ZEMAX SUBSCRIPTION SERVICES AGREEMENT
This Subscription Services Agreement (the “Agreement”) is between ZEMAX, LLC, a Delaware limited liability company (“ZEMAX,” “we,” “us,” or “our”) and you (the “Customer” or “you”).
BY CLICKING THE BOX INDICATING ACCEPTANCE OF THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. THE INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY HEREBY REPRESENTS AND WARRANTS THAT THE INDIVIDUAL HAS THE AUTHORITY TO BIND SUCH COMPANY OR OTHER LEGAL ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” WILL REFER TO SUCH COMPANY OR OTHER LEGAL ENTITY. IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY DOES NOT HAVE SUCH AUTHORITY, OR IF CUSTOMER DOES NOT AGREE WITH THIS AGREEMENT, THE INDIVIDUAL OR CUSTOMER MUST NOT ACCEPT THIS AGREEMENT AND CUSTOMER MAY NOT USE THE ZEMAX SERVICES.
ZEMAX and Customer hereby agree as follows:
SECTION 1. DEFINITIONS
Whenever used in this Agreement with initial letters capitalized, the following terms will have the following meanings:
“Authorized User” means any individual authorized by Customer to access and use the ZEMAX Services pursuant to this Agreement.
“Confidential Information” means any information that is proprietary or confidential to the Discloser or that the Discloser is obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a third party). Confidential Information may be of a technical, business or other nature (including, but not limited to, information which relates to the Discloser's technology, research, development, products, services, pricing of products and services, customers, employees, contractors, marketing plans, finances, contracts, legal affairs, or business affairs). However, Confidential Information does not include any information that: (a) was known to the Recipient prior to receiving the same from the Discloser in connection with this Agreement; (b) is independently developed by the Recipient; (c) is acquired by the Recipient from another source without restriction as to use or disclosure; or (d) is or becomes publicly available through no fault or action of the Recipient or any third party.
“Customer Data” means all data pertaining to the access and use of the ZEMAX Services by Customer and any Authorized User.
“Discloser” means a party that discloses any of its Confidential Information to the other party.
“Enhancement” means any correction, modification, enhancement, improvement, update, bug fixes or new release of the ZEMAX Services. Enhancements do not include upgrades or new versions.
“Invoiced Subscription” has the meaning specified in Section 4.5.2.
“Proprietary Rights” means any patent, copyright, trademark, service mark, trade name, trade secret, know-how, moral right or other intellectual property right under the laws of any jurisdiction, whether registered, unregistered, statutory, common law or otherwise (including any rights to sue, recover damages or obtain relief for any past infringement, and any rights under any application, assignment, license, legal opinion or search).
“Recipient” means a party that receives any Confidential Information of the other party.
“Subscriptions” has the meaning specified in Section 4.1.
“Subscription Period” means the period of time specified in Section 4.1.
“Term” means the period of time specified in Section 7.1.
“Trademarks” means any trademarks, service marks, trade dress, trade names, corporate names, proprietary logos or indicia and other source or business identifiers.
“Unauthorized Use” means any use, reproduction, modification, distribution, disposition, possession, examination, inspection, viewing, disclosure or other activity involving the ZEMAX Platform, ZEMAX Services, or documentation of ZEMAX that is not expressly authorized under the Agreement or otherwise in writing by ZEMAX.
“ZEMAX Materials” means the Trademarks of ZEMAX, the ZEMAX Platform, documentation and ZEMAX Technology.
“ZEMAX Platform” means the ZEMAX Web sites (and all Enhancements thereto) located at www.ZEMAX.com, together with all ZEMAX Services available thereon, such other Web sites owned or maintained by ZEMAX and its affiliates from time to time.
“ZEMAX Services” means OpticStudio, LensMechanix, and any other software or services provided by ZEMAX to Customer through the ZEMAX Platform.
“ZEMAX Technology” means any know-how, processes, methodologies, specifications, designs, inventions, functionality, graphics, techniques, methods, applications, computer programs, user manuals, online documentation, products or other technology and materials of any kind, or any Enhancement thereto, used by ZEMAX in connection with the performance of the ZEMAX Services or made available by ZEMAX to Customer, any Authorized User or any third party.
SECTION 2. CUSTOMER'S RIGHTS
2.1 RIGHTS TO USE THE ZEMAX PLATFORM.
ZEMAX hereby grants to Customer a limited, nonexclusive, nontransferable, nonsublicensable, revocable license during the Term to:
(a) access and use the ZEMAX Platform and all ZEMAX Services available on the ZEMAX Platform; and
(b) identify to ZEMAX additional users (“Authorized Users”) for ZEMAX to invite to create an Account and access and use the ZEMAX Platform on Customer’s behalf. Each Account may only be used by one person - a single Account shared by multiple people is not permitted. Authorized Users are not permitted to identify other users (including other Authorized Users) to be invited to create Accounts. Customer is responsible for its Authorized Users’ compliance with this Agreement.
2.2 RESTRICTIONS; LIMITATIONS.
Customer may not use the ZEMAX Platform or ZEMAX Services in any manner or for any purpose other than as expressly permitted by this Agreement. Without limitation of the foregoing, the rights granted under this Section 2 do not include or authorize: (a) modifying, disassembling, decompiling, reverse engineering or otherwise making any derivative use of the ZEMAX Platform or any ZEMAX Services or using or accessing the ZEMAX Platform or any ZEMAX Services to build a competitive product or service; (b) using any data mining, robots or similar data gathering or extraction methods except as provided by the ZEMAX Platform or ZEMAX Services; (c) downloading (other than page caching) of any portion of the ZEMAX Platform or any information contained on the ZEMAX Platform; (d) performing or disclosing any benchmarking or performance testing of the ZEMAX Platform; (e) selling, licensing, renting, leasing, assigning, distributing, displaying, hosting, disclosing, outsourcing or otherwise commercially exploiting the ZEMAX Platform except as authorized in this Agreement; or (f) using the ZEMAX Platform other than for its intended use. During and after the Term, Customer will not assert, nor authorize, assist or encourage any third party to assert, against any of the ZEMAX Parties, any patent infringement or other intellectual property infringement claim regarding the ZEMAX Platform or any ZEMAX Service that Customer or any Authorized User has used. The rights granted under this Section 2 are conditioned on Customer’s continued compliance with this Agreement (including, without limitation, Authorized Users’ compliance with this Agreement), and will immediately and automatically terminate if Customer does not comply with any material term or condition of this Agreement.
2.3 CHANGES TO ZEMAX PLATFORM.
ZEMAX may change the ZEMAX Platform from time to time, including changing or removing features or functionality from the ZEMAX Platform. ZEMAX will notify Customer of any discontinuation of the ZEMAX Platform.
2.4 SUSPENSION OF ZEMAX PLATFORM.
ZEMAX may, in its sole discretion, immediately temporarily suspend access to or use of the ZEMAX Platform by Customer or any Authorized User if Customer or any Authorized User violates a material restriction or obligation of Customer or Authorized Users in this Agreement, or if in ZEMAX’s reasonable judgment, the ZEMAX Platform or any component thereof is about to suffer a significant threat to security or functionality. ZEMAX will provide advance notice to Customer of any such suspension in ZEMAX’s reasonable discretion based on the nature of the circumstances giving rise to the suspension. ZEMAX will use reasonable efforts to re-establish the affected ZEMAX Platform promptly after ZEMAX determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured. ZEMAX may terminate access to the ZEMAX Platform if any of the foregoing causes of suspension are not cured within thirty (30) days after ZEMAX’s initial notice thereof. Any suspension or termination by ZEMAX under this Section 2.4 will not excuse Customer from its obligation to make payment(s) under this Agreement. If any Authorized User breaches any term or condition of this Agreement, then, in addition to any other remedies available to ZEMAX, ZEMAX will have the right, in its sole discretion, to immediately suspend access to the ZEMAX Platform by the Authorized User who failed to comply with the terms and conditions of this Agreement. Any suspension under this Section shall remain in effect until the applicable breach, if curable, is cured.
