Biometrica Terms and Conditions
THESE TERMS AND CONDITIONS (“TERMS”) GOVERN LICENSEE’S PURCHASE AND USE OF BIOMETRICA’S PRODUCTS. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. IF LICENSEE USES ANY PRODUCTS UNDER A FREE TRIAL PERIOD, THESE TERMS WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES. LICENSEE ACCEPTS THESE TERMS, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING A PROPOSAL THAT REFERENCES THESE TERMS, OR (3) BY CREATING AN ACCOUNT WITH BIOMETRICA OR USING ANY BIOMETRICA PRODUCTS. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, IN WHICH CASE THE TERM “LICENSEE” SHALL REFER TO SUCH ENTITY. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS, SUCH INDIVIDUAL MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE PRODUCTS.
These Terms are effective as of the date the first Proposal is mutually executed between the Parties (the “Effective Date”).
1.SCOPE. These Terms govern the access, use, and provisioning of Products purchased by Licensee pursuant to a Proposal that has been duly executed by the Parties and incorporates these Terms. These Terms will also apply to any other services pursuant to a Proposal, including third-party ancillary services, Installation Services, and Special Services. Licensee will promptly execute and provide any disclosures, certifications, or addendum (“Addenda”) Biometrica requires in order to use any Products. Licensee shall be responsible for the use of any Product by its affiliates, Authorized Users, or Authorized Administrators. Anyone considered an independent third-party and not considered an affiliate or agent of Licensee requires a separate license. Biometrica may use affiliates to provide services under a Proposal, in which case only such affiliate is liable under the terms of this Agreement with respect to such Proposal.
2.GRANT OF LICENSES
2.1.License. Strictly subject to and conditioned upon Licensee’s continuous compliance with the terms of the Agreement and the payment of all Fees set forth in a Proposal, Biometrica grants to Licensee for the Term a non-exclusive, non-sublicensable, non-transferable, and limited license to access and use the Products and Licensed Materials solely for the Permitted Purpose and solely as outlined in the applicable Proposal (the “License”). Licensee acknowledges and agrees that it is obtaining access to the Licensee Output Data and Results obtained via the Products and Biometrica is not selling the Licensee Output Data and Results to Licensee.
2.2.Permissible Uses; Limitations. Licensee acknowledges and agrees that: (i) Licensee’s use and access to any Product is subject to the restrictions and permissible uses provided by Biometrica to Licensee (the “Permissible Uses”); and (ii) any Product provided to Licensee is provided for informational purposes only and is not intended to be a substitute for actual investigative work and are subject to the database limitations provided by Biometrica to Licensee (the “Data Limitations”). Licensee agrees to comply with and will cause its Authorized Users to comply with, the Permissible Uses and Data Limitations at all times during its use of the Products. Licensee further acknowledges that the Database includes current data and historical data when made available by a law enforcement authority, or as provided by public records and other public data sources, even if such public data sources may not be publicly accessible or otherwise constitute public records. Biometrica is not the source of the data, does not represent or warrant the accuracy of the data, and will not screen or verify such data. All such data is provided solely on an “As Is” and “Where Is” basis purely as an information tool. Before relying on any Results, Licensee Output Data, Alerts, or notifications or reports from any Product, Licensee shall independently verify the same. Licensee assumes all risk associated with its interpretation of and use of Licensee Output Data, Results and Alerts. In no event is Biometrica liable for any gaps in the data or information provided to Licensee in connection with any Product. Licensee will use commercially reasonable efforts to safeguard the Products (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee will promptly notify Biometrica if Licensee becomes aware of any infringement of Biometrica’s Intellectual Property Rights in the Products and Licensed Materials and fully cooperate with Biometrica in any legal action taken by Biometrica to enforce its title and ownership rights in the Products and Licensed Materials.
2.3.Authorized Users. Subject to the restrictions below, Licensee may (a) access and use any Product in executable form for Licensee’s lawful internal investigations, compliance, risk mitigation and threat intelligence, and (b) permit Licensee’s employees or agents lawfully designated by Licensee (each, an “Authorized User” or an “Authorized Administrator” as further defined in “Attachment 1”) to access and use any Product. Use of some third-party materials included in any Product may be subject to other or additional terms and conditions, which will be presented to the Authorized User or Authorized Administrator for acceptance within any Product and which terms and conditions will be binding upon Licensee should Licensee choose to access and use such materials. Before accessing or using any Product, each Authorized User must be thoroughly trained in the use of any Product and made knowledgeable of the Permissible Uses, Data Limitations and any other disclosures, materials and certifications provided during the Onboarding process. Access keys and implementation instructions will be delivered to Licensee during Onboarding. LICENSEE IS RESPONSIBLE FOR PROVIDING THE TERMS OF THIS AGREEMENT TO ANY AUTHORIZED THIRD PARTY ACCESSING THE PRODUCT ON ITS BEHALF THROUGH ITS LICENSE AND ENSURING THE LICENSEE-AUTHORIZED THIRD-PARTY’S COMPLIANCE WITH THESE TERMS. IF A LICENSEE-AUTHORIZED THIRD PARTY DOES NOT COMPLY WITH THESE TERMS, THEN SUCH VIOLATION WILL BE CONSIDERED A BREACH OF THE AGREEMENT BY LICENSEE.
2.4.Trademark License. Subject to Licensee’s continuous compliance with the terms of this Agreement, Biometrica grants to Licensee a non-exclusive, non-transferable, non-sub-licensable, and limited license during any Term to use the official “Biometrica® Partner” or “Powered by Biometrica®” images and Licensee’s trade name, marks and other logos (collectively, “Biometrica Marks”) in any advertising or promotional material, including on Licensee’s website, subject to Biometrica’s prior approval in all instances. Biometrica reserves the right to revoke its consent for Licensee’s Use of the Biometrica Marks in its sole discretion.
2.5.Licensee Data. As between Biometrica and Licensee, all rights, title and interest Licensee Input Data submitted as part of its use of the Products, belongs to and is retained solely by Licensee. Licensee hereby grants to Biometrica a limited, royalty-free, irrevocable, worldwide license to use the Licensee Input Data in any way necessary for Biometrica algorithms to provide comparative search results to Licensee. Except with respect to Licensee Input Data provided in connection with RTIS/RVIS Alerts (the “Other Database”, as Defined in Attachment 1), Biometrica employees and contractors cannot see Licensee Input Data submitted to a Product for searches and Biometrica does not own and shall not sell Licensee Input Data. Licensee has sole responsibility for the accuracy, legality, reliability, and appropriateness of all Licensee Input Data.
