Terms and conditions (“Terms”) for use of IRIS Clarity Software Development Kit
Last Updated: 23 May 2023
1. ACCEPTANCE OF THESE TERMS
1.1 These Terms govern the access to and use of any software development kit, including any application programming interface included (the “Products”), provided by IRIS Clarity Limited or any of its affiliates and subsidiaries (collectively “IRIS”, “us” or “we”) to you (each a “Party” and together, the “Parties”). This is a legally binding contract between you and IRIS Clarity Limited.
1.2 The “Terms” include all terms as outlined in this agreement including any additional documents, appendices, annexes referenced herein, and govern your access to and use of the Products.
1.3 References herein to the “Customer”, “you”, “your”, or “yours” refer: (a) where access to the Products is obtained for the use by end users of an entity or organisation (a “Corporate User”), to such entity or organisation and any persons (and the use of “person” in these Terms includes a natural person, corporate or unincorporated body (whether or not having separate legal personality)) accessing, using or permitted to access or use the Products on behalf of or by the Corporate User (“Authorised End Users”); and (b) where access to the Products is obtained for the use by you and Authorised End Users if you are not formally affiliated with an entity or organisation, to you and all such Authorised End Users.
1.4 You should read these terms carefully before you download, install, register with, use, or otherwise access the Products. By downloading, installing, registering with, using, or accessing the Products, or by otherwise indicating agreement or acceptance of these Terms or the Products: (a) you acknowledge that you have read, understand and formally accept to be legally bound by these Terms; and (b) if you are a representative of a Corporate User, you further confirm that you have full capacity and authority to bind the entity or organisation that you represent, and that your acceptance of these Terms legally binds that entity or organisation.
1.5 If you do not agree to these Terms, you must not access or use the Products in any way including by way of downloading, installing, or otherwise accessing the Products or making the Products accessible to other persons.
1.6 These Terms do not govern use of IRIS’ products and services, including subscription services and software applications, functionalities, tools, interfaces and documentation provided in connection therewith, made available by IRIS (“IRIS Offerings”). Please see applicable terms and conditions in relation to IRIS Offerings.
2. RIGHT TO MAKE AMENDMENTS TO THESE TERMS
2.1 IRIS may update these Terms from time to time with immediate effect at IRIS’ sole discretion. Notification may be made by direct communication or by posting changes to these Terms themselves. Your continued use of the Products following the updating of these Terms amounts to acceptance by you of the modifications.
3. TERM AND TERMINATION
3.1 These Terms shall commence on the earlier of: (a) the acceptance by you of these Terms; or (b) use by you in any way of the Products, and shall then continue in force until such date on which you enter into a new service agreement with IRIS for the provision of the Products to you (“Service Agreement”), and if such a Service Agreement is not entered into, for the duration of the period during which you have access to the Products (the “Term”).
3.2 We may immediately terminate or suspend these Terms, any rights granted herein, and/or your licences under these Terms, in our sole discretion at any time and for any reason, by providing written notice to you or revoking access to the Products. In addition, these Terms will terminate immediately and automatically without any notice if you commit a material breach of these Terms. You may terminate these Terms at any time by ceasing your access to and use of the Products, or by providing written notice to IRIS.
3.3 Upon termination or expiration of this Agreement:
(a) all rights, licences, and authorisations granted to the Customer shall immediately terminate, and the Customer shall cease all use of activities with respect to the Products, and shall destroy, and permanently erase from all devices and systems you directly or indirectly control all copies of the Products;
(b) the Customer shall immediately discontinue any use of the name, logotype, trademarks, trade names, service marks, service names, or slogans and other marks of IRIS (including but not limited to the IRIS Marks (defined below)), and any Products and associated services or materials; and
(c) the Customer shall, within thirty (30) calendar days of a written request from IRIS, either return or destroy (at IRIS’s election) any Intellectual Property (defined below) relating to IRIS.
3.4 Any termination shall be without prejudice to any rights which have accrued up to the date of termination.
3.5 Any terms that by their nature are intended to continue beyond the termination or expiration of this Agreement will survive termination.
