Thank you for selecting the products offered by Iris.TV, Inc. (“Iris.TV”). Review these Terms of Service (these “Terms”) thoroughly. These Terms are a legal agreement between you and Iris.TV. By accepting electronically, installing, accessing or using Iris.TV’s Products (as defined below), you agree to these Terms. If you do not agree to these Terms, then you may not use the Products.
1 Definitions. In addition to any terms defined throughout these Terms, the capitalized terms below as used in these Terms shall have the meanings set forth below:
1.1 “Open-Source Components” means any open-source, freeware, shareware or other software having similar licensing or distribution models by which it is subject to license agreement or other enforceable requirements or restrictions, including under any GNU General Public License or GNU Library or Lesser Public License, or other license agreement that conforms to a standard definition set by the Open Source Initiative.
1.2 “Products” means Iris.TV’s platform solutions and computer programs accepted electronically, installed, accessed or used by You.
1.3 “Use” means, as applicable, (i) use of the Products, (ii) executing or loading the Products into computer RAM or other primary memory, and/or (iii) copying the Products for archival or emergency restart purposes or as otherwise permitted by these Terms.
1.4 “Your Data” means information, data and other content, in any form or medium that is collected, downloaded or otherwise received, directly or indirectly by Iris.TV from You through use of the Products.
1.5 “Your Systems” means Your information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by You or through the use of third-party services.
2 License Rights and Restrictions.
2.1 License Grant. Iris.TV grants to You a non-exclusive, non-transferable, limited license to install and Use the Products set forth in an order or other agreement signed by you and Iris.TV or an authorized reseller of Iris.TV (each an “Order”), during the term of such Order, on your network.
2.2 Open-Source Licenses. Certain Products includes Open-Source Components licensed to Iris.TV (“Open-Source License(s)”). Any use of the Open-Source Components by You shall be governed by, and subject to, the terms and conditions of the Open-Source License(s).
2.3 Other Third Party Products. The Products may use one or more other third party software products. Iris.TV has the right to utilize such third party software products in connection with the Products hereunder but the use of the third party software products is strictly limited to the terms provided in these Terms and may not be utilized by You in any other manner whatsoever.
2.4 License Restrictions. You shall not, and shall not allow others to: (i) modify, alter, amend, fix, translate, enhance or otherwise create derivative works of the Products; (ii) cause or permit the reverse engineering, disassembly, or decompilation of any portion of the Products; (iii) remove, disable, or otherwise create or implement any workaround to, any security features contained in the Products; (iv) remove, delete or alter any trademarks, copyright notices or other intellectual property rights notices of Iris.TV or its licensors, if any, from the Products; (v) copy the Products, in whole or in part, except as provided herein; (vi) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make the Products available to any third party for any reason; (vii) use the Products in violation of any applicable law, regulation or rule; (viii) disclose results of any benchmark or other performance tests to any third party without Iris.TV’s prior written consent; (ix) use the Products for purposes of competitive analysis of the Products, the development of a competing software or service or any other purpose that is to Iris.TV’s commercial disadvantage; or (x) use the Products in any other manner or for any other purpose or application not expressly permitted by these Terms.
2.5 Ownership The Products constitutes proprietary works of Iris.TV, protected by copyright and other intellectual property laws. Except for the rights granted herein, Iris.TV and its licensors retain all rights, title and interest, including all intellectual property rights, in the Products and the applicable documentation. The terms “purchase” and “sale” in reference to the Products notwithstanding, it is expressly agreed by the parties that title to the Products does not pass to You and Your rights with respect to the Products will only be that of a client.
2.6 Export Regulation. The Products, applicable documentation and any related technical data, and products utilizing the Products, applicable documentation or such technical data (collectively, “Controlled Technology”) may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, and shall not permit any third parties to, export, re-export or release, directly or indirectly any Controlled Technology to a jurisdiction or country to which the export, re-export or release of any Controlled Technology is prohibited by applicable federal law, regulation or rule. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting or re-exporting any Controlled Technology. You shall provide prior written notice of the need to comply with such laws and regulations to any person, firm or entity which it has reason to believe is obtaining any such Controlled Technology from You with the intent to export.
