HomeMy WebLinkAboutJ-6 Resolution: Equifax Information ServicesCity of ~Vliami ~ard~ens
1515-200 NW 16'7~' Street
Miami Gardens, Florida 33169
Date: June 13, 2007
Fiscal Impact: No ^ Yes X
(If yes, explain in Staff Summary)
Funding Source: General Fund
Aqenda Cover Paqe
Public hearing ^
Ordinance ^
Mayor Shirley Gibson
Vice Mayor Oscar Braynon II
Councilman Melvin L. Bratton
Councilman Aaron Campbell Jr.
Councilwoman Sharon Pritchett
Councilwoman Barbara Watson
Councilman Andre Williams
1st Reading ^
Contract/P.O. Requirement: Yes X No^ Advertising requirement:
Sponsor Name/Department: Chief Boyd /Police RFP/RFQ/Bid #_
Title
RESOLUTION No. 2007-
Quasi-Judicial ^
Resolution X
2nd Reading ^
Yes o No X
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
MIAMI GARDENS, FLORIDA, AUTHORIZING THE CITY
MANAGER AND CITY CLERK TO EXECUTE AND
ATTEST, RESPECTIVELY, THAT CERTAIN AGREEMENT
WITH EQUIFAX INFORMATION SERVICES FOR
INVESTIGATIVE SERVICES, A COPY OF WHICH IS
ATTACHED HERETO AS EXHIBIT A; PROVIDING FOR
INSTRUCTIONS TO THE CITY CLERK; PROVIDING FOR
THE ADOPTION OF REPRESENTATIONS; PROVIDING
AN EFFECTIVE DATE.
Staff Summarv
As the Miami Gardens Police Department processes applicants for hire, the need to
conduct financial background checks is of extreme importance. The use of Equifax
Information Services will enable the Department to utilize a single source for gathering
information which will ensure the confidentiality of the inquiry. Furthermore, as the
Department begins actual law enforcement operations, the need to make financial
inquiries in fraud and other types of criminal investigations will be needed. Again, the
ability to maintain a high level of confidentiality in these cases will ensure the integrity of
these investigations and assist investigators in solving cases. Equifax Information
Services is currently being utilized by several law enforcement agencies and is a proven
resource for investigative inquiries. Each inquiry is limited to a cost of three dollars per
inquiry and staff does not anticipate exceeding the City Manager's spending authority in
any given year.
J-6) CONSENT AGENDA
RESOLUTION
EQUIFAX INFORMATION
SERVICES
This Agreement would not typically be brought before the Council due to its nature and
due to the fact that the amount is within the City Manager's purchasing authority.
However, the City Attorney was consulted on this item and believes that the best case
scenario would require Equifax to amend the indemnification provision to provide that
the City's liability is limited by virtue of sovereign immunity and that the Contract be
governed by Florida law with venue lying in Miami-Dade County. However, as large
national corporation Equifax representatives have stated their inability to alter its form
agreement. It is the opinion of the City Attorney while ideally Equifax would alter its
agreement, it is an unlikely scenario and the City Attorney does not anticipate any
instances where a claim could be made against the City which could result in litigation.
However, that possibility is always there. Since neither the City Attorney nor the City
Manager have the right to waive compliance in this regard, this matter is being brought
to the attention of the City Council.
Recommendation:
That the City Council approves the attached resolution authorizing the City Manager to
negotiate and execute an agreement with Equifax Information Services LLC.
RESOLUTION No. 2007-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MIAMI
GARDENS, FLORIDA, AUTHORIZING THE CITY MANAGER AND CITY
CLERK TO EXECUTE AND ATTEST, RESPECTIVELY, THAT CERTAIN
AGREEMENT WITH EQUIFAX INFORMATION SERVICES FOR
INVESTIGATIVE SERVICES, A COPY OF WHICH IS ATTACHED
HERETO AS EXHIBIT A; PROVIDING FOR INSTRUCTIONS TO THE
CITY CLERK; PROVIDING FOR THE ADOPTION OF
REPRESENTATIONS; PROVIDING AN EFFECTIVE DATE.
1 WHEREAS, it is necessary for the City's Police Department to be able to process
2 applicants for hire, as well as to provide other investigative inquiries with respect to
3 background inquiries, and
4 WHEREAS, the City staff has received quotes from various companies who
5 provide background investigative services, and
6 WHEREAS, based upon those quotes, it is being recommended that the City
7 contract with Equifax Information Services as one of the companies to provide
8 investigative information to the City, and
9 WHEREAS, funding for this particular request is provided in the general fund,
10 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
11 OF MIAMI GARDENS, FLORIDA, as follows:
12 Section 1. ADOPTION OF REPRESENTATIONS: The foregoing Whereas
13 paragraphs are hereby ratified and confirmed as being true, and the same are hereby
14 made a specific part of this Resolution.
15 Section 2. AUTHORITY: The City Manager and City Clerk are hereby
16 authorized and directed to execute and attest, respectively, that certain Agreement with
17 Equifax Information Services for investigative services, a copy of which is attached
18 hereto as Exhibit A.
19 Section 3. INSTRUCTIONS TO THE CITY CLERK: The City Clerk is hereby
20 authorized to obtain three (3) fully executed copies of the subject Agreement, with one
21 to be maintained by the City; with one to be delivered to Equifax Information Services,
22 and with one to be directed to the Office of City Attorney.
23 Section 4. EFFECTIVE DATE: This Resolution shall take effect immediately
24 upon its final passage.
25 PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF MIAMI
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GARDENS AT ITS REGULAR MEETING HELD ON JUNE 13, 2007.
SHIRLEY GIBSON, MAYOR
ATTEST:
RONETTA TAYLOR, CMC, CITY CLERK
Prepared by SONJA KNIGHTON DICKENS, ESQ.
City Attorney
SPONSORED BY: DANNY CREW, CITY MANAGER
MOVED BY:
VOTE:
Mayor Shirley Gibson (Yes) (No)
Vice Mayor Oscar Braynon, II (Yes) (No)
Councilman Melvin L. Bratton (Yes) (No)
Councilman Aaron Campbell (Yes) (No)
Councilman Andre Williams (Yes) (No)
Councilwoman Sharon Pritchett (Yes) (No)
Councilwoman Barbara Watson (Yes) (No)
SKD/teh
259944_1. DOC
55
Eqv~Fax
EQUIFAX INFORMATION SERVICES LLC
AGREEMENT FOR SERVICE
(On-Line Services Only)
This Agreement ("AgreemenY') is dated and is effective
, 200 ("Effective Date") and is made
between Equifax Information Services LLC ("Equifax") and
("ClienY') so that
Client and its affiliates listed on Exhibit A may acquire
various information services (the "Information Services") from
Equifax. Equifax and Client agree as follows:
GENERAL AGREEMENT
1. Scoqe of Aqreement. This Agreement consists of
the general terms set forth in the body of this Agreement,
Exhibit A("Client Affiliates"), Exhibit B("Information
Services"), Exhibit C("Pricing") and Exhibit D("Vermont
Fair Credit Reporting Certification"). If there is a conflict
between the general terms and conditions and any Exhibit,
the provisions of the Exhibit will govern and control. This
Agreement applies to every kind of information, software or
service provided by Equifax to Client, even if a given type of
service or information is not specifically referred to in this
Agreement or is not currently provided by Equifax, unless the
service is furnished pursuant to a separate written agreement
with Equifax, executed and effective after the effective date
of this Agreement, and containing an "entire agreemenY' or
"merger" clause. This Agreement specifically supersedes and
replaces any agreement between the parties that predates
this Agreement and that relates to any of the Information
Services named in Exhibit B, even if the prior agreement
contains an "entire agreement" or "merger" clause, and any
such agreements are terminated.
2. Users. Equifax will provide its Information Services,
as available, to Client and Client Affiliates during the term of
this Agreement. "Client Affiliates" are those entities listed in
Exhibit A, which are and will be at all times entities, which
are controlled by, or are under common control with Client.
"Control" means having the ability to direct the management
and policies of the entity in question, whether directly or
indirectly. Client represents and warrants that it has the full
power and authority to bind each Client Affiliate to every
obligation of Client in this Agreement, and ClienYs signature
to this Agreement will bind each Client Affiliate. At Equifax's
request, Client will cause any Client Affiliate to provide
Equifax with written certification substantially similar to the
one made by Client in Section 1.3. References throughout
this Agreement to "ClienY' will apply as well to any Client
Affiliate using the Information Services, as appropriate.
3. FCRA Certifications. Client certifies that it will order
Information Services that are consumer reports, as defined
by the Federal Fair Credit Reporting Act, 15 U.S.C. 1681 et.
seq., as amended (the "FCRA"), only when Client intends to
use the consumer report: (a) in accordance with the FCRA
and all state law FCRA counterparts, and (b) for one of the
following FCRA permissible purposes: (i) in connection with
a credit transaction involving the consumer on whom the
consumer report is to be furnished and involving the
extension of credit to, or review or collection of an account of,
the consumer; (ii) in connection with the underwriting of
insurance involving the consumer; (iii) as a potential investor
or servicer, or current insurer, in connection with a valuation
of, or an assessment of the credit or prepayment risks
associated with, an existing credit obligation; (iv) when Client
otherwise has a legitimate business need for the information
either in connection with a business transaction that is
initiated by the consumer, or to review an account to
determine whether the consumer continues to meet the
terms of the account; or (v) for employment purposes. Client
will use each consumer report ordered from Equifax for one
of the foregoing purposes and for no other purpose. CLIENT
IS NOT AUTHORIZED TO REQUEST OR RECEIVE
CONSUMER REPORTS FOR EMPLOYMENT PURPOSES
UNLESS CLIENT HAS SELECTED THE PERSONA~
REPORT SERVICE ON EXHIBIT B.
