Nuance SLSA, version November 16, 1998
[Graphic Omitted] NUANCE
COMMUNICATIONS
SOFTWARE LICENSE AND SUPPORT AGREEMENT
This agreement ("Agreement") is between Nuance Communications, a California
corporation with its principal place of business at 1380 Willow Road, Menlo
Park, CA 94025 ("Nuance") and __Intraco Systems__, a Nevada__ corporation with
its principal place of business at: 3998 FAU Blvd, Suite 210, Boca Raton, FL
33431 ("Customer"). The terms of this Agreement shall apply to each Software
license granted and to all services provided by Nuance under this Agreement.
When completed and executed by both parties, an Order Form shall evidence the
Software licenses granted and the services that are to be provided.
I. DEFINITIONS
1.1 "CAPACITY" shall mean the number of Recognition Units and number of
Speech Channels specifically licensed to Customer pursuant to an
executed Order Form.
1.2 "COMMENCEMENT DATE" shall mean the date on which the Software is
shipped by Nuance to Customer, or, if no delivery is necessary, the
Effective Date of the relevant Order Form.
1.3 "DOCUMENTATION" shall mean user documentation for use of and provided
with the Software.
1.4 "GRAMMAR MAINTENANCE" shall mean updates to any applicable grammar
which are periodically shipped to subscribing customers.
1.5 "INTEGRATED SYSTEM(S)" shall mean the computer/operating system/IVR
combination(s) or other supported processor designated on the
applicable Order Form. Unless otherwise specified on the Order Form,
each copy of the Software may be installed on one (1) computer.
1.6 "LOCATION(S)" shall mean the Customer location(s) specified on the
applicable Order Form.
1.7 "ORDER FORM" shall mean the document by which Customer orders Software
licenses, Capacity and services from Nuance, a form of which is
attached hereto as Schedule D.
1.8 "RECOGNITION UNIT" shall mean the amount of recognition power required
to understand a continuous stream of digits in real time with a 1%
digit error rate, as represented by the Nuance RU benchmark, a test set
consisting of 100 8-digit utterances.
1.9 "SOFTWARE" shall mean the software programs, in object code form only,
delivered by Nuance to Customer and licensed pursuant to an executed
Order Form. Software shall include computer programs owned or
distributed by Nuance, data files, Documentation, and Updates.
1.10 "SPEECH CHANNEL" shall mean a single port that is enabled for speech
recognition.
1.11 "SUPPORTED SOFTWARE LICENSE(S)" shall mean any Software licenses for
which Customer has purchased Technical Support for the relevant time
period.
1.12 "TECHNICAL SUPPORT" shall mean Software support provided under Nuance's
technical support policies in effect at the time the services are
ordered.
1.13 "UPDATE(S)" shall mean any bug fixes, patches, modifications, and
enhancements to the Software as may be generally made available for
Supported Software Licenses at no additional charge, other than media
and handling charges. Updates shall not include any releases, options
or future products which Nuance licenses separately.
II. SOFTWARE LICENSE
2.1 RIGHTS GRANