LAST UPDATED: May 18, 2021
Biometrica Systems, Inc. (“Biometrica”)
7251 West Lake Mead Blvd., Suite 300
Las Vegas, NV 89128
NV PILB #1295
to be agreed to by any individual or other sublicensee (“Authorized User”) accessing the eMotive Service on behalf of (or under license from) the licensed subscriber (the “Licensee” as further defined below) to the eMotive Service. These Use Terms must be agreed to by the Authorized User at account set up and at any initial sign-in.
Licensee refers to the organization on behalf of which (or through subscription licenses) Authorized Users access the eMotive Service in order to upload individual data that can be algorithmically matched against data contained within Biometrica’s UMbRA Platform and then used by the Authorized Users of Licensee to make a final determination of that match. Biometrica and Licensee, and its Subscribers or Authorized Users, are sometimes referred to herein individually as a “Party” and collectively as “Parties.”
- Biometrica is a leader in systems that integrate search algorithms and public safety, security and surveillance software with databases containing information from verified law enforcement databases throughout the United States and, in some cases, internationally, enabling licensed users of its systems, including the eMotive Service, to make a determination of a match between individuals they are monitoring and individuals who have been arrested or convicted for the commission of either a misdemeanor or felony;
- Authorized User certifies to Biometrica that it is an individual over the age of 18 and duly authorized to represent and accept these Use Terms on behalf of the Licensee (and any other individuals that electronically log in and access data from the eMotive Service), in connection with Licensee’s uploading of data into and accessing data from the eMotive Service for the purpose of making a determination on an individual’s possible criminal background;
- These Use Terms apply to any access to the eMotive Service from any platform (platform-agnostic), and govern Authorized User’s rights to use the eMotive Service as a web-based and/or mobile software product. The eMotive Service is based on data that Biometrica obtains only from third-party law enforcement sources via amalgamation with the UMbRA Platform (“Platform”) using the Platform’s functionality. For clarity, please read UMbRA Terms of Service, which is a separate document provided to Licensee.
- In return for Biometrica providing access to Authorized User to Licensee’s eMotive Service account, Authorized User agrees to abide by the following terms and conditions of use for the current and all future uses of the Licensee Account:
- Authorized User agrees to provide all of the requested information for the purposes of running continuous monitoring on the dataset of individuals that Authorized User (and other Authorized Users of Licensee) have uploaded into the eMotive Service.
- Prior to account set up, Licensee has already certified in writing that any employees, contractors or volunteers whose information has been (or will be) uploaded and maintained on the eMotive Service have been informed that they are being background checked, as required by the FCRA and any other local, state, federal and international laws, and that they have assented to the same through a standalone form. Authorized User further agrees and understands that this is a 24×7 background check against real-time arrest and/or conviction records, which may include and not be limited to sex offender registries and wanted lists.
- Authorized User agrees and understands that when Authorized User determines that there is a match against any historical records, any action Authorized User or other personnel of Licensee choose to take based on a historical record must comply with applicable local, state, federal and international laws and the FCRA and other applicable guidelines.
- Authorized User agrees that any information it provides to eMotive on behalf of a Licensee on any individual to be monitored is true, accurate, and complete.
- Authorized User understands and accepts that he/she/they are at all times responsible for securing and updating his/her/their login information (i.e. user ID/name, password, security questions and answers). This responsibility applies even if Authorized User changes their login information. This information must be kept confidential at all times and must not be shared with or disclosed to others, including other authorized users in the Licensee organization. Every Authorized User is required to have their own account set up in order to maintain an audit trail and preserve digital chain of custody.
- If an Authorized User’s eMotive login information (i.e. user ID/name, password, security questions and answers) are revealed or if Authorized User suspects that someone else has learned or obtained them, he/she/they are responsible for taking all necessary measures to ensure compliance with the terms and conditions Licensee agreed to when creating the Authorized User login information. Authorized User must also advise Biometrica Support of this immediately by writing to firstname.lastname@example.org.
- Authorized User agrees not to use their own or another individual’s login information for any illegal or improper purposes under applicable law.
- Authorized User agrees that they will not use any script, robot, spider, web crawler, screen scraper, automated query program or other automated device or any manual process to monitor or copy the content contained in any online services or systems provided by Biometrica. Authorized User further agrees that they will not use any device, software or routine to interfere or attempt to interfere with the proper working of Biometrica’s online services or systems, and that they will not disturb the normal operation of such services. They agree not to use the services in a manner that harasses or may harass other parties, or that will or will have the potential to disrupt, undermine, corrupt, diminish or otherwise threaten or jeopardize Biometrica’s services, systems, or their integrity.
- Authorized User understands that to maintain data integrity and user privacy, remain in compliance with international, federal, state and local laws and guidelines (where applicable), and maintain and preserve digital chain of custody, neither Biometrica nor its employees, contractors or agents will access Licensee’s dataset of individuals being monitored (or the Personally Identifiable Information (PII) maintained by Licensee on such individuals). However, Biometrica’s algorithms will have access to and automatically access that information — without human intervention — in the normal course of proceedings in order to provide the eMotive Service and run background checks against that dataset. In addition, there may be occasions on which Biometrica support teams will be asked to have temporary and limited access to Licensee’s dataset in order to replicate a technical problem reported by Licensee or in order to comply (or assist Licensee in complying) with a legal subpoena. Licensee understands that Biometrica will inform Licensee, through its Authorized Users, and will have to receive permission in writing before any such data access can take place. Licensee understands and agrees that use of this service and any associated services or products is in accordance with these terms and conditions.
- Authorized User understands and accepts that Biometrica can suspend or revoke access to an eMotive Account without notice under the following circumstances: we suspect unauthorized use of Authorized User’s personal or login information; an Authorized User or Licensee fails to comply with these Use Terms or any Licensee agreements in place with Biometrica or subcontractors, where applicable; as a security measure; for operational reasons i.e. including, but not limited to, the use of scripts, web crawlers or screen scrapers; or for administrative reasons.
- Licensee and its Authorized User understand that this is an online service, accessed either through a desktop or a mobile site, or mobile application. Biometrica has taken commercially reasonable steps to ensure the security of this website and its algorithms, using end-to-end encryption technology and incorporating other procedures to protect organizational, personal and personally identifiable information of individuals. However, Licensee and its Authorized User also understand that despite such security measures and commercially reasonable efforts, the Internet is a public network and there is always the possibility of data security violations. In the event of such occurrences, Biometrica is not responsible for any damages you may experience as a result of these violations but will undertake to inform you within 48 hours of the discovery by us of any such violation.
- Biometrica is not liable for any inability of an Authorized User to access or use the eMotive Account or any services because of Internet connectivity issues, which may result in problems including and not limited to the site running slowly or not loading. Without limiting the generality of the foregoing, Biometrica disclaims all liability for any claim in relation to the availability or unavailability, for any reason, of the Internet, login services, transfer links, telecommunications or other infrastructure systems; any illegal or fraudulent use of Authorized User login information or any transfer of information to Biometrica; any restriction, delay, malfunction, or unavailability of services; or the use of Authorized User login information in a state or foreign country where such services are restricted or prohibited by the laws of that state or country.
- Licensee and its Authorized User understand and agree that any potential algorithmic suggestion of a match between a Licensee’s employees, contractors, volunteers or other consumers to arrest or conviction data contained within UMbRA (Biometrica’s equivalent of a national criminal database, and accessed via eMotive), is dependent on whether Biometrica has access to that data from a law enforcement jurisdiction and whether or when that law enforcement agency has updated the data in that jurisdiction. If law enforcement has not updated data, or data from a particular jurisdiction is not available to UMbRA, there will be no data available for matches even if it is later determined that an individual being monitored by Licensee had been charged with or convicted of a misdemeanor or a felony. Authorized User also understands that the data contained within UMbRA is sourced 100% from law enforcement records and is inputted wholly by the law enforcement agency concerned: Biometrica does not change or manipulate the data contained within UMbRA and is not responsible for any errors in inputting made by law enforcement in that data.
- Disclaimer: Authorized User understands that the record of an arrest is not an indication of guilt. Biometrica does not provide information on case disposition. Disposition of cases can be searched by using the arrest number or case details, including and not limited to first and last name, middle name when available, photograph/s when available, any other demographic details like eye color, hair color, race, when inputted, date of arrest, arresting agency, arresting officer when available, and charge details provided in an UMbRA match to follow up with the arresting agency or court of record in that jurisdiction. Biometrica does not expressly or by implication warrant that the information or data accessed by Licensee, its Authorized users or any of its agents is accurate or correct. Biometrica is not liable for any loss, cost, damage or expense arising directly or indirectly in connection with this access. In no event shall Biometrica be liable for any special or consequential damages or for any direct damages resulting from a Licensee or its Authorized User’s use or application of the data or information obtained as a result of using any of Biometrica’s products or services. Biometrica’s records for any law enforcement jurisdiction are available from when that jurisdiction was accessed by UMbRA. When a law enforcement agency makes historical records available, Biometrica’s algorithms access those records. Note: Some law enforcement jurisdictions do not make any, or make only some, of their historical records available.
- Authorized User agrees and understands that the data or information provided by any Biometrica service should not be solely relied upon for any type of pre-adverse or adverse employment action or other legal action. Authorized User understands and agrees to (a) not use any of the information found in an eMotive Service report in violation of any applicable international, federal, state or local equal opportunity laws; (b) receive and provide, when needed, all needed disclosure and authorization forms as required by the FCRA; (c) provide appropriate pre-adverse and adverse action notices and a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act” to any applicant that Licensee decides not to hire, or any employee that Licensee decides to take any action against based on information obtained from eMotive or UMbRA; and (d) provide the consumer (the individual Licensee is making a decision on) with any additional information required by law and detailed in Biometrica’s contracts, guidelines and Use Terms.
- Licensee and its Authorized User agree that they have understood the foregoing and have read the comprehensive FAQs relating to data and data privacy, UMbRA and eMotive processes, and the FCRA contained on the Biometrica website.
- Authorized User agrees that they have read the updated UMbRA Terms and Conditions and have understood and agreed with them. If Authorized User has not, please immediately contact eMotive@biometrica.com with any questions or clarifications needed and request a copy of the same.
- These Use Terms may be amended from time to time. When this occurs, Authorized User will be presented with a new version and asked to indicate acceptance once again.
- The eMotive Service is intended for Authorized Users (Account Managers) of Licensee’s organization only. Inappropriate use of the eMotive Service may result in the revocation or suspension of online access. Illegal use of the eMotive Service in violation of any applicable local, state, federal or international laws will result in the suspension of the eMotive Service and if necessary, reporting to law enforcement authorities.
NOW, THEREFORE, LICENSEE AND THE AUTHORIZED USER AGREE TO EACH OF THE FOLLOWING USE TERMS:
1. IMPORTANT NOTICES AND DISCLAIMERS.
(a) AUTHORIZED USER IS ADVISED TO CONSULT WITH LICENSEE LEGAL COUNSEL BEFORE PROCEEDING BECAUSE:
(i) AUTHORIZED USER’S ACCEPTANCE OF THESE USE TERMS CREATES A BINDING LEGAL AGREEMENT BETWEEN AUTHORIZED USER, ON BEHALF OF THE LICENSEE, AND BIOMETRICA;
(ii) AUTHORIZED USER MAY ONLY USE THE EMOTIVE SERVICE IN COMPLIANCE WITH APPLICABLE LAWS (DEFINED IN SECTION 1(b)(i));
(iii) AUTHORIZED USER MAY ONLY USE THE EMOTIVE SERVICE FOR THE AUTHORIZED PURPOSE (DEFINED IN SECTION 3(a)) AND MAY NOT USE THE SERVICE FOR ANY PERSONAL, FAMILY, HOUSEHOLD OR OTHER PURPOSE WHERE AUTHORIZED USER WOULD BE CONSIDERED A “CONSUMER” UNDER APPLICABLE LAWS; AND
(iv) LICENSEE IS SOLELY RESPONSIBLE FOR TAKING ALL STEPS NECESSARY (INCLUDING CONFERRING WITH LEGAL COUNSEL) TO ENSURE THAT AUTHORIZED USER’S USE OF THE SERVICE COMPLIES WITH (ii) AND (iii) IN THIS SECTION 1(a).
(b) BY ACCEPTING THESE USE TERMS OR OTHERWISE ACCESSING OR USING THE EMOTIVE SERVICE, AUTHORIZED USER, ON BEHALF OF THE LICENSEE, ACKNOWLEDGES AND AGREES THAT:
(i) AUTHORIZED USER WILL USE, AND IS SOLELY RESPONSIBLE FOR USING, THE EMOTIVE SERVICE IN COMPLIANCE WITH ALL APPLICABLE LOCAL, TRIBAL, STATE, NATIONAL AND INTERNATIONAL LAWS, RULES AND REGULATIONS, INCLUDING ANY RELATING TO CONSUMER PROTECTION AND/OR PRIVACY, SUCH AS, WITHOUT LIMITATION, THE FAIR CREDIT REPORTING ACT, 15 U.S.C. § 1681 (collectively, “Applicable Laws”).
(ii) WITHOUT LIMITING THE FOREGOING IN SECTION 1(b)(i), AUTHORIZED USER WILL NOT USE ANY PLATFORM DATA AS THE SOLE FACTOR IN:
(1) ESTABLISHING AN INDIVIDUAL’S ELIGIBILITY FOR PERSONAL CREDIT, LOANS, INSURANCE OR ASSESSING RISKS ASSOCIATED WITH EXISTING CONSUMER CREDIT OBLIGATIONS;
(2) EVALUATING AN INDIVIDUAL FOR EMPLOYMENT, PROMOTION, REASSIGNMENT OR RETENTION (INCLUDING EMPLOYMENT OF HOUSEHOLD WORKERS SUCH AS BABYSITTERS, CLEANING PERSONNEL, NANNIES, CONTRACTORS, AND OTHER INDIVIDUALS);
(3) EVALUATING AN INDIVIDUAL FOR EDUCATIONAL OPPORTUNITIES, SCHOLARSHIPS OR FELLOWSHIPS;
(4) EVALUATING AN INDIVIDUAL’S ELIGIBILITY FOR A LICENSE OR OTHER BENEFIT GRANTED BY A GOVERNMENT AGENCY; OR
(5) EVALUATING AN INDIVIDUAL IN CONNECTION WITH ANY OTHER PRODUCT, SERVICE, TRANSACTION OR IN ANY OTHER MANNER THAT VIOLATES ANY APPLICABLE LAWS.