SECTION 3. ELIGIBILITY; REGISTRATION; SUPPORT; DATA PRACTICES; ZEMAX RESPONSIBILITIES
Customer must be at least 18 years old (or the age of legal majority where you reside) to purchase a Subscription (defined below), access and use the ZEMAX Platform. Authorized Users between the ages of 13 and 18 (or the legal age of majority), may use the ZEMAX Platform, but only with the permission, involvement and supervision of a parent or legal guardian who agrees to be bound by this Agreement. Customer must ensure all Authorized Users are at least 13 years of age and that such Authorized Users’ parent or legal guardian agrees to this Agreement. Customer represents and warrants that it and all Authorized Users are not: (a) a resident of any country subject to a United States embargo or other similar United States export restrictions; (b) on the United States Treasury Department’s list of Specifically Designated Nationals; (c) on the United States Department of Commerce’s Denied Persons List or Entity List; or (d) on any other United States export control list.
In order to access and use the ZEMAX Platform, Customer and each Authorized User will need to register for an Account and accept this Agreement. Customer will ensure that Customer and each Authorized User that is invited to register for an Account: (a) provide accurate, truthful, current and complete information when creating an Account; (b) maintain and promptly update all Account information; (c) maintain the security of the Account by not sharing its password with others and restricting access to the Account and their computer or mobile device; (d) promptly notify ZEMAX if Customer or an Authorized User discovers or otherwise suspects any security breaches related to such user’s Account; and (e) take responsibility for all activities that occur under such user’s Account and accept all risks of unauthorized access. Each Account login password should be chosen carefully and not contain any personal or other information that may be easily guessed by anyone else. ZEMAX may prohibit an Authorized User’s access to and use of ZEMAX Platform at any time for any reason, including upon request from Customer. If an Authorized User’s right to access and use the ZEMAX Platform is terminated, the terms set forth in Section 6.5 will continue to apply to the terminated Authorized User.
Customer is responsible for any access or use of the ZEMAX Platform under each Authorized User’s Account, including by any third parties that use any Authorized User’s Account. The acts or omissions of any Authorized User or third party under an Authorized User’s Account are considered the Authorized User’s acts or omissions, as applicable.
3.4 CONSENT TO DATA PRACTICES.
(a) The ZEMAX Platform and ZEMAX Services will identify, document, collect, analyze, transmit and record Customer Data. ZEMAX will maintain a repository of Customer Data to provide and improve the ZEMAX Platform, the ZEMAX Services and to develop new product and service offerings. Customer will disclose to its Authorized Users that the ZEMAX Platform will identify, document, collect analyze and record Customer Data and will obtain the requisite permission from each Authorized User (including parental agreement and supervision of minors under the age of majority in their jurisdiction of residence) using or accessing the ZEMAX Services to grant the license granted in Section 6.5 to such Customer Data.
(b) Customer is solely responsible for the content of any data or materials that Customer or Authorized Users use, process, submit, provide to, or make available through the ZEMAX Platform, including, without limitation, Customer Data. Customer has provided legally required notice of its use of the ZEMAX Platform and ZEMAX Services to all relevant data subjects including, but not limited to, all Authorized Users, and obtained consent for Customer to transfer personal information and other Customer Data to ZEMAX for processing in the United States.
(c) Customer represents and warrants to ZEMAX that: (i) Customer has all rights in the Customer Data necessary to grant the rights contemplated by this Agreement; and (ii) none of the Customer Data or use of the ZEMAX Platform or any Product by Customer or any Authorized Users will violate the Policies or applicable law.
