END USER LICENSE AGREEMENT
Last Updated: 1 May 2019
This End User License Agreement (“Agreement”) governs your download, installation of, access to, and use of this computer software and data product ("Software"). This Agreement is a binding agreement between you, an individual or the company or other legal entity on whose behalf you are signing (“you”), and Zemax, LLC, a Delaware limited liability company (“ZEMAX”). If you accept the terms of this Agreement, click on "I Accept" below. If you object to the terms of this Agreement, click on "I Decline" below.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU HEREBY REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY OR OTHER LEGAL ENTITY TO THESE TERMS AND CONDITIONS. THE COMPANY OR OTHER LEGAL ENTITY MUST ENSURE THAT ALL END USERS READ AND COMPLY WITH THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY AND DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS AGREEMENT AND CLICK ON “I DECLINE” BELOW.
1. LICENSE GRANT; ACCOUNT CREATION.
Subject to the terms and conditions of this Agreement, ZEMAX hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable license to use the Software contained in this download or as applicable, packaging, and, unless otherwise specified by ZEMAX, any updates or supplements thereto provided to you by ZEMAX. The Software is licensed, not sold, to you. Certain portions of the Software are licensed to ZEMAX pursuant to the following license terms: http://msdn.microsoft.com/en-us/library/gg405489(PandP.40).aspx.
2. LICENSE RESTRICTIONS.
The Software is the valuable property of ZEMAX, and where applicable, our licensors, and is protected by copyright and other intellectual property laws and treaties. ZEMAX, and where applicable, our licensors, own all right, title and interest in and to the Software, including all copyright and other intellectual property rights therein. ZEMAX reserves all rights not expressly granted to you, and except as expressly granted above, ZEMAX grants no other licenses to you under this Agreement, whether by implication, estoppel or otherwise. Your use of the Software is limited to those instances which you have licensed.
You may not attempt to circumvent any methods implemented by ZEMAX to limit your use of the Software to such instances licensed. You may not (a) sublicense, loan, lease, distribute, sell or rent the Software; (b) reverse engineer, decompile or disassemble the Software or otherwise attempt to discover or re-create the source code to the Software; (c) make any modification, adaptation, improvement, enhancement, translation, or derivative work of or to the Software; (d) copy the Software; knowingly take any action that would cause the Software or its contents to be placed in the public domain; or (e) use the Software for purposes for which it is not designed.
The foregoing license and your use of the Software is personal to you. To use the Software, you must have an account at MyZemax.com and register the license through your account. You must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and license registration and promptly notify us if you discover or suspect that someone has accessed your account or license registration without your permission. In some instances, you may allow another end user within your organization to register your license under his or her name (“transfer”). When you transfer a license to another user, you (the person transferring the Software) may no longer access or use the Software. You may not transfer your license to the Software to any third party outside your organization, transfer your license to the Software more than once every thirty (30) days, transfer your license in exchange for consideration, or publish the Software for others to copy or otherwise use the Software. You are responsible for the activities of any third parties that occur in connection with your account or license registration.
3. SUBSCRIPTION AND RENEWALS.
If you have purchased your license to the Software as an On-Premise Perpetual license, this Section 3 does not apply to you. ZEMAX offers subscription plans for access to and use of the Software (a “Subscription”) for the period described in the relevant ordering document (each a “Subscription Period”). The license granted is contingent upon full payment of the applicable Subscription fees. ZEMAX will provide you with an invoice for renewal prior to the expiration of your Subscription Period, which you must pay to renew your subscription and continue to access and use the Zemax Software.
If you have purchased a two-year or three-year Subscription Period, the term serves only to lock-in your renewal price for the full Subscription Period, but you will pay your Subscription fees on an annual basis. If you do not pay the applicable Subscription fees by the due date, ZEMAX may suspend your access to and use of the Software (and your Subscription Period will not be tolled during the suspension). If you do not pay the applicable Subscription fees within ten (10) days of the due date, your license will be terminated, and you will lose the guaranteed renewal pricing for the additional year(s) in your Subscription Term.
IF YOU DO NOT RENEW YOUR SUBSCRIPTION PRIOR TO EXPIRATION OF THE SUBSCRIPTION PERIOD, YOU WILL NO LONGER BE ABLE TO ACCESS OR USE THE ZEMAX SOFTWARE.
4. U.S. GOVERNMENT END USERS.
The Software is a "commercial item," as that term is defined in Federal Acquisition Regulation ("FAR") 2.101, consisting of "commercial computer software" and "commercial computer software documentation", as such terms are used in FAR 12.212. Consistent with FAR 12.212, FAR 52.227-19 and DFARS 227.7202, the Licensed Software is licensed to any U.S. Government End Users (i) only as a commercial end item and (ii) with only those rights as are granted to all other End Users pursuant to the terms and conditions herein.
