Terms of Use

NOTICE: THIS CONTRACT CONTAINS A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW.

Welcome to the Backgrounds Online / I Am Screened (“BGO”) services portal (the “Site,” or where available via mobile device, the “App”). Through the Site or App, You (as defined below) will have the ability to use the services provided via the Site which are specific to Your authorization level (“Services”). By clicking “I Agree” and accessing or using this Site or the App, You agree to follow and be bound by the following terms and conditions concerning Your access to and use of the Site and the App (“Terms of Use”). If You do not agree to these Terms of Use, continued use of the Site or App by You is not authorized.

These Terms of Use apply to, and “You” or “Your” as used in these Terms of Use cover, all BGO customers and users of the Site or App, including but not limited to individuals, employers, and similar organizations who utilize the Services to screen current or prospective employees or applicants (sometimes herein referred to as “prospect”). Any person who uses the Services on behalf of a business entity is a “User”. Any User who uses the services on behalf of a business entity hereby represents and warrants that he or she has the authority to bind that business entity. As such, a User’s acceptance of the Terms of Use will be deemed an acceptance by that business entity, and “You” and “Your” as used in these Terms of Use shall refer to that entity.

BGO may revise the Terms of Use at any time by posting the changes on the Site. The revised Terms of Use will be effective fifteen (15) days after they are posted to the Site. The most current version will be available on the Site, and the Effective Date of the current version is at the top of the Terms of Use. By continuing to access or use the services after revisions to the Terms of Use become effective, You agree to be bound by the revised Terms of Use, except as provided in the Arbitration and Class Waiver section below.

1. End User Obligations

1.1. Use of Site

The purpose of this website is to enable You to evaluate Submissions as a Backgrounds Online / I Am Screened client and submit requests for background reports via our Services. Individuals who use this Site on behalf of a BGO client shall be solely the employees or agents of such entity and shall be under the sole and exclusive direction and control of such entity. The User and User’s employer shall be responsible for compliance with all laws, rules and regulations involving its respective employees or agents, including (but not limited to) the Fair Credit Reporting Act and any state or local law background screening laws. You agree not to (i) resell; sublicense; (ii) otherwise use any content, materials, or data on; or access to; the website, App, or Services without our prior written consent; or (iii) to build a competitive product or service to the Services.

1.2. Electronic Signatures

By using the Site You warrant that You, or the entity for whom You are authorized to use the Site, has agreed to transact electronically through the Site. You warrant that You, or the entity for whom You are authorized to use the Site, agrees that an electronic signature is the legal equivalent of a manual signature. You further warrant that You, or the entity for whom You are authorized to use the Site, agrees that the use of a key pad, mouse or other device to select an item, button, icon or similar act/action, constitutes a valid signature as if actually signed in writing. You also warrant that no certification authority or other third party verification is necessary to validate an electronic signature, and that the lack of such certification or third party verification will not in any way affect the enforceability of the electronic signature.

1.3. Consent for Communications.

By providing Your telephone number, You are providing express written consent to receive communications from BGO, (including its affiliates, agents, service providers, and affiliates for the purposes of defined above) for any purpose, including but not limited to marketing various services from both BGO and companies BGO has joint marketing agreements with. Additionally, You agree to receive communications from BGO regarding Your any service, and any information You may have obtained via Your use of the Site. You agree that these communications include, but are not limited to, the use of an Automated Telephone Dialing System, prerecorded and/or artificial voice, SMS, MMS, text, fax, email or other similar means. Note, regardless of whether Your phone number is registered on a state or federal Do Not Call list. You agree that BGO is not responsible for any charges to You regarding these communications. Standard voice and data rates may apply. Further, You understand that You do not need to provide this consent to call as a condition to receive any good or service, in which case You will not provide Your phone number.