SECTION 4. PAYMENTS AND TAXES
ZEMAX offers subscription plans for access and use of the ZEMAX Platform and ZEMAX Services (each, a “Subscription”) on an annual or other periodic basis, all as specified on the Pricing page of www.zemax.com (each, a “Subscription Period”).
WHEN CUSTOMER REGISTERS FOR A SUBSCRIPTION, CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT (A) ZEMAX .(OR OUR THIRD PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE CUSTOMER AT THE BEGINNING OF EACH SUBSCRIPTION PERIOD FOR CUSTOMER’S SUBSCRIPTION (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS CUSTOMER’S SUBSCRIPTION CONTINUES, AND (B) CUSTOMER’S SUBSCRIPTION IS CONTINUOUS UNTIL CUSTOMER CANCELS IT OR ZEMAX SUSPENDS OR STOPS PROVIDING ACCESS TO THE ZEMAX PLATFORM IN ACCORDANCE WITH THIS AGREEMENT.
4.3 CANCELLATION POLICY.
CUSTOMER MAY CANCEL CUSTOMER’S SUBSCRIPTION BY PROVIDING WRITTEN NOTICE OF CANCELLATION TO ZEMAX AT LEAST THIRTY (30) DAYS PRIOR TO THE END OF THE THEN CURRENT SUBSCRIPTION PERIOD. CUSTOMER WILL BE RESPONSIBLE FOR ALL CHARGES (INCLUDING ANY APPLICABLE TAXES AND OTHER CHARGES) INCURRED WITH RESPECT TO SUBSCRIPTION FEES PROCESSED PRIOR TO THE CANCELLATION OF CUSTOMER’S SUBSCRIPTION. WITHOUT LIMITING THE FOREGOING, EXCEPT AS OTHERWISE SET FORTH IN SECTION 7.2 WITH RESPECT TO CUSTOMER’S TERMINATION FOR ZEMAX’S MATERIAL BREACH OF THIS AGREEMENT, CUSTOMER WILL NOT RECEIVE A REFUND FOR ANY PARTIAL PERIOD.
4.4 PAYMENT AND BILLING INFORMATION.
ZEMAX will issue Customer an invoice within fifteen (15) days after Customer purchases the Subscription for the fees applicable to that Subscription (“Subscription Fees”). Thereafter, ZEMAX will issue invoices for the Subscription Fees for each subsequent Subscription Period thirty (30) days prior to the beginning of that Subscription Period, unless the Subscription has been terminated in accordance with this Agreement. Each invoice will state the Subscription Fees due for the upcoming Subscription Period, including any change in the amounts or other charges associated with the Subscription. Customer will pay all invoiced Subscription Fees within thirty (30) days of receipt at the address or account for ZEMAX set forth on the applicable invoice.
Any invoices not paid when due will bear interest at the pro-rated rate of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable usury law, whichever is less, computed and compounded daily from the date due until the date paid. Further, in the event of any action by ZEMAX to collect any amount not paid when due, Customer will pay or reimburse ZEMAX’s costs of collection (including, without limitation, any attorneys’ fees and court costs). ZEMAX may accept any check or payment in any amount without prejudice to ZEMAX’s right to recover the balance of the amount due or to pursue any other right or remedy. No endorsement or statement on any check or payment or in any letter accompanying a check or payment or elsewhere will be construed as an accord or satisfaction.
4.5 PRICING AND AVAILABILITY.
All prices are shown in U.S. dollars and applicable taxes and other charges, if any, are additional. ZEMAX reserves the right to adjust prices as ZEMAX may determine in its sole discretion, at any time and without notice; provided, however, that if ZEMAX changes the amounts or other charges associated with Customer’s Subscription, ZEMAX will use reasonable efforts to provide advance notice of such changes in accordance with this Section 4. ZEMAX will not, however, be required to notify Customer of changes in any applicable taxes. The ZEMAX Platform, ZEMAX Services and Subscriptions are subject to availability, and we reserve the right to impose quantity limits, or to discontinue offering certain ZEMAX Services or Subscriptions without prior notice, even if Customer has already placed an Order.