Califomia Law Certification:
Client will refer to Exhibit B.IV. of the Agreement in making
the following certification, and Client agrees to comply with all
applicable provisions of the California Credit Reporting
Agencies Act, as referenced in Exhibit B.IV.:
(PLEASE CHECK THE APPROPRIATE L/NE BELOV1~
Client certifies that it IS or IS NOT a
"retail seller", as defined in Section 1802.3 of the
California Civil Code and referenced in Exhibit
B.IV. of the Agreement, and DOES or
DOES NOT issue credit to consumers who
appear in person on the basis of an application for
credit submitted in person.
Vermont Certification:
Client certifies that it will comply with applicable provisions
under Vermont law. In particular, Client certifies that it will
order information services relating to Vermont residents that
are credit reports as defined by the VFCRA, only after Client
has received prior consumer consent in accordance with
VFCRA Section 2480e and applicable Vermont Rules. Client
further certifies that the attached copy of VFCRA Section
2480e applicable Vermont Rules were received from Equifax,
as referenced on Exhibit D.
4. Territorv. Client may access, use and store the
Information Services (for purposes of this Section 4 and
Section 6 below, "Information Services" shall include without
limitation all information and data provided or obtained
through use of the Information Services) only at or from
locations within the territorial boundaries of the United States,
Canada, and the United States territories of Puerto Rico,
Guam and the Virgin Islands (the "Permitted Territory").
Client may not access, use or store the Information Services
at or from, or send the Information Services to, any location
outside of the Permitted Territory without first obtaining
Equifax's written permission.
5. Access. Client will be responsible for providing and
installing all hardware and software at its facilities necessary
to access the Information Services. Equifax will provide
reasonable consultation to Client to assist in defining those
hardware and software needs.
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6. Service Providers. Client may not allow a third party
service provider (hereafter "Service Provider") to access,
use, or store the Information Services on its behalf without
first obtaining Equifax's written permission and without the
Service Provider first entering into a Client Service Provider
Information Use and Nondisclosure Agreement with Equifax.
The territorial provisions in Section 1.4 are fully applicable to
ClienYs Service Provider; accordingly, the Service Provider
may not access, use or store the Information Services on
behalf of Client from or in, or send the Information Services
to, any location outside of the Permitted Territory, unless
Client and the Service Provider have first obtained Equifax's
written permission.
7. License of Information. Equifax grants a non-
exclusive license to Client and each Client Affiliate to use the
information provided through the Information Services only
as described in this Agreement. Client and each Client
Affiliate may reproduce or store the information obtained from
Equifax solely for each of their respective own uses in
accordance with this Agreement, and will hold all information
licensed under this Agreement in strict confidence and will
not reproduce, reveal or make it accessible in whole or in
part, in any manner whatsoever, to each other or any others
unless required by law, or unless Client first obtains Equifax's
written consent; provided, however, that Client or Client
Affiliate, as applicable, may discuss information in a
consumer repo~t with the subject of that consumer report
when Client or Client Affiliate has taken adverse action
against the subject based on the consumer report. Neither
Client nor Client Affiliates will provide a copy of the consumer
report to the consumer, except as may be required by law or
approved in writing by Equifax, except in any state where this
contractual prohibition would be invalid. Client will refer the
consumer to Equifax whenever the consumer disputes
information in a consumer report disclosed by Client. Client
will not interpret the failure of Equifax to return information
regarding the consumer's eligibility for a credit service as a
statement regarding that consumer's credit worthiness,
because that failure may result from one or more factors
unrelated to credit worthiness.
8. Compliance with Laws. Client will comply with the
provisions of the FCRA, the Federal Equal Credit Opportunity
Act, as amended (the "ECOA"), all state law counterparts of
them, and all applicable regulations promulgated under any
of them, including, without limitation, any provisions requiring
adverse action notification to the consumer.
9. Audits. Equifax may, from time to time, conduct
various audits of ClienYs practices and procedures to
determine ClienYs compliance with this Agreement. Client will
reasonably cooperate in all those audits. Equifax may
conduct on-site audits of Client's facilities during normal
business hours, and upon reasonable notice. In addition,
Equifax may conduct audits by mail that may require Client to
provide documentation regarding permissible purposes for
particular consumer reports ordered by Client.
II. REPORTING OF ACCOUNT INFORMATION
When Client agrees to provide its account information in
connection with its receipt of Information Services, or when
required as a condition (as specified in Exhibit B) of receiving a
particular type of Information Service ordered by Client, Client
will prepare and deliver to Equifax, each month and at ClienYs
expense, its most current account information (the
"Information"), in a mutually agreeable form and medium, on
consumers that have credit accounts with Client. Without limiting
the generality of the foregoing, Client will encrypt all Information
as directed by Equifax, and further, with respect to the
Information, Client agrees to comply with such other data
security policies as Equifax may from time to time make known
to Client in writing. For avoidance of doubt, Client understands
and agrees that its compliance with the security policies of
Equifax will not relieve Client of the obligation to observe any
other or further contractual, legal, or regulatory requirements,
rules or terms applicable to the security of the Information, nor
does Equifax assume any responsibility or liability for the
security of the Information prior to the time Equifax receives it. At
its expense, Equifax will incorporate the Information into
Equifax's computerized credit reporting system. Client
acknowledges and agrees that Equifax will not retum any
physical media if that is the method of delivery used to provide
the Information to Equifax. Equifax will destroy all such physical
media through the use of reasonable procedures designed to
assure that it cannot be practicably read or reconstructed.
Information so incorporated will become the property of
Equifax in order for Equifax to engage in the business of
providing consumer reports and other products and services
(including but not limited to list editing, list extracting and
model building services for risk control, and for the purpose
of Equifax's consumer relations obligations); provided,
however, Equifax will comply with Title V of the Gramm-
Leach-Bliley Act, 15 U.S.C. Sec. 6801 et seq. ("GLB") and
the implementing regulations issued thereunder and will not
use or disclose any Information that Client furnishes to
Equifax on ClienYs consumers or customers other than in
accordance with Section 6802(c) or with one of the General
Exceptions of Section 6802(e) of the GLB and applicable
regulations. Information so incorporated will cease to be the
property of Client and will become the property of Equifax. Client
will notify Equifax immediately upon leaming that inforrnation
supplied is inaccurate or incomplete. Client will provide Equifax
with any corrections or additional information necessary to make
the Information supplied complete and accurate and will
implement procedures to avoid re-reporting information that is
inaccurate. Client may be liable under state or federal law if
Information furnished is false or furnished with malice or
willful intent to injure the consumer or with conscious
indifference to potential inaccuracies.
III. PRICING
Client will pay Equifax for the Information Services pursuant
to the terms of the body of this Agreement and Exhibits B
and C. If not specifically stated in Exhibit C, the price for a
service will be Equifax's standard price for that service in
Equifax owned territory and the Equifax System Affiliate's
standard price for that service in System Affiliate owned
territory. The prices in Exhibit C are effective for the term
stated in Exhibit C, and are (a) not renewable unless
otherwise provided in Exhibit C, (b) subject to modification
by Equifax on the one year anniversary of this Agreement
and subsequently at intervals of no less than one year, upon
thirty (30) days prior written notice of any price changes, (c)
will expire on the date stated in Exhibit C or on the date the
Agreement terminates if that occurs prior to the expiration
date in Exhibit C, and (d) exclusive of any regulatory
recovery fees or surcharges established by Equifax from time
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to time to recover its costs of compliance with various laws
and regulations. Unless otherwise specified, Client will pay
for all Information Services, including the fees described in
(d) of the preceding sentence invoiced to Client, no later than
twenty (20) days from the date of Equifax's invoice. Interest
will accrue daily on all amounts not timely paid at the rate of
1.5% per month. The prices/fees are also exclusive of any
excise, use or similar taxes. It is Client's sole responsibility
to pay those taxes; and Equifax may separately invoice them.
IV. TERM AND TERMINATION
1. This Agreement will remain in full force and effect
for one year from the Effective Date. Thereafter, it shall
automatically renew for additional one-year periods unless a
written notice of intent not to renew is provided by one party
to the other party at least thirty (30) days prior to the end of
the then current one-year term.
2. This Agreement will terminate during any current
term (a) upon written agreement of the parties; (b) in the
event that Equifax or Client ceases to conduct business in a
normal course, becomes insolvent, makes a general
assignment for the benefit of creditors, suffers or permits the
appointment of a receiver for its business or assets, or avails
itself of, or becomes subject to, any proceeding under the
Federal Bankruptcy Code of 1978, as amended, or any
similar state insolvency or bankruptcy statutes, and either
party gives the other written termination notice following that
event; or (c) as otherwise provided in this Agreement.