2.6.Data Collection by Biometrica. Biometrica may, directly or indirectly through performance of its obligations under this Agreement, collect and store Anonymized Data regarding a Licensee’s use of the Products and about devices on which any Product is run. Licensee agrees that Biometrica may use the Anonymized Data for any purpose related to any use of any Product by Licensee or on Licensee’s equipment, including: (a) improving the performance of any Product or developing software updates; (b) verifying Licensee’s compliance with the terms of this Agreement; (c) enforcing Biometrica’s rights, including all Intellectual Property Rights in and to any Product. In connection with eMotive, Biometrica may aggregate anonymized data with other data obtained from other Biometrica partners and clients and share and use such aggregated data — presented on an anonymous basis — for any legitimate commercial purpose, including and not limited to statistical analysis. Biometrica may monitor utilization of eMotive to compile or create aggregated and anonymized information for any legitimate commercial purposes (the “Aggregate Data”). Biometrica will be the sole owner of the Aggregate Data and, notwithstanding anything to the contrary herein, will be free to use and disclose the Aggregate Data for any commercial purposes including publicizing usage of any Product, providing information on general industry trends, and providing benchmarking or statistical data to Biometrica partners and clients. No Aggregate Data used by Biometrica will identify Licensee as the source of any specific data, pattern or finding, nor include the PII for any of Monitored Individuals.
2.7.Title and Ownership. The Parties acknowledge and agree that Biometrica retains title to and ownership of (either itself or through its suppliers and licensors) all Biometrica IP and any other Intellectual Property Rights relating to any Product, the Database, and all Licensee Output Data and Alerts. There are no implied rights.
3.INSTALLATION SERVICES
3.1.Generally. Biometrica or a Biometrica-authorized third-party installer will install any Hardware required under a Proposal in the locations designated by Licensee (“Installation Services”) in a professional manner. Licensee will notify Biometrica of the location it would like the Hardware to be installed, and Biometrica will advise Licensee on the positioning of the Hardware in that location for optimal product functionality. Biometrica reserves the right to veto a specific location and will provide alternative options to Licensee. Licensee represents and warrants that it has, or shall lawfully obtain, all necessary right, title and authority and hereby grants to Biometrica and Biometrica-authorized third-party installers the right to install Hardware at the designated locations and to make any necessary inspections or maintenance in connection with such installation. With respect to installation of Sensors on any mobile or portable installations, Licensee will notify Biometrica promptly if those Sensors are ever moved. In no event will Biometrica be liable under this Agreement for failing to provide Licensee with an Alert if such Sensors are moved and Biometrica was not notified. Upon termination or expiration of the Term of the applicable Proposal, Biometrica will remove all Hardware within a commercially reasonable time and restore the location to its original condition, ordinary wear and tear excepted.
3.2.Ownership of Hardware. All Hardware, including the Sensors, is owned by and shall remain the exclusive property of Biometrica or a third party designated by Biometrica. In the event Biometrica uses a third party to install any such Hardware, Licensee will be required to enter into a separate agreement with such third party prior to the any Products being provided by Biometrica. Licensee shall not remove, reposition, re-install, tamper with, alter, adjust or otherwise take possession or control of Hardware. If Licensee, its agents, officers, contractors or employees, or a third party on Licensee’s behalf, is found to engage in any of the foregoing restricted actions, all warranties herein shall be null and void, and this Agreement shall be subject to immediate termination for material breach by Licensee. Licensee shall not perform any acts which would interfere with the retention of title of Hardware by Biometrica. Should Licensee default on any payment of any Product, Biometrica may remove Hardware at Biometrica’s discretion without waiver of any rights to any damages.
3.3.Defects and Replacement. Licensee must notify Biometrica’s technical support team of any malfunction or failure of any Hardware (“Defect”) within three (3) years of the start of the Term. In the event of a Defect, Biometrica shall make a commercially reasonable attempt to repair or replace the defective Hardware at no additional cost to the Licensee. Biometrica reserves the right, in its sole discretion, to repair or replace such Defect, provided that Biometrica shall conduct inspection or testing within a commercially reasonable time. If any Hardware is lost, stolen, or damaged, and that loss, theft or damage materially affects the provision of the Product, Licensee is obligated to inform Biometrica of such an event. If Biometrica reasonably determines that Licensee is at fault for the loss, theft or damage to the Hardware, Licensee is obligated to replace the Hardware at its cost. THE REMEDY DESCRIBED IN THIS SECTION IS LICENSEE’S SOLE REMEDY, AND BIOMETRICA’S SOLE LIABILITY, WITH RESPECT TO DEFECTS.
3.4.Hazardous Conditions. Biometrica does not warrant Sensors if they are exposed to hazardous materials, or other hazardous conditions, including, without limitation, asbestos, lead, toxic or flammable substances, extreme and unusual weather, gunfire, explosives, damage by other malicious means, or theft (“Hazardous Conditions”). In the event such Hazardous Conditions are discovered in the designated locations for the Sensors, then Biometrica shall have the right to remove the Sensors and stop providing that Product immediately.
4.SERVICES
4.1.Technical Support. Biometrica will use commercially reasonable efforts to respond to requests for technical support within twenty-four (24) hours. Biometrica will furnish Licensee with email technical support (via support@biometrica.com) Monday through Friday, excluding holidays, between the hours of 9:00 a.m. and 5:00 p.m. (EST). The technical support will be limited to standard technical support help on Product functionality and will not include application development or any other type of consulting, nor development of any custom platform, system or dataset integration, including and not limited to that for HRIS (Human Resource Information Systems) or badging systems (“Custom Support”). Any Custom Support will require an additional charge and a separate custom quote. Biometrica’s obligation to provide technical support or any other Custom Support is subject to any planned or necessary Biometrica system maintenance or downtime.
4.2.Modifications. Biometrica may, in its sole discretion: (i) make upgrades to a Product that it deems necessary or useful, including to maintain or improve the quality or delivery of such Product; (ii) add to or modify features of any Product and such modifications and additions may be furnished to Licensee under the terms of this Agreement; and (iii) may eliminate any functionality that presently exists in any Product if required by applicable law upon at least thirty (30) days’ advance notice to Licensee; provided that if such elimination renders it impractical for Licensee to use such Product, in Licensee’s reasonable discretion, Licensee may terminate its use of the applicable Product in the applicable Proposal without penalty.
4.3.Training; Onboarding. Before Licensee or any of its Authorized Users may access and use any Product, each party must participate in a virtual onboarding process with Biometrica (“Onboarding”), the details of which will vary based on location, industry and intended use of the Product and may require Licensee or its Authorized Users to acknowledge various disclosures or provide certifications applicable its use of the Products. Biometrica may agree to provide training to Licensee; provided that Licensee will be required to communicate with and share certain Licensee Input Data or Licensee Output Data with Biometrica, as Biometrica employees and contractors have no access to the same. Licensee understands that the medium of communication for sharing of such Licensee Input Data or Licensee Output Data may not be secure, and Biometrica assumes no liability or responsibility for the same.
4.4.Interruptions. Biometrica may temporarily suspend access to a Product, including an Authorized User’s access to the Database or an Authorized Recipient’s ability to receive Alerts if (“Excused Interruptions”): (i) Biometrica’s provision of any Product to Licensee is prohibited by applicable law; (ii) Any third-party services required for provisioning of the Product are interrupted, including availability of law enforcement jurisdiction access; (iii) Biometrica reasonably believes that the Product, Alerts or Licensee Output Data are being used for fraudulent, illegal, malicious, unlawful, or otherwise unauthorized use; (iv) there is a threat or attack by a third party impacting the Product; (v) There is scheduled or emergency maintenance; (vi) There is a defect in Licensee’s systems or applications; (vii) Material changes are made to Licensee’s access or usage of the Products where Biometrica has not agreed to such changes in advance and in writing; (viii) Licensee’s use of the Product disrupts or poses a security risk to the Product or any other Licensee or vendor of Biometrica; (ix) Licensee has violated any term in the Agreement; (x) There is any unauthorized access to any part of the Product through an Authorized User’s account; or (xi) A Force Majeure. Biometrica will make commercially reasonable efforts to provide written notice of any Excused Interruption to Licensee, to provide updates, and to resume providing access to the Products as soon as reasonably possible after the event giving rise to any Excused Interruption is cured. Biometrica will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Licensee may incur as a result of an Excused Interruption.
