Zemax Terms of Service

Last update January 20, 2022

 

Please read these Terms of Service (“Terms”) carefully, because to the extent permissible under applicable law, the Terms constitute a binding legal agreement between you, an individual, as well as the entity you may represent and on whose behalf you are agreeing to these Terms (collectively, “you”) and Zemax, LLC, located at 10230 NE Points Drive, Suite 500, Kirkland, Washington 98033; Zemax China; Zemax Europe, Ltd.;1 Zemax Japan K.K.; and Zemax Taiwan (collectively, “Zemax” or “we”). These Terms, and our Privacy Policy,apply to your access to and use of the Products (defined below), websites and mobile applications, including without limitation, www.zemax.com ,www.zemax.jp, www.zemax.net.cn and my.zemax.com (collectively, the “Site”), pursuant to which we make available our cutting edge optical products available for licensing and offer customer support (the “Products”), (collectively, with the Site, the “Services”). We may supply different or additional terms in relation to some of our Services, including but not limited to our End User License Agreements with respect to our Products, and those different or additional terms become part of your agreement with us if you use those Services. If there is a conflict between these Terms and the additional terms, the additional terms will control for that conflict.

 

PLEASE READ THESE TERMS CAREFULLY, INCLUDING THE MANDATORY ARBITRATION PROVISION IN SECTION 20, WHICH REQUIRES THAT DISPUTES BE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS, NOT A CLASS-WIDE OR CONSOLIDATED BASIS. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN SECTION 20.

BY CLICKING “I ACCEPT,” ACCESSING OR USING OUR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO THESE TERMS IN THEIR ENTIRETY, DO NOT USE OUR SERVICES.

If you have any questions about these Terms or our Services, please contact us na-contracts@ansys.com.

 

Zemax’s End User License Agreement and its Terms of Service as detailed herein, govern all purchases and are senior to any and all customer purchase order terms unless otherwise agreed to in writing.

 

1. CHANGES TO TERMS OF SERVICE

We may revise and update these Terms from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Services thereafter. [However, any changes to the dispute resolution provisions set forth in Dispute Resolution; Binding Arbitration will not apply to any disputes for which the parties have actual notice on or prior to the date the change is posted on the Site.] Your continued use of the Site following the posting of revised Terms means that you accept and agree to the

changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.

 

2. ELIGIBILITY

a. You must be at least 18 years of age to use our products, services or access our websites. If you are under 18 years of age (or the age of legal majority where you live), you may not use our products, services or access our sites unless you are under the supervision of a parent or legal guardian bound by these Terms. By using this Site or accessing our product or services, you represent and warrant that you are 18 years of age or older.

 

b. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you are fully responsible for the acts or omissions of such user in relation to our products and websites.

 

c. If you use our products or access our website on behalf of another person or entity,

a. all references to “you” throughout these Terms will include that person or entity,

b. you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity is responsible to us.

 

3. PAYMENTS; ORDERING; BILLING

a. Zemax’s preferred form of payment are ACH, wire, or other electronic means as are available from time to time. Zemax does not accept virtual currencies as a form of payment. Zemax will provide you with electronic payment instructions as part of the quoting and invoicing process.

 

b. Zemax does not accept checks as a form of payment without the customer having arranged another method at the time of sale.

 

c. You will provide accurate and up-to-date payment information at the time you order any Product.

 

d. For credit card payments, we have contracted with a third-party payment processor to facilitate payment for licenses made on the Site. When you purchase a license right to a Product through the Site, you will provide your payment details and any additional information required to complete your order directly to our third-party payment processor. Online payment transactions are subject to validation checks by our payment processor and your card issuer, and we are not responsible if your card issuer declines to authorize payment for any reason. For your protection, our payment processor uses various fraud prevention protocols and industry standard verification systems to reduce fraud and you authorize it to verify and authenticate your payment information. Please note, it is possible that your card issuer may charge you an online handling fee or processing fee. We are not responsible for this. In some jurisdictions, our payment processor may use third parties under strict confidentiality and data protection requirements for the purposes of payment processing services.