In addition, if either party materially breaches this Agreement,
the non-breaching party may terminate this Agreement after
providing written notice of the breach to the breaching party
with thirty (30) days opportunity to cure. Equifax may, in its
own discretion, suspend services during any cure period.
Either party, by written notice to the other party, may
immediately terminate this Agreement or suspend any
Information Service(s) if based on a reasonable belief that
the other party has violated the FCRA, the ECOA, any of the
state law counterparts to the FCRA or ECOA, or any other
applicable law or regulation.
3. Notwithstanding anything to the contrary in this
Agreement, if the continued provision of all or any portion of
the Information Services becomes impossible, impractical, or
undesirable due to a change in applicable federal, state or
local laws or regulations, as determined by Equifax in its
reasonable judgment, Equifax may either (a) cease to
provide the affected services within, or pertaining to persons
residing within, the affected jurisdiction, or (b) establish new
prices which will apply to the affected services when provided
or delivered within, or pertaining to persons residing within,
the affected jurisdiction, which prices will be reasonably
calculated to cover the costs incurred by Equifax in
complying with the applicable laws or regulations and will
become effective on the date specified in such notice unless
Client objects in writing, in which case Equifax may exercise
its rights under clause (a) above. Equifax will attempt to
provide written notice of its actions as far in advance of the
effective date as is reasonably possible under the
circumstances.
4. The obligations of Sections V, VI and all other
indemnification, defense and hold harmless obligations will
survive the termination of this Agreement.
V. WARRANTY, INDEMNIFICATION AND
LIMITATION OF LIABILITY
1. Client and Equifax recognize that every business
decision represents an assumption of risk and that neither
party, in furnishing Information or the Information Services to
the other, underwrites or assumes the other's risk in any
manner. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN
THIS AGREEMENT, OR ANY AMENDMENT, NEITHER PARTY
GUARANTEES OR WARRANTS THE CORRECTNESS,
COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OF THE INFORMA-
TION OR SERVICES PROVIDED TO THE OTHER. NEITHER
PARTY, NOR ANY OF ITS DIRECTORS, OFFICERS, AGENTS,
EMPLOYEES, CONTRACTORS, LICENSORS, AFFILIATED
COMPANIES OR AFFILIATED CREDIT BUREAUS ("AFFILIATED
PERSONS AND ENTITIES'~ WILL BE ~IABLE TO THE OTHER
FOR ANY LOSS OR INJURY ARISING OUT OF, OR CAUSED IN
WHOLE OR IN PART BY, THEIR ACTS OR OMISSIONS, EVEN IF
NEGLIGENT, IN PROCURING, ANY INFORMATION OR IN
PROVIDING THE INFORMATION SERVICES OR ANY
INFORMATION. Client recognizes that accessing the
consumer credit database with additional information or
different identification information on a consumer, or at a
different time from a prior request for information, may result
in file content different from that on the date of the original
access. CLIENT WILL INDEMNIFY AND HOLD HARMLESS
EQUIFAX AND ITS AFFILIATED PERSONS AND ENTITIES
FROM AND AGAINST ANY DIRECT AND ACTUAL LOSS,
COST, LIABILITY AND EXPENSE (INCLUDING
REASONABLE ATTORNEY FEES) RESULTING FROM
CLIENT'S BREACH OF SECTIONS 1.3, 1.7, 1.8, VII. OR
EXHIBIT B OF THIS AGREEMENT.
2. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN
THIS AGREEMENT, INCLUDING ANY AND ALL FUTURE
AMENDMENTS, NEITHER PARTY, NOR ANY OF ITS
AFFILIATED PERSONS AND ENTITIES, WILL BE RESPONSIBLE
FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY
OR SPECIAL DAMAGES, INCLUDING LOST PROFITS.
VI. CONFIDENTIALITY
Client agrees to hold in confidence all consumer report
information received through the Information Services
provided by Equifax, except as provided in Section 1.7. Each
party acknowledges that all other materials and information
disclosed to the other party ("Recipient") in connection with
the performance of this Agreement, including the terms of
this Agreement and the pricing terms contained in Exhibit C,
consist of confidential and proprietary data. Each Recipient
will hold those materials and that information in strict
confidence, and will restrict its use of those materials and
that information to the purposes anticipated in this
Agreement. If the law or legal process requires Recipient to
disclose confidential and proprietary data, Recipient will
notify the disclosing party of the request. Thereafter the
disclosing party may seek a protective order or waive the
confidentiality requirements of this Agreement, provided that
Recipient may only disclose the minimum amount of
information necessary to comply with the requirement.
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Recipient wili not be obligated to hold confidential any
information from the disclosing party which (a) is or becomes
publicly known, (b) is received from any person or entity who,
to the best of Recipient's knowledge, has no duty of
confidentiality to the disclosing party, (c) was already known
to Recipient prior to the disclosure, and that knowledge was
evidenced in writing prior to the date of the other party's
disclosure, or (d) is developed by the Recipient without using
any of the disclosing party's information. Each party will
indemnify, defend and hold harmless the other from and
against any direct and actual loss, cost, liability and expense
(including reasonable attorneys' fees) resulting from the
indemnifying party's breach of this Section VI. The rights and
obligations of this Section VI (i) with respect to confidential
and proprietary data that constitutes a"trade secreY' (as
defined by applicable law), which includes without limitation
all consumer report information received through the
Information Services, will survive the termination of this
Agreement for so long as such confidential and proprietary
information remains a trade secret under applicable law; and
(ii) with respect to all other confidential and proprietary data,
will survive the termination of this Agreement for the longer of
two (2) years from termination, or the confidentiality period
required by applicable law.
VII. DATA SECURITY
This Section VII applies to any means through which Client
orders or accesses the Information Services including,
without limitation, system-to-system, direct access terminal,
personal computer or the Internet; provided, however, Client
will not order or access the Information Services via the
Internet without first obtaining Equifax's written permission.
For the purposes of this Section VII, the term "Authorized
User" means a Client employee that Client has authorized to
order or access the Information Services and who is trained
on ClienYs obligations under this Agreement with respect to
the ordering and use of the Information Services, and the
information provided through same, including ClienYs FCRA
and other obligations with respect to the access and use of
consumer reports.
Client will: (a) ensure that only Authorized Users can order or
have access to the Information Services, (b) ensure that
Authorized Users do not order credit reports for personal
reasons or provide them to any third party except as
permitted by this Agreement, ~c) ensure that all devices used
by Client to order or access the Information Services are
placed in a secure location and accessible only by Authorized
Users, and that such devices are secured when not in use
through such means as screen locks, shutting power controls
off, or other commercially reasonable security procedures,
and (d) take all necessary measures to prevent unauthorized
ordering of or access to the Information Services by any
person other than an Authorized User for permissible
purposes. Those measures will include, without limitation,
limiting the knowledge of the Client security codes, any
telephone access number(s) Equifax provides, and any
passwords Client may use, to those individuals with a need to
know, changing ClienYs user passwords at least every ninety
(90) days, or sooner if an Authorized User is no longer
responsible for accessing the Information Services, or if
Client suspects an unauthorized person has learned the
password, and using all security features in the software and
hardware Client uses to order or access the Information
Services. Client will monitor compliance with the obligations
of this Section VII, and will immediately notify Equifax if Client
suspects or knows of any unauthorized access or attempt to
access the Information Services. Such monitoring will
include, without limitation, a review of each Equifax invoice
for the purpose of detecting any unauthorized activity. Client
will not ship hardware or software between Client's locations
or to third parties without deleting all Equifax Client
number(s), security codes, telephone access number(s) and
Client user passwords. If Client uses a third party vendor to
establish access to the Information Services, Client is
responsible for the third party vendor's use of ClienYs
member numbers, security access codes, or passwords, and
Client will ensure the third party vendor safeguards ClienYs
security access code(s) and passwords through the use of
security requirements that are no less stringent than those
applicable to Client under this Section VII. Client will inform
Authorized Users that unauthorized access to consumer
reports may subject them to civil and criminal liability under
the FCRA punishable by fines and imprisonment. Client will
use commercially reasonable efforts to assure data security
when disposing of any consumer report information or record
obtained from Equifax. Such efforts must include the use of
those procedures issued by the federal regulatory agency
charged with oversight of ClienYs activities (e.g. the Federal
Trade Commission, the applicable banking or credit union
regulator) applicable to the disposal of consumer report
information or records. If Equifax reasonably believes that
Client has violated this Section VII, Equifax may, in addition
to any other remedy authorized by this Agreement, with
reasonable advance written notice to Client and at Equifax's
sole expense, conduct, or have a third party conduct on its
behalf, an audit of ClienYs network security systems,
facilities, practices and procedures to the extent Equifax
reasonably deems necessary, including an on-site inspection,
to evaluate Client's compliance with the data security
requirements of this Section VII.
VIII. MISCELLANEOUS
1. AssiQnment. Equifax may assign this Agreement or
any rights or obligations under this Agreement to an entity
that is controlled by, controls or is under common control with
Equifax. Otherwise, neither this Agreement, nor any rights or
obligations under it may be assigned by either party without
the written consent of the other party, which consent shall not
be unreasonably withheld. Any merger, consolidation, or
other reorganization of Client, the sale of all or substantially
all of the assets of Client, or the sale or other transfer of a
50% or more interest in the outstanding voting or other equity
interest of Client by any person, or group of persons acting in
concert, shall constitute an assignment for the purposes of
this section. Any attempt that is contrary to the terms of this
section to assign this Agreement or to delegate or otherwise
transfer in any manner any rights or obligations arising under
it will be void.