4.5.Maintenance. Biometrica shall have the right to suspend Licensee’s access to any Product for the purpose of maintenance of or upgrades to any Product or the Database it runs against. Except in the event of emergencies, Biometrica shall use a regular maintenance window, which shall be the first Sunday of each month between the hours of 12:00 am and 6:00 a.m. EST, during which any Product or notifications from any Product may not be accessible. Where feasible, Biometrica will provide Licensee with reasonable advanced notice of maintenance. Licensee shall provide Biometrica with an e-mail address that Biometrica can use to notify Licensee of planned maintenance.
5.FEES; PAYMENT; INVOICING
5.1.Subscription Fees. Licensee shall pay to Biometrica all reoccurring subscription fees for the access and use of any Product as outlined in a Proposal (“Subscription Fees”) in the amount and manner set forth in Section 5.4. Biometrica reserves the right to increase or decrease the Subscription Fees during the Term of any Proposal to account for increase or decrease in the scope of the services provided by Biometrica for such Product (e.g., due to an increase in foot traffic on the Footage). Any such increase or decrease shall be agreed upon in writing by Licensee and Biometrica in an amended Proposal.
5.2.Installation Fees. Licensee shall pay to Biometrica all costs for Installation Services as outlined in the applicable Proposal (“Installation Fees”). The sensor fee as described in the applicable Proposal (the “Initial Hardware Fee”) covers the cost of the initial Installation Services, Hardware, firmware, any additional hardware or cabling needed for an installation that is generally understood to be in the normal course of business. After initial installation, any subsequent requested changes, including relocating, re-positioning, adjusting of the mounting, removing foliage, replacement, and changes to heights of supporting hardware will incur additional fees. Licensee will receive prior notice and confirm approval of any such fees. The Initial Hardware Fee does not include any additional or supplementary costs that might be incurred including the following: (i) Armed guards accompanying installers for their protection, (ii) needing to go underground to lay cables or hardware, (iii) locations that require a danger or hardship fee to be paid to an installer, (iv) facilities that are considered historic buildings, (v) facilities that require any structural modifications for an install, or (vi) facilities that require special permission and payments to a local jurisdiction for a security installation.
5.3.Other Fees. Licensee will pay to Biometrica all other fees as outlined in a Proposal. If Licensee requests any Special Services, including, for example, building a specialized custom bulk database, then the charges for such Special Services shall be agreed to in a Proposal and separately invoiced as soon as practicable after the Special Services are provided. Payment for any Special Services will be due upon receipt of an invoice in accordance with Section 5.4.
5.4.Payments. Licensee shall pay all Fees in U.S. dollars by wire transfer or ACH to a U.S. bank account identified by Biometrica in writing. Licensee musth dispute any Fees no later than thirty (30) days after the closing date on the first invoice in which the error or problem appeared to receive an adjustment or credit. Failure to contact Biometrica within 30 days will result in a waiver of any claim. Undisputed, unpaid Fees which are more than forty-five (45) days late shall incur an interest charge of one- and one-half percent (1.5%) per month or 18% per year. Licensee shall pay all of Biometrica’s reasonable costs and expenses (including reasonable attorneys’ and auditors’ fees) if legal action is required to collect outstanding balances hereunder.
5.5.Taxes. Licensee is responsible for all applicable taxes, tariffs, levies, or duties imposed by taxing authorities associated with use of the Products. If Biometrica has a legal obligation to pay or collect taxes, including amount subsequently assessed by a taxing authority, for which Licensee is responsible, the appropriate amount shall be invoiced to and paid by Licensee unless Licensee provides Biometrica a legally sufficient tax exemption certificate, upon which Biometrica will not charge Licensee any taxes from which it is exempt. If any deduction or withholding is required by law, Licensee shall notify Biometrica and shall pay Biometrica any additional amounts necessary to ensure that the net amount that Biometrica receives, after any deduction and withholding, equals the amount Biometrica would have received if no deduction or withholding had been required.
5.6.Compliance Audit. Biometrica may audit Licensee’s records, systems and facilities in order to verify compliance with the terms of this Agreement once per twelve (12) month period. Any such audit may be conducted by an independent certified accountant during regular business hours at Licensee’s facilities, with thirty (30) days’ notice. Licensee agrees to provide Biometrica’s audit team prompt access to the relevant records, systems and facilities. Biometrica will pay for any such audit, unless the amount reported by Licensee is more than five (5%) percent below the amount that should have been paid to Biometrica. In such case, Licensee shall reimburse Biometrica for such audit costs in addition to the underpaid amounts and applicable interest charges. All information disclosed or learned during such audit shall constitute Licensee’s proprietary information, except that Biometrica reserves the right to disclose the results of any audit conducted under this Section to its advisors and in connection with any dispute resolution proceeding.
6.TERM
6.1.Term. These Terms are effective on the Effective Date and continue in effect until all Proposals have expired or been terminated. Licensee’s license to any Products will be as outlined in the applicable Proposal (the “Term”). Except as otherwise specified in a Proposal, the Term for any Product will automatically renew for successive (1) year periods unless either party gives the other written notice (email acceptable) at least 30 days’ notice before the end of the applicable period. If an initial Term is not provided in a Proposal, then the term of that Proposal will be for a fixed period of 36 months and will automatically renew for successive one (1) year periods unless either party gives the other written notice (email acceptable) at least 30 days’ notice before the end of the applicable period.
6.2.Termination for Cause. A party may terminate any Proposal for cause (i) upon 30 days written notice to the other Party of a material breach of the Agreement if such breach remains uncured by the end of such 30 day period. Biometrica may immediately and without notice, terminate a Proposal upon Licensee’s: (i) violation of the Permissible Uses or Data Limitations; (ii) if Licensee becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditor. Biometrica may suspend provisioning of the Products upon notice to Licensee if such provisioning becomes impracticable or impossible due to a change in applicable law or regulation, or if a change in technology renders the provisioning of any Products impracticable or impossible.
6.3.Effect of Termination. Upon termination or expiration of this Agreement, the licenses granted to Licensee under this Agreement pursuant to any Proposals will automatically and immediately terminate. Licensee must thereafter immediately destroy or return to Biometrica all materials related to any Product, its Licensee Output Data and/or the Database, and terminate all usage or representations with respect to the term “Biometrica® Partner,” or any derivation thereof.
