OpticStudio Cloud Trial Services Agreement

ZEMAX TRIAL SERVICES AGREEMENT

This Service Trial Agreement (the “Agreement”) is between Zemax, LLC, a Delaware limited liability company (“Zemax,” “we,” “us,” or “our”) and you (the “Customer” or “you”) for your use of the Zemax service platform (“Zemax Platform”) together with the applications made available thereon, including OpticStudio and LensMechanix (the “Zemax Services”). 

BY USING ALL OR ANY PORTION OF THE ZEMAX SERVICES OR BY ACTIVATING YOUR TRIAL ACCOUNT WITH ZEMAX, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THIS AGREEMENT, DO NOT ACTIVATE A TRIAL ACCOUNT WITH ZEMAX OR USE OR ACCESS THE ZEMAX PLATFORM OR SERVICES. 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.   

1. Zemax Platform and Zemax Services License
Zemax hereby grants to Customer the right to access and use the Zemax Platform and all Zemax Services for the duration of the Trial Period solely for Customer’s internal business purposes. For the avoidance of doubt, Customer will have no right sell, offer to sell, or commercialize any design or other filed created, stored, or processed by Customer using the Zemax Services or Zemax Platform during the Trial Period. 

2. License 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, Customer will not (and will not allow any third party to): (a) modify, disassemble, decompile, reverse engineer or otherwise make any derivative use of the Zemax Platform or any Zemax Services or use or access the Zemax Platform or any Zemax Services to build a competitive product or service; (b) use any data mining, robots or similar data gathering or extraction methods except as provided by the Zemax Platform or Zemax Services; (c) download (other than page caching) of any portion of the Zemax Platform or any information contained on the Zemax Platform; (d) perform or disclose any benchmarking or performance testing of the Zemax Platform; (e) sell, license, rent, lease, assign, transfer, permit access to, distribute, display, host, disclose, outsource or otherwise commercially exploit the Zemax Platform except as authorized in this Agreement; or (f) using the Zemax Platform other than for its intended use. 

3. Ownership and Confidentiality; Data
The Zemax Platform and/or Zemax Services are made available, not sold, to you.  We or our licensors own all right, title and interest in and to the Zemax Platform and all Zemax Services, including all copyright, patent and other intellectual property or other proprietary rights therein or thereto.  No title to or ownership of the Zemax Platform and all Zemax Services or any associated intellectual property or proprietary rights are transferred to you by this Agreement. 
The Zemax Platform and/or Zemax Services may periodically identify, document, collect, analyze, record, and transmit to Zemax information about the device and network on which you (or anyone you allow to) access the Software, such as your (or another user who access the Software) computer name or device identifier, IP address and other related information.  You agree that Zemax may use this information to improve the Zemax Platform and/or Zemax Services, develop new product and service offerings, and to provide Zemax Platform and Zemax Services updates, product support and other services to you.

4. Disclaimers
THE ZEMAX PLATFORM AND ZEMAX SERVICES ARE PROVIDED TO YOU FREE OF CHARGE AND ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. ZEMAX AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. ZEMAX DOES NOT REPRESENT OR WARRANT THAT THE ZEMAX PLATFORM OR ZEMAX SERVICES ARE FREE OF BUGS, ERRORS, VIRUSES OR OTHER DEFECTS. ZEMAX AND ITS LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND FOR THE USE OF OR INABILITY TO USE THE ZEMAX PLATFORM OR ZEMAX SERVICES.

5. Indemnification
You will defend, indemnify and hold harmless Zemax and its affiliates, independent contractors, service providers, suppliers, partners, resellers, distributors and consultants, and their respective directors, officers, employees and agents (collectively, the “Zemax Parties”) from and against any third party claims, suits or actions and any resulting damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to: (a) your use of, or inability to use, the Zemax Platform or Zemax Services; or (b) your violation of any terms of this Agreement.

6. Limitation of Liability
IN NO EVENT SHALL ANY OF THE ZEMAX PARTIES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE ZEMAX PLATFORM OR ZEMAX SERVICES, EVEN IF A ZEMAX PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE ZEMAX PARTIES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ZEMAX PLATFORM OR ZEMAX SERVICES EXCEED THE COMPENSATION YOU HAVE PAID, IF ANY, TO ZEMAX FOR THE ZEMAX PLATFORM OR ZEMAX SERVICES.

7. Termination
This Agreement will continue for the duration of the trial period identified by Zemax (“Trial Period”).  At the end of the Trial Period, the Agreement and your rights to access and use the Zemax Platform and Zemax Services will automatically terminate (and Zemax may remotely disable your access and use).  Without limiting the foregoing, Zemax may terminate this Agreement at any time, with or without cause, immediately upon notice to you. You may terminate this Agreement by terminating and ceasing to access your account. In the event of the expiration or termination of this Agreement for any reason: (a) your rights to access and use the Zemax Platform and Zemax Services (including any information, files, or data uploaded, inputted, or processed by You therewith or thereon) will terminate; and (b) Sections 3-10 will survive any such termination.

8. Evaluation and Feedback
Zemax may request information and feedback regarding the performance, features, functionality and your overall experience using the Zemax Platform and Zemax Services (“Feedback”) and you will use reasonable effort to will make yourself available to Zemax on a reasonable basis for this purpose.  You will not provide any such Feedback to any third party without Zemax’s prior written consent in each instance.  You hereby grant to Zemax an exclusive, royalty-free, irrevocable, perpetual worldwide right and license to reproduce, use, disclose, exhibit, display, transform, create derivative works and distribute any such Feedback without limitation. Further, we will be free to use any ideas, concepts, know-how or techniques contained in such Feedback for any purpose whatsoever, including, without limitation, developing, making, marketing, distributing and selling products and services incorporating such Feedback. We will have no obligation to pay for, consider, use, return or preserve any Feedback you provide to us.

9. Governing Law; Jurisdiction
This Agreement is governed by the laws of the State of Washington, without regard to any conflict of law principles to the contrary. You hereby irrevocably consent to jurisdiction of the state and federal courts located in King County, Washington with respect to any proceeding regarding this Agreement or the Zemax Platform or Zemax Services. The 1980 UN Convention for the International Sale of Goods or any successor thereto does not apply to this Agreement. 

10. General
Zemax shall be excused from performance hereunder to the extent performance is prevented, delayed or obstructed by causes beyond its reasonable control.  Zemax's failure at any time or times to enforce the strict performance of any provision of this Agreement will not constitute a waiver of Zemax's right to subsequently enforce such provision or any other provision of this Agreement.  In any action to enforce rights under this Agreement, the prevailing party shall be entitled to an award of reasonable attorneys' fees and any court costs incurred in such action or proceeding.  Neither party may sell, transfer, assign or otherwise dispose of any of its rights or obligations under this Agreement to any other person, without the express written consent of the other party, except in connection with a merger, reorganization, transfer, sale of assets or product lines, or change of control or ownership of such party.  The terms set forth in this Agreement constitute the entire agreement between the parties and may not be contradicted, explained or supplemented by evidence of any prior agreement, any contemporaneous oral agreement or any inconsistent additional terms.  Should any term or provision hereof be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect.