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Fusion Narrate End User License Agreement

License Agreement for

Fusion Narrate™ powered by nVoq™

This Fusion Narrate License Agreement (“Agreement”), by and between Voice Products Inc., a Kansas S Corporation with offices at 8555 E 32nd St N, Wichita, KS 67226 (“LICENSOR”) and the Party identified as the Customer (“CUSTOMER”), in the Sales Agreement that incorporates this Agreement. This Agreement defines the terms and conditions applicable to CUSTOMER’S access and use of the Fusion Narrate and associated products identified in the Sales Agreement and supersedes any click-through agreements that may be presented to CUSTOMER or Authorized Users accessing or using the Licensed Products.  This Agreement grants CUSTOMER non-exclusive rights to use certain hosted services and related software but does not constitute a sale or transfer of any software code. When both parties execute the Sales Agreement (the “Effective Date”), this Agreement becomes a binding and enforceable contract between LICENSOR and CUSTOMER. If you do not agree to be bound by the terms and conditions of this Agreement, do not execute the Sales Agreement. 

Terms and Conditions

  1. DEFINITIONS 

1.1       “Agreement Term” has the meaning set forth in Section 13.1.

1.2       “Authorized Users” means the respective individuals employed or engaged by CUSTOMER who have been authorized to access and use the Licensed Products in accordance with this Agreement.

1.3       “CUSTOMER” has the meaning set forth in the preamble.

1.4       “CUSTOMER Data” means all content originating from CUSTOMER or returned from the Licensed Products to CUSTOMER, including (a) voice files and associated speech-recognized text files, (b) any documents or files uploaded by CUSTOMER, and (c) any metadata or fields accompanying such audio and text files.

1.5       “CUSTOMER Systems” means the CUSTOMER’s information technology infrastructure, including computers, servers, operating systems, networks, devices, and other software or hardware. CUSTOMER Systems does not include the Licensed Products.

 

1.6       “Documentation” means the user guides, operating manuals, technical literature and other documentation for installation and use of the Licensed Products made available to CUSTOMER by LICENSOR or its licensors, in printed, electronic or other form.

1.7       “Dolbey” means Dolbey and Company, Inc., a licensor of LICENSOR.

1.8       “Including” means including without limitation.

1.9       “Initial Production License Term” means the initial term of the Production Use License as specified in  the applicable Sales Agreement (e.g., 1-Year or 3-Year), beginning on the Production License Start Date.

1.10     “Intellectual Property Rights” means all existing and future worldwide copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contract rights and other proprietary rights.

1.11       “Licensed Products” means the software and services expressly set forth in the Sales Agreement, which may include, among other products, the Fusion Narrate software, the nVoq Speech Processing Services (nVoq.SPS); the nVoq client applications including: nVoq.Voice, nVoq.MobileVoice, SayIt for Macs, SayIt for PCs, nVoq Wireless Mic for Android, and nVoq Wireless Mic for iOS; the nVoq Batch Transcription Service; and all Updates to the foregoing, together with the associated Documentation. For clarity, the Fusion Narrate product uses the nVoq.SPS cloud based speech recognition service with Dolbey’s Fusion Narrate client application.

1.12     “nVoq” means nVoq, Inc., a licensor and subcontractor of Dolbey.

1.13     “Sales Agreement” means the ordering document on LICENSOR’s form provided to CUSTOMER which specifies one or more Licensed Product(s), license quantities, license duration, license fees and payment terms, along with terms and conditions governing LICENSOR’s provision of training, implementation and support services (if any). For clarity, any provision contained in CUSTOMER’s own purchase Sales Agreements or other documents, such as pre-printed or linked terms and conditions, shall not apply and are superseded in their entirety by the provisions of the Agreement, including the applicable Sales Agreement, and are expressly rejected by LICENSOR.

1.14     “Protected Health Information” or “PHI” shall have the meaning set forth in 45 C.F.R. § 160.103, as such may be amended.

1.15     “Production License Start Date” means, for the Production Use (non-Trial) licenses set forth in the Sales Agreement, the first day of the month in which the first individual User Account is enabled for (or begins) a Production Use (non-Trial) license.

1.16     “Production License Term” means the Initial Production License Term, plus any Renewal Terms thereto in accordance with Section 13.3 (Auto-Renewal).

1.17     “Production Use” means use of the Licensed Products for CUSTOMER’s internal business purposes only (excluding Trial Use).

1.18     “Protected Health Information” or “PHI” shall have the meaning set forth in 45 C.F.R. § 160.103, as such may be amended.

1.19     “Territory” means the United States.

1.20     “Third Party Content” has the meaning set forth in Section 7.2 (Third Party Content Disclaimer).

1.21     “Third Party Products” means the software and services licensed to LICENSOR or its licensors by third parties for use and/or redistribution with the Licensed Products.

1.22     “Trial Term” means the duration of the Trial as specified in the Sales Agreement, beginning on the date that the first User Account is enabled.

1.23     “Trial Use” means use of the Licensed Products solely for CUSTOMER’s internal evaluation and trial purposes.

1.24     “Update” means error corrections, patches, modifications and enhancements to the Licensed Products made generally available by LICENSOR or its licensors, on an if and when available basis and at no additional fee to CUSTOMER, which is  not marketed by LICENSOR or Dolbey as a separate product, module, and/or service.

1.25     “User Account” means an account set up for use by an individual Authorized User in order to interact with the Licensed Products, including (where applicable) use of an administrative console, real time dictation, and transcription of speech to text.

  1. LICENSE RIGHTS. This Agreement allows CUSTOMER to evaluate the Licensed Products on a short-term basis with a Trial Use license, if applicable.  Upon expiration of the Trial Use license, and Company’s receipt of applicable fees for the Production Use license, CUSTOMER’s Trial Use license will convert to a Production Use license unless either Party terminates the Agreement prior to conversion in accordance with Section 13.2.

2.1       Licensed Products. Subject to the terms and conditions of this Agreement, LICENSOR grants to CUSTOMER a limited, revocable, non-exclusive, non-transferable, non-sublicensable license during the Agreement Term to use the Licensed Products in the Territory solely internally through Customer’s Authorized Users in accordance with Documentation, as follows:

(a)        Trial Use.  During the Trial Term, if any, CUSTOMER may use the Licensed Products for Trial Use. 

