EXHIBIT 10.10
NUANCE COMMUNICATIONS
VALUE-ADDED RESELLER AGREEMENT
This Value-Added Reseller Agreement ("Agreement") is entered into as of
this 12th day of March, 1998 (the "Effective Date") between Nuance
Communications, a California corporation having a place of business at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Nuance"), and Periphonics Corporation, a
Delaware corporation, having a place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("VAR").
This Agreement consists of this page ("Signature Page"), the attached terms and
conditions ("Terms and Conditions"), and the exhibits ("Exhibits") listed and
initialed by each party below. The parties may enter into Exhibits from time to
time, which Exhibits shall be so indicated on this Signature Page, shall be
signed by each party, and shall be attached hereto. All such Exhibits shall be
designated with sequential numerical suffixes, such as ▇-▇, ▇-▇ and A-3.
DATE NUANCE VAR
EXHIBIT A-__ Software _____ _____ _____
EXHIBIT B-__ Full Use License _____ _____ _____
EXHIBIT C-__ Limited Use License _____ _____ _____
EXHIBIT D-__ Professional Services _____ _____ _____
EXHIBIT E-__ Minimum Terms _____ _____ _____
EXHIBIT F-__ Technical Support Services _____ _____ _____
EXHIBIT G-__ Nuance Trademarks _____ _____ _____
EXHIBIT H-__ Purchase Order Form _____ _____ _____
EXHIBIT I__ Amendment _____ _____ _____
EXHIBIT J__ Customer Specific... _____ _____ _____
EXHIBIT K__ Escrow _____ _____ _____
AGREED TO:
NUANCE COMMUNICATIONS [VAR] Periphonics Corporation
BY: /s/ Signature Illegible BY: /s/ Signature Illegible
TITLE: V.P. ?? TITLE: Sr. V.P.-Product
Development
DATE: March 24, 1998 DATE: March 25, 1998
[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
1
NUANCE COMMUNICATIONS
VALUE-ADDED RESELLER AGREEMENT
TERMS AND CONDITIONS
1. DEFINITIONS. Capitalized terms used in this Agreement shall have the
following meanings:
"APPLICATION" shall mean the software designated as such in an EXHIBIT D
("PROFESSIONAL SERVICES").
"APPLICATION DOCUMENTATION" shall mean all information provided to VAR by Nuance
which describes the form, features or operation of an Application and which is
contained in a tangible medium, such as written format, tape, magnetic or other
media. Application Documentation shall include any Updates of Application
Documentation which Nuance may make available to VAR pursuant to this Agreement.
"APPLICATION SPECIFICATION" shall mean the technical and performance
specifications for an Application which are contained in and distributed with
the Application Documentation.
"APPLICATION WARRANTY" SHALL MEAN THE WARRANTY PROVIDED BY NUANCE FOR AN
APPLICATION DEVELOPED IN ACCORDANCE WITH EXHIBIT D ("PROFESSIONAL SERVICES") AS
FURTHER DEFINED IN EXHIBIT D ("PROFESSIONAL SERVICES").
"AUTHORIZED GRAMMAR SIZE" shall mean a Grammar of a size for which Nuance has
granted to VAR an Limited Use License pursuant to an EXHIBIT C ("LIMITED USE
LICENSE").
"AUTHORIZED PORTS" shall mean the number of Ports for which Nuance has granted
to VAR an Limited Use License pursuant to an EXHIBIT C ("LIMITED USE LICENSE").
"AUTHORIZED SUBLICENCEES" shall have the meaning assigned to it in SUBSECTION
3.1 ("FULL USE LICENSE") if for a Full Use License or SUBSECTION 3.2 ("LIMITED
USE LICENSE") if for an Limited Use License.
"BASIC TECHNICAL SUPPORT SERVICES" shall have the meaning assigned to it in
SECTION 13 ("TECHNICAL SUPPORT SERVICES").
"CONFIDENTIAL INFORMATION" shall have the meaning assigned to it in SECTION 6.1
("DESIGNATION").
"DESIGNATED EMPLOYEES" shall mean an agreed number of regular employees of VAR,
who shall be identified beforehand and in writing to Nuance by VAR, and who
shall communicate with Nuance concerning the provision of Technical Support
Services as provided in SECTION 13 ("TECHNICAL SUPPORT SERVICES AND IN SERVICE
DATA").
"DESIGNATED MARKET" shall mean certain types of End Users described as such in
an EXHIBIT B ("FULL USE LICENSE") or an EXHIBIT C ("LIMITED USE LICENSE").
"DIALOG DESIGN SERVICES" shall have the meaning assigned to it in EXHIBIT D
("PROFESSIONAL SERVICES").
"DISCLOSING PARTY" shall have the meaning assigned to it in SECTION 6.1
("DESIGNATION").
"DESIGNATED TERRITORY" shall mean worldwide unless another geographical
territory is defined in an EXHIBIT B ("FULL USE LICENSE") or an EXHIBIT C
("LIMITED USE LICENSE").
"DOCUMENTATION" shall mean all information provided to VAR by Nuance which
describes the form, features or operation of the Software and which is contained
in a tangible medium, such as written format, tape, magnetic or other media.
Documentation shall include any Updates of Documentation which Nuance may make
available to VAR pursuant to this Agreement.
2
"EFFECTIVE DATE" shall have the meaning assigned to it in the first paragraph of
this Agreement.
"END USER" shall mean an entity which acquires an Integrated System, including
the Software therein pursuant to an End User License Agreement, for its own use,
and not for further distribution.
"END USER LICENSE AGREEMENT" shall mean a written license agreement, in a
commercially reasonable form, containing at least the Minimum Terms, and
pursuant to which VAR shall grant sublicenses of the Software which is
incorporated into an Integrated System.
"ERROR" shall have the meaning assigned to it in SECTION 12.1 ("SOFTWARE
WARRANTY").
"EXHIBITS" shall have the meaning assigned to it in the second paragraph of this
Agreement.
"FEES" shall mean Software License Fees, Professional Services Fees, Technical
Support Services Fees, some or all of the foregoing.
"FULL USE LICENSE" shall have the meaning assigned to it in SECTION 3.2 ("FULL
USE LICENSE").
"GRAMMAR DESIGN AND DEVELOPMENT SERVICES" shall have the meaning assigned to it
in EXHIBIT D (PROFESSIONAL SERVICES).
"IN SERVICE DATA" shall mean the audio input to the Software resulting from End
User telephone calls to the Integrated System whether in a pilot, trial or
production use of the Integrated System.
"INTEGRATED SYSTEM" shall mean the VAR product configuration described as such
in an EXHIBIT A ("SOFTWARE").
"KEY" shall mean a numerical or alpha-numerical code which is necessary to gain
access to certain Software on certain media as delivered by Nuance hereunder.
"LIMITED USE LICENSE" shall have the meaning assigned to it in SECTION 3.2
("LIMITED USE LICENSE").
"MINIMUM TERMS" shall mean the End User License Agreement terms described in
EXHIBIT E ("MINIMUM TERMS").
"OBJECT CODE" shall mean computer software programs, not readily perceivable by
humans, and suitable for machine execution without the intervening steps of
interpretation or compilation.
"PORT" shall mean one telecommunications connection which permits input for a
single user into an Integrated System.
"PREMIUM TECHNICAL SUPPORT SERVICES" shall have the meaning assigned to it in
SECTION 13 ("TECHNICAL SUPPORT SERVICES AND IN SERVICE DATA").
"PROFESSIONAL SERVICES FEES" shall mean the Fees for performance of Professional
Services payable by VAR to Nuance as described in an EXHIBIT D ("PROFESSIONAL
SERVICES").
"PURCHASE ORDER" shall have the meaning assigned to it in SECTION 2 ("PURCHASE
ORDERS").
"RECEIVING PARTY" shall have the meaning assigned to it in SECTION 6.1
("DESIGNATION").
"RECOGNITION UNIT" shall mean the recognition power required to understand a
continuous stream of digits in real time with a 1% digit error rate, as
represented by a 100-utterance Nuance-supplied benchmark test set.
"RELEASE" shall mean a new, enhanced or revised iteration of Software, which may
include corrections for Errors, and which is generally designated by Nuance with
a change to one or more numbers to the right of the decimal point in the name of
such Release, such as Release "1.x".
3
"REPORT" shall have the meaning assigned to it in SECTION 10 ("REPORTS AND RIGHT
TO AUDIT").
"SALE", "SELL", "SELLING" or "SOLD" shall mean, with respect to the Integrated
System, any sublicense of the Software as part of the Integrated System pursuant
to the End User License Agreement, with or without consideration or other
payment to VAR.
"SIGNATURE PAGE" shall have the meaning assigned to it in the second paragraph
of this Agreement.
"SOFTWARE" shall mean the Nuance computer software programs described generally
in an EXHIBIT A, ("SOFTWARE") including Updates, if any, and accompanying
Documentation, and licensed by (a) the Test and Integration License described in
Section 3 of this Agreement; or, (b) execution of an EXHIBIT B ("FULL USE
LICENSE") or EXHIBIT C ("LIMITED USE LICENSE") and as specifically described in
an applicable Purchase Order.
"SOFTWARE LICENSE" shall mean an Limited Use License, a Full Use License, a Test
and Integration License, any or all of the foregoing.
"SOFTWARE LICENSE FEES" shall mean those Fees for an Limited Use License and/or
a Full Use License, payable by VAR to Nuance as described in an EXHIBIT B ("FULL
USE LICENSE") or an EXHIBIT C ("LIMITED USE LICENSE").
"SOURCE CODE" shall mean computer software programs not in machine readable
format and not suitable for machine execution without the intervening steps of
interpretation or compilation.
"SPEECH CHANNEL" shall mean the computer software described as such in an
EXHIBIT B ("FULL USE LICENSE") OR AN EXHIBIT C ("LIMITED USE LICENSE").
"SPECIFICATIONS" shall mean the technical and performance specifications for the
Software which are contained in and distributed with the Documentation.
"SUBSIDIARY" shall mean any entity which is controlled by a party. A party shall
be considered as in control of an entity if that party owns, or directly or
indirectly controls, at least fifty percent (50%) of the voting stock or other
ownership interest of such entity, or if it directly or indirectly possesses the
power to direct or cause the direction of the management and policies of such
entity by any means.
"TECHNICAL SUPPORT SERVICES" shall mean Basic Technical Support Services,
Premium Technical Support Services, either or both.
"TECHNICAL SUPPORT SERVICES FEE" shall mean the annual Fee for Technical Support
Services payable by VAR to Nuance described as such in an EXHIBIT F ("TECHNICAL
SUPPORT SERVICES"), and as may be increased or decreased by Nuance, upon notice
and at Nuance's discretion, subject to Section 9.1.7, upon each anniversary of
the date of this Agreement.
"TERM" shall have the meaning assigned to it IN SECTION 11 ("TERM AND
TERMINATION").
"TERMS AND CONDITIONS" shall have the meaning assigned to it in the second
paragraph of this Agreement.
"TEST AND INTEGRATION LICENSE" shall have the meaning described by Section 3.3.
"TOOLKIT" shall mean the Software known as "Nuance Developer's Toolkit."
"TRADEMARKS" shall mean the trademarks, trade names, and service marks of Nuance
which are described in EXHIBIT G ("NUANCE TRADEMARKS"), and as may be modified
or supplemented upon notice from Nuance.
"UPDATE" shall mean any modification of or addition to the Software or
Documentation, including new Releases but not new Versions, for which Nuance
does not charge an additional fee to licensees who are similarly situated to
VAR.
4
"VERSION" shall mean a new, enhanced or revised iteration of Software, which may
include corrections for Errors, and which is generally designated by Nuance with
a change to one or more numbers to the left of the decimal point in the name of
such Version, such as Version "X.1".
"WARRANTY PERIOD" shall have the meaning assigned to it in SECTION 12 ("WARRANTY
AND DISCLAIMER").
2. PURCHASE ORDERS.
2.1 ISSUANCE OF PURCHASE ORDERS. VAR may, from time to time during the
Term, issue to Nuance purchase orders which describe the Software Licenses,
Professional Services, Technical Support Services or other goods or services
which VAR wishes to obtain from Nuance ("Purchase Orders"). Purchase Orders
shall be in a form substantially similar to the Purchase Order attached hereto
as EXHIBIT H ("PURCHASE ORDER"). Nuance agrees that VAR may, for purposes of
administrative convenience, use VAR's standard form of purchase order which may
contain pre-printed or other written terms and conditions. The parties
understand and agree that such terms and conditions shall have no effect
whatsoever. VAR agrees that other than as provided in SECTION 2.2 any Purchase
Order form must include the following minimum information: the specific Nuance
Software to be licensed, the number of licenses to be issued (number of copies
of software), the name and address of the Authorized Sublicensee to whom the
Software License will issue, the customer application for which the Software
will be used (if applicable), the number of Ports to be installed (if
applicable), the machine identifier for which the Software is licensed and the
appropriate machine name (i.e., "OSCAR1").
2.2 LIMITATION ON CUSTOMER OR APPLICATION DISCLOSURE. VAR agrees to
disclose the information provided in SECTION 2.1 for any Purchase Order for a
minimum of 90% of VARs Authorized Sublicensees (such percentage being measured
over a 12-month period). VAR may elect to not disclosure the requested
information in the case of the remaining Authorized Sublicensees of VARs for any
reason whatsoever. Nuance and VAR agree to review the required level of Purchase
Order customer/application disclosure at the end of the first twelve (12) months
of this agreement.
2.3 ACCEPTANCE OR REJECTION OF PURCHASE ORDERS. Nuance shall have five (5)
days from the date of receipt of each Purchase Order to accept or reject such
Purchase Order and notify VAR of the acceptance or rejection of such Purchase
Order. Any failure of Nuance to accept or reject a Purchase Order within the
foregoing five (5) day period shall be deemed acceptance thereof. In the event
Nuance accepts a Purchase Order, Nuance shall create and deliver to VAR the
appropriate Key(s) within five (5) business days unless otherwise agreed through
acceptance of the Purchase Order. The parties agree that neither party shall
have any obligation with respect to a rejected Purchase Order.
3. GRANT OF LICENSES.
3.1 Full Use License. In the event that VAR has entered into an EXHIBIT B
("FULL USE LICENSE") and applicable Purchase Order, Nuance hereby grants to VAR
a license ("Full Use License") as follows, and subject to the provisions of such
Exhibit, Purchase Order and this Agreement:
3.1.1 GRANT OF LICENSE. In consideration of all obligations of VAR
hereunder, including without limitation the payment by VAR of Software License
Fees, Nuance hereby grants to VAR a non-exclusive, non-transferable license
(including the right to grant sublicenses to Authorized Sublicensees solely as
described in this SECTION ("FULL USE LICENSE")) to make copies of the Software
solely to integrate such copies into the Integrated System. The foregoing
license includes the right, subject all provisions of this Agreement including
VAR's obligation to pay Software License Fees, to grant sublicenses to such
Software: (W) solely as incorporated into
5
the Integrated System; (Y) solely to End Users, Subsidiaries and distributors or
value added resellers of Integrated Systems (collectively "Authorized
Sublicensees"), and (Z): (I) if to End Users, solely pursuant to the End User
License Agreement, and (II) if to other Authorized Sublicensees, solely pursuant
to an agreement between VAR and the Authorized Sublicensee with license terms
substantially similar to those in this Agreement. VAR agrees to make such
Software accessible solely as part of the Integrated System, and in no event on
a "stand-alone" or independent basis
3.1.2 COPIES. VAR may make a reasonable number of copies of the
Software for VAR's internal back-up and archival purposes only, provided that
all such copies shall bear the original and unmodified copyright, patent and
other intellectual property markings as when originally delivered by Nuance.
3.2 LIMITED USE LICENSE. In the event that VAR has entered into an EXHIBIT
C ("LIMITED USE LICENSE") and applicable Purchase Order, Nuance hereby grants to
VAR a license ("Limited Use License") as follows, and subject to the provisions
of such Exhibit, Purchase Order and this Agreement:
3.2.1 GRANT OF LICENSE. In consideration of all obligations of VAR
hereunder, including without limitation the payment by VAR of Software License
Fees, Nuance hereby grants to VAR a non-exclusive, non-transferable limited
license (including the right to grant sublicenses to Authorized Sublicensees
solely as described in this SUBSECTION 3.2 ("LIMITED USE LICENSE")) to make
copies of the Software: (A) solely for the Authorized Ports; (B) solely for the
Authorized Grammar Size; and (C) solely to integrate such copies into the
Integrated System. The foregoing license includes the right, subject all
provisions of this Agreement including VAR's obligation to pay Software License
Fees, to grant sublicenses of such Software: (W) solely as incorporated into the
Integrated System; (X) solely to End Users, Subsidiaries and distributors or
value added resellers of Integrated Systems (collectively "Authorized
Sublicensees") within the Designated Market and for their use within the
Designated Territory; and (Z): (I) if to End Users, solely pursuant to the End
User License Agreement, and (II) if to other Authorized Sublicensees, solely
pursuant to an agreement between VAR and the Authorized Sublicensee with license
terms substantially similar to those in this Agreement. VAR agrees to make such
Software accessible solely as part of the Integrated System, and in no event on
a "stand-alone" or independent basis.
3.2.2 COPIES. VAR may make a reasonable number of copies of the
Software for VAR's internal back-up and archival purposes only, provided that
all such copies shall bear the original and unmodified copyright, patent and
other intellectual property markings as when originally delivered by Nuance.
3.3 TEST AND INTEGRATION LICENSE. VAR is hereby granted a no-charge,
royalty-free, non-exclusive, non-transferable license to use the Software for
the purpose of internal testing, analysis, and technical integration with
equipment manufactured by VAR, and/or sales demonstration of the Software,
including the right to make a minimum number of copies of Software for the sole
purpose of facilitating such internal activities by VAR ("Test and Integration
License").
3.4 ADDITIONAL RESTRICTIONS.
3.4.1 NO IMPLIED LICENSES. The Software, including all copies
thereof, are and shall remain at all times the exclusive property of Nuance. VAR
acquires no rights or licenses therein except those expressly granted herein.
3.4.2 NO TRANSFER. Except as expressly provided in this SECTION 3
("GRANT OF LICENSES"), VAR may not market, distribute or
6
transfer copies of the Software to others or electronically transfer the
Software from one computer to another over a network; except that, VAR may
transfer copies of the Software to a similarly configured back-up system: for
the contingency of primary system failure (redundancy) and routine installation,
warranty and maintenance services. VAR may also transfer licensed copies of the
Software in conjunction with Integrated Systems that are configured in a network
environment.
3.4.3 NO REVERSE ENGINEERING. VAR hereby acknowledges that the
Software contains valuable trade secret and confidential information of Nuance.
VAR agrees not to reverse compile, reverse engineer, reverse assemble, or
otherwise attempt, directly or indirectly, to obtain or create Source Code for
the Software.
3.5 KEYS AND ACCESS. Nuance agrees to provide to VAR those Keys which are
reasonably necessary to permit VAR to gain access to Software contained on media
shipped to VAR and which Software has been properly licensed to VAR pursuant to
a Test and Integration License or an Exhibit and applicable Purchase Order. All
such Keys shall be considered the Confidential Information of Nuance for
purposes of SECTION 6 ("CONFIDENTIAL INFORMATION"). Notwithstanding anything to
the contrary in this Agreement, VAR hereby acknowledges that VAR shall have no
right or license to any Software shipped to VAR on media as provided above which
Software is not properly licensed pursuant to the Test and Integration License
or an Exhibit and applicable Purchase Order, that any such Software is included
therein solely as a matter of administrative convenience, and VAR further agrees
not to attempt to gain access to, or permit any third party to attempt to gain
access to, such Software.
Nuance agrees to work jointly and in good faith with VAR to define a process
that will enable VAR to "self-provision" needed software keys. Such process will
include tracking and audit procedures that are required by Nuance to protect its
intellectual property and to account for license fees payable. Nuance and VAR
agree to make best efforts to define and agree to such a process within 30 days
of the signing of this Agreement and to implement the process as quickly as
practicable thereafter.
3.6 TRADEMARK LICENSE.
3.6.1 GRANT OF LICENSE. Nuance hereby grants to VAR, with the right
to sublicense to Authorized Sublicensees other than End Users, a nonexclusive,
nontransferable limited license to use the Trademarks on copies of the
Integrated System and in advertising and printed materials therefor, provided
that the notices of trademark status as described in EXHIBIT G are displayed
adjacent to and with the first or most prominent use of the Trademarks in each
piece of advertising or printed materials in which such Trademarks appear and
includes the respective legends adjacent to or as a footnote to the Trademarks
as described in EXHIBIT G. EXHIBIT G may be amended from time to time to reflect
the current trademark status of existing marks and to add new trademarks. VAR
agrees to diligently comply with updated trademark requirements as reflected in
amendments to EXHIBIT G.
3.6.2 ("USE OF TRADEMARKS; RESTRICTIONS"). VAR agrees not to use any
other trademark or service ▇▇▇▇ in close proximity to the Trademarks or combine
such marks so as to effectively create a unitary composite ▇▇▇▇ without the
prior, written permission of Nuance. VAR agrees to comply with all the foregoing
terms in its catalogs, advertising, packaging and promotional materials relating
to or including the Integrated System and ensure compliance with these terms by
its Authorized Sublicensees (other than End Users).
3.6.3 OWNERSHIP AND QUALITY. VAR acknowledges the ownership of the
Trademarks in Nuance, agrees that it will do nothing inconsistent with such
ownership, agrees to use reasonable efforts to preserve
7
Nuance's rights in the Trademarks, and agrees that all uses of the Trademarks by
VAR and Authorized Sublicensees (other than End Users) shall inure to the sole
benefit of Nuance. VAR agrees to cooperate with Nuance and ensure cooperation by
Authorized Sublicensees (other than End Users) in facilitating Nuance's
monitoring and control of the nature and quality of such Integrated System, and
to supply Nuance with specimens of use of the Trademarks upon request. VAR shall
comply, and ensure compliance by Authorized Sublicensees (other than End Users),
with all applicable laws, rules, regulations, and customs with respect to the
Trademarks, and shall notify Nuance immediately and in writing of any
unauthorized use of the Trademarks by any third party. Nuance shall have the
sole right to bring any legal proceeding with respect to any such unauthorized
use.
4. PROFESSIONAL SERVICES. In the event that VAR has entered into an EXHIBIT D
("PROFESSIONAL SERVICES") as indicated on the Signature Page, Nuance agrees to
use its commercially reasonable efforts to develop and deliver to VAR the
Professional Services described therein according to the milestone schedule also
described therein. The content of Exhibit D shall, in all events, include the
following mutually agreed terms: specifications of any deliverable item or work
product, delivery schedule, acceptance criteria, documentation specifications
and warranty period.
4.1 OWNERSHIP. In the event that an Application is developed by Nuance
under the terms of an EXHIBIT D ("PROFESSIONAL SERVICES"), ownership and license
rights will be as defined in the subject exhibit, except that, if such
Application is designated a "work for hire", VAR shall have ownership of such
Application.
5. DELIVERY AND ACCEPTANCE.
5.1 Nuance shall deliver all of the Software ordered by VAR on or before
the date shown on the applicable Order Form. Delivery shall be FOB VAR's
offices, freight prepaid by Nuance, unless otherwise indicated in the Order
Form. Partial deliveries are not authorized.
5.2 Unless modified by an Exhibit J, Software licensed pursuant to a Full
Use License or Limited Use License and executed Purchase Order shall have a test
period of ten (10) days duration, provided, however, that should an acceptance
test failure occur during such ten (10) day period, all subsequent re-testing
shall occur pursuant to an additional ten (10) day period.
5.3 In no event shall any Update delivered by Nuance cause any Software or
Documentation previously accepted by VAR to perform less favorably in any
material respect than as described in the Specifications in effect at the time
of such acceptance.
5.4 Nuance shall use commercially reasonable efforts to (a) minimize the
frequency of new Releases, Updates and Versions by optimal engineering
development, process, controls, and quality assurance procedures; (b) anticipate
and accommodate, to the greatest degree possible, a typical lead-time for
internal testing and evaluation by VAR of 60 days for new Releases, Updates or
Versions.
5.5 VAR shall have the right to order Software, Releases or Versions which
were previously ordered by VAR during the preceding 15 month period or the prior
three releases, whichever is later. Such Software, Releases or Versions, and
their respective Documentation and Updates, shall be identical in form, function
and all other respects, and be fully and effectively supported by Nuance during
the Warranty Period set forth in Section 12.1 and any period of Technical
Support Services described in Exhibit F.
5.6 CUSTOMER SPECIFIC ACCEPTANCE REQUIREMENTS. Any customer specific
acceptance requirements that have been negotiated and agreed upon by the parties
in good faith shall be made solely pursuant to an
8
Exhibit J ("Customer Specific Acceptance Requirements").
6. CONFIDENTIAL INFORMATION.
6.1 DESIGNATION. Each party (the "Disclosing Party") may from time to time
during the Term of this Agreement disclose to the other party (the "Receiving
Party") certain non-public information regarding the Disclosing Party's
business, including technical, marketing, financial, personnel, planning, and
other information ("Confidential Information"). The Disclosing Party shall ▇▇▇▇
all such Confidential Information in tangible form with the legend
`confidential', `proprietary', or with similar legend. With respect to
Confidential Information disclosed orally, the Disclosing Party shall describe
such Confidential Information as such at the time of disclosure, and shall
confirm such Confidential Information as such in writing within thirty (30) days
after the date of oral disclosure. Regardless of whether so marked, however the
Software itself (in Source Code and Object Code formats), shall be deemed to be
the Confidential Information of Nuance.
6.2 PROTECTION OF CONFIDENTIAL INFORMATION. Except as expressly permitted
by this Agreement, the Receiving Party shall not disclose the Confidential
Information of the Disclosing Party and shall use at least the same degree of
care which the Receiving Party ordinarily uses with respect to its own
proprietary information, but in no event with less than reasonable care. The
Receiving Party shall not use the Confidential Information of the Disclosing
Party for any purpose not expressly permitted by this Agreement, and shall limit
the disclosure of the Confidential Information of the Disclosing Party to the
employees or agents of the Receiving Party who have a need to know such
Confidential Information for purposes of this Agreement, and who are, with
respect to the Confidential Information of the Disclosing Party, bound in
writing by confidentiality terms no less restrictive than those contained
herein. The Receiving Party shall provide copies of such written agreements to
the Disclosing Party upon request; provided, however, that such agreement copies
shall themselves be deemed Confidential Information. 6.3 EXCEPTIONS.
Notwithstanding anything herein to the contrary, Confidential Information shall
not be deemed to include any information which: (A) was already lawfully known
to the Receiving Party at the time of disclosure by the Disclosing Party as
reflected in the written records of the Receiving Party; (B) was or has been
disclosed by the Disclosing Party to a third party without obligation of
confidence; (C) was or becomes lawfully known to the general public without
breach of this Agreement; (D) is independently developed by the Receiving Party
without access to, or use of, the Confidential Information; (E) is approved in
writing by the Disclosing Party for disclosure by the Receiving Party; (F) is
required to be disclosed in order for the Receiving Party to enforce its rights
under this Agreement; or (G) is required to be disclosed by law or by the order
or a court or similar judicial or administrative body; provided, however, that
the Receiving Party shall notify the Disclosing Party of such requirement
immediately and in writing, and shall cooperate reasonably with the Disclosing
Party, at the Disclosing Party's expense, in the obtaining of a protective or
similar order with respect thereto.
6.4 RETURN OF CONFIDENTIAL INFORMATION. The Receiving Party shall return
to the Disclosing Party, destroy or erase all Confidential Information of the
Disclosing Party in tangible form: (A) upon the written request of the
Disclosing Party (except for Software contained in such Confidential
Information); or (B) upon the expiration or termination of this Agreement,
whichever comes first, and in both cases, the Receiving Party shall certify
promptly and in writing that it has done so. Except for the rights expressly
described herein, VAR is not granted any rights to any Nuance patents,
copyrights, trade secrets, trade names, trademarks (whether or not registered),
or any other rights, franchises or licenses.
9
7. PROPRIETARY NOTICES.
7.1 REQUIRED NOTICES. VAR agrees that as a condition of its rights
hereunder, each copy of the Software shall contain the same proprietary notices
which appear on or in Software as provided by Nuance to VAR and as otherwise
reasonably required by Nuance.
7.2 UNAUTHORIZED DISTRIBUTION OR COPYING. VAR agrees that: (A)
distributing, copying, duplicating or otherwise reproducing all or any part of
the Software (except as expressly permitted by this Agreement); or (B)
distributing copies of all or any portion of the Software other than in
conjunction with the Integrated System and in strict accordance with this
Agreement, will be considered a material breach of this Agreement. Regardless of
any cure period under any other section of this Agreement, Nuance shall have the
immediate right to seek injunctive relief for breach under this Section. In any
event, and regardless of any other cure period under this agreement, the cure
period for breach under this SECTION 7.2 shall be a maximum of ten (10) days.
8. MARKETING.
8.1 MARKETING OF INTEGRATED SYSTEM. VAR agrees to use its commercial best
efforts to Sell the Integrated System to End Users pursuant to the End User
License. VAR agrees to actively and diligently develop, promote, market, solicit
orders for, maintain and support Integrated Systems in a manner which reflects
favorably on the Nuance Products and the good will and reputation of the
parties.
8.2 COMPETITIVE PRODUCTS. Subject to all terms of this Agreement,
including without limitation the provisions of SECTION 6 ("CONFIDENTIAL
INFORMATION"), and the intellectual property rights of each party, nothing in
this Agreement shall prevent either party from developing or having developed
any goods or services, regardless of their similarity to the goods and services
of the other party, or shall prevent either party from entering into any
agreement with any third party.
8.3 COOPERATIVE SALES EFFORTS. Nuance and VAR agree to cooperative sales
activities as follows:
8.3.1 Nuance and VAR mutually agree that when joint commitments are
made in writing to pursue a specific business opportunity, neither will make a
joint proposal for that business opportunity with any third party except by
prior mutual written agreement between VAR and Nuance.
8.3.2 Nuance may choose to call directly on any prospect as may VAR.
Nuance will determine whether any resulting opportunities represent a joint
opportunity with VAR and if so will seek to involve VAR. However, if Nuance has
reseller relationships with more than one bidder in a competitive procurement,
Nuance will provide equivalent reseller support to all resellers regardless of
which is the installed supplier.
8.3.3 Nuance agrees that it will not undermine VAR's sales efforts by
offering End Users greater discounts for direct sales by Nuance. If a non-
standard discount is required to close a major VAR initiated sales opportunity,
Nuance and VAR agree to jointly review the sales situation to determine if
additional discount is appropriate.
8.3.4 If Nuance's direct sales activity identifies a prospect's
preference for a supplier of voice processing solutions other than VAR based
upon installed base, prior relationships, etc., Nuance will be free to work with
the prospect's preferred supplier.
8.4 COOPERATIVE MARKETING EFFORTS. Nuance and VAR agree to cooperative
marketing activity as follows:
8.4.1 Nuance and VAR agree to meet quarterly (in person or by
conference call) to review market, sales and product requirements and to agree
to needed actions to achieve the objectives of this Agreement.
10
[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
8.4.2 VAR agrees to provide Nuance a quarterly forecast of
anticipated sales and expected revenue. Nuance agrees to provide appropriate
support to VAR's sales efforts (i.e. provide marketing/sales documentation,
accompany VAR on specific customer calls as agreed appropriate, etc.).
8.4.3 Nuance and VAR agree to monthly telephone conference calls
between designated sales management to review the status of sales vs. forecast
and to determine if Nuance support can help VAR and Nuance achieve additional
revenue.
8.4.4 When VAR is the prime contractor to an End User for a specific
project, Nuance will respond to End User requests for information, data or
documentation that are specific to such project solely through VAR, unless
otherwise agreed in writing. VAR agrees to make reasonable efforts to include
Nuance's project manager in project status reviews and meetings which directly
relate to Nuance Software or Professional Services to assure Nuance's
understanding of End User requirements to permit Nuance to develop an
appropriate response in cooperation with VAR for communication to End User by or
through VAR.
8.4.5 VAR shall not describe the Software in a way that implies or
states that it is owned or has been developed by VAR. When referring
specifically to the Software or its underlying technology, VAR will use the
Nuance name or trademarks. VAR may describe a marketing concept such as Large
Vocabulary Recognition (LVR) that includes the Software and software from other
companies without specific reference to Nuance's name or trademarks.
9. INVOICES AND PAYMENTS.
9.1 INVOICES. Nuance shall issue payment invoices from time to time for
Fees and any other amounts due hereunder. VAR shall make payment to Nuance of
all such payment invoices in the lawful money of the United States of America.
9.1.1 PAYMENT FOR SOFTWARE. Payment for Software will be due within
30 days after the end of the calendar month in which the Software was accepted
under Section 5.2, except as provided under PRE-PAYMENTS AND SPECIAL DISCOUNTS
(SECTION 9.1.4). Should payments due be less than [***] for any month, such
amount due will be payable either 30 days after the month in which Periphonics'
total payments outstanding exceed [***], or the end of the Periphonics' fiscal
quarter in which such amount first became due, whichever condition occurs first.
9.1.2 PAYMENT FOR TECHNICAL SUPPORT SERVICES. Subject to the terms
specified in EXHIBIT F, SCHEDULE 1 ("TECHNICAL SUPPORT SERVICES FEE SCHEDULE"),
payment for Technical Support Services shall be made quarterly in advance and
due on the tenth business day of each of the VAR's fiscal quarters. For new
customers that enter into Technical Support Service agreements within the VAR's
fiscal quarter, pro-rata payments for the that current quarter and advance
payment for the succeeding quarter shall both be due at the beginning of the
VAR's succeeding fiscal quarter.
9.1.3 PAYMENT FOR PROFESSIONAL SERVICES OR MISCELLANEOUS FEES AND
SERVICES. Payment for Professional Services shall be made as agreed within an
EXHIBIT D ("PROFESSIONAL SERVICES"). Payment for miscellaneous fees or services
will be due thirty (30) days following the issuance of an invoice from Nuance to
VAR in conformance with the terms of an Exhibit D.
9.1.4 PRE-PAYMENTS AND SPECIAL DISCOUNTS Nuance and VAR agree to a
special discount from Nuance's standard list price based upon VAR's commitment
to make quarterly pre-payments for licenses of Software.
In each of the initial two calendar quarters of this Agreement (January
through March, 1998, and April through June, 1998),
11
[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
VAR will pay Nuance $[***] for licenses to Software at a discount of [***]% off
Nuance's standard list price. Payments are due on March 10, 1998, and June 10,
1998. These payments are non-refundable. Software paid for by VAR will be
immediately delivered by Nuance and will be eligible for sublicense by VAR for
as long a period as may be required for their sale and shipment to customers.
After the initial two calendar quarters VAR may elect to continue such
quarterly pre-payments of $[***], or stop such pre-payments. If VAR stops such
prepayments no further Software will be shipped to VAR until VAR elects one of
two alternatives in writing:
a) Restart quarterly pre-payments which reinstates the special [***]%
discount off Nuance's standard list price, or
b) Order Software on an as needed basis subject to Nuance standard list
price and discount terms specified in the following SECTION 9.1.5. STANDARD
DISCOUNT TERMS.
9.1.5 STANDARD DISCOUNT TERMS VAR will be eligible for the following
discounts off Nuance's standard End User List Price, as described in EXHIBIT A
("SOFTWARE"), for Software and EXHIBIT F ("TECHNICAL SUPPORT SERVICES") for
Technical Support Services, excepting the Stocks & Mutual Funds Grammar Update
Services and Professional Services. The increased levels of discount indicated
are attained based on the non-discounted End User List Price described in
Exhibit A for sales of Software in each twelve month period. The discount is
calculated quarterly. Such List Price sales attained in the immediately
preceding twelve month period will be used to determine the discount applicable
in the then current quarter.
List Price Revenue Earned Discount
------------------ ---------------
Less than $[***] [***]%
$500.000 to $[***] [***]%
$1.000.000 to $[***] [***]%
Greater than $[***] [***]%
9.1.6 OTHER DISCOUNTS VAR will receive a 30% discount for customer
training courses provided by Nuance, and for customer contracts for the Stocks
and Mutual Funds Grammar Update Service. Nuance will conduct training courses
for VAR's customers subject to instructor availability. Such courses must
include 12 or more paid enrollments, and if offered at other than Nuance's
training facility. VAR agrees to pay reasonable travel and living expenses for
the instructor(s).
9.1.7 [***] Notwithstanding any provision in this Agreement to
the contrary, in no event shall the Fee billable to VAR under this Agreement be
increased by more than [***] during any 12 month period for previously released
Software. Releases or Versions, including End User List Prices for previously
released Software. Releases or Versions, and related Services Fees. This
provision shall not apply to new Software. Releases or Versions, for which
Nuance shall have sole discretion on pricing.