5. SUPPORT SERVICES.
If you have purchased a Subscription to the Software, ZEMAX offers support services for no additional fee in connection with your Subscription. If you have purchased an On-Premise Perpetual license to the Software, ZEMAX offers support services for an additional fee in connection with your On-Premise Perpetual license. Access to such services is solely available during the term of your Subscription or the period for which you have purchased support services, and ZEMAX is under no obligation to offer you continuous support services after the expiration or termination of your support services period, license term or Subscription Period. Further, your failure to update your Software to the most recent version of such Software made available by ZEMAX may limit your ability to receive the full benefit of the support services purchased.
Any suggestions, comments or other feedback provided by you to us with respect to the Software (“Feedback”) will, as between you and ZEMAX, constitute ZEMAX’s confidential information. ZEMAX will be free to use, disclose, reproduce, license and otherwise distribute, and exploit this Feedback as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
7. CONSENT TO USE DATA.
8. LIMITED WARRANTY.
YOU ACKNOWLEDGE AND AGREE THAT (A) THE SOFTWARE MAY CONTAIN BUGS, ERRORS, AND DEFECTS; (B) USE OF THE SOFTWARE IS AT YOUR SOLE RISK; AND (C) THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. ACCORDINGLY, THE SOFTWARE IS PROVIDED “AS IS,” “AS AVAILABLE,” WITH ALL FAULTS, DEFECTS AND ERRORS AND WITH NO WARRANTY OF ANY KIND. ZEMAX SPECIFICALLY DISCLAIMS ALL WARRANTIES (EXPRESS AND IMPLIED AND ARISING BY LAW OR OTHERWISE) REGARDING THE LICENSED APPLICATION AND SERVICES AND THEIR PERFORMANCE OR SUITABILITY FOR YOUR INTENDED USE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, ACCURACY OR FITNESS FOR A PARTICULAR PURPOSE. ZEMAX DISCLAIMS ALL LIABILITY FOR THE USE OF, OR INABILITY TO USE, THE SOFTWARE OR FOR ANY LOSS OF DATA. ZEMAX DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL BE DELIVERED FREE OF ANY INTERRUPTIONS, DELAYS, OMISSIONS OR ERRORS; OR IN A SECURE MANNER; THAT ANY FAULTS WILL BE CORRECTED; OR THAT THE OPERATION, RESULTS, OR DATA GENERATED BY THE SOFTWARE WILL BE ERROR FREE.
To the fullest extent permitted by applicable law, you will defend, indemnify and hold harmless Zemax, and its directors, officers, employees, owners and agents from and against any and all claims, costs, losses, damages, judgments and expenses (including reasonable attorneys' fees) arising out of or in connection with (a) any claim alleging any breach of any of the foregoing warranties or any other provision of this Agreement; or (b) any use by Customer of the ZEMAX Software that exceeds the scope of the license or is not permitted under this Agreement. In the event of any claim described above, ZEMAX will have the right to approve the counsel selected by you for defense of any such claim, which approval will not be unreasonably withheld. You will not settle any such claim without ZEMAX’s written consent.
10. LIMITATION OF LIABILITY.
Your sole and exclusive remedies for any damage or loss in any way connected with the Software, whether by ZEMAX's breach of any express or implied warranty, negligence, or any breach of any other duty, shall be, at ZEMAX's option, repair or replacement of the Software or return for a refund of the price paid by you for a license to such Software (if any) during the twelve months preceding the incident giving rise to damage or loss.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS PROVIDED IN THE PRECEDING SENTENCE, UNDER NO CIRCUMSTANCES SHALL ZEMAX OR ITS AFFILIATES, AGENTS, SUPPLIERS, OR THIRD PARTY LICENSORS BE LIABLE TO YOU OR TO ANY OTHER PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY KIND IN CONNECTION WITH THE SOFTWARE OR THIS AGREEMENT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (WHETHER TORT, CONTRACT, NEGLIGENCE, WARRANTY OR OTHERWISE), AND EVEN IF ZEMAX OR ITS AFFILIATES, AGENTS, SUPPLIERS, OR THIRD PARTY LICENSORS WERE INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
11. TERM AND TERMINATION.
The term of this license commences on the first to occur of your download of the Software or your breaking of the wrapping of or seal to the Software provided to you by ZEMAX in accordance with this Agreement. This license is effective until terminated or until the end of the current Subscription Period, whichever occurs first. If you migrate from a perpetual license of the Software to a Subscription license, your prior license is terminated and superseded by this Agreement.
You may also terminate this license by (a) ceasing use of the Software, (b) deleting all copies of the Software in your possession or control, or (c) by destroying the Software, program, and documentation and all copies thereof. This license shall terminate automatically and immediately in the event of your breach of the terms of this Agreement. Upon termination of this Agreement, you shall immediately discontinue the use of the Software and shall within 10 days return to ZEMAX all copies of the Software. Your obligations to pay accrued charges and fees as well as provisions contained herein that, by their nature, are intended to survive termination, including ZEMAX’s rights in and to the Feedback, and ZEMAX’s liability limitations, shall survive any termination of this Agreement.
12. EXPORT AND LEGAL COMPLIANCE.
Your use of the Software shall comply with all applicable regulations, orders and other governmental restrictions regarding the export of software, technical data or derivatives thereof. You will not knowingly directly or indirectly export (or re-export) the Software or any derivatives thereof or permit transshipment of same, including via download from ZEMAX, (a) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country subject to U.S. economic sanctions or other trade controls; (b) to or for the benefit of anyone on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons, List of Specially Designated Terrorists or List of Specially Designated Narcotics Traffickers or the U.S. Commerce Department’s Table of Deny Orders, Denied Persons List, Unverified Parties List, Entities List, or the U.S. State Department's list of Debarred Parties; or (c) to or into any country or destination for which the US government or any US governmental agency requires an export license or other approval for export without first having obtained such license or other approval.
13. DISPUTE RESOLUTION; ARBITRATION.
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with ZEMAX and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration agreement. In addition, arbitration precludes you from suing in court or having a jury trial. You and ZEMAX agree that any dispute arising out of or related to this Agreement or the Zemax Platform will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding.
Except for small claims disputes in which you or ZEMAX seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or ZEMAX seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and ZEMAX waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, for any dispute or claim that you have against ZEMAX or relating in any way to the Services, you agree to first contact ZEMAX and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to ZEMAX by email at email@example.com or by certified mail addressed Zemax, 10230 NE Points Drive, Suite 500, Kirkland, WA 98033 The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and ZEMAX cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All disputes submitted to JAMS will be resolved through confidential, binding arbitration. Arbitration proceedings will be held in King County, Washington, unless you are a consumer, in which case you may elect to hold the arbitration in your county of residence in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). For purposes of this section, you will be deemed a “consumer” if you use the Services for your personal, family or household purposes. The most recent version of the JAMS Rules is available on the JAMS website and is hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
You and ZEMAX agree that these Terms affect interstate commerce and that the enforceability of this Section 13 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
The arbitrator, ZEMAX, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The arbitration will allow for the discovery or exchange of non-privileged information relevant to the dispute. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
You and ZEMAX agree that for any arbitration you initiate, you will pay the filing fee (up to a maximum of $250 if you are a consumer), and ZEMAX will pay the remaining JAMS fees and costs. For any arbitration initiated by ZEMAX, ZEMAX will pay all JAMS fees and costs. You and ZEMAX agree that the state or federal courts of the State of Washington and the United States sitting in King County, Washington have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Any claim arising out of or related to these Terms or our Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and ZEMAX will not have the right to assert the claim.
You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 13 by sending an email to firstname.lastname@example.org. To be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 14.
If any portion of this Section 13 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from this Agreement; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 13 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 13; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 13 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 13 will be enforceable.
14. GOVERNING LAW AND VENUE
This Agreement and your download and installation of, and access to, the Software and the Services will be governed by and construed under the laws of the State of Washington, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. Each party irrevocably consents to the jurisdiction and venue of the federal and state courts located in King County, Washington, U.S.A., with respect to any dispute between the parties that is not subject to arbitration under this Agreement.
You may not assign or transfer this Agreement, or any of the rights licensed hereunder, to any third party without the prior written consent of ZEMAX, and any assignment in violation of the foregoing shall be null and void. ZEMAX may assign this Agreement to any affiliate or third party, in whole or in part, without your consent.
If any provision of this Agreement is held to be ineffective, unenforceable, or illegal for any reason, such decision shall not affect the validity or enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances and such provision shall be reformed only to the extent necessary to make it effective, enforceable, and legal under such circumstances.
The acceptance of any purchase order placed by you for the Software, if any, is expressly made conditional on your assent to the terms and conditions of this Agreement, and ZEMAX agrees to furnish the Software only upon these terms and conditions and not those contained in your purchase order. This Agreement may be modified and superseded when you download updates and upgrades to the Software, but this Agreement may otherwise not be modified without the prior written consent of the parties hereto. ZEMAX’s failure to exercise any of its rights or remedies under this Agreement, or otherwise by law, will not be construed as a waiver of ZEMAX's right to assert or rely upon those rights or remedies in that or any other instance. This Agreement contains the entire agreement and understanding between you and ZEMAX with respect to your purchase and use of the Software and supersedes any and all prior agreements (whether written or oral).