1.4. Submissions

(a) You agree that all information You submit in use of the Site and Services will be information that You have the right and authority to disclose to BGO and that you have a permissible purpose to provide and request information to BGO. You agree and acknowledge that prior to You requesting or causing a “consumer report” to be obtained, a clear and conspicuous disclosure, in a document consisting solely of the disclosure, has been made in writing to the prospect explaining that a consumer report may be obtained for permissible purposes under the FCRA; and that such disclosure satisfied all requirements identified in the FCRA. You also certify that the prospect has authorized, in writing, the obtaining of the report by You in accordance with applicable law and with Your customer agreement with BGO. If an investigative consumer report (as defined by federal law) is obtained, You certify a separate disclosure has been obtained. You further certify that you also have provided the prospect with any notices or disclosures required under applicable state and local law; agree to all the required certifications in Cal. Civ. Code 1786 and 1785, as applicable; and that you will follow all applicable equal employment opportunity laws. You certify that each time You order a report, You are reaffirming the above certifications.

(b) Prior to taking adverse action based in whole or in part on any Submission(s) for an employment purpose, You will provide to the prospect: (1) a copy of the Submission relied upon, and (2) a description, in writing, of the rights of the consumer entitled: “A Summary of Your Rights Under the Fair Credit Reporting Act” and any other state or local legal notices. After the appropriate waiting period, You will issue to the consumer notice of the adverse action taken, including the statutorily required notices identified in the Fair Credit Reporting Act. If you are taking adverse action based on any other permissible purpose, You will issue to the consumer notice of the adverse action taken, including the statutorily required notices identified in the Fair Credit Reporting Act.

(c) You warrant that: (a) You have the right and authority to provide, or instruct a third party to provide, any personal information; (b) You have only disclosed information that is true, accurate and not misleading (including by omission) and nothing You have submitted is known by You to be false, inaccurate, or misleading; (c) You have identified the individual who the submitted information relates to and confirm their identity as the prospect; (d) Your disclosure of information, or any offer of employment that may result from Your disclosure of information, would not infringe any legal obligation that the prospect may have to any third party; (e) You have implemented and maintain all necessary an appropriate recordkeeping procedures which can be used to demonstrate Your compliance with this Section and these Terms of Use.

(d) You agree that although you may place orders with BGO, those orders will not be processed or deemed placed unless and until BGO independently credentials You and your company and accepts the orders.

(e) You understand that the credit bureaus require specific written approval from BGO before the following persons, entities and/or businesses may obtain credit reports: private detectives, private detective agencies, private investigative companies, bail bondsmen, attorneys, law firms, credit counseling firms, security services, members of the media, resellers, financial counseling firms, credit repair clinics, pawn shops (except companies that do only Title pawn), check cashing companies (except companies that do only loans, no check cashing), genealogical or heir research firms, dating services, massage or tattoo services, businesses that operate out of an apartment, individuals seeking information for their own private use, adult entertainment services of any kind, companies that locate missing children, companies that handle third party repossession, companies seeking information in connection with time shares, subscriptions companies, individuals involved in spiritual counseling or persons or entities that are not an End-User or decision maker.

(f) You understand and agree that access to certain types of information (e.g., credit, motor vehicle records, I-9 verification, etc.) may require execution a separate contract, agreement, or addendum (as applicable) with BGO or with BGO’s vendors or service providers. You understand that BGO will not provide to You or allow Your access to such information unless and until it executes the relevant contract(s), agreement(s) or addenda (as applicable).

1.5. Acceptable Use

You agree that You will neither use the Site or the App in a manner, nor provide any Submission, that: (a) is defamatory, derogatory, degrading or harassing of another or constitutes a personal attack; (b) invades another’s privacy or includes, copies or transmits another’s confidential, sensitive or personal information; (c) promotes bigotry, racism, hatred or harm against any group or individual; (d) is obscene or not in good taste; (e) violates, infringes or promotes the violation or infringement of another’s rights, including intellectual property rights; (f) violates or promotes the violation of any applicable federal, state, or local laws (whether common or statutory), regulations, rules, or ordinances; (g) contains a solicitation of funds, goods or services, or promotes or advertises goods or services; or (h) contains any viruses, Trojan horses, or other components designed to limit or harm the functionality of a computer. BGO may report You to the relevant authorities and may act under the fullest extent of applicable laws if You transmit or upload content intended or designed to cause harm.