9.2 EFFECT OF LATE PAYMENT. All late payments of payment invoices by VAR,
not subject to good faith dispute, shall bear interest at a rate of one and one-
half percent (1.5%) per month or partial month during which any sums under such
payment invoices were owed and unpaid, or the highest rate allowed by law,
whichever is lower.
9.3 EFFECT OF NON-PAYMENT. Any failure of VAR to make payment of any
payment invoice in the manner described in this SECTION 9 ("INVOICES AND
PAYMENTS") may, at Nuance's discretion, be considered a material breach of this
Agreement by VAR for purposes
12
[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
of initiating the procedures set forth in paragraph 11.2 of SECTION 11 ("TERM
AND TERMINATION").
10. REPORTS AND RIGHT TO AUDIT.
10.1 REPORTS. Upon Nuance's enabling VAR to self-provision software keys as
described in SECTION 3.5, VAR shall prepare and deliver to Nuance within ten
(10) business days of the last day of each calendar month during the Term a
written report ("Report") which shall include the following information for each
Software License issued to an Authorized Sublicensee: the name of the Authorized
Sublicensee to whom the Software License was issued, the customer application
for which the Software will be used, the number of Ports to be installed, the
machine identifier for which the Software is licensed and appropriate machine
identification information to enable Nuance to track Software Licenses and End
User eligibility for Technical Support Services. Nuance may provide, from time
to time, a form of Report which VAR agrees to follow with respect to carrying
out the foregoing obligations.
VAR shall also report the name and location of any Integrated System licensed
pursuant to a Test and Integration License.
10.2 RIGHT TO AUDIT. VAR shall maintain written records describing the use
and location of all copies of the Software, including without limitation any
such copies in the possession or control of VAR.
VAR shall also maintain a complete, clear, and accurate record of: (A) the
location of each copy of the Software while in VAR's possession; (B) the number,
type, Authorized Sublicensee identity and location for Software Sold or
sublicense in an Integrated System or used internally by VAR during each
calendar month; and (C) any other information which may be reasonably required
by Nuance to determine whether VAR is complying with the terms of this
Agreement. To ensure compliance with the terms of this Agreement, Nuance shall
have the right, at its own expense and exercisable by outside auditors mutually
agreed upon by the parties, to audit and to obtain copies of all such written
records provided such audit does not interfere unreasonably with VAR's day to
day business operations and that such auditors sign VAR's non-disclosure
agreement. Such non-disclosure agreement shall be commercially reasonable and
will not prohibit the auditors from disclosing their findings to Nuance. Nuance
may exercise such right to audit upon reasonable advance notice to VAR, and no
more frequently than one (1) time each calendar year. If any such audit should
disclose any underpayment of Fees, VAR shall promptly pay Nuance such underpaid
amount, together with interest thereon at a rate of one and one-half percent
(1.5%) per month or partial month during which each such amount was owed and
unpaid, or the highest rate allowed by law, whichever is lower. If the amount of
such underpayment exceeds [***] percent ([***]%) of amounts otherwise payable,
then VAR shall immediately reimburse Nuance for Nuance's reasonable and
customary audit expenses up to a maximum of $[***].
11. TERM AND TERMINATION.
11.1 TERM. This Agreement shall remain in effect for an initial period of
three (3) years. At the expiration of the initial 3-year period, this Agreement
shall automatically renew for subsequent one year periods unless either party
provides written notice of an intention not to renew for a given period. Any
given period is subject to earlier termination by either party as hereinafter
provided. Any End User License already entered into by VAR as of the date of the
expiration or termination of this Agreement shall remain in effect provided that
all associated End Users have at all times remained in strict compliance with
the terms of the End User License. Nuance shall continue to provide Level 3
Technical Support Services to VAR for applicable End User Support so long as VAR
continues payment to Nuance of all applicable Technical Support Fees, but in no
event shall VAR enter into any new Technical Support Services agreements with
End Users
13
subsequent to the expiration or termination of this Agreement.
11.2 TERMINATION FOR MATERIAL BREACH. Either party may terminate this
Agreement immediately upon written notice for the material breach of the other
party, which material breach has remained uncured for period of thirty (30) days
from the date of delivery of written notice thereof to the breaching party. The
parties expressly understand and agree that any uncured failure of VAR to
undertake the efforts described by SECTION 8.1 may be deemed a material breach
of this Agreement.
11.3 EFFECT. In the event of any termination of this Agreement as provided
in SECTION 11.2 ("TERMINATION FOR MATERIAL BREACH"), and except as further
described below, all licenses granted by Nuance hereunder shall immediately
terminate, and VAR shall immediately return to Nuance all material belonging to
Nuance or its licensors, including without limitation all copies of the Software
and Nuance Confidential Information, and shall promptly certify to Nuance in
writing that VAR has done so. Any End User License already entered into by VAR
as of the date of the foregoing material breach by VAR shall remain in effect
provided that all associated End Users have at all times remained in strict
compliance with the terms of the End User License. Nuance shall continue to
provide Level 3 Technical Support Services to VAR for applicable End User
support so long as VAR continues payment to Nuance of all applicable Technical
Support Services Fees, but in no event shall VAR enter into any new Technical
Support Services agreements with End Users subsequent to such breach. Solely in
the event of a termination of this Agreement for Nuance's material breach, and
in addition to any other available remedies, VAR shall, for a period not to
exceed ninety (90) days have the right to Sell, pursuant to the terms of this
Agreement, any remaining Integrated Systems which were in VAR's inventory on the
date of the foregoing material breach.
12. WARRANTY AND DISCLAIMER.
12.1 SOFTWARE WARRANTY. Nuance warrants that for a period of ninety (90)
days from acceptance of Software pursuant to SECTION 5 ("DELIVERY AND
ACCEPTANCE") (hereinafter the "Warranty Period"), the Software shall meet all of
Nuance's material Specifications for the Software at the time of acceptance for
use on an Integrated System. Each instance in which the Software fails to meet
such material Specifications shall be considered an "Error." If VAR reports to
Nuance any Errors in such Software during the applicable Warranty Period, and
provides such detail as Nuance may reasonably require to permit Nuance to
reproduce such Errors, then Nuance, at its expense, shall modify or replace the
Software, or provide Updates to correct such Errors.
12.2 RIGHT TO LICENSE. Nuance warrants that it has the right to grant the
licenses hereunder and that the grant of any such license will not infringe any
known third party proprietary right.
12.3 DISCLAIMER. THE WARRANTY SET FORTH SUBSECTION 12.1 ("SOFTWARE
WARRANTY") STATES NUANCE'S SOLE AND EXCLUSIVE WARRANTY TO VAR AND ANY THIRD
PARTY CONCERNING THE "SOFTWARE" AND THE EXCLUSIVE REMEDY FOR BREACH OF WARRANTY.
EXCEPT AS EXPRESSLY SET FORTH IN SUBSECTION 12.1 ("SOFTWARE WARRANTY"), THE
"SOFTWARE" IS PROVIDED STRICTLY "AS IS," AND NUANCE MAKES NO ADDITIONAL
WARRANTIES, EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE,
OR STATUTORY, AS TO THE "SOFTWARE" OR ANY MATTER WHATSOEVER. IN PARTICULAR, ANY
AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-
INFRINGEMENT (EXCEPT IN ACCORDANCE WITH SECTION 12.2 ARE
14
EXPRESSLY EXCLUDED. THIS IS A LIMITED WARRANTY AND IS THE ONLY WARRANTY MADE BY
NUANCE. VAR SHALL NOT HAVE THE RIGHT TO MAKE OR PASS ON, AND SHALL TAKE ALL
MEASURES NECESSARY TO ENSURE THAT NEITHER VAR NOR ANY OF ITS AGENTS OR EMPLOYEES
SHALL MAKE OR PASS ON, ANY EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION ON
BEHALF OF NUANCE OR ITS LICENSORS TO ANY END USER OR THIRD PARTY.
13. TECHNICAL SUPPORT SERVICES AND IN SERVICE DATA.
13.1 PROVISION OF TECHNICAL SUPPORT SERVICES. In the event that VAR has
elected to receive Technical Support Services as indicated on an EXHIBIT F
("TECHNICAL SUPPORT SERVICES"), and has paid all associated Technical Support
Services Fees as invoiced by Nuance, VAR shall be entitled to receive Technical
Support Services as hereinafter described. For purposes of this Agreement,
"Technical Support Services" shall consist of:
13.1.1 The right of VAR's Designated Employees to contact Nuance
by telephone or e-mail and to consult with Nuance regarding the installation,
functions and operation of the Software or Application;
13.1.2 The right of VAR's Designated Employees to contact Nuance
by telephone or e-mail to consult with Nuance regarding Errors in the Software
or Application which Errors have been brought to Nuance's attention by VAR's
Designated Employees;
13.1.3 The right to obtain from Nuance certain Updates for the
Software or Application which Updates are reasonably necessary to correct
reproducible Errors which Errors have been brought to Nuance's attention by
VAR's Designated Employees; or which provide improved or additional functions
which are supplied to other VARs or End Users under a Technical Support Services
agreement.
13.1.4 The right to have Nuance use its commercially reasonable
effort to promptly, thoroughly and competently correct Errors other than those
described above which have been brought to Nuance's attention by VAR's
Designated Employees.
13.2 HOURS AND FACILITIES.
13.2.1 BASIC TECHNICAL SUPPORT SERVICES. If VAR, on behalf of an
End User, has elected to receive Basic Technical Support Services as indicated
on an EXHIBIT F ("TECHNICAL SUPPORT SERVICES"), then VAR shall be entitled to
receive Technical Support Services on behalf of the subject End User as
described in SECTION 13.1 ("PROVISION OF TECHNICAL SUPPORT SERVICES") only
between the hours of 8:30 a.m. and 6:00 p.m., Eastern Time.
13.2.2 PREMIUM TECHNICAL SUPPORT SERVICES. If VAR, on behalf of
an End User, has elected to receive Premium Technical Support Services as
indicated by VAR's signature on an EXHIBIT F ("TECHNICAL SUPPORT SERVICES"),
then VAR shall be entitled to receive Technical Support Services on behalf of
the subject End User as described in SECTION 13.1 ("PROVISION OF TECHNICAL
SUPPORT SERVICES") twenty-four (24) hours per day, seven (7) days a week.
13.3 LIMITATIONS. VAR, on behalf of End User, must elect to receive
Technical Support Services on either all or none of the Software, and may not
elect to receive Technical Support Services on some Software and not on other
Software. Nuance shall have no obligation to provide Technical Support Services
for any Application (except as so provided under an EXHIBIT D "(PROFESSIONAL
SERVICES")) any non-Nuance computer programs, technology or hardware, or any
Software which is not within three Releases of the most recent Version or
Release, or which was first delivered to VAR more than three years earlier
(whichever is later) or for which Nuance has provided Updates which have not
been applied to the Software for a period of
15
more than one (1) year from the date of delivery thereof to VAR. Should VAR or
VAR's End User cancel Technical Support Services and subsequently desire to
reinstate such Technical Support Services, VAR shall pay Nuance an amount equal
to the unpaid Technical Support Services Fees that would have been due during
the period in which Technical Support Services were canceled. Any failure of VAR
to pay all Technical Support Service Fees as invoiced by Nuance, and not subject
to good faith dispute, shall, at Nuance's sole option, immediately eliminate any
obligation of Nuance to provide Technical Support Services hereunder.
13.4 ADDITIONAL SERVICES. In the event that VAR desires to obtain from
Nuance additional services with respect to the Software, or any services at all
with respect to any Professional Services, Nuance agrees to negotiate in good
faith for the provision of such services at rates no higher than Nuance's normal
commercial rates, and subject to terms as may be agreed to by the parties and to
be contained in an Exhibit to this Agreement.
13.5 IN SERVICE DATA. Subject to agreement by VAR's End User, which (if
granted) may require Nuance's execution of a non-disclosure agreement acceptable
to VAR's End User, Nuance will be provided reasonable access to In-Service Data
generated through the use of each Integrated System in which Software is
installed. VAR shall use commercial best efforts to negotiate the right to
obtain such In-Service Data, and/or clearly inform the End User in writing that
denial of access to In-Service Data may result in the inability of Nuance to
make essential improvements to the Software's functionality or recognition
accuracy. In cases where the Specifications establish performance criteria which
are predicated upon access to In-Service Data, VAR shall ensure that its own
contract specifications with an End User clearly cite the requirement for In-
Service Data as a condition of achieving such performance by the Software.
Nuance may use this In-Service Data to train, refine, supplement or test its
speech recognition and natural language understanding software, models and
algorithms. The primary use of In-Service Data is to improve the performance of
the Software for the End User. Additionally, resulting improvements to the
Software may be used for the benefit of all users of the Software. Nuance may
not use the content of any such data for any purpose other than that described
in this section.
14. VAR SUPPORT OF END USERS. VAR hereby acknowledges and agrees that Nuance
shall have no responsibility for providing service or assistance to End Users
except as provided under EXHIBIT D ("PROFESSIONAL SERVICES"). VAR agrees that
VAR shall not direct any End Users to contact Nuance directly for Technical
Support Services.
15. INDEMNITIES AND LIMITATION OF LIABILITY.
15.1 INTELLECTUAL PROPERTY INDEMNITY. Nuance agrees to indemnify, defend
and hold harmless VAR from any loss, costs, damages, and reasonable attorneys'
fees resulting from or in connection with any claims or actions by third parties
that the sublicensing or uses permitted hereunder of the Software as delivered
by Nuance infringe any patent, copyright trademark, trade secret or other
proprietary right of any third party, provided that VAR gives Nuance prompt
written notice of each such claim, tenders to Nuance the defense or settlement
of each such claim at Nuance's expense, and cooperates with Nuance, at Nuance's
expense, in defending or settling each such claim. If Nuance receives notice of
an alleged infringement, or if VAR's use of the Software shall be prevented by
permanent injunction, Nuance may, at its sole option and expense, procure for
VAR the right to continue using the Software as provided hereunder, modify the
Software so that it is no longer infringing, or replace the Software with
computer software of equal or superior functional capability or in the case of
trademark infringement, instruct VAR to use an alternative trademark. THE RIGHTS
GRANTED TO VAR
16
UNDER THIS SECTION 15.1 ("INTELLECTUAL PROPERTY INDEMNITY") SHALL BE VAR'S SOLE
AND EXCLUSIVE REMEDY AND NUANCE'S SOLE OBLIGATION FOR ANY ALLEGED INFRINGEMENT
OF ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER PROPRIETARY RIGHT. NUANCE SHALL
HAVE NO LIABILITY TO VAR OR ANY THIRD PARTY IF ANY ALLEGED INFRINGEMENT OR CLAIM
OF INFRINGEMENT IS BASED UPON: (A) ANY "APPLICATION" OR MODIFIED "SOFTWARE"; (B)
USE OF THE "SOFTWARE" IN CONNECTION OR IN COMBINATION WITH EQUIPMENT, DEVICES,
OR SOFTWARE NOT PROVIDED BY NUANCE (IF SUCH INFRINGEMENT OR CLAIM COULD HAVE
BEEN AVOIDED BY THE USE OF OTHER EQUIPMENT, DEVICES OR SOFTWARE), OTHER THAN FOR
USE ON AN "INTEGRATED SYSTEM"; OR (C) THE USE OF "SOFTWARE" OTHER THAN AS
PERMITTED UNDER THIS AGREEMENT OR NOT IN ACCORDANCE WITH THE SPECIFICATIONS OR
USE OF OTHER THAN THE MOST CURRENT RELEASE OR VERSION OF THE "SOFTWARE" (IF SUCH
CLAIM WOULD HAVE BEEN PREVENTED BY THE USE OF SUCH RELEASE OR VERSION).
15.2 VAR INDEMNITY Without limiting Nuance's obligations under Section
15.1, VAR agrees to indemnify, defend and hold harmless Nuance from and against
any losses, costs, or damages (including reasonable attorneys' fees) resulting
from or in connection with any claims by third parties resulting from or in
connection with the use, manufacture, or distribution of Integrated Systems by
VAR and VAR's direct and indirect customers in any country, worldwide, provided
that Nuance gives VAR prompt written notice of any such claim, tenders to VAR
the defense or settlement of any such claim at VAR's expense, and cooperates
with VAR, at VAR's expense, in defending or settling such claim.
15.3 LIMITATION OF LIABILITY NEITHER PARTY WILL BE LIABLE TO THE OTHER
PARTY OR ANY THIRD PARTY FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS OR ANY
INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND
(INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT,
TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF THAT
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING
LIMITATION OF LIABILITY IS INDEPENDENT OF ANY EXCLUSIVE REMEDIES FOR BREACH OF
WARRANTY SET FORTH IN THIS AGREEMENT.
16. TAXES. In addition to any other payments due under this Agreement, VAR
agrees to pay, and to indemnify and hold Nuance harmless from, any sales, use,
excise, import or export, value added or similar tax or duty not based on
Nuance's net income, including any penalties and interest, as well as any costs
associated with the collection or withholding thereof, and all governmental
permit fees, license fees and customs and similar fees levied upon the delivery
by Nuance of the Software, which Nuance may incur in respect of this Agreement.
17. GOVERNMENT END USERS. When Selling an Integrated System to a U.S.
Government End User, VAR shall identify the Software in an Integrated System as
a "commercial item," as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and
more specifically shall identify such item as "commercial computer software" and
"commercial computer software documentation," as such terms are used in 48
C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R.
227.7202-1 through 227.7202-4 (JUNE 1995), VAR will provide the Software in any
Integrated System (including related documentation) to U.S.
17
Government End Users: (A) only as a commercial end item; and (B) only pursuant
to the End User License Agreement.
18. EXPORT CONTROL. The parties acknowledge that the manufacture and sale of
the Software or Application is subject to the export control laws of the United
States of America, including the U.S. Bureau of Export Administration
regulations, as amended, and hereby agree to obey any and all such laws. The
parties agree not to take any actions that would cause either party to violate
the U.S. Foreign Corrupt Practices Act of 1997, as amended.
19. ESCROW AGREEMENT. Nuance and VAR agree to enter into an escrow agreement in
the form attached hereto as EXHIBIT H and with an escrow agent reasonably
acceptable to both parties. The escrow agreement shall provide for the deposit
and maintenance of the source code for Nuance Products by Nuance and the release
to VAR of the same in the event of a Release Condition. A "Release Condition"
shall mean any of the following occurrences: (a) the filing by Nuance of a
voluntary bankruptcy petition; (b) the filing of an involuntary bankruptcy
petition against Nuance, which involuntary petition is not dismissed within
ninety (90) days of its filing; (c) the dissolution of Nuance, where the rights
and obligations of Nuance under this Agreement have not been assumed by a third
party reasonably capable of carrying out such obligations; or (d) the failure of
Nuance to carry on business in the ordinary course. Nuance shall pay all start-
up, annual, renewal and other fees due to such escrow agent. Regardless of any
release of source code, Nuance will not grant any right or license to VAR to
modify or enhance the Nuance Products.
20. SURVIVAL AND ORDER OF PRECEDENCE. In the event of any expiration or
termination of this Agreement, the provisions OF SECTION 1 ("DEFINITIONS"),
SECTION 6 ("CONFIDENTIAL INFORMATION"), SECTION 9 ("INVOICES AND PAYMENTS"),
SECTION 10 ("REPORTS AND RIGHT TO AUDIT"), SECTION 11.1 ("TERM"), SECTION 11.4
("EFFECT"), SECTION 12 ("WARRANTY AND DISCLAIMER"), SECTION 14 ("VAR SUPPORT OF
END USERS"), SECTION 15 ("INDEMNITIES AND LIMITATION OF LIABILITY"), SECTION 16
("TAXES"), SECTION 20 ("SURVIVAL AND ORDER OF PRECEDENCE") and SECTION 21
("GENERAL"), except SECTION 21.10, shall survive and shall continue to bind the
parties. In the event of any conflict between the terms of this Agreement and
the terms of any Exhibit, the terms of the Exhibit shall control.
21. GENERAL.
21.1 ARBITRATION. All disputes which by statute are not exclusively
subject to court determination, shall be settled before a panel of three
arbitrators meeting in Chicago, Illinois (unless the parties mutually agree to
an alternate venue), in accordance with the Rules of the American Arbitration
Association. The arbitrators shall have the powers of a California Court,
including the power to order discovery and to issue legal or equitable remedies;
their award shall be final and binding. Judgment thereon may be entered,
confirmed and enforced in any court having jurisdiction of the party against
whom enforcement is sought. For the purpose of confirming and/or enforcing the
award of any proceedings, service pursuant to the notice provisions above shall
be sufficient.
21.2 GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the United States of America and the State of California without
regard to conflicts of law principles. The parties agree that the United Nations
Convention on Contracts for the International Sale of Goods is specifically
excluded from application to this Agreement.
21.3 ATTORNEYS' FEES. In the event any proceeding or lawsuit is brought
by Nuance or VAR in connection with this Agreement, the prevailing party in such
proceeding shall be entitled to receive its costs, expert witness fees and
reasonable attorneys' fees, including costs and fees on appeal.
18
21.4 INJUNCTIVE RELIEF. It is understood and agreed that, notwithstanding
any other provisions of this Agreement, breach of the provisions of this
Agreement by VAR will cause Nuance irreparable damage for which recovery of
money damages would be inadequate, and that Nuance shall therefore be entitled
to obtain timely injunctive relief to protect Nuance's rights under this
Agreement in addition to any and all remedies available at law.
21.5 NOTICES. All notices or reports permitted or required under this
Agreement shall be in writing and shall be delivered by personal delivery or by
certified or registered mail, return receipt requested, and shall be deemed
given upon personal delivery or five (5) days after deposit in the mail. Notices
shall be sent to the parties at the addresses described on the Signature Page or
such other address as either party may designate for itself in writing.
21.4 NO AGENCY. Nothing contained herein shall be construed as creating
any agency, partnership, or other form of joint enterprise between the parties.
21.5 FORCE MAJEURE. Neither party shall be liable hereunder by reason of
any failure or delay in the performance of its obligations hereunder (except for
the payment of money) on account of strikes, shortages, riots, insurrection,
fires, flood, storm, explosions, acts of God, war, governmental action, labor
conditions, earthquakes, material shortages or any other cause which is beyond
the reasonable control of such party.
21.6 WAIVER. The failure of either party to require performance by the
other party of any provision hereof shall not affect the full right to require
such performance at any time thereafter; nor shall the waiver by either party of
a breach of any provision hereof be taken or held to be a waiver of the
provision itself.
21.7 SEVERABILITY. In the event that any provision of this Agreement
shall be unenforceable or invalid under any applicable law or be so held by
applicable court decision, such unenforceability or invalidity shall not render
this Agreement unenforceable or invalid as a whole, and, in such event, such
provision shall be changed and interpreted so as to best accomplish the
objectives of such unenforceable or invalid provision within the limits of
applicable law or applicable court decisions.
21.8 USE OF VAR'S NAME. VAR agrees that Nuance may use VAR's name and may
disclose that VAR is a licensee of Nuance products in Nuance advertising,
promotion and similar public disclosures with respect to the Software; provided,
however, that such advertising, promotion or similar public disclosures shall
not indicate that VAR in any way endorses any Nuance products. Nuance agrees
that VAR may use Nuance's name and may disclose that Nuance is a licensor to VAR
in VAR advertising, promotion and similar public disclosures with respect to the
Software; provided, however, that such advertising, promotion or similar public
disclosures shall not indicate that Nuance in any way endorses any VAR products.
21.9 HEADINGS. The section headings appearing in this Agreement are
inserted only as a matter of convenience and in no way define, limit, construe,
or describe the scope or extent of such section or in any way affect this
Agreement.
21.10 ASSIGNMENT. Neither this Agreement nor any rights or obligations of
a Party hereunder may be assigned by that Party in whole or in part without the
prior written approval of the other Party.
21.11 COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each of which will be considered an original, but all of
which together will constitute one and the same instrument.
21.12 ENTIRE AGREEMENT. This Agreement together with the Exhibits hereto
completely and exclusively states the agreement of the parties regarding its
subject matter. It
19
supersedes, and its terms govern, all prior proposals, agreements, or other
communications between the parties, oral or written, regarding such subject
matter. The terms of any shrink-wrap agreement accompanying any Software
delivered by Nuance hereunder shall, to the extent inconsistent with the terms
of this Agreement, have no effect whatsoever. This Agreement shall not be
modified except by a subsequently dated written amendment or Exhibit signed on
behalf of Nuance and VAR by their duly authorized representatives.