2. Consent to Breach Not Waived. Neither party will,
by the lapse of time, and without giving written notice, be
deemed to have waived any of its rights under this
Agreement. No waiver of a breach of this Agreement will
constitute a waiver of any prior or subsequent breach of this
Agreement.
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#43064v13
3. Notices. Notices must be in writing, must be
delivered according to clause (a) or (b) below, and must be
delivered to Equifax, Attn: General Counsel, 1550 Peachtree
Street, NW, Atlanta, GA 30309 and to Client at the address
set forth on the signature page of this Agreement, or to such
other address as a party may designate by notice in
accordance with this provision. All notices under this
Agreement will be deemed given on the date of delivery (a)
by a nationally recognized overnight courier, or (b) by
certified mail, return receipt requested. Notice to Client will be
sufficient notice to all Client Affiliates.
4. Force Majeure. Neither party will be liable to the
other for any delay or interruption in perFormance as to any
obligation hereunder resulting from governmental emergency
orders, judicial or governmental action, emergency
regulations, sabotage, riots, vandalism, labor strikes or
disputes, acts of God, fires, electrical failure, major computer
hardware or software failures, equipment delivery delays,
acts of third parties, or delays or interruptions in performance
beyond its reasonable control.
5. Entire Aqreement. This Agreement constitutes the
entire agreement of the parties with respect to the subject
matter contained herein and may not be amended except by
a written agreement that acknowledges modification of this
Agreement, and that is signed by an authorized
representative of Client and of Equifax, or as otherwise
expressly provided in this Agreement. This Agreement will
not be more strongly construed against either party,
regardless of who is more responsible for its preparation.
6. Severabilitv. If any part of this Agreement is found
to be illegal or unenforceable, then that part will be curtailed
only to the extent necessary to make it, and the remainder of
the Agreement, legal and enforceable.
7. A~plicable Law. This Agreement will be governed
solely by the internal laws of the State of Georgia, without
regard to principles of conflicts of law.
8. Indeqendent Contractor. Nothing in this Agreement
creates a joint venture, partnership, principal-agent or mutual
agency relationship between the parties. No party has any
right or power under this Agreement to create any obligation,
expressed or implied, on behalf of the other party.
9. Subcontractors. Equifax may subcontract any of the
work, services, or other performance required of Equifax
under this contract without the consent of Client. Equifax will
be responsible for all work performed by its subcontractors
and agents as if it were perForming the work itself.
10. Headinqs. The titles or captions used in this
Agreement are for convenience only and will not be used to
construe or interpret any provision hereof.
11. Authoritv. Equifax's delivery of the services Client
orders under this Agreement indicates Equifax's acceptance
of the Agreement. The person signing below represents and
warrants that he or she has the necessary authority to bind
the principal (s) set forth below.
IMPORTANT: You must resqond to the California Certification box on paqe one, or access to Epuifax
Information Services mav be delaved.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date written below.
CLIENT:
ADDRESS
Signed by:
Citv of Miami Gardens
l~ I ~ 1 N W l 67`~ Street 5-200
Miami Gardens, FL 33169
Printed Name Dr. Dannv Crew
Title: Citv Mana~er
Date:
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#43064v13
EXHIBIT A
CLIENT AFFILIATE
NOTE: Each Client Affiliate must be listed below in order to receive services under this Aqreement. New Affiliates mav
be added with written notice to Equifax. All Affiliates listed must currently and at all times durinq the term of this
Aqreement be controlled bv or under common control with Client, as defined in Section 1.2 of the Aqreement.
~ Client Affiliate Name ~ Address, City, State, Zip ~
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
Standard Agreement for Service- On Line Services Only LRD 2/l6/07
#43064v13
EXHIBIT B
This Exhibit contains an Information Services selection list, overviews of the Information Services that may be provided under
this Agreement, Additional Terms and Conditions that apply to those Information Services and other Special Terms and
Conditions that may affect the provision of Information Services to Client. Client's authorized representative must place his
or her initials in the aqqropriate blanks below to indicate which Information Services will be ordered bv Client and
Client Affiliates. Client and Client Affiliates agree to abide by the Additional Terms and Conditions and Special Terms and
Conditions that apply to those Information Services.
EQUIFAX INFORMATION SERVICES
NOTE: Please initial the Information Service(s) to be provided on the effective date of this Agreement. Additional
services may be requested with written notice to Equifax.
B.I STANDARD INFORMATION SERVICES
ACROFILE~ and ACROFILE Plus~
ACRO Selects""
Address Variance Indicators"'
ARDTs"'
Auto-DTECO
Consumer Telephone Service
Credit Hi-Lite
Edited Credit*Hi-LiteT""
DL Advantage~
Equifax Decision PowerC~
Equifax Decision Power~ Express
EXCHANGE 2000
FINDERS~
FIRSTFINDERSrM
Fraud AdvisorsM
Full DTECT"'
Full ID REPORTS""
ID AdvisorsM
MarketPrompt
Mortgage Business Credit Reports""
MultiVision~ Platform
MultiVisionO for Windows
OFAC Alertr""
On-Line Directorys"'
On-Line Geo-Codes"'
PERSONA~ and PERSONA PLUS~
POSITIVE ID~
RE-APPEARs""
Recovery Report
Residential Mortgage Credit Report
SAFESCANO
Optional Credit Score Information Services
Pinnacles"'
B.III ANCILLARY SERVICES
Trans-Border Information/North American Link
Phone Number Append
B.IV SPECIAL TERMS AND CONDITIONS
California Retail Seller
Compliance Fair Isaac Conditions
B.II CREDIT SCORE INFORMATION SERVICES
Bankruptcy NavigatorC~ Index `99
Bankruptcy Navigator0 Index 3.0
BEACONO
Brokerage Risk Indicators"'
Enhanced Delinquency Alert Systems'" ("EDAS")
Equifax CARcredit 99 Scores""
Equifax Risk Scores"^
VantageScores""
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#43064v13
B.I. EQUIFAX STANDARD INFORMATION SERVICES INFORMATION
Following are descriptions of core services provided by Equifax and additional terms and conditions applicable to those specific
Information Services.
(1) ACROFILE and ACROFILE Plus - are the core
consumer reports from the Equifax consumer credit
database, consisting of identification information, credit file
inquiries, public record information and credit account trade
lines of the subject of the report. Client may access these
credit reports on an individual basis or through Joint File
Access, which provides simultaneous access to the credit
files of both husband and wife with a single inquiry.
(2) ACRO Select - provides a summary output of the
ACROFILE or ACROFILE Plus consumer report when no
adverse elements are present in the credit file, and a full
consumer report when adverse elements are present.
(3) Address Variance Indicator - is an ancillary service to
ACROFILE, ACROFILE Plus and FINDERS that provides
an indicator to alert Clients of the variations between inquiry
address(es) and the address(es) appearing on the credit
file.
(4) ARDT - is a service that provides consumer report
information consisting of creditors' and inquirers' names,
addresses and current phone numbers.
application will be available for ClienYs review and
approval, subject to its own user acceptance testing
procedures. After, Client approval is received, the ClienYs
application will be implemented into production.
(8.1) Decision Power - is a service that includes various
credit-related information services provided by Equifax to
Client by Voice Response Unit, Direct Access Terminal,
System-to-System, or the Internet.
General Terms. Upon mutual agreement of Client and
Equifax, Equifax may access information from sources
other than Equifax or its Affiliates. Equifax will have no
liability in any regard for any other source's information, or
for any part of the Service that is based on that information.
Client will obtain direct senrice agreements with other
information sources entitling Client to receive and use their
information as part of the Service, and specifying the prices
Client will pay those sources for their information. Equifax
will bill Client monthly for the Service in accordance with
the rates set forth in Exhibit "C" and Client will pay to
Equifax an amount equal to either the aggregate
transaction costs or the monthly minimum, which ever is
greater.
(5) Auto-DTEC - is a service that automatically uses the
Social Security number from an original ACROFILE,
ACROFILE Plus, ACRO Select or FINDERS inquiry to
generate another search using a DTEC transaction to return
a name, address and Social Security number whenever the
credit file inquiry returns a"No Record Found" message.
(6) Consumer Teleahone Number Service - is an optional
feature which atlows published consumer telephone
numbers to be displayed on the consumer report.
(7) Credit*Hi-Lite - is a merged in-file consumer report that
enables Client to separate low risk from higher risk
applicants at the start of the mortgage loan decision-
making process with information merged from one or more
credit repositories. Optional risk management tools using
Equifax risk-scoring models (i.e. BEACONS"'~ and fraud
prevention services (i.e. SAFESCAN~) are available with
this service.
(7.1) Edited Credit'`Hi-Lite - is a service that allows
one or more of the items from the Credit*Hi-Lite report
or from the mortgage application to be updated or
added to the merged in-file.