3 Your Data.
3.1 Iris.TV Systems and Security Obligations. If applicable, Iris.TV will employ security measures to protect Your Data, including without limitation any Personal Information in accordance with applicable industry practice and applicable laws (“Privacy and Security Policy”). Notwithstanding the foregoing, unless specifically set forth in an Order or Statement of Work, Client will not provide to Iris.TV, and Iris.TV will not collect, access, store or process, any “personally identifiable information,” defined for purposes of these Terms as information in any format identifiable to an individual, including without limitation a name, address, email address, phone number, account number, identification number, and any other actual or assigned attribute or information that could identify an individual.
3.2 Data Breach Procedures. Iris.TV maintains a data breach plan in accordance with the criteria set forth in Iris.TV’s Privacy and Security Policy and shall implement the procedures required under such data breach plan on the occurrence of a “Data Breach” (as defined in such plan).
3.3 Your Control and Responsibility. You have and will retain sole responsibility for: (a) all Your Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of You in connection with use of the Products; (c) all Your Systems; (d) the security and use of Your and your users’ access credentials; and (e) all access to and use of the Products and Iris.TV’s documentation directly or indirectly by or through Your Systems or your or your users’ access credentials, with or without Your knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
3.4 Access and Security. You shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Products; and (b) control the content and use of Your Data.
3.5 Ownership of Your Data. As between You and Iris.TV, You and its Affiliates, assigns, licensors or other respective owners, retain all right, title and interest in and to all Your Data, and any and all associated rights existing from time to time under patent, copyright, moral rights, trade secret, trademark, unfair competition, publicity rights, privacy rights, and any and all other proprietary rights now or hereafter in force and effect worldwide. Notwithstanding the foregoing, You hereby grant to Iris.TV a perpetual, fully paid-up, royalty-free, transferable and worldwide license to use, perform, display, execute, reproduce, distribute, transmit and modify (including to create derivative works) any anonymized data and other anonymized content, in any form or medium, derived from Your Data, or otherwise derived from Your or Your affiliates’ Use of the Products solely for the purposes of (a) improving the Products provided to You under these Terms and (b) improving Iris.TV’s products and services in general.
4.1 Termination. These Terms and your Use of the Products may be terminated by Iris.TV if you breach a material provision of these Terms.
4.2 Effect of Termination. Upon termination of these Terms You will (i) discontinue Use of the Products, (ii) if applicable, return all copies of the Products to Iris.TV, or (ii) if applicable, permanently delete or destroy all copies of the Products in its possession and submit to Iris.TV confirmation of such destruction.
4.3 Survival. The provisions of Section 2.4, Section 2.5, Section 3, this Section 4, Section 5, Section 6 and Section 7, Section 8 and Section 9 shall survive the termination of these Terms for any reason.
5.1 Confidential Information. By virtue of Your use of the Products, each party may receive information from the other party that is confidential and not generally available to the public. “Confidential Information” means (i) any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, including, without limitation, algorithms, business plans, client data, client lists, client names, designs documents, drawings, engineering information, financial analysis, forecasts, formulas, hardware configuration information, know-how, ideas, inventions, market information, marketing plans, processes, products, product plans, research, specifications, software, source code, trade secrets or any other information which is designated as “confidential,” “proprietary” or some similar designation and (ii) any information otherwise obtained, directly or indirectly, by a receiving party through inspection, review or analysis of the materials described in clause (i). Information disclosed orally shall be considered Confidential Information only if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Confidential Information may also include information of a third party that is in the possession of one of the parties and is disclosed to the other party under these Terms. As to Iris.TV, Confidential Information includes, without limitation, the Products, related documentation, specifications, pricing, and the terms and conditions of these Terms. Confidential Information shall remain the sole property of the disclosing party or its licensors.
5.2 Duty of Confidentiality. Except for the Products, materials and information will not be considered Confidential Information if the receiving party can establish by documentary evidence that the information is or was: (i) lawfully available to the public through no act or omission of the receiving party; (ii) in the receiving party’s lawful possession prior to disclosure by the disclosing party and not obtained either directly or indirectly from the disclosing party; (iii) lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (iv) independently developed by the receiving party. The parties agree, both during the Term and for a period of five (5) years (or, as applicable, with respect to Confidential Information that is a trade secret, for an indefinite period) after its termination, to hold each other’s Confidential Information in confidence and not to disclose such information in any form to any third party without the express written consent of the disclosing party, except to employees and consultants performing services for the benefit of the receiving party who are under a written non-disclosure agreement protecting the applicable Confidential Information in a manner no less restrictive than these Terms. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of these Terms. A receiving party facing legal action to disclose Confidential Information of the disclosing party shall promptly notify and provide the disclosing party the opportunity to oppose such disclosure or obtain a protective order and shall continue to treat such information as Confidential Information. This Section 5.2 shall not be construed as granting or conferring any rights to either party by license or otherwise, expressly or implicitly, to any Confidential Information.
