform and any information obtained from the Platform; and (ii) destroy all copies of your account information, password and any information obtained from the Platform.
True and Accurate Information
Application & Screening Platform
The Site allows our Clients to easily accept rental applications and conduct screening on Renters for potential placement as a tenant. By using the Platform as a Client, you agree and affirm that (i) you are doing so for the sole purpose of evaluating the tenancy of Renters; (ii) you have lawful authority and intention to execute a lease on a vacant or soon-to-be vacant rental property; (iii) you will use all data, analysis and other information you learn about Renters through your use of the Site (“Data”) for legal internal business purposes only to properly evaluate the qualifications of Renters; (iv) all such Data will be treated as confidential information and held in a secure and compliant fashion, properly maintained until you have completed your analysis of each Renter after which all such Data will be promptly deleted; (v) approving or denying rental applications is at your sole discretion; (vi) your evaluation process of each Renter will be compliant with all relevant laws and regulations to include The Fair Credit Reporting Act (FCRA), 15 U.S.C. 1681-1681y the obligations of which are set forth in part in Appendix A below; and (vii) Aptly shall not be held liable in any way and you will indemnify us from and hold us harmless for your tenant approval decisions and any failure to understand or comply with all relevant laws and regulations.
The Fair Credit Reporting Act (FCRA), 15 U.S.C. 1681-1681y, requires that this notice be provided to inform users of consumer reports of their legal obligations.
We charge a fee to each Renter when they successfully submit a rental application. This fee is in addition to any other fees you may pay on the Platform and is not refundable to either the Renter or the Client regardless of the resulting rental decision. You may be charged more than one fee if your rental application is rejected or cannot be fully processed because you submitted inaccurate or incomplete information to us and we have to process your application again. Clients may pay this fee on behalf of Renters or they may request that we charge an additional fee to each Renter which will be paid directly to Clients pursuant to our regular payment terms. Clients may also charge additional fees to Renters outside of our involvement.
Once a Client has decided to lease property to a particular Renter, they may generate an electronic copy of their lease based on a form they have previously uploaded to the Platform. The Platform will then prompt both parties to sign each such lease. All Clients and Renters using the Platform to sign a lease represents and warrants that they have the full right, power and authority to do so and that such lease constitutes a binding agreement of such party. We have no control or responsibility over the content of any such lease or any dispute involving any such lease and both parties indemnify us from and hold us harmless against any and all liability associated with any such lease, all such leasing activity and all aspects of the resulting tenancy.
Once Renters have been approved by a Client to lease a property, we may allow such Renters to apply to purchase rental insurance through a third-party insurance partner such as Get Covered. We may share Data to include Personal Information with any such insurance partner and may coordinate premium payments consistent with our rental insurance program with each Client. Beyond these limited activities, we are not responsible for any other aspects of any such rental insurance and you will indemnify us from and hold us harmless against any and all liability associated with any such insurance policy you are a party to.
Additional Terms and Conditions
In connection with your use of the Platform, you may occasionally be asked to consent to policies or terms and conditions in addition to these Terms. Please read any supplemental policies and terms carefully before making any use of such portions of the Platform. Any supplemental terms will not vary or replace these Terms regarding any use of the Platform unless otherwise expressly stated. You are solely responsible for maintaining the confidentiality of your account login and password. You agree not to authorize any other person to use your account for any purpose. Except as otherwise provided by applicable law, you are solely responsible for any actions, transactions or other activities performed using your account.
Credit Report and Tenant Screening Fair Credit Reporting Act
As a Renter using the Platform to successfully submit your rental application, the Fair Credit Reporting Act allows you to obtain from each credit reporting agency a disclosure of all the information in your credit file at the time of your application. Full disclosure of information in your file at a credit reporting agency must be obtained directly from such credit reporting agency. The credit reports provided or requested through our Site are not intended to constitute the disclosure of information by a credit reporting agency as required by the Fair Credit Reporting Act or similar laws.
As a Renter, you are entitled to receive a free copy of your credit report from a credit reporting agency if:
- You have been denied or were otherwise notified of an adverse action related to credit, insurance, employment, or a government grant or other government granted benefit within the past sixty (60) days based on information in a credit report provided by such agency.
- You have been denied house/apartment rental or were required to pay a higher deposit than usually required within the past sixty (60) days based on information in a consumer report provided by such agency.