(b)       Production Use.  During the Production License Term, CUSTOMER may use the Licensed Products for Production Use. 

2.2       Third Party Products. The Licensed Products may incorporate certain Third-Party Products. LICENSOR licenses the Third-Party Products to CUSTOMER by permission of the respective licensors and/or copyright holders on the terms provided by such third parties, which can be viewed in the following locations: http://www.sayit.nvoq.com/legal, in the Help Files for the applicable Licensed Products, and (for optional features) may be separately agreed to by CUSTOMER (collectively, “Third-Party Terms”), which are incorporated by reference. Such Third-Party Terms apply only to those Third-Party Products with which they are expressly identified. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THE THIRD PARTY TERMS, THE THIRD-PARTY PRODUCTS ARE PROVIDED “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE DISCLAIMED.

2.3       CUSTOMER Feedback. CUSTOMER (including its Authorized Users) may provide Licensor with ideas, comments, suggestions, recommendations, or other feedback on the features or functionality of the Licensed Products (“Feedback”). CUSTOMER agrees that any Feedback is provided voluntarily, and hereby grants to Dolbey a perpetual, irrevocable, sublicensable, fully paid, transferable, royalty-free, worldwide right to use, reproduce, distribute, copy, display, perform, modify, create derivative works of, make, have made, sell, offer to sell, export, import, make improvements, and otherwise practice such Feedback for Dolbey’s business purposes.

  1. LICENSE RESTRICTIONS AND OBLIGATIONS

3.1       Competitors. CUSTOMER shall not be a competitor of Dolbey or nVoq. The license is not available for any person or entity that is a competitor, or is employed by a competitor, of Dolbey or nVoq.

3.2 Licensed Products. The Licensed Products and their structure and organization constitute valuable trade secrets of Dolbey, nVoq, and their licensors. All worldwide Intellectual Property Rights in and to the Licensed Products are, and shall remain, the exclusive property of Dolbey, nVoq, and their licensors.  Dolbey, nVoq, and their licensors reserve all rights not expressly granted by LICENSOR to CUSTOMER under this Agreement. Without limiting the generality of the foregoing, CUSTOMER (and each Authorized User) agrees that it will not, and will not attempt to:

 

(a) use or disclose the Licensed Products in any manner that exceeds the scope of use permitted in this Agreement;

(b) reverse engineer, disassemble or decompile any component of the Licensed Products;

(c) modify, copy or make derivative works based on any part of the Licensed Products;

(d) interfere with or disrupt in any manner the integrity, operation, or performance of the Licensed Products or the data contained therein;

(e) harass or interfere with another user's use and enjoyment of the Licensed Products;

(f) use the Licensed Products for the benefit of a third party or to operate a service bureau (not including medical transcription services);

(g) create Internet "links" to or from the Licensed Products, or "frame" or "mirror" any of Dolbey’s or nVoq’s content which forms part of the Licensed Products (other than on CUSTOMER’s own internal intranets);

(h) merge or integrate the Licensed Products with any other product;

(i) sell, lease, rent, loan, assign, transfer, license or sublicense the Licensed Products to any third party, including timesharing use or access by any third party;

(j) alter, obscure, or remove any trademark, copyright, trade secret, patent, proprietary or other legal notice or legend contained in or on the Licensed Products or Documentation;

(k) use the Licensed Products to access or copy any data or information of other users without their consent;

(l) use the Licensed Products to harvest, collect, gather or assemble information or data regarding other users without their consent;

(m) defeat or circumvent any controls or limitations contained in or associated with the use of the Licensed Products;

(n) use the Licensed Products for purposes of competitive analysis of the Licensed Products, the development of a competing software product or service, or any other purpose that is to the LICENSOR’s, Dolbey’s, or nVoq’s commercial disadvantage;

(o) disclose to any third parties, directly or indirectly, the results of any benchmark or other performance test run on the Licensed Products.

3.3      Compliance with Laws. CUSTOMER (and each Authorized User) will, at all times, comply with all applicable local, state, federal, and foreign laws and regulations in accessing and using the Licensed Products, including such laws and regulations relating to privacy, protected health information and export/import controls.

 

3.4   Responsibility For Use Of Licensed Products.  CUSTOMER shall ensure that its Authorized Users comply with the terms of this Agreement and shall be responsible for the acts and omissions of its Authorized Users not in accordance with this Agreement.  CUSTOMER is responsible and liable for all uses of the Licensed Products and Documentation through access thereto provided by CUSTOMER, directly or indirectly. Specifically, and without limiting the generality of the foregoing, CUSTOMER is responsible and liable for all actions and failures to take required actions with respect to the Licensed Products and Documentation by its Authorized Users or by any other person to whom CUSTOMER or an Authorized User may provide access to or use of the Licensed Products, whether such access or use is permitted by or in violation of this Agreement.

 

3.5     User Accounts.  CUSTOMER shall be responsible for ensuring the security and confidentiality of all User Accounts and IDs. User Accounts and IDs are for individual Authorized Users only and may not be shared among multiple Authorized Users.

 

3.6    CUSTOMER Systems.  CUSTOMER is solely responsible for providing, securing, and maintaining, at its own expense, all CUSTOMER Systems necessary for installing, accessing, and using the Licensed Products, including network access to cloud-based Licensed Products.

3.7     CUSTOMER Data.  CUSTOMER (and its Authorized Users) shall have sole responsibility for the accuracy, quality, integrity, legality and appropriateness of CUSTOMER Data.  CUSTOMER (and its Authorized Users) will not knowingly provide, post or transmit any content, data or any other information or material that: (a) infringes or violates any Intellectual Property Rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information.  CUSTOMER warrants that it has the right to provide the CUSTOMER Data and all rights necessary to authorize LICENSOR, Dolbey and nVoq to use as set forth in this Agreement.

 

3.8     Audit.  LICENSOR and Dolbey shall have the right to audit CUSTOMER’s use of the Licensed Products to confirm such use is in compliance with this Agreement, and CUSTOMER shall reasonably cooperate with such audit.

