IrisMed AI Product Terms of Use
Last updated: May 7, 2024
IrisMed, Inc. (“IrisMed”) requires all users of its products and services, including any entity executing a purchase agreement (“Customer”) granting a license to use the IrisMed AI product (“Product”) and/or related services (“Services”) that references these terms (an “Agreement”) and its Authorized Users as defined in the Agreement, to accept and adhere to these terms of use (“Terms”).
These Terms use the same definitions as the Agreement unless otherwise indicated herein, govern the use of the Product and Services, and are accepted by either executing an Agreement or Order Form (as defined below) that references these Terms or by accessing or using the Product or Services. IrisMed may update these Terms from time to time by giving written notice to each Customer, and each Customer will have 30 days to reject the updated terms by providing written notice to IrisMed. If Customer continues to use the Product or receive the Services following such period, the updated Terms will be deemed accepted.
1. Agreement and Order Forms
Each Agreement will include details about the Product and Services being ordered and the associated fees and any additional terms as applicable. Each Agreement may be supplemented by an addendum providing additional access to the Product and/or providing additional Services (each an “Order Form”). Additional Order Forms will be numbered sequentially (e.g. Order Form 1, 2, 3, etc.) and upon the Effective Date on any Order Form, each Order Form will be deemed an addendum to the Agreement and will be subject to all of the terms and conditions herein. If the Agreement is modified so that Customer’s subsidiaries or affiliates may also order Products and Services by executing an Order Form signed by such subsidiary or affiliate and IrisMed, then such subsidiaries or affiliates and their Authorized Users shall also be bound by the Agreement, the relevant Order Form and these Terms.
2. Product and Services
2.1. Rights for Use. The license rights to the Product granted under each Agreement shall include a temporary, limited, nonexclusive, nontransferable, non-sublicensable license to use within the United States (i) the machine-readable object code version of the Product for use on desktop computers running Microsoft Windows (the “Product Software”) to access the IrisMed AI servers, (ii) the published user manuals and documentation that IrisMed makes generally available for the Product ("User Guide"), (iii) the fixes, updates, upgrades or new or customized versions of the Product or User Guide that IrisMed makes generally available (“Enhancements") and (iv) any copy of the Product Software, User Guide or Enhancements. Customer shall be responsible for each Authorized User’s use of the Product, Product Software, User Guide and Enhancements in accordance with the terms of this Agreement. Nothing in these Terms will entitle Customer to receive the source code of the Product Software or Enhancements, in whole or in part.
2.2. User Accounts. Access to or use of certain portions and features of the Product may require Authorized Users to create an account (“User Account”). Customer represents and warrants that all information provided by it and its Authorized users in establishing each User Account will be current, accurate, complete, and not misleading. User Accounts are not transferrable. Customer further represents and warrants that it will maintain and update all information provided as to each User Account, and will promptly deactivate User Accounts for Authorized Users who no longer meet the Authorized User requirements described in the Agreement. Customer is entirely responsible for maintaining the security and confidentiality of its User Account(s), including passwords and physical access restrictions. Customer agrees to promptly notify IrisMed if Customer becomes aware of or suspects any unauthorized use of its User Accounts, including any attempted unauthorized access. Customer is responsible for all activities that occur through its User Account(s). Any sharing of User Accounts to reduce the number of licenses required is strictly prohibited.
2.3. Restrictions on Use. In accessing or using the Product and Services, Customer will not: (a) resell, lease, encumber, sublicense, distribute, publish, transmit, transfer, assign or provide such access or use to any third party in any medium whatsoever; (b) devise specifications from, reverse engineer, reverse compile, disassemble, or create derivative works based on the Product or Services; (c) apply systems to extract or modify information in the Product or Services using technology or method such as those commonly referred to as “web scraping,” “data scraping,” or “screen scraping”; (d) knowingly input or post through or to the Product or Services any data or content that is illegal, threatening, harmful, lewd, offensive, or defamatory or that infringes the intellectual property rights, privacy rights or rights of publicity of others, (e) store data in the Product or Services that is regulated by Payment Card Industry Data Security Standards (f) input or transmit through or to the Product or Services any virus, worm, Trojan Horse, or other mechanism that could damage or impair the operation of the Product or Services or grant unauthorized access thereto; (g) use or access the Product or Services for purposes of monitoring the availability, performance or functionality of the Product or Services or for any other benchmarking or competitive purposes; (h) cause, assist, allow or permit any third party to do any of the foregoing; (i) use the Product or Services to compete with IrisMed in any way; or (j) permit any third party to use or access the Product or Services other than Customer’s Authorized Users.
