VEC Infinity IN-USB-1 Foot Pedal Tester 2009.01

EULA - End User License Agreement

USB Foot Pedal Tester
Software License

IMPORTANT NOTICE

READ THE TERMS AND CONDITIONS OF YOUR LICENSE AGREEMENT CAREFULLY BEFORE COPYING, INSTALLING, OR USING THE PROGRAMS OR DOCUMENTATION.

THE LICENSE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU (THE “LICENSEE”) AND JAMES M. VOELKER DBA VOELKER SOFTWARE. (“LICENSOR”) CONCERNING THE PROGRAM(S) AND DOCUMENTATION.

BY COPYING, INSTALLING, OR USING THE PROGRAMS AND DOCUMENTATION, YOU ACCEPT THE TERMS OF THIS AGREEMENT. IF YOU ARE NOT WILLING TO DO SO, DO NOT COPY, INSTALL, OR USE THE PROGRAMS AND DOCUMENTATION.
1. DEFINITIONS.

1.1. “Licensee” means you, whether an individual or an entity, to whom Licensor grants the License, and who is responsible for complying with the contractual obligations of the License, and ensuring that anyone permitted access to the Programs also complies with such obligations.

1.2. “Documentation” means the user guides, if any, accompanying delivery of a Program, as may be updated from time to time. Documentation may be delivered in printed and/or online format, and in one or more languages.

1.3. “Internal Operations” means the use of a Program by employees, consultants, student interns, and software administration contractors of Licensee or an Affiliate on behalf of the Licensee or Affiliate.

1.4. “Licensed User” means a user of the Programs, designated by the Licensee as authorized to use the Programs for Licensee’s Internal Operations, to the extent permitted by the License Option acquired.

1.5. “Licensor” James M. Voelker dba Voelker Software

1.6. “Processor” means a single integrated circuit on the motherboard of a computer that contains one or more cores that are used for interpreting software instructions and processing data contained in computer programs.

1.7. “Program” means USB Foot Pedal Tester computer software delivered and licensed hereunder, including Documentation, enhancements and error corrections.

1.8. “Software” means USB Foot Pedal Tester computer software delivered and licensed hereunder, including Documentation, enhancements and error corrections.

1.9. “Third Party” means any person or legal entity that is not Licensor or the Licensee.

2. ACCEPTANCE AND REFUNDS. If Licensee does not accept the terms and conditions of this License, or if Licensee terminates this License, for any reason, within thirty (30) days of Program delivery (the “Acceptance Period”), then Licensee shall immediately return the Programs licensed hereunder to Licensor distributor from whom Licensee acquired the Programs and, if returned within the Acceptance Period, shall receive a full refund. By retaining a Program throughout the Acceptance Period, Licensee accepts the applicable rights, and agrees to be bound by the applicable obligations and restrictions, of this Agreement including the License Option acquired with respect to that Program.

3. LICENSE GRANT. Licensor hereby grants to Licensee, subject to the terms of this Agreement, a nonexclusive license (the “License”) to:

3.1. install and use the Programs solely on computer systems controlled by Licensee, in accordance with the License Option acquired and associated permitted Installation Type provisions contained in the relevant Installation and Use Addendum, and solely for Internal Operations;

3.2. provide access to online Documentation on Licensee’s intranet, provided it is not accessible over the open Internet;

3.3. print portions of the online Documentation for reasonable use by Licensed Users; and

4. LICENSE RESTRICTIONS. The License is subject to the express restrictions set forth below. Licensee shall not, and shall not permit any Third Party to:

4.1. modify, or create any derivative work of, any part of the licensed Programs.

4.2. adapt, translate, copy, or convert all or any part of a Program in order to create software, a principal purpose of which is to perform the same or similar functions as Programs licensed by Licensor or to replace any component of the Programs;

4.3. rent, lease, or loan the Programs; use the Programs for supporting Third Parties’ use of the Programs, time share the Programs, or provide service bureau use;

4.4. disassemble, decompile, reverse engineer the Programs or otherwise attempt to gain access to its method of operation or source code (other than files provided for convenience in source code form by Licensor);

4.5. sell, license, sublicense, publish, display, distribute, disseminate, assign, or otherwise transfer (whether by sale, exchange, lease, gift, or otherwise) to a Third Party the Programs, any copy or portion thereof, or any License or other rights thereto, in whole or in part, without Licensor’s prior written consent;

4.6. alter, remove, or obscure any copyright, trade secret, patent, trademark, logo, proprietary and/or other legal notices on or in copies of the Programs;

4.7. use Licensor’s name, trade names, logos, or other trademarks of Licensor or any of its Affiliates or Licensors in any advertising, promotional literature or any other material, whether in written, electronic, or other form, distributed to any Third Party, except in the form provided by Licensor, and then solely for purposes of identifying Licensor’s Programs;

4.8. provide access (directly or indirectly) to the Programs via a web or network Application;

