LAST UPDATED: February 1, 2021
UMbRA™ Terms of Service
THIS TERMS OF SERVICE AGREEMENT (this “Agreement”) is made between:
Biometrica Systems, Inc. (“Biometrica”)
7251 West Lake Meade Blvd., Suite 300
Las Vegas, NV 89128
The Signee (“Licensee”)
Biometrica and Licensee are sometimes referred to herein individually as a “Party” and collectively as “Parties.”
Dated (the “Effective Date”): Time of signing this Agreement (if in print); or time of accepting this Agreement electronically by logging into UMbRA and accessing its data; or time of receiving an electronic notice confirming that an individual or entity has successfully obtained access to the service.
- Biometrica is a leader in systems that integrate facial recognition software with databases containing information from verified law enforcement databases throughout the United States and, in some cases, internationally, enabling users of its systems, including UMbRA, to identify individuals who have been arrested or convicted for the commission of either a misdemeanor or felony;
- Licensee is an individual over the age of 18 and/or an individual duly authorized to represent and accept these Terms of Service on behalf of an organization or legal entity, and all those individuals that electronically log in and access data from UMbRA;
- Licensee desires to access data from Biometrica’s proprietary National Criminal database, UMbRA (the “Database”), in connection with its program and/or system, and for the purpose of gaining information on an individual’s possible criminal background;
- This UMbRA Terms of Service (“TOS”) is between Biometrica and any individual/s who accept this TOS or otherwise access or use the Service on behalf of a company or other legal entity (in each case, “Subscriber”). As used in this TOS, “Party” refers to Subscriber or Biometrica individually, and “Parties” refers to Subscriber and Biometrica collectively.
- This agreement is applicable to access from any platform (platform-agnostic). This TOS governs Subscriber’s rights to use Biometrica’s UMbRA product as a web-based and/or mobile software application (“App,” together with the web-based version of the product, “Platform”), and the criminal record data and content that Biometrica obtains only from third-party law enforcement sources that are searchable and retrievable on the Platform using the Platform’s functionality (collectively, “Platform Data,” together with the Platform, the “Service”). For clarity, Platform Data excludes Subscriber Data (defined in Section 3(c)).
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
- IMPORTANT NOTICES AND DISCLAIMERS.
WITHOUT LIMITING ANY OTHER TERMS IN THIS TOS, THE FOLLOWING TERMS IN THIS SECTION 1 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
(a) SUBSCRIBER IS ADVISED TO CONSULT WITH LEGAL COUNSEL BEFORE PROCEEDING BECAUSE:
(i) SUBSCRIBER’S ACCEPTANCE OF THIS TOS CREATES A BINDING LEGAL AGREEMENT BETWEEN SUBSCRIBER AND BIOMETRICA;
(ii) SUBSCRIBER MAY ONLY USE THE SERVICE IN COMPLIANCE WITH APPLICABLE LAWS (DEFINED IN SECTION 1(b)(i));
(iii) SUBSCRIBER MAY ONLY USE THE 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 SUBSCRIBER WOULD BE CONSIDERED A “CONSUMER” UNDER APPLICABLE LAWS; AND
(iv) SUBSCRIBER IS SOLELY RESPONSIBLE FOR TAKING ALL STEPS NECESSARY (INCLUDING CONFERRING WITH LEGAL COUNSEL) TO ENSURE THAT SUBSCRIBER’S USE OF THE SERVICE COMPLIES WITH (ii) AND (iii) IN THIS SECTION 1(a).
