Term of Use

This Terms of Use Agreement (“Agreement”) is entered into between Optomechanic Cube Ltd. d/b/a 3Doptix (“3Doptix”), and the Customer or End User (defined below), as applicable. This Agreement governs the use of the applicable 3Doptix’s products and services (the “Service” or “Services”), and your use of the API (as defined below) and the receipt of associated services from 3Doptix.

You are an “End User” under this Agreement if you are using the Service in your capacity as an end user, including as an individual Customer or as an individual using the Service on behalf of and/or through an organization who is a Customer. You are a “Customer” under this Agreement if you are (a) an individual ordering Services, (b) an organization ordering Services to be used by one or more of your personnel, and/or (c) any other entity incorporating or using the Service in an online platform (of any kind whatsoever) for the purposes of the use of the Service by such third party’s users, clients and /or prospective clients. If you are an organization ordering Services, the individual who agrees to this Agreement on your behalf must have the authority to bind the organization and its End Users to this Agreement. For the avoidance of doubt, this Agreement shall apply and be in full effect with respect to you regardless of whether you accessed the Software or Services or any part thereof through the API (as defined below).  

BY CREATING AN ACCOUNT OR SIGNING TO SUCH ACCOUNT IN ANY MANNER AND/OR USING ANY SOFTWARE AND/OR APPLICATIONS (COLLECTIVELY, “SOFTWARE”) AND/OR BY ACCESSING THE API DEVELOPED BY THE 3DOPTIX THAT ALLOWS PROPRIETARY APPLICATIONS TO INTERFACE WITH THE FUNCTUINALITY OF SUCH SOFTWARE (HEREINAFTER, “API”) PROVIDED TO YOU OR YOUR ORGANIZATION BY OR ON BEHALF OF 3DOPTIX WHETHER  IN CONNECTION WITH YOUR USE OF THE SERVICE OR IN CONNECTION WITH YOUR ACCESS OF THE SOFTWARE OR SERVICES OR ANY PART THEREOF THROUGH THE API OR MAKE USE OF THE API, YOU ACKNOWLEDGE AND AGREE THAT (1) YOU HAVE READ THIS AGREEMENT; (2) YOU UNDERSTAND IT; (3) YOU ARE BOUND BY ITS TERMS; (4) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE ORGANIZATION NAMED AS THE CUSTOMER, AND TO BIND SUCH CUSTOMER TO THIS AGREEMENT; AND (5) YOU MAY RECEIVE, WITHOUT FURTHER NOTICE OR PROMPTING, UPDATED VERSIONS OF THE SOFTWARE. IF YOU DO NOT AGREE TO THE FOREGOING, YOU MAY NOT ACCESS OR USE THE SOFTWARE.

THIS AGREEMENT INCLUDES A CLASS ACTION WAIVER AND REQUIRES BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.

Our privacy policy, available at https://www.3doptix.com/privacy-policy, describes our collection, use and disclosure practices regarding any personal information that you provide to us.

PLEASE NOTE THAT THE TERMS OF THIS AGREEMENT ARE SUBJECT TO CHANGE BY 3DOPTIX IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, 3Doptix will make a new copy of the Agreement available on its website and/or within its application(s). In the event any new supplemental terms are created, 3Doptix will make them available from within, or through, the affected aspect of the Service on our website and/or within the application(s). We will also update the “Last Updated” date at the top of this Agreement. Any such changes will be effective immediately for both new and existing Customers and End Users of the Service. 3Doptix may require Customers and/or End Users to provide consent to the updated Agreement in a specified manner before further use of the Service is permitted. Continued use of the Service constitutes acceptance of such change(s).

