Iris Terms & Conditions

 

All pricing in US Dollars and includes all discounts.  Terms are cash with order unless otherwise specified in the Purchase Order.  Invoices are subject to these GrayMeta Inc. Standard Terms and Conditions of Sale and the End User License Agreement attached hereto as Exhibit A.

GrayMeta Inc. (“GrayMeta” or the “Company”) and the customer identified on the Purchase Order (the “Customer”) hereby enter into this agreement (“Agreement”) as of the date of the Purchase Order (the “Effective Date”).  “Parties” shall mean the Company and the Customer.   “Agreement” shall include the Purchase Order and End User License Agreement attached hereto as Exhibit A.


1. Definitions

1.1. “Affiliate” means a company controlled by, under common control with, or controlling Customer. For this purpose, “control” of an entity means control, directly or through one or more intermediate entities, of more than 50% of the outstanding voting equity of the entity.

1.2. “Documentation” means user manuals and other instructional documentation, in any form or medium, provided by the Company for use with the Products.

1.3. “GrayMeta Software” means the IRIS software and firmware owned by GrayMeta and licensed by GrayMeta hereunder, in object code form, including all documentation therefor.

1.4. “Products” means the GrayMeta Software.

1.5. “Proposal” means the commercial and technical proposal for products to be provided by GrayMeta to Customer.

1.6. “Purchase Order” means an order, quote or other similar document that is submitted by the Company and accepted by the Customer. In the event of a conflict between any Purchase Order and this Agreement, the Purchase Order will only govern with respect to identifying the System or service being ordered, pricing, quantities, term and delivery dates and locations.

1.7. “Specifications” means descriptions and data regarding the features, functions and performance of the GrayMeta Products.

1.8. “System” means, collectively, the GrayMeta Software and any Third-Party Products provided hereunder.

1.9. “Third-Party Products” means any software or hardware obtained from third-party manufacturers or distributors and provided by the Company hereunder including open source software listed on the Company’s website at www.graymeta.com.

1.10. “Warranty Period” means the warranty period for applicable Products beginning on the date of delivery or download of the Product and continuing for the duration of the warranty as set forth in the Purchase Order.


2. Acceptance of Terms and Conditions; Term.

2.1. The Company’s obligations to Customer are expressly limited to, and conditioned on, Customer’s acceptance of this Agreement and the End User License Agreement.  This Agreement shall govern in any transaction referred to in any Purchase Order issued by Customer and received and accepted by the Company.  Each Purchase Order shall constitute a part of this Agreement and be deemed incorporated herein by this reference.

2.2. Customer’s purchasing rights hereunder may be exercised by its Affiliates subject to the following terms and conditions. The purchasing Affiliate will be identified in each applicable Purchase Order. Customer is responsible to the Company for all acts and omissions of its Affiliates relating to this Agreement and the Exhibits hereto. Customer hereby unconditionally guarantees payment and other obligations of its Affiliates with respect to such purchases. The Company’s obligations relating to Affiliate purchases will be enforceable only by Customer, and Customer will ensure that any claims regarding such purchases are asserted only by Customer on behalf of such Affiliates. Customer will indemnify and defend the Company, without limit, against any Affiliate claim asserted directly against the Company in violation of this Section 2.2.

2.3. This Agreement is effective as of the Effective Date and unless earlier terminated under Section 15 will continue in effect for the period specified in the Purchase Order, and if no period is specified in the Purchase Order, then for a period of one (1) year from the Effective Date.  Sections 6, 12, 13, 17, 18 and 19 of this Agreement will survive any expiration or termination of this Agreement in accordance with their respective terms.   This Agreement shall govern Customer’s purchase of additional Software after the Effective Date. 


3. The Company’s Responsibilities

3.1. The Company shall provide the Products and related services specified in Purchase Orders agreed upon by the Parties on the terms set forth in this Agreement.

3.2. The Company shall deliver the components of the System at such places and times as agreed to by the Parties in Purchase Orders.

3.3. The Company shall provide the licenses and warranty services during the Term.


4. Customer’s Responsibilities

4.1. Customer shall pay all fees set forth in Purchase Orders.

4.2. If local services have been ordered, Customer shall provide the Company with physical accommodations reasonably required for the Company to perform its obligations, including premises access, electrical power, data connectivity, heat and air conditioning.  Customer shall provide information and access to personnel reasonably required for the Company to perform its obligations.