Customer is responsible for any sales, duty or other governmental taxes or fees due with respect to Customer’s purchase of a Subscription or other ZEMAX Services. ZEMAX will collect applicable sales tax if it determines that ZEMAX has a duty to collect sales tax. ZEMAX will present any taxes that it is required to collect at checkout, but note that actual taxes charged may be adjusted from the amount shown at checkout. Several factors may cause this, such as variances between processor programs and changes in tax rates.
SECTION 5. SUPPORT; MODIFICATIONS
During the Term, ZEMAX will provide support to Customer and Authorized Users relating to the use and operation of the ZEMAX Platform as described on the ZEMAX website at www.zemax.com. Questions can be emailed to email@example.com.
5.2 USE OF CUSTOMER DATE FOR SUPPORT.
IN ADDITION TO ANY OTHER CONSENT CUSTOMER MAY PROVIDE TO ZEMAX (ON BEHALF OF CUSTOMER OR ITS AUTHORIZED USERS), CUSTOMER, ON BEHALF OF ITSELF AND ALL ITS AUTHORIZED USERS, AUTHORIZES ZEMAX AND ITS EMPLOYEES OR SUBCONTRACTORS TO ACCESS THE APPLICABLE ACCOUNT AND CUSTOMER DATA AND MODIFY THE CUSTOMER DATA STORED THEREIN TO PERFORM ANY REQUESTED DEBUGGING, MAINTENANCE OR REPAIRS.
SECTION 6. PROPRIETARY RIGHTS
6.1 THE ZEMAX PLATFORM.
As between ZEMAX and Customer, ZEMAX owns all right, title, and interest in and to the ZEMAX Platform and the ZEMAX Services. Except as otherwise specified in Section 2.1 of this Agreement, Customer does not obtain any rights under this Agreement from ZEMAX to the ZEMAX Platform or any ZEMAX Services, including any related Proprietary Rights.
Customer and Authorized Users may voluntarily provide ZEMAX with Feedback and may make Authorized Users available to ZEMAX on a reasonable basis for this purpose. Customer will not, and will ensure Authorized Users do not, provide any such Feedback to any third party without ZEMAX’s prior written consent in each instance. Any Feedback Customer or Authorized Users provide to ZEMAX may or may not be treated confidentially by ZEMAX, and will become the sole property of ZEMAX. ZEMAX will own, and Customer and Authorized Users hereby assign, all exclusive rights, including, without limitation, all intellectual property rights, in and to Feedback and ZEMAX will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
6.3 ZEMAX TRADEMARKS.
As between ZEMAX and Customer, ZEMAX owns all right, title and interest in and to the ZEMAX Marks and any goodwill arising out of the use of the ZEMAX Marks will remain with and belong to ZEMAX and its licensors. The ZEMAX Marks may not be copied, imitated or used without the prior written consent of ZEMAX or the applicable trademark holder.
6.4 ADDITIONAL PROTECTION OF PROPRIETARY RIGHTS.
Customer will not infringe or violate, and will take appropriate steps and precautions for the protection of, the ZEMAX Platform or any ZEMAX Services and related Proprietary Rights referred to in Section 6.1. Customer will immediately notify ZEMAX of any Unauthorized Use that comes to Customer’s attention. In the event of any Unauthorized Use relating to the activities of Customer, Authorized Users or any other user, Customer will take all steps reasonably necessary to terminate such Unauthorized Use. Customer will immediately notify ZEMAX of any legal proceeding initiated by Customer in connection with any such Unauthorized Use. ZEMAX may, at its option and expense, assume control of such proceeding. If ZEMAX assumes such control, ZEMAX will have exclusive control over the prosecution and settlement of the proceeding, and Customer will provide such assistance related to such proceeding as ZEMAX may reasonably request. Customer will assist ZEMAX in enforcing any settlement or order made in connection with such proceeding.
6.5 CUSTOMER DATA.
(a) As between ZEMAX, Customer and Authorized Users, Customer and each Authorized User retains all right, title and interest in and to their respective Customer Data. Except as provided in this Section 6.5, ZEMAX obtains no rights under this Agreement from Customer or such Authorized Users to the Customer Data, including any related Proprietary Rights.
(b) Customer and each Authorized User hereby grants to ZEMAX a perpetual, irrevocable, nonexclusive license to collect, generate, document, record, store, maintain, make available to third parties only on a de-identified basis and to use, modify, sell, resell or otherwise exploit for its own business purposes (provided that any sale or resale will be on a de-identified basis), Customer Data collected or otherwise generated as a result of Customer or such Authorized User’s use of the ZEMAX Platform or any ZEMAX Services.
6.6 CONFIDENTIAL INFROMATION.
Each party reserves any and all right, title and interest (including, without limitation, any Proprietary Rights) that it may have in or to any Confidential Information that it may disclose to the other Party under this Agreement. The Recipient will protect Confidential Information of the Discloser against any unauthorized use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against unauthorized use or disclosure, but in no event will use less than a reasonable standard of care to protect such Confidential Information; provided, that the Confidential Information of the Discloser is conspicuously marked or otherwise identified as confidential or proprietary upon receipt by the Recipient or the Recipient otherwise knows or has reason to know that the same is Confidential Information of the Discloser. The Recipient will use any Confidential Information of the Discloser solely for the purposes for which it is provided by the Discloser. This paragraph will not be interpreted or construed to prohibit: (a) any use or disclosure which is necessary or appropriate in connection with the Recipient's performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (b) any use or disclosure required by applicable law (e.g., pursuant to applicable securities laws or legal process), provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof (e.g., so as to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure); or (c) any use or disclosure made with the consent of the Discloser. In the event of any breach or threatened breach by the Recipient of its obligations under this paragraph, the Discloser will be entitled to injunctive and other equitable relief to enforce such obligations.
SECTION 7. TERM AND TERMINATION
The Term of this Agreement will commence as of the date you click to accept the Agreement and will continue as long as any Subscription Period is in effect, unless and until terminated pursuant to Section 7.2 of this Agreement (the “Term”).
7.2 TERMINATION FOR MATERIAL BREACH.
If either party commits a material breach of or default under this Agreement, then the other party may give the breaching party written notice of the breach or default (including, but not necessarily limited to, a statement of the facts relating to the breach or default, the provisions of this Agreement that are in breach or default and the action required to cure the breach or default) and that the then-current Term will terminate pursuant to this paragraph if the breach or default is not cured within thirty (30) days after receipt of notice (or such later date as may be specified in the notice). If the breaching party fails to cure the specified breach or default within thirty (30) days after receipt of such notice (or such later date as may be specified in such notice), then the then-current Term will terminate without any further notice or action by the terminating party.
7.3 EFFECT OF TERMINATION.
If the Term is terminated pursuant to and in accordance with this Section 7, then, unless otherwise specifically provided for in writing by the parties, the following will apply: (a) the parties will cooperate to effect an orderly, efficient, effective and expeditious termination of the party's respective activities under this Agreement; (b) the rights granted to Customer with respect to the ZEMAX Services and the ZEMAX Materials will terminate effective as of the effective date of the termination; (c) Customer will return to ZEMAX any and all Confidential Information of ZEMAX in the possession or control of Customer; (d) ZEMAX will return to Customer any and all Confidential Information of Customer in its possession or control; (e) unless otherwise agreed upon by the parties, ZEMAX will have no obligation to provide the ZEMAX Services to Customer or Authorized Users after the effective date of the termination; (f) Customer will pay to ZEMAX any amounts payable for Customer's and Authorized User’s use of the ZEMAX Services prior to the effective date of the termination; (g) any and all liabilities accrued prior to the effective date of the termination will survive; and (h) the parties' respective rights and obligations under Section 1, Section 2.2, and Sections 6, 7.3, 8, 9, 10 and 11 of this Agreement will survive.