1. YOUR CONTENT

(a) Ownership: Except as otherwise set forth in this Agreement (as applicable), The Customer maintains ownership of and responsibility for the following while using the Service: (1) Customer’s and, as applicable, its End Users’ files, designs, models, data sets, images, documents, scripts, codes or similar material or information submitted or transmitted to, or stored or otherwise used in connection with the Service by such Customer or End User, and (2) any specific output generated by the Service, if any, based on any of the foregoing (collectively, “Content”). Without derogating from the foregoing, by creating, submitting or transmitting to, posting or otherwise making your Content available to 3Doptix and/or others, you acknowledge and agree that (1) you have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of your Content, (2) you will evaluate and bear all risks associated with your Content, and (3) under no circumstances will 3Doptix and/or its affiliates, agents and licensors and each of their respective officers, directors, and employees be liable in any way for your Content as you, including but not limited to any errors or omissions in such Content or any damage or liability resulting from the use of such Content.

(b) Availability and Security: While 3Doptix will use commercially reasonable efforts to provide continuous access to its Service, and to enable the export of Content in OPT format, 3Doptix does not guarantee that any Content will be available or useable by Customer following the termination of Customer’s subscription or otherwise. Moreover, 3Doptix does not guarantee the security of any Content. Customer is encouraged to practice effective and secure content retention practices.

(c) Permissions: The Service enables the Customer (other than a Free Plan User) to specify the level at which access to and usability of Content is permitted to End Users. Customer (other than a Free Plan User) is solely responsible for establishing the appropriate level of permissions to Customer’s Content.

(d) Confidentiality: Subject to Section 1(e)(ii), all Content shall be considered the confidential information of Customer, with the exception of any Content that: (1) is or becomes generally known to the public, (2) was known to 3Doptix prior to its disclosure by you, (3) is received from a third party without breach of any obligation owed to you, or (4) was independently developed by 3Doptix (5) that a Customer or End User made into a Public Document (as defined below) (“Confidential Information”). In hosting and otherwise using Confidential Information, 3Doptix will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and agrees not to use any Confidential Information: (1) for any purpose outside the scope of this Agreement and the Privacy Policy, and (2) except as Customer otherwise permits in writing, to limit access to Customer’s Confidential Information to those of 3Doptix’s and 3Doptix’s affiliates’ employees, contractors, service providers and agents who need such access for purposes consistent with this Agreement, and who are subject to confidentiality obligations with 3Doptix containing protections no less stringent than those contained herein.

(e) Legal Disclosure: 3Doptix may disclose Confidential Information if it is compelled by law to do so or as requested in connection with a law enforcement or regulatory investigation. 3Doptix shall provide Customer with prior notice of such compelled disclosure (to the extent legally permitted). Customer agrees and acknowledges that 3Doptix may access and disclose Customer’s Content to comply with any legal obligations or law enforcement or regulatory investigation (including subpoenas or court orders), including as part of a legal proceeding involving 3Doptix and/or its affiliates, agents, licensors and each of their respective officers, directors and employees, or at your request. If disclosure is made at Customer’s request, Customer may be responsible for the cost of compiling and providing access to such Content.

(f) Intellectual Property

1. 1. In your use of the Service, you agree to respect others’ intellectual property and other rights. In particular, you will not upload, submit or otherwise transmit any Content that
      1. Infringes any patent, trademark, trade secret, copyright or other proprietary right of any person or entity; or
      2. You do not have a right to transmit under any other law or contractual or fiduciary relationship (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or other nondisclosure agreements).
   2. 3Doptix permits you (other than in case of a Free Plan User) to publish your Content, including in the form of a document designated for public sharing or otherwise published to the public (“Public Document(s)”), and allows you to participate in public community forums through postings. All designs, projects and/or documents created by a Free Plan User, and all Content contained therein, may be made public by 3Doptix (at its sole and absolute discretion) and therefore may be considered Public Documents. Any comment made to a Public Document by any Customer or End User may be made public by 3Doptix (at its sole and absolute discretion) and may be considered an integral part of such Public Document. A “Free Plan User” is defined as a Customer using the free version of the Service and any End User using the free version of the Service on behalf of such Customer.
      1. If you choose to publish a Public Document or post in the forums, other End Users (and in some cases, the general public) will be able to view, copy and transfer or save any such Content, inside or outside the Service. Any such Content, once published and/or posted, is non-confidential.
      2. For any Public Document created or owned by a Customer or End User, each such Customer and End User grants a worldwide, royalty- free and non-exclusive license to any Customer or End User or third party accessing the Public Document to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Public Document, and to permit persons to whom the Public Document is made available to do the same.
      3. 3Doptix shall have no liability for any damages resulting from the use or misuse by any third party of any Public Document or your postings. IF YOU ARE A FREE PLAN USER OR YOU CHOOSE TO MAKE A DOCUMENT OR FORUM POSTING AVAILABLE TO THE PUBLIC IN THESE WAYS OR OTHERWISE IN CONNECTION WITH YOUR USE OF THE SERVICE, YOU DO SO AT YOUR OWN RISK.
      4. 3Doptix shall have the right to remove any Content you make publicly available that violates this Agreement or is otherwise objectionable, as determined by 3Doptix in its sole discretion.