(b) BY ACCEPTING THIS TOS OR OTHERWISE ACCESSING OR USING THE SERVICE, SUBSCRIBER ACKNOWLEDGES AND AGREES THAT:
(i) SUBSCRIBER WILL USE, AND IS SOLELY RESPONSIBLE FOR USING, THE SERVICE IN COMPLIANCE WITH ALL APPLICABLE LOCAL, STATE, TRIBAL, 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), SUBSCRIBER WILL NOT USE ANY PLATFORM DATA AS A 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 SOURCES, DOES NOT EVALUATE PLATFORM DATA IN ANY WAY OR CORRECT ANY ERRORS IN THE PLATFORM DATA (EVEN IF THOSE ERRORS ARE BLATANT), SUBSCRIBER DOES NOT RELY ON BIOMETRICA FOR THE ACCURACY OR COMPLETENESS OF PLATFORM DATA AND SUBSCRIBER WILL MAKE ITS 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 SUBSCRIBER 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 SUBSCRIBER 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 SUBSCRIBER 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 SERVICE; AND
(vii) ALL DISPUTES IN CONNECTION WITH THIS TOS 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 THIS TOS OR OTHERWISE ACCESSING OR USING THE SERVICE, SUBSCRIBER FURTHER ACKNOWLEDGES AND AGREES THAT:
(i) SUBSCRIBER HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THIS TOS;
(ii) THIS TOS ACCURATELY REFLECTS THE PARTIES’ INTENT;
(iii) SUBSCRIBER HAS HAD A MEANINGFUL OPPORTUNITY TO REVIEW THIS TOS, INCLUDING THROUGH CONSULTATION WITH LEGAL COUNSEL OF SUBSCRIBER’S OWN CHOOSING; AND
(iv) SUBSCRIBER HAS DECIDED TO ENTER INTO THIS TOS ON SUBSCRIBER’S OWN VOLITION AND WITHOUT UNDUE INFLUENCE FROM BIOMETRICA OR ANY THIRD PARTY.
(d) IF SUBSCRIBER DOES NOT AGREE TO THE TERMS IN THIS SECTION 1 AND ALL OTHER TERMS IN THIS TOS, OR SUBSCRIBER DOES NOT HAVE THE AUTHORITY TO DO SO ON BEHALF OF A COMPANY/LEGAL ENTITY, THEN SUBSCRIBER MUST NOT ACCEPT THIS TOS OR OTHERWISE ACCESS OR USE THE SERVICE.
(a) Eligibility. THE PERSON WHO ACCEPTS THIS TOS OR OTHERWISE ACCESSES OR USES THE 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 THIS TOS OR OTHERWISE ACCESS OR USE THE SERVICE.
(b) Delivery. Biometrica will issue to Subscriber credentials that are required to access the Service within a reasonable period after this TOS takes effect as described in Section 5(a). Subscriber may not share these credentials with any third party (except Authorized Users (defined in Section 3(b)(iii)), if applicable). Subscriber is solely responsible for the security of Subscriber’s credentials and all use of the Service attributable to Subscriber’s credentials. Subscriber must notify Biometrica immediately at firstname.lastname@example.org if Subscriber suspects or knows of any unauthorized use of Subscriber’s credentials. Biometrica has the right to monitor use of Subscriber’s credentials to ensure compliance with this TOS.
(d) Updates. Biometrica reserves the right to make changes or updates to the Service at any time in its sole discretion, provided that they will not materially decrease the functionality of the Service without advance notice and an opportunity for Subscriber to terminate its subscription. Nothing in this TOS obligates Biometrica to continue providing all or any elements of the Platform or Platform Data.
(a) Licenses. Subject to Subscriber’s complete and ongoing compliance with the terms of this TOS, Biometrica hereby grants to Subscriber 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 Subscriber 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 Platform, in the case of both (i) and (ii), solely for Subscriber’s internal business purposes (“Authorized Purpose”).
(b) Restrictions. (i) General. Subscriber (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 Subscriber’s use of the Service;
(7) use any portion of the 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 Platform;
(9) transmit to the Platform any virus, worm, spyware or other software code, file or program intended to impair, alter or damage the operation of the Platform or its related systems or networks; and
(10) use the Service 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. Subscriber acknowledges and agrees that:
(1) as between the Parties, Platform Data is Biometrica’s confidential information;
(2) Subscriber may not use Platform Data except as necessary to exercise Subscriber’s rights under Section 3(a);
(3) Subscriber may not disclose Platform Data except for disclosures to Subscriber’s employees or consultants who require access to such information to perform duties or exercise rights under this TOS and who are bound to written confidentiality obligations at least as restrictive as those set forth in this Section 3(b)(ii);
(4) Subscriber must use at least reasonable efforts, and in no event less than those efforts used to protect its own most sensitive information, to protect Platform Data from unauthorized access, use or disclosure; and
(5) Subscriber will immediately inform Biometrica in writing of any actual or suspected unauthorized access to, use or disclosure of Platform Data.