4.9. copy, make available for copy, or otherwise reproduce the Programs, in whole or in part, except either (a) as may be required for their installation into computer memory for the purpose of executing the Program in accordance with the License Option and associated permitted Installation Type(s) or (b) to make a reasonable number of copies solely for back-up purposes provided that any such permitted copies shall reproduce all copyright, trade secret, patent, logo, proprietary and/or other legal notices contained in the original copy obtained from Licensor;

4.10. access or use Programs that Licensee is not currently licensed to access or to use;

4.11. disclose the personal license password and/or license file to a Third Party or allow them to be used except for installation and use of the Programs as provided herein;

4.12 copy or emulate any features of the Programs features in competitive products;

5. RETENTION OF RIGHT, TITLE AND INTEREST BY LICENSOR
The Programs shall at all times remain the property of Licensor. Licensee shall have no right, title, or interest therein, except as expressly set forth in this Agreement. Licensee shall take appropriate action by instruction, agreement, or otherwise with any persons permitted access to the Programs, so as to enable Licensee to satisfy its obligations under the terms of this Agreement.

6. LICENSE DURATION (“TERM”). This Agreement shall continue until the earlier of (a) termination by Licensor or Licensee as provided below, or (b) such time as there are no Programs being licensed to Licensee hereunder.

7. TERMINATION. Licensor may terminate this Agreement and all Licenses granted hereunder by written notice to Licensee if Licensee breaches any material term of this License, including failure to pay any License fees due, and Licensee has not cured such breach within sixty (60) days of written notification. Licensor may immediately terminate upon notice this Agreement and all Licenses granted hereunder should Licensee breach the terms and conditions of Articles 3, 4, and/or 8. Licensee may terminate this License at any time, for any reason. Licensee shall not be entitled to any refund if this License is terminated, except for License fees paid for any Programs for which the Acceptance Period has not expired at the time of termination. Upon termination, Licensee shall promptly return all but archival copies of the Programs in Licensee’s possession or control, or promptly provide written certification of their destruction.

8. EXPORT CONTROL. The Programs may be subject to U.S. export control laws or other (U.S. and non-U.S.) governmental export and import laws and regulations. Notwithstanding any other term of this Agreement or Third Party agreement, Licensee’s rights under this Agreement may not be exercised by Licensee or any Third Party in violation of such laws and regulations, nor may this Agreement be transferred to any party where doing so would result in such a violation. The terms of any limitation on the use, transfer or re-export of the Programs imposed by Licensor in any Destination Control Statement or other document for the purpose of export control shall prevail over any term in this Agreement. It shall be Licensee’s responsibility to comply with the latest United States or other governmental export and import regulations.

8. FEDERAL ACQUISITION. This provision applies to all acquisitions of the Programs and Documentation by, for, or through the federal government of the United States. By accepting delivery of the Programs or Documentation, the government hereby agrees that this software or documentation qualifies as commercial computer software or commercial computer software documentation as such terms are used or defined in FAR 12.212, DFARS Part 227.72, and DFARS 252.227-7014. Accordingly, the terms and conditions of this Agreement and only those rights specified in this Agreement, shall pertain to and govern the use, modification, reproduction, release, performance, display, and disclosure of the Programs and Documentation by the federal government (or other entity acquiring for or through the federal government) and shall supersede any conflicting contractual terms or conditions. If this License fails to meet the government’s needs or is inconsistent in any respect with federal procurement law, the government agrees to return the Programs and Documentation, unused, to Licensor.

9. FOR EUROPEAN UNION LICENSEES ONLY. Any contractual provisions of this Agreement contrary to laws implemented under Article 6 of Appendix V of the European Union Software Directive or to the exceptions provided for in Article 5(2) and (3) of such Appendix shall be null and void solely to the extent decompiling, disassembling, or otherwise reverse engineering of the Programs is necessary to enable the Licensee to create an independent program that is interoperable with the Programs or any other permitted objectives specified by such laws implemented under such directive (collectively, the “Permitted Objectives”), provided that any such information gained is used solely for such Permitted Objectives.

10. TAXES, DUTIES, CUSTOMS. Absent appropriate exemption certificates or other conclusive proof of tax exempt status, Licensee shall pay all applicable sales, use, excise, value-added, and other taxes, duties, levies, assessments, and governmental charges payable in connection with this Agreement or the Licenses granted hereunder, excluding taxes based on or measured by Licensor’s income, for which Licensor shall be solely responsible.

11. ASSIGNMENT. Licensee may not assign or otherwise transfer this Agreement and its rights and obligations hereunder, in whole or in part, by operation of law or otherwise, without the written consent of Licensor. In the case of any permitted assignment or transfer of or under this Agreement, this Agreement or the relevant provisions shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the parties hereto. Licensor may charge Licensee an administrative fee for any permitted assignment.