7.LIMITED WARRANTIES; DISCLAIMERS
7.1.Limited Warranty. Biometrica warrants only that it has sufficient rights to grant to Licensee the access and use rights to any Product licensed to Licensee pursuant to a Proposal. Biometrica does not warrant, and Licensee expressly acknowledges that Biometrica does not warrant, that: (a) the Product (including any Licensee Output Data), or the Database has been prepared to meet Licensee’s individual requirements, or (b) the Product will operate uninterrupted or error free, or that all errors in any part of any Product (including its Licensee Output Data) can be corrected.
7.2.NO OTHER WARRANTIES. THE WARRANTY PROVIDED IN SECTION 7.1 IS THE ONLY WARRANTY RELATED IN ANY WAY TO LICENSEE’S USE OF THE PRODUCTS AND IS MADE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED. ALL PRODUCTS ARE PROVIDED “AS IS” AND BIOMETRICA MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WHETHER BY OPERATION OF LAW OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, EFFORT TO ACHIEVE PURPOSE, QUALITY, ACCURACY, TITLE, MARKETABILITY, PROFITABILITY, SUITABILITY, AND/OR ANY TYPE ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. BIOMETRICA DOES NOT WARRANT THAT (I) THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS IN ANY PART OF ANY PRODUCT (INCLUDING ITS LICENSEE CONTENT) CAN BE CORRECTED, (II) THE PRODUCTS (INCLUDING ANY LICENSEE CONTENT), OR THE DATABASE HAS BEEN PREPARED TO MEET LICENSEE’S INDIVIDUAL REQUIREMENTS, (III) THAT ANY SPECIFIC RESULTS MAY BE OBTAINED FROM USE OF ANY PRODUCT, (IV)THAT ERRORS WILL BE CORRECTED BY BIOMETRICA OR ANY THIRD PARTY, NOR (V) THAT BIOMETRICA WILL RESOLVE ANY PARTICULAR SUPPORT REQUEST OR THAT SUCH RESOLUTION WILL MEET LICENSEE’S REQUIREMENTS OR EXPECTATIONS. ANY STATEMENTS OR REPRESENTATIONS ABOUT A PRODUCT AND ITS FEATURES OR FUNCTIONALITY OR ANY COMMUNICATION WITH LICENSEE ARE FOR INFORMATION PURPOSES ONLY, AND DO NOT CONSTITUTE A WARRANTY, REPRESENTATION OR CONDITION. LICENSEE ACKNOWLEDGES AND AGREES THAT THE PRODUCTS USE INFORMATION SOURCED AND AGGREGATED FROM THIRD-PARTY LAW ENFORCEMENT PUBLIC SOURCES OR (IN THE CASE OF SANCTIONS’ LISTS) FEDERAL GOVERNMENT PUBLIC SOURCES, SUCH INFORMATION HAS NOT BEEN AND WILL NOT BE AUTHORED, SCREENED OR VERIFIED BY BIOMETRICA, AND BIOMETRICA IN NO WAY WARRANTS THE ORIGIN, ACCURACY, CORRECTNESS OR COMPLETENESS OF SUCH LAW ENFORCEMENT-SOURCED INFORMATION.
8.LIABILITY LIMITATIONS. IN NO EVENT SHALL BIOMETRICA, ITS OFFICERS, AFFILIATES, REPRESENTATIVES, AGENTS, INVESTORS, PARTNERS, VENDORS, CONTRACTORS AND EMPLOYEES HAVE ANY OBLIGATION OR LIABILITY (WHETHER IN TORT, CONTRACT, WARRANTY OR OTHERWISE, AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE, PRODUCT LIABILITY, OR STRICT LIABILITY) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, LOST REVENUE, LOSS OF OR DAMAGE TO PROFITS, OR DAMAGE TO REPUTATION OR BUSINESS INTERRUPTION, SUSTAINED OR ARISING FROM OR RELATED TO ANY PRODUCT, LICENSEE OUTPUT DATA, PRODUCT SUPPORT OR OTHER SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES BE LIABLE (WHETHER IN TORT, CONTRACT, WARRANTY OR OTHERWISE AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY) FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS OR DATA, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, LICENSEE OUTPUT DATA, PRODUCT SUPPORT OR OTHER SERVICES, OR BIOMETRICA’S BREACH OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL BIOMETRICA’S LIABILITY TO LICENSEE UNDER ANY PROPOSAL EXCEED THE FEES PAID AND/OR PAYABLE BY LICENSEE TO BIOMETRICA FOR THE APPLICABLE PRODUCT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT OR OMISSION THAT GAVE RISE TO THE LIABILITY.
9.INDEMNIFICATION. Biometrica shall indemnify and hold harmless Licensee, its agents and employees from and against any and all claims, proceedings, damages, injuries, losses, costs, expenses, and other liabilities (including reasonable attorneys’ fees and litigation expenses), relating to or arising from any claim made by a third party that (a) results from Biometrica’s damage to property or serious bodily injury (including death), or (b) is based upon the infringement by Biometrica of third party Intellectual Property Rights, but only to the extent (i) such claimed infringement was not caused by Licensee’s unauthorized use, alteration or modification of any Product, and (ii) such claimed infringement is not the result, directly or indirectly, of Licensee’s combination or incorporation of the Licensee Output Data into or with its or third party software, technology, products or services. Licensee shall defend, indemnify and hold harmless Biometrica and its affiliates and their respective agents, employees, officers and directors, successors and assigns from and against any and all third party claims, proceedings, damages, injuries, losses, costs, expenses, and other liabilities (including reasonable attorneys’ fees and litigation expenses), directly or indirectly relating to or arising from (i) Licensee’s use or access of any Product, Licensee Input Data or Licensee Output Data, or its use and access to the Database or end consumer allegations that any data contained in the Database is false; (ii) any actual or alleged breach of this Agreement by Licensee.
10.CONFIDENTIALITY
10.1.Confidential Information. “Confidential Information” means any nonpublic information revealed by or through one Party (the “Disclosing Party”), whether in writing, orally or by another means, to the other Party (the “Receiving Party”), including: (a) information expressly or implicitly marked or disclosed as confidential; (b) information traditionally recognized as proprietary trade secrets, which shall include any Product, including its parts, and its proprietary Database (as a compilation, but not the public records contained therein) and the Interface and API; (c) all forms and types of financial, business, scientific, technical, economic, legal/compliance-related, or engineering information including and not limited to patterns, plans, patents (either granted or applied for), compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing, which may, but is not required to be identified with the legend “CONFIDENTIAL”; (d) the terms and pricing under this Agreement, the technical and other specifications for any Product and Licensee Output Data and any other information reasonably identified or indicated by Biometrica to be confidential; and (e) nonpublic information revealed by or through Licensee, whether in writing, orally or by another means, to Biometrica, including information relating to the manner in which Licensee utilizes the Results, the results of Licensee’s testing and development efforts, and any other technical information that Biometrica is able to ascertain from Licensee’s use of the Products. Confidential Information shall not include: (i) information that is in the possession of the Receiving Party prior to the date of the disclosure from or through the Disclosing Party, (ii) information obtained by the Receiving Party from a party other than the Disclosing Party without any use or access to the Disclosing Party’s Confidential Information, and (iii) information that is or becomes generally known to the public based on existing records, or that becomes generally available to the public through sources other than the Disclosing Party.