20
[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
EXHIBIT A-__
SOFTWARE
The following Software is subject to the Software License granted pursuant to
the Agreement, and all of the terms and conditions therein, as specifically
licensed in an executed Exhibit B ("Full Use License") or Exhibit C ("Limited
Use License") and applicable Purchase Order. Additional Nuance Software may be
added to the following list by mutual agreement of the parties:
List Price Per Copy (U.S. Dollars)
---------------------------------
Product Name [***] [***]
------------ ------------- ---------------
[***] $[***] $[***]
$[***] $[***]
$[***] $[***]
$[***] [***]
$[***] $[***]
$[***] $[***]
$[***] $[***]
The [***] fee [***] is calculated at [***]% of the total list price license fees
paid by the customer for the [***] subject to the following limits:
[***]
1
[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
Additional Terms:
1. The Nuance Developer's Toolkit may be used solely for application
development and system prototyping. It may not be used in an
operational environment.
2. Sales of the Nuance U.S. Stocks & Mutual Funds Grammar Update Service
do not accrue to the Reseller Discount Table specified in SECTION
9.1.5.
3. All Nuance Products designated as Grammars or applications must be
used solely in connection with the Nuance RecServer.
4. Prices are subject to change, subject to the provisions of Section
9.1.7 of the Agreement. VAR shall have [***] days from the
announcement of a price change by Nuance to implement such change.
Except by written agreement, Nuance will not accept Purchase Orders
that fail to reflect the subject price change after the 90 day
implementation period has passed.
5. Nuance agrees to make available to VAR all Software that is released
as a generally available product to other Nuance vars or end user
customers. Such Software will be made available at its commercial list
price less VAR discount at the general availability date offered to
other Nuance vars or end user customers.
6. Nuance agrees that for existing customers of VAR, and for prospective
customers of VAR for whom proposals are outstanding from VAR prior to
March 1, 1998, that the list price of $[***] may be offered through
December 31, 1999. VAR agrees to provide to Nuance by March 31, 1998,
a list of all such customers and prospective customers for whom
proposals were outstanding prior to March 1, 1998.
Any Software License granted by execution of an Exhibit B ("Full Use License")
or Exhibit C ("Limited Use License") and applicable Purchase Order or the Test
and Integration License shall be valid only when the Software is used as part of
an Integrated System, which shall include as a minimum: for Full Use Licenses,
Periphonics commercially available Interactive Voice Response Systems (hardware
and software, including all system options and features) and the Nuance
Software; and in the case of Limited Use Licenses, Periphonics commercially
available Interactive Voice Response Systems (hardware and software, including
all system options and features), the Periphonics application described in
Exhibit C, and the Nuance Software.
2
EXHIBIT B-__
FULL USE LICENSE
Nuance grants to VAR a Full Use License to the Software under the terms and
conditions of the Agreement for the number of copies ordered pursuant to a
Purchase Order accepted by Nuance and attached as a Schedule hereto (each such
Purchase Order to be attached sequentially as Schedule B-1-_). This Full Use
License is only valid for the number of copies of the Software ordered by VAR
pursuant to a Purchase Order accepted by Nuance and for use in an Integrated
System. No other license to the Software is granted and any unauthorized copying
or access to the Software not specifically licensed herein is strictly
prohibited.
NUANCE COMMUNICATIONS [VAR]
By:____________________________ By:______________________________
Title:_________________________ Title:___________________________
Date:__________________________ Date:____________________________
1
EXHIBIT C-__
LIMITED USE LICENSE
If so indicated by VAR's and Nuance's initials on the Signature Page and
signatures hereon, and subject to VAR's obligations hereunder including without
limitation VAR's payment of Software License Fees, VAR shall be granted an
Limited Use License as follows:
DESCRIPTION OF SOFTWARE BY NAME, FORMAT AND EXHIBIT
---------------------------------------------------
AUTHORIZED GRAMMAR VOLUME:
-------------------------
AUTHORIZED PORT VOLUME:
----------------------
DESCRIPTION OF INTEGRATED SYSTEM:
--------------------------------
NUANCE COMMUNICATIONS [VAR]
By:_______________________________ By:_________________________________
Title:____________________________ Title:______________________________
Date:_____________________________ Date:_______________________________
1
EXHIBIT D
PROFESSIONAL SERVICES
Nuance and VAR agree that when Nuance Professional Services are desired by VAR
that an Exhibit D will be completed for each project or service. Each Exhibit D
shall include but not be limited to the following terms: scope of effort,
schedule for deliverables, acceptance criteria and payment terms.
NUANCE COMMUNICATIONS [VAR]
By:______________________________ By:________________________________
Title:___________________________ Title:_____________________________
Date:____________________________ Date:______________________________
1
EXHIBIT E
MINIMUM TERMS
VAR shall ensure that its End Users are not provided Software unless such End
Users first do one of the following:
(a) sign VAR's own software license agreement (or modifications thereto), and
VAR's standard order forms (such as a VAR's "Schedule A" form), containing terms
which substantially communicate the below stipulations with respect to the
Software which is licensed to VAR by Nuance and relicensed by VAR to its End
Users under this Agreement; or,
(b) provide a purchase order or similar signed written agreement to VAR,
referencing a proposal issued by VAR which substantially communicates the below
stipulations with respect to the Software which is licensed to VAR by Nuance and
relicensed by VAR to its End Users under this Agreement.
In either of the above cases, VAR shall ensure that the applicable agreement is
fully enforceable in all jurisdictions in which the Integrated System is Sold.
All sublicenses of the Software shall be non-transferable unless the party to
whom an End User wishes to transfer such license agrees to be bound by the terms
of the original End User License Agreement.
The parties agree that as a condition of the rights and licenses granted by
Nuance hereunder, each End User License shall contain, at a minimum,
substantially the following terms, allowing reasonable modifications to keep
consistent terminology and without materially changing the associated meaning:
1. End User accepts a non-exclusive, non-transferable license to use the
Software that End User obtains from VAR under the Agreement, as follows:
i. to use the Software solely for End User's own internal business
operations on the Integrated System or on a backup system, up to any applicable
number of designated users or other limitation (if any limitation applies). End
User shall not have the right to manufacture, sell, or otherwise commercially
exploit, except in support of End User's own internal business operations, any
product, system, or service based in whole or in part on the Software. End User
agrees it will not sublicense, transfer, pledge, lease, rent, or share its
rights under this Agreement;
ii. to use the Documentation provided with the Software in support of End
User's authorized use of the Software;
iii. to copy the Software for archival or backup purposes; no other copies
shall be made without Nuance's prior written consent. End User may use the
Software on a single backup Integrated System if the production Integrated
System for which they were acquired is rendered inoperable. Under no
circumstances shall End User use the Software on the production Integrated
System and the backup Integrated System simultaneously. End User agrees not to
alter, change, or remove from the Software any identifications, including
copyright and trademark notices, and further agrees to place such markings on
any copies of the Software. All archival and backup copies of the Software are
subject to the terms of this Agreement.
End User shall not copy or use the Software (including the Documentation) except
as otherwise specified in the End User license.
2. Nuance shall retain all right, title and interest in the Software,
including patent, copyright, trade secret, and trademark rights. Except as
otherwise expressly stated in the End User agreement, End User does not acquire
any rights, express or implied, in the Software.
1
3. End User shall not cause or permit the reverse engineering, decompilation,
disassembly or other translation of the Software.
4. Foreign Government Agreements. VAR shall take all reasonable steps in
making proposals and agreements with foreign governments other than the United
States which involve the Software and related documentation to ensure that
Nuance's proprietary rights in such Software and related documentation receive
the maximum protection available from such foreign government for commercial
computer software and related documentation developed at private expense.
5. Third Party Beneficiary. VAR shall ensure that each End User agrees that
Nuance is a third-party beneficiary to the End User License Agreement. Such
provisions are made expressly for the benefit of Nuance and are enforceable by
Nuance in addition to VAR.
6. No Warranty. The End User shall agree that VAR'S SUPPLIERS DO NOT MAKE OR
PASS ON TO END USER OR ANY OTHER THIRD PARTY, ANY EXPRESS, IMPLIED OR STATUTORY
WARRANTY OR REPRESENTATION ON BEHALF OF NUANCE, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
7. Limitation of Liability. The End User shall agree that IN NO EVENT SHALL
VAR'S SUPPLIERS BE LIABLE TO END USER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL,
PUNITIVE OR INCIDENTAL DAMAGES, REGARDLESS OF HOW ARISING, REGARDLESS OF THE
CAUSE OF ACTION, IN TORT, CONTRACT OR OTHERWISE, AND REGARDLESS OF WHETHER
ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES.
8. In-Service Data. Subject to the right of the End User to waive, in writing,
Nuance's right to the In-Service Data, the End User shall provide Nuance with
reasonable access to all In-Service Data generated through the use of each
Integrated System in which the Software is installed. Any such written waiver
shall include all of the terms described in Subsection 13.5 ("In Service Data").
2
[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
EXHIBIT F-__
TECHNICAL SUPPORT SERVICES
DESCRIPTION OF TECHNICAL SUPPORT SERVICES
-----------------------------------------
Responsibilities of Nuance and VAR:
VAR shall be responsible for providing ▇▇▇▇▇ ▇ and Level 2 Technical
Support Services to End Users. ▇▇▇▇▇ ▇ Technical Support Services means receipt
of all calls from End Users for such services and the determination of the issue
causing the condition reported by the end user. Level 2 Technical Support
Services means resolving any End User issue caused by a defect in the Software
when Nuance has provided electronic notice of the defect and the needed support
action to VAR's Designated Personnel.
Nuance shall be responsible for Level 3 Support to VAR. Level 3 Technical
Support Services means the creation of modifications to the Software which
enable the temporary or permanent resolution of a defect in the Software for
which a resolution has not been electronically distributed to VAR's Designated
Personnel.
Nuance shall provide telephone hot line support to VAR's Designated
Personnel for delivery of Technical Support Services. Nuance's telephone hot
line shall be staffed by technical personnel with a detailed, working knowledge
of the Software.
VAR shall provide Designated Employees who have been trained on the
Software and who are experienced in providing Technical Support Services to End
Users.
Basic Level Support ("Basic Technical Support Services"):
Nuance will provide Technical Support Services to Designated Employees of
VAR on behalf of End Users who have signed Technical Support Agreements with VAR
for Basic Level Technical Support Services. Such End User Technical Support
Services agreements shall provide for service during a nine hour period between
7:30am and 5:30pm local time for the End User.
Premium Level Support ("Premium Technical Support Services"):
Nuance will provide Technical Support Services to Designated Employees of
VAR on behalf of End Users who have signed Technical Support Agreements with VAR
for Premium Level Technical Support Services. Such End User Technical Support
Services agreements shall provide for service twenty-four (24) hours per day,
seven (7) days per week.
Technical Support Services Fees:
Basic Level Technical Support Services fees are equal to [***]% per year of
the license fee for all Software installed at the End User.
Premium Level Technical Support Services fees are equal to [***]% per year
of the license fee for all Software installed at the End User.
Determination of Defect Severity and Response Times:
Upon receipt of a request for Level 3 Technical Support Services from
Designated Employees of VAR, Nuance and VAR's Designated Employees will agree to
the Severity of the specific defect and associated Nuance Response Times as
defined below:
Severity
Severity 1 shall mean an incident in which the defect in the Software has
created a situation in which the End User is unable to do productive work.
1
[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
Severity 2 shall mean that a major function of the Software is unusable and no
known resolution is available that is mutually acceptable to Nuance and VAR, but
that the user is able to do some production work.
Severity 3 shall mean that there is a loss of function in the Software that does
not seriously affect the End User's operations or schedules. Any defect which
was originally reported as Severity 1 or Severity 2, but which has been
temporarily resolved by a mutually acceptable temporary resolution, shall be
reduced to Severity 3 at the time the temporary resolution has been
electronically distributed to VAR,
Severity 4 shall mean all other defects in the Software other than those falling
within the categories above.
Severity 5 as used herein shall mean requested enhancements to the product.
Response Times Objectives for Acknowledging Incident
Upon receiving notice from Designated Employees of VAR of a defect in the
Software, Nuance shall acknowledge receipt of such notice. Such acknowledgment
shall contain a unique number identifying the particular incident for tracking
purposes. Nuance shall provide VAR with a periodic status update for any defect
reported by VAR identifying each defect by the tracking number assigned to it by
Nuance. Each defect reported by VAR shall remain open until closure is agreed
between Nuance and VAR.
