This AGREEMENT is entered into this 23rd day of October, 2017 (“Effective Date”)
by and between _______________________________________ (hereafter, “CUSTOMER”), and National
Background & Screening Solutions, LLC (hereafter, “NBSS”).
1.1 NBSS hereby agrees to provide CUSTOMER with web-based access via the public Internet to
one or more of its information data products (“the Product”) subject further to the terms, conditions,
restrictions, specifications and limitations described herein.
1.2 NBSS shall endeavor to provide CUSTOMER with 24/7/365 web-based electronic access to the
Product however the Parties recognize that factors related to internet connectivity beyond NBSS’s
physical infrastructure and outside of NBSS’s control may limit or restrict this access from time to
time. NBSS shall use reasonable efforts to restore service in the event of an unavailability caused by
circumstances within NBSS’s control. Likewise, NBSS shall, whenever practical, provide
CUSTOMER with advance notice of scheduled unavailability due to system maintenance.
2. Description of Product; Limitations
2.1 The Product (hereafter “the Product”, “the Products”) is defined as follows: For each query
submitted electronically by CUSTOMER (i) according to NBSS’s technical XML specification or
(ii) manually using CUSTOMER’s unique login credentials via a website maintained by NBSS, an
electronic response, including a “no record” response, consisting of a comparison of the submitted
query data against NBSS’s data compiled from various sources, using proprietary comparison and
matching methodologies, including those record details as made available to NBSS from its various
sources, which may vary from record to record according to the specific product type being
2.2 The Product consists of data compiled from various sources, including but not limited to public
records, other information repositories, commercial data brokers and third-party information providers.
Accordingly, NBSS can in no way warrant or guarantee the absolute accuracy of the Product or that the
Product will be error free or contain all criminal records, uninterrupted or meet CUSTOMER’s requirements;
specifically, but not limited to, when the customer or registering volunteer incorrectly enters data
including incorrect date of birth and/or incorrect legal name.
3. Legal Compliance
3.1 CUSTOMER assumes full responsibility for determining and performing any necessary
verification steps after receiving responses using the Product as may be required to confirm the
identity of the subject named in the record(s) prior to making any adverse decisions with respect to
an individual consumer.
3.2 CUSTOMER assumes full responsibility for determining the applicability of federal, state and/or
local laws, ordinances, statutes and regulations which may apply at the time based upon
CUSTOMER’s intended use of the Product and for complying with the same prior to using or further
disseminating any information based in whole or in part on the Product. This may include, by way of
example, the federal Fair Credit Reporting Act (“FCRA”), however CUSTOMER’s specific intended use of
the Product may require compliance with other federal, state and/or local laws, ordinances, statutes and regulations.
3.3 CUSTOMER warrants and represents that it is knowledgeable in the jurisdiction(s) in which it
operates as to the federal, state and/or local laws, ordinances, statutes and regulations which may
apply to CUSTOMER’s business and its use of the Product. CUSTOMER is strongly urged to seek
the advice of legal counsel prior to entering into this Agreement to ensure that it meets the necessary
legal requirements, hereby acknowledges and agrees that many factors, known only to CUSTOMER
at the time the Product is procured from NBSS, affect whether or not any or all of the individual
record information contained within the Product is ultimately legally reportable to CUSTOMER’s
clients or users, said factors including but not limited to (i) the Permissible Purpose(s) for which the
Product is being requested and used, (ii) exceptions granted by statute, including FCRA exceptions
based upon the anticipated salary of the applicant in the case of screening for employment purposes,
(iii) state-specific requirements depending upon the location of the applicant, CUSTOMER, and/or
CUSTOMER’s client, and (iv) other information known only to CUSTOMER and not known to
NBSS. CUSTOMER acknowledges and agrees that CUSTOMER bears exclusive responsibility for
determining reportability of information contained within the Product procured from NBSS.
3.4 Should CUSTOMER’s intended use of the Product include Employment Screening, then
CUSTOMER warrants and represents that it shall, prior to providing information obtained from the
Product in whole or in part which may be used to make an adverse decision with respect to an
individual consumer, either (i) comply with §613(a)(1) of the FCRA by providing notification to the
consumer of the fact that public record information is being reported, together with the name and
address of the entity to whom the information is being reported; or (ii) comply with §613(a)(2) of the
FCRA by maintaining strict procedures to verify that the information is complete and up-to-date by
verifying the current public record status of the information.