 

3.9     U.S. Government Customers.  The Licensed Products provided under this Agreement are commercial computer software developed exclusively at private expense, and in all respects, is proprietary data belonging to Dolbey, nVoq and/or their licensors. The Licensed Products and Documentation are “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 used in 48 C.F.R. 12.212 and 227.7202. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Licensed Products and Documentation only as commercial items and with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement. Unpublished rights are reserved under the copyrights laws of the United States.

  1. IMPLEMENTATION, TRAINING, AND SUPPORT SERVICES LICENSOR may provide implementation, training and support services for the Licensed Products as specified in the Sales Agreement or as otherwise agreed by LICENSOR and CUSTOMER. [Fusion Hosted Narrate Prof Services Levels]
  2. SERVICE LEVELS This Section 5 applies solely to the cloud-based speech recognition service component of the Licensed Products (nVoq.SPS) when licensed for Production Use in accordance with Section 2.1.

5.1       Required Availability Rate. The monthly availability rate shall be at least 99.9% on a 24 hour per day, 7 day per week basis ("Required Availability Rate"), provided that any downtime occurring as a result of: (a) up to three (3) hours of scheduled maintenance, (b) service interruptions requested by CUSTOMER, (c) CUSTOMER’s breach of any provision of this Agreement, (d) incompatibility of CUSTOMER Systems with the Licensed Products contrary to applicable specifications in the Documentation, (e) any CUSTOMER Data, (f) CUSTOMER’s or Authorized Users’ internet connectivity, or (g) Force Majeure under Section 14.7 (collectively “Excused Delay”), shall not be considered toward any reduction in Availability Rate measurements. LICENSOR shall use commercially reasonable efforts to provide 24 hours advance notice to CUSTOMER of any scheduled maintenance, either directly or via its licensors Dolbey and nVoq; provided, however, that CUSTOMER understands that such advance notice may not be possible in the event that the outage is necessary to correct a serious impairment to the function or security of the Licensed Products. For clarity, the Required Availability Rate applies only to the cloud-based speech recognition service component of the Licensed Products (nVoq.SPS), and not to any other component such as client application software installed on CUSTOMER Systems.

5.2       Required Credits. If LICENSOR fails to meet the Required Availability Rate during any calendar month, and such failure is not excused due to any Excused Delay, CUSTOMER may request a service credit to be applied against future payments that become due from CUSTOMER to LICENSOR under this Agreement. CUSTOMER must submit such request to LICENSOR in

writing within 10 days after the month in which the Required Availability Rate is not met. Such service credit shall be computed as follows:

(a) if the Availability Rate is less than 99.9% but equal to or greater than 98%, the service credit is 10% of the Prorated Monthly Fee for the applicable licenses; or

(b) if the Availability Rate is less than 98% but equal to or greater than 97%, the service credit is 20% of the applicable Prorated Monthly Fee for the applicable licenses; or

(c) If the Availability Rate is less than 97%, the service credit is 30% of the applicable Prorated Monthly Fee for the applicable licenses.

 

     For purposes of this Section, “Prorated Monthly Fee” means the License Fee applicable to the then current payment term of the applicable Licensed Products (e.g., annual payment term or prepaid multi-year term), divided by the number of months in such payment term. 

 

The foregoing credit will be CUSTOMER’s sole and exclusive remedy with respect to any failure to meet the Required Availability Rate. If CUSTOMER is not current in its payment obligations or is in breach of this Agreement when an outage occurs, remedies will accrue, but service credits will not be issued until CUSTOMER pays any outstanding balances and cures any breach.  No credit will be due if the credit would not have accrued but for the action or omission of CUSTOMER or an Authorized User, or if CUSTOMER fails to submit a written request for a service credit within the timeframe set forth in this Section.

  1. WARRANTIES

6.1       Mutual Warranties. Each Party warrants that (a) it has been duly authorized and empowered to enter into this Agreement; and (b) it has the full power, capacity and authority to  enter  into  and  perform  this Agreement  and  to  make  the  grant  of  rights  and  undertake  the  obligations contained herein, and that its performance of its rights and obligations under this Agreement does not violate or conflict with any agreement to which it is a party.

6.2       Licensed Product Warranty

(a) Licensed Product Warranty.  Solely with respect to a Production Use license in accordance with Section 2.1, LICENSOR warrants that the Licensed Products will substantially contain the functionality described in the Documentation, and when properly installed on CUSTOMER Systems meeting the specifications set forth in, and operated in accordance with, the Documentation, will substantially perform in accordance therewith.  LICENSOR will use commercially reasonable efforts during the Agreement Term, at LICENSOR’s own expense, to correct any reproducible error in the Licensed Products reported to LICENSOR. If LICENSOR is unable to make the Licensed Products operate as warranted, CUSTOMER may terminate the license for the non-conforming Licensed Products, and recover the unused portion of the applicable prepaid license fee on a pro-rata basis. All claims hereunder must be submitted to LICENSOR in writing, and LICENSOR shall have the right prior to any response to inspect any Licensed Products claimed to be nonconforming, and in any event LICENSOR reserves the right to reject claims not covered by warranty or claims not submitted to LICENSOR in writing. The foregoing constitutes LICENSOR’S sole obligation and CUSTOMER’S exclusive remedy for any breach of the warranty set forth in this Section 6.2(a). 

(b)   Limitation of Warranties. The warranties in this Section 6.2 shall not apply, and LICENSOR shall have no warranty obligation or liability with respect to, any nonconformance arising out of:

(i) installation or use of the Licensed Products other than in accordance with this Agreement and the Documentation;

(ii) installation or use of the Licensed Products on or with CUSTOMER Systems not specified as compatible with such Licensed Products in the Documentation;

(iii) CUSTOMER Systems or the ability of CUSTOMER or its Authorized Users to connect to the internet;

(iv) modification or alteration to the Licensed Products by persons other than LICENSOR or its authorized representatives;

(v) CUSTOMER’s requested modifications, alterations, or additions to the Licensed Products that cause it to deviate from the Documentation;

(vi) any willful misconduct or negligent action or omission of CUSTOMER or its Authorized Users; or

(vii) failure to install an Update to any Licensed Product made available to CUSTOMER.