SECTION 8. DISCLAIMERS OF WARRANTY
8.1 THE ZEMAX SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ZEMAX AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. FURTHER, ZEMAX AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS DO NOT WARRANT AND HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, THAT YOUR USE OF THE SITE OR THE ZEMAX SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER(S) ON WHICH THE SITE IS HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
SECTION 9. CUSTOMER WARRANTIES
In addition to any warranties set forth elsewhere in the Agreement, Customer warrants to ZEMAX that the performance of Customer’s obligations and Customer and Authorized Users' access to and use of the ZEMAX Services will not violate any third party rights or any applicable laws, rules or regulations.
Customer 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; (b) any damage arising from causes beyond the control or without the fault or negligence of ZEMAX; (c) any use by Customer or Authorized Users of the ZEMAX Services or any other software, services or other items provided under this Agreement.
9.3 INDEMNIFICATION PROCESS.
In the event of any claim described in Section 9.2, ZEMAX will have the right to approve the counsel selected by Customer for defense of any such claim, which approval will not be unreasonably withheld. ZEMAX will provide Customer prompt written notice of any such claim and such information and assistance as Customer may reasonably request to help Customer defend such claims; provided that Customer pays or reimburses all of the costs and expenses reasonably incurred by ZEMAX in connection with any assistance requested by Customer under this Section 9.3. Customer will not have any right to settle any such claim without ZEMAX's written consent, if such settlement arises from or is part of any criminal action, suit or proceeding or contains a stipulation to or admission or acknowledgment of, any liability or wrongdoing (whether in contract, tort or otherwise) on the part of ZEMAX or its affiliates or otherwise requires ZEMAX or its affiliates to take or refrain from taking any material action (such as the payment of fees).
SECTION 10. LIMITATIONS
10.1 FORCE MAJEURE.
Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond such party's reasonable control (including, without limitation, any act or failure to act by the other party). This paragraph will not apply to any payment obligation of either party.
10.2 NO CONSEQUENTIAL DAMAGES.
NEITHER ZEMAX NOR ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OWNERS, OR SUPPLIERS WILL BE LIABLE TO CUSTOMER OR ANY AUTHORIZED USERS, FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR ANY LOSS OF PROFIT, REVENUE, DATA, BUSINESS OR USE) EVEN IF ZEMAX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM OR RELATED TO ANY PROVISION OF THIS AGREEMENT, THE ZEMAX SERVICES, THE ZEMAX MATERIALS OR ANY SOFTWARE, SERVICES OR OTHER ITEMS PROVIDED IN CONNECTION THEREWITH, OR THE FAILURE OF ZEMAX TO PERFORM ITS OBLIGATIONS, REGARDLESS OF ANY NEGLIGENCE BY ZEMAX.
10.3 LIMITATION OF LIABILITY.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF ZEMAX WITH REGARD TO THE ZEMAX SERVICES, THE ZEMAX MATERIALS AND ANY SOFTWARE, SERVICES OR OTHER ITEMS PROVIDED OR FAILED TO BE PROVIDED UNDER THIS AGREEMENT EXCEED THE COMPENSATION PAID BY CUSTOMER TO ZEMAX UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE ACCRUAL OF SUCH CLAIM. CUSTOMER’S RIGHT TO MONETARY DAMAGES UP TO THAT AMOUNT WILL BE IN LIEU OF ALL OTHER REMEDIES THAT CUSTOMER OR ANY AUTHORIZED USERS MAY HAVE AGAINST ZEMAX OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OWNERS, AND SUPPLIERS.
SECTION 11. MISCELLANEOUS
11.1 COMPLIANCE WITH LAWS.
In performance of their respective obligations under this Agreement, each party will comply with all applicable laws, rules, regulations, orders and other requirements, now or hereafter in effect, of governmental authorities having jurisdiction.