1.6. Security, Passwords and Means of Accessing the Site

(a) You agree not to access or use the Site in any manner that could damage, disable, overburden, or impair any BGO accounts, computer systems or networks. You agree not to attempt to gain unauthorized access to any parts of the Site or any BGO accounts, computer systems or networks. You agree not to interfere, or attempt to interfere, with the proper working of the Site or any of BGO accounts, computer systems or networks. You agree not to use any robot, spider, scraper or other automated means to access the Site or any of BGO accounts, computer systems or networks without BGO’s express written permission.

(b) Access to and use of password protected or secured areas of the Site are restricted to authorized users only. You warrant and agree that the prospect has authorized You to use their password to provide Submissions to the Site; and You agree and warrant that You will only use such password(s) for purposes of providing such Submissions. You are responsible for maintaining the confidentiality of password(s) and account information, and You are responsible for all activities that occur through the use of any password(s) or account(s), or as a result of Your access to the Site. You agree to notify BGO immediately of any use of password(s) or account(s) that the prospect did not authorize or that is not authorized by these Terms of Use.

2. Payment Terms

2.1. Unless Backgrounds Online and you have a previously agreed-upon payment arrangement, payment to Backgrounds Online by you will be handled in one of the following ways:

(a) Auto-Billing. If you enroll in the auto-bill program, you will be charged, using the credit card we have on file, at the beginning of each month for Services rendered during the previous month and any additional third-party fees. If the credit card you have on file with us expires or your information must be updated, you are responsible for promptly notifying our Client Support team by calling 800-838-4804 and logging in to your Account and updating your credit card information on the “Settings” page. You are responsible for and will be charged for any overdue account collection expenses, including but not limited to, agent fees, legal fees, and other associated expenses.

(b) Credit Card. If you enroll in the “pay-as-you-go” program, you are charged using the credit card provided at the time Services are ordered. Any additional third-party fees are charged once the report is completed.

(c) Invoices. If you elect to be invoiced, you will receive an invoice by us for Services rendered during the previous month at the then-prevailing rate for the ordered Services and any additional third-party fees that are due. Payment is due by you within twenty-one (21) days of receipt of any invoice. Unpaid or overdue invoice balances will accrue a finance charge of 2% per month or the highest lawful rate, whichever is less.

2.2. Failure to pay for any Service within five (5) days of notice by us to you may, in addition to any other rights and remedies we have, result in suspension or termination of your Account and/or the Services.

2.3. Bounced Checks

You agree to pay to Backgrounds Online $25.00 for any check that is returned unpaid from your bank. You further agree that you are responsible for and will be charged for any overdue account collection expenses, including but not limited to, agent fees, legal fees, and other associated expenses.

2.4. Additional Third-Party Fees

In addition to the fees due by you for the Services rendered by us, you will be responsible for any additional third-party fees that are incurred. By way of example, such fees may include, but are not limited to, court fees, state level criminal searches, state motor vehicle fees, verification services and international searches. All such fees are set by third-parties and therefore subject to change without prior notice.

3. Pricing

3.1. All pricing information can be found on your Account page by clicking the “Pricing” link at the bottom of the webpage.

3.2. Pricing Changes.

Subject to any fixed pricing guarantee between you and Backgrounds Online, Background Online may change the price of any Service at any time and at its sole discretion upon thirty (30) days’ prior notice to you.

4. Third Party Services

BGO has relationships with other services providers which allow you to inquire about, and obtain, additional services through the Site or App which are not Services provided by BGO (“Third Party Services”). You understand that these Third Party Services are subject to terms provided by the third party provider and that BGO has no responsibility or liability with regard to such Third Party Services. Further, you agree that any claims you may have regarding such Third Party Services will be taken against such third party provider and that BGO will not ever be a party to such claims relating to Third Party Services.

5. General Terms

5.1. Reservation of Rights

The Site, the App and content provided on or through the Site and/or the App are the intellectual property and copyrighted works of BGO, a BGO Client, or a third party provider. All rights, title and interest not expressly granted with respect to the Site, the App, and content provided on or through the Site and/or the App are reserved. All content is provided on an “As Is” and “As Available” basis, and BGO reserves the right to terminate the permissions granted to You at any time. No orders placed with BGO will be processed unless and until BGO has independently credentialed You and has in its sole discretion decided to accept You as a client.

As it relates to criminal history information, BGO only reports conviction records and will report a minimum of seven (7) years of conviction information, where allowed by any applicable fair credit reporting laws. In determining whether a criminal record is reportable, BGO does not apply any state or local laws restricting the employer use of criminal history UNLESS YOU PROVIDE ADDITIONAL REPORTING RESTRICTIONS TO BE APPLIED TO CONSUMER REPORTS. You assume full responsibility for determining whether reported information may be used in the jurisdiction where the consumer lives, works, or is applying for work. BGO does not report non-conviction information unless a case is pending with a next court date scheduled and also does not report information relating to infractions, summary offenses, violations or other sub-criminal information.

BGO complies with all FCRA and state and local laws that restrict the reportability of certain types of adverse information about a consumer. To ensure compliance with such laws, BGO acknowledges and agrees that when including any information about a consumer in a consumer report, BGO follows the most restrictive reporting restrictions based on the consumer’s residence address. You certify that if it seek to have access to convictions with a disposition date that is older than seven years, such information will only be sought for consumers applying for employment with You who are being considered for a position with an annual salary that equals, or is reasonably expected to equal, $25,000 or more.

5.2. Indemnity

You agree to indemnify and hold harmless BGO, its officers, directors, employees and agents from and against any and all third-party claims, liabilities, damages, losses or expenses, including reasonable attorneys’ fees and costs, due to, or arising out of, any information You disclose to the Site, Your violation of these Terms of Use, or Your violation or infringement of any third party rights, including intellectual property rights, or Your violation of any other law applicable to data contained in Submissions. BGO reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify it, and You agree to cooperate with its defense of these claims. You agree not to settle any matter without the prior written consent of BGO. BGO will use reasonable efforts to notify You of any such claim, action or proceeding upon becoming aware of it.

5.3. Monitoring

BGO has no obligation to monitor the Site or the App. However, BGO reserves the right to review the App, Site, and content; to monitor all use of and activity on the Site or App; and to remove, or choose not to make available on or through the Site, any content (including Submissions) in its sole discretion. BGO may remove content that is confidential or proprietary to You, or a third party, without permission from You or the third party.

5.4. Termination of Use

BGO may, in its sole discretion, at any time discontinue providing or limit access to the App or Site, in whole or in part. You agree that BGO may, in its sole discretion, at any time, terminate or limit Your access to, or use of, the App or Site in whole or in part. BGO may terminate or limit Your access to, or use of, the App or Site, if BGO determines, in its sole discretion, that You have infringed the copyrights or other legal rights of a third party, or otherwise materially violated these Terms of Use. You agree that BGO will not be liable to You or any third-party for any termination or limitation of Your access to, or use of, the App or Site.

5.5. Third Party Web Sites, Content, Products and Services

The Site may provide links to Web sites and access to content, products and services of third parties, including users, advertisers, affiliates and sponsors of the Site. BGO is not responsible for third party content provided on, or through the Site, or for any changes or updates to such third party sites, and You bear all risks associated with the access to, and use of, such Web sites and third party content, products and services.

5.6. Disclaimer

(a) Except where expressly provided otherwise, the Site and the App is provided on an “as is” and “as available” basis. BGO expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement with respect to the App, Site, and all content provided on, or through the App or Site. BGO makes no warranty that: (a) the App, Site, or content will meet Your requirements; (b) the App or Site will be available on an uninterrupted, timely, secure, or error-free basis; (c) the results that may be obtained from the use of the App or Site, or any content provided on or through the App or Site, will be accurate or reliable; or (d) any content obtained by You on or through the App or Site will meet Your expectations.

(b) BGO will have no responsibility for any damage to Your computer system or loss of data that results from the use of the App or the Site.

(c) BGO reserves the right to make changes or updates to, and monitor the use of, the App, Site, and content provided on or through the App or Site at any time without notice.

5.7. Limitation of Liability

(a) YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL BGO BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE APP AND/OR THE SITE, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT BGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE APP AND/OR THE SITE, ON ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.

(b) BGO’S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) THE FEES, IF ANY, PAID BY YOU TO BGO IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM, (B) FIFTY US DOLLARS (U.S. $50), AND (C) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT BGO SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THE APP AND/OR THE SITE.