4.1 CUSTOMER acknowledges that the Product may contain Personally Identifiable Information
(“PII”) as defined by various state and federal statutes, and that CUSTOMER has an affirmative duty
and obligation to keep all such information secure. To facilitate this, CUSTOMER shall limit access
to the Product obtained from NBSS to only those employees who have a need to know as a part of
their official duties with CUSTOMER. CUSTOMER shall immediately notify NBSS to deactivate
the login credentials of any of CUSTOMER’s employees who have been terminated or who no
longer have a need to know. CUSTOMER shall ensure that its users keep their login credentials
secure and that individual login credentials are assigned to and known by no more than one
employee. CUSTOMER shall take commercially reasonable measures to prevent unauthorized
physical or electronic access to Product obtained from NBSS, or data derived there from, by any
unauthorized persons or entities. Client shall employ data destruction procedures to protect the
security and confidentiality of all information obtained from NBSS which, at a minimum, meet or
exceed the standards set in the NAPBS Data Security and Privacy Guidelines as posted at
4.2 CUSTOMER agrees to require that its prospective employees and volunteers submit, prior to the
use of NBSS’s system or products, to CUSTOMER a consent form acknowledging that a
background search will be performed.
5. Modifications; Discontinuation
5.1 NBSS reserves the right to make modifications to the Product, including but not limited to
changing the internet IP address and URL used by CUSTOMER to access the Product. NBSS shall,
whenever practical, provide CUSTOMER with advance notice of any intended modifications.
5.2 In the event of circumstances which render NBSS unable to continue to provide the Product as
substantially described herein, NBSS may discontinue offering the Product and will, whenever
practical, provide CUSTOMER with advance notice of any intended discontinuation. Should NBSS
discontinue offering the Product, CUSTOMER’s billing shall cease as of the date the Product is no
longer available to CUSTOMER.
6.1 CUSTOMER shall defend and indemnify NBSS against any and all claims, losses, costs
and expenses, including reasonable attorney’s fees, which NBSS may incur as a result
of claims in any form by third parties arising from CUSTOMER’s use of the Product.
7. Limitation of Liability
7.1 IN NO EVENT SHALL NBSS BE LIABLE TO CUSTOMER, WHETHER IN CONTRACT
OR IN TORT OR UNDER ANY OTHER LEGAL THEORY (INCLUDING, WITHOUT
LIMITATION, STRICT LIABILITY AND NEGLIGENCE) FOR LOST PROFITS OR
REVENUES, LOSS OR INTERRUPTION OF USE, LOST OR DAMAGED DATA, REPORTS,
DOCUMENTATION OR SECURITY, OR SIMILAR ECONOMIC LOSS, OR FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, ARISING
OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF
THIS AGREEMENT, OR FOR ANY CLAIM MADE AGAINST CUSTOMER BY ANY THIRD
PARTY, EVEN IF NBSS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM. IN
NO EVENT SHALL NBSS’S LIABILITY UNDER ANY CLAIM MADE BY CUSTOMER
EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO NBSS RELATING TO
THE AFFECTED PORTION OF THE PRODUCT. NO ACTION, REGARDLESS OF FORM,
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT BY
CUSTOMER MORE THAN ONE (1) YEAR AFTER THE FIRST TO OCCUR OF THE
TERMINATION OR EXPIRATION OF THIS AGREEMENT OR THE EVENT GIVING RISE TO
SUCH CAUSE OF ACTION.
8. Product provided AS-IS. No Warranty
8.1 THE PRODUCT AND ANY SUPPORT SERVICES ARE PROVIDED “AS-IS”. NBSS AND
ITS SUPPLIERS DISCLAIM ALL WARRANTIES AND CONDITIONS WHATSOEVER,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED
WARRANTIES OF TITLE, NO-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE. NBSS DOES NOT AND CANNOT CONTROL THE FLOW OF
DATA TO OR FROM THE NBSS NETWORK AND OTHER PORTIONS OF THE INTERNET.
