PHENOMETRY TERMS OF SERVICE

The following terms and conditions (“Terms of Service”) govern your use of the Phenometry website, the Phenometry Phi 3D surface modeling software (“Phi”) and all related data, information, documentation and services provided by Phenometry directly or through Onshape or other Phenometry partners (“Partners”) and their respective software platforms (collectively the “Phenometry Services”). If you do not agree with these Terms of Service or any part of them, then you must not use the Phenometry Services in any way. By using the Phenometry Services you are agreeing to be legally bound by the following Terms of Service, so please read the following carefully before agreeing to use the Phenometry Services.

Phenometry Inc. (“Phenometry”), a company in the process of being founded, reserves the right to amend, change or update the Terms of Service governing use of the Phenometry Services without notice. Any enhancements, modifications or new features and functionalities of the Phenometry Services shall also be governed by these Terms of Service. Your continued use of the Phenometry Services shall constitute your acceptance of such changes and of the Terms of Service. The latest copy of the Terms of Service can be found at the Phenometry web site.

The Phenometry Services are provided “AS IS”, without any representations or warranties of any kind. You agree to use the Phenometry Services at your own risk.

I. GENERAL DISCLAIMER

Phenometry Phi is a 3D design software system with emphasis on free-form surface design.

The Phenometry Services are provided “AS IS” and without any warranty, express or implied. Phenometry makes no representation or warranty as to the reliability, accuracy, timeliness, usefulness or completeness of the Phenometry Services and we assume no liability or responsibility for any errors or omissions in the content provided by the Phenometry Services.

II. ACCEPTANCE OF TERMS

You hereby agree that by registering with Phenometry, or by using the Phenometry Services you are concluding a legally binding agreement with Phenometry. This agreement is governed by the terms and conditions set forth herewithin, including our Privacy Policy and our Pricing Policy (when made available in the Phenometry web site or through Partners) which are hereby incorporated by reference (collectively referred to as the “Agreement”). Please read them carefully.

By clicking “I ACCEPT – LOG ME IN” or equivalent button or check-box while registering with Phenometry or by accessing the Phenometry Services through the websites, app stores or other software platforms of any Partner or by using the Phenometry Services in any way you acknowledge and accept that you have read and understood the terms of this Agreement and that you agree to be bound by all of its provisions.

If you don’t accept or agree with the terms of the Agreement in their entirety, you must not click “I ACCEPT – LOG ME IN” or equivalent button or check-box and you must exit and stop using the Phenometry Services in any way.

Phenometry reserves the right to make changes to the Phenometry Services and to this Agreement (including all of its components such as Privacy Policy, Pricing Policy etc) at any time WITHOUT NOTICE TO YOU. Any enhancements, modifications or new features and functionalities of the Phenometry Services shall also be governed by the Agreement. Your continued use of the Phenometry Services shall constitute your complete acceptance of such changes and of the Agreement as posted on the Phenometry website at the time of your access or use. You agree that it is your responsibility to review the terms of this Agreement each time you access the Phenometry Services so that you are aware of any modifications made to this Agreement.

III. MEMBER ACCOUNT, PASSWORD, AND SECURITY

Using the Phenometry Services may require you to have an account (the “Account”). Such an account may be created for you by Phenometry or you may be required to open one. In order to open an account, you should complete the registration process by providing us with current, complete and accurate information as prompted by the applicable registration form. In the process, you will also choose a password and a username / email address. Alternatively, you may need to have an Onshape account or an account with another Partner.

The username / email address and any password for each Account (the “Account ID”) are personal in nature. If you are an individual, your Account ID may be used only by you alone. If you are acting on behalf of an entity or organization, each Account ID may be used only by a single designated individual within your organization.

You are entirely responsible for maintaining the confidentiality of your Account ID and for any and all activities that occur under your Account. You agree to notify Phenometry immediately of any unauthorized use of your Account or any other breach of security. Phenometry will not be liable for any loss or damage that you may incur as a result of someone else using your password or Account, either with or without your knowledge. You also agree that you could be held liable for losses incurred by Phenometry or another party due to someone else using your Account or password.

IV. GRANT OF RIGHT AND LICENSE TO USE THE PHENOMETRY SERVICES

Subject to your compliance with, and during the term of this Agreement, Phenometry grants you a non-exclusive, personal, non-transferable, non-sublicensable paid up limited license (“License”) to use the Phenometry Services only for your own internal purposes in accordance with this Agreement.

Except as expressly provided in this Agreement, no other right is hereby granted to you. In no event shall you modify, copy, distribute, transmit, display in public, perform, reproduce, duplicate, publish, license, create derivative works from, reverse engineer, transfer, rent, lease or sell in whole or in part any information, software, data or services obtained from accessing or using the Phenometry Services, or attempt to do so.

You shall not be entitled to assign, sub-license, rent, lease or otherwise transfer the License in whole or in part.

V. INTELLECTUAL PROPERTY & OWNERSHIP

The Phenometry Services including, without limitation, software, website structure and organization, algorithms, source code, binary executables, databases, and all text, files, images, graphics, illustrations, information, documentation, data, audio, video, photographs and other content (collectively, "Content") contained in or made available through the Phenometry Services and the structure, selection, coordination, “look and feel” and arrangement of the Content, and any other proprietary data or technology used by or on behalf of Phenometry to provide the Services are the property of Phenometry and/or ALS Geometric Software S.A. and/or Phenometry's licensors, and are protected by applicable intellectual property laws.

Phenometry, the aforementioned entities and Phenometry's licensors retain all right, title and interest, including, without limitation, all intellectual property rights, in and to the Phenometry Services and Content and any additions, improvements, updates, and modifications thereto.