(g) Feedback: If you choose to provide 3Doptix with ideas, suggestions, improvements, documents, proposals and/or other feedback with respect to 3Doptix’s Software, Service or Documentation (as defined below) (including but not limited to problems and errors encountered in using the Service, and ideas for enhancements of the Service), we shall be free to use such materials in any manner and for any purpose (including, without limitation, incorporation into 3Doptix’s products, services and advertising and marketing materials, and developing and marketing products and services) without liability or compensation to you or restriction of any kind. You hereby assign to 3Doptix all right, title, and interest to all such information provided to 3Doptix, and all enhancements resulting from such information, and all property rights therein including, without limitation, all patent, copyright, trade secret, trademark, moral right or other intellectual property rights.

(h) Regulated Data: You agree that the Content will not include:

1. 1. any information, or documents or technical data that are U.S. Government Classified, Controlled Unclassified Information, ITAR or EAR controlled or otherwise have been determined by the United States Government or by any foreign government to be subject to any export control rules or require any protection against unauthorized disclosure for reasons of national security; or
   2. any data that is “protected health information, including any medical, demographic, visual or descriptive information that can be used to identify a particular patient/individual” and/or any other data subject to the U.S. “Health Insurance Portability & Accountability Act of 1996” and regulations promulgated under that Act.

2. RIGHT TO USE SERVICE; OWNERSHIP; ACCESS TO SERVICE

(a) License: Subject to your compliance with the terms of this Agreement, 3Doptix hereby grants to you a non-exclusive, non- transferable, non-sublicensable, revocable right and license to access and use the Service you have ordered solely in accordance with the Documentation (as defined below) and the terms of this Agreement and any separate order form that may refer to the terms of this Agreement.

(b) Ownership: You acknowledge that (i) all right, title, and interest in and to the Service, the Software, and the online or other documentation (including online videos) provided by 3Doptix describing the Service and its use (the “Documentation”), and all patents, copyrights, trade secret rights, trademarks, trade names, and other proprietary rights embodied therein or associated therewith, are and shall remain with 3Doptix and/or its third party licensors ; (ii) this Agreement conveys no right or interest in the Service, the Software or Documentation other than a limited right to use the Service in accordance herewith; and (iii) the Service, Software, and Documentation are protected by applicable copyright laws.

(c) Testing: We continually update the Service. In addition, we continually test various aspects of the Service, including 3Doptix’s website, user interfaces, service levels, plans, promotional features, delivery and pricing. We reserve the right to, and by using the 3Doptix Service you agree that we may, include you in or exclude you from these tests without notice. We reserve the right in our sole and absolute discretion to make changes from time to time and without notice in how we offer and operate our Service.

(d) Suspension of Service: Your access to, and use of, the Service may be suspended temporarily for the duration of any scheduled maintenance or unscheduled downtime or unavailability of any portion, or all, of the Service for any reason, including as a result of power outages, system, or Internet failures or other interruptions. 3Doptix also reserves the right to suspend a subscription anytime with or without notification in order to protect 3Doptix and Customer or End Users from what we believe to be fraudulent activity. 3Doptix is not obligated to credit or discount a paid subscription for holds placed on it by either a representative of 3Doptix or by our automated processes.