 

c. You will have sufficient funds or credit available upon placement of any such order to ensure that the purchase price will be collectible by us. After you place your order, we will send you a confirmation email (the “Order Confirmation”).

 

d. Generally, quoted prices on the Site are valid for thirty (30) days. We strive to provide accurate pricing information regarding the Products available on the Site. We cannot, however, insure against pricing errors. We reserve the right, at our sole discretion, to not process or to cancel any orders placed for a Product whose price was incorrectly posted on the Site as a result of an error. If this occurs, we will notify you by email.

 

e. Products may not be resold, as you are purchasing a license to use the Product, not a property right to the Product, notwithstanding the use of the term “ownership” with respect to the license. You will not resell or distribute such Products for any commercial purposes. All orders are subject to our acceptance or rejection based on your compliance with these Terms or any other reason as determined in our sole discretion. For instance, if we have reason to believe that your order is not for approved use, or if we believe you intend to resell or distribute Products without our express written consent, we reserve the right to reject or cancel any order that you place. We also reserve the right, in our sole discretion, to take steps to verify your identity to process your order. We will either not charge you or refund the charges for orders that we cancel or do not process, except when such a refund would violate applicable law.

 

4. SHIPPING AND DELIVERY

a. Single user licensed products are delivered via email as “soft key licenses” only. Network licenses are also delivered softkey only. In rare circumstances where you can demonstrate a material business need, as approved by Zemax at its sole discretion, you may be able to purchase a hard key for a network license. If you require a hard key license, Zemax may require a minimum order, and in some locations, we may also require prepayment.

 

b. Unless otherwise specified, prices quoted are exclusive of:

a) the costs of shipping or carriage to the agreed place of delivery, if applicable;

b) insurance during transit; and (c) value added tax and any other tax or duty which (where applicable) must be added to the price payable.

 

c. You will pay for taxes, shipping or carriage of the Products as such costs are specified by us when you submit your order. Because ownership of the Product license transfers to you at shipping, you are responsible for insurance during transit, which Zemax does not cover.

5. SUBSCRIPTIONS; SUPPORT; SUPPLEMENTAL SERVICES

a. Subscriptions. Subscription orders include technical support over email, product updates, upgrades to existing features and new capabilities to the software (through downloads) for the length of the subscription term, except for where such support, updates, upgrades, and provision of new capabilities violates applicable law, including U.S. export control and sanctions laws.  All subscription orders include the Productivity Assurance plan in the purchase price.  Productivity Assurance for subscription software does not include a discount for Zemax training courses.  The subscription automatically renews, but payment information must be renewed at the end of the term

to maintain access to the product.  For clarity, Zemax does not retain payment information, so it is your responsibility to provide payment at the end of a subscription term. Unless you have previously opted out of autorenewal, to terminate your annual subscription, you must provide Zemax with written notice at least sixty (60) days before the end of a subscription term.  If you do not provide Zemax with the appropriate notice, you have renewed your product(s) and Zemax will invoice you.

 

b. Perpetual Licenses. When you purchase Zemax software Products on a perpetual license, your purchase will include technical support services for one year, except for where such support services violate applicable law, including U.S. export control and sanctions laws.  Such support services include upgrades to existing features via download from the web.  Your technical support services automatically renew at the end of each year, subject to your payment of the relevant support services fees and adherence to payment terms.  Unless you have previously opted out of autorenewal, to terminate your support services, you must provide Zemax with written notice at least sixty (60) days before the end of the then current support services term.  If you do not provide Zemax with the appropriate notice, you have renewed your product(s) and Zemax will invoice you. You also have the opportunity to purchase the following supplemental services for your perpetual license (“Supplemental Services”).

 

c. Productivity Assurance.  Productivity Assurance includes a one-time key replacement discount and a one-time training discount for the term of the support services subscription.  Further details are available on the  Productivity Assurance page.  Productivity Assurance may only be purchased in conjunction with an active support services subscription.

 

d. Supplemental Services are not deliverable.  Information required to confirm the purchase of software Products, such as user information, user registration information or key serial number may be required to purchase Supplemental Services.  Supplemental Support orders are processed within one to three business days. 