10.2.Confidentiality Obligations. The Receiving Party agrees (i) to take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the Party takes with its own Confidential Information, but in no event less than commercially reasonable precautions, and (ii) not to use (except for use in the Interface or as otherwise permitted herein) or divulge to any third person any such Confidential Information. Nothing in this Agreement will prevent the Receiving Party from disclosing the Confidential Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. At the termination of this Agreement, all Confidential Information will be returned to the Disclosing Party, destroyed or erased (if recorded on an erasable storage medium), together with any copies thereof, when no longer needed for the purposes above, or upon request from the Disclosing Party, and in any case upon termination of the Agreement. Notwithstanding any termination, all confidentiality obligations of Confidential Information that are a trade secret shall continue in perpetuity or until such information is no longer a trade secret.
10.3.Limitations on Disclosure. Licensee shall not disclose any Confidential Information, except to its, directors, managers, officers, employees, legal and financial advisors, agents and consultants (“Personnel”), who (i) have a need to know such information for the purposes set forth in this Agreement and only to the extent such Personnel have such a need to know, and (ii) agree to comply with the terms and conditions of this Agreement. Licensee shall be liable for the actions of its Personnel. Licensee further agrees to return to Biometrica all Confidential Information received hereunder upon written request therefor, and automatically and without such request upon the termination of this Agreement for any reason, expressly agrees not to retain any copies thereof in any form. Licensee agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by Licensee’s Personnel in violation of this Agreement. Licensee acknowledges and agrees Licensee Output Data is strictly for Licensee’s internal, confidential, and lawful use, and must be held in strict confidence by Licensee and never revealed to any persons in the Database or to anyone outside of Licensee’s Personnel or those permitted by law. Licensee agrees to use this information solely as legally permitted for the management of Licensee’s work, and not for any illegal or other improper use. The information and organization of the data included within the Licensee Output Data will remain at all times the property of Biometrica and its suppliers and licensors.
11.GENERAL PROVISIONS
11.1.Compliance with Laws. Parties shall comply with all applicable local, state, tribal, federal, and international laws, regulations, policies and ordinances and their associated record retention schedules, including responding to any subpoena request(s).
11.2.Relationship of the Parties. Each of the Parties are independent contractors with respect to each other, and this Agreement shall not be deemed or construed to create a partnership or joint venture relationship between the Parties. Neither Party is or shall be deemed to be the agent or other legal representative of the other, and neither Party shall have the right to bind the other Party in any respect.
11.3.Assignment. Licensee shall not assign or sublicense any of its rights or obligations under this Agreement (including any Proposals), in whole or in part, without the express prior written consent of Biometrica, not to be unreasonably withheld. This Agreement shall inure to the benefit of and be binding upon the Parties hereto, and their respective permitted successors and assigns.
11.4.Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Nevada, without regard to principles of choice of law.
11.5.Arbitration. Any controversy or claim hereafter arising between the parties out of or relating to this Agreement, its performance, or the breach hereof, shall be finally resolved by binding arbitration to be administered by JAMS under its Comprehensive Arbitration Rules and Procedures, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. If Biometrica commences the arbitration, then the sole and exclusive venue for the arbitration shall be Las Vegas, Nevada; if Licensee commences the arbitration, then the sole and exclusive venue for the arbitration shall be Las Vegas, Nevada; in either case, the parties expressly waive the right to proceed in any other jurisdiction or forum and waive any jurisdictional or venue defenses that might otherwise be available. In addition to any other rights and remedies a party may have upon a breach of this Agreement by the other party, the arbitrator(s) shall be authorized to award specific performance or injunctive relief respecting the covenants contained herein. The award in arbitration shall be final and binding upon the parties and may be confirmed and/or enforced only in the federal or state courts in the State of Nevada. Before resorting to arbitration, the parties shall first try in good faith to settle any such controversy, dispute or claim by mediation, with such mediation to be administered by JAMS or before another mediator agreed to by the parties, and with such mediation to be conducted in a location consistent with where any related arbitration would be conducted, or if the parties agree, to some mutually agreeable location.
11.6.Notices. All formal or legal notices under this Agreement shall be in writing and given by mail, postage prepaid or by overnight delivery addressed to the respective Party at the address provided on the first page of this Agreement, unless otherwise updated in a Proposal. Such notice shall be deemed to have been given when received. Either party may change its notice address upon notice to the other party pursuant to this provision.
11.7.Force Majeure. Excluding Licensee’s obligations to pay any Fees, neither party shall be held responsible for any delay or failure in performance to the extent that such delay or failure is caused by any circumstance outside of the reasonable control of such Party (a “Force Majeure”) including fires, strikes, embargoes, explosions, earthquakes, floods, wars, water, the elements, labor disputes, government requirements, civil or military authorities, acts of God or by the public enemy, inability to secure raw materials or transportation, facilities, acts or omissions of carriers or suppliers, or other causes beyond such Party’s reasonable control whether or not similar to the foregoing.
11.8.Insurance. Licensee shall maintain insurance with appropriate coverage at its sole cost. Licensee shall submit proof of insurance to Biometrica upon request by Biometrica.
11.9.Waiver; Severability. Unless otherwise specifically otherwise provided in these Terms, no delay or failure to exercise any right resulting from a breach or default of an Agreement shall impair that right or be construed as a waiver thereof. Any waiver must be in writing and signed by the Party granting the waiver. Further, any waiver by a Party of any breach of this Agreement by the other Party shall not be construed as the waiver of any subsequent breach of that provision or any other provision hereof. If any provision of this Agreement shall, for any reason, be determined to be invalid, illegal or unenforceable, all other terms of this Agreement shall remain in full force and effect.
11.10.Entire Agreement. These Terms including all Proposals, is the entire agreement between Licensee and Biometrica relating to any Product or Hardware provided by Biometrica and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to any Product or any other subject matter covered by this Agreement. The Parties may amend any Proposal from time to time upon mutual agreement and execution of any amendment to such Proposal. Biometrica may amend these Terms at any time upon notice to Licensee but without the Licensee’s consent. Licensee’s use of any Products or Hardware after receipt of notification of an amendment to these Terms will serve as Licensee’s acceptance of the Terms as amended. If there is a conflict between a Proposal and these Terms, or any other documents or addendums between the parties or referenced therein, the following order of precedence governs: (i) these Terms, including the Permitted Uses and Data Limitations; (ii) any Addenda; and (iii) the applicable Proposal, unless such Proposal explicitly sites the conflicting provision and indicates that the Parties intend for the Proposal to prevail.
11.11.Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
[Attachments follow]
Attachment 1
DEFINED TERMS
“Agreement” means these Terms together with any Proposal and all terms, conditions, and documents incorporated or referenced herein and provided to Licensee, including the Permitted Uses and Data Limitations.
“Alerts” means, in connection with RTIS/RVIS, the alerts sent out by the Rapid Action Center to Licensee’s Authorized Recipients after confirming the Relevancy of the Results.