3. API LICENSE

(a) Subject to the terms and conditions hereof, 3DOptix hereby grants you a license under the MIT license terms available here: https://opensource.org/license/mit/.

(b) You represent and warrant that the proprietary application that is (i) developed owned or licensed by you, (iii) which interfaces with the Services via the API, (“Application”):

1. 1. does not infringe the intellectual property, moral or publicity rights of any third party,
   2. does not contain any defamatory, libelous, obscene, pornographic, hateful or otherwise offensive material,
   3. complies with all applicable law and regulations,
   4. does not collect or use the data of end users in any manner inconsistent with applicable law and regulations, or not expressly disclosed to an end user and
   5. does not contain or link to any worms, viruses, spyware, adware or other malicious or intrusive software.

(c) You shall ensure that all end users that download or install the Application shall agree to an end user license agreement that

1. 1. prohibits the reverse engineering or further distribution of the API or Software in any manner,
   2. provides that the end user obtains no ownership of any intellectual property rights in the API or Software,
   3. provides no warranties in respect of the API or Software in excess of any warranties provided hereunder, and disclaims all other warranties to the maximum extent permitted by law,
   4. limits the liability of 3DOptix to the maximum extent permitted by law and
   5. complies with all other laws, rules and regulations, including with the requirements of the online store or marketplace in which the Application is made available to end users (such as, but not limited to, the Apple App Store).

4. USAGE RESTRICTIONS

(a) Certain Obligations: You shall not and shall not allow a third party to:

1. 1. Attempt to copy, alter, modify, adapt, translate, or create derivative works of the Software API or Documentation;
   2. Attempt to remove or alter any proprietary notice or legends appearing in the Service, Software, API or Documentation;
   3. Analyze the Service, Software. API or Documentation for purposes competitive to 3Doptix, or access or otherwise use the Service, Software or Documentation in order to build a similar or competitive service offering;
   4. Attempt to reverse engineer, disassemble, decompile or otherwise attempt to discover the source code of the Software, API or create derivative works, compilations, or collective works thereof;
   5. Attempt to use any component of the Software on a standalone basis;
   6. Attempt to export sublicense, sell, or distribute the Service, Software, API or Documentation or provide the API or Software to any third party except as expressly permitted hereunder. You shall not under any circumstances distribute any source code included with the API or Software, or distribute the API or Software on a stand-alone basis.
   7. circumvent any security or access control measure of the Software or Services or API
   8. Disclose or make any Password(s) available to any other person;
   9. Allow unauthorized access to, or use of, the Service; or except as 3Doptix may separately agree in writing use the Services to provide services to third parties;
   10. Use any robot, spider, scraper or other automated means to access the Service, or use any data mining, data gathering or extraction method;
   11. Upload, post, email or otherwise send or transmit any material, including any software viruses or other computer code, files or programs, designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment associated with the Service;
   12. Use the Service, API or Software in any unauthorized or inappropriate way whatsoever, as determined in 3Doptix’s reasonable judgment, including but not limited to, by trespass or burdening network capacity;
   13. Use the Service in any manner to, in 3Doptix’s sole judgment, harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other part; and
   14. Post for public viewing Content that violates or encourages any conduct that would violate any applicable law or regulation or would give rise to civil liability, or that is in 3Doptix’s sole judgment defamatory, vulgar, obscene, libelous, objectionable or inappropriate, or likely to promote illegal, harmful or objectionable activities.

To the extent any of the restrictions set forth in this Section are not enforceable under applicable law, you shall inform 3DOptix in writing in each instance prior to engaging in the activities set forth above.

(b) Monitoring and Investigations: 3Doptix may, but is not obligated to, monitor or review Public Documents (and any comments to Public Documents) and/or posts to 3Doptix’s community forum. Without limiting the foregoing, 3Doptix shall have the right to remove any of your publicly accessible Content or comments or forum posts that violate this Agreement, with or without prior notice to you. If 3Doptix becomes aware of any possible violations by you of any provision of this Agreement, 3Doptix reserves the right to investigate such violations and may, at its sole discretion, suspend or terminate your license to use 3Doptix, with or without prior notice to you.