(iii) Authorized Users. If “Subscriber” refers to a company or other legal entity, then it: (1) may authorize its employees, consultant or agents to use the Service on its behalf strictly in accordance with this TOS (collectively, “Authorized Users”); (2) will be liable for any breach of this TOS by any Authorized User; and (c) will provide Biometrica with a list of all Authorized Users promptly upon Biometrica’s request.
(c) Subscriber Data. As used in this TOS, “Subscriber Data” means any images, text (including any facial geometry embodied therein) or other content submitted, uploaded or otherwise transmitted to the Platform by Subscriber (or any Authorized User, if applicable), but excludes Platform Data. Subscriber 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 Subscriber 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 Platform and the Platform Data, except for the license granted in Section 3(a); and (ii) Subscriber retains all right, title and interest in and to Subscriber 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 this TOS and does not grant to the other any implied license in this TOS.
(e) Feedback. If Subscriber (or any Authorized User, if applicable) makes available to Biometrica, directly or indirectly, feedback, analysis, suggestions and/or comments about any aspect of the Service (collectively, “Feedback”), then Subscriber hereby grants to Biometrica a perpetual and irrevocable right to use, exploit and disclose such Feedback to provide and improve the Service and Biometrica’s current and future products, services and business without any restrictions whatsoever or obligation to provide Subscriber with any compensation or credit. For clarity, all Feedback will not be considered confidential information of Subscriber or any third party.
(a) Fees. If applicable, Subscriber will pay Biometrica any fees specified in an online order form that Subscriber submits to Biometrica to purchase access to the Service (such form, the “Order Form,” and such fees, the “Fees”). All Fees are non-cancellable and non-refundable unless Biometrica decides otherwise in its sole discretion, except that if Biometrica terminates this TOS under Section 5(b)(ii), then Biometrica will refund Subscriber any prepaid Fees on a pro-rata basis covering the remainder of the Term after the effective date of termination. Late Fee payments will accrue interest at the rate of one- and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
(b) Taxes. The Fees do not include any applicable taxes, duties or similar assessments imposed by any government authority (collectively, “Taxes”). Subscriber is responsible for paying all Taxes associated with Subscriber’s purchasing access to the 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 Subscriber is responsible under this Section 4(b), then Biometrica will invoice Subscriber the amount owed and Subscriber will pay that amount to Biometrica within thirty (30) days of the date on which the invoice is sent, unless Subscriber provides Biometrica with a valid exemption certificate authorized by the appropriate government authority.
(c) Timing and Payment Method. Subject to Section 4(d), the Fees for the Initial Subscription (defined in Section 5(a)), if any, will be due when Subscriber submits the Order Form. The Fees for each Renewal Subscription (defined in Section 5(a)) will be due on the first day of the Renewal Subscription reflected in the Order Form. Subscriber authorizes Biometrica to charge Subscriber’s selected payment method all Fees when they become due under this TOS. For clarity, Biometrica may increase the Fees for any Renewal Subscription, but it will provide Subscriber with at least thirty (30) days’ written notice of any such increase before it becomes effective.
(d) Trial Access. Biometrica may, in its sole discretion, provide Subscriber with free access to the Service during the Initial Subscription. In this case, Subscriber 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 Subscriber an electronic notice confirming that Subscriber has successfully obtained access to the Service and continues for the initial subscription period set forth in the Order Form (“Initial Subscription”). Upon expiration of the Initial Subscription, this TOS 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 this TOS is terminated pursuant to this Section 5.
(b) Termination for Convenience.
(i) Subscriber may cancel the subscription to the Service, and thereby terminate this TOS, by notifying Biometrica of the same at email@example.com at least fifteen (15) days prior to the commencement of the next Renewal Subscription, where applicable. Subscriber’s cancellation will be effective when Biometrica expressly confirms it has occurred in writing. Following this written confirmation, Subscriber will not be charged Fees for any subsequent subscription period unless Subscriber submits a new Order Form. If Subscriber cancels its subscription under this Section 5(b)(i), then Biometrica will not be obligated to provide Subscriber with a refund for any Fees that cover the remainder of the applicable subscription term after the effective date of termination.
(ii) Biometrica may terminate this TOS for convenience without cause upon providing Subscriber with five (5) days’ advance written notice of the same.
(c) Termination for Cause. Either Party may terminate this TOS for cause upon ten (10) days’ prior written notice if the other is in material breach of this TOS and fails to remedy the breach within the ten (10)-day notice period. Biometrica, in its sole discretion, may decide to restrict or suspend Subscriber’s access to any part of the Service in lieu of such termination, subject to Subscriber curing the applicable breach to Biometrica’s satisfaction.
(d) Effect of Termination; Survival. Upon expiration or termination of this TOS 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) Subscriber must permanently erase all copies of the App from its devices, as applicable; and (iv) Subscriber must permanently destroy all Platform Data within its possession or control. Subscriber 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 this TOS.
- Representations and Warranties
Subscriber represents and warrants that:
(a) Subscriber has read, understands and is contractually bound by this TOS, including, without limitation, Section 1 and all terms therein;
(b) Subscriber will use the Service in compliance with Applicable Laws and is solely responsible for the same;
(c) Subscriber will only use the Service for the Authorized Purpose and cannot use the Service for any personal, family, household or other purpose where Subscriber would be considered a “consumer” under Applicable Laws;
(d) Subscriber has obtained all rights, consents, authorizations and permissions legally required to grant the rights set forth in this TOS and provide any Subscriber Data to Biometrica;
(e) Subscriber Content does not, and the use or exploitation of the same as contemplated in this TOS, will not, infringe, misappropriate or violate the privacy rights, publicity rights, intellectual property or other rights of any third party;
(f) entering into this TOS and performing Subscriber’s obligations under this TOS does not, and will not, breach or otherwise conflict with Subscriber’s obligations to any third party;
(g) Subscriber has had the opportunity to consult with independent legal counsel prior to accepting this TOS even if Subscriber has chosen not to do so;
(h) if “Subscriber” refers to an individual, then such individual is at least 18 years of age and otherwise has the legal capacity to enter into this TOS; and
(i) if “Subscriber” refers to a company or other legal entity, then it has all required authority to enter into this TOS.
- Limitations on Liability and Disclaimers
Without limiting any terms set forth in Section 1 or elsewhere in this TOS, 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 THIS TOS EXCEED THE FEES THAT SUBSCRIBER 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 THIS TOS (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 SUBSCRIBER HAS WITH ANY PARTY OTHER THAN BIOMETRICA OR ANY OF ITS AFFILIATES IN CONNECTION WITH SUBSCRIBER’S USE OF ANY PORTION OF THE SERVICE IS SOLELY BETWEEN SUBSCRIBER AND ANY SUCH PARTY. ACCORDINGLY, SUBSCRIBER HEREBY IRREVOCABLY RELEASES 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, Subscriber agrees 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) Subscriber’s use or misuse of the Service; (b) Subscriber Data; (c) any breach of this TOS by Subscriber; and/or (d) any alleged issue or problem arising from any Platform Data or results obtained through using the Service. Biometrica will provide notice to Subscriber 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 Subscriber is unwilling or incapable of sufficiently defending its interests in connection with the Claim. Under such circumstances, Subscriber agrees to cooperate with Biometrica to assist in the defense of the applicable Claim at Subscriber’s sole expense. As used in this TOS, “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.
- Dispute Resolution.
(a) General. In the interest of resolving disputes between Subscriber and Biometrica in the most expedient and cost-effective manner, Subscriber and Biometrica agree that any dispute arising out of or in any way related to this TOS or Subscriber’s use of the 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 this TOS or Subscriber’s use of the 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 this TOS. SUBSCRIBER UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THIS TOS, SUBSCRIBER AND BIOMETRICA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS TOS SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
(b) Exceptions. Notwithstanding Section 9.a above, nothing in this TOS 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 this TOS as any such breach or threatened breach may cause irreparable injury to Biometrica.