Nuance will acknowledge requests from VAR for Technical Support Services as
follows:
Severity 1 or 2 - less than [***]
Severity 3 through 5 - within [***].
Response Time Objectives for Resolution of Incident Nuance shall make
reasonable commercial efforts to provide a work-around or resolution for the
reported defect in the Software in conformance with the following objectives:
Severity 1: within [***] of receipt of notice of the defect from VAR.
Severity 2: within [***] of receipt of notice of the defect from VAR.
Severity 3, 4, or 5: resolved in a future release of the product
Defect Report Form
Nuance and VAR agree to define a Defect Report Form that is mutually
acceptable and which, as revised or replaced from time to time, shall be the
means used for the transfer of information defining suspected defects for
resolution. Nuance shall provide VAR with an electronic mail address for receipt
of above forms. Notwithstanding the foregoing, in case of a Severity 1 or
Severity 2 incident attributable to the Software, VAR's Designated Personnel may
request Technical Support Services through the telephone hot-line. VAR shall be
provided reasonable access to Nuance's defect database to review the status of
defects related to the Software.
On-Site Assistance
Upon VAR's request and subject to availability, Nuance may furnish
qualified personnel for on-site assistance to VAR and/or Sub-licensees to
resolve defects in the Software. In such event, VAR shall pay Nuance at its then
current time and materials rates for the time of required personnel and
reimburse Nuance for reasonable travel and living expenses of such personnel
incurred in rendering the requested assistance; provided, however, that Nuance
shall not be entitled to payment for the time of its personnel if such
assistance is required to resolve a Severity 1 defect in the Software and
2
such defect cannot otherwise be reasonable resolved in a timely manner.
Termination of Support for Products Listed on Exhibit A
In the event that Nuance should terminate support for a specific version or
release of a Nuance product listed in Exhibit A, Nuance's support obligations to
VAR with respect to that product shall terminate at the same time such support
is terminated for other Resellers or Nuance's end users and subject to the same
notice period. In addition, Nuance agrees to support the three previous Releases
of any Nuance product listed in Exhibit A (and licensed to VAR) or all Releases
licensed to VAR within any three year period, whichever is later, as current
under the terms of this Agreement (e.g. upon release of release 6.3 of the
Nuance RecServer, support for release 6.0 and its minor releases, 6.0.1, etc.,
may be terminated.
Miscellaneous Nuance Obligations
Nuance shall provide VAR's Designated Employees initial training in the
installation, maintenance, and operation of the Software.
If a major release or upgrade of any product listed on Exhibit A is made
available for which additional training becomes available, Nuance shall promptly
notify VAR, and as requested by VAR, enroll for up to two (2) Designated
Employees in the next available training course subject to prior enrollment
commitments. Such training shall be made available within 30 days of the
availability of the new release, if possible. The training will be of sufficient
detail to allow VAR's Designated Employees to each their co-workers as
appropriate and will include reproducible course materials.
Nuance will make available to VAR all Nuance tools that are commercially
available to other Value Added Resellers. Tools may be for use in deployment,
configuration, and performance improvement the Software. Nuance will also
provide VAR with reasonable support, under terms to be agreed, in VAR's efforts
to develop its capability to provide call script design, recognition grammar
development, and in-service application debugging and tuning.
3.
NUANCE COMMUNICATIONS [VAR]
By:___________________________ By:______________________________
Title:________________________ Title:___________________________
Date:_________________________ Date:____________________________
4
[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
SCHEDULE 1 TO EXHIBIT F
TECHNICAL SUPPORT SERVICES
FEE SCHEDULE
The Fees for Technical Support Services provided pursuant to the Agreement,
EXHIBIT F ("TECHNICAL SUPPORT SERVICES"), and any applicable Purchase Order
shall be as follows:
For Basic Technical Support Services: [***]% of Software List Price
For Premium Technical Support Services: [***]% of Software List Price
For the purposes of this Agreement, if VAR elects to receive Basic Technical
Support Services, there will be [***]. If VAR elects not to receive Technical
Support Services, [***]. If VAR elects to receive Premium Technical Support
Services, [***].
1
EXHIBIT G
NUANCE TRADEMARKS
The following trademarks and respective notices are subject to the terms of the
Agreement, specifically Section 3.5 ("Trademark License"), and shall be used in
accordance therewith in conjunction with an applicable Software License:
(1) "Nuance Communications" TM is a trademark of Nuance
Communications.
(2) "RecClient TM and RecServer TM" are trademarks of Nuance
Communications.
(3) "Conversational Transactions" TM is a trademark of Nuance
Communications.
(4) "Nuance BillPayer" TM is a trademark of Nuance
Communications.
Such other symbols and notices as may be prescribed by Nuance from time to time.
1
EXHIBIT H
AGREEMENT NO. _________________
REFERENCE P.O. NO. _________________
ORDER FORM
----------
This Order is placed by VAR under the Definitive Agreement dated _____________.
The Agreement is incorporated by reference as though set forth in full herein.
The effective date of this Order shall be _____________________.
SOFTWARE
--------
QUANTITY PRODUCT MACHINE MACHINE PRICE TYPE CUSTOMER NUMBER OF
IDENTIFIERS NAME(S) (PER OF APPLICATION PORTS (IF
COPY) LICENSE (IF APPLICABLE)
APPLICABLE)
V6.0
Developer's
Toolkit
V6.0 Run-
time Server
License
V6.0 Run-
time Client
License
1
SERVICES
--------
QUANTITY SERVICE MACHINE MACHINE PRICE LICENSE CUSTOMER NUMBER
IDENTIFIER(S) NAME(S) (PER TYPE APPLICATION OF PORTS
COPY) (IF
APPLICABLE)
Technical
Support-
Nuance
Toolkit
Technical
Support-
Runtime
Server
Software
Technical
Support-
Runtime
Client
Software
LOCATION FOR SOFTWARE INSTALLATION CONTACT INFORMATION
---------------------------------- -------------------
Technical Contact Person:
___________________________________ ___________________________________
Title:
___________________________________ ___________________________________
Phone Number:
___________________________________ ___________________________________
SPECIFICATION REFERENCE NO./DATE: E-mail:
DATE DELIVERY REQUIRED: ___________________________________
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
NUANCE COMMUNICATIONS VAR
Authorized Signature:__________________ Authorized
Signature:______________________
Printed Name:__________________________ Printed
Name:______________________________
Title:_________________________________
Title:____________________________
1
EXHIBIT I-___
AMENDMENT
Notwithstanding anything to the contrary in this Agreement, the terms contained
in this EXHIBIT I ("AMENDMENT") shall be in addition to any other terms of the
Agreement, and shall supersede and take precedence over any conflicting terms
therein. Except as expressly modified by this EXHIBIT I ("AMENDMENT"), all terms
of this Agreement shall survive, and shall continue to bind the parties:
1
EXHIBIT J
CUSTOMER SPECIFIC ACCEPTANCE REQUIREMENTS
Nuance and VAR agree that the following customer specific acceptance
requirements shall apply to the Software in accordance with the Agreement and
this EXHIBIT J.
NUANCE COMMUNICATIONS [VAR]
By:______________________________ By:_________________________________
Title:___________________________ Title:______________________________
Date:____________________________ Date:_______________________________
1
EXHIBIT K-__
ESCROW
SOURCE CODE ESCROW AGREEMENT
THIS SOURCE CODE ESCROW AGREEMENT ("Escrow Agreement") is entered into as
of this ____ day of _________, 199_ (the "Effective Date") between NUANCE
COMMUNICATIONS, a California corporation having a place of business at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Nuance"), and __________________________, a
_______________ corporation having a place of business at ____
_________________________________ ("VAR"), and __________________________, a
____________ corporation having a place of business at _____
___________________________________("Escrow Agent").
RECITALS
A. Concurrent with the execution of this Escrow Agreement, VAR and Nuance
are entering into a Value-Added Reseller Agreement (the "VAR Agreement")
pursuant to which Nuance has licensed to VAR certain rights with respect to the
Software (as defined in the VAR Agreement);
B. Nuance and VAR now wish to enter into an escrow agreement which
provides for Nuance's deposit of the source code of the Software and related
materials with an escrow agent reasonably satisfactory to VAR and Nuance, and
further that, under circumstances to be specified in this Escrow Agreement, VAR
may obtain the foregoing materials from the Escrow Agent solely for the purpose
of maintaining and supporting properly licensed end users of the Nuance
Software.
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged and in consideration of the promises, mutual covenants
and conditions contained herein, the parties agree as follows:
AGREEMENT
1. DEFINITION OF ESCROW MATERIALS. The escrow materials ("Escrow
------------------------------
Materials") to be stored by the Escrow Agent consist of one full copy of the
source code and related documents which pertain to the Software and which are
reasonably necessary to enable a software engineer of ordinary skill to diagnose
and correct Errors in the Software. The Escrow Materials shall also include any
Updates of the Software created by Nuance and deliverable to VAR pursuant to
SECTION 13 ("TECHNICAL SUPPORT SERVICES") of the VAR Agreement.
2. DEPOSIT. Within sixty (60) days of Nuance's delivery to VAR of the
-------
Software in accordance with SECTION 4 ("DELIVERY AND ACCEPTANCE") of the VAR
Agreement, Nuance shall deliver (or shall have already delivered) to the Escrow
Agent a sealed package certified by an authorized officer of Nuance to contain a
complete set of the Escrow Materials as defined in PARAGRAPH 1 ("Definition of
Escrow Materials") hereof, for such Software. Each deposit of the source code
for Software shall constitute a "Deposit".
3. RECEIPT BY ESCROW AGENT. Nuance shall furnish to the Escrow Agent a
-----------------------
packing list in triplicate describing each Deposit made hereunder. The Escrow
Agent shall issue a receipt for each Deposit received and forward copies of such
receipts and packing lists to both VAR and Nuance.
4. STORAGE OF MATERIALS; INSPECTION. The Escrow Agent shall establish
--------------------------------
under its control a receptacle for the purpose of storing the Escrow Materials
in safekeeping in an appropriate physical facility and shall allow the
inspection of the Escrow Materials only upon written authorization from Nuance
or as otherwise directed by a final order of a court of competent jurisdiction;
provided, however, that VAR shall be entitled to not more than one inspection in
any calendar year, and Nuance must be given at least
1
[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
ten (10) days' written notice prior to such inspection. Any such inspection
shall be in the presence of an authorized representative of Escrow Agent and
Nuance shall have the right to attend such inspection, at its option. Access to
the Escrow Materials shall be permitted to authorized representatives of Escrow
Agent to the extent necessary for Escrow Agent to perform its obligations
pursuant to this Escrow Agreement.
5. RECORDS. The Escrow Agent agrees to keep complete written records of
-------
the activities undertaken, and materials prepared and delivered to Escrow Agent
(including all Deposits), pursuant to this Escrow Agreement. Nuance or VAR shall
be entitled at reasonable times, during normal business hours, and upon
reasonable notice to Escrow Agent, during the term of this Escrow Agreement to
inspect the records of Escrow Agent with respect to the Escrow Materials. Nuance
shall be entitled upon reasonable notice to Escrow Agent and during normal
business hours to inspect the facilities of Escrow Agent with respect to the
physical status and condition of the Escrow Materials.
6. TERM. This Escrow Agreement shall remain in effect so long as the VAR
----
Agreement is in effect. Upon expiration of this Agreement or the VAR Agreement,
the portion, if any, of the Escrow Materials not previously withdrawn by VAR in
accordance with the terms hereof, shall be redelivered to Nuance and this
Agreement shall thereupon terminate.
7. RELEASE EVENTS. The following events ("Release Events") shall
--------------
constitute events of default by Nuance which give VAR the right to receive for
its own and sole use only, a single copy of the Escrow Materials from the Escrow
Agent pursuant to PARAGRAPH 8 ("Delivery of Escrow Materials to VAR") hereof:
(A) [***]
(B) [***]
8. DELIVERY OF ESCROW MATERIALS TO VAR.
-----------------------------------
(a) Upon the occurrence of either of the Release Events described in
PARAGRAPH 7 ("Release Events") hereof, Escrow Agent agrees and is hereby
specifically authorized to provide the Escrow Materials to VAR upon written
request by VAR. Prior to delivery of the Escrow Materials, (i) VAR must have
given written notice to Escrow Agent of the occurrence of a Release Event, which
notice shall specify the nature of such Release Event; (ii) Escrow Agent must
have transmitted a copy of the VAR notice to Nuance; and (iii) within twenty
(20) days after receipt of the VAR notice from Escrow Agent, Nuance must have
failed to notify Escrow Agent in writing that Nuance disputes VAR's notice.