(c) It is hereby clarified that 3Doptix shall not be liable for any, simulations, designs, projects and /or documents of any kind made or created by any Customer or End User by means of using the Services.

5. SUBSCRIPTIONS

(a) Ongoing Nature of Subscription: Customer’s paid 3Doptix subscription will be either (subject to the choice of the applicable Customer): (i) limited to a one year period, or (ii) an annual subscription which will automatically continue (e.g., year-to-year in the case of an annual paid subscription), unless and until either Customer or 3Doptix provides the other with at least thirty (30) days’ written notice(prior to the end of the then-current subscription term) of such party’s intent not to renew its subscription. You must have Internet access to access and use the Service, and Customer must provide us with a current, valid accepted method of payment (as it may be updated from time to time, “Payment Method”) in order to purchase and use a paid subscription.

(b) Differing Subscriptions: 3Doptix may offer a number of subscription plans, including special promotional plans or subscriptions with differing conditions and limitations. The terms of your subscription will as specified in the pricing policy available at: https://www.3doptix.com/privacy-policy or as provided in a separate quotation delivered to by 3Doptix. You can find specific details regarding your subscription within your account profile at the Service’s Preference section. We reserve the right to modify, terminate or otherwise amend our subscription plans at any time, in our sole and absolute discretion.

6. BILLING

(a) Recurring Billing: By starting a paid 3Doptix subscription and providing or designating a Payment Method, Customer authorizes us to charge Customer a subscription fee at the then current rate, and any other charges Customer may incur (either directly through its End Users, or through a third party which promotes the Services) in connection with Customer’s and its End Users’ use of the 3Doptix Service, to Customer’s Payment Method. Customer acknowledges that the amount billed each period may vary for reasons that may include promotional offers, and/or changing a plan, and Customer authorizes us to charge Customer’s Payment Method for such varying amounts, which may be billed in one or more charges.

(b) Price Changes: We reserve the right to adjust pricing for the 3Doptix Service or any components thereof in any manner and at any time as we may determine in our sole and absolute discretion. Any price changes to Customer’s service will take effect following notice to you provided via email or notification within 3Doptix’s Service.

(c) Billing Cycle: The subscription fee for the 3Doptix Service will be billed at the beginning of Customer’s paid subscription period and each anniversary date thereafter unless and until Customer cancels its subscription. After Customer’s initial subscription period, and again after any subsequent subscription period, Customer’s subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at 3Doptix’s then-current price for such subscription. Customer agrees that its Payment Method will be subject to this automatic renewal feature unless Customer cancels its subscription at least thirty (30) days prior to the Renewal Commencement Date. By subscribing, Customer authorizes 3DOptix to charge Customer’s Payment Method now, and again at the beginning of any subsequent subscription period. We reserve the right to change the timing of our billing as indicated below, if Customer’s Payment Method has not successfully settled. We may authorize your Payment Method in anticipation of subscription or other charges.

(d) Refunds and Credits: PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS. However, following the cancellation of any paid subscription, Customer and its End Users, as applicable, may continue to have access to 3Doptix’s paid Service through the end of Customer’s current billing cycle, as long as 3Doptix is a going concern. At any time, and for any reason, we may provide a refund, discount, or other consideration to any or all of our Customers (“credits”). The amount and form of such credits, and the decision to provide them, are at 3Doptix’s sole and absolute discretion. The provision of credits in one instance does not entitle Customer to credits in the future for similar instances, nor does it obligate us to provide credits in the future, under any circumstances.

(e) Taxes: Customer shall be responsible for paying all applicable sales, use, transfer, or other taxes and all duties, whether national, state, or local, however designated, that are levied or imposed by reason of Customer’s paid use of the Service under this Agreement, excluding income taxes on the net profits of 3Doptix. Customer shall reimburse 3Doptix for the amount of any such taxes or duties paid or incurred directly by 3Doptix as a result of such paid use, and Customer agrees that 3Doptix may charge any such reimbursable taxes to Customer’s Payment Method. Customer shall not deduct or withhold any taxes except as required under law. If Customer is required under law to deduct or withhold any amounts, Customer shall deduct such amounts from amounts otherwise due hereunder, make payment of the deducted amounts to the applicable authorities and provide 3Doptix with proof thereof, and make payment of such additional amounts such that 3Doptix shall receive all amounts due hereunder as if no such withholding or deduction was made.

7. SUPPORT. 3Doptix will, as part of the Service, provide such support with respect to the Service as 3Doptix deems appropriate.

8. INDEMNIFICATION. You agree to indemnify and hold 3Doptix, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “3Doptix Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your Content; (b) your use of, or inability to use, the Service or any other 3Doptix user’s Content; (c) your violation of this Agreement; (d) your violation of any rights of another party, including any users; or (e) your violation of any applicable laws, rules or regulations. 3Doptix reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with 3Doptix in asserting any available defenses. You agree that the provisions in this section will survive any termination of your subscription, this Agreement, or your access to the Service.

9. DISCLAIMER OF WARRANTIES. The Service is provided on an “as is” and “as available” basis, without warranty of any kind. 3DOPTIX SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Without limiting the foregoing, 3Doptix does not warrant that (i) the Service will meet your requirements; or (ii) the Service will operate without interruption or be error free. Furthermore, 3Doptix is not responsible for delays, delivery failures, or any other unavailability, loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet. It is acknowledged that the Service may be subject to limitations, delays, and other problems inherent in the use of the Internet, servers that are hosted by third party providers, and such related network and communications infrastructure.

10. LIMITATION OF LIABILITY. YOU RECOGNIZE THAT THE PRICE PAID FOR THE RIGHTS GRANTED TO YOU HEREIN MAY BE SUBSTANTIALLY DISPROPORTIONATE TO THE VALUE OF THE PRODUCTS TO BE DESIGNED, STORED, MANAGED OR DISTRIBUTED IN CONJUNCTION WITH THE SOFTWARE AND SERVICE. FOR THE EXPRESS PURPOSE OF LIMITING THE LIABILITY OF 3DOPTIX AND ITS LICENSORS TO AN EXTENT WHICH IS REASONABLY PROPORTIONATE TO THE COMMERCIAL VALUE OF THIS TRANSACTION, YOU AGREE TO THE FOLLOWING LIMITATIONS ON 3DOPTIX’S AND ITS LICENSORS’ LIABILITY.TO THE EXTENT ALLOWED BY LAW, 3DOPTIX’S LIABILITY TOWARD A CUSTOMER OR ANY END USER ON ITS BEHALF (AS BOTH ARE DEFINED ABOVE), WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE SERVICE, SOFTWARE OR DOCUMENTATION FURNISHED HEREUNDER SHALL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU HAVE PAID 3DOPTIX IN THE PAST 12 MONTHS. IN NO EVENT SHALL 3DOPTIX BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, COVER, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING LOSS OF DATA OR PROFITS, WHETHER OR NOT 3DOPTIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT SUCH LIMITATIONS ARE FAIR AND REASONABLE IN LIGHT OF THE TERMS UNDER WHICH THE SERVICE IS BEING MADE AVAILABLE TO YOU. THIS LIMITATION WILL APPLY EVEN IF ANY REMEDY STATED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. 3DOPTIX’S THIRD PARTY LICENSORS SHALL HAVE NO LIABILITY TO YOU WHATSOEVER. 3DOPTIX IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION OR DATA OF THIRD PARTIES (INCLUDING, WITHOUT LIMITATION, OTHER USERS), AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES. CERTAIN OF THE ABOVE LIMITATIONS MAY NOT APPLY IN SOME JURISDICTIONS, AND IN SUCH CASES 3DOPTIX’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT DESCRIBED ABOVE THAT IS PERMITTED BY APPLICABLE LAW. NOTWITHSTANDING THE FOREGOING, 3DOPTIX SHALL NOT BE LIABLE FOR ANY DAMAGE OR LIABILTY INCURRED BY A FREE PLAN USER, INCLUDING AS A RESULT OF THE USE OF THE SERVICES.