 

e. Current support orders and current support with Productivity Assurance orders are non-refundable and also non-transferable. If you are renewing a support contract that has already expired, please allow up to three business days before you attempt to download and install the latest release of the software.

 

6. RETURN POLICY; REPLACEMENT KEYS

 

a. Support & Maintenance, Supplemental Services, OpticsAcademy, Upgrades, software Products, and Custom Work Products are non-refundable. Instructor-led training are non-refundable, and registrations cannot be transferred to alternate class sessions.

b. To replace a lost or stolen key, please review the  Zemax Licensing Policy, incorporated by this reference.

 

7. USER ACCOUNTS AND ACCOUNT SECURITY

You may need to register for an account to access some or all of our Services. If you register for an 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 promptly notify us if you discover or suspect that someone has accessed your account without your

permission. Permitting others to use your account credentials is prohibited. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.

 

8. USER CONTENT

a. Our Services may allow you and other users to create, post, store and share content, including messages, text, photos, videos, software, files and other materials (collectively, “User Content”). Except for the license you grant below, you retain all rights in and to your User Content, as between you and Zemax.

b. You grant Zemax, its subsidiaries and affiliates a nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform, display and otherwise disclose to third parties any such User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed and for any purpose without compensation to you. When you post or otherwise share User Content on or through our Services, your User Content and any associated information (such as your username or profile photo) may be visible to others. Notwithstanding the foregoing, if you submit User Content privately to Zemax (i.e., not User Content posted on the Zemax communities or forums) for the purpose of receiving support services, you grant Zemax an unlimited license to use the User Content to provide support services or improve its products as it sees fit.

c. You may not create, post, store or share any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above.

d. You represent and warrant that (i) You own or control all rights in and to the User Content and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns; (ii) all of your User Content does and will comply with these Terms of Service; (iii) the extent the User Content includes the personally identifiable information (or equivalent) of any third party, you have an appropriate legal basis (which may include the consent of such individual), in order to collect and share such personally identifiable information as User Content, and have provided such individual with the appropriate fair processing information, including a copy of our Privacy Policy ; and (iv) your User Content, and our use of such content as permitted by these Terms, will not violate any rights of or cause injury to any person or entity.

e. You understand and acknowledge that you, not Zemax. are responsible for any User Content you submit or contribute, and you have full responsibility for such content, including its legality, reliability, accuracy and appropriateness.

You agree that you must evaluate, and bear all risks associated with the use of any User Content or other Non-Zemax Content, including any reliance on the accuracy, completeness, usefulness, non-infringement or legality of such User Content or other Non-Zemax Content. We are not responsible, or liable to any third party, for the content or accuracy of any User Content posted by you or any other user of the Services.

f. Although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason with or without notice.

 

9. PROHIBITED CONDUCT AND CONTENT

a. You will not violate, or take actions that would cause Zemax to violate, any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Services. You will not:

1. Engage in any harassing, threatening, intimidating, predatory or stalking conduct;

2. Use or attempt to use another user’s account;

3. Impersonate or post on behalf or any person or entity or otherwise misrepresent your affiliation with a person or entity;

4. Sell or resell our Services without our prior written consent;

5. Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;

6. Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;

7. Use our Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;

8. Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;

9. Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services;

10. Develop or use any applications that interact with our Services without our prior written consent;

11. Send, distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;

12. Bypass or ignore instructions contained in our robots.txt file;

13. Use our Services in a manner that causes Zemax to provide “defense services” as that term is defined in the International Traffic in Arms Regulations;

13. Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms; or

14. Access or use of the Services in any region other than the region specified in your quote or purchase order. Country details for each region are further defined by Regional Country details. You must confirm the countries in which you plan to use the Products and Services, and Zemax must approve your use of the Products and Services in each specific country within the designated region.