(b) If Nuance disputes VAR's notice of default, then within thirty
(30) days subsequent to VAR's notice, Nuance must file with Escrow Agent an
affidavit executed by an authorized representative of Nuance stating that no
such Release Event has occurred or that the Release Event has been cured. If
Nuance fails to file such an affidavit, then Escrow Agent shall deliver the
relevant Escrow Materials in accordance with the instructions of VAR. If Nuance
files an affidavit disputing VAR's claim that a Release Event has occurred, then
Escrow Agent shall not deliver the Escrow Materials to either VAR or Nuance
until directed to do so by Nuance and VAR jointly or by an arbitrator, or until
Escrow Agent is ordered to do so by a final order of a court of competent
jurisdiction, and upon such delivery this Escrow Agreement shall
2
terminate with respect to the Escrow Materials so delivered.
(c) Except as provided in PARAGRAPH 8(D) below, any dispute concerning
the delivery of any or all of the Escrow Materials to VAR by Escrow Agent shall
be settled by arbitration, to take place in Santa ▇▇▇▇▇ or San Francisco County,
California, within thirty (30) days following Nuance's delivery of an affidavit
to Escrow Agent pursuant to PARAGRAPH 8(B) above, in accordance with the then-
prevailing rules of the American Arbitration Association. Depositions may be
taken and discovery obtained in any such arbitration proceedings in accordance
with California Code of Civil Procedure ("CCP") Section 1283.05, which is
incorporated herein by this reference in accordance with the provisions of CCP
Section 1283.1(b). The limitations on subject matter set forth in CCP Section
1283.1 shall be of no force and effect herein. Judgment upon the award rendered
by the arbitrator(s) may be entered in any court having jurisdiction thereof.
(d) Notwithstanding PARAGRAPH 8(C) above, either party shall have the
right to obtain a preliminary judgment on any equitable claim in any court of
competent jurisdiction, where such judgment is necessary to preserve property
and/or proprietary rights under this Escrow Agreement. Such judgment shall
remain effective as long as the terms of the judgment so provide, or until
specifically superseded by the action of the arbitrator(s) as provided in
PARAGRAPH 8(C) above.
9. LICENSE GRANT FOR USE OF ESCROW MATERIALS; CONFIDENTIALITY; LIABILITY
---------------------------------------------------------------------
FOR DISCLOSURE.
--------------
(a) If, and only if, the Escrow Materials are released to VAR pursuant
to PARAGRAPH 8 ("Delivery of Escrow Materials to VAR") hereof, Nuance hereby
grants VAR the right to use such Escrow Materials solely for the purpose of
maintaining object code versions of the Software for VAR's existing customers as
of the date the VAR Agreement terminates in accordance with SECTION 9 ("TERM AND
TERMINATION") of such Agreement, and for no other reason whatsoever.
(b) VAR acknowledges and agrees that use of the Escrow Materials is
furnished to VAR on a confidential and secret basis for the sole and exclusive
use of VAR, and not for sale, sublicense or disclosure to third parties. In the
event that VAR obtains the Escrow Materials pursuant to the terms hereof, VAR
agrees that it will not (1) publish, disclose or otherwise divulge the Escrow
Materials to any person, except officers or employees of VAR who have entered
into commercially reasonable non-disclosure agreements and need access to the
Escrow Materials to perform their duties, at any time, either during the term or
after the termination of this Escrow Agreement, nor (2) permit its officers or
employees to so divulge any Escrow Materials, without the prior written consent
of an officer of Nuance. Upon receipt of the Escrow Materials, VAR may make one
(1) machine-readable copy of the Escrow Materials solely for backup and archival
purposes. VAR agrees to reproduce and include all copyright and other
proprietary notices appearing in or on any and all Escrow Materials provided to
VAR by Nuance or Escrow Agent on any copy of the Escrow Materials made by VAR.
(c) VAR agrees to take all necessary steps to prevent unauthorized
disclosure of the Escrow Materials, including but not limited to the following:
(1) The building in which VAR uses the Escrow Materials shall have
access restricted to VAR employees and third party agents twenty-four (24) hours
a day;
(2) The Escrow Materials shall be used only in a location within
such building to which access is further restricted to persons authorized to use
the Escrow Materials;
3
(3) VAR shall prevent telephone, fax, e-mail or other remote
access to the Escrow Materials in such location from other locations;
(4) The Escrow Materials shall be installed only on a single
computer system which is password protected and not connected to any other
computer or printer; further, all Escrow Materials files will be password
protected.
(d) VAR shall be liable to Nuance for all direct and indirect,
consequential, special and incidental damages resulting from any unauthorized
use or disclosure of the Escrow Materials. To the extent, if any, this Paragraph
9(d) is inconsistent or conflicts with any provision of the VAR Agreement, this
Paragraph 9(d) shall be controlling.
(e) The obligations of this PARAGRAPH 9 ("License Grant for Use of
Escrow Materials; Confidentiality; Liability for Disclosure") hereof shall
survive any termination or expiration of this Agreement.
10. DELIVERY SITE. Delivery of the Escrow Materials to VAR, or return of
-------------
the Escrow Materials to Nuance, shall be at the offices of the Escrow Agent at
______________, unless special delivery instructions concerning delivery
elsewhere are furnished to the Escrow Agent by the party authorized hereunder to
receive the Escrow Materials.
11. OBLIGATIONS OF ESCROW AGENT. The Escrow Agent shall be responsible
---------------------------
only for the acceptance, storage, and delivery of the Escrow Materials in
accordance with the terms of this Escrow Agreement and for the exercise of due
diligence in accordance with the high level of care accorded fiduciary
obligations; shall have no obligation or responsibility to verify or determine
that the Escrow Materials deposited with Escrow Agent by Nuance do, in fact,
consist of those items which Nuance is obligated to deliver under this Escrow
Agreement; shall bear no responsibility whatsoever to determine the existence,
relevance, completeness, currency, or accuracy of the Escrow Materials; and
shall be entitled to act in good faith reliance upon any written instruction,
instrument, or signature believed in good faith to be genuine and to assume in
good faith that any person purporting to give any writing, notice, advice, or
written instruction in connection with, or relating to, this Escrow Agreement
has been duly authorized to do so.
If Escrow Agent is uncertain of its duties or rights hereunder, it will
refrain from taking any action other than to safely retain the Escrow Materials
until it is directed otherwise in writing by Nuance and VAR jointly or by final
order of an arbitrator or a court of competent jurisdiction. Except as expressly
provided in this Escrow Agreement, Escrow Agent agrees that it will not divulge
or disclose or otherwise make available to third parties whatsoever, or make any
use whatsoever, of the Escrow Materials, or any information deposited with it by
Nuance in connection with this Escrow Agreement, without the express prior
written consent of Nuance.
12. INDEMNITY. Nuance and VAR jointly and severally agree to defend and
---------
indemnify Escrow Agent and to hold Escrow Agent harmless from and against any
and all claims, actions and suits, whether groundless or otherwise, and from and
against any and all liabilities, losses, damages, costs, charges, penalties,
counsel fees, and any other expense of any other nature, including, without
limitation, settlement costs incurred by Escrow Agent on account of any good
faith act or omission of Escrow Agent, in respect of, or with regard to, this
Escrow Agreement except as to the obligations of Escrow Agent specified in
PARAGRAPHS 4 ("Storage of Materials; Inspection") and 11 ("Obligations of Escrow
Agent") hereof.
13. COMPENSATION. The Escrow Agent shall be compensated as set forth on
------------
Schedule 1 ("Payment Schedule") attached hereto. The payments set forth in
----------
Schedule 1 are for Escrow Agent's ordinary services as escrow
----------
4
holder. In the event Escrow Agent is required to perform any additional or
extraordinary services as a result of being escrow holder, including
intervention in any litigation or proceeding, Escrow Agent shall receive, upon
prior written approval of the parties responsible for payment of Escrow Agent's
expenses, reasonable compensation for such services and be reimbursed for such
costs incurred, including reasonable attorneys' fees. All costs and expenses for
establishing and maintaining the escrow including but not limited to Escrow
Agent's compensation and expenses shall be borne by Nuance.
14. DISCHARGE OF ESCROW AGENT. Escrow Agent may resign and be discharged
-------------------------
from its duties or obligations hereunder by giving notice in writing of such
resignation to Nuance and VAR specifying a date when such resignation shall take
effect, which date shall be at least sixty (60) days after the date of receipt
of such notice. Prior to the effective date of such resignation, with the prior
written consent of VAR, which shall not be unreasonably withheld, Nuance shall
arrange for the services of a new escrow agent, and Nuance and VAR agree to
execute and deliver another escrow agreement with such new escrow agent having
substantially the same terms as this Escrow Agreement. Upon Nuance notifying
Escrow Agent of the name and address of the new escrow agent, Escrow Agent
agrees to forward the Escrow Materials to such new escrow agent provided that
Escrow Agent has received payment pursuant to PARAGRAPH 13 ("Compensation").
15. MODIFICATION. These escrow instructions are irrevocable except as they
------------
may be revoked or modified by written consent of VAR, Nuance and the Escrow
Agent, jointly.
16. GOVERNING LAW. This Escrow Agreement shall be construed and
-------------
interpreted in accordance with the laws of the State of California excluding the
application of principles of conflict of laws. Subject to the provisions of
SUBPARAGRAPH 8(C), the State and Federal Courts located in Santa ▇▇▇▇▇ or San
Francisco County shall have sole and exclusive jurisdiction over any dispute
arising hereunder.
17. NOTICE. All notices required by this Escrow Agreement shall be
------
sufficiently given:
(a) upon delivery, if given in person with a signed receipt;
(b) if given by facsimile transmission, upon acknowledgment of receipt
of electronic transmission; or
(c) if given by registered or certified mail (air mail if
international), postage prepaid, return receipt requested, five days after
deposit in the mail in accordance with the provisions hereof. All such notices
shall be addressed as follows:
IF TO VAR:
IF TO NUANCE:
President
Nuance Communications
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
IF TO ESCROW AGENT:
or to such other person or address as the parties may from time to time
designate in a writing delivered pursuant to this PARAGRAPH 17 ("Notice").
18. SEVERABILITY. In the event that any provision of this Escrow Agreement
------------
shall be unenforceable or invalid under any applicable law or be so held by
applicable court or arbitration decision, such unenforceability or invalidity
shall not render this Agreement unenforceable or
5
invalid as a whole, and, in such event, such provision shall be changed and
interpreted so as to best accomplish the objectives of such unenforceable or
invalid provision within the limits of applicable law or applicable court
decisions.
19. WAIVER. The failure of any party hereto to require performance by
------
another party of any provision hereof shall not affect the full right to require
such performance at any time thereafter, nor shall the waiver by any party of a
breach of any provision hereof by any other party be taken or held to be a
waiver of the provision itself.
20. COUNTERPARTS. This Escrow Agreement may be executed in counterparts,
------------
each of which shall be deemed an original, but all of which shall constitute one
and the same instrument.
21. SURVIVAL. The following provisions shall survive any termination of
--------
this Agreement or partial termination of this Agreement with respect to a
portion of the Escrow Materials delivered pursuant to PARAGRAPH 8 ("Delivery of
Escrow Materials to VAR"): PARAGRAPHS 9 ("License Grant for Use of Escrow
Materials; Confidentiality; Liability for Disclosure"), 12 ("Indemnity"), 16
("Governing Law"), 17 ("Notice"), 18 ("Severability"), 19 ("Waiver"), 20
("Counterparts") and 22 ("Entire Agreement").
22. ENTIRE AGREEMENT. This Escrow Agreement, together with any schedule
----------------
hereto, and the VAR Agreement, constitute the entire agreement between the
parties with respect to the subject matter hereof. This Escrow Agreement
supersedes oral, written or other communications concerning the subject matter
of this Escrow Agreement, and shall not be altered, amended, or modified except
in a writing signed by the duly authorized officers of each party hereto.
6
IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to
be executed as of the date and year hereinafter written.
NUANCE COMMUNICATIONS VAR:
By:_______________________________ By:________________________________
Title:____________________________ Title:_____________________________
Date:_____________________________ Date:______________________________
ESCROW AGENT:
[NAME]
By:________________________________________
Title:_____________________________________
Date:______________________________________
7