4.3. Customer must share responsibility for the timely installation of the Products set forth in the Purchase Order.  This is particularly relevant in the scheduling of Company delivery, installation, and training resources, as well as adherence to agreed-upon payment terms.  Customer shall provide the Company with convenient, complete and timely access to equipment and network facilities required to complete delivery of the purchased solution or any support required during operation.  This includes full access to the Internet to enable remote warranty services or assistance in installation.  Should Customer cause or experience delays in its overall implementation of a System, either as a result of internal issues or those caused by other third-party component vendors, these instances will be handled through change order requests.

4.4 The Customer must install and run the Company’s Software Products on appropriate hardware.  Customer agrees to abide by the Company’s hardware requirements for CPU, disk transfer speed and/or any other system requirements.


5. Title and risk of loss for each item of GrayMeta hardware provided by the Company under this Agreement will pass to Customer on delivery to Customer’s location.


6. Ownership

6.1 All intellectual property rights in or to the Products, the Documentation, the Third-Party Products, the Company’s Confidential Information and the Proposals, drawings, descriptions and written information provided by the Company (collectively, the “IP”) are and will remain the exclusive property of the Company or its licensors, whether or not specifically recognized or perfected under the laws of the jurisdiction in which the IP is used or licensed. Customer will not take any action that jeopardizes the Company’s or its licensors’ proprietary rights, or attempt to acquire any right, in the IP.  All rights not expressly granted to Customer with respect to IP are reserved by the Company and its third-party licensors.

6.2 The Company will own all rights, including intellectual property rights, in any copy, translation, modification, improvement, adaptation, derivative work or other derivation of the IP. Customer will execute, or will at the Company’s request procure the execution of, any instrument that may be appropriate to assign these rights to the Company to perfect these rights in the Company’s name. Customer shall not alter or remove any trademarks applied to, embedded in or associated with, the IP.

 

7. Third-Party Component Vendors Selected by Customer or its Integrator.

7.1       GrayMeta delivery commitments and Product performance may be dependent upon the timely delivery of third-party component vendors and representations they have made regarding the Third-Party Products.  In the event that third-party component vendors or the Third-Party Products fail to deliver as promised, GrayMeta will not be responsible for any resulting impact on the delivery or performance of the Third-Party Products and/or services included hereunder.  Should Customer request assistance from GrayMeta to achieve a workaround or other solution to delays or system deficiencies caused by third-party component vendors, these changes will be handled through change order requests.

 

8. Installation and Testing Services

8.1. Should the Customer elect to purchase on-site installation, training, consulting or other services, the Company will perform the service at the Customer’s facility on a date to be agreed upon by the Company and Customer (the “Scheduled Installation Date”) in the applicable Purchase Order.  Customer will (a) provide at such facility the computer equipment and all required peripherals identified in the Proposal, (b) obtain and install thereon all required Third-Party Products identified in the Proposal, (c) provide access to its facility and its computer system for the period of time required for such installation, and (d) allow for priority use of such system for the installation.  Any installation time incurred by the Company as a result of the Customer’s delay or failure to comply with the foregoing will be charged to Customer at the Company’s then-current hourly rates.

8.2. If the Customer has purchased on-site or telephone installation or other services, the Company must be notified of any cancellation of the Scheduled Installation Date at least 10 days prior to such date.

8.3. If such delay has caused a cancellation of the Scheduled Installation Date, the Company will provide the next available dates to the Customer.  Customer at this time will absorb any necessary changes required on the project timeline in order to accommodate the new Scheduled Installation Date provided by the Company.

8.4. After installing System components, the Company will test the System under protocols designed to confirm performance in compliance with Specifications. Unless otherwise agreed to by the Parties, acceptance of Products and Third-Party Products will occur upon satisfactory completion of these tests. Acceptance will not be deferred due to a failure to conform to Specifications in any immaterial respect, provided the Company promptly delivers a remedial plan for such non-conformity.

 

9. Change Order Requests

9.1 If, after the Purchase Order is received and accepted by Company, changes are made to the workflow design, versions of hardware devices or software applications that must interface with the GrayMeta solution, these changes will be handled through change order requests.  Certain travel, lodging and meal expenses incurred in the delivery of Products or services at Customer’s premises are included in the Purchase Order.  Should Customer’s change order request(s) require additional on-site involvement of Company personnel, these expenses will be handled through change order requests, as well.  As such, Customer may incur additional charges to the extent that the Company must add hardware or software components and/or expend resources for planning, development, installation, testing and validation, as well as project management.  When presented with new requirements, the Company will provide Customer with estimates for additional charges and schedule impacts.  Change orders and associated costs must be approved by Customer before work is initiated.