(iii) BIOMETRICA OBTAINS PLATFORM DATA ONLY FROM THIRD-PARTY LAW ENFORCEMENT SOURCES, DOES NOT EVALUATE PLATFORM DATA IN ANY WAY OR CORRECT ANY ERRORS IN THE PLATFORM DATA (EVEN IF THOSE ERRORS ARE BLATANT). LICENSEE, THROUGH ITS AUTHORIZED USER, DOES NOT RELY ON BIOMETRICA FOR THE ACCURACY OR COMPLETENESS OF PLATFORM DATA AND AUTHORIZED USER WILL MAKE THEIR OWN ASSESSMENT AND JUDGEMENT WITH RESPECT TO ALL PLATFORM DATA AND THE ACCURACY OF THE SAME;
(iv) UNDER NO CIRCUMSTANCES WILL BIOMETRICA OR ANY OF ITS AFFILIATES (DEFINED IN SECTION 8) HAVE ANY LIABILITY TO AUTHORIZED USER OR ANY THIRD PARTY ARISING FROM OR RELATING TO ANY PLATFORM DATA OR FAILURE OF THE PLATFORM TO RETURN CERTAIN PLATFORM DATA (INCLUDING ANY THIRD PARTY THAT IS THE SUBJECT OF ANY PLATFORM DATA OR ANY THIRD PARTY ALLEGING THE PLATFORM FAILED TO RETURN ACCURATE RESULTS), AND AUTHORIZED USER WILL NOT ASSERT (NOR ASSIST THE ASSERTION BY ANY THIRD PARTY OF) ANY CLAIM OR CAUSE OF ACTION AGAINST BIOMETRICA OR ANY OF ITS AFFILIATES ARISING FROM OR IN CONNECTION WITH THE SAME;
(v) ALL PLATFORM DATA IS PROVIDED TO AUTHORIZED USER FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT REPLACE INVESTIGATIVE WORK;
(vi) NEITHER BIOMETRICA NOR ANY OF ITS AFFILIATES, LICENSORS OR SUPPLIERS MAKE ANY REPRESENTATIONS, WARRANTIES, PROMISES, GUARANTEES OR ANY OTHER ASSURANCES ABOUT THE SECURITY, AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS, SUFFICIENCY OR OTHERWISE WITH RESPECT TO ANY ASPECT OF THE EMOTIVE SERVICE; AND
(vii) ALL DISPUTES IN CONNECTION WITH THESE USE TERMS WILL BE RESOLVED THROUGH BINDING ARBITRATION AND EACH PARTY WAIVES ITS RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
(c) BY ACCEPTING THESE USE TERMS OR OTHERWISE ACCESSING OR USING THE EMOTIVE SERVICE, AUTHORIZED USER FURTHER ACKNOWLEDGES AND AGREES THAT:
(i) AUTHORIZED USER HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THESE USE TERMS;
(ii) THESE USE TERMS ACCURATELY REFLECT THE PARTIES’ INTENT;
(iii) AUTHORIZED USER HAS HAD A MEANINGFUL OPPORTUNITY TO REVIEW THESE USE TERMS, INCLUDING THROUGH CONSULTATION WITH LEGAL COUNSEL OF AUTHORIZED USER’S OWN CHOOSING; AND
(iv) AUTHORIZED USER HAS DECIDED TO ENTER INTO THESE USE TERMS ON BEHALF OF LICENSEE AND ON AUTHORIZED USER’S OWN VOLITION AND WITHOUT UNDUE INFLUENCE FROM BIOMETRICA OR ANY THIRD PARTY.
(d) IF AUTHORIZED USER DOES NOT AGREE TO THE TERMS IN THIS SECTION 1 AND ALL OTHER TERMS IN THESE USE TERMS, OR AUTHORIZED USER DOES NOT HAVE THE AUTHORITY TO DO SO ON BEHALF OF A COMPANY/LEGAL ENTITY (LICENSEE), THEN AUTHORIZED USER MUST NOT ACCEPT THESE USE TERMS OR OTHERWISE ACCESS OR USE THE EMOTIVE SERVICE.
(a) Eligibility. THE PERSON WHO ACCEPTS THESE USE TERMS ON BEHALF OF A LICENSEE OR OTHERWISE ACCESSES OR USES THE EMOTIVE SERVICE MUST BE AT LEAST 18 YEARS OF AGE AND OTHERWISE HAVE THE LEGAL CAPACITY TO ENTER INTO A BINDING CONTRACT. IF SUCH PERSON IS NOT AT LEAST 18 YEARS OF AGE AND DOES NOT OTHERWISE HAVE SUCH LEGAL CAPACITY, THEN SUCH PERSON CANNOT ACCEPT THESE USE TERMS OR OTHERWISE ACCESS OR USE THE EMOTIVE SERVICE.
(b) Delivery. Biometrica will issue to Authorized User credentials that are required to access the eMotive Service within a reasonable period after this TOS takes effect as described in Section 5(a). As described above in Recitals, Licensee and/or its Authorized User may not share these credentials with any third party (except other Authorized Users (defined in Section 3(b)(iii)), if applicable). Each Authorized User is solely responsible for the security of Authorized User’s credentials and all use of the eMotive Service attributable to Authorized User’s credentials. Authorized User must notify Biometrica immediately at email@example.com if Authorized User suspects or knows of any unauthorized use of Authorized User’s credentials. Biometrica has the right to monitor use of Authorized User’s credentials to ensure compliance with this TOS.
(d) Updates. Biometrica reserves the right to make changes or updates to the eMotive Service at any time in its sole discretion, provided that they will not materially decrease the functionality of the eMotive Service without advance notice and an opportunity for Licensee to terminate its subscription. Nothing in these Use Terms obligates Biometrica to continue providing all or any elements of the Platform or Platform Data.
(a) Licenses. Subject to Licensee and its Authorized Users complete and ongoing compliance with the terms of these Use Term, Biometrica hereby grants to Licensee during the Term (defined in Section 5(a)) a non-exclusive, non-transferable (except pursuant to Section 10(c) below) and non-sublicensable license (exercisable through Authorized Users, if applicable) to: (i) access and use the Platform, and, if applicable, download, access and use an object code version of the App on one (1) device that Licensee owns or controls (or on the number of such devices corresponding the number of Authorized Users, if applicable); and (ii) access, view and use the Platform Data within the eMotive platform, in the case of both (i) and (ii), solely for Licensee’s internal business purposes (“Authorized Purpose”), in order to make a determination of an individual match to Platform Data.