(8) Decision Power Service - is a consumer reporting
service that enables the credit grantor to select and evaluate
elements from the Equifax consumer credit database for use
in risk assessment and cross-selling opportunities.
Criteria Aqplication Audits. Prior to the Client
implementation, Equifax will install the Client application
into the user acceptance testing region and conduct testing
of ClienYs application specific to ClienYs specifications.
That testing will be conducted using Equifax's standard
Quality Assurance procedures. During this time, the
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#43064v13
Set-up Charqe. Promptly after execution of this
Agreement, Equifax will bill Client for a non-refundable set-
up charge as set forth on Exhibit "C" for programming of
ClienYs initial decision criteria and for any other custom
development. Equifax will program additional sets of
decision criteria or make programming changes to existing
Decision Power applications upon ClienYs request at a cost
to be determined by the parties prior to programming. The
re-programming fees will be based upon ClienYs business
requirements.
Application Audits for Chanqes. During the calendar
year, Client may make programming changes to the
application as set forth above. Upon mutual agreement,
Equifax will conduct additional review, and provide to Client
for its review and approval, the ability to perform additional
testing following changes made to the application, as
appropriate based on the complexity of the change.
Use of Anonvmous Batch Reqorts Equifax may provide
Client in anonymous form (i.e. no consumer identifying
information) reports containing certain mutually agreed upon
data attributes pertaining to those consumers that did not
meet ClienYs prescreen program criteria. Client may use that
information solely for the purposes of (i) audit and (ii)
analyzing ClienYs prescreen program, and will not directly or
through a third party make any effort to match such
information to the corresponding consumer.
(8.2) Decision Power Express - is a service that will include
various credit-related information services and
products provided by Equifax to Client by Direct
Access Terminal or Internet delivery.
General Terms. Client will also be subject to a monthly
minimum charge for transactions, to be billed not less than
45 days from the start date and as set forth in Exhibit "C".
This is not a fee to be imposed in addition to Client's
monthly billing, rather, if in any month, ClienYs monthly bill
is less than the stated minimum, Client will pay Equifax an
amount which represents the difference between ClienYs
actual billing and the stated minimum.
Chanqes. Equifax will make non-programming
changes to the existing Decision Power applications upon
Client's request. Equifax will charge Client $150 for
additional application changes made based upon such a
request. Equifax may, from time to time, issue new
releases of the Decision Power Express application.
Capabilities introduced in new releases will be made
available to existing Clients. Changes will be treated as
described above. Equifax shall provide reasonable
assistance to help Client implement the new capabilities.
Application Audits for Chanqes. During the calendar
year, Client may make non-programming changes to the
application as set forth above. Upon mutual agreement,
Equifax will conduct additional review, and provide to Client
for its review and approval, the ability to perform additional
testing following changes made to the application, as
appropriate based on the complexity of the change.
(9) DL Advantaae ("Drivers License Advantage") - is an
identification verification service that uses an applicanYs
driver's license number to search the Equifax nationwide
database, and is used in conjunction with the POSITIVE
IDS"' service to improve ClienYs ID verification rate. Client
will not use this service to determine eligibility for credit,
insurance, employment or for any other purpose that
permits a consumer report to be ordered.
(10) Full DTEC - is a consumer report that consists of
name, AKA, or former name, current and former addresses,
listed telephone number (if available), age, employment,
Social Security number and a message pertaining to the
Social Security number. Client certifies that it will order a
Full DTEC Report only when it has a permissible purpose
to receive a consumer report, as specified in the
Agreement.
(11) EXCHANGE 2000 - is an automated database-
matching service, available to subscribing
telecommunications, energy and utility companies
throughout North America, that compares new-applicant
information with delinquent account data contributed by the
member companies that is filed and stored on the
EXCHANGE System. The Service assists in identifying
potential financial risks and locating consumers who have
delinquent accounts.
(A) Reporting of Information. Client agrees to furnish, at
least monthly, in a format approved by Equifax, information
regarding Client's accounts, including, at a minimum:
current listings of customer service applications, unpaid
closed accounts of $25 or more, and updates to unpaid
closed accounts reflecting their current status. The current
listings will cover the period from the cut-off date of the
previously submitted magnetic tape through the present
cut-off date.
(B) Client Information. All information filed, stored and pro-
cessed through the EXCHANGE System is treated as
confidential and is provided unique identification codes,
which identifies Client and prevents unauthorized access
and retrieval. Client's information is fully separable from
other Equifax Client information and is considered
proprietary in nature.
(C) Client Certification. Client understands that
EXCHANGE reports are consumer reports and may only be
ordered pursuant to Section 1.3 of the Agreement.
(12) FINDERS - is a locate service that searches the
Equifax consumer credit database and provides a
consumer report, consisting of consumer identification
information, including employment information, a list of
trades with activity within the past 24 months and the date
of the last activity, the names and dates of inquiries within
the past 12 months, the phone numbers of the trades and
inquiries listed, a bankruptcy alert indicator and optional
SAFESCANO warnings. Client will use Finders Reports
only for the collection of a credit account with the consumer
subject of the Finders Report, and wilf not use them for the
extension of credit.
(13) FirstFINDER - Equifax manages a database of
consumer names and addresses ("Equifax Database"). In
exchange for the Fees, set forth in Exhibit C, Equifax
grants Client a limited license for ClienYs responsible
personnel to use FirstFINDER as available. Client shall
implement appropriate procedures and safeguards to
prevent the unauthorized use or release of FirstFINDER
and shall issue appropriate instructions to all of its
employees having access to FirstFINDER~" concerning the
restrictions contained herein. Client may not use
FirstFINDER'" to compile customer lists or design
marketing techniques. Client may not use First Finder/First
Finder Deluxe on behalf of or in connection with
Telecommunications or Utility companies, without Equifax's
prior written consent. The parties acknowledge that at the
scope and availability of the data may be affected by
regulatory actions and the terms of Equifax's agreements
with third party sources.
(14) Fraud Advisor - Fraud Advisor is an index that ranks
the fraud risk of a population into one of several categories.
(15) Full ID REPORT - is a consumer report consisting of
name, AKAs, current and former addresses, employment
information, age or date of birth, and Social Security
number (only if input by Client).
(16) ID Advisor - ID Advisor is a tool that helps verify a
consumer's identity by comparing the consumer provided
information against independent data sources.
Usaqe Limitations - Fraud Advisor And ID Advisor -
Client will not use any alert messages generated by
the Service (s) as a part of the eligibility determination
for granting credit, insurance or employment. Client
acknowledges that any such alert message is merely
an indication that the application information should
be further verified prior to a business decision. Client
may only use the data from the Service(s) for the
specific transaction for which the alert message is
Standard Agreement for Service - On Line Services Only LRD 2/( 6/07
#-13064v 13
provided. The Service(s) is/are proprietary and Client
may not use the Service(s) as a component of any
database or file built or maintained by Client. Client
understands that the information supplied by the
Service may or may not apply to the consumer who
has made the application to Client for credit,
insurance or employment.
(17) MarketPrompt - is an on-line cross-sell tool for the
telecommunications, energy and cable industries, offered
as an enhancement to Positive IDSM which provides
custom or national consumer marketing profile information
at the point of sale. Client will not use this service for
determination of credit eligibility.
(18) Mortga4e Business Credit Report ~ is a manually
produced consumer report provided to speed the mortgage
loan granting process by delivering information on self-
employed borrowers that may apply for mortgage loans
covering business history, financial background, number of
employees, length of time in business, credit history and
public record information. The report verifies trade
references reporting credit limits, current balances, terms
and payment histories.
(19) MultiVision Platform - is a mid-range platform
available to telecommunications and utilities clients that
allows access to multiple external databases for standard
and customized based information solutions. There is a
monthly minimum charge for this service.
(20) MultiVision for Windows - is a windows-based software
program developed by Equifax, providing on-line access to
multiple external databases for standard and customized
information based solutions. MultiVision provides muftiple
connectivity capabilities to Equifax services. MultiVision was
developed by Equifax Telecommunications and Utilities
Solutions specifically targeting small- to medium-sized
communications, utilities and energy providers, but has been
expanded for applications for other industries.
(A) Grant of Ripht. Equifax grants to Client a
non-exclusive, non-transferable, non-assignable limited right
to use copies of a certain software system and related
documentation known as MultiVisionSM (which term
includes all present and future modifications, enhancements,
versions and releases of that software system, which may be
provided via PC or Network Server) (the "System"), under
the terms of this Agreement. ClienPs rights under this
Agreement are those of a licensed user only. The System
will at all times remain the property of Equifax. Equifax may,
at its option, enhance the System's functionality, utility or
efficiency by producing new versions of the System during
the term of this Agreement.
(B) Deliverables. Equifax will deliver to Client one
(1) copy of the System software and one (1) copy of the
user documentation for each licensed workstation. Equifax
reserves the right to charge Client in accordance with the
fees established in Exhibit "C" for any on-site installation or
training which may be requested by Client.
(C) Use Restrictions and Confidentialitv. Client
will use the System solely for the purpose of risk
assessment and identification of Client's applicants for
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#43064v13
service. Client will hold all software programs and
documentation received from Equifax in trust as proprietary
or confidential materials. No copying or use of the System
is permitted except as expressly set forth in this agreement.