“Anonymized Data” means Licensee submitted image data with identifying details like the first, middle and last name removed and replaced by an anonymized alphanumeric code, so that the data subject (i.e., an individual person) can no longer be identified directly. Except in exceptional cases, data can only be anonymized for submission by intelligence agencies or military agencies for intelligence purposes or for the protection of national security, or by law enforcement agencies or an agency like NCMEC or ICMEC in connection with child exploitation or missing children cases. Anonymized Data is separate from facility or location-specific Licensee Input Data for Alerts, which is defined below in “Other Database”. If Anonymized Data also happens to be a match to an individual in Database, the Rapid Action Center may still have access to other demographic details on that individual, which will not be anonymized.
“API” means Biometrica’s application programming interface, that is designed to provide a Licensee and its Authorized Users the ability to access, send, and receive data to and from the Database via their programs, platforms and/or systems.
“API Information” means the standard application programming interface (API) information generally provided by Biometrica that specifies the requirements for interfacing to any Product that uses and API enabling communication between Licensee’s Application and the Database.
“Authorized Administrator” means Licensee’s qualified personnel to whom Licensee provides supervisory access to any Product, and who are legally qualified by position and intended use to access any Product and Licensee Output Data in order to supervise the work of Authorized Users.
“Authorized Recipient(s)” means any individual employees, agents, or contractors of Licensee set up to receive an Alert, under the rights granted to Licensee pursuant to this Agreement.
“Authorized User(s)” means Licensee’s personnel to whom Licensee provides access to any Product through the assignment of logins and passwords and who are legally qualified by position and intended use to access any Products and Licensee Output Data. Authorized User also refers to a person(s) receiving the Results from any Product.
“Biometrica” means the Biometrica Systems, Inc., or its affiliate, that is party to a Proposal.
“Biometrica IP” means all Intellectual Property Rights owned by Biometrica, including all Products, the Licensed Materials, and any Interface, API, source code, or any other intellectual property or proprietary information contained therein.
“Crimes of Concern List” means the list of relevant crimes completed by Licensee in connection with Licensee’s use and access to the RTIS/RVIS Product and as updated during the term.
“Database” means UMbRA, Biometrica’s proprietary, searchable, multi-jurisdictional, real-time database, as detailed on Biometrica’s website.
“Development Materials” means any Product development kits and other toolkits, libraries, scripts, reference or sample code, and similar developer materials included in the Licensed Materials, to be outlined in a Proposal or otherwise provided to Licensee after the Effective Date.
“Documentation” means any written guides, user manuals, technical manuals, and any other materials provided by Biometrica, in any form or media that describe the installation, operation, use, or technical specifications of any Product.
“eMotive” means Biometrica’s proprietary software-as-a-service background checking solution as detailed on Biometrica’s website. eMotive requires Licensees to have explicit written consent from employees, contractors or other personnel agreeing to be background checked. Licensees will be provided access to eMotive only after signing additional certifications, provided separately and required by law.
“Fees” means any fees required to be paid by Licensee pursuant to a Proposal, including all Subscription Fees, Installation Fees, Initial Hardware Fees, fees for Special Services, and any other fees as outlined in such Proposal.
“Footage” means the single still image automatically captured by a Sensor during face detection and sent to the cloud to be compared against the Database or another Licensee-authorized test or live database.
“Hardware” means Biometrica owned or Biometrica-licensed third-party device(s), including the Sensors and any metal arm, cables, clamps, other installation components, and any other physical elements that are required to provide any Product.
“Individuals” or “Monitored Individuals” means, where the context so requires, persons that Licensee is legally authorized or required to perform ongoing criminal background searches or continuous vetting on, including through fully automated, regularly scheduled, algorithmic queries, for Permitted Purposes. For employment purposes, monitored individuals have to provide explicit written consent to be monitored.
“Installation Services” has the meaning provided in Section 3.1.
“Intellectual Property Rights” means all current and future patents, patent applications (including, without limitation, all reissues, divisions, renewals, extensions, continuations and continuations-in-part), copyrights (including rights in audiovisual works and moral rights), trade secrets, trademarks, service marks, trade names and all other intellectual property rights and proprietary rights, whether arising under the laws of the United States or any other country, state or jurisdiction.
“Interface” means a web-based user interface used to access the Database or a Product.
“Licensed Materials” means, where applicable and in connection with a Product licensed to Licensee pursuant to a Proposal, any Documentation, Sample Source Code, Development Materials, and API Information.
“Licensee” means the entity that is signatory to this Agreement, and where context so requires its Affiliates, Authorized Users, and Authorized Administrators (including in each case, all divisions and departments within organizations, and any third-party agent the foregoing entities authorize to access any Products through Licensee’s license and/or systems).
“Licensee’s Application” means the information related to Licensee’s organization as outlined in a Proposal that will communicate with the Database via the API. Information related to Licensee’s Application includes, but is not limited to, the application name, description, Monitored Individuals, any method of marketing and sale.
“Licensee Input Data” means the input data provided by Licensee into any Product through any API or Interface (for testing or live production), including any textual or image data, or other information or data uploaded or provided by Licensee in connection with its use of any Product for testing, live production or otherwise, including for Monitored Individuals. For the avoidance of doubt, Licensee Input Data excludes Footage.
“Licensee Output Data” means all output data received directly by Licensee as a result of Licensee’s use of any Product, and all other data obtained through calls by any Product to the Database, but excluding Results and Alerts in connection with RTIS/RVIS.
“Other Database” indicates an end-to-end encrypted database of digital data containing faces pertaining to persons of interest to a Licensee, which may include exclusion lists, wanted persons, persons of interest in a criminal investigation, missing or trafficked persons, and other persons entered into the dataset for legitimate lawful purposes.
“Permitted Purpose” means for any legitimate lawful purposes, including the following: (i) legal investigations, gathering of threat intelligence, or crime prevention; (ii) criminal justice or statistical research; (iii) analytical or forensic purposes; (iv) employee background checks for compliance, licensing, public or workplace safety, risk mitigation, insider threat prevention and enhanced employee, provider, volunteer or contractor screening; (v) Know Your Customer or Know Your Visitor purposes, risk mitigation, asset protection, prevention and investigation of fraud, money laundering, other financial crimes, or organized crime activity; (vi) protection of children or vulnerable adults, preventing the exploitation of children or vulnerable adults, and/or trafficking in persons; (vii) because of an imminent threat to life or limb; (viii) public health and public health data, or substance abuse prevention; (ix) protection of critical infrastructure and facility security; (x) national security or cybersecurity; (xi) identification, or location; and (xii) any other purposes not defined here but generally recognized to fall under the lawful purview of multi-industry HR, badging, trust, safety, security and surveillance teams.
“Product” and/or “Products” means any one of Biometrica’s proprietary products described on Biometrica’s website and licensed to Licensee pursuant to a Proposal in accordance with this Agreement.
“Proposal” means any proposal, order form, or other similar document that is executed by both Parties and references these Terms.
“Rapid Action Center” means the human-manned action center that receives algorithmic alerts based on image data received via a Sensor that is matched via a cloud-based interface to an individual in the Database or any Other Database, whereby a human verifies such data with the Alert, filters out false positives, and looks for Relevancy before sending out an Alert.