6.3       No Other Warranties. No employee, agent, or representative of a Party has authority to bind such Party to any oral representation or warranty. Any representation or warranty not expressly set forth in this Agreement will be unenforceable.

7.         DISCLAIMERS.  The disclaimers and waivers set forth in this Section 7 shall apply to the maximum extent permitted by applicable law.

7.1 GENERAL WARRANTY DISCLAIMER. EXCEPT FOR LICENSOR’S LIMITED WARRANTY SET FORTH IN SECTION 6.2, THE LICENSED PRODUCTS ARE PROVIDED “AS IS” AND LICENSOR MAKES NO OTHER WARRANTIES, AND EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE, WHETHER EXPRESS, IMPLIED OR STATUTORY.  FURTHERMORE, THE LICENSED PRODUCTS ARE PROVIDED “AS IS,” AND ALL EXPRESS AND IMPLIED WARRANTIES REGARDING THE LICENSED PRODUCTS BY DOLBEY, NVOQ, AND THEIR LICENSORS ARE EXPRESSLY DISCLAIMED, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE, WHETHER EXPRESS, IMPLIED OR STATUTORY. LICENSOR, DOLBEY AND NVOQ DO NOT WARRANT THAT THE LICENSED PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE OR WILL OPERATE WITHOUT LOSS OF DATA.

7.2 THIRD PARTY CONTENT DISCLAIMER. THE LICENSED PRODUCTS MAY OFFER CERTAIN INFORMATION PRODUCED BY THIRD PARTIES, INCLUDING TEMPLATES, ROUTINES, AND OTHER TOOLS (THE “THIRD PARTY CONTENT”). “THIRD PARTY CONTENT” ALSO INCLUDES INFORMATION THAT CUSTOMER OR ITS AUTHORIZED USERS MAY ADD TO THE LICENSED PRODUCTS, SUCH AS CUSTOMIZED ROUTINES OR TEMPLATES. LICENSOR, DOLBEY AND NVOQ MAKE NO WARRANTY OR GUARANTEE RELATING TO SUCH THIRD-PARTY CONTENT, INCLUDING ITS CLINICAL ACCURACY, RELIABILITY OR QUALITY, AND EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES RELATING TO SUCH THIRD-PARTY CONTENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

 

7.3 RESULTS, OUTPUT, AND MEDICAL ADVICE DISCLAIMER. LICENSOR, DOLBEY, AND NVOQ SHALL NOT HAVE ANY LIABILITY WHATSOEVER FOR THE ACCURACY OR COMPLETENESS OF ANY TRANSCRIBED CUSTOMER DATA, OR FOR ANY DECISION MADE OR ACTION TAKEN BY CUSTOMER (OR ANY AUTHORIZED USER) IN RELIANCE UPON ANY TRANSCRIBED OR SPEECH RECOGNIZED CUSTOMER DATA.  CUSTOMER ACKNOWLEDGES THAT THE LICENSED PRODUCTS ARE NOT ERROR FREE. CUSTOMER AGREES THAT IT HAS THE SOLE AND EXCLUSIVE RESPONSIBILITY TO IDENTIFY AND CORRECT ANY ERRORS, AND CONFIRM THE ACCURACY OF THE CONTENT, RESULTS OR OUTPUT OF THE LICENSED PRODUCTS, BEFORE USING AND/OR RELYING ON SUCH CONTENT, RESULTS OR OUTPUT OF THE LICENSED PRODUCTS FOR ANY PURPOSE. LICENSOR, DOLBEY AND NVOQ  MAKE NO WARRANTY OR GUARANTEE AS TO THE CLINICAL ACCURACY, RELIABILITY AND QUALITY OF INFORMATION CONTAINED IN OR PRODUCED BY THE LICENSED PRODUCTS, AND CUSTOMER AGREES THAT LICENSOR, DOLBEY, AND NVOQ ARE NOT PROVIDING MEDICAL PRACTICE ADVICE UNDER ANY CIRCUMSTANCES. CUSTOMER SHALL CONSULT WITH AND RELY EXCLUSIVELY ON ITS OWN PHYSICIANS OR OTHER MEDICAL DIRECTION FOR REVIEW, REVISIONS, ERROR CORRECTION, AND APPROVAL OF ANY AND ALL CONTENT, RESULTS, OR OUTPUT OF THE LICENSED PRODUCTS. LICENSOR, DOLBEY, AND NVOQ ASSUME NO RESPONSIBILITY FOR ANY OF THE FOREGOING.

 

  1. PASS-THROUGH WARRANTIES AND INDEMNITIES. To the extent legally permissible, LICENSOR will pass-through to CUSTOMER the benefit of any third-party warranties and indemnities applicable to the Licensed Products. To the extent that CUSTOMER is entitled to receive proceeds from the benefit of such third-party warranties and indemnities, such proceeds shall offset any liability of LICENSOR otherwise owed to CUSTOMER.
  2. FEES AND PAYMENTS

9.1       Fees and Expenses

(a) License Fees. Subject to Section 9.2(e) (Renewals), the fees for the Licensed Products and associated services shall be as set forth in the applicable Sales Agreement. Except as otherwise specified in this Agreement: (i) fees are quoted and payable in United States dollars; (ii) fees are based on licenses purchased, and not actual usage; (iii) License Fees are pre-paid and non-refundable (with the exception of batch transcription fees, which are not pre-paid); (iv) all Production Use licenses, including multi-year licenses, are non-cancellable and non-refundable for the Production License Term, regardless of whether the CUSTOMER stops using some or all of the User licenses for any reason; and (v) the number of User licenses purchased cannot be decreased during the Production License Term.

 

(b) Travel Expenses. LICENSOR will bill CUSTOMER for reasonable out-of-pocket expenses incurred by LICENSOR on CUSTOMER’s behalf for lodging, meals and incidentals, and travel.

 

9.2     Invoicing. All License Fees and related implementation and training fees are payable in advance in the amounts and manner set forth in the Sales Agreement, subject to the additional terms and conditions set forth in this Section.  The invoice shall be deemed accurate and binding unless CUSTOMER disputes the invoice in good faith by providing written notice of such dispute to LICENSOR within fifteen (15) days following receipt of the applicable invoice, detailing the reason for such dispute.

 

(a) New CUSTOMER Accounts. Unless otherwise specified in the applicable Sales Agreement, LICENSOR will invoice all amounts specified in the Sales Agreement upon acceptance of the Sales Agreement. Upon expiration of a Trial Term (if any), LICENSOR may suspend CUSTOMER’s (and its Authorized Users’) access to and use of the Licensed Products and shall not be required to perform any services or enable any User Accounts until it receives CUSTOMER’s payment for the Production Use License(s) specified in the applicable Sales Agreement.   

 

(b) Mid-Term Payments. For Licensed Products with a term in excess of one year which are paid on an annual basis, LICENSOR will invoice CUSTOMER for the mid-term annual payments no sooner than ninety (90) days prior to the respective anniversary of the Production License Start Date.

 

(c) Add-On Licenses. CUSTOMER must accept a new Sales Agreement prior to adding new User Accounts in excess of the number of purchased licenses. Unless otherwise specified in the Sales Agreement, such additional licenses shall be coterminous with the then current license term, and LICENSOR shall pro-rate the corresponding invoice accordingly. All add-on licenses purchased by CUSTOMER shall be subject to the terms and conditions of this Agreement regardless of whether the Sales Agreement for such add-on licenses specifically references or incorporates this Agreement.  

    

(d) Over-Deployment. Upon discovery that the number of individual User Accounts exceeds the licenses purchased by CUSTOMER (“Over-Deployment”), LICENSOR shall invoice CUSTOMER for the excess licenses at LICENSOR’s then-current pricing, pro-rated to be coterminous with the then current license term. For clarity, the start date for the billable period for such excess licenses shall be the first day of the month that the User Account is enabled. LICENSOR may, in its discretion, also charge CUSTOMER interest equal to one and one-half percent (1.5%) per month or the highest interest rate allowed by applicable law, whichever is less, compounded for the duration of the Over-Deployment.

    

(e) Renewals. Renewals pursuant to Section 13.3 (Auto-Renewal) will be billed at LICENSOR’s then current license fee. All licenses purchased or enabled during the Initial Production License Term will be subject to renewal, regardless of usage. LICENSOR will invoice CUSTOMER for such renewal fee no sooner than ninety (90) days prior to expiration of the then current license term.

 

9.3  Payments.                     CUSTOMER agrees to pay all amounts due under this Agreement and not disputed in accordance with Section 9.2, without setoff or deduction, within 30 days of the invoice date. All fees due hereunder are exclusive of, and pursuant to Section 9.3(b) (Taxes) CUSTOMER will have the obligation to pay, all taxes applicable to the transactions contemplated by this Agreement.

 

(a) Unpaid Amounts.  In addition to all other remedies provided hereunder and applicable law, if CUSTOMER fails to pay any amounts due and not disputed in accordance with Section 9.2, LICENSOR may: (a) charge interest on any unpaid amounts equal to one and one-half percent (1.5%) per month or the highest interest rate allowed by applicable law, whichever is less, compounded for the duration of the nonpayment; and (b) suspend CUSTOMER’s access to the Licensed Products until such amounts are paid in full, including applicable interest. CUSTOMER relinquishes any right to set off amounts due under this Agreement, and warranty or other service claims do not suspend CUSTOMER’s payment obligations.  CUSTOMER shall reimburse LICENSOR for all reasonable costs incurred (including reasonable attorneys’ fees) in collecting past due amounts. 

 

(b)TaxesAll amounts payable by CUSTOMER to LICENSOR under this Agreement are exclusive of any tax, levy or similar governmental charge (together “Taxes”) that may be assessed by any jurisdiction, whether based on the delivery, possession or use of the Licensed Products, the provision of services, the execution or performance of this Agreement or otherwise, and including all sales, use, excise, import, export and value-added taxes or levies. CUSTOMER will pay or reimburse, and will defend and indemnify and hold harmless LICENSOR against, all such Taxes, other than those based on LICENSOR income, and any related penalties and interest, or furnish LICENSOR with evidence acceptable to the taxing authority to sustain an exemption therefrom.  If CUSTOMER is required to withhold any amount for Taxes on any payments to LICENSOR, then the amount of CUSTOMER’s payment will be automatically increased to offset such amount withheld. 

  1. CONFIDENTIAL INFORMATION

10.1             Definition.  “Confidential Information" shall mean all proprietary information, trade secrets, and other non-public  information provided by either Party to the other that is marked or otherwise identified as "Confidential" or which the receiving Party should know is confidential, including: (a)  the terms of this Agreement; (b) the Licensed Products and Documentation; and (c) other technical, marketing, pricing, financial, personnel, analytical methods and procedures, specifications, business plans, research and development information. 

10.2               CUSTOMER Data. Except as set forth in Section 10.2(c), CUSTOMER Data shall constitute “Confidential Information.”  The following additional rights and restrictions apply to CUSTOMER Data:

(a)             LICENSOR, Dolbey and nVoq may access and use the CUSTOMER Accounts, including all associated User Accounts and all CUSTOMER Data to respond to service or technical problems affecting the CUSTOMER and generally provide the Licensed Products to CUSTOMER.

(b)            CUSTOMER acknowledges that LICENSOR, Dolbey, and nVoq may collect and store information regarding use of the Licensed Products and about CUSTOMER Systems on or with which the Licensed Products are installed or used.  CUSTOMER agrees that the LICENSOR, Dolbey, and nVoq may use such information for any purpose related to any use of the Licensed Products by CUSTOMER or on CUSTOMER Systems, including but not limited to:

     (i)       improving the performance of the Licensed Products or developing Updates; and

    (ii)       verifying CUSTOMER’s compliance with the terms of this Agreement and enforcing the LICENSOR’s, Dolbey’s, and nVoq’s rights, including all Intellectual Property Rights in and to the Licensed Products.