(c) THE FOREGOING LIMITATIONS ON LIABILITY SHALL NOT APPLY TO LIABILITY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY BGO’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (B) FRAUD.

5.8. Exclusions and Limitations

Some jurisdictions do not allow the disclaimer or exclusion of certain warranties of the disclaimer, exclusion, or limitation of certain liabilities. To the extent that they are held to be legally invalid, disclaimers, exclusions, and limitations set out in these Terms of Use, including those set out in Sections 5.6 (Disclaimer) and 5.7 (Limitation of Liability), do not apply and all other terms will remain in full force and effect.

5.9. Persons Not of Age of Majority

Persons who are not 18 years of age are not eligible to use the App or Site, and no information in relation to such persons should be included in a Submission.

5.10. Waiver and Severability

The failure of BGO to exercise or enforce any rights or provisions in these Terms of Use will not constitute a waiver of such right or provision. Except for the Agreement to Arbitrate and Class Action Waiver in Sections 6.1 and 6.4, if any part or provision of these Terms of Use is found to be unenforceable, that specific part or provision may be modified or severed to make the Terms of Use, as modified, legal and enforceable. The rest of the Terms of Use will not be affected and will be given full force and effect.

5.11. Integration Clause

These Terms represent the entire agreement between the Parties with respect to the subject matter hereof, superseding all previous oral or written communications, representations or agreements. The Terms shall not be supplemented or modified by any course of dealing or usage of trade.

5.12. Choice of Law

Except for Section 6, which is governed by the Federal Arbitration Act (9 U.S.C. § 1 et seq.), the Terms of Use are governed by the laws of California, USA without regard to choice of law rules or principles. This choice of law provision is only intended to be used in interpreting the Terms of Use and is not intended to create substantive rights to non-residents of the state of California to assert claims under California laws.

6. Arbitration and Class Action Waiver

PLEASE READ THIS SECTION CAREFULLY - IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND BGO CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND BGO TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS. THIS MEANS THAT YOU WILL NOT BE ABLE TO BRING A CLASS, COLLECTIVE, OR REPRESENTATIVE LAWSUIT IN A COURT OF LAW BEFORE A JUDGE OR JURY CONCERNING ANY DISPUTE THAT MAY ARISE WHICH IS COVERED BY THE ARBITRATION AGREEMENT AND ARE INSTEAD AGREEING TO SUBMIT ANY SUCH DISPUTE SOLELY ON YOUR OWN BEHALF TO AN IMPARTIAL ARBITRATOR.

6.1. Agreement to Arbitrate

You and BGO mutually agree to forego the delay and expense of using a court of law and choose instead to benefit from the speedy, economical, and impartial dispute resolution procedure of using binding arbitration for any “Covered Claims” (as defined below) that arise between You and BGO, its related and affiliated companies, and/or any current or former employee, officer, or director of BGO or any related or affiliated company. You and BGO agree that this Section 6 (Arbitration and Class Action Waiver) is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and will survive even after these Terms of Use and any Services terminate. Any revision to or termination of the Terms of Use that modify or terminate this Section 6 (Arbitration and Class Action Waiver) shall not apply to a pending arbitration, to any claim that accrued prior to the modification or termination, or to any claim that the asserting party knew about prior to the modification or termination, except as may be required by applicable law.

6.2. Claims Subject to Arbitration

Other than the exceptions in Section 6.3 below, the “Covered Claims” include any and all controversies, disputes, disagreements, and claims arising out of, or relating to, these Terms of Use (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 Site to the fullest extent allowed by law.

6.3. Claims Not Covered by Arbitration, Jurisdiction, and Venue

(a) The Covered Claims do not include (and thus shall not require arbitration of) the following types of claims that will hereafter be referred to as “Excluded Claims”: (a) any claims that cannot be required to be arbitrated as a matter of law (including but not limited to claims by California residents under the California Private Attorney General Act of 2004 (“PAGA”), to the extent exclusion from arbitration is required by California law, and claims or charges that must be filed with a governmental administrative agency); (b) applications for provisional remedies, preliminary injunctions, and temporary restraining orders, including but not limited to those relating to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; and (c) small claims actions demanding $10,000 or less brought on an individual basis and within a small claims court’s jurisdiction.