15. You will not provide access to software to any company, country, entity, or persons (i) on the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) (SDN List), the Entity List, Denied Persons List, or Unverified List maintained by the U.S. Department of Commerce’s Bureau of Industry and Security, or any such similar restricted party lists maintained by relevant government authorities (collectively, “Denied Parties Lists”), (ii) located, organized, or resident in any jurisdiction subject to comprehensive U.S. sanctions (currently Cuba, Iran, North Korea, Syria, Venezuela, and the Crimea region), (iii) who are engaged in any end uses or are otherwise end users that are subject to restrictions under the Export Administration Regulations or economic sanctions maintained by OFAC (collectively,

“US Government Export Laws”), or (iv) in any manner that otherwise may violate or cause Zemax to violate US Government Export Laws.

 

You may also post or otherwise share only User Content that is nonconfidential and that you have all necessary rights to disclose. You may not create, post, store or share any User Content that: (i) is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent; (ii) would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law; (iii) May infringe any patent, trademark, trade secret, data rights, copyright or other intellectual or proprietary right of any party; (iv) contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences; (v) impersonates, or misrepresents your affiliation with, any person or entity; (vi) contains any unsolicited promotions, political campaigning, advertising or solicitations; (vii) contains any private or personal information of a third party without such third party’s consent; (viii) contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or (ix) in our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Services, or may expose Zemax or others to any harm or liability of any type.

Zemax reserves the right to (i) take any action with respect to any User Content that we deem necessary or appropriate in our sole discretion, including if we believe that such User Content violates the Terms, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Site or the public or could create liability for Zemax. (ii) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (iii) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Site; or (iv) terminate or suspend your access to all or part of the Site for any or no reason, including without limitation, any violation of these Terms. Enforcement of this Section 9 is solely at Zemax’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances.  In addition, this Section 9 does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.

 

 

10. OWNERSHIP; LIMITED LICENSE

The Services, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by Zemax or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.

 

11.TRADEMARKS

ZEMAX, OPTICSTUDIO, LENSMECHANIX, OPTICS BUILDER, and others as added from time to time, and our logos, our product or service names, our slogans and the look and feel of the products and services, or any other similar indicia of source, are trademarks of Zemax and may not be copied, imitated, or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services,

processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.

 

12. FEEDBACK

You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about Zemax or our Services (collectively, “Feedback”). We may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including, without limitation, to develop, copy, publish, or improve the Feedback in Zemax’s sole discretion. Zemax may treat Feedback as nonconfidential.

 

13. REPEAT INFRINGER POLICY; COPYRIGHT COMPLAINTS

In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you are a copyright owner or an agent thereof, and believe that any User Content or other Third Party Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C. 512(c)(3) for further detail): (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative listing of such works or a link or URL to all such works; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity on the Site and that is to be removed or access to which is to be disabled, including information reasonable sufficient to allow use to located such material on the Site (such as a link or URL); (iv) information reasonably sufficient to permit Zemax to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; (v) a statement that you as the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

 

Designate Agent: Zemax DMCA Agent

Address 10240 NE Points Drive, Suite 500

Kirkland WA, 98033

 

Telephone Number: +1 (425) 305-2800

Email address copyright@zemax.com

 

Please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to Zemax for certain costs and damages.

 

14. THIRD-PARTY CONTENT

We may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. Zemax does

not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.

 

15. INFORMATION ABOUT YOU AND YOUR VISITS TO THE SITE All information we collect on this Site is subject to our Privacy Policy,. By using the Site, and to the extent permissible under applicable law, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

 

16. OTHER TERMS AND CONDITIONS

Additional terms and conditions may also apply to specific portions, services or features of the product. All such additional terms and conditions are hereby incorporated by this reference into these Terms.

 

17. INDEMNIFICATION

To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Zemax, our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the “Zemax Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Services. You will promptly notify Zemax Parties of any third-party Claims, cooperate with Zemax Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys' fees). The Zemax Parties will have control of the defense or settlement, at Zemax's sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Zemax or the other Zemax Parties.

 

18. DISCLAIMERS

TO THE FULLEST EXTENT PERMISSIBLE BY LAW, YOUR USE OF THE SITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE IS AT YOUR OWN RISK. THE SITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER ZEMAX NOR ANY PERSON ASSOCIATED WITH ZEMAX MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SITE. WITHOUT LIMITING THE FOREGOING, NEITHER ZEMAX NOR ANYONE ASSOCIATED WITH ZEMAX REPRESENTS OR WARRANTS THAT THE SITE, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. ZEMAX HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY SITE LINKED TO IT. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES. IF YOUR USE OF THE SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO ZEMAX PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.