(i) General. Licensee (and its Authorized Users, if applicable) may not do or attempt to do any of the following:
(1) download, reproduce or create derivative works of the Platform Data, or display, disclose or distribute any Platform Data to any third party except as expressly permitted in Section 3(b)(ii) below;
(2) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Platform;
(3) interfere with or disrupt the performance of the Platform;
(4) gain unauthorized access to the Platform or its related systems or networks;
(5) frame or link to the Platform or any content or material thereon;
(6) provide any false, incorrect or outdated information to Biometrica in connection with Licensee’s use of the eMotive Service;
(7) use any portion of the eMotive Service to develop a competitive product or service (including to create any database or compilation, directory or similar system for conducting criminal background checks);
(8) remove, alter, or obscure in any way any proprietary rights notices of Biometrica or its suppliers on or within the eMotive Service or the UMbRA Platform;
(9) transmit to the eMotive Service or the UMbRA Platform any virus, worm, spyware or other software code, file or program intended to impair, alter or damage the operation of the eMotive Service or the UMbRA Platform or its related systems or networks; and
(10) use the eMotive Service or the UMbRA Platform in a manner that does or is intended to:
a) cause emotional or physical harm to, discriminate against, or “stalk” or otherwise harass any other person;
b) seek information about or harm minors in any way;
c) seek information about celebrities or public figures;
d) produce or distribute any libelous, obscene or other material that is or could be considered inappropriate;
e) infringe upon the legal or proprietary rights of any third party (including any intellectual property, publicity, privacy or any other right); or
f) otherwise use any aspect of the Service for unlawful or illegal purposes.
(ii) Confidentiality. Licensee acknowledges and agrees that:
(1) as between the parties, algorithmic comparisons contained within the eMotive Service and the Platform Data are Biometrica’s confidential information;
(2) Licensee may not use the results from a determination made through data available within the eMotive Service and based on the Platform Data except as necessary to exercise Licensee’s rights under Section 3(a);
(3) Licensee may not disclose any results from a determination made through data available within the eMotive Service and based on the Platform Data except for disclosures to Licensee’s employees or consultants who require access to such information to perform duties or exercise rights under these Use Terms and who are bound to written confidentiality obligations at least as restrictive as those set forth in this Section 3(b)(ii);
(4) Licensee must use at least reasonable efforts, and in no event less than those efforts used to protect its own most sensitive information, to protect data within the eMotive Service and Platform Data from unauthorized access, use or disclosure; and
(5) Licensee will immediately inform Biometrica in writing of any actual or suspected unauthorized access to, use or disclosure of data within the eMotive Service and Platform Data.
(iii) Authorized Users. If “Licensee” refers to a company or other legal entity, then it: (1) may authorize its employees, consultant or agents to use the eMotive Service on its behalf strictly in accordance with these Use Terms (collectively, “Authorized Users”); (2) will be liable for any breach of these Use Terms by any Authorized User; and (c) will provide Biometrica with a list of all Authorized Users promptly upon Biometrica’s request.
(c) Licensee Data. As used in these Use Terms, “Licensee Data” means any images, text (including any facial geometry embodied therein) or other content submitted, uploaded or otherwise transmitted to eMotive by a Licensee (or any Authorized User, if applicable), but excludes Platform Data. Licensee hereby grants to Biometrica, its Affiliates and applicable contractors during the Term a non-exclusive, irrevocable, transferable, sublicensable, royalty-free and worldwide right to reproduce, host, store, display and otherwise use Licensee Data for their internal business purposes as reasonably necessary to provide and improve Biometrica’s current and future products, services and business.
(d) Ownership. As between the Parties: (i) Biometrica retains all right, title and interest in and to all elements of the eMotive Service, the UMbRA Platform and the Platform Data, except for the license granted in Section 3(a); and (ii) Licensee retains all right, title and interest in and to Licensee Data and Feedback (defined in Section 3(e)), except for the licenses granted in Sections 3(c) and 3(e). Each Party retains and reserves all rights that it does not expressly grant to the other in these Use Terms and does not grant to the other any implied license in these Use Terms.
(e) Feedback. If Licensee (or any Authorized User, if applicable) makes available to Biometrica, directly or indirectly, feedback, analysis, suggestions and/or comments about any aspect of the eMotive Service (collectively, “Feedback”), then Licensee hereby grants to Biometrica a perpetual and irrevocable right to use, exploit and disclose such Feedback to provide and improve the eMotive Service and Biometrica’s current and future products, services and business without any restrictions whatsoever or obligation to provide Licensee with any compensation or credit. For clarity, all Feedback will not be considered confidential information of Licensee or any third party.
(a) Fees. Licensee will pay Biometrica any fees specified in the Sales Contract and order form that Licensee separately submits to Biometrica to purchase access to the eMotive Service (such form, the “Order Form,” and such fees, the “Fees”).
