Beta Test Software License Agreement

BACKGROUND:
‍The Vendor wishes to license computer software for testing purposes only to the Licensee and the Licensee desires to test the software under license under the terms and conditions stated below to determine future interest.
‍IN CONSIDERATION OF the provisions contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties agree as follows:

A. License

1. 1. Under this Agreement the Vendor grants to the Licensee a non-exclusive and non-transferable license (the "License") to use, the "EyeCTester" (the "Software") for testing purposes.
2. 2. "Software" includes the executable computer programs and any related printed, electronic and online documentation and any other files that may accompany the product.
3. 3. Title, copyright, intellectual property rights, and distribution rights of the Software remain exclusively with the Vendor. Intellectual property rights include the look and feel of the Software. This Agreement constitutes a License for use only and is not in any way a transfer of ownership rights to the Software.  NEDS shall at all times retain ownership of the Software as originally downloaded by you and all subsequent downloads of the Software by you. The Software, Images, Test Data and Test Reports (and the copyright, and other intellectual property rights of whatever nature in these, including any modifications made thereto) are and shall remain the property of NEDS.  Further the videos are not to be reproduced or shared with anyone as these are also are the intellectual property of NEDS.
4. 4. This Agreement grants a site license to your email address for one user. The Software is provided as a service; Licensee will not load or otherwise copy the Software onto computers or other memory devices.
5. 5. The rights and obligations of this Agreement are personal rights granted to the Licensee only. The Licensee may not transfer or assign any of the rights or obligations granted under this Agreement to any other person or legal entity. The Licensee may not make available the Software for use by one or more third parties.  Licensee may request, in writing, a license grant to a third party; the third party will execute a copy of this Agreement.
6. 6. The Software may not be modified, reverse-engineered, or de-compiled in any manner through current or future available technologies, by you, your contacts or by anyone unless NEDS approves this in writing in the form of a contract with NEDS and the other party wishing to change the Software, and the signatures of both parties must be notarized or subject to an apostille.
7. 7. Failure to comply with any of the terms under the License section will be considered a material breach of this Agreement.
8. 8. The software is NOT a medical device and it is NOT FDA approved.  In this Beta test the Software is experimental. 
9. 9. The software is not a medical device, but the fact that you are using the software, indicates an interest in the general health of human eyes and their connection to neuro function.  It is recommended for any problems with your personal eyes or brain health that you seek the medical opinion of a health care professional that specializes in the problem that you may have.  NEDS does not provide medical care or medical advice.

B. License Fee

1. 10. The license fee for this Agreement will consist of the original purchase price of $0.00 USD plus a monthly fee of $0.00 USD.  In lieu of any charges for the License, you agree to provide operational feedback to the vendor and respond to any feedback requested by Vendor.

C. Limitation of Liability

1. 11. The Software is provided by the Vendor and accepted by the Licensee "as is."  Liability of the Vendor, NEDS, will be limited to the lesser of $100 or the original purchase price of the commercial Software. The Vendor will not be liable for any general, special, incidental or consequential damages including, but not limited to, loss of production, loss of profits, loss of revenue, loss of data, or any other business or economic disadvantage suffered by the Licensee arising out of the use or failure to use the Software.
2. 12. The Vendor makes no warranty expressed or implied regarding the fitness of the Software for a particular purpose or that the Software will be suitable or appropriate for the specific requirements of the Licensee.  Licensee acknowledges that the software is experimental and this is a Beta test of the software.
3. 13. The Vendor does not warrant that use of the Software will be uninterrupted or error-free. The Licensee accepts that software in general is prone to bugs and flaws within an acceptable level as determined in the industry.

D. Warrants and Representations

1. 14. The Vendor warrants and represents that it is the copyright holder of the Software. The Vendor warrants and represents that granting the license to use this Software is not in violation of any other agreement, copyright or applicable statute.  Vendor does not make any other warranties and hereby disclaims all other warranties including implied warranties
2. 15. Regarding the visual acuity font OPTICIAN SANS is a free fully functional typeface and a continuation of the historical Snellen and Sloan letters, eye charts and optotypes used by opticians world-wide.For more information see: https://optician-sans.com/Optician Sans optotype implementation incorporated in NEDS software under the the SIL OPEN FONT LICENSEFor more information see: https://opensource.org/licenses/OFL-1.1NEDS hereby acknowledges the contributions of the copyright holders and the authors: The “Optician Sans” project was done at ANTI Hamar by Kjetil Wold, Vivi-Ann Slaatsveen, Magnus Vanem, Tor Hernan Floor, typographer Fábio Duarte Martins and Simen Schikuls

E. Acceptance

1. 16. All terms, conditions and obligations of this Agreement will be deemed to be accepted by the Licensee ("Acceptance") upon execution of this Agreement.

F. User Support

1. 17. No user support or maintenance is provided as part of this Agreement; however, should the vendor continue to support the commercial distribution of this software and the Licensee agrees to purchase the Software and continues to pay the commercial recurring fee, the Licensee will continue to get updates of the Software by going through the usual channels.

G. Term

1. 18. The term of this Agreement will begin on Acceptance and will end when the Beta test ends but no later than May 31, 2022.

H. Termination

1. 19. This Agreement will be terminated and the License forfeited where the Licensee has failed to comply with any of the terms of this Agreement or is in breach of this Agreement. On termination of this Agreement for any reason, the Licensee will promptly destroy the Software or return the Software to the Vendor.

I. Force Majeure

1. 20. The Vendor will be free of liability to the Licensee where the Vendor is prevented from executing its obligations under this Agreement in whole or in part due to Force Majeure, such as earthquake, typhoon, flood, fire, government action, the current pandemic, and war or any other unforeseen and uncontrollable event where the Vendor has taken any and all appropriate action to mitigate such an event.

J. Governing Law and Jurisdiction

1. 21. The Parties to this Agreement submit to the jurisdiction of the courts of the United States of America in the United States District Courts of the State of Texas or the State Courts for the State of Texas for the enforcement of this Agreement or any arbitration award or decision arising from this Agreement. This Agreement will be enforced or construed according to the laws of the United States of America and when state law applies the State of Texas of the United States of America.

K. Miscellaneous

1. 22. This Agreement can only be modified in writing signed by both the Vendor and the Licensee.
2. 23. This Agreement does not create or imply any relationship in agency or partnership between the Vendor and the Licensee.
3. 24. Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine gender include the feminine gender and vice versa. Words in the neuter gender include the masculine gender and the feminine gender and vice versa.
4. 25. If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the parties' intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable and the remainder of the provisions of this Agreement will in no way be affected, impaired or invalidated as a result.
5. 26. This Agreement contains the entire agreement between the parties. All understandings have been included in this Agreement. Representations which may have been made by any party to this Agreement may in some way be inconsistent with this final written Agreement. All such statements are declared to be of no value in this Agreement. Only the written terms of this Agreement will bind the parties.
6. 27. This Agreement and the terms and conditions contained in this Agreement apply to and are binding upon the Vendor's successors and assigns.