The Phenometry name, logo, and the product and service names associated with the Phenometry Services are trademarks of Phenometry and no right or license is granted to you to use them separate from your right to use the Phenometry Services.

Please be aware that we actively and aggressively enforce our intellectual property rights to the fullest extent of the law.

VI. NO UNLAWFUL OR PROHIBITED USE OF THE PHENOMETRY SERVICES

As a condition of your use of the Phenometry Services, you shall not use the Phenometry Services or License for any purpose or in any way that is unlawful or prohibited by the terms and conditions of this Agreement.

Without limitation, you shall not, and shall not permit any other third party to:

Phenometry, either upon breach of any of the terms of this Agreement by you or in case of temporary or free evaluation Accounts that Phenometry may have provided you with, reserves the right to deactivate your Account ID and to bar any prohibited activity, with or without notice to you, at its sole discretion.

VII. TERMINATION

This Agreement will begin as soon as you start using the Phenometry Services in any way and will continue until terminated.

Phenometry may restrict, suspend or terminate this Agreement immediately upon breach of any of its terms or upon any other misuse or abuse of the Phenometry Services that Phenometry deems contrary to its purpose, at Phenometry’s sole discretion and at any time, with or without notice to you.

Upon termination of this Agreement, all rights granted to you under this Agreement will cease, any Account you have established will be closed and you will lose access to the Phenometry Services. Sections V, VI, IX, X, XI, XIV, XV, XVI and all disclaimer and liability limitation sections and clauses shall survive any such termination or expiration.

VIII. PAYMENT TERMS

If you purchase any services that we offer for a fee, either on Pay-Per-Use or subscription basis, you agree to pay the applicable fees as they become due plus all related taxes, and to reimburse us for all collection costs and interest for any overdue amounts, subject to Phenometry’s Pricing Policy.

Payments made by you through the Phenometry Services cannot be exchanged and are non-refundable. All information that you provide in connection with your billing account and a purchase or other transaction through the Phenometry Services must be accurate, complete and current.

You hereby agree to authorize Phenometry or Onshape or other Partners you may be accessing the Phenometry Services through, to charge the credit card, debit card, Paypal account or other payment method provided in connection with any transaction through the Phenometry Services.

IX. USER REPRESENTATIONS

To be eligible to use the Phenometry Services, you must meet the following criteria. You hereby represent and warrant that:

X. NO WARRANTIES

PHENOMETRY PROVIDES THE PHENOMETRY SERVICES AND ALL CONTENT ON AN “AS IS” AND “AS AVAILABLE” BASIS. PHENOMETRY DOES NOT PROVIDE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND WHATSOEVER REGARDING THE PHENOMETRY SERVICES.

PHENOMETRY EXPRESSLY DISCLAIMS AND EXCLUDES ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF TITLE, QUALITY, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NOR ARE THERE ANY WARRANTIES CREATED BY A COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE.

Without prejudice to the generality of the foregoing paragraphs in this Section, Phenometry does not warrant:

XI. LIMITATION OF LIABILITY

IN NO EVENT SHALL PHENOMETRY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE LOSSES OR DAMAGES OF ANY KIND, OR UNDER ANY OTHER LEGAL THEORY, ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, COSTS, DAMAGES OR LIABILITIES RELATING TO YOUR ACCESS TO OR USE OF (OR YOUR FAILURE TO GAIN ACCESS TO OR USE OF) THE PHENOMETRY SERVICES, OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LOSS OF USE, REVENUES, PROFITS, BUSINESS, DATA, OPPORTUNITY, REPUTATION OR REGISTRATION, COSTS OF COVER OR CAPITAL, DOWN TIME RELATED COSTS, AND ANY SIMILAR COSTS OR DAMAGES, REGARDLESS OF THE FORM OF ACTION OR THEORY OF RECOVERY (WHETHER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE) AND EVEN IF PHENOMETRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Without prejudice to the generality of the foregoing paragraphs about liability limitation, Phenometry further clarifies and states and you understand and accept that:

Phenometry’s aggregate liability arising from or relating to this Agreement shall in no event ever exceed the amount of (i) your remaining subscription days cost or (ii) 200 USD, whichever is higher.

XII. LINKS TO THIRD PARTY WEB SITES

The Phenometry Services may contain links to other websites. Phenometry is not responsible for the privacy practices or the content of these websites. Your access of any off-site content linked to the Phenometry Services is at your own risk. Please visit the privacy policies of these third party sites in order to understand their privacy and information collection practices.

XIII. LANGUAGE AND COMMUNICATION

You acknowledge and understand that the Terms and Conditions of this Agreement (and all of its components such as Pricing Policy, Privacy Policy etc) are provided in the English language and you agree that you completely understand all said such Terms and Conditions. The Agreement and all documentation and communications required hereunder shall be in the English language only.

XIV. APPLICABLE LAWS AND JURISDICTION

The present Agreement is governed by and interpreted in accordance with the applicable laws of the State of Colorado, USA and in case of a dispute arising from or relating to this Agreement, the contracting parties shall submit to the jurisdiction of the courts of the State of Colorado, USA and all related documents and communications will be in the English language.

XV. SEVERABILITY

The provisions of this Agreement are severable, and in the event any provision hereof is determined to be invalid or unenforceable, it shall be read down to the extent necessary so that it is legal and enforceable. Such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions hereof, which shall remain in full force and effect.

XVI. ENTIRE AGREEMENT

This Agreement constitutes the entire Agreement that shall apply in connection with the subject matter hereof, and there are no other agreements or understanding, written or oral, except as provided herein.