2.4. Audit. IrisMed shall have the right to monitor Customer’s use of the Product and Services to verify compliance with the Agreement, any Order Forms and these Terms by electronically monitoring Customer’s and its Authorized Users’ activity or by conducting or having IrisMed’s appointed auditor conduct an on-site audit upon reasonable notice during normal business hours, not more than once per year. If monitoring or audit activities reveal the number of Authorized Users is in excess of Customer’s paid licenses or that Customer is using the Product or Services in excess of any license limitations as specified in any relevant Agreement or Order Form, Customer will pay (a) IrisMed’s cost for the audit, if any, (b) additional Fees due to IrisMed based on the first date of Customer’s breach, and (c) a penalty of ten percent (10%) of the additional fees due. Further, by providing written notice to Customer, IrisMed reserves the right to increase the Fees under the Agreement to align with Client’s historical usage and then-current pricing of the appropriate license.
2.5. Maintenance. Customer agrees that IrisMed may install Enhancements to the Product Software and IrisMed AI Servers, and/or provide Customer with Enhancements to the Product Software, as IrisMed deems necessary from time to time. Unless Customer has purchased additional support from IrisMed, Customer shall promptly install any Enhancements provided by IrisMed, and IrisMed shall not be responsible for the operation of the Product unless and until such Enhancements have been properly installed by Customer. Failure to correctly install any Enhancements shall not relieve Customer of its obligations under the Agreement, any Order Form, or these Terms.
2.6. Support. Unless otherwise provided in an Agreement or an Order Form, IrisMed shall provide support assistance to one designated technical support contact of Customer or, in his or her absence, to one designated back-up technical support contact, and Customer shall provide First Level Support. First Level Support means direct interaction with Authorized Users regarding (a) the use and operation of the Product, (b) the intake and classification of all inquiries regarding suspected errors, and (c) the installation of error corrections, workarounds, and Enhancements. Customer’s designated contact may access technical support including IrisMed’s knowledge base, FAQs, and self-service troubleshooting guides via IrisMed’s website or by contacting IrisMed’s Help Desk weekdays except for major holidays during IrisMed’s normal working hours 9am to 5pm PST via email at han@irismed.co.
2.7. Security. IrisMed will use commercially reasonable efforts to secure the Product and Services from unauthorized access, alteration, or use and other unlawful tampering, and will:
[ ] comply with the Privacy Policy.
[ ] maintain annually updated reports or annual certifications of compliance with the following:
[ ] ISO 27001 [ ] Penetration testing
[ ] SOC 2 Type I [ ] PCI Level 1
[ ] SOC 2 Type II [ ] PCI Level 2
[ ] HITRUST [ ] FedRAMP Authorized
[ ] Other: [fill in]
2.8. Applicable Law. Customer’s access to and use of the Product and Services is subject to all applicable international, federal, state and local laws, regulations and rules including those relating to data privacy and protection, the Health Insurance Portability and Accountability Act (“HIPAA”), and applicable Medicare and third-party payer rules and policies related to treatment, reimbursement, and billing procedures (“Applicable Law”). “Applicable Data Protection Laws” means the Applicable Law that governs how companies may process or use an individual’s personal information, personal data, personally identifiable information, or other similar term (“Personal Data”). Customer may not use the Product or Services or any information, data, or Customer Data (as defined below) in violation of or to violate Applicable Law. Ensuring Customer’s use of the Product and Services is compliant with Applicable Law is the responsibility of Customer, and Customer is responsible for ensuring medical necessity, accurately documenting medical services rendered, and accurate billing. IrisMed shall at all times while these Terms are in effect comply with Applicable Law while providing the Product and Services.
2.9. Suspension. IrisMed has the right to immediately suspend Customer’s or any Authorized User’s use of the Product and/or Services (a) in order to prevent damage to or degradation of the Product and/or Services, or unauthorized or non-compliant use, or (b) for operational reasons such as repair, maintenance, or improvement or because of any emergency, or (c) if, following notice from IrisMed, Customer has failed to pay any amounts past due and owing. In the case of (a) or (b) IrisMed will give Customer prior notice if reasonable, and will ensure that access to the Product and Services is restored as soon as possible after the event giving rise to suspension has been resolved to IrisMed’s reasonable satisfaction. In the case of (c), unless otherwise provided in the Agreement or an Order Form, IrisMed shall have the right to terminate the relevant Order Form or Agreement, or to restore access, at its sole option.