- You certify in writing that you are a recipient of public welfare assistance.
- You certify in writing that you have reason to believe that your file at such credit reporting agency contains inaccurate information due to fraud.
In addition, if you are a resident of Colorado, Maine, Maryland, Massachusetts, New Jersey, or Vermont, you may receive one free copy of your credit report each year from the credit bureaus. If you are a resident of Georgia, you may receive two free copies of your credit report each year from the credit bureaus. Otherwise, a consumer reporting agency may impose a reasonable charge for providing you with a copy of your credit report.
The Fair Credit Reporting Act provides that you may dispute inaccurate or incomplete information in your credit report. You are not required to purchase your credit report from the Site in order to dispute inaccurate or incomplete information in your report or to receive a copy of your report from Equifax, Experian, or TransUnion, the three national credit reporting agencies, or from any other credit reporting agency. The Fair Credit Reporting Act permits you to dispute inaccurate or incomplete information in your credit file. You understand that accurate information cannot be changed.
Consent and SMS
You may not access or use, or attempt to access or use, the Platform to take any action that could harm us or any third party, interfere with the operation of the Platform, or in a manner that violates any law(s).
For example, and without limitation, you may not:
- Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with any person or entity or the origin of any information you provide;
- Engage in unauthorized spidering, scraping or harvesting of content or personal information, or use any other unauthorized automated means to compile information;
- Use of any Data for any purpose other than to properly evaluate the qualifications of Renters;
- Obtain or attempt to gain unauthorized access to other computer systems, materials, information or any services available on or through the Platform;
- Collect or store personal data about other users of the Platform or solicit personal information from any individual without proper rights or the consent of the individual;
- Use any device, software or routine to interfere or attempt to interfere with the proper working of the Platform or any activity conducted on the Platform or attempt to probe, scan, test the vulnerability of, or breach the security of any system or network;
- Circumvent, reverse engineer, decipher, decompile, disassemble, decrypt or otherwise alter or interfere with (or attempt, encourage or support anyone else’s attempt to engage in such activities) any of the software comprising or in any way making up a part of the Platform. The use or distribution of tools designed for compromising security (e.g., password guessing programs, cracking tools or network probing tools) is strictly prohibited;
- Take any action that imposes an unreasonable or disproportionately large load on our network or infrastructure;
- Upload or otherwise transmit any communication, software or material that contains a virus or is otherwise harmful to Aptly’s or its users’ computers or systems;
- Send or cause to be sent any communication (including email) to other users without their consent (e.g., “mailbombs” or “spamming”);
- Violate, or encourage any conduct that would violate, any applicable law or regulation;
- Engage in fraud or misuse of the Platform;
- Cause damage, embarrassment, or adverse publicity to Aptly; or
- Engage in any other conduct that restricts or inhibits any person from using or enjoying the Platform or that, in our sole judgment, exposes us or any of our users, Clients, Linked Sites, affiliates or any other third party to any liability, damages or detriment of any type.
Violations of system or network security may result in civil or criminal liability. We may investigate and work with law enforcement authorities to prosecute users who violate these Terms. We may suspend or terminate your access to the Platform for any or no reason at any time without notice.
Unless specifically requested, we do not wish to receive any confidential, proprietary, or trade secret from you via the Platform (including via contact email or forms made available on the Platform). You remain fully responsible for the materials that you provide to us, including, without limitation, information, requests, creative works, pictures, photographs, letters, documents, demos, ideas, suggestions, feedback, reviews, concepts, methods, systems, designs, plans, techniques, or other materials submitted, posted, uploaded, sent, or otherwise transmitted to us (“User Content”). If you send Aptly any User Content, you grant Aptly a royalty-free, unrestricted, worldwide, perpetual, irrevocable, non-exclusive and fully transferable, assignable, and sub-licensable right and license to use, copy, reproduce, modify, adapt, print, publish, translate, create derivative works from, create collective works from, and distribute, perform, display, license and sublicense (through multiple levels) such User Content in any media now known or hereinafter invented, including for commercial purposes. In addition to the rights applicable to any User Content, when you post comments or reviews to our Platform or via mentions in social media, you also grant us the right to use the name, username, or profile that you submit with any comment, review, or other content, in connection with the comment, review or other content.