(b) Taxes. The Fees, as defined in Section 4(a) and these Use Terms, do not include any applicable taxes, duties or similar assessments imposed by any government authority (collectively, “Taxes”). Licensee is responsible for paying all Taxes associated with an individual Authorized User’s access to the eMotive Service, other than those based on Biometrica’s income, employees or property. If Biometrica has the legal obligation to pay or collect Taxes for which Licensee is responsible under this Section 4(b), then Biometrica will invoice Licensee for the amount owed and Licensee will pay that amount to Biometrica within thirty (30) days of the date on which the invoice is sent, unless Licensee provides Biometrica with a valid exemption certificate authorized by the appropriate government authority.
(c) Trial Access. Biometrica may, in its sole discretion, provide Licensee with free access to the eMotive Service during the Initial Subscription. In this case, Licensee will not owe any Fees until commencement of the first Renewal Subscription.
5.TERM AND TERMINATION
(a) Term. This TOS takes effect on the date when Biometrica sends Licensee an electronic notice confirming that an Authorized User has successfully obtained access to the eMotive Service and continues for the initial subscription period set forth in the Order Form (“Initial Subscription”). Upon expiration of the Initial Subscription, these Use Terms will automatically renew for successive subscription periods equal in length to the Initial Subscription (each, a “Renewal Subscription,” and together with the Initial Subscription, the “Term”), unless and until these Use Terms are terminated pursuant to this Section 5.
(b) Termination for Convenience.
(i) Licensee may cancel an individual Authorized User’s access to the eMotive Service, and thereby terminate these Use Terms for an individual Authorized User, by notifying Biometrica of the same at firstname.lastname@example.org. Authorized User’s cancellation will be effective when Biometrica expressly confirms it has occurred in writing.
(ii) Biometrica may terminate these Use Terms for convenience without cause upon providing Authorized User and Licensee with five (5) days’ advance written notice of the same.
(c) Termination for Cause. Biometrica may terminate these Use Terms for cause upon ten (10) days’ prior written notice to the Licensee if an Authorized User is in material breach of these Use Terms and fails to remedy the breach within the ten (10)-day notice period. Biometrica, in its sole discretion, may decide to restrict or suspend an Authorized User’s access to any part of the eMotive Service in lieu of such termination, subject to Licensee ensuring the Authorized User cures the applicable breach to Biometrica’s satisfaction.
(d) Effect of Termination; Survival. Upon expiration or termination of the Licensee’s Sales Contract for any reason: (i) the licenses granted in Sections 3(a) and 3(c) will automatically terminate; (ii) all outstanding Fees owed pursuant to Section 4 will become immediately due and payable; (iii) Licensee must permanently erase all copies of the App from its devices and that of its affiliates or agents, as applicable; and (iv) Licensee must permanently destroy all Platform Data within its possession or control. Licensee must confirm in writing that it has complied with (iii) and (iv) in the prior sentence upon request by Biometrica. The provisions of Sections 1, 2, 3(b), 3(d), 3(e), 4, 5(d), 6, 7, 8, 9, 10 and all defined terms used in those Sections will survive any expiration or termination of these Use Terms.
6. REPRESENTATIONS AND WARRANTIES
Licensee represents and warrants that:
(a) Licensee has read, understands, and is contractually bound by these Use Terms, including, without limitation, Section 1, and all terms therein;
(b) Licensee will use the Service in compliance with Applicable Laws and is solely responsible for the same;
(c) Licensee will only use the eMotive Service for the Authorized Purpose and cannot use the eMotive Service for any personal, family, household, or other purpose where Licensee would be considered a “consumer” under Applicable Laws;
(d) Licensee has obtained all rights, consents, authorizations, and permissions legally required to grant the rights set forth in these Use Terms and provide any Licensee Data to Biometrica;
(e) Licensee Data does not, and the use or exploitation of the same as contemplated in these Use Terms, will not, infringe, misappropriate, or violate the privacy rights, publicity rights, intellectual property, or other rights of any third party;
(f) Entering into these Use Terms and performing Licensee’s obligations under these Use Terms does not, and will not, breach or otherwise conflict with Licensee’s obligations to any third party;
(g) Authorized User has had the opportunity to consult with Licensee and independent legal counsel prior to accepting these Use Terms even if Authorized User has chosen not to do so;
(h) if “Licensee” refers to an individual, then such individual is at least 18 years of age and otherwise has the legal capacity to enter into these Use Terms; and
(i) if “Licensee” refers to a company or other legal entity, then it has all required authority to enter into these Use Terms.