12. LIMITATION OF LIABILITY AND DISCLAIMER.
ALL SOFTWARE, SOFTWARE DOCUMENTATION AND INFORMATION PROVIDED TO LICENSEE PURSUANT TO THIS AGREEMENT ARE PROVIDED "AS IS, WITH ALL FAULTS". LICENSOR DOES NOT PROVIDE ANY WARRANTIES WHATSOEVER, INCLUDING THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR FREE, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL FUNCTION WITH OTHER SOFTWARE OR HARDWARE, OR WITHIN A SYSTEM, OR THAT THE SOFTWARE, SOFTWARE DOCUMENTATION, INFORMATION, OR OTHER MATERIALS SUPPLIED BY LICENSOR WILL FULFILL ANY OF LICENSEE'S PARTICULAR PURPOSES OR NEEDS. LICENSOR SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS, STATUTORY, AND IMPLIED. IN NO EVENT WILL LICENSOR OR ANY THIRD PARTY FROM OR TO WHOM LICENSOR HAS OBTAINED OR GRANTED MARKETING RIGHTS BE LIABLE TO LICENSEE OR TO ANY OTHER PARTY FOR (I) ANY LOSS OF TIME, REVENUES, PROFITS, OR GOODWILL, OR (II) ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES THAT MAY ARISE FROM THE USE OF, THE INABILITY TO USE, OR THE MISUSE OF THE SOFTWARE OR ANY THIRD PARTY SOFTWARE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SOFTWARE. LICENSOR SHALL NOT BE LIABLE FOR ANY NON-AUTHORIZED ACCESS BY THE LICENSEE OR USER OF THE SOFTWARE TO LICENSEE’S DICTATION OR OTHER INFORMATION.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES AND/OR THE EXCLUSION OF IMPLIED WARRANTIES, SO, FOR THOSE JURISDICTIONS, THE EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO THE LICENSEE AND THE LICENSEE MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

ANY LIABILITY OF LICENSOR AND ITS LICENSORS (WHETHER IN RELATION TO BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE) SHALL NOT IN TOTAL EXCEED THE AMOUNT PAID TO LICENSOR UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE CLAIM IN QUESTION, FOR THE PROGRAM WITH RESPECT TO WHICH THE LIABILITY IN QUESTION ARISES.

13. GOVERNING LAW; JURISDICTION. This Agreement shall be interpreted, enforced and construed and the rights of the parties hereunder governed in all respects by the laws of the State of Illinois, United States of America, without regard to its conflicts of law provisions, and both parties consent to the jurisdiction of the federal and state courts located in Illinois and consent to the service of process, pleadings and notices in connection with any and all actions initiated in such courts. The parties agree that a final judgment in any such action or proceeding shall be conclusive and binding and may be enforced in any other jurisdiction. To the extent any governing law, treaty, or regulation is in conflict with this Agreement, the conflicting terms of this Agreement shall be superseded only to the extent necessary by such law, treaty, or regulation. If any provision of this Agreement shall be otherwise unlawful, void, or otherwise unenforceable, that provision shall be enforced to the maximum extent permissible. In either case, the remainder of this Agreement shall not be affected. The parties agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The parties further agree that the Uniform Computer Information Transactions Act, or any version thereof, adopted by any state, in any form (“UCITA”), shall not apply to this Agreement. To the extent that UCITA is applicable, the parties agree to opt out of the applicability of UCITA pursuant to the Opt-Out provision(s) contained therein.

14. COMPLIANCE AND AUDIT RIGHTS. Licensee agrees to notify Licensor promptly upon discovery of any failure to comply with one or more Licenses granted under this Agreement, or any failure to comply with any other material term of this Agreement. To confirm Licensee’s compliance with the terms and conditions of this Agreement, Licensee agrees to allow Licensor to audit Licensee’s use of the Programs, and to provide Licensor access to Licensee’s facilities and computer systems, and cooperation from Licensee’s employees and consultants, as reasonably requested by Licensor in order to perform such audit, all during normal business hours, and after reasonable prior notice from Licensor. If an audit discloses that Licensee has failed to comply with one or more Licenses, and such failure to comply could have in part or in whole been avoided by Licensee having paid additional License fees to expand the scope of the License or Licenses, then Licensee shall promptly pay
Licensor such Licensing fees (at Licensor’s then current rates) and, if such unpaid License fees exceed 5% of the License fees paid to for the applicable Programs during the applicable period during which such underpayment occurred, then Licensee shall, in addition to paying the unpaid License fees, also reimburse Licensor the full cost of such audit.

15. LICENSE MANAGEMENT. During installation, you, or the Programs, may send information about the Programs and the computer to Licensor. This information includes the version of the Programs, the identification of the Licensee and machine-specific identification of the computer. Licensee agrees that such identification may be retrieved and utilized by Licensor for license management purposes.

16. BUG REPORTS. During the normal operation of the software, exceptions or crashes may occur that result from unanticipated operations, configurations or hardware incompatibilities. Licensee consents to the automatic forwarding of information about these software exceptions to USB Foot Pedal Tester. The information provided includes detailed information about the computer on which the software is being used and the operations being performed at the time of the software exception.

17. HEADINGS. The inclusion of headings is for convenience of reference only and shall not affect the construction or interpretation of this Agreement.

18. ENTIRE AGREEMENT. This Agreement contains the entire understanding of the parties and may not be modified or amended except by written instrument, executed by authorized representatives of Licensor and Licensee. In the event of any conflict between this Agreement and any purchase order executed by Licensee (whether executed before or after this Agreement), this Agreement shall prevail.