You agree not to provide User Content that:
- Infringes on the copyright, trademark, patent or other intellectual property right of any third party;
- Is false, misleading, libelous, defamatory, obscene, abusive, hateful or sexually explicit;
- Violates a third party’s right to privacy or publicity;
- Degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification;
- Contains epithets or other language or material intended to intimidate or incite violence;
- Contains a virus, worm, Trojan Horse, time bomb or any other harmful program or component;
- Contains any commercial material or solicits any funds (charitable or commercial), perpetuates chain letters or pyramid schemes, promotes commercial entities, or otherwise engages in commercial activity; or
- Violates any applicable local, state, national or international law, or advocates illegal activity.
Since we do not control the User Content entered into or otherwise posted on the Platform, we do not guarantee the truthfulness, integrity, suitability, or quality of the User Content, and we do not endorse such User Content. We are not obligated to use your User Content and may delete, modify, reuse, move or remove any User Content at any time. We do not guarantee any confidentiality with respect to any User Content. Under no circumstances will Aptly be liable in any way for User Content made available through the Platform by you or any third party.
The obligations that you have to us under these Terms shall survive termination of the Platform, any use by you of the Platform, as well as any User Content uploaded or sent through the Platform, or the termination of these Terms.
This Platform contains content that is protected under the copyright, trademark and other intellectual property laws of the United States and other countries (“Content”) and these rights are valid and protected in all forms, media, and technologies existing now and hereinafter developed. Unless otherwise provided in these Terms or elsewhere indicated on the Website, all intellectual property rights in the Content are owned by us or our third-party licensors to the full extent permitted under United States and international intellectual property laws, including, without limitation, all videos, text, graphics, user interfaces, visual interfaces, photographs, moving images, illustrations, files, trademarks, logos, service marks, artwork, computer code, design, structure, selection, coordination, “look and feel,” and arrangement of the Content. All trademarks displayed on our Platform are the trademarks of their respective owners, and constitute neither an endorsement nor a recommendation of such parties. In addition, any use of trademarks or inks to the websites of third parties is not intended to imply that those third parties endorse or have any affiliation with Aptly.
Your use of this Platform shall not grant you any claim of ownership over any Content, and you agree to comply with all applicable intellectual property laws. You may print copies of the Content, provided that these copies are made only for personal, non-commercial use, and provided that you maintain any notices contained in the Content, or maintained by the licensor or author, such as all copyright notices, trademark legends, attributions, by-lines or other proprietary rights notices. You may not publish, reproduce, distribute, display, perform, edit, adapt, modify, or otherwise exploit any part of the Platform, including the Aptly name and logo, without our prior written consent. You may provide a link to the top page of the Website unless and until Aptly gives notice that you must discontinue linking to the Website. You may not store electronically any significant portion of Content from this Platform. The use of Content from this Platform on any other site, including by linking or framing, or in any networked computer environment, for any purpose, is prohibited without our prior written approval.
Claims of Infringement
We respect the intellectual property of others and requires that you do the same. In the event that you find content posted on our Platform that you believe infringes the copyright ownership or other intellectual property rights of you, your company, or any third party, you are requested to immediately contact our Copyright Agent as described below, in accordance with the Digital Millennium Copyright Act (“DMCA”). We will promptly respond to notices of alleged copyright infringement that are duly reported and we will disable and/or remove access to the website for users who are repeat infringers.
To report alleged infringement, please provide our Copyright Agent the following information:
- DMCA Notice of Alleged Infringement (“Notice”).
- Identify the copyrighted work that you claim has been infringed, or if multiple works are covered by this Notice you may provide a representative list of the copyrighted works that you claim have been infringed.
- Identify the material or link you claim is infringing and provide a description of where the infringing work is located on the website.
- Provide your mailing address, telephone number and, if available, email address.
- Include both of the following statements in the body of the Notice:
- “I hereby state that I have a good-faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., fair use).”
- “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
- Provide your full legal name and your electronic or physical signature.
- Deliver this Notice, with all items completed, to the Aptly Copyright Agent:
- Invisible Apps, Inc., Attn: Legal – Copyright Agent. 2167 East Francisco Blvd, Suite A, San Rafael, California, 94901, United States.
- Email Address: [email protected].com, subject line “DMCA Notice”
While we consider all such notices seriously, you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that content or activity is infringing. Accordingly, if you are uncertain whether material infringes your copyrights (including whether use of copyrighted material may constitute fair use) you may wish to seek the advice of an attorney.
These Terms apply to your use of all the Platform, including the iOS application available via the Apple, Inc. (“Apple”) App Store (the “Application”), but the following additional terms also apply to the Application:
- Both you and Aptly acknowledge that the Terms are concluded between you and Aptly only, and not with Apple, and that Apple is not responsible for the Application or the Content;
- The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Platform, subject to all the terms and conditions of these Terms;
- You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
- In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
- You acknowledge and agree that Aptly, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
- You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Aptly, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
- Both you and Aptly acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
- Both you and Aptly acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.
You agree to defend, indemnify, and hold harmless Aptly, its officers, directors, affiliates, agents and employees, from and against any claims, losses, damages, fines, penalties or other liabilities, including reasonable attorney’s fees and costs, made by any third party due to or arising out of your posting of any content on our Platform, or any other use of our Platform in a manner not permitted by these Terms or where you have otherwise agreed to indemnify us, including without limitation, (i) your actual or alleged violation of any of these Terms, and/or (ii) your violation of any third party right, including any copyright, trademark, trade secret or privacy right related to your User Content (as applicable) or use of this Platform or any Data, or any other user of the Platform using your computer, mobile device, or account credentials.
Disclaimer of Warranties
YOUR USE OF THE PLATFORM IS AT YOUR OWN RISK. WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE OPERATION OF THE PLATFORM OR THE INFORMATION, MATERIALS, GOODS OR SERVICES APPEARING OR OFFERED ON THE PLATFORM, ALL OF WHICH ARE PROVIDED “AS IS.” WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY (1) WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (2) WARRANTIES AGAINST INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS; (3) WARRANTIES RELATING TO THE TRANSMISSION OR DELIVERY OF THE PLATFORM; (4) WARRANTIES RELATING TO THE ACCURACY, RELIABILITY, CORRECTNESS OR COMPLETENESS OF DATA MADE AVAILABLE ON THE PLATFORM OR OTHERWISE BY APTLY; (5) WARRANTIES OTHERWISE RELATING TO PERFORMANCE, NONPERFORMANCE OR OTHER ACTS OR OMISSIONS BY APTLY OR ANY THIRD PARTY; AND (6) WARRANTY OF TITLE. FURTHER, APTLY DOES NOT WARRANT THAT THE PLATFORM WILL MEET YOUR NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, (1) THAT THE PLATFORM OR ANY EMAIL WE SEND YOU IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS THAT MAY INFECT YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY BECAUSE OF YOUR ACCESS TO, USE OF OR BROWSING ON THE PLATFORM OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO OR AUDIO FROM THE PLATFORM; OR (2) THAT THE PLATFORM, CONTENT, FUNCTIONS OR MATERIALS CONTAINED THEREIN WILL BE TIMELY, SECURE, ACCURATE, COMPLETE, UP-TO-DATE OR UNINTERRUPTED. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
Limitation of Liability
Applicable Law; Jurisdiction
These Terms are governed by, and must be construed in accordance with, the laws of the United States and the State of California, as applicable, without resort to any conflict of laws, provisions. By using the Platform, you waive any claims that may arise under the laws of other countries or territories.
Dispute Resolution; Class Action and Jury Trial Waiver
Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis and neither you nor Aptly will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings. To the extent permitted by law, any claim or dispute under this agreement must be filed within one year in an arbitration proceeding, regardless of any statute or law to the contrary. The one-year period begins when the claim or notice of dispute first could be filed. If a claim or dispute is not filed within one year, it is permanently barred. If any other provision of this section is found to be illegal or unenforceable, that provision will be severed, with the remainder of this section remaining in full force and effect.
You agree that Aptly is entitled to obtain preliminary injunctive relief to the extent allowed by law to enforce any of the terms of these Terms pending a final arbitral decision, and you and Aptly understand that you are NOT required to arbitrate any dispute in which either party seeks equitable and other relief from the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. Any disputes that are not handled by arbitration shall be filed only in the state and federal courts located in San Francisco, California, and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts.
Access Outside the United States
You agree and understand that these Terms, together with any other applicable click-through agreements you may have entered into regarding our Platform, constitutes the entire agreement between Aptly and you regarding your use of the Platform, superseding any prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us. In the event any provision of these Terms is held unenforceable, it will not affect the validity or enforceability of the remaining provisions and will be replaced by an enforceable provision that comes closest to the intention underlying the unenforceable provision. You agree that no joint venture, partnership, employment or agency relationship exists between you and Aptly as a result of these Terms or your access to and use of the Platform. You further agree that these Terms and any other agreements referenced herein may be assigned by us, in our sole discretion, to a third party in the event of a merger or acquisition or otherwise. Our failure to enforce any provisions of these Terms or respond to a violation by any party does not waive our right to subsequently enforce any terms or conditions of the Terms or respond to any violations. Nothing contained in these Terms is in derogation of our right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Platform or information provided to or gathered by us with respect to such use.
You may contact us at the following address: Invisible Apps, Inc., Attn: Legal, 2167 East Francisco Blvd, Suite A, San Rafael, California, 94901, United States and at [email protected].
NOTICE TO USERS OF CONSUMER REPORTS: OBLIGATIONS OF USERS UNDER THE FCRA
The Fair Credit Reporting Act (FCRA), 15 U.S.C. 1681-1681y, requires that this notice be provided to inform users of consumer reports of their legal obligations. State law may impose additional requirements. The text of the FCRA is set forth in full at the Consumer Financial Protection Bureau’s Website at www.consumerfinance.gov/learnmore. At the end of this document is a list of United States Code citations for the FCRA. Other information about user duties is also available at the Bureau’s Web site. Users must consult the relevant provisions of the FCRA for details about their obligations under the FCRA.
The first section of this summary sets forth the responsibilities imposed by the FCRA on all users of consumer reports. The subsequent sections discuss the duties of users of reports that contain specific types of information, or that are used for certain purposes, and the legal consequences of violations. If you are a furnisher of information to a consumer reporting agency (CRA), you have additional obligations and will receive a separate notice from the CRA describing your duties as a furnisher.
I. OBLIGATIONS OF ALL USERS OF CONSUMER REPORTS
A. Users Must Have a Permissible Purpose
Congress has limited the use of consumer reports to protect consumers’ privacy. All users must have a permissible purpose under the FCRA to obtain a consumer report. Section 604 contains a list of the permissible purposes under the law. These are:
- As ordered by a court or a federal grand jury subpoena. Section 604(a)(1)
- As instructed by the consumer in writing. Section 604(a)(2)
- For the extension of credit as a result of an application from a consumer, or the review or collection of a consumer’s account. Section 604(a)(3)(A)
- For employment purposes, including hiring and promotion decisions, where the consumer has given written permission. Sections 604(a)(3)(B) and 604(b)
- For the underwriting of insurance as a result of an application from a consumer. Section 604(a)(3)(C)
- When there is a legitimate business need, in connection with a business transaction that is initiated by the consumer. Section 604(a)(3)(F)(i)
- To review a consumer’s account to determine whether the consumer continues to meet the terms of the account. Section 604(a)(3)(F)(ii)
- To determine a consumer’s eligibility for a license or other benefit granted by a governmental instrumentality required by law to consider an applicant’s financial responsibility or status. Section 604(a)(3)(D)
- For use by a potential investor or servicer, or current insurer, in a valuation or assessment of the credit or prepayment risks associated with an existing credit obligation. Section 604(a)(3)(E)
- For use by state and local officials in connection with the determination of child support payments, or modifications and enforcement thereof. Sections 604(a)(4) and 604(a)(5)
In addition, creditors and insurers may obtain certain consumer report information for the purpose of making “prescreened” unsolicited offers of credit or insurance. Section 604(c). The particular obligations of users of “prescreened” information are described in Section VII below.
B. Users Must Provide Certifications
Section 604(f) prohibits any person from obtaining a consumer report from a consumer reporting agency (CRA) unless the person has certified to the CRA the permissible purpose(s) for which the report is being obtained and certifies that the report will not be used for any other purpose.
C. Users Must Notify Consumers When Adverse Actions Are Taken
The term “adverse action” is defined very broadly by Section 603. “Adverse actions” include all business, credit, and employment actions affecting consumers that can be considered to have a negative impact as defined by Section 603(k) of the FCRA – such as denying or canceling credit or insurance, or denying employment or promotion. No adverse action occurs in a credit transaction where the creditor makes a counteroffer that is accepted by the consumer.