11. TERM AND TERMINATION; EFFECT OF TERMINATION; SURVIVAL

(a) Term: This Agreement commences on the date you accept it (as described in the preamble above) and will remain in effect until terminated in accordance with this Agreement. Notwithstanding the foregoing, if you used the Service or the Software prior to the date you accepted this Agreement, you hereby acknowledge and agree that this Agreement commenced on the date you first used the Service or the Software.

(b) Termination by 3Doptix: 3Doptix shall be entitled to suspend, terminate, or limit your access to the Service at any time, with or without notice, both at will and also if you breach any term of this Agreement, or if you facilitate or encourage any violation of this Agreement and no refund will be due. Upon termination of this Agreement, you shall make no further use of the Service. Termination of this Agreement shall not affect any obligations accrued prior thereto. You understand that any termination of the Service by 3Doptix may involve deletion of your Content associated therewith, which thereafter may not be accessible by you. 3Doptix will not have any liability whatsoever to you for any suspension or termination, including for deletion of your Content.

(c) Termination by Customer: If Customer wants to terminate this Agreement by cancelling Customer’s subscription, Customer may do so by notifying 3Doptix at any time (subject, as applicable, to the notice requirements described previously in this Agreement); provided, however, no refund will be due. If Customer cancels its subscription, we have the right to permanently delete all Content in Customer’s account; and we also have the right but not the obligation to maintain Content that Customer or any End User has not permanently deleted prior to Customer’s cancellation. Customer is responsible for exporting any Content, if Customer so chooses, prior to cancelling its subscription. If Customer permanently deletes such Content, it may persist in backup copies for a reasonable period of time thereafter in accordance with 3Doptix’s data management policies and practices (but will not be available to others).

(d) Effect of Termination: Termination of the Service includes removal of access to the Service and barring your further use of the Service. Termination of Service also includes deletion of your Password and all related profile information.

(e) Survival: All provisions of this Agreement which by their nature should survive, shall survive termination of the Service, including without limitation provisions in respect of intellectual property, licenses, warranty disclaimers and limitation of liability.

12. COPYRIGHT INFRINGEMENT. 3Doptix will in appropriate circumstances suspend or terminate the use of the Service by, or remove or disable access to the relevant public content of, users involved in copyright disputes. If you believe that your work has been copied in a way that constitutes copyright infringement in the United States of America, please notify 3Doptix of your claim of infringement by sending the following written information to our Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act (“DMCA”), named below:

(a) A physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest that is alleged to have been infringed.
(b) A description of the copyrighted work or works that you claim have been infringed.
(c) A description of the material you believe to be infringing, in a sufficiently precise manner to allow us to locate that material.
(d) Information sufficient to permit 3Doptix to contact you, such as your physical address, telephone number, and email address.
(e) A statement that you have a good faith belief that the use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
(f) A statement that the information in the written notice is accurate.
(g) A statement, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf.
(h) We will respond to notices of claimed copyright infringement in accordance with the DMCA. We reserve the right, in the case of an allegedly infringing Public Document, to make such document private while we investigate.
(i) 3Doptix’s Copyright Agent to receive DMCA Notices is: legal@3doptix.com

13. ARBITRATION AGREEMENT; CLASS WAIVER; WAIVER OF TRIAL BY JURY. Please read this Section (“Arbitration Agreement”) carefully. It is part of your contract with 3Doptix and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER. Applicability of Arbitration Agreement: All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement or the use of any product or service provided by 3Doptix that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and 3Doptix, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under this Agreement.

(a) Notice Requirement and Informal Dispute Resolution: Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to 3Doptix should be sent by nationally recognized overnight delivery service or first-class postage prepaid mail to: legal@3doptix.com After the Notice is received, you and 3Doptix may attempt to resolve the claim or dispute informally. If you and 3Doptix do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.

(b) Arbitration Rules: Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with this Agreement. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US$10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules.

(c) Additional Rules for Non-appearance Based Arbitration: If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.

(d) Authority of Arbitrator: If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and 3Doptix, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and this Agreement. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and 3Doptix.