“Relevancy” means the process of deciding whether a Result requires further action based on the context and/or an Alert needs to be sent out by the Rapid Action Center based on a situational assessment and predetermined Licensee requirements — permissible by law, defined by Biometrica and agreed to by the Licensee during the process of Onboarding upon completion of the Crimes of Concern List.
“Result(s)” means the information resulting from any query to the Database, via an encrypted notification from any Product, whether such Result indicates a possible law enforcement event and record for that individual, a confidence rating of a match between two submitted images, or otherwise.
“RTIS/RVIS” means Biometrica’s real-time threat identification system (RTIS) and real-time victim identification system (RVIS) Product, as detailed on Biometrica’s website.
“Sample Source Code” means the human readable version of the sample code provided with the Development Materials after execution of a Proposal, including programmer comments and procedural code.
“Sensor” means an endpoint sensor camera.
“Special Services” means any separate technical services provided by Biometrica that are not part of Biometrica’s standard support for a Product.
“Subscription Fees” has the meaning provided in Section 5.1.
“Term” has the meaning provided in Section 6.1.
Version: May 2025
Contact: info@biometrica.com
NV PILB # 1295
Permissible Uses
Defined terms used herein are as defined in the Biometrica Terms and Conditions between Licensee and Biometrica. Licensee’s use and access to any Product is subject to the following Permissible Uses:
1.Permissible Uses. In accessing and using any Products and related services provided by Biometrica, Licensee agrees to strictly comply with all applicable federal, international, state, local and/or tribal laws and regulations and any applicable industry best practices including (a) obtaining explicit consent of any individuals being background checked or monitored for the same, as applicable and to the extent required by law, and (b) all privacy and data protection regulations, including the protection and use of personally identifiable information (“PII”) and other protected information and data. Licensee agrees to use the Products solely for any of the following purposes: (i) legal investigations, gathering of threat intelligence, or crime prevention; (ii) criminal justice or statistical research; (iii) analytical or forensic purposes; (iv) employee background checks for compliance, licensing, public or workplace safety, risk mitigation, insider threat prevention and enhanced employee, provider, volunteer or contractor screening; (v) Know Your Customer or Know Your Visitor purposes, risk mitigation, asset protection, prevention and investigation of fraud, money laundering, other financial crimes, or organized crime activity; (vi) protection of children or vulnerable adults, preventing the exploitation of children or vulnerable adults, and/or trafficking in persons; (vii) because of an imminent threat to life or limb; (viii) public health and public health data, or substance abuse prevention; (ix) protection of critical infrastructure and facility security; (x) national security or cybersecurity; (xi) identification, or location; and (xii) any other purposes not defined here but generally recognized to fall under the lawful purview of multi-industry HR, badging, trust, safety, security and surveillance teams.
2.Restrictions. Licensee agrees that Licensee will not, and will ensure that its Authorized Users and any other third-parties accessing the Products will not, engage in any of the foregoing uses or activities, either directly or indirectly, without the prior written consent of Biometrica unless required by law (individually and collectively “Unauthorized Uses”):
(a)assign, sell, sublicense, transfer, distribute, lease, license, lend, publish, or otherwise encumber Licensee’s rights or any Biometrica IP, the Products or Licensee Output Data or make the foregoing available to any other parties (other than to third parties who provide maintenance or support services to Licensee in relation to the Product);
(b)use any Biometrica IP, Product, or Licensee Output Data for anything other than the Permitted Purpose or in any manner inconsistent with the rights granted in this Agreement, including in a service bureau, to provide commercial hosting services, or in excess of any use restrictions set forth in the Agreement;
(c)modify, alter, tamper with, translate, adapt, repair or create derivative works or improvements, whether or not patentable, any Biometrica IP, Product, Licensee Output Data or the Database;
(d)combine or incorporate any Biometrica IP or any part thereof with any other programs;
(e)defeat, avoid, bypass, remove, deactivate, disable, circumvent, or otherwise attempt to circumvent or implement any workaround to any protection or security features in the Products including those designed to prevent unauthorized use of the Product;
(f)remove, delete, alter, or obscure any Biometrica Marks and any other trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with any Biometrica IP;
(g)use pointer data gained from any Product for any purposes or in any way that would be considered in violation of any law, regulation, or rule in any jurisdiction in the United States and other applicable jurisdictions;
(h)use any Biometrica IP for competitive purposes, for the development of a competing software product or service, or for any other purpose that is to Biometrica’s commercial disadvantage;
(i)use any Product in any manner that could damage, disable, overburden, or impair the internet-based service associated with any Product or interfere with any other party’s use and enjoyment of the Products.
Licensee shall notify Biometrica promptly of any such Unauthorized Uses or other unauthorized access of the Database.
3.Law Enforcement Use of Alerts. Licensees will only receive Alerts via the Rapid Action Center. Alerts received from the Rapid Action Center are based on a combination of automated face detection, facial recognition technology (“FRT”) and human verification and intelligence. Because the RTIS/RVIS Product uses FRT, any Licensee that is considered a law-enforcement agency (a “Law Enforcement Licensee”) may only use an Alert to corroborate the information received for the following purposes:
(a)to identify an individual when there is a legally justifiable basis to believe that such individual has committed, is committing, or is about to commit a crime, is wanted in connection with a crime, or is a person of interest in connection with a crime.
(b)to identify an individual when there is a basis to believe that such individual is a missing person, a victim of trafficking or another crime, or a witness to criminal activity.
(c)to identify a person who is incapacitated, is a vulnerable minor or adult, or otherwise unable to identify themselves.
(d)to identify an individual who does not possess valid identification, is not forthcoming with valid identification, who appears to be using someone else’s identification, or using a false identification.
(e)To mitigate an imminent threat to health, public safety or national security (e.g., to thwart an active terrorism scheme or plot), or mitigate a threat to life and limb, or to protect critical infrastructure.
(f)for criminal analyses and investigations, where a potential match could serve as a lead for additional steps.
(g)for any other explicit purpose that is legally permissible under the laws of the jurisdiction.
Any use of an Alert by a Law Enforcement Licensee that is outside of the scope of the foregoing will be considered a material breach of the Agreement. For the avoidance of doubt, use of Alerts by Licensees that are not considered a Law Enforcement Licensee are only governed by the Permitted Purpose.
4.Required Consent and Approvals. Licensee is responsible and liable for all uses of the Products through access provided by Licensee, directly or indirectly, including obtaining all necessary approvals for the collection and use of image data by Licensee, and for all actions and failures to take required actions with respect to the Product by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of, whether such access or use is permitted by or in violation of this Agreement. Licensee will obtain explicit consent from employees or contractors, as required by applicable law, prior to accessing or using any Product to receive Alerts on them and provide written certification to Biometrica of having received that consent to background check them on Biometrica-provided employer certification forms, provided separately where applicable. All Licensees are required to follow all applicable jurisdictional law and regulations, including and not limited to those requiring a provision of notice or signage of video surveillance.
5.No Abuse of Systems. Licensee agrees that its access to or utilization of any Product shall not interfere or disrupt the use, function or performance of any Product or any other operations of Biometrica. If Biometrica determines that the use of any Product by Licensee is disrupting the use, function, or performance of any of its Products, products, databases or systems, Biometrica shall have the right, without prior notice to Licensee, to throttle or restrict Licensee’s ability to access data from any Product.