Client may not sell, publish, disclose, display, sub-license,
reverse-engineer, reverse compile, or otherwise make
available, in whole or in part, the System, or any
modifications, enhancements of, or derivative products
from the System, or allow any third party to take any of the
foregoing actions. If Equifax reasonably determines that
Client is attempting to make use of, license, or convey any
part of the System in a manner contrary to the terms of this
Agreement, Equifax will have, in addition to any other
remedies available to it, the right to equitable relief
enjoining such action, without the necessity of posting a
bond or other security or proving the inadequacy of
monetary damages.
(D) Return of Software. Upon termination of this
Agreement for any reason, Client will return to Equifax all
original programs, documentation and similar materials
provided by Equifax. Client will also furnish, upon request,
a written statement certifying that through ClienYs best
efforts, and to the best of ClienYs knowledge, the original
and all copies of these materials, including derivatives
thereof, have been returned to Equifax or have been
destroyed.
(21) OFAC Alert - is an information service Equifax
provides on behalf of Compliance Data Center, Inc., an
Equifax affiliate. OFAC Alert is based on information that
was not collected, in whole or in part, for the purpose of
serving as a factor in establishing a consumer's eligibility
for credit or insurance to be used primarily for personal,
family or household purposes; employment purposes; or
any other purpose authorized under the FCRA.
Accordingly, Client will not use an OFAC Alert indicator as
part of its decision-making process for determining the
consumer's eligibility for any credit or any other FCRA
permissible purpose. Client acknowledges that such an
indicator is merely a message that the consumer may be
listed on one or more U.S. government-maintained lists of
persons subject to economic sanctions, and Client should
contact the appropriate government agency for
confirmation and instructions. The OFAC Alert indicator
may or may not pertain to the individual referenced in your
inquiry. Refer to the OFAC Customer Guide for further
information.
(22) On-line Directorv - is an ancillary service to
ACROFILE, ACROFILE Plus, and PERSONA that
automatically provides creditors' and inquirers' names and
current phone numbers on the consumer report.
(23) On-Line GEO-CODE - is an ancillary service to
ACROFILE, ACROFILE Plus and ACRO Select that
provides geographic address information for use by
financial institutions in federal audits.
(24) PERSONA and PERSONA PLUS - are consumer
reports, from the Equifax consumer credit database,
consisting of limited identification information, credit file
inquiries, public record information, credit account trade
lines, and employment information.
10
(A) FCRA Certification. Client will notify
Equifax whenever a consumer report will be used for
employment purposes. Client certifies that, before ordering
each consumer report to be used in connection with
employment purposes, it will clearly and conspicuously
disclose to the subject consumer, in a written document
consisting solely of the disclosure, that Client may obtain a
consumer report for employment purposes, and will also
obtain the consumer's written authorization to obtain or
procure a consumer report relating to that consumer. Client
further certifies that it will not take adverse action against
the consumer based in whole or in part upon the consumer
report without first providing to the consumer to whom the
consumer report relates a copy of the consumer report and
a written description of the consumer's rights as prescribed
by the Federal Trade Commission ("FTC") under Section
609(c)(3) of the FCRA, and will also not use any
information from the consumer report in violation of any
applicable federal or state equal employment opportunity
law or regulation. Client acknowledges that it has received
from Equifax a copy of the written disclosure form
prescribed by the FTC.
(25) POSITIVE ID - is a service designed to verify an
applicanYs identity at the application stage using the Social
Security number provided by Client to search the Equifax
consumer credit database and other requested on-line
databases. The service returns, in a single, concise
consumer report, a message indicating "match", "no match"
or "no record found", along with full name, current and
former addresses, age and employer when available, and
other names and addresses associated with the applicanYs
Social Security number. The service offers optional fraud
protection features using SAFESCAN, and optional follow-
up searches via the DTEC or DL Advantage services.
Optional scoring models are also available with this service.
(26) RE-APPEAR - is an automated location monitoring
service providing new address or new inquiry information
within 24 hours for use by collectors pursuing "skipped"
consumers. From time to time Client will provide
information to Equifax, in a format acceptable to Equifax, to
be used by Equifax to monitor certain accounts. Client will
only request this service in connection with (1) the review
or collection of a credit account with Client, or (2) the
collection of an account on behalf of a customer of Client
where Client is the collection agent for that customer's
account. Client will take all necessary actions to cease
receiving the service on an individual when Client no longer
satisfies the requirements for ordering the service on that
individual.
(27) Recovery Report - is a truncated credit report for
collections with the most recent eighteen (18) month
window of tradeline history and no payment history for
those trades. Recovery Report is not a full credit report.
Client will use Recovery Report only for the collection of a
credit account with the consumer subject of the Recovery
Report, and will not use Recovery Report for the extension
of credit.
(28) Residential Mortqaqe Credit Reqort - is a full
investigative consumer report that contains information
from at least two national credit repositories, the
consumer's loan application and results from personal
interviews with manually verified name, address and
employment history, when available, plus public record,
tradeline and inquiry information, and may include a risk-
scoring model for use as a tool in projecting future
delinquencies and bankruptcies.
(29) SAFESCAN - is an on-line warning system containing
information that can be used to detect possible fraudulent
applications for credit. Some of the information in the
SAFESCAN database is provided by credit grantors. If
Client orders the SAFESCAN service, then Client will
furnish to Equifax for inclusion in Equifax's SAFESCAN
System any data that Client knows, or suspects, to have
been used in connection with a fraudulent transaction or
attempted fraudulent transaction with Client. That data will
include but not be limited to consumer names, aliases,
Social Security numbers, addresses (current and former),
employment (current and former) and telephone numbers
(business and residential). Client will not use an alert or
warning message from the SAFESCAN System in its
decision-making process for denying credit, but will use the
message as an indication that the consumer's application
information should be independently verified prior to a
credit decision. Client understands that the information
supplied by SAFESCAN may or may not apply to the
consumer who has applied to Client for credit.
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#43064v13
B.II CREDIT SCORE INFORMATION SERVICES
Equifax may provide various scoring services ("Credit Score Information Services") to Client under this Agreement, in
conjunction with various "Standard" Information Services or the Prescreen or Account Review Services. Client will abide by the
additional terms and conditions relating to the Credit Score Information Services.
Description of Credit Score Information Services
(1) Bankruqtcv Naviqator Index 99 - is a credit scoring
service that rank-orders and segments accounts according
to the likelihood of bankruptcy over a 24-month period,
based on information in the Equifax consumer credit
database and other economic forecast data. Client certifies
that it will order this Service only when Client intends to use
the information for either of the permissible purposes set
forth in Section 1.3(b)(i), (ii), (iv) or (v). Client will not order
the Service for employment purposes.
(2) Bankruptcv Navigator Index 3 0- is a credit scoring
service that rank-orders and segments accounts according
to the likelihood of bankruptcy over a 24-month period,
based on information in the Equifax consumer credit
database. The scores returned by the Bankruptcy
Navigator Index 3.0 service only represent a prediction of
bankruptcy filing relative to other individuals in the Equifax
credit database and are not intended to characterize any
individual as to credit risk or credit capacity. Subscriber
certifies that it will order this Service only when Subscriber
intends to use the information for the permissible purposes
set forth in Section 604(a) of the Fair Credit Reporting Act.
Subscriber will not order the Service for employment
purposes.
(3) BEACON - is a credit scoring service based on a model
developed by Fair, Isaac and Equifax that ranks consumers
in the Equifax consumer credit database relative to other
consumers in the database with respect to the likelihood of
those consumers paying their accounts as agreed. Equifax
is the authorized agent of Fair, Isaac for purposes of
executing this Agreement for Beacon, and for collection of
all fees for the service.
(4) Brokerape Risk Indicator - is a highly refined credit
scoring analytical tool developed specifically for the
brokerage industry that uses advanced, statistical profiling
techniques to identify high risk clients and prospects earlier
in the process, and predicts the likelihood of loss on an
account over a twelve-month period.
(5) Enhanced Delinquencv Alert Svstem ("EDAS") - is a
point scoring model that measures the likelihood of serious
delinquency and bankruptcy over a 12-month period.
(6) Epuifax CARcredit 99 Score - is a credit scoring service
for the automobile financing and leasing industries that
rank-orders credit files on new or established auto trades
based on the likelihood of serious delinquency, charge-off,
or bankruptcy over a 24-month period.
(7) Equifax Risk Score - is a credit scoring service that
ranks consumers in the Equifax consumer credit database
relative to other consumers in the Equifax consumer credit
database and segments accounts based on the likelihood
of those consumers paying their accounts as agreed and
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#43064v13
predicts the probability of serious delinquency, charge-off,
and bankruptcy over a 24- month period.
(8) Pinnacle - is a credit scoring algorithm developed
by Fair, Isaac and Equifax that evaluates the likelihood that
consumers will pay their existing and future credit
obligations, as agreed, based on the computerized
consumer credit information in the Equifax consumer
reporting database.