 

(c)           nVoq may access CUSTOMER Accounts, including all associated User Accounts and CUSTOMER Data, to De-Identify CUSTOMER Data consistent with the standards set forth in 45 C.F.R. 164.514(b) and internally use the De-Identified CUSTOMER Data to create one or more sets of “Aggregate Data,” which shall be owned by nVoq. “Aggregate Data” means De-Identified CUSTOMER Data aggregated with data from other end users of the Licensed Products, such that the De-Identified CUSTOMER Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further processing of such information, data or content.  nVoq may use, reproduce, modify, perform, and create derivative works of Aggregate Data internally solely to maintain and improve the Licensed Products, including system tuning, grammar tuning, training of acoustic models and other models, tolls and algorithms, and to develop new products and services. nVoq agrees that it shall not disclose De-Identified CUSTOMER Data or Aggregate Data to any third party without the prior written approval of Dolbey, except as required to perform its obligations hereunder or disclosure is required by law; for sake of clarity such consent is not required for nVoq’s use and disclosure of any statistical analysis, computer algorithms, mathematical models, tolls, patents, or the like derived from nVoq’s analysis of the Aggregate Data.  For purposes of this Agreement, De-Identified CUSTOMER Data and Aggregate Data are not Confidential Information.

(d)         To the extent that the Licensed Products include configurable options to restrict the storage and usage of CUSTOMER Data, nVoq shall implement such restrictions in accordance with the configuration selected by CUSTOMER.  Such configurable options may include, but are not limited to: (a) purging CUSTOMER Data at specified intervals; or (b) “opting out” or excluding CUSTOMER Data or De-Identified CUSTOMER Data from the uses specified in Section 10.2(c). “Opting-out” and/or requesting a purge of CUSTOMER Data will not affect or apply to any CUSTOMER Data collected before the opt-out or purge request date. For example, if CUSTOMER does not initially opt-out, then nVoq may use the De-Identified CUSTOMER Data for the purposes specified in Section 10.2(c). If CUSTOMER later opts out and/or requests a purge, nVoq shall have no obligation whatsoever to remove, delete, or otherwise cease use of any De-Identified CUSTOMER Data captured prior to the opt-out date and may continue to use such De-Identified CUSTOMER Data for the purposes specified in Section 10.2(c).

Restrictions. Each Party agrees that it will not make use of the other Party’s Confidential Information, nor will it disclose such information to any person, firm or business, except in each case as authorized by this Agreement and then only to the extent necessary for performance of this Agreement. Each Party agrees that it will disclose Confidential Information of the other Party only to those of its employees and contractors who need to know such information to carry out the Party’s obligations in connection with this Agreement and who are bound by an obligation of confidentiality with respect thereto no less restrictive than the receiving Party’s obligation hereunder. Each Party agrees that it will protect all Confidential Information of the other Party from unauthorized use, access or disclosure with the same degree of care as it protects its own confidential information of like nature, and in no case less than reasonable care.

10.4 Protected Health Information. The Parties may use and disclose PHI only in accordance with this Agreement, applicable privacy laws, and any  HIPAA Business Associate Agreement (BAA) agreed to by the Parties.  The Parties’ HIPAA BAA is specifically incorporated into this Agreement  by reference.  [BAA Template Healthcare]

10.5  No Offshoring. Subject to Section 10.6 (Accuracy Optimization Services), the Parties shall perform all services pursuant to this Agreement within the United States, and shall not disclose or make available any Confidential Information to any entity or individual outside the United States.

10.6  Accuracy Optimization Services (AOS). Dolbey’s licensor nVoq engages a subcontractor located in India that performs certain Accuracy Optimization Services (AOS). In the event that CUSTOMER purchases the nVoq AOS, CUSTOMER understands and agrees that nVoq’s Indian subcontractor will have access to such CUSTOMER Data as necessary to perform the AOS.

10.7  Exceptions. The receiving Party’s obligations with respect to any portion of the Confidential Information of the disclosing Party shall terminate when the receiving Party can show that (i) the Confidential Information was in the public domain at the time it was communicated to the receiving Party by the disclosing Party; (ii) it entered the public domain subsequent to the time it  was communicated to the receiving Party by the disclosing Party through no fault of the receiving Party; (iii) it was in the receiving Party’s possession free of any obligation of confidence at the time it was communicated to the receiving Party by the disclosing Party; (iv) it subsequently came into the receiving Party’s possession from a third party free of any obligation of confidence to the disclosing Party; or (v) it was developed by employees or agents of the receiving Party independently of and without reference to any Confidential Information communicated to the receiving Party by the disclosing Party. In addition, Section 10.3 (Restrictions) will not be construed to prohibit any disclosure to the extent that it is (a) necessary to establish the rights of either Party under this Agreement; or (b) required by the valid order or subpoena of a court or other governmental body or otherwise required by law, provided that the Party required to make such disclosure notifies the other Party promptly and in writing and reasonably cooperates with the other Party in any effort to contest or limit the scope of such disclosure.

10.8  Return. Subject to the HIPAA BAA with regard to return or destruction of PHI, upon termination or expiration of this Agreement, each Party shall promptly return or destroy all Confidential Information disclosed by the other Party, and, upon request of the other Party, shall promptly certify in a writing signed by an officer that all such materials of the requesting Party have been returned or destroyed. 

  1. INDEMNIFICATIONFor purposes of this Section, all references to “Claims” shall mean all claims, actions, suits, and demands from any third party, including Authorized Users.

11.1  Licensor’s Infringement Indemnity. 

(a) Infringement Indemnity. Subject to Section 11.1(b) (Exclusions), Section 11.3 (Indemnification Procedures) and Section 8 (Pass-Through Warranties and Indemnities), LICENSOR shall, at its expense, defend or settle any Claim brought against CUSTOMER or its officers or employees alleging that the Licensed Products infringe any third party United States patent or copyright or misappropriate any third party trade secret recognized as such under applicable trade secret law, and shall pay those costs and damages finally awarded against CUSTOMER or those costs and damages agreed to in a monetary settlement of such Claim. In the event the Licensed Products are held or are believed by LICENSOR likely to be held to infringe any copyright, patent, or other intellectual property right of a third party, LICENSOR shall have the option, at its sole expense, to (a) procure for CUSTOMER the right to continue use of the Licensed Products; (b) modify or replace the Licensed Products with service or products of comparable features and function, as applicable to make it non-infringing; or, (c) if neither of the foregoing is commercially practicable, terminate the Agreement and refund to CUSTOMER the unused portion of the applicable prepaid license fee on a pro-rata basis following deactivation of the CUSTOMER’s Account (including all User Accounts) for the alleged infringing Licensed Products.