- Adverse Actions Based on Information Obtained From a CRA
If a user takes any type of adverse action as defined by the FCRA that is based at least in part on information contained in a consumer report, Section 615(a) requires the user to notify the consumer. The notification may be done in writing, orally, or by electronic means. It must include the following:
- The name, address, and telephone number of the CRA (including a toll-free telephone number, if it is a nationwide CRA) that provided the report.
- A statement that the CRA did not make the adverse decision and is not able to explain why the decision was made.
- A statement setting forth the consumer’s right to obtain a free disclosure of the consumer’s file from the CRA if the consumer makes a request within 60 days.
A statement setting forth the consumer’s right to dispute directly with the CRA the accuracy or completeness of any information provided by the CRA.
- Adverse Actions Based on Information Obtained From Third Parties Who Are Not Consumer Reporting Agencies
If a person denies (or increases the charge for) credit for personal, family, or household purposes based either wholly or partly upon information from a person other than a CRA, and the information is the type of consumer information covered by the FCRA, Section 615(b)(1) requires that the user clearly and accurately disclose to the consumer his or her right to be told the nature of the information that was relied upon if the consumer makes a written request within 60 days of notification. The user must provide the disclosure within a reasonable period of time following the consumer’s written request.
- Adverse Actions Based on Information Obtained From Affiliates
If a person takes an adverse action involving insurance, employment, or a credit transaction initiated by the consumer, based on information of the type covered by the FCRA, and this information was obtained from an entity affiliated with the user of the information by common ownership or control, Section 615(b)(2) requires the user to notify the consumer of the adverse action. The notice must inform the consumer that he or she may obtain a disclosure of the nature of the information relied upon by making a written request within 60 days of receiving the adverse action notice. If the consumer makes such a request, the user must disclose the nature of the information not later than 30 days after receiving the request. If consumer report information is shared among affiliates and then used for an adverse action, the user must make an adverse action disclosure as set forth in I.C.1 above.
D. Users Have Obligations When Fraud and Active Duty Military Alerts are in Files
When a consumer has placed a fraud alert, including one relating to identity theft, or an active duty military alert with a nationwide consumer reporting agency as defined in Section 603(p) and resellers, Section 605A(h) imposes limitations on users of reports obtained from the consumer reporting agency in certain circumstances, including the establishment of a new credit plan and the issuance of additional credit cards. For initial fraud alerts and active duty alerts, the user must have reasonable policies and procedures in place to form a belief that the user knows the identity of the applicant or contact the consumer at a telephone number specified by the consumer; in the case of extended fraud alerts, the user must contact the consumer in accordance with the contact information provided in the consumer’s alert.
E. Users Have Obligations When Notified of an Address Discrepancy
Section 605(h) requires nationwide CRAs, as defined in Section 603(p), to notify users that request reports when the address for a consumer provided by the user in requesting the report is substantially different from the addresses in the consumer’s file. When this occurs, users must comply with regulations specifying the procedures to be followed, which will be issued by the Consumer Financial Protection Bureau and the banking and credit union regulators. The Consumer Financial Protection Bureau’s regulations will be available at www.consumerfinance.gov/learnmore.
F. Users Have Obligations When Disposing of Records
Section 628 requires that all users of consumer report information have in place procedures to properly dispose of records containing this information. The Consumer Financial Protection Bureau, the Securities and Exchange Commission, and the banking and credit union regulators have issued regulations covering disposal. The Consumer Financial Protection Bureau’s regulations may be found at www.consumerfinance.gov/learnmore.
II. CREDITORS MUST MAKE ADDITIONAL DISCLOSURES
If a person uses a consumer report in connection with an application for, or a grant, extension, or provision of, credit to a consumer on material terms that are materially less favorable than the most favorable terms available to a substantial proportion of consumers from or through that person, based in whole or in part on a consumer report, the person must provide a risk-based pricing notice to the consumer in accordance with regulations to be jointly prescribed by the Consumer Financial Protection Bureau and the Federal Reserve Board.
Section 609(g) requires a disclosure by all persons that make or arrange loans secured by residential real property (one to four units) and that use credit scores. These persons must provide credit scores and other information about credit scores to applicants, including the disclosure set forth in Section 609(g)(1)(D) (“Notice to the Home Loan Applicant”).