3.6 In these Terms, the term “Intellectual Property” means all (i) copyrights (including, without limitation, the right to reproduce, distribute copies of, display and perform the copyrighted work and to prepare derivative works), copyright registrations, and applications, trademark rights (including, without limitation, registrations and applications), patent rights, trade names, mask-work rights, trade secrets, moral rights (to the extent recognized under Applicable Law), author’s rights, privacy rights, publicity rights, algorithms, rights in packaging, goodwill, and other proprietary rights, and all renewals and extensions thereof; (ii) intangible legal rights or interests evidenced by or embodied in any idea, design, concept, technique, invention, discovery, enhancement or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; and (iii) all derivatives of any of the foregoing.
4. ACCESS TO THE PRODUCTS
4.1 IRIS shall, during the Term, provide the access to the Products to the Customer on and subject to these Terms.
4.2 IRIS hereby grants to the Customer a limited, revocable, non-exclusive, non-sublicensable, and non-transferable licence to use the Products solely for the purpose of accessing the Products for the use by the Customer for the purpose of integrating such Products into the Customer’s product (“Integrated Offering”) (the “Permitted Use”) during the Term.
4.3 As between the Customer and IRIS, the Customer is solely responsible for all acts and omissions of your Authorised End Users in connection with access and use of the Products.
4.4 Except as these Terms expressly permit, the Customer shall not, and shall procure that no other person in its employ or otherwise under its direction (including its Authorised End Users):
(a) copies the Products, in whole or in part;
(b) modifies, translates, adapts, or otherwise creates derivative works or improvements of the Products, unless expressly agreed by IRIS;
(c) reverse engineers, disassembles, decompiles, decodes, or otherwise attempts to derive or gain access to the source code or any part thereof of the Products (save to the limited extent as may be permitted by law, and then only after having made written request to IRIS for the underlying information being sought);
(d) removes, deletes, alters, or obscures any trademarks or any copyright, trademark, patent, or other Intellectual Property or proprietary rights notices from the Products or any copies thereof;
(e) rents, leases, lends, sells, sublicenses, assigns, distributes, publishes, transfers, or otherwise makes available the Products, or any content, features of functionality of the Products to any other person or party, with the exception of permitted third parties expressly outlined in these Terms;
(f) uses the Products in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or any safety critical application of any type;
(g) uses the Products in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property rights or other rights of any person or entity, including but not limited to IRIS, or that violates any Applicable Law (defined below);
(h) combines or integrates the Products with any software, technology, platform, services, or materials not authorised by IRIS; or
(i) applies for any Intellectual Property rights derived from or based on the Products or the interconnection or interoperability between the Integrated Product and the Products. In the event of a breach of this Clause 4.4(i), the Customer hereby grants to IRIS a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensable, assignable right and licence to fully exercise all resulting Intellectual Property rights and to allow others to do so.
4.5 The Customer acknowledges and agrees that the Products are exclusively provided under the licence terms set out in this Agreement, and the Customer shall not acquire any ownership or interest in the Products, or any modifications made to them.
4.6 The Customer is solely responsible for (and IRIS has no responsibility to the Customer or to any third party for) any data, content, or resources that the Customer creates, transmits or displays through the Customer’s systems, and for the consequences of the Customer’s actions (including any loss or damage which IRIS may suffer) by doing so.
4.7 In these Terms, “Applicable Law” means all laws, regulations, directives, statutes, subordinate legislation, common law, and civil codes of any jurisdiction, all judgments, orders, notices, instructions, decisions, and awards of any court or competent authority or tribunal and all codes of practice having force of law, statutory guidance, and policy notes.
5. CONFIDENTIAL INFORMATION
5.1 Subject to Clause 5.3, neither Party shall divulge to any third party any information capable of being considered confidential (“Confidential Information”) and relating to the affairs, business or any information received from the other Party pursuant to these Terms.
5.2 Neither Party shall use the other Party’s Confidential Information for any purpose other than to perform its obligations under these Terms.
5.3 Each Party may disclose the other Party’s Confidential Information: (a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the Party’s obligations under these Terms. Each Party shall procure that its employees, officers, representatives, or advisers to whom it discloses the other Party’s Confidential Information comply with this Clause 5; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
6. CHANGES TO THE PRODUCTS
6.1 IRIS, may in its sole discretion, provide updates to the Products to the Customer, which may include upgrades, bug fixes, new features or other such changes (“Updates”). Such Updates must be uploaded to the Integrated Product as soon as reasonably possible. If there is a delay in running the update, the Customer accepts and acknowledges that this may impact the provision, and functionality of the Products and the Integrated Offering, and the Products and Integrated Offering may not operate properly, and IRIS shall not be responsible, or in breach of its obligations should this occur.
6.2 IRIS may also provide optional updates or enhancements to the Products (“Enhancements”), which may include but are not limited to additional functionality or transformation of the features to the Products. In these circumstances, the Customer agrees and acknowledges that:
(a) it will upload the Enhancements to the Integrated Product as soon as reasonably possible;
(b) the making and/or provision of any Enhancements to the Products is within IRIS’ sole discretion; and
(c) should any Enhancements to the Products result in IRIS introducing a tier or sub-set of the Products, or an additional tier, then IRIS shall have the right to determine to which tier or sub-set it shall transition the Customer, having regard to the original functionality of the Products at the commencement of these Terms. IRIS shall use its reasonable endeavours to provide the Customer with thirty (30) days’ prior notice of any such transition.
6.3 IRIS may modify or change the features within the Products. Updates may modify, discontinue, or delete some existing content or features of the Products, and the Customer acknowledges and agrees that IRIS has no obligation to ensure the continuance of existing features providing that the general functionality remains operational.
6.4 The Customer is responsible for backing up all material on its device or system and IRIS has no responsibility or liability for any material that is lost or corrupted during any upgrade or enhancement, including any material related to the Products.
6.5 The Customer agrees that it is its sole obligation to obtain any required licences, permissions, consents and agreements necessary for the lawful use of music, conversations, sound recordings or other such material that is processed, stored or used in association with the Products and Integrated Products.
7. CHARGES
7.1 You shall pay any fees as agreed in writing between you and IRIS.
7.2 Where no fees are payable, you acknowledge and agree that:
(a) no licence fees or other payments will be due under these Terms in exchange for the rights granted under these Terms; and
(b) this fee arrangement is made in consideration of the mutual covenants set forth in these Terms, including, without limitation, the disclaimers, exclusions, and limitations of liability set forth herein.
7.3 Notwithstanding Clause 8.2, IRIS reserves the right to start charging for access to and use of the Products at any time.
8. DATA PROTECTION
8.1 The Parties acknowledge and agree to the extent that either Party processes personal data in connection with this Agreement, that Party shall comply with its obligations pursuant to applicable Data Protection Legislation (which means all applicable data protection and privacy legislation in force from time to time or equivalent national laws and regulations relating to the privacy, confidentiality, security and protection of personal data, including the GDPR (as defined in the Data Protection Act 2018) as it forms part of the laws of the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018; the Data Protection Act 2018 (and regulations made thereunder); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426), and all other relevant legislation and regulatory requirements in force from time to time);
8.2 The Customer warrants that, to the extent it provides any Authorised End User personal data to IRIS, the Customer has lawfully captured such personal data and has the legal right to process it and share it with IRIS for the purposes envisaged by these Terms.
8.3 The Customer shall, upon reasonable request from IRIS, assist IRIS in providing the data subjects with all information required pursuant to the Data Protection Legislation.
8.4 We may collect certain information through the Products or the Integrated Offering about you or any of your Authorised End Users, employees, contractors, or agents, including but not limited to use or installation of the Products, versions downloaded, debugging data and other usage information (collectively “Usage Information”). By accessing, using, and providing information to or through the Products or the Integrated Product, you consent to all actions taken by us with respect to your information in compliance with the then-current version of our privacy notice, available at: https://bit.ly/IRISprivacynotice, and you shall not block Company’s collection of such Usage Information.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 The Parties acknowledges and agree that:
(a) the Products are licensed, not sold, to the Customer by IRIS, and the Customer does not have under or in connection with these Terms, any ownership interest in the Products or in any related Intellectual Property rights;
(b) as between IRIS and the Customer, IRIS and its licensors are the sole and exclusive owners of all right, title, and interest in and to the Products and any modifications made to it/them (as applicable), including all Intellectual Property rights relating thereto, subject only to the limited licence granted under these Terms. IRIS shall in particular retain all Intellectual Property related rights in connection with the names, branding, logo get up, look and feel, and descriptions relating to the Products (“IRIS Marks”);
(c) as between IRIS and the Customer, the Customer and its licensors are the sole and exclusive owner of all right, title and interest in and to the Integrated Product, including all Intellectual Property rights relating thereto, excluding the rights outlined in Clause 9.1(b). The Customer shall in particular retain all Intellectual Property related rights in connection with the names, branding, logo get up, look and feel and descriptions relating to the Integrated Product (“Customer Marks”); and
(d) the Customer hereby unconditionally and irrevocably assigns to IRIS its entire right, title, and interest to any Intellectual Property rights that Customer may now or hereafter have in or relating to the Products (including any rights in derivative works or patent improvements relating to them).
9.2 The Customer shall, during the Term:
(a) use best endeavours to safeguard the Products from infringement, misappropriation, theft, misuse, or unauthorised access;
(b) take all such steps as IRIS may reasonably require to assist IRIS in maintaining the validity, enforceability, and IRIS’s ownership of the Intellectual Property rights, including in relation to IRIS’ copyright notices (as provided by IRIS to the Customer) on the Integrated Products; and
(c) promptly notify IRIS in writing if the Customer becomes aware of: (i) any actual or suspected infringement, misappropriation, or other violation of IRIS’ Intellectual Property rights in or relating to the Products; or (ii) any claim that the Products, including any production, use, marketing or other disposition of the Products, in whole or in part, infringes, misappropriates, or otherwise violates the Intellectual Property rights or other rights of any third party.
9.3 If you or any of your Authorised End Users sends or transmits any communications or materials to IRIS suggesting or recommending changes to the Products or the IRIS Offering, including new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), all such Feedback is and will be treated as non-confidential. You hereby assign to IRIS on your behalf, and on behalf of your Authorised End Users, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other Intellectual Property rights contained in the Feedback, for any purpose whatsoever, although IRIS is not required to use any Feedback.
10. INDEMNIFICATION
10.1 The Customer shall indemnify, defend, and hold harmless IRIS, and each of its respective officers, directors, employees, agents, subcontractors, successors, and permitted assigns (“IRIS Indemnified Parties”) from and against any losses incurred by any of the IRIS Indemnified Parties resulting from any claim, action, cause of action, demand, lawsuit, arbitration, proceeding litigation or investigation of any nature, civil, criminal, administrative, regulatory or otherwise (“Claim”), by a third party:
(a) that any Intellectual Property rights or other right of any third party, is or will be infringed, misappropriated, or otherwise violated by any:
(i) use or combination of the Products by or on behalf of the Customer or any Authorised End User, that is not in accordance with these Terms;
(ii) abuse, misapplication, misuse or act or omission by or on behalf of the Customer, or any of its personnel, with respect to the Products, or otherwise in connection with these Terms; or
(iii) use of the Products by or on behalf of Customer, or any of its Authorised End Users, that is outside the purpose, scope or manner of the Permitted Use.
11. REPRESENTATIONS AND WARRANTIES
11.1 Each Party represents and warrants to the other that:
(a) it is duly constituted and validly existing under the laws of the country and (as applicable) state of its incorporation or organisation;
(b) it has all necessary legal right and full power and ability to execute these Terms and to perform its obligations therein;
(c) no authorisation or approval from any third party is required in connection with such Party’s execution, delivery or performance of this Agreement;
(d) this Agreement constitutes legal, valid, and binding obligations, enforceable against it in accordance with its terms, and does not breach any other agreement to which such Party is bound; and
(e) it does and will comply with applicable laws, rules, and regulations in the carrying out of its obligations under these Terms;
11.2 IRIS warrants that the Products will function in substantial conformance with their associated specifications, but does not warrant that they will be entirely error free.
11.3 Except for the limited warranties set out in this Clause 12, all licensed Products, information, materials, and services provided by IRIS are on an “AS-IS” basis. IRIS hereby specifically excludes to the fullest extent permitted by law, any representations, conditions or warranties, express or implied, regarding the Products.
11.4 Notwithstanding the foregoing, IRIS makes no warranty of any kind that the licensed Products will meet the Customer’s requirements, operate without interruption, be compatible or work with any software, or systems, or be accurate, or error free.
12. LIABILITY
12.1 UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), NOR IN RELATION TO LOSS OF REVENUE, PROPERTY DAMAGE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION.
12.2 SUBJECT TO CLAUSE 12.1, THE TOTAL LIABILITY OF IRIS, OR ANY IRIS AFFILIATE, IN RESPECT OF ALL LOSS OR DAMAGE ARISING UNDER OR IN CONNECTION WITH THE TERMS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE SHALL BE LIMITED TO THE AVERAGE AMOUNTS PAID TO IRIS IN CONNECTION WITH THESE TERMS IN EACH YEAR OF THE TERM (WHERE THE AVERAGE AMOUNT SHALL BE DETERMINED BY DIVIDING THE TOTAL AMOUNT PAID TO IRIS BY YOU ON THE DATE OF THE CAUSE OF ACTION ARISES BY THE TOTAL NUMBER OF MONTHS SINCE THE COMMENCEMENT DATE, AND MULTIPLYING THE RESULT BY 12).
12.3 THE FOREGOING DOES NOT LIMIT OR EXCLUDE, ANY LIABILITY FOR DEATH OR PERSONAL INJURY, FRAUD, FRAUDULENT MISREPRESENTATION, BREACHES BY YOU IN RESPECT OF IRIS-RELATED INTELLECTUAL PROPERTY, ANY INDEMNITIES, OR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
13. GENERAL
13.1 Interpretation
(a) Unless the context otherwise requires:
(i) words in the singular shall include the plural and in the plural shall include the singular; and
(ii) a reference to one gender shall include a reference to the other genders.
(b) Unless expressly provided otherwise in these Terms a reference to legislation or a legislative provision shall include all subordinate legislation made under that legislation or legislative provision.
(c) Any words including the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase, or term preceding those terms.
(d) References to writing or written include any legible reproduction of words delivered in permanent and tangible form including email.
(e) References to these Terms or any agreement or other instrument (other than an enactment or statutory provision) shall be deemed to be references to that agreement or instrument as from time to time amended, varied, supplemented, substituted, novated, or assigned.
13.2 Force Majeure. If either Party is prevented or delayed in the performance of its respective responsibilities under these Terms by circumstances beyond that Party’s reasonable control, then such Party shall be excused from the performance of its affected obligations under this Agreement for so long as such circumstances prevent or delay the performance of the relevant obligations. Such circumstances include but are not limited to strikes, lockouts, or other industrial action, riot, invasion, war, fire, explosion, storm, flood, earthquake, famine, bad weather, or other natural physical disaster, and any other cause which is beyond the control of the Parties.
13.3 Third Party Rights. No term or provision of this Agreement is intended to be enforceable by anyone other than the Parties to these Terms.
13.4 Waiver. Failure by either Party to exercise or enforce any right conferred by these Terms shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof or of any other right on any other occasion.
13.5 Compliance. Each Party shall comply with Applicable Law in relation to the carrying out of its obligations under these Terms.
13.6 Assignment. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over, or deal in any other manner this Agreement or any of its rights and obligations under these Terms to a third party without IRISs’ prior written consent.
13.7 Entire Contract. These Terms represent the entire understanding between the Parties in relation to the arrangements described herein and supersede all previous contracts, agreements and representations made by or between the Parties whether oral or written.
13.8 Notice
(a) Any notice or other communication given to a Party under or in connection with these Terms shall be in writing, addressed to that Party at its registered office or such other address as that Party may have specified to the other Party in writing in accordance with this Clause 14, and shall be delivered personally, or sent by pre-paid first class post or other next Business Day delivery service, by courier or email (to such email address specified to the other Party in writing).
(b) A notice shall be deemed to have been received; (a) if delivered personally, when left at the address, (b) if sent by pre-paid first class post or other next Business Day delivery service at 9.00 am on the second Business Day after posting, (c) if delivered by courier, on the date and at the time that the courier’s delivery receipt is signed, or (d) if sent by email, one Business Day after transmission.
(c) In these Terms,”Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
13.9 Further assurances. Each of the Parties shall, at their own costs and expense, promptly do all such further acts and things and execute such other documents as may from time to time be reasonably required for the purpose of giving effect to the full benefit of the provisions of these Terms.
13.10 Export Regulation. The Customer shall not, directly or indirectly, export, re-export, or release IRIS to, or make the Products accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. The Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export licence or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Products available outside the United States.
13.11 No Partnership. Nothing in these Terms or in any document referred to in them shall constitute any of the Parties a partner or agent of the other Party, establish any partnership or joint venture between any of the Parties, or authorise either Party to make or enter in any commitments for or on behalf of the other Party.
13.12 Severance. If any provision or part of these Terms is void or unenforceable due to any Applicable Law, it shall be deemed to be deleted, and the remaining provisions of the Terms shall continue in full force and effect.
13.13 Governing Law and Jurisdiction. These Terms are governed by the laws of England and Wales, and any disputes arising shall be subject to the exclusive jurisdiction of the courts of England and Wales.