(9) Vanta eScore - is a tri-bureau credit risk model
developed using one algorithm across sample data
common to all three credit bureaus. The following
additional terms and conditions apply to ClienYs receipt and
use of VantageScore:
End User Terms for VantageScore - Client will request
VantageScores only for ClienYs exclusive use. Client may
store VantageScores solely for Client's own use in
furtherance of Client's original purpose for obtaining the
VantageScores. Client shall not use the VantageScores for
model development or model calibration and shall not
reverse engineer the VantageScore. All VantageScores
provided hereunder will be held in strict confidence and
may never be sold, licensed, copied, reused, disclosed,
reproduced, revealed or made accessible, in whole or in
part, to any person except (i) to those employees of Client
with a need to know and in the course of their employment;
(ii) to those third party processing agents of Client who
have executed an agreement that limits the use of the
VantageScores by the third party only to the use permitted
to Client and contains the prohibitions set forth herein
regarding model development, model calibration and
reverse engineering; (iii) when accompanied by the
corresponding reason codes, to the consumer who is the
subject of the VantageScore; or (iv) as required by law.
Terms and Conditions for Credit Score Information
Services Other Than BEACON and Pinnacle
1. Disclosure of Scores. Client will hold all
information received from Equifax in connection with any
Credit Score Information Services received from Equifax
under this Agreement in strict confidence and will not
disclose that information ("Scores") to the consumer or to
others except as required by law. Client may provide the
principal factors contributing to the Scores to the subject of
the report when those principal factors are the basis of
ClienYs adverse action against the subject consumer.
Client must describe the principal factors in a manner
which complies with Regulation B of the ECOA.
2. ECOA Statements. Equifax reasonably believes
that, subject to validation by Client on its own records, (1)
the scoring algorithms used in the computation of the
Scores are empirically derived from consumer credit
information from Equifax's consumer credit reporting
database, and are demonstrably and statistically sound
12
methods of rank ordering candidate records from the
Equifax consumer credit database for the purposes for
which the Credit Score Information Services were designed
particularly (as stated in Exhibit B for each particular Credit
Score Information Service), and each is intended to be an
"empirically derived, demonstrably and statistically sound
credit scoring system" as defined in Regulation B, with the
understanding that the term "empirically derived,
demonstrably and statistically sound," is defined only in a
general manner by Regulation B, and has not been the
subject of any significant interpretation; and (2) the scoring
algorithms comprising the Credit Score Information
Services, except as permitted, do not use a"prohibited
basis," as such phrase is defined in Regulation B. Client
must validate the Credit Score Information Services on its
own records. Client will be responsible for meeting its
requirements under the ECOA and Regulation B.
3. Release. Equifax does not guarantee the
predictive value of the Scores with respect to any
individual, and does not intend to characterize any
individual as to credit capability. Neither Equifax nor its
directors, officers, employees, agents, subsidiary and
affiliated companies, or any third-party contractors,
licensors or suppliers of Equifax will be liable to Client for
any damages, losses, costs or expenses incurred by Client
resulting from any failure of a Score to accurately predict
the credit worthiness of ClienYs applicants or customers. In
the event the Credit Score Information Services were not
correctly applied by Equifax to any credit file, Equifax's sole
responsibility will be to reprocess the credit file through the
Credit Score Information Services at no additional charge.
4. Audit of Models. Client may audit a sample of the
Scores and principal factors and compare them to the
anonymous underlying credit reports in accordance with
Equifax's audit procedures. If the Scores and principal
reasons are not substantiated by the credit files provided
for the audit, Equifax will review programming of the model
and make corrections as necessary until the Scores and
principal reasons are substantiated by the audit sample
credit reports. After that review and approval, Client will be
deemed to have accepted the resulting Score and principal
factors delivered. It is ClienYs sole responsibility to validate
all scoring models on its own records and performance.
Additional Terms and Conditions Applicable to Fair,
Isaac Scores. The following additional terms and
conditions apply to any Scores jointly provided by Equifax
and Fair, Isaac & Co. ("Fair, Isaac°).
(a) Aqent. Equifax is the authorized agent of Fair,
Isaac for purposes of executing this Agreement as it
pertains to the Scores and for collection of all fees and
charges arising thereunder with respect to the Scores.
(b) Confidentialitv. Client will hold all Scores received
from Equifax under this Agreement in strict confidence and
will not disclose any Scores to the consumer except as
required by law. Client may provide the principal factors
contributing to the Scores to the subject of the report when
those principal factors are the basis of ClienYs adverse
action against the subject consumer. Client must describe
the principal factors in a manner which complies with
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Regulation B of the ECOA. Further, Client acknowledges
that the Scores and factors are proprietary and that, except
for (a) disclosure to the subject consumer if Client has
taken adverse action against such consumer based in
whole or in part on the consumer report with which the
Scores were delivered or (b) as required by law, Client will
not provide the Scores to any other party without Equifax's
and Fair, Isaac's prior written consent.
(c) Limited Liabilitv. The combined liability of Equifax
and Fair, Isaac arising from any particular Score provided
by Equifax and Fair, Isaac shall be limited to the aggregate
amount of money received by Equifax from Client with
respect to that particular Score during the preceding twelve
(12) months prior to the date of the event that gave rise to
the cause of action.
(d) Adverse Action. Client shall not use Scores as
the basis for an "Adverse Action" as defined by the Equal
Credit Opportunity Act or Regulation B, unless score factor
codes have been delivered to Client along with the Scores.
13
B. [IL ANCILLARY SERV[CES
1. Trans-border Information. Client may from
time to time request Information Services on consumers
having credit histories accumulated outside of the United
States. If that information is available under the terms of this
Agreement, Equifax may facilitate ClienYs access of that
information through an Equifax affiliated company, or an
a~liated joint venture or partnership (the "International
Supplier"). Client's receipt and use of that information will be
subject to all the terms of this Agreement (excluding Section
1.3 and Section II) and this Agreement will be deemed to be a
separate agreement between Client and the applicable
International Supplier directly, with Equifax having entered
into that agreement with Client on behalf of the International
Supplier. Client further recognizes that Equifax will merely
facilitate access to the information, and Equifax will not be
responsible for the information or services received by Client
from the International Supplier or for any damages, whether
direct, consequential, incidental, indirect, exemplary or
special, arising from that information or those services. In
addition, Client acknowledges that the receipt and use of that
information may be govemed by .various laws and
regulations of the country, state or province in which the
consumer resides or from which the information originates,
and Client will comply with those applicable laws and
regulations regarding ClienYs receipt and use of the
information. Client certifies that either (i) Client will not
request Information Services regarding residents of Canada,
or (ii) Client has received and read the attached Provincial
Legislative Overview for International Customers of Equifax's
"North American Link" generally describing some additional
requirements of various Canadian provinces regarding the
request and use of credit reporting information on residents
of those provinces; Client understands and agrees that the
Provincial Legislative Overview is provided as a courtesy,
does not constitute legal advice and, by its nature, is only a
summary of some pertinent requirements imposed by
applicable provincial laws; and Client accepts full
responsibility for obtaining competent, independent legal
advice regarding all applicable provincial laws.
2. Phone Number Append - is an optional service
that enriches the Consumer file by appending consumer
phone numbers to promotion and account review lists. This
service is only available when ordered as a supplement to
existing CMS Services.
Do Not Call States: Client acknowledges that Client is
solely responsible for compliance with "Do Not Call"
legislation.
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B lV. SPECIAL TERNIS .aVD CONDlTlO~~"S
California Retail Seller Comqliance. Provisions of the
California Consumer Credit Reporting Agencies Act, as
amended effective July 1, 1998, will impact the provision of
consumer reports to Client under the following
circumstances: (a) if Client is a"retail seller" (defined in part
by California law as "a person engaged in the business of
selling goods or services to retail buyers") and is selling to
a"retail buyer" (defined as "a person who buys goods or
obtains services from a retail seller in a retail installment
sale and not principally for the purpose of resale") and a
consumer about whom Client is inquiring is applying (b) in
person and (c) for credit. Under the foregoing
circumstances, Equifax, before delivering a consumer
report to Client, must match at least three items of a
consumer's identification within the file maintained by
Equifax with the information provided to Equifax by Client in
connection with the in-person credit transaction.
Compliance with this law further includes ClienYs
inspection of the photo identification of each consumer who
applies for in-person credit, mailing extensions of credit to
consumers responding to a mail solicitation at specified
addresses, taking special actions regarding a consumer's
presentment of a police report regarding fraud, and
acknowledging consumer demands for reinvestigations
within certain time frames.
If Client designated in Section 3 of the Agreement that it is
a"retail seller", Client certifies that it will instruct its
employees and agents to inspect a photo identification of
the consumer at the time an application is submitted in
person. If Client is not currently, but subsequently
becomes a"retail seller", Client agrees to provide written
notice to Equifax prior to ordering credit reports in
connection with an in-person credit transaction, and agrees
to comply with the requirements of the California law as
outfined in this Section, and with the specific certifications
set forth herein.
Client certifies that, as a"retail seller", it will either (a)
acquire a new customer number for use in processing
consumer report inquiries that result from in-person credit
applications covered by California law, with the
understanding that all inquiries using this new customer
number will require that Client supply at least three items of
identifying information from the applicant; or (b) contact
ClienYs Equifax sales representative to ensure that ClienYs
existing number is properly coded for these transactions.