(b) Any Excluded Claims arising out of, or related to, these Terms of Use or the Site shall be instituted exclusively in the in the state and federal courts located in the City of Chicago and County of Cook, Illinois, which shall be the exclusive forum for such claims. You waive any and all objections to the exercise of jurisdiction over You by such courts and to venue in such courts.

(c) In the event You or BGO chooses to pursue arbitration of both Covered Claims and Excluded Claims and the other party objects, the Covered Claims must be arbitrated. In no event will Covered Claims be joined with Excluded Claims and litigated in court unless both parties agree to waive arbitration.

6.4. Class Action Waiver

Except as otherwise required under applicable law, You and BGO agree to arbitrate any Covered Claims only on an individual basis and hereby waive any right to bring, participate in, or receive money or any other relief from any representative, class, or collective proceeding (“Class Action Waiver”). No party may bring a claim on behalf of other individuals, and no arbitrator hearing any claim under these Terms of Use may: (a) without the consent of all parties, combine more than one individual’s claim or claims into a single case; (b) order, require, participate in, or facilitate production of class-wide contact information or notification of others of potential claims; or (c) arbitrate any form of a class, collective, or representative proceeding.

6.5. Arbitrability Determinations

If a party violates the agreement to arbitrate by commencing an action asserting a Covered Claim in a court of law, then the court (and not an arbitrator) shall have the authority to resolve any disputes about the interpretation, formation, existence, enforceability, validity, and scope of the this Section 6 (Arbitration and Class Action Waiver). If a party complies with the agreement to arbitrate and files for arbitration without filing a complaint in a court of law, then the arbitrator shall have the authority to resolve any disputes about the interpretation of this Section 6 (Arbitration and Class Action Waiver) for purposes of discovery or the merits of the underlying claim, but shall have no authority to resolve any disputes about the formation, existence, enforceability, or validity of this Section 6 (Arbitration and Class Action Waiver), including the Class Action Waiver.

6.6. Arbitration Rules, Procedures, and Costs

To initiate arbitration, the party desiring to pursue a legal dispute must prepare a written demand setting forth the claim(s) and deliver the written demand within the applicable statute of limitations period by hand or first class mail to the representatives of the other party (who are set forth in Section 7 below as the appropriate recipients of any notices). You and BGO agree that the arbitration shall be administered by the American Arbitration Association (“AAA”) before a single arbitrator mutually agreed upon by the parties, and if the parties cannot agree within thirty (30) days after names of potential arbitrators have been proposed, then by a single arbitrator who is chosen by AAA. Except to the extent that they are modified by the rules below, if You are an individual person, the AAA Consumer Arbitration Rules that are in effect at the time of the filing of the demand (and that are available at https://adr.org/commercial) will apply. Except to the extent that they are modified by the rules below, if You are not an individual person, but are an employee of an entity or company, the AAA Commercial Arbitration Rules that are in effect at the time of the filing of the demand (and that are available at https://adr.org/commercial) will apply.

6.7. The parties agree that the applicable AAA rules are modified as follows:

(a) Any arbitrator must be neutral as to all parties. Standards for the recusal of an arbitrator shall be the same standards under which trial judges are recused under Illinois law.

(b) No party is entitled to its attorneys’ fees, except as may be awarded in a matter authorized by and consistent with applicable law.

(c) All discovery shall be subject to any and all objections available under FRCP 26(b). Each party shall avoid broad or widespread collection, search, and production of documents, including electronically stored information (“ESI”). If a compelling need is demonstrated by the requesting party, the production shall: (i) be narrowly tailored in scope; (ii) only come from sources that are reasonably accessible without undue burden or cost; and (iii) be produced in a searchable format, if possible without undue burden or cost, and which is usable by the receiving party and convenient and economical for the producing party. Where the costs and burdens of the requested discovery outweigh its likely benefit, considering the needs of the case, the amount in controversy, and the importance of the discovery in resolving the issues, the arbitrator shall deny such requests or order production on condition that the requesting party advance to the producing party the reasonable costs involved in making the production, subject to the allocation of costs in the final award.