6 Limited Warranty; Disclaimer.
6.1 Limited Warranty. Iris.TV warrants that (i) any services provided hereunder will be performed in a workmanlike manner, and in conformity with generally prevailing industry standards and all applicable laws, statutes, ordinances, judicial or administrative orders, rules and regulations; (ii) for a period of 90 days following delivery the Products shall operate in material compliance with all descriptions and specifications set forth in an applicable Order and in any documentation or written materials provided in writing to You by Iris.TV or its authorized resellers relating to the Products; and (iii) the Products do not and shall not: have any clock, timer, counter, or other device or code which will (w) disable or erase the Products or Your Data; (x) prevent You from fully utilizing the Products within the limitations set forth herein; (y) require action or intervention by You to allow You to utilize all or any part of the Products; or (z) contain any material bugs, viruses, worms, Trojan horses, time bombs, “spyware” or other harmful, invasive or disruptive elements or components. You must report any material deficiencies in the Products to Iris.TV in writing within ninety (90) days of delivery of the Products.
6.2 Exceptions. Notwithstanding anything to the contrary in this Section 6, the limited warranty set forth in Section 6.1 shall not apply to problems arising out of or relating to: (i) Products, or the media on which it is provided, that is modified or damaged by You, or any other software or hardware that are operated with or incorporated into the Products other than as specified in the applicable documentation or expressly authorized by Iris.TV in writing; (ii) Your or any third party’s negligence, abuse, misapplication or misuse of the Products, including any use of the Products other than as specified in the applicable documentation or expressly authorized by Iris.TV in writing; (iii) Your failure to promptly install all updates that Iris.TV has previously made available to You; (iv) the operation of, or access to, Your systems or network; (v) any open-source components, beta software, software that Iris.TV makes available for testing or demonstration purposes, temporary software modules or software for which Iris.TV does not receive a license fee; (vi) Your breach of any material provision of these Terms; or (vii) any other circumstances or causes outside of the reasonable control of Iris.TV (including abnormal physical or electrical stress).
6.3 Remedial Efforts. If Iris.TV breaches any of the warranties set forth in Section 6.1, Iris.TV may, at its sole option and expense, take any of the following steps to remedy such breach: (i) replace any damaged or defective media on which Iris.TV supplied the Products or applicable documentation; (ii) amend, supplement or replace any incomplete or inaccurate applicable documentation; (iii) repair the Products; and/or (iv) replace the Products with functionally equivalent platform or software solutions.
6.4 DISCLAIMER. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 6.1 OF THIS AGREEMENT, THE PRODUCTS ARE PROVIDED “AS IS” AND Iris.TV EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PRODUCTS, APPLICABLE DOCUMENTATION, MEDIA AND ANY OTHER SERVICES AND MATERIALS PROVIDED TO THE CUSTOMER UNDER THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, Iris.TV PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE PRODUCTS WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER PRODUCTS, APPLICATIONS, SYSTEMS OR SERVICES (EXCEPT AS EXPRESSLY SET FORTH IN THE DOCUMENTATION), OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE.
7 Limitation of Liability.
7.1 No Consequential Damages. EXCEPT WITH RESPEIN NO EVENT WILL EITHER PARTY OR THEIR AFFILIATES BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF USE, DATA, REVENUE OR PROFIT, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SUCH OTHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 Direct Damages. IN NO EVENT WILL Iris.TV’S OR ITS SUBCONTRACTORS’ OR AGENTS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ORDER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY YOU for your USE of the products PURSUANT TO an ORDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM MADE BY YOU. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
8 Governing Law. The State of Delaware law governs these Terms without regard to its conflicts of laws provisions.
9 General. These Terms are the entire agreement between You and Iris.TV and replaces all prior understandings, communications and agreements, oral or written, regarding its subject matter. If any court of law, having the jurisdiction, rules that any part of these Terms is invalid, that section will be removed without affecting the remainder of these Terms. The remaining terms will be valid and enforceable. You cannot assign or transfer ownership of these Terms to anyone without written approval of Iris.TV. However, Iris.TV may assign or transfer it without your consent to (a) an affiliate, (b) a company through a sale of assets by Iris.TV or (c) a successor by merger. Any assignment in violation of this Section shall be void.