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EXHIBIT C
PRICING AGREEMENT
This Pricing Agreement ("Exhibit C") is entered into between Equifax Information Services LLC and Client. All capitalized terms
used but not defined in this Pricing Agreement and the attached schedules are defined as in the Agreement. Client agrees to
abide by the additional terms and conditions of this Exhibit and any attached schedules.
A. Standard Pricing: Equifax standard pricing shall apply to services using Equifax owned files.
All services ordered by Client pursuant to this Agreement.
The following Services:
B. Non-Standard Pricing: The term of this Pricing Agreement will begin on and will expire on the earlier to
occur of or on the date the Agreement is terminated pursuant to Section IV
thereof..
NOTE 1: Unless stated otherwise in this Agreement, the pricing quoted does not include the price(s) for the services using file
information owned by an Equifax System Affiliate. Each Equifax System Affiliate sets its own prices and therefore pricing may
vary if the file information used in a service comes from a file owned by an Equifax System A~liate.
NOTE 2: Unless the parties have mutually agreed otherwise in writing, upon the date of the expiration of the term of this Pricing
Agreement, Equifax will charge and client will pay for the Services at Equifax's standard published rates then in effect.
(Pricing by service(s) is/are listed below or listed in attached document)
Persona (employment report): $3.60
(Note: A FACT Act Regulatory Fee of $0.11 will be applied to the above cost)
Note: For all re orts with a State of CO current or former address, a CO Surchar e of $0.74 will be a lied
Monthly Minimum Fee: $0.00
Annual Fee: $0.00
Set-Up Fee: $0.00
ePort Access Fee: $0.00
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ATTACH~tENT
PROVINCIAL LEGISLATIVE OVERVIEW
Canada does not have a federal statute regulating credit reporting.
Instead, credit reporting regulation is provided under provincial ~aw
in the provinces of British Columbia, Saskatchewan, Manitoba,
Ontario, Quebec, Nova Scotia, Prince Edward Island and
Newfoundland. Not all the laws are the same, particularly
regarding the rules about purging obsolete information.
Additionally, some of the provincial laws require notification to the
consumer when a credit report is requested (see below), but all do
require post-notification regarding adverse action. And, since
Canada has no similar law to the Equal Credit Opportunity Act,
Canadian reports differ from U.S. reports in that no ECOA
designation is listed.
All of the above named provinces, with the exception of
Saskatchewan, require some form of notification to consumers that
a credit report will be or has been accessed on them. Although
you will want to independently review all relevant statutes, some
brief synopses of the provinciai credit reporting laws follows.
British Columbia
No person shall obtain from a reporting agency a report...(a)
without the express written consent of the consumer, or (b) unless
he/she promptly notifies the consumer in writing that a consumer
report will be obtained. (The consent may be contained in an
application for credit, insurance, employment or tenancy, if it is
clearly set forth in type not less than 10 point in size, above the
signature of the consumer.)
Saskatchewan
No pre-notification requirement, but does require post-notification
Manitoba
No person shall conduct, or cause to be conducted, a personal
investigation (a) without the express written consent of the subject,
or (b) unless the subject is given written notice by the user, within
ten days of the granting or denial of the benefit for which the
subject has applied, that a personal investigation was conducted.
This consent may be contained in an application for credit,
insurance, employment or tenancy if clearly set forth in type not
less than 10 point size above the subjecYs signature, and the
consent shall be deemed to be continuing during the term of any
agreement for credit, insurance, employment or tenancy; but, if the
user refuses any application for increase of any benefits under any
such agreement the user shall give notice of any partial or
complete denial of such application as required under law.
Ontario
Where a person proposes to extend credit to a consumer, and a
consumer report containing credit information only is being or may
be referred to in connection with the transaction, he/she shall give
notice of the fact to the consumer in writing at the time of the
application for credit; or, if the application is made orally at the time
of the credit application.
uebec
Since January 1, 1994, the Act Respecting the Protection of
Personal Information in the Private Sector imposes various
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obligations upon companies which conduct business in Quebec
with regard to collecting, using and communicating personal
information, including credit information. Moreover, this Act
prohibits any company from sending credit information held in
Quebec about persons residing in Quebec to third persons without
consent from the persons concerned or in circumstances set forth
in the Act. Therefore, before obtaining any credit information from
the North American Link concerning a person residing in Quebec,
the member must obtain the specific consent of the consumer or
be able to prove that one of the exceptions set forth in the Act
applies (Sections 18 and 23). The member must also use this
information only for the specific purpose consented to by the
consumer or as otherwise authorized by the Act.
Nova Scotia
No person shall procure or cause to be prepared a consumer
report... (a) without the express written consent of the consumer,
or (b) unless he/she notifies the consumer in writing that a
consumer report has been or will be requested, and advises
him/her not later than ten days after the report has been requested
of the consumer reporting agency's name and address.
This notice and consent may be contained in an application for
credit, insurance, employment or tenancy if clearly set forth in type
not less than 10 point in size above the signature of the consumer.
Prince Edward Island
No person shall procure from the consumer reporting agency, or
cause it to prepare, a consumer report... unless he/she notifies the
consumer of that fact before the report is requested, or he/she has
already obtained the consumer's consent.
Newfoundland
Requires notification for reports containing "personal" information
(investigative consumer reports), which would not include credit
reports. However, the Act provides that, where the credit risk of a
consumer is being assessed by any person, that person shall,
upon request of the consumer, inform the consumer if a credit
report has been obtained and of the name of the consumer
reporting agency supplying the report.
Please be aware that this information is provided for
information purposes only and is not intended to be,
nor should it be used or construed as, legal advice.
17
EXHIBIT D
VERMONT FAIR CREDIT REPORTING CONTRACT CERTIFICATION
The undersigned, ("Client"), acknowledges that it subscribes to receive various information services from
Equifax Information Services LLC ("Equifax") in accordance with the Vermont Fair Credit Reporting Statute, 9
V.S.A. § 2480e (1999), as amended (the "VFCRA") and the Federal Fair Credit Reporting Act, 15, U.S.C. 1681 et.
Seq., as amended (the "FCRA") and its other state law counterparts. In connection with Client's continued use of
Equifax information services in relation to Vermont consumers, Client hereby certifies as follows:
Vermont Certification. Client certifies that it will comply with applicable provisions under Vermont law. In particular,
Client certifies that it will order information services relating to Vermont residents, that are credit reports as defined
by the VFCRA, only after Ciient has received prior consumer consent in accordance with VFCRA § 2480e and
applicable Vermont Rules. Client further certifies that the attached copy of VFCRA § 2480e applicable Vermont
Rules were received from Equifax.
Client:
Signed By:
Printed Name and Title:
Account Number:
Date:
Please also include the following information:
Compliance Officer or Person Responsible for Credit Reporting Compliance
Name:
Title:
Mailing Address:
E-Mail Address:
Phone: Fax:
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Vermont Fair Credit Reporting Statute, 9 V.S.A. § 2480e (1999)
§ 2480e. Consumer consent
(a) A person shall not obtain the credit report of a consumer unless:
(1) the report is obtained in response to the order of a court having jurisdiction to issue such an order; or
(2) the person has secured the consent of the consumer, and the report is used for the purpose consented to by
the consumer.
(b) Credit reporting agencies shall adopt reasonable procedures to assure maximum possible compliance with
subsection (a) of this section.
(c) Nothing in this section shall be construed to affect:
(1) the ability of a person who has secured the consent of the consumer pursuant to subdivision (a)(2) of this
section to include in his or her request to the consumer permission to also obtain credit reports, in connection with
the same transaction or extension of credit, for the purpose of reviewing the account, increasing the credit line on
the account, for the purpose of taking collection action on the account, or for other legitimate purposes associated
with the account; and
(2) the use of credit information for the purpose of prescreening, as defined and permitted from time to
time by the Federal Trade Commission.
VERMONT RULES *** CURRENT THROUGH JUNE 1999 ***
AGENCY 06. OFFICE OF THE ATTORNEY GENERAL
SUB-AGENCY 031. CONSUMER PROTECTION DIVISION
CHAPTER 012. Consumer Fraud--Fair Credit Reporting
RULE CF 112 FAIR CREDIT REPORTING
CVR 06-031-012, CF 112.03 (1999)
CF 112.03 CONSUMER CONSENT
(a) A person required to obtain consumer consent pursuant to 9 V.S.A. §§ 2480e and 2480g shall obtain said
consent in writing if the consumer has made a written application or written request for credit, insurance,
employment, housing or governmental benefit. If the consumer has applied for or requested credit, insurance,
employment, housing or governmental benefit in a manner other than in writing, then the person required to obtain
consumer consent pursuant to 9 V.S.A. §§ 2480e and 2480g shall obtain said consent in writing or in the same
manner in which the consumer made the application or request. The terms of this rule apply whether the consumer
or the person required to obtain consumer consent initiates the transaction.
(b) Consumer consent required pursuant to 9 V.S.A. §§ 2480e and 2480g shall be deemed to have been
obtained in writing if, after a clear and adequate written disclosure of the circumstances under which a credit report
or credit reports may be obtained and the purposes for which the credit report or credit reports may be obtained,
the consumer indicates his or her consent by providing his or her signature.
(c) The fact that a clear and adequate written consent form is signed by the consumer after the consumer's credit
report has been obtained pursuant to some other form of consent shall not affect the validity of the earlier consent.
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