3. Customer Data
3.1. Data Licenses. All electronic data or information submitted to and stored in the Product and Services by Customer and its Authorized Users is “Customer Data” and as between IrisMed and Customer, all title and intellectual property rights in and to the Customer Data remain with Customer. Customer acknowledges and agrees that the Customer Data may contain Personal Data, and that in connection with the provision of the Product and Services, IrisMed may process, store, and maintain Customer Data for a period of time consistent with IrisMed’s standard business processes. Following expiration or termination of the Agreement, relevant Order Form or User Account, as applicable, IrisMed may deactivate the applicable User Account(s) and delete any data therein including any Customer Data. Customer grants IrisMed the right to host, use, process, display and transmit Customer Data to provide the Product and Services pursuant to and in accordance with the Agreement and any applicable Order Form, and the Business Associate Agreement previously executed by Customer and IrisMed (or, if none, then the Business Associate Agreement attached as Exhibit A hereto). Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Data, and for obtaining all rights related to Customer Data required by IrisMed to provide the Product and perform the Services, and Customer represents and warrants that it has obtained all necessary permissions for IrisMed to process the Customer Data via the Product and Services. Provision of the Product and Services by IrisMed does not replace the need for Customer to maintain regular backups of Customer Data or redundant data archives, and IrisMed shall have no obligation or liability for any loss, alteration, destruction, damage, corruption, or recovery of Customer Data.
3.2. Data Import. If specified in an Agreement or Order Form, Customer will provide any initial Customer Data to be imported into the Product and Services by IrisMed in an acceptable format as specified by IrisMed no later than 30 days after the Effective Date of the Agreement or Order Form. Customer acknowledges that the Product and Services will not function as described by IrisMed if Customer Data provided to IrisMed for import, or entered by Customer or its Authorized Users at any time, is improperly formatted or otherwise incompatible, corrupt, or contains errors or malicious code.
3.3. Data Export. If specified in an Agreement or Order Form, IrisMed will provide a Customer Data export file to Customer via IrisMed’s designated secure delivery method as feasible upon written request. Customer agrees that any such Customer Data export files will be provided by IrisMed as-is, and that IrisMed is not responsible for any errors or omissions in the export file, or for any corruption of Customer Data that may occur during such export.
3.4. Aggregated Data. Customer agrees that, subject to IrisMed’s confidentiality obligations in these Terms, IrisMed may (a) capture Customer Data and data regarding the use of the Product and Services by Customer and its Authorized Users, (b) collect metrics and data included in the Customer Data, and (c) aggregate and analyze any Customer Data, other data, and metrics collected pursuant to subsections (a) and/or (b) of this sentence together with any KPI’s described in an Agreement or Order form (collectively, the “Aggregated Data”). Customer agrees that IrisMed may use, reproduce, distribute, and prepare derivative works from the Customer Data as incorporated into Aggregated Data, provided that under no circumstances will IrisMed use the Aggregated Data in a way that identifies Customer or its Authorized Users as the source of the data or in violation of Applicable Law.
3.5. Machine Learning. Usage data, Customer Data, and Aggregated Data may be used to develop, train, or enhance artificial intelligence or machine learning models that are part of the Products and Services, including third-party components, and Customer authorizes IrisMed to process its usage data and Customer Data for such purposes. However, (a) usage data and Customer Data must be aggregated before it can be used for these purposes, and (b) IrisMed will use commercially reasonable efforts consistent with industry standard technology to de-identify usage data and Customer Data before such use. Nothing in this section will reduce or limit IrisMed’s obligations regarding Personal Data that may be contained in usage data or Customer Data under Applicable Laws. Due to the nature of artificial intelligence and machine learning, information generated by these features may be incorrect or inaccurate. Product features that include artificial intelligence or machine learning models are not human and are not a substitute for human oversight.
3.6. Data Processing and Transfer.
This Agreement constitutes Customer’s instructions to IrisMed to process Customer Data. IrisMed and its sub-processors as defined by Applicable Data Protection Laws, will only process Customer Data to provide the Product and Services, and to fulfill IrisMed’s obligations and exercise IrisMed’s rights under the Agreement, any Order Forms, and these Terms. Customer agrees that IrisMed and its sub-processors may transfer, store, and process Customer Data in locations other than Customer’s country. To the extent that IrisMed is, on behalf of Customer, processing Customer Data that is subject to Applicable Data Protection Laws that require it, Customer agrees that these Terms may be supplemented by an appropriate Data Processing Agreement and/or other appropriate documentation, which shall be in compliance with such Applicable Data Protection Laws.
4. Third Party Services
Except as enabled by the Product’s functionality or otherwise agreed by IrisMed in writing, Customer is prohibited from linking to the Product and Services, framing all or any portion of the Product or Services, and extracting data of any kind from the Product and Services. IrisMed reserves the right to disable any unauthorized links or frames. IrisMed will not be responsible and expressly disclaims any liability for any third party products and services that Customer may use or connect to through the Product or Services, including any responsibility for the availability of such third-party products and services. If Customer activates any APIs or links to enable data sharing through the Product or Services with any third parties or directs IrisMed to do so on its behalf, Customer thereby authorizes IrisMed to send and receive Customer Data with any such third party and represents and warrants to IrisMed that Customer has all appropriate right and title to grant such authorization. Customer will be solely responsible for any third-party fees related to the third-party products and services and for compliance with any applicable third party terms and conditions.
5. Intellectual Property
5.1. Proprietary Rights. IrisMed’s intellectual property, including without limitation the Product, its trademarks and copyrights and any service marks, and any modification thereof, are and will remain the exclusive property of IrisMed and its licensors. No licenses or rights are granted to Customer except for the limited rights expressly granted in the Agreement and/or Order Form and these Terms.
5.2. Feedback. Customer agrees that advice, feedback, criticism, and insights regarding the Product and Services including workflows and templates developed by Customer stored within the Product or Services and comments provided to IrisMed related to the Products and Services (“Feedback”) are given to IrisMed in consideration of IrisMed’s provision of the Product and Services, may be used by IrisMed freely and without restriction, and will not enable Customer to claim any interest, ownership or royalty in IrisMed’s intellectual property. Customer and each of its Authorized Users hereby irrevocably assigns to IrisMed its entire right, title, and interest in and to the Feedback without restriction.
6. Payment and Taxes
6.1. Payment. Fees are set forth in the Agreement or applicable Order Form (“Fees”). Unless otherwise provided therein:
(a) IrisMed will send invoices to the contact(s) provided in the Agreement or relevant Order Form, and Fees are due and payable by Customer within ten (10) days of the date of the invoice. All Fees are payable in United States Dollars, and are non-refundable.
(b) Upon execution of an Agreement or Order Form that includes professional services, IrisMed will not be obligated to perform any professional services until Fees related to those professional services are paid in full.
(c) Any Product license Fees as set forth in an applicable Agreement or Service Order will be billed monthly in advance.
(d) Fees owed by Customer to IrisMed may be automatically debited from the bank account or other electronic payment method for which Customer has provided applicable account information, and Customer hereby authorizes IrisMed to perform all such debits when Fees are due.
(e) An administrative late charge (“Late Charge”) of $35.00 will be charged for each electronic transaction that is declined and each returned check.
(f) Undisputed amounts that are past due will be subject to an interest charge (“Interest”) of 1.5% per month or the maximum rate permitted by law, whichever is less.
(g) Customer waives the right to dispute billing errors or discrepancies that are not reported to IrisMed in writing within thirty (30) days of the invoice date. Customer agrees to pay all reasonable costs of collection including collection agency and attorneys’ fees in the event that any amount is not paid when due.
(h) IrisMed, upon written notice to Customer, which may be in the form of an invoice, will have the right to change the Fees effective any time, including without limitation the right to charge additional Fees for new or additional features or functions of the Product or Services, and/or Fees for features or functions that have previously been offered at no charge.
6.2. Automatic Payment Terms. Customer authorizes IrisMed to charge the credit card information provided, or debit the bank account information provided, as applicable, beginning as of the Effective Date of the applicable Agreement or Order Form, and monthly thereafter, for all applicable fees due as defined therein. Customer understands that this authorization will remain in effect until it is canceled in writing and agrees to notify IrisMed in writing of any changes in Customer’s account information or termination of this authorization at least fifteen (15) days prior to the next billing date. If the payment date falls on a weekend or holiday, Customer understands that payments may be executed on the next business day. For Automated Clearing House (“ACH”) debits to a checking/savings account, Customer understands that because these are electronic transactions, these funds may be withdrawn from Customer’s account as of the payment date, and that Customer will have limited time to report and dispute errors. If an ACH transaction is returned for Non Sufficient Funds (“NSF”) Customer understands that IrisMed may at its discretion attempt to process the charge again within 30 days, and agrees to an additional Late Charge for each attempt returned NSF, which will be initiated as a separate transaction from the authorized payment no less than twenty-four hours apart. Customer certifies that the bank account information provided is enabled for ACH transactions, and additionally agrees to reimburse IrisMed for all penalties and fees incurred as a result of Customer’s bank rejecting ACH debits or credits as a result of the account not being properly configured for ACH transactions. Both parties agree to be bound by National Automated Clearinghouse Association (“NACHA”) Operating Rules as they pertain to these transactions. Customer acknowledges that the origination of ACH transactions to its account must comply with Applicable Law. Customer agrees not to dispute these scheduled transactions with its bank or credit card provider so long as the transactions correspond to the terms indicated in the relevant Agreement or Order Form and these Terms.
6.3. Upgrades and Downgrades. Unless otherwise agreed in writing, an upgrade or downgrade of Customer’s access to the Product or Services, including but not limited to Customer requests to remove Authorized Users from Customer’s account, or early termination of an Order Form or Agreement for reasons other than IrisMed’s proven breach thereof, will not result in a refund to Customer. Upgrades are effective immediately, and IrisMed will charge Customer for any associated Fee increases as of the date that the upgraded features are made available to Customer.
6.4. Taxes. Unless otherwise provided in an Agreement or an Order Form, IrisMed Fees do not include any local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sales, use or withholding taxes (“Taxes”). All Taxes, other than Taxes based on income to IrisMed, imposed or assessed by reason of the existence of an Agreement, Order Form, or these Terms, or performance by IrisMed or Customer thereunder shall be paid by Customer. IrisMed may require Customer to pay any such Taxes as they fall due, and may invoice Taxes to Customer as required by Applicable Law, and Customer will pay such Taxes unless Customer provides IrisMed with a valid tax exemption certificate from the appropriate taxing authority. Customer agrees to defend, indemnify, and hold harmless IrisMed from all claims and liability arising from Customer's failure to report or pay such Taxes as described in Section 11.
6.5. Travel and Expenses. Unless otherwise provided in an Agreement or an Order Form, if Customer and IrisMed mutually determine that travel is required in relation to IrisMed’s provision of the Product or Services, any such travel and related expenses including the cost of reasonable transportation, lodging and meals (“Travel and Expenses”) shall be paid by Customer according to the schedule set forth in Exhibit B. Fees for Travel and Expenses to be paid by Customer are subject to Customer’s prior written approval if more than $500 for any trip, and will be billed to Customer separately as described in Exhibit B. If Customer cancels or reschedules any travel that has already been approved by Customer, Customer will reimburse IrisMed for any nonrefundable Travel and Expenses and any cancellation and change Fees related to such travel as billed to Customer by IrisMed.
7. Term and Termination
7.1. Term. These Terms will be effective as of the sooner of the effective date listed in the Agreement or relevant Order Form, or the date when access to or use of the Product or Services occurs (the “Effective Date”). These Terms shall remain in effect until either (a) replaced with new Terms by IrisMed, (b) terminated as permitted herein, or (c) the Agreement and all executed Order Forms have expired or been terminated, and all use of the Product and Services by Customer and its Authorized Users has ceased.
7.2 Renewals. Unless otherwise stated in the Agreement or an Order Form, the initial term of any Product license granted (“Initial License Term”) will be for twelve (12) months, and will automatically renew for successive periods equal to the initial term (each, a “Renewal License Term”) unless cancelled by either party in accordance with the Agreement, Order Form, or these Terms.
7.3. Termination. Unless otherwise stated in the Agreement or an Order Form, either party may terminate an Initial or Renewal License Term by providing thirty (30) days’ written notice prior to the end of the then current Initial License Term or Renewal License Term, or immediately upon written notice (a) in the case of any material breach by the other party when the breaching party has failed to cure such breach within thirty (30) days of receipt of written notice from the non-breaching party describing the breach, or (b) if the other party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such party (except for involuntary bankruptcies which are dismissed within 60 days), or has a receiver or trustee appointed for substantially all of its property.
7.4. Effects of Termination. Unless otherwise stated in the Agreement or an Order Form, upon the expiration or termination of the same or Customer’s or an Authorized User’s license or authority to use the Product or access the Services for any reason: (a) Customer and/or the relevant Authorized User(s) will immediately cease using the Product and Services; (b) IrisMed may, at its sole option, either destroy or retain Customer Data for up to thirty (30) days or as otherwise required by Applicable Law or its records retention or archival policies or practices (and Customer acknowledges that destroyed data cannot be recovered, and agrees that IrisMed will have no liability to Customer for such destruction); (c) upon request, each party will return or destroy all Confidential Information of the other party, provided, that each party may retain one copy of the Confidential information of the other party as necessary to comply with Applicable Law or its records retention or archival policies or practices (and such retained Confidential Information will remain subject the non-disclosure obligations in this Agreement); and (d) any unpaid, undisputed amounts due through termination will become immediately due and payable.
7.5. Termination for Customer Breach, and Effects. Unless otherwise stated in the Agreement or an Order Form, if Fees owed by Customer are past due by more than ninety (90) days, or Customer’s other material breach of the Agreement, Order Form or these Terms remains uncured after being given the required notice and opportunity to cure, IrisMed will have the option to terminate the Agreement and/or Order Form and/or these Terms immediately upon written notice to Customer and to charge Customer a “Final Payment” calculated as the amount that IrisMed would have been due from Customer if not for such breach. The parties further agree that this Final Payment does not constitute a penalty, and that this Final Payment is a reasonable estimate considering the anticipated harm caused by Customer’s breach.
7.6. Survival. Any provisions of the Agreement, Order Forms, and these Terms that expressly, or by implication, are intended to survive its termination or expiration will survive and continue to bind the parties, including without limitation provisions relating to confidentiality, representations and warranties, indemnification, limitations on liability, intellectual property, and Customer’s payment obligations.
8. Confidential Information
8.1. Confidential Information. “Confidential Information” means any information disclosed by one party to the other whether orally or in writing that is designated as confidential or that reasonably should be understood by the receiving party to be confidential, notwithstanding the failure of the disclosing party to designate it as such. Confidential Information may include information that is proprietary to a third party and is disclosed by one party to another pursuant to the Agreement, an Order Form, or these Terms. The Products and Services, all features and functions thereof and related pricing and product plans are the Confidential Information of IrisMed.
8.2. Non-Disclosure. Each party agrees to maintain the confidentiality of the other party’s Confidential Information with the same security and measures it uses to protect its own Confidential Information of a similar nature (but in no event less than reasonable security and measures) and not to use such Confidential Information except as necessary to perform its obligations or exercise its rights under the Agreement, Order Forms and these Terms. The receiving party may disclose Confidential Information of the disclosing party to those employees, officers, directors, agents, affiliates, consultants, Authorized Users, and suppliers who need to know such Confidential Information for the purpose of carrying out the activities contemplated by the Agreement, Order Forms and these Terms, so long as each has agreed to confidentiality provisions that are no less restrictive than the requirements herein. Such party will be responsible for any improper use or disclosure of the disclosing party’s Confidential Information by any such parties. Except as expressly permitted herein, the receiving party will not disclose or facilitate the disclosure of Confidential Information of the disclosing party to any third party. These restrictions shall continue until such time as the information is covered by an exclusion set forth below.
8.3. Exclusions. The receiving party will have no confidentiality obligations with respect to information provided by the disclosing party that: (a) is or becomes generally available to the public other than as a result of a breach of the Agreement, Order Forms and these Terms by the receiving party, (b) is or becomes available to the receiving party from a source other than the disclosing party, provided that such source is not known to the receiving party to be bound by an obligation of confidentiality to the disclosing party with respect to such information, (c) was in the receiving party’s possession prior to disclosure by the disclosing party, or (d) is independently developed by the receiving party without reference to the Confidential Information. Further either party may disclose Confidential Information (i) as required by any court or other governmental body or as otherwise required by Applicable Law, or (ii) as necessary for the enforcement of the Agreement, Order Forms or these Terms or its rights thereunder.
9. Disclaimers
IRISMED DOES NOT WARRANT THAT THE PRODUCT OR SERVICES WILL BE PROVIDED, PERFORMED OR OPERATE ERROR-FREE OR UNINTERRUPTED, THAT IRISMED WILL CORRECT ALL ERRORS, OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. IRISMED IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE PRODUCT OR SERVICES THAT ARISE FROM CUSTOMER DATA OR APPLICATIONS OR SERVICES PROVIDED BY THIRD PARTIES. IRISMED EXPRESSLY DISCLAIMS, TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ALL WARRANTIES EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SUBJECT MATTER OF THE AGREEMENT, ALL ORDER FORMS AND THESE TERMS, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE.
10. Limitation of Liability
NOTWITHTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, IN NO EVENT WILL IRISMED OR ITS OFFICERS, AFFILIATES, REPRESENTATIVES, SUPPLIERS (INCLUDING ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), CONTRACTORS OR EMPLOYEES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OF ANY KIND OR NATURE ARISING OUT OF OR RELATING TO THE AGREEMENT, ANY ORDER FORM, THESE TERMS, THE PRODUCT OR THE PROVISION OF ANY SERVICES, INCLUDING WITHOUT LIMITATION, ANY COST TO COVER PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (WHICH THE PARTIES AGREE WILL NOT BE CONSIDERED DIRECT DAMAGES), OR ANY LOSS OF REVENUE, PROFITS, SALES, DATA, DATA USE, GOOD WILL, OR REPUTATION, OR FOR ANY MATTER BEYOND IRISMED’S REASONABLE CONTROL. IRISMED’S MAXIMUM LIABILITY UNDER THE AGREEMENT, ALL ORDER FORMS AND THESE TERMS WILL BE LIMITED TO THE AMOUNT OF FEES CUSTOMER HAS PAID TO IRISMED IN THE 3 MONTH(S) PRIOR TO THE EVENT(S) GIVING RISE TO ANY LIABILITY OF IRISMED. THE LIMITATIONS SET FORTH IN THIS SECTION APPLY REGARDLESS OF THE LEGAL THEORY ON WHICH A CLAIM IS BROUGHT, EVEN IF IRISMED HAS BEEN NOTIFIED OF THE POSSIBILITY OF DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THIS AGREEMENT.
11. Indemnifications
11.1. Customer Obligations. Customer agrees to defend, indemnify and hold harmless IrisMed and its employees, officers, directors, agents, affiliates, consultants, and suppliers from and against any damages, losses, liabilities, fines, penalties, forfeitures, judgments, settlements, costs and expenses (including court costs and attorney's fees) in connection with any claim, demand, legal action, suit, proceeding, defense, or assertion brought by any third party that relates to or results from the Customer Data, Customer’s use of the Product or Services, any violation of Applicable Laws by Customer or its Authorized Users, or any breach of Customer’s or its Authorized Users’ representations or warranties under the Agreement, any Order Form, or these Terms.
11.2. IrisMed Obligations. IrisMed agrees to defend, indemnify and hold harmless IrisMed and its employees, officers, directors, agents, affiliates, consultants, and suppliers from and against any damages, losses, liabilities, fines, penalties, forfeitures, judgments, settlements, costs and expenses (including court costs and attorney's fees) in connection with any claim, demand, legal action, suit, proceeding, defense, or assertion brought by any third party that relates to or results from that the Product or Services, when used by Customer according to the terms of the Agreement, any applicable Order Form and these Terms, violates, misappropriates, or otherwise infringes upon anyone else’s intellectual property or other proprietary rights.
11.3. Indemnification Procedures. The indemnifying party’s obligations in this Section are contingent upon the protected party: (a) promptly notifying the indemnifying party of each claim for which it seeks protection; (b) providing reasonable assistance to the indemnifying party at the indemnifying party’s expense; and (c) giving the indemnifying party sole control over the defense and settlement of each claim covered by this Section. A protected party may participate in a covered claim for which it seeks protection using its own attorneys only at its own expense. The indemnifying party may not agree to any settlement of a covered claim that contains an admission of fault or otherwise materially and adversely impacts the protected party without the prior written consent of the protected party.
12. No Medical or Financial Advice Given
IrisMed’s provision of the Product and Services is not an attempt to practice medicine or provide specific medical advice, is not intended to be a substitute for professional medical advice, diagnosis or treatment, and is not designed to provide financial advice of any kind.
13. Publicity
Unless otherwise stated in the Agreement or an Order Form, subject to Customer’s right to revoke its consent in writing at any time, Customer agrees that IrisMed may use its name, logos, trademarks, and service marks (“Brand Elements”) on IrisMed’s web site and in IrisMed’s promotional materials, subject to compliance with any guidelines on use of Customer’s Brand Elements provided in writing to IrisMed (“Guidelines”). Customer grants IrisMed a temporary, non-exclusive, non-transferrable, non-sublicensable, royalty-free license to use Customer’s Brand Elements in accordance with these Terms and any Guidelines. Upon Customer’s written revocation of this grant, IrisMed will have thirty (30) days to process Customer’s request.
14. Assignment
Unless otherwise stated in the Agreement or an Order Form, Customer may not assign or transfer any of its rights or obligations hereunder in whole or in part without the prior written consent of IrisMed. Subject to the foregoing, this Agreement will inure to the benefit of, be binding upon, and be enforceable against, each of the parties hereto and their respective successors and assigns.
15. Notices
Any notice required under these Terms will be provided to the other party in writing as described in the Agreement or relevant Order Form, if any. Otherwise, if Customer wishes to provide notice to IrisMed, Customer will send notice via email to han@irismed.co, and IrisMed will send notices to one or more contact(s) on file for Customer. Notices from IrisMed, other than for a breach of the Agreement, an Order Form, or these Terms, may be provided within the Product and Services.
16. Attorney’s Fees
In the event any proceeding or lawsuit is brought in connection with this Agreement, the prevailing party in such proceeding will be entitled to receive its reasonable costs, expert witness, and attorneys’ fees.
17. Relationship of the Parties
The parties are and shall be independent contractors to one another, and nothing herein shall be deemed to create an agency, partnership, joint venture or employer and employee relationship between Customer and IrisMed or any employee or agent of IrisMed.
18. No Third Party Beneficiaries
This Agreement is being entered into for the sole benefit of the parties hereto, and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever.
19. Equitable Remedies
Each party acknowledges and agrees that (a) a breach or threatened breach by such party may give rise to irreparable harm to the other party for which monetary damages may not be an adequate remedy; and (b) if a breach or threatened breach by such party occurs, the other party will in addition to any and all other rights and remedies that may be available to such other party at law, at equity or otherwise in respect of such breach, be entitled to seek equitable relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security.
20. Force Majeure
Neither party will be liable under these Terms for any failure or delay in the performance of its obligations (except for the payment of money) on account of strikes, shortages, riots, insurrections, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, or any other cause that is beyond the reasonable control of such party.
21. Limitation of Claims
No legal proceedings, regardless of form, arising under or relating to these the Agreement, any Order Form, or these Terms may be brought by Customer more than six months after it first have actual knowledge of the facts giving rise to the cause of action.
22. Export Compliance
Customer shall comply with all Applicable Law relating to export compliance including without limitation the United States Export Administration Regulations and the United States Office of Foreign Asset Control regulations, other anti-boycott, sanctions, and import, export and processing regulations (including “deemed export”, “deemed re-export”, HIPAA, data protection and privacy regulations) which may govern use of the Product and Services including technical data and any deliverables provided under the Agreement, any Order Forms and these Terms, as well as Customer Data. Customer agrees to ensure that no data, information, software programs and/or materials resulting from the Product or Services (or a direct product thereof) will be exported or processed directly or indirectly in violation of these Applicable Laws.
23. Governing Law, Jurisdiction and Venue
These Terms will be governed by and construed in all respects in accordance with the laws of either (a) the jurisdiction indicated in the Agreement or applicable Order Form, or (b) if none exist or none is indicated therein, then the state of Delaware without regard to its conflicts of laws principles (and then each party hereby consents to the exclusive venue and jurisdiction of the federal courts of Delaware). Customer and its Authorized Users may only resolve disputes with IrisMed on an individual basis, and will not bring a claim in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions and consolidation with other arbitrations are not allowed. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE AGREEMENT, ANY ORDER FORM OR THESE TERMS.
24. Severability, Waiver and Amendment
If any provision of these Terms is held by a court of competent jurisdiction to be unenforceable or invalid, such provision will be changed and interpreted as to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions will remain in full force and effect. No waiver under these Terms will be effective unless made in writing and signed by an authorized representative of the waiving party. Any waiver or failure to enforce any provision of these Terms will not be deemed a waiver of future enforcement of that or any other provision. Except to the extent otherwise expressly provided in these Terms, they may only be amended in writing signed by both parties hereto.
25. Counterparts, Entire Agreement and Order of Precedence
The Agreement and any Order Form(s) may be executed in one or more counterparts, each of which will be deemed an original, but all of which together these Terms will constitute one and the same instrument. These Terms, together with any Agreement, Order Form(s) and the Business Associate Agreement state the entire agreement of the parties regarding the subject matter hereof, and supersede all prior proposals, agreements or other communications between the parties, oral or written, regarding such subject matter. If an ambiguity or conflict exists among the documents the order of precedence will be: (a) the relevant Order Form; (b) any relevant Agreement; (c) these Terms; and (d) the Business Associate Agreement. Any preprinted or other terms on any purchase order are hereby expressly rejected by IrisMed and will be of no force or effect.
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