ACCORDINGLY, NBSS DISCLAIMS ANY AND ALL LIABILITY ON ACCOUNT THEREOF.
9.1 CUSTOMER may terminate this Agreement at any time and for any reason by providing
notification to NBSS and discontinuing use of the Product. Upon notification of termination and
discontinuation of use, CUSTOMER shall remain liable for any outstanding and unpaid costs
associated with its use of the Product prior to its notification of termination and discontinuation of
9.2 NBSS may terminate this Agreement (i) at any time and for any reason by providing at
least thirty (30) days notice to CUSTOMER; or (ii) in accordance with 6.2 of this Agreement NBSS
may terminate this Agreement sooner in the event that NBSS is unable to continue to provide the
Product as substantially described herein; or (iii) NBSS may immediately terminate this Agreement
if, in NBSS’s sole discretion, NBSS believes that CUSTOMER has breached its obligations under
10.1 CUSTOMER and NBSS acknowledge that Confidential Information may be disclosed during
the course of this Agreement. Such Confidential Information will not be used or disclosed by either
Party outside of the purpose of this Agreement. Each Party agrees to safeguard the confidentiality of
all information disclosed by the other Party. In addition, no information received or disclosed will be
used in any manner in competition with the disclosing Party.
10.2 CUSTOMER is explicitly prohibited from using information obtained from NBSS, including
but not limited to the Product, documentation associated with the Product, XML specifications,
coverage descriptions, pricing and contractual provisions, information contained on NBSS’s
websites which requires login credentials to view, and other information related in any way to
CUSTOMER’s use of the Product (collectively, “Confidential Product Information”) to create,
develop or improve a competing product or service or to assist any other entity, individual or
business in creating, developing or improving a competing product or service.
10.3 CUSTOMER shall not, without the prior written permission of NBSS, provide
Confidential Product Information to any competitor of NBSS.
11. Fees; Payment
11.1 CUSTOMER agrees to pay NBSS for its use of the Product according to a separate fee
schedule attached in the Membership Application and incorporated hereto by reference. NBSS
reserves the right to modify its fees by providing 30 days written notice to CUSTOMER.
11.2 CUSTOMER agrees to pay the balance in full, less any discounts extended by NBSS and
amounts disputed in writing by CUSTOMER, within 30 days of the date printed on NBSS’s invoice.
11.3 Should CUSTOMER’s outstanding balance exceed NBSS’s terms, NBSS reserves the right
to suspend CUSTOMER’s access to the Product, including CUSTOMER’s access to pending or
historical Product data residing in NBSS’s information systems, until CUSTOMER’s account is
brought back within NBSS’s terms.
11.4 CUSTOMER agrees that a service charge of one and one-half percent per month (18% APR)
may be added to balances not paid within thirty days. CUSTOMER is also liable for all legal and
collection costs, including attorney’s fees, in the event that the account becomes delinquent and is
placed with a third-party collection agency.
12.1 This Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original and all of which together shall be deemed to be one and the same
13. Contract in Entirety; Amendment
13.1 This Agreement may not be modified, altered or changed except upon the express prior written
consent of the parties. This Agreement contains all of the terms and conditions agreed upon by the
parties hereto with respect to the subject matters hereof. No other agreements, oral or otherwise,
shall be deemed to exist or to bind either of the parties hereto. No representative of either party
hereto had or has any authority to make any representation or promise not contained in this
Agreement, and each of the parties hereto acknowledges that each has not executed this Agreement
in reliance upon any such representation or promise. This Agreement shall be binding upon
CUSTOMER, its employees, agents, representatives, officers, board members, successors and
14. Choice of Law; Venue
14.1 This Agreement shall in all respects be interpreted, enforced, governed and construed by and
under the laws of the State of Utah. The parties agree to the exclusive venue of the Circuit Court for
Salt Lake City, Utah.
15.1 The invalidity, illegality or unenforceability of any provision hereof or any particular
application thereof shall not be deemed to affect or impair in any manner the validity, legality or
enforceability of any other provision of this Agreement, and this Agreement shall continue in full
force and effect and shall be interpreted so as to implement as nearly as possible the intention of the
parties in the absence of such provision or application.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals on the date first above written.