 

19. LIMITATION OF LIABILITY

To the fullest extent permitted by applicable law, Zemax and the other Zemax Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if Zemax or the other Zemax Parties have been advised of the possibility of such damages. The total liability of Zemax and the other Zemax Parties for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the greater of $1,000 or the amount paid by you to use our Services. The limitations set forth in this Section 19 will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Zemax or the other Zemax Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.

 

20. Limitation on Time to File Claim.

ANY CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CLAIM ACCRUES, OTHERWISE, CLAIM IS PERMANENTLY BARRED.

 

 

21. RELEASE

To the fullest extent permitted by applicable law, you release Zemax and the other Zemax Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”

 

22. TRANSFER AND PROCESSING DATA

In order for us to provide our Services, we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.

 

23. DISPUTE RESOLUTION; BINDING

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.

 

24. NO REPRESENTATIVE ACTIONS

You and Zemax agree that any dispute arising out of or related to these Terms or our Services is personal to you and Zemax and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.

 

25. ARBITRATION OF DISPUTES. 

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 will first contact Zemax and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Zemax by email at na-contracts@ansys.com or by certified mail addressed to 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 before one arbitrator. Arbitration proceedings will be held in King County, Washington or may be conducted telephonically or via video conference for disputes alleging damages less than $1,000, 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 are available on the JAMS website and are hereby incorporated by reference. You either represent that you have read and understand the JAMS Rules or you 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.

These Terms affect interstate commerce and that the enforceability of this Section 25 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.

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 Company, Zemax will pay all JAMS fees and costs. 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 25 by emailing na-contracts@ansys.com. In order 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 27.

If any portion of this Section 25 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 25 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 25; 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 litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 25 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 25 will be enforceable.

 

26. ASSIGNMENT; CHANGING THE LICENSE ADMINISTRATOR OR OWNERSHIP INFORMATION ON A KEY

a. You may not assign these Terms or any right, interest or benefit under these Terms without prior written consent of Zemax. Any attempted assignment in violation of the foregoing will be void. Subject to the foregoing, these Terms will be fully binding upon, inure to the benefit of and be enforceable by any permitted assignee.

b. Zemax Products may not be resold.  Changing the ownership of a license is only permitted in the case of a merger or consolidation of businesses. If, due to a merger or consolidation, the company name has changed, please fax, email or mail a letter on previous company letterhead documenting the change, signed by an official of the company, and provide proof of merger or consolidation. Otherwise Zemax will not accept the change of registration.

c. To update your Zemax registration, or to change registered License administrator, please email the following items to Sales@Zemax.com

1. Key Serial Number (run Zemax software then press F10 to display this number)

2. License Administrator’s First Name

3. License Administrator’s Last Name

4. Company Name

5. Mailing Address

6. City

7. State/Country

8. Postal Code

9. Phone Number

10. Email

 

27. GOVERNING LAW AND VENUE

Any dispute arising from these Terms and your use of the Services will be governed by and construed and enforced in accordance with the laws of Washington, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of Washington or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of Washington and the United States, respectively, sitting in King County, Washington.

 

28. MODIFYING AND TERMINATING OUR SERVICES

If we discontinue providing all or portions of the Services, we will, where reasonably possible, give you advanced notice and a chance to access and move your content and data to another service. We reserve the right to modify our Services or to suspend or stop providing all or portions of our Services at any time. We will have the right to immediately terminate services, without notice, if you, or any persons accessing the Products or Services on your behalf, are listed on any Denied Parties Lists. You also have the right to stop using our Services at any time without the benefit of any refunds. We are not responsible for any loss or harm related to your inability to access or use our Services.

 

29. SEVERABILITY

If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.

 

30. MISCELLANEOUS

The failure of Zemax to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. Communications and transactions between us may be conducted electronically. Under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.