11.2 INDEPENDENT CONTRACTORS.
Each party is an independent contractor and not a partner or agent of the other. This Agreement will not be interpreted or construed as creating or evidencing any partnership or agency between the parties or as imposing any partnership or agency obligations or liability upon either party. Further, neither party is authorized to, and will not, enter into or incur any agreement, contract, commitment, obligation or liability in the name of or otherwise on behalf of the other party.
Any notice or other communication under this Agreement given by either party to the other party will be deemed to be properly given if given in writing and (i) delivered in person; or (ii) sent via overnight courier or mailed via registered mail, properly addressed and stamped with the required postage, to ZEMAX at or to Customer at the address specified on the signature page of this. Notice will be effective upon receipt. Either party may from time to time change its address for purposes of this paragraph by giving the other party notice of the change in accordance with this paragraph.
Neither party will assign this Agreement without the prior written consent of the other party; provided, however, ZEMAX may assign this Agreement without such consent to any subsidiary or parent of ZEMAX or to any successor by way of any merger, consolidation or other corporate reorganization of ZEMAX or sale of all or substantially all of the assets of ZEMAX. No assignment, with or without such consent, will relieve any party from its obligations under this Agreement. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
The failure of either party to insist upon or enforce performance by the other party of any provision of this Agreement, or to exercise any right or remedy under this Agreement or otherwise by law, will not be construed as a waiver or relinquishment of such party's right to assert or rely upon the provision, right, or remedy in that or any other instance; rather the provision, right or remedy will be and remain in full force and effect.
11.6 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.
Except for (a) any disputes regarding ownership or enforceability of intellectual property rights of a party; (b) any claim for injunctive relief; or (c) disputes in which either party seeks to bring an individual action in small claims court located in the county of your billing address, if the dispute meets the requirements to be heard in small claims court, you and ZEMAX waive your rights to a jury trial and to have any dispute arising out of or related to this Agreement or the ZEMAX Platform resolved in court. Instead, all disputes arising out of or relating to this Agreement or the ZEMAX Platform will be resolved through confidential binding arbitration held in Seattle, Washington before and in accordance with the Streamlined Arbitration Rules and Procedures (“Rules”) of the Judicial Arbitration and Mediation Services (“JAMS”), which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
You and ZEMAX agree that any dispute arising out of or related to this Agreement or the ZEMAX Platform is personal to you and ZEMAX and that any dispute 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.
You and ZEMAX agree that this Agreement affects interstate commerce and that the enforceability of this Section 11.6 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, this Agreement 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; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by this Agreement. The arbitrator may only conduct 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. You and ZEMAX agree that for any arbitration you initiate, you will pay the filing fee 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 you may have arising out of or related to this Agreement or the ZEMAX Platform must be filed within one year after such claim arose; otherwise, your 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 thirty (30) days of the date you first accepted the terms of this Section 11.6 by notifying us in writing of your intent to opt out. In order to be effective, the opt out notice must include your full name 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 11.7.
11.7 APPLICABLE LAW; JURISDICTION AND VENUE.
This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Washington, U.S.A., without reference to its choice of law principles to the contrary. Customer hereby consents to the jurisdiction and venue of the state and federal courts located in King County, State of Washington, U.S.A. with respect to any claim arising under or by reason of this Agreement. Customer will not prosecute any action, suit, proceeding or claim arising under or by reason of this Agreement except in such courts.
This Agreement will be enforced to the fullest extent permitted by applicable law. If any provision of this Agreement is held to be invalid or unenforceable to any extent, then (a) such provision will be interpreted, construed and reformed to the extent reasonably required to render the same valid, enforceable and consistent with the original intent underlying such provision and (b) such invalidity or unenforceability will not affect any other provision of this Agreement.
11.9 ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement, and supersedes any and all prior agreements (whether written or oral), Web site terms, comments or information, and any and all other representations or information made by ZEMAX or any third party, between ZEMAX and Customer with respect to the subject matter of this Agreement. This Agreement can be amended only in a writing signed by an authorized representative of each party.