 

10. Warranties

10.1. GrayMeta Software.  The Company warrants for the Warranty Period that GrayMeta Software will perform free of defects that would prevent the System from operating in conformity in all material respects with its Specifications, so long as such GrayMeta Software is operated with both CPU and disk hardware that meet the minimum technical requirements as spelled out in the GrayMeta hardware Requirements.

10.2. Third-Party Products.  The warranties in Section 10.1 do not apply to any Third-Party Products, except that:

10.3.1. To the extent permitted by the manufacturers of Third-Party Products, the Company shall pass through to Customer all warranties such manufacturers make to the Company regarding the operation of such Third-Party Products; and

10.3.2. The Company warrants for the Warranty Period that all components of the GrayMeta Software will interface and function properly with the Third-Party Products so long as such Third-Party Products operate in compliance with all applicable third party manufacturers’ warranties.

 

11. Indemnification

11.1. The Company will defend and indemnify Customer from and against any and all losses, costs, damages, liabilities or expenses (including reasonable attorneys’ fees and costs) (“Losses”) incurred or arising from any claim by a third party alleging that Customer’s use of the Products or their Documentation (“Covered IP”) infringes a United States patent, copyright or trademark. This indemnity will not apply to claims arising from (a) use of the Covered IP outside the scope of the license granted to Customer; (b) use of the Covered IP in combination with the products of third parties (other than those approved in writing by the Company or set forth in the Specifications); (c) modification of the Covered IP not performed or provided by the Company, if the infringement would not have occurred but for such use, combination or modification; or (d) the Company’s compliance with Customer’s design specifications, if the infringement would not have occurred but for the Company’s implementation of such specifications.

11.2. If a third-party infringement claim results in an injunction against Customer’s use of any component of the Covered IP, or if the Company reasonably anticipates such an injunction, the Company will procure for Customer the right to continue using the component, replace the component or modify the component to avoid the claim while retaining substantially the same functionality.

11.3. Each Party shall indemnify the other Party from third-party claims for injury, death or property damage based on the other Party’s alleged gross negligence or willful misconduct.

11.4. Customer will defend and indemnify the Company and its licensors, officers, agents and employees from and against any and all Losses incurred or arising from any claim or allegation by a third party relating to (a) Customer’s failure to comply with applicable laws, including intellectual property laws; (b) Customer’s failure to comply with the terms and conditions of any end-user license agreement for a Third-Party Product and (c) a patent, copyright or trademark infringement claim arising from the Company’s compliance with Customer’s specific designs or instructions, or Customer’s use of Covered IP other than as licensed hereunder.

11.5. The indemnifying Party’s indemnification obligations under this Section 11 as to a third-party claim are conditioned upon the indemnified Party’s (a) giving prompt notice of any such claim to the indemnifying Party; (b) granting sole control of the investigation, defense and settlement of each such claim or action to the indemnifying Party (except that the indemnified Party’s prior written approval is required for any settlement that requires any payment by, imposes any material obligation on, or results in any ongoing material liability to, the indemnified Party); and (c) providing reasonable cooperation to the indemnifying Party and, at the indemnifying Party’s request and expense, assistance in the defense or settlement of the claim.


12. Limitation of Liability

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES FOR ANY CLAIM ARISING UNDER THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EACH OF THE PARTIES SHALL BE LIABLE TO THE OTHER FOR ANY DIRECT DAMAGES RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE LIABILITY OF A PARTY TO THE OTHER PARTY, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT OR OTHERWISE, FOR ANY EVENT, ACT OR OMISSION SHALL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNT PAID TO GRAYMETA UNDER THIS AGREEMENT DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE MOST RECENT EVENT.  THESE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 12 SHALL NOT APPLY TO: (a) INDEMNIFICATION OBLIGATIONS HEREUNDER; (b) DAMAGES ARISING FROM BREACHES OF THE OWNERSHIP PROVISIONS OF SECTION 6; (c) BREACH OF CONFIDENTIALITY OBLIGATIONS HEREUNDER; (d) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND (e) CUSTOMER’S BREACH OF PAYMENT OBLIGATIONS UNDER THIS AGREEMENT.  THE FOREGOING LIMITATIONS AND EXCLUSIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PERMITTED HEREUNDER.


13. Confidential Information

Neither Party will use or disclose the other Party’s Confidential Information without the other Party’s prior written consent. “Confidential Information” means any information, whether disclosed orally, in writing, electronically, visually or otherwise by one Party to the other in the course of this Agreement, including, in the case of the Company, the source code of the GrayMeta Software and, in the case of either Party, all other information relating to such Party’s financial condition, operations, business or customers. Each Party will use the same degree of care as it exercises toward its own Confidential Information in protecting the other Party’s Confidential Information, but no less care than reasonable in light of general industry standards and applicable laws regarding data protection, privacy or confidentiality. Confidential Information will only be disclosed on a need-to-know basis to a Party’s employees and contractors bound by non-disclosure obligations at least as protective as those of this Agreement. This Section 13 does not apply to information (a) after it becomes publicly known through no fault of the receiving Party, (b) already rightfully in the receiving Party’s possession when received, (c) developed by the receiving Party without the use of the other Party’s Confidential Information or (d) required to be disclosed by law so long as the other Party is given immediate notice of the request or order that the information be disclosed and the fullest opportunity under law to prevent or limit the disclosure. Each Party acknowledges that its breach of this Section 13 may cause the other Party substantial and irreparable harm for which the other Party would be entitled to equitable relief in addition to any available legal remedies. Each Party hereby waives any requirement to post bond or provide other security as a condition to receiving such equitable relief.


14. Force Majeure

The Company’s obligations hereunder will be suspended so long as compliance is impeded or prevented by causes beyond the Company’s reasonable control, which may include acts of God, embargoes, acts of war (including terrorist attacks), labor disturbances and acts or regulations of governmental entities.


15. Termination

If either Party materially breaches this Agreement and does not cure the breach within thirty (30) days after receiving written notice of the breach from the non-breaching Party, the non-breaching Party may terminate this Agreement as of a termination date specified in that notice or a subsequent notice delivered within such thirty (30) day period.  If the breach cannot be completely cured within the thirty (30) day period, no default will occur if the Party receiving the notice begins curative action within the thirty (30) day period and thereafter proceeds with diligence and in good faith to cure the breach as soon as practicable.


16. Incoterms

For final deliveries, operations and support of the Products, prices are FCA (Free Carrier) at GrayMeta’s designated place of delivery. Export clearance is included, but import taxes and other duties to be paid in the destination country are not included.


17. Compliance with Export and Import Laws

Export laws and regulations of the United States, of the European Union and other relevant local export laws and regulations may apply to the Products included in this Agreement.  Customer agrees that such export control laws govern Customer’s use and distribution of the Products (including technical data) and any services deliverable under a Purchase Order, and Customer agrees to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations).  Customer agrees that no data, information, program and/or materials resulting from use of the products (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws.  Customer shall be solely responsible for payment of all import and/or export duties not included in the Proposal or Purchase Order, if any, in connection with purchase, shipment, installation and use of the Products provided.


18. Audit

Customer shall maintain commercially reasonable books and records regarding its use of the Products and Third-Party Products.


19. Miscellaneous

19.1. Assignment. Customer may not assign any rights or delegate any obligations under this Agreement without the prior written consent of the Company. The Company may freely assign this agreement. Any attempted assignment or delegation in violation of this Section 20.1 will be null and void.

19.2. Severability; Beneficiaries.  If any term of this Agreement is held to be unenforceable, the other terms of this Agreement will be enforced to the fullest extent permitted by law.

19.3. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument.

19.4. Governing Law. This Agreement will be construed under the laws of the State of California.  The Uniform Computer Information Transactions Act, whether enacted in whole or in part by any state or applicable jurisdiction, regardless of how codified, does not apply to this Agreement and is hereby disclaimed

19.5. Waiver. No waiver or failure of a party to assert any right under this Agreement on any one occasion will operate as a waiver of the same or any other right on any other occasion.

19.6. Notices. All notices under this Agreement will be delivered personally, sent by confirmed facsimile, sent by nationally recognized express courier or sent by certified or registered mail, return receipt requested, to the address shown on the Signature Page or such other address as may be specified by either Party to the other Party in compliance with this Section 20.6. Notices will be deemed effective on personal receipt, receipt of such electronic facsimile confirmation, two days after such delivery by courier and four days after such mailing by mail.

19.7. Interpretation. This Agreement, including any Exhibits, is the complete and final expression of the Parties’ agreement regarding its subject matter and supersedes all communications or agreements, written or oral, by the Parties regarding such subject matter. The Parties mutually agree that all terms and conditions on Purchase Orders are superseded by these Standard Terms and Conditions other than identifying the Services or Systems being ordered, pricing, quantities, term and delivery dates and locations.  If there is any conflict between these Standard Terms and Conditions and any provision set forth in any other part of this Agreement including any Exhibits, these Standard Terms and Conditions will prevail.  No amendment or supplement to this Agreement is effective unless it is in writing, it identifies itself as an amendment to this Agreement and is signed by both Parties’ authorized representatives.


EXHIBIT A:  END USER LICENSE AGREEMENT

This Exhibit A is effective as of the Effective Date.  If Customer does not extend the warranty as provided herein, such coverage expires on the last day of the Warranty Period. Customer may thereafter extend warranty services for one-year renewal periods (each, a “Software Warranty Renewal Term”) by paying, for each Software Warranty Renewal Term, the software warranty fee set forth in the related Purchase Order (“Software Warranty Fee”) at least thirty (30) days before such Software Warranty Renewal Term begins.   Notwithstanding any other provisions in this Agreement, the Company shall provide warranty services only with respect to the two (2) most recent Versions of the Company Software.  “Version” means a new or revised Company Software product, which may contain such additional functionality or performance improvements as to supersede the existing Company Software product, and which is characterized by a change of the second digit in the version number.  The period during which this Exhibit A is in effect is referred to herein as the “Exhibit A Term.”  On expiration of the Warranty Period, the Company may cease performing the warranty services set forth in this Exhibit.


1. Payment

The fees for Products specified in the Purchase Orders include payment in full, for the initial Warranty Period, for the software warranty services described in this Exhibit A.  Each Software Warranty Fee constitutes payment in full for the software warranty services described in this Exhibit A for the duration of the applicable Software Warranty Renewal Term.


2. License to Company Software

Subject to the terms of this Exhibit A and the Agreement, the Company grants Customer a limited, non-exclusive, license, without the right to transfer or sublicense, to use, for internal business purposes only, the numbers of copies specified in Purchase Orders of the Company Software applications identified therein.  The duration of this license will be for the term set forth in the Purchase Order, unless the Agreement is terminated as set forth therein, in which case Customer shall cease using the Company Software and immediately return all copies to the Company, or destroy all copies if so instructed by the Company.  Upon installation of Company software, Company grants a fifteen (15) calendar day temporary license for the purpose of integration and testing.  This temporary software may be downloaded from the Company website.  A permanent license will be granted upon acceptance, final payment and the receipt of all required acceptances of the Company Software license.


3. Third-Party Products

Subject to the terms of this Exhibit A and the Agreement, the Company agrees to sublicense any software that constitutes or is contained in Third-Party Products, in object code form only, to Customer for use during the Exhibit A Term, and the license term set forth in Section 3, as part of the System for the purposes described in Section 3 of this Exhibit A.  This sublicense is conditioned on Customer’s continued compliance with the terms and conditions of the end-user licenses (a) contained on or in the media on which such software is provided or (b) otherwise provided by the Company to Customer.


4. No Other Licenses; Restrictions

Other than as expressly set forth in this Exhibit A, (a) Company grants no licenses, expressly or by implication, and (b) Company’s entering into and performing the Agreement (including this Exhibit A) will not be deemed to license or assign any intellectual property rights of the Company to Customer or any third party.  Without limiting the foregoing sentence, Customer agrees to use each copy of the software or firmware on the hardware on which it has been installed by Company and agrees not to (i) reverse engineer or otherwise attempt to derive the source code of any Company or Third Party software or (ii) publish any results of any benchmark tests run on the Company Software, the Third-Party Products or any components thereof.


5. Company Software Warranty

5.1. During the Warranty Period, the Company shall maintain the Company Software so that it operates substantially in conformity at all times with the warranties set forth in the Agreement.  The Company shall correct any reproducible error affecting the Company Software.  Suspected error conditions will be investigated and corrected by the Company personnel at the Company office to the extent possible.  Repair or replacement under this Exhibit A will be the exclusive remedy of Customer for any defects in the operation of the Company Software.

5.2. During the Warranty Period, the Company shall provide the following types of warranty services:
Telephone and Email Support.  For final deliveries, operations and support of the Products, email support is available at any time 24/7; and/or the Company telephone support representatives shall be available to receive Customer telephone calls between the hours of 9:00 a.m. and 5:00 p.m., United States Eastern Time (ET), Monday through Friday, excluding public holidays.

Workarounds; Other Services.  The Company shall provide to Customer such workarounds as are necessary to ensure the resolution of errors, which can be resolved by a workaround.  The Company will also provide fixes to resolve errors that can be resolved by a fix, and updates that contain a collection of fixes as applicable.  The Company shall provide to Customer, at no additional cost, any enhancements, patches, new versions or upgrades that the Company deems necessary to ensure that the Customer’s system which runs the Company Software remains fully effective.  Installations of such enhancements, patches, new versions or upgrades are at Company’s discretion.

5.3. As is reasonably necessary for the Company to provide services, Customer shall provide access to its personnel and be responsible for maintaining all necessary computer hardware, communications equipment, telephone lines, cabling and modems, and make available Internet access.


Last Updated on October 12, 2016