(d) The arbitrator shall have the authority to award the same damages and other relief that would have been available in court pursuant to the law governing the Covered Claim(s).

(e) Either party shall have the right to file motions to dismiss and motions for summary judgment/adjudication.

(f) The arbitrator shall have the authority to issue an award or partial award without conducting a hearing on the grounds that there is no claim on which relief can be granted or that there is no genuine issue of material fact to resolve at a hearing.

(g) The Federal Rules of Evidence shall apply to all arbitration proceedings.

(h) For discovery purposes only, an arbitrator may consolidate claims filed by multiple individuals, each on their own behalf, in a single arbitration proceeding, or may conduct a joint hearing for efficiency purposes, so long as the arbitrator does not (a) certify (conditionally or otherwise) a collective, class, or representative action that includes individuals who have not themselves already submitted their own individual claims, or (b) authorize the issuance of notice of the arbitration to individuals on the grounds that the arbitrator or any party believes there are other individuals who are similarly situated to or share commonality with a party to the arbitration.

(i) The arbitrator must issue a decision in writing, setting forth in summary form the reasons for the arbitrator’s determination and the legal basis therefor.

(j) The arbitrator’s authority shall be limited to deciding the case submitted by the parties to the arbitration. Therefore, no decision by any arbitrator shall serve as precedent in other arbitrations except to preclude the same claim from being re-arbitrated between the same parties.

(k) The parties may settle any dispute on a mutual basis without involvement of the arbitrator.

(l) If You are an individual person and initiate arbitration, You will pay the first $250, and BGO will pay all other filing, administrative, or hearing fees. If You are an individual person and BGO initiates arbitration, BGO will pay all filing, administrative, and hearing fees. Regardless of which party initiates arbitration, You will remain responsible for Your attorneys’ fees and costs unless the law governing the Covered Claim provides for an award of attorneys’ fees and costs and the arbitrator determines as part of the arbitration award that You may recover a certain amount of attorneys’ fees and costs.

(m) If You are not an individual person, the applicable AAA rules will govern payment of filing, administrative, and hearing fees. You will be responsible for Your attorneys’ fees and costs unless the law governing the Covered Claim provides for an award of attorneys’ fees and costs and the arbitrator determines as part of the arbitration award that You may recover a certain amount of attorneys’ fees and costs.

6.8. If any term or condition in this Section 6 (Arbitration and Class Action Waiver) is determined to be unenforceable or in conflict with a mandatory provision of applicable law, it shall be construed to incorporate any mandatory provision, or the unenforceable or conflicting term or condition shall be automatically severed and the remainder of this Section 6 (Arbitration and Class Action Waiver) shall not be affected. Provided, however, that if the Class Action Waiver is found to be unenforceable, then any claim brought on a class, collective, or representative action basis shall be adjudicated exclusively in the state and federal courts located in the City of Chicago and County of Cook, Illinois, which shall be the exclusive forum for such claims. You waive any and all objections to the exercise of jurisdiction over You by such courts and to venue in such courts.

7. Contact Information and Notices

(a) If You have any questions regarding these Terms of Use or if You must send written notice to BGO pursuant to any provision of these Terms of Use, You must use the following email nate.waymire@backgroundsonline.com, or the following mailing address:

Director of Compliance
Backgrounds Online
1915 21st Street
Sacramento, CA 95811

(b) BGO will send any notice required pursuant to these Terms of Use to the email address You have provided to BGO, by posting a general notice on the Site, or by overnight courier or certified or registered mail to Your mailing address as appearing in our records. You consent to receive any agreements, notices, disclosures, and other communications to which these Terms of Use refer from BGO electronically including without limitation by email or posting on the Site and agree that such electronic provision of notice satisfies any legal requirement that such communications be in writing.

(c) Unless otherwise specified in these Terms of Use, all notices will be in writing and will be deemed to have been duly given (a) when received, if personally delivered or sent by certified or registered mail, return receipt requested; (b) when receipt is electronically confirmed, if transmitted by facsimile or email; (c) the day after it is sent, if sent for next day delivery by recognized overnight delivery service; or (d) the day it was posted, if posted on the Site.