(e) Waiver of Jury Trial: THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and 3Doptix in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND 3DOPTIX WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

(f) Waiver of Class or Consolidated Actions: ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.

(g) Severability: If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

(h) Right to Waive: Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived in writing by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.

(i) Survival of Agreement: This Arbitration Agreement will survive the termination of your relationship with 3Doptix.

(j) Emergency Equitable Relief: Notwithstanding the foregoing, either party may seek emergency equitable relief before a competent court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.

(k) Courts: In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located in the State of New York, for such purpose.

14. MISCELLANEOUS

(a) Publicity: 3Doptix has the right to reference Customer and any End User in any materials, presentations, or media advertising or promote 3Doptix (including 3Doptix’s website) as a Service customer.

(b) Governing Law: This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The seat of arbitration shall be New York State.

(c) Compliance with Laws; Export Control: You agree to comply with all laws and regulations relating to your use of the Service, including without limitation those relating to export and import, privacy, and personal data protection. 3Doptix’s obligation to fulfill this Agreement is subject to the proviso that it is not prevented by any impediments arising out of national and international foreign trade or customs requirements, including embargoes or other sanctions.
By using the 3Doptix Service, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. The provisions of this Section 14(c) will survive the expiration or termination of this Agreement for any reason.

(d) Communications and Notice: By using the 3Doptix Service, you consent to receiving certain electronic communications from 3Doptix relating to your subscription. These communications may involve sending emails to your email address provided during registration, or posting communications within the 3Doptix service; will include notices about your account (e.g., payment authorizations, change in password or payment method, confirmation emails and other transactional information); and are part of your relationship with 3Doptix. You agree that any notices, agreements, disclosures or other communications that 3Doptix sends to you electronically will satisfy any legal communication requirements, including that such communications be in writing. In the event that the last email address you provided to 3Doptix is not valid, or for any reason is not capable of delivering to you any notices required or permitted by the Agreement, 3Doptix’s dispatch of the email containing such notice will nonetheless constitute effective notice. You should maintain copies of electronic communications by printing a paper copy or saving an electronic copy. Unless you opt out, you also consent to receive certain other communications from us, such as notifications of new 3Doptix features, promotional announcements and customer surveys via email. If you want to unsubscribe (i.e., opt out) from certain non-transactional email communications, you will have the opportunity to do so.

(e) Assignment: This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns. You may not assign or otherwise transfer this Agreement or any of your rights or obligations hereunder without the prior written consent of 3Doptix. 3Doptix may assign all of its rights and obligations hereunder to any successor entity, including a successor by way of merger, acquisition or the purchase of all or substantially all of 3Doptix’s assets or share capital.

(f) Force Majeure: 3Doptix shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, epidemics or pandemics, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

(g) U.S. Government Restricted Rights: The Software is a commercial product that has been developed exclusively at private expense. If the Software is acquired directly or indirectly on behalf of a unit or agency of the United States Government under the terms of (i) a United States Department of Defense (“DOD”) contract, then the Software and Documentation are considered “Commercial Items”, as that term is defined in 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are defined in 48 C.F.R. §252.227- 7014(a)(5) and 48 C.F.R. §252.227-7014(a)(1), and used in 48 C.F.R. §12.212 and 48 C.F.R. 227.7202, as applicable, consistent with 48 C.F.R. §12.212, 48 C.F.R. §252.227-7015, 48 C.F.R. §227.7202 through 227.7202-4, 48 C.F.R. §52.227¬14, and other relevant sections of the Code of Federal Regulations; or (ii) a Civilian agency contract, then use, reproduction, or disclosure is subject to the restrictions set forth in FAR clause 27.405(b)(2)(i), entitled Acquisition of Existing Computer Software, and any restrictions in the agency’s FAR supplement and any successor regulations thereto, and the restrictions set forth in this Agreement. The United States Government will only have the rights set forth in this Agreement. 3Doptix Software and Documentation are licensed to United States Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in this Agreement.

(h) Severability: If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of the Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

(i) Waiver: Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

(j) Entire Agreement: This Agreement constitutes the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

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