III. OBLIGATIONS OF USERS WHEN CONSUMER REPORTS ARE OBTAINED FOR EMPLOYMENT PURPOSES
A. Employment Other Than in the Trucking Industry
If information from a CRA is used for employment purposes, the user has specific duties, which are set forth in Section 604(b) of the FCRA. The user must:
- Make a clear and conspicuous written disclosure to the consumer before the report is obtained, in a document that consists solely of the disclosure, that a consumer report may be obtained.
- Obtain from the consumer prior written authorization. Authorization to access reports during the term of employment may be obtained at the time of employment.
- Certify to the CRA that the above steps have been followed, that the information being obtained will not be used in violation of any federal or state equal opportunity law or regulation, and that, if any adverse action is to be taken based on the consumer report, a copy of the report and a summary of the consumer’s rights will be provided to the consumer.
- Before taking an adverse action, the user must provide a copy of the report to the consumer as well as the summary of consumer’s rights. (The user should receive this summary from the CRA.) A Section 615(a) adverse action notice should be sent after the adverse action is taken.
An adverse action notice also is required in employment situations if credit information (other than transactions and experience data) obtained from an affiliate is used to deny employment. Section 615(b)(2)
The procedures for investigative consumer reports and employee misconduct investigations are set forth below.
IV. OBLIGATIONS WHEN INVESTIGATIVE CONSUMER REPORTS ARE USED
Investigative consumer reports are a special type of consumer report in which information about a consumer’s character, general reputation, personal characteristics, and mode of living is obtained through personal interviews by an entity or person that is a consumer reporting agency. Consumers who are the subjects of such reports are given special rights under the FCRA. If a user intends to obtain an investigative consumer report, Section 606 requires the following:
- The user must disclose to the consumer that an investigative consumer report may be obtained. This must be done in a written disclosure that is mailed, or otherwise delivered, to the consumer at some time before or not later than three days after the date on which the report was first requested. The disclosure must include a statement informing the consumer of his or her right to request additional disclosures of the nature and scope of the investigation as described below, and the summary of consumer rights required by Section 609 of the FCRA. (The summary of consumer rights will be provided by the CRA that conducts the investigation.)
- The user must certify to the CRA that the disclosures set forth above have been made and that the user will make the disclosure described below.
- Upon the written request of a consumer made within a reasonable period of time after the disclosures required above, the user must make a complete disclosure of the nature and scope of the investigation. This must be made in a written statement that is mailed, or otherwise delivered, to the consumer no later than five days after the date on which the request was received from the consumer or the report was first requested, whichever is later in time.
V. SPECIAL PROCEDURES FOR EMPLOYEE INVESTIGATIONS
Section 603(x) provides special procedures for investigations of suspected misconduct by an employee or for compliance with Federal, state or local laws and regulations or the rules of a self-regulatory organization, and compliance with written policies of the employer. These investigations are not treated as consumer reports so long as the employer or its agent complies with the procedures set forth in Section 603(x), and a summary describing the nature and scope of the inquiry is made to the employee if an adverse action is taken based on the investigation.
VI. OBLIGATIONS OF USERS OF MEDICAL INFORMATION
Section 604(g) limits the use of medical information obtained from consumer reporting agencies (other than payment information that appears in a coded form that does not identify the medical provider). If the information is to be used for an insurance transaction, the consumer must give consent to the user of the report or the information must be coded. If the report is to be used for employment purposes – or in connection with a credit transaction (except as provided in regulations issued by the banking and credit union regulators) – the consumer must provide specific written consent and the medical information must be relevant. Any user who receives medical information shall not disclose the information to any other person (except where necessary to carry out the purpose for which the information was disclosed, or as permitted by statute, regulation, or order).
VII. OBLIGATIONS OF USERS OF “PRESCREENED” LISTS
The FCRA permits creditors and insurers to obtain limited consumer report information for use in connection with unsolicited offers of credit or insurance under certain circumstances. Sections 603(l), 604(c), 604(e), and 615(d). This practice is known as “prescreening” and typically involves obtaining from a CRA a list of consumers who meet certain pre-established criteria. If any person intends to use prescreened lists, that person must (1) before the offer is made, establish the criteria that will be relied upon to make the offer and to grant credit or insurance, and (2) maintain such criteria on file for a three-year period beginning on the date on which the offer is made to each consumer. In addition, any user must provide with each written solicitation a clear and conspicuous statement that:
- Information contained in a consumer’s CRA file was used in connection with the transaction.
