LAST UPDATED: March 29, 2018
UMbRA™ Terms of Service
This UMbRA™ Terms of Service (“TOS”) is between Biometrica Systems, Inc. (“Biometrica”) and, in the case of an individual who accepts this TOS or otherwise accesses or uses the Service (defined below) on his or her own behalf, such individual, or, in the case of an individual who accepts this TOS or otherwise accesses or uses the Service on behalf of a company or other legal entity, the company or 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 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 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)).
1. 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, 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, 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 email@example.com 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.
3. Proprietary Rights.
(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”).
(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);