7. LIMITATIONS ON LIABILITY AND DISCLAIMERS
Without limiting any terms set forth in Section 1 or elsewhere in these Use Terms, the following terms in this Section 7 apply to the fullest extent permitted by law:
(a) NEITHER BIOMETRICA NOR ANY OF ITS AFFILIATES, LICENSORS OR SUPPLIERS REPRESENT OR WARRANT THAT: (i) THE SERVICE WILL MEET ANY REQUIREMENTS OR NEEDS SUBSCRIBER MAY HAVE OR WILL OPERATE ERROR FREE OR IN AN UNINTERRUPTED FASHION; OR (ii) ANY DEFECTS OR ERRORS IN THE SERVICE WILL BE CORRECTED. THE SERVICE IS PROVIDED “AS IS” AND BIOMETRICA, ITS AFFILIATES AND THEIR RESPECTIVE SUPPLIERS AND LICENSORS HEREBY DISCLAIM ALL IMPLIED WARRANTIES IN CONNECTION WITH THE SERVICE, INCLUDING THE WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
(b) IN NO EVENT WILL THE TOTAL LIABILITY OF BIOMETRICA AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THESE USE TERMS EXCEED THE FEES THAT LICENSEE HAS PAID TO BIOMETRICA DURING THE PRECEDING 12 MONTHS, AND IN NO EVENT WILL BIOMETRICA OR ANY OF ITS AFFILIATES HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THESE USE TERMS (INCLUDING FOR LOST PROFITS, DATA OR OTHER BUSINESS OPPORTUNITIES), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
(c) ANY DISPUTE THAT LICENSEE OR ITS AUTHORIZED USERS HAS WITH ANY PARTY OTHER THAN BIOMETRICA OR ANY OF ITS AFFILIATES IN CONNECTION WITH THEIR USE OF ANY PORTION OF THE SERVICE IS SOLELY BETWEEN LICENSEE, THE AUTHORIZED USER AND ANY SUCH PARTY. ACCORDINGLY, LICENSEE AND ITS AUTHORIZED USERS HEREBY IRREVOCABLY RELEASE BIOMETRICA AND ITS AFFILIATES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES OF EVERY KIND AND NATURE, WHETHER KNOW OR UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
To the fullest extent permitted by law, Licensee and its Authorized Users agree to defend, indemnify and hold harmless Biometrica and its Affiliates, and their respective officers, directors, employees, consultants and advisors, from and against all expenses, losses or other liabilities incurred in connection with any third party claim (each, a “Claim”) arising from or relating to: (a) Authorized User’s use or misuse of the eMotive Service; (b) Authorized User Data; (c) any breach of these Use Terms by Licensee or any of its Authorized Users; and/or (d) any alleged issue or problem arising from any Platform Data or results obtained through using the eMotive Service. Biometrica will provide notice to Licensee and/or its Authorized Users of any Claim. Biometrica reserves the right to assume the exclusive defense and control of any Claim if Biometrica determines, in its sole discretion, that Licensee and/or its Authorized User is unwilling or incapable of sufficiently defending its interests in connection with the Claim. Under such circumstances, Licensee and/or its Authorized Users agree to cooperate with Biometrica to assist in the defense of the applicable Claim at Licensee’s sole expense. As used in these Use Terms, “Affiliates” means any entity that currently or in the future controls, is controlled by or is under common control with Biometrica, where “control” means ownership of more than fifty percent (50%) of the outstanding securities representing the right to vote for the election of directors or other managing authority of Biometrica.
9. DISPUTE RESOLUTION.
(a) General. In the interest of resolving disputes between Licensee and/or its Authorized User and Biometrica in the most expedient and cost-effective manner, Licensee and/or its Authorized User and Biometrica agree that any dispute arising out of or in any way related to these Use Terms or Licensee or an Authorized User’s use of the eMotive Service will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to these Use Terms or Licensee or an Authorized User’s use of the eMotive Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Use Terms. LICENSEE AND/OR ITS AUTHORIZED USER UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THESE USE TERMS, LICENSEE AND/OR ITS AUTHORIZED USER AND BIOMETRICA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THESE USE TERMS SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
(b) Exceptions. Notwithstanding Section 9.a above, nothing in these Use Terms will be deemed to waive, preclude or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; (iv) to file suit in a court of law to address an intellectual property infringement claim; or (v) with respect to Biometrica only, to seek injunctive relief in any court of competent jurisdiction for any breach or threatened breach of these Use Terms as any such breach or threatened breach may cause irreparable injury to Biometrica.
(c) Arbitrator. Any arbitration between Licensee and/or its Authorized User and Biometrica will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Use Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, or by calling the AAA at 1-800-778-7879. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
(d) Notice; Process. A Party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail (“Notice”). Biometrica’s address for Notice is: 7251 West Lake Mead Blvd., Suite 300, Las Vegas, NV 89128, Attn: Chief Executive Officer.
The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The Parties will make good faith efforts to resolve the claim directly, but if the Parties do not reach an agreement to do so within 30 days after the Notice is received, Licensee and/or its Authorized User or Biometrica may commence an arbitration proceeding.
During the arbitration, the amount of any settlement offer made by Licensee and/or its Authorized User or Biometrica must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in Licensee and/or its Authorized User’s favor with a monetary award, then Biometrica will pay Licensee and/or its Authorized User the highest of the following: (1) the amount awarded by the arbitrator, if any; (2) the last written settlement amount offered by Biometrica in settlement of the dispute prior to the arbitrator’s award; or (c) $1,000.
(e) Fees. Any arbitration hearing will take place at a location to be agreed upon in Las Vegas, Nevada, but if the claim is for $10,000 or less, Licensee and/or its Authorized User may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of Licensee and/or its Authorized User’s billing address. If the arbitrator finds that either the substance of Licensee and/or its Authorized User’s claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, Licensee and/or its Authorized User agrees to reimburse Biometrica for all monies previously disbursed by it that are otherwise Licensee and/or its Authorized User’s obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
(f) No Class Actions. LICENSEE AND/OR ITS AUTHORIZED USER AND BIOMETRICA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Licensee and/or its Authorized User and Biometrica agree otherwise, the arbitrator may not consolidate more than one person or entity’s claims; and may not otherwise preside over any form of a representative or class proceeding.