- The consumer received the offer because he or she satisfied the criteria for credit worthiness or insurability used to screen for the offer.
- Credit or insurance may not be extended if, after the consumer responds, it is determined that the consumer does not meet the criteria used for screening or any applicable criteria bearing on credit worthiness or insurability, or the consumer does not furnish required collateral.
- The consumer may prohibit the use of information in his or her file in connection with future prescreened offers of credit or insurance by contacting the notification system established by the CRA that provided the report. The statement must include the address and toll-free telephone number of the appropriate notification system.
In addition, once the Consumer Financial Protection Bureau by rule has established the format, type size, and manner of the disclosure required by Section 615(d), users must be in compliance with the rule. The CFPB’s regulations will be at www.consumerfinance.gov/learnmore.
VIII. OBLIGATIONS OF RESELLERS
- Disclosure and Certification Requirements
Section 607(e) requires any person who obtains a consumer report for resale to take the following steps:
- Disclose the identity of the end-user to the source CRA.
- Identify to the source CRA each permissible purpose for which the report will be furnished to the end-user.
- Establish and follow reasonable procedures to ensure that reports are resold only for permissible purposes, including procedures to obtain:
- the identity of all end-users;
- Certifications from all users of each purpose for which reports will be used; and
- certifications that reports will not be used for any purpose other than the purpose(s) specified to the reseller. Resellers must make reasonable efforts to verify this information before selling the report.
- Reinvestigations by Resellers
Under Section 611(f), if a consumer disputes the accuracy or completeness of information in a report prepared by a reseller, the reseller must determine whether this is a result of an action or omission on its part and, if so, correct or delete the information. If not, the reseller must send the dispute to the source CRA for reinvestigation. When any CRA notifies the reseller of the results of an investigation, the reseller must immediately convey the information to the consumer.
- Fraud Alerts and Resellers
Section 605A(f) requires resellers who receive fraud alerts or active duty alerts from another consumer reporting agency to include these in their reports.
IX. LIABILITY FOR VIOLATIONS OF THE FCRA
Failure to comply with the FCRA can result in state government or federal government enforcement actions, as well as private lawsuits. Sections 616, 617, and 621. In addition, any person who knowingly and willfully obtains a consumer report under false pretenses may face criminal prosecution. Section 619.
The CFPB’s Web site, www.consumerfinance.gov/learnmore, has more information about the FCRA, including publications for businesses and the full text of the FCRA.
Citations for FCRA sections in the U.S. Code, 15 U.S.C. § 1681 et seq.:
|Section 602||15 U.S.C. 1681|
|Section 603||15 U.S.C. 1681a|
|Section 604||15 U.S.C. 1681b|
|Section 605||15 U.S.C. 1681c|
|Section 605A||15 U.S.C. 1681cA|
|Section 605B||15 U.S.C. 1681cB|
|Section 606||15 U.S.C. 1681d|
|Section 607||15 U.S.C. 1681e|
|Section 608||15 U.S.C. 1681f|
|Section 609||15 U.S.C. 1681g|
|Section 610||15 U.S.C. 1681h|
|Section 611||15 U.S.C. 1681i|
|Section 612||15 U.S.C. 1681j|
|Section 613||15 U.S.C. 1681k|
|Section 614||15 U.S.C. 1681l|
|Section 615||15 U.S.C. 1681m|
|Section 616||15 U.S.C. 1681n|
|Section 617||15 U.S.C. 1681o|
|Section 618||15 U.S.C. 1681p|
|Section 619||15 U.S.C. 1681q|
|Section 620||15 U.S.C. 1681r|
|Section 621||15 U.S.C. 1681s|
|Section 622||15 U.S.C. 1681s-1|
|Section 623||15 U.S.C. 1681s-2|
|Section 624||15 U.S.C. 1681t|
|Section 625||15 U.S.C. 1681u|
|Section 626||15 U.S.C. 1681v|
|Section 627||15 U.S.C. 1681w|
|Section 628||15 U.S.C. 1681x|
|Section 629||15 U.S.C. 1681y|