6.Security Credentials. Biometrica will provide Licensee with login credentials that can be used to access any Product. Licensee will protect these credentials in a manner consistent with standard industry practice for security credentials. Licensee shall immediately notify Biometrica if the credentials are compromised in any way and cooperate and work with Biometrica to contain and restrict any unauthorized access due to compromised credentials.
Contact: info@biometrica.com
NV PILB # 1295
Biometrica Limitations of Data
1.1.Database Limitations. Licensee acknowledges and agrees that any Solution provided to Licensee is provided for informational purposes only and is not intended to be a substitute for actual investigative work. The Solutions access a Database sourced and aggregated from third-party law enforcement sources. The Database does not represent every U.S. jurisdiction, and that jurisdictions are still being added. Such data has not been and will not be authored, screened or verified by Biometrica. Biometrica in no way warrants the origin, accuracy, correctness or completeness of such Licensee Output Data, and the Licensee Output Data is provided solely on an “As Is” and “Where Is” basis purely as an information tool. This data is to be considered only “pointer data” and a suggested match is only a suggestion. Biometrica, through its algorithms, employees, partners, agents or representatives, makes no decision or determination of a match to any individual. Any algorithmic match recommendations should be analyzed by more than one human analyst/reviewer prior to establishing a possible match. No result received via any Solution should be construed as a reflection of a determination on an individual’s character. Further, Licensee is encouraged to use said information to directly contact a law enforcement jurisdiction concerned for further verification of the data, as needed, and use additional identifiers and methods of verification prior to making any final determination or decision, including that of matching any individual or taking any action, and including and not limited to any pre-adverse or adverse action based on an algorithmically suggested match. Licensee understands and acknowledges that any possible match, including an image match, does not establish probable cause to arrest or obtain a search warrant, nor is it cause for a pre-adverse or adverse action. It is only intended as a possible lead for additional corroboration and investigation. An investigator assigned to a case must establish, with other corroborating evidence, that the individual identified by a match, for example, is the perpetrator in the alleged crime or is a genuine threat to public or workplace safety.
1.2.Limitations of Sourced Data. Licensee acknowledges and understands the following limitations with respect to the data sourced for the Database:
(a)Generally. The Database includes current data and historical data when made available by a law enforcement authority, or as provided by public records and other public data sources, even if such public data sources may not be publicly accessible or otherwise constitute public records. Biometrica is not the source of the data, does not represent or warrant the accuracy of the data, and will not screen or verify such data. Public records may be processed poorly or incorrectly and may not be error free. All such data is provided solely on an “As Is” and “Where Is” basis purely as an information tool. Before relying on any Results, Licensee Output Data, Alerts, or notifications or reports from any Solution, the data should be independently verified. Licensee assumes all risk associated with its interpretation of and use of Licensee Output Data, Results and Alerts.
(b)No Juvenile Data. Biometrica does not source, amalgamate or distribute juvenile criminal data. Therefore, for example, in the case of a missing minor who is believed to have had a criminal law enforcement event, there would only be a possible match in the Database, to be notified via any Solution, if a minor has been missing long enough to have grown into adulthood at the point of arrest or/and conviction, or if a minor, for whatever reason, is charged or tried as an adult and the law enforcement jurisdiction concerned has made that data available.
(c)No Social Media, Or Other Non-Law Enforcement Data. The Database does not contain, and Biometrica does not source, amalgamate or distribute data from social media accounts or platforms, any other media platforms, credit information bureaus, DMV records, property records, or from other similar sources.
(d)Criteria for Data Availability. Public records will only be available in the Database if the following criteria is met: (i) such record is from a law enforcement jurisdiction that has made its records available either through a publicly accessible database or, in some cases, to Biometrica through a non-public data feed by special arrangement for data-sharing; and (ii) that law enforcement jurisdiction has updated its database to reflect that record, and/or updated that record as it progresses through a system.
(e)Data Identifiers. The scope of the record details in the Database depends on what a law enforcement jurisdiction makes available and this may or may not include image data and/or other demographic and personally identifiable details. To elaborate, a law enforcement agency may make first name, middle name, last name, aliases, gender, height, weight, race, date of birth, date of booking, date of release, charges, arresting officer, facility, arrest ID, and bond amount available, but not have any accompanying image. Another agency may have the image of the face, tattoos, and other details but no date of birth. This may affect any Solution’s ability to provide an automated notification of a potential matching event to Licensee.
(f)Availability of historical data. Whether the Database contains historical data from a jurisdiction for a certain period depends on when that jurisdiction in question digitized their records and what they made available. The period varies per jurisdiction. Whether or not any Solution can provide a notification on an individual may also be based on the availability of a historical record on that individual.
(g)Limitations of Image Data. Any Results are dependent on the image submitted as part of the Database or submitted by Licensee as Licensee Input Data. Biometrica strongly recommends that any submitted image to any Solution for the purposes of monitoring, including from driver’s licenses or other IDs, that is modified or altered prior to submission, should have the process of that modification or alteration documented and signed off on by a supervisor. Any image alteration or modification may cause a misidentification and/or legal/prosecutorial questions at a later stage. If a modified or altered image requires to be used, Biometrica strongly recommends and Licensee understands and acknowledges the recommendation that both the original image and the modified or altered image are retained separately, along with edit logs (for example, in Adobe Photoshop), and any output from the modified image that is provided to an investigator. For elaboration, alterations or modifications to a probe or trigger image include and are not limited to the following: Cropping, resizing, rotating of an image, blurring of backgrounds, straightening, correcting a facial pose, color/tint correction, de-blurring or sharpening, lens distortion correction, dewarping, red eye reduction, changing colors, changing hair, adding or removing head coverings, adding or removing face coverings, adding or removing facial marks, adding or removing makeup, adding or removing eyeglasses, adding or removing filters, using AI-generated images, and more. Images with eyes and/or faces obscured by sunglasses should not be submitted to any Solution. Images with eyeglasses may be submitted but may cause algorithmic misidentification, depending on the submitted image and the reference image in the Database. Except in exceptional circumstances, Biometrica strongly recommends that images from fisheye cameras are not used, because face recognition often suffers from a performance degradation in accuracy when applied to images captured by fisheye cameras, as they use a process that causes a distortion in facial features. Fisheye cameras are best suited for providing situational or environmental awareness for users monitoring a wide area instead of applications like facial recognition. As a policy, Biometrica recommends that any original image and any altered or modified image should both be run via any Solution and records kept of any notifications received, including and not limited to any that produce a different candidate set.
(h)Applicability of Law. Data contained in the Database, both real-time and historical records, cannot be compartmentalized because the data in the Database may be used to help locate missing persons and victims of trafficking and recognize unidentified remains, in addition to supporting the work of cold case investigators. If and when there is a potential algorithmic match to an individual via any Solution to a record that is older than a period that is allowed to be considered by applicable law or a statute of limitations for a specific purpose including and not limited to a background check, Licensee must apply applicable law in determining whether that data can be considered as relevant or not for the purposes of making a determination of a match and taking any action.
Contact: info@biometrica.com
NV PILB # 1295