(c) Arbitrator. Any arbitration between Subscriber 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 this TOS, 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 Meade 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, Subscriber or Biometrica may commence an arbitration proceeding.
During the arbitration, the amount of any settlement offer made by Subscriber 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 Subscriber’s favor with a monetary award, then Biometrica will pay Subscriber 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, Subscriber 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 Subscriber’s billing address. If the arbitrator finds that either the substance of Subscriber’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, Subscriber agrees to reimburse Biometrica for all monies previously disbursed by it that are otherwise Subscriber’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. SUBSCRIBER 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 Subscriber and Biometrica agree otherwise, the arbitrator may not consolidate more than one person’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, Subscriber may reject the change by sending written notice within 30 days of the change to Biometrica’s address for Notice, in which case this TOS and Subscriber’s right to access the Service will automatically terminate, and this arbitration provision, as in effect immediately prior to the changes Subscriber rejected, will continue to govern any disputes between Subscriber 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 this TOS.
(a) Governing Law; Venue. If Section 9 is void as described in Section 9(h), then all disputes arising under or in connection with this TOS 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 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 Service include only those rights customarily provided to the public as specified in this TOS. 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. Subscriber may not assign this TOS to any third party without Biometrica’s prior express written consent, which Biometrica may withhold in its sole discretion. Biometrica may assign this TOS in its sole discretion. Any attempt to assign this TOS other than as permitted in this Section 10(c) will be void.
(d) Severability. If any provision in this TOS is held by a court of competent jurisdiction to be unenforceable, then: (i) it will be severed from this TOS; (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) this TOS will remain in full force and effect.
(e) Entire Agreement; Order of Precedence. This TOS, including the Order Form, if any, embodies the entire agreement between the Parties with respect to the subject matter set forth in this TOS 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 Subscriber or on Subscriber’s behalf will modify, amend, supersede or supplement any terms in this TOS. The Order Form is hereby incorporated into this TOS, and if there is any conflict between the Order Form, if any, and this TOS, then this Agreement will control solely to the extent of the conflict.
(f) Waivers; Amendments. All waivers of rights arising under this TOS must be made in writing by the Party waiving rights. Subscriber understands and agrees that Biometrica may change this TOS at any time without prior notice. Biometrica will endeavor to provide Subscriber with prior notice of any material changes to this TOS. Subscriber may read a current, effective copy of this TOS at any time by selecting the appropriate link on the Platform. The revised TOS will become effective at the time of posting on the Platform, and Subscriber’s use of the Service after such time will constitute Subscriber’s acceptance of the revised TOS. If any change to this TOS is not acceptable to Subscriber, then Subscriber’s sole remedy is to stop using the Service and to cancel Subscriber’s subscription as described in Section 5(b)(i). Notwithstanding the preceding sentences of this Section 10(f), no revisions to this TOS will apply to any dispute between Subscriber and Biometrica that arose prior to the effective date of those revisions. Except as provided in this Section 10(f), all amendments to this TOS must be made in writing and signed by the Parties.
(g) Notices. All notices required or permitted under this TOS will be in writing and will be effective upon: (i) personal delivery; (ii) the second business day after mailing; or (iii) the day the email was sent. All notices to Biometrica will be sent to 7251 West Lake Meade Blvd., Suite 300, Las Vegas, NV 89128.
All notices to Subscriber will be sent pursuant to the contact information in the Order Form. 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 this TOS to “Sections” are intended to refer to Sections in this TOS; (iii) the headings in this TOS are for convenience of reference only, will not be deemed to be a part of this TOS, and will not be referred to in connection with the construction or interpretation of this TOS; and (iv) “including” is used broadly to mean “including, without limitation.”
(i) Third Party Beneficiaries. There are no third-party beneficiaries under this TOS except for Biometrica’s Affiliates.
(j) Relationship of the Parties. “The Parties are independent contractors, and this TOS does not create a franchise, agency, partnership, fiduciary or employment relationship between them.”
(Agreement updated Feb. 1, 2021)