(g) Modifications to this Arbitration Provision. If Biometrica makes any future change to this arbitration provision, other than a change to Biometrica’s address for Notice, Licensee and/or its Authorized User may reject the change by sending written notice within 30 days of the change to Biometrica’s address for Notice, in which case these Use Terms with respect to any objecting Authorized User’s right to access the eMotive Service will automatically terminate, and this arbitration provision, as in effect immediately prior to the changes Authorized User rejected, will continue to govern any disputes between Licensee and/or its other Authorized Users and Biometrica.
(h) Enforceability. If Section 9.f is found to be unenforceable or if the entirety of this Section 9 is found to be unenforceable, then the entirety of this Section 9 will be void, and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 10(a) will govern any action arising out of or related to these Use Terms.
(a) Governing Law; Venue. If Section 9 is void as described in Section 9(h), then all disputes arising under or in connection with these Use Terms will be: (i) governed by the laws of the State of Nevada, excluding its conflicts of laws principles; and (ii) heard exclusively in courts of competent jurisdiction in Las Vegas, Nevada, and each Party waives all rights to challenge such venue on any theory.
(b) Federal Government End Use Provisions. Biometrica provides the eMotive Service, including all related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the eMotive Service include only those rights customarily provided to the public as specified in these Use Terms. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, then it must negotiate with Biometrica to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in the applicable agreement.
(c) Assignment. This TOS binds and is for the benefit of the successors and permitted assigns of each Party. Licensee and/or its Authorized User may not assign these Use Terms to any third party without Biometrica’s prior express written consent, which Biometrica may withhold in its sole discretion. Biometrica may assign these Use Terms in its sole discretion. Any attempt to assign these Use Terms other than as permitted in this Section 10(c) will be void.
(d) Severability. If any provision in these Use Terms is held by a court of competent jurisdiction to be unenforceable, then: (i) it will be severed from these Use Terms; (ii) the court of competent jurisdiction will replace the severed provision with another provision that most closely reflects the Parties’ original intent to the fullest extent permitted by law; and (iii) these Use Terms will remain in full force and effect.
(e) Entire Agreement; Order of Precedence. This TOS, the UMbRA TOS, in addition to the Sales Contract and Order Form signed separately, and the signed FCRA Employer Certification, embody the entire agreement between the Parties with respect to the subject matter set forth in these Use Terms and supersedes any previous or contemporaneous communications, whether oral or written, express or implied, and, in that regard, no terms or conditions in any purchase order, acknowledgement document or similar form document that may be issued or made available to Biometrica by Licensee or its Affiliates or on Authorized User’s behalf will modify, amend, supersede or supplement any terms in these Use Terms.
(f) Waivers; Amendments. All waivers of rights arising under these Use Terms must be made in writing by the Party waiving rights. Licensee and its Authorized User understands and agrees that Biometrica may change these Use Terms at any time without prior notice. Biometrica will endeavor to provide Licensee and its Authorized User with prior notice of any material changes to these Use Terms. Licensee or its Authorized User may read a current, effective copy of these Use Terms or the UMbRA TOS at any time by selecting the appropriate link on the eMotive system or UMbRA Platform. Any revised TOS will become effective at the time of posting on the Platform, and Authorized User’s use of the eMotive Service after such time will constitute Authorized User’s acceptance of the revised TOS. If any change to these Use Terms is not acceptable to Authorized User, then Authorized User’s sole remedy is to stop using the eMotive Service and to inform Licensee to cancel Authorized User’s subscription as described in Section 5. Notwithstanding the preceding sentences of this Section 10(f), no revisions to these Use Terms will apply to any dispute between Licensee and/or its Authorized User and Biometrica that arose prior to the effective date of those revisions. Except as provided in this Section 10(f), all amendments to these Use Terms must be made in writing and signed by Licensee and Biometrica.
(g) Notices. All notices required or permitted under these Use Terms will be in writing and will be effective upon: (i) personal delivery; (ii) the second business day after receipt; or (iii) the day the email was sent. All notices to Biometrica will be sent to 7251 West Lake Mead Blvd., Suite 300, Las Vegas, NV 89128.
All notices to Licensee or its Authorized User will be sent pursuant to the Licensee contact information in the Sales Contract. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section.
(h) Interpretation. Unless a clear contrary intention appears: (i) any term defined in the singular includes the plural when required by the applicable context; (ii) all references in these Use Terms to “Sections” are intended to refer to Sections in these Use Terms; (iii) the headings in these Use Terms are for convenience of reference only, will not be deemed to be a part of these Use Terms, and will not be referred to in connection with the construction or interpretation of these Use Terms; and (iv) “including” is used broadly to mean “including, without limitation.”
(i) Third Party Beneficiaries. There are no third-party beneficiaries under these Use Terms except for Biometrica’s Affiliates.
(j) Relationship of the Parties. “The Parties are independent contractors, and these Use Terms do not create a franchise, agency, partnership, fiduciary or employment relationship between them.”
(Agreement updated May 18, 2021)