(b) Exclusions. LICENSOR will have no obligation under this Section 11.1 or otherwise with respect to any Claim arising out of (a) any unauthorized use, reproduction, or distribution of the Licensed Products by CUSTOMER or its Authorized Users; (b) any use of the Licensed Products in combination with other products, equipment, software or data not furnished by LICENSOR, if the alleged infringement would have been avoided by use of the Licensed Products alone; (c) any use, reproduction, or distribution of any release of the Licensed Products other than the most current release, if the alleged infringement would have been prevented by use of the current release; (d) any modification of the Licensed Products by any person other than LICENSOR or its authorized representatives, if the alleged infringement would not have occurred but for such modification; or (e) CUSTOMER’s continuation of allegedly infringing activities after having been supplied with a modification or replacement of the Licensed Products that would have avoided such infringement in accordance with Section 11.1(a).

THIS SECTION 11.1 STATES LICENSOR’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS.

 

11.2  CUSTOMER Indemnity. Subject to Section 11.3 (Indemnification Procedures), CUSTOMER shall, at its own expense, defend and indemnify LICENSOR and its licensors or service providers (including Dolbey and nVoq), and their respective officers and employees, (collectively, “LICENSOR Indemnitees”) from any and all Claims, and shall pay all costs and damages finally awarded against LICENSOR Indemnitees or those costs and damages agreed to in a monetary settlement of such Claims, to the extent that the Claim arises out of any of the following:

 

(a) CUSTOMER’s or its Authorized User’s use of the Licensed Products;

 

(b) any results or output from the Licensed Products or Third Party Content, including any inaccuracies or errors in such results, output, or Third Party Content;

 

(c) any recommendations provided or produced by LICENSOR, the Licensed Products, or Third Party Content;

 

(d) LICENSOR’s discontinuation or suspension of any CUSTOMER Account, User Account, or CUSTOMER’s or its Authorized User’s access to or use of the Licensed Products in accordance with this Agreement, or the unavailability, deletion, or loss of any CUSTOMER Data as a result of such discontinuation or suspension;

 

(e) any loss, unavailability, corruption, or breach of CUSTOMER Data for which LICENSOR waives all liability pursuant to Section 12.2 (Excess Data Storage Liability Waiver).

11.3  Indemnification Procedures. The Indemnified Party shall: (a) promptly notify the Indemnifying Party in writing of the action; (b) give the Indemnifying Party sole control of the defense thereof and all related settlement negotiations; and (c) reasonably cooperate with the Indemnifying Party and, at the Indemnifying Party’s request and expense, reasonably assist in such defense. Without limiting the foregoing, (i) the Indemnified Party will have the right to participate in any such defense at its cost and subject to the Indemnifying Party’s ultimate authority and control; and (ii) the Indemnifying Party shall not enter into any stipulated judgment or settlement that purports to bind the Indemnified Party without the Indemnified Party’s express written authorization, which shall not be unreasonably withheld or delayed.

 

12. WAIVERS AND LIMITATIONS OF LIABILITY.  The waivers and limitations set forth in this Section 12 shall apply to the maximum extent permitted by applicable law, notwithstanding any contrary provision of this Agreement or failure of the essential purpose of any remedy, even if LICENSOR has been advised of the possibility of such damages or losses or such damages or losses were reasonably foreseeable. The waivers and limitations in this Section 12 apply to any and all liability or cause of action however alleged or arising, whether in contract, tort (including negligence), products or strict liability or any other form of action.

 

12.1  CONSEQUENTIAL DAMAGES WAIVER. ALL CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF (OR LOSS OF USE OF) SOFTWARE OR DATA ARE DISCLAIMED ON BEHALF OF LICENSOR, DOLBEY, NVOQ, AND THEIR RESPECTIVE LICENSORS.

 

12.2  EXCESS DATA STORAGE LIABILITY WAIVER. THE LICENSED PRODUCTS ARE DESIGNED AND INTENDED TO FUNCTION AS A TOOL FOR DOCUMENT CREATION AND IMPROVEMENT, NOT AS A LONG-TERM REPOSITORY OF CUSTOMER DATA. THE LICENSED PRODUCTS INCLUDE CONFIGURABLE FEATURES DESIGNED TO PURGE CUSTOMER DATA AT SPECIFIED INTERVALS. IN NO EVENT SHALL LICENSOR OR DOLBEY BE LIABLE FOR THE LOSS, UNAVAILABILITY, CORRUPTION, OR BREACH OF ANY CUSTOMER DATA THAT IS MAINTAINED IN THE LICENSED PRODUCTS BEYOND 30 DAYS OF INPUT OR CREATION, OR (IN THE EVENT THE LOWEST CONFIGURABLE PURGE INTERVAL IS GREATER THAN 30 DAYS) BEYOND THE LOWEST CONFIGURABLE PURGE INTERVAL. This provision shall not limit LICENSOR’s reporting obligations to CUSTOMER pursuant to a HIPAA BAA.

 

12.3 LIMITATION OF LIABILITY.  IN NO EVENT WILL LICENSOR’S AND ITS LICENSORS’ AND SERVICE PROVIDERS’ (INCLUDING DOLBEY’S AND NVOQ’S), COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE LICENSE FEES PAID BY CUSTOMER TO LICENSOR PURSUANT TO THIS AGREEMENT IN THE PRECEDING 12 MONTH PERIOD; PROVIDED, HOWEVER, THAT THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LICENSOR’S INDEMNIFICATION OBLIGATION PURSUANT TO SECTION 11.1 (LICENSOR’S INFRINGEMENT INDEMNITY).

  1. TERM AND TERMINATION

13.1 Agreement Term. Unless earlier terminated pursuant to this Agreement, the term of this Agreement (“Agreement Term”) begins on the Effective Date and terminates upon expiration of the Trial Term or Production License Term (if any).

13.2 Termination Of Trial Term Or Conversion To Production Use License.  During the Trial Term (if any), either Party may, in its sole discretion, terminate this Agreement at any time and for any reason.  Upon expiration of the Trial Term and LICENSOR’s receipt of all amounts payable under the applicable Sales Agreement, this Agreement shall continue in force as a Production Use license in accordance with Section 2.1.

13.3 Auto-Renewal.  Following the Initial Production License Term, the license term shall automatically renew for successive one (1) year periods (“Renewal Terms”), provided that a Party has not provided written notice to the other Party of its intention not to renew at least ninety (90) days prior to the expiration of the then current term.

13.4 Termination Of Agreement For Cause. Each Party may terminate this Agreement, effective immediately, if: (a) the other Party ceases to function as a going concern or substantially ceases to conduct its operations in the normal course of business; (b) a receiver for the other Party is appointed, or applied for, or the other Party otherwise takes advantage of any insolvency or bankruptcy law and is unable to fulfill its duties under the Agreement; or (c) subject to Section 14.7 (Force Majeure), the other Party breaches any provision of this Agreement and does not cure the breach within 30 days after receiving written notice thereof, or such other time period as the Parties may agree in writing; provided, however, that LICENSOR may terminate this Agreement immediately if CUSTOMER’S breach is incapable of cure. 

13.5 Sunset.  LICENSOR, Dolbey and nVoq reserve the right to Sunset one or more Licensed Products at any time, upon notice to CUSTOMER.  “Sunset” means a referenced product will no longer be commercially available to any end user in the United States, and LICENSOR support will be permanently discontinued. Notwithstanding anything to the contrary herein, this Agreement shall terminate upon the Sunset date specified by LICENSOR, Dolbey or nVoq.

13.6 Effects Of Termination Of Agreement.  Upon termination or expiration of this Agreement for any reason:

(a) all amounts payable to LICENSOR hereunder shall become immediately due and owing;

(b) all licenses granted to CUSTOMER under this Agreement  shall terminate;

(c) in the event of termination due to a Sunset, LICENSOR shall refund to CUSTOMER the unused portion of the applicable prepaid license fee for the Sunset Licensed Product(s) on a pro rata basis following termination;

(d) CUSTOMER and its Authorized Users shall discontinue all further access to and use of the Licensed Products and destroy all copies of the Licensed Products and Documentation;

(e) CUSTOMER and its Authorized Users shall fully cooperate with LICENSOR as necessary to disable their access to and use of the Licensed Products and to uninstall Licensed Products from CUSTOMER Systems;

(f) LICENSOR shall have the right, and CUSTOMER shall cooperate as necessary, to permanently delete or render unavailable all content stored in the Licensed Products, including all CUSTOMER Data.

Termination or expiration of this Agreement shall not limit a Party’s remedies for breach and is without prejudice to the enforcement of any undischarged obligations existing at the time of termination or expiration.

 

13.7 Survival.  Rights and obligations under this Agreement which by their nature should survive will remain in effect after termination or expiration of this Agreement, including Sections 3, 6, 7, 8, 9, 10, 11, 12, 13, 14, and the HIPAA BAA.

  1. GENERAL

14.1 Remedies. An actual or threatened breach of Sections 3 (License Restrictions and Obligations), 10 (Confidential Information), 11 (Indemnification), and 14.3 (Assignment) may cause irreparable harm for which monetary damages would be an inadequate remedy, and that in such event the non-breaching Party shall be entitled to obtain immediate injunctive relief to protect its rights under this Agreement, without posting bond or having to prove inadequacy of other available remedies. 

 

14.2 Independent Contractors. The Parties are independent contractors, and this Agreement does not establish any agency, joint venture, or partnership.  Neither Party has the power to obligate or bind the other Party in any manner whatsoever.

 

14.3 Assignment. CUSTOMER shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without LICENSOR’s prior written consent, which consent LICENSOR may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving CUSTOMER (regardless of whether CUSTOMER is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which LICENSOR’s prior written consent is required.  No delegation or other transfer will relieve CUSTOMER of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

 

14.4 Notices. Each Party shall provide any legally required notices with regard to this Agreement to the other Party in writing and sent by overnight delivery via a nationally recognized overnight delivery service, with delivery confirmation.  Notwithstanding the foregoing, a Party may (in its sole discretion) agree to accept a notice sent by email by indicating such acceptance in an email response.  A notice shall be deemed to have been given as of the date of delivery by the overnight delivery service or email receipt, if applicable. 

     

14.5 Governing Law And Dispute Resolution. This Agreement and any claim, whether in contract, tort or otherwise, will be governed by and interpreted in accordance with the laws of the State of Delaware, without reference to its choice of laws rules. Any action or proceeding arising from or relating to this Agreement shall be brought exclusively in a federal or state court in the state of LICENSOR’S principal place of business, and each Party irrevocably submits to the exclusive jurisdiction and venue of any such court.  EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY COURT ACTION ARISING UNDER OR OTHERWISE RELATED TO THIS AGREEMENT, WHETHER MADE BY CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR OTHERWISE.

 

14.6 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any applicable jurisdiction, such provision shall be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability.

 

14.7 Force Majeure.  LICENSOR will not be responsible or liable to CUSTOMER, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or CUSTOMER Systems, loss and destruction of property, or any other circumstances or causes beyond LICENSOR’s reasonable control.

 

14.8 Third Party Beneficiaries. Dolbey and nVoq are expressly named as intended third party beneficiaries of the Agreement, with the right to enforce its terms directly against the CUSTOMER.  Other than Dolbey and nVoq, there are no third party beneficiaries to the Agreement. 

 

14.9 Entire Agreement. This Agreement, including all documents specifically incorporated by reference, constitutes the entire agreement between the Parties with respect to the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, any prior or collateral proposals or agreements with respect to the subject matter hereof, including any CUSTOMER general terms and conditions included in a CUSTOMER Sales Agreement, purchase order, statement of work, change order, work request, or similar document. Unless otherwise specified herein, this Agreement may only be amended, modified, or supplemented by a written agreement signed by authorized representatives of each Party.  Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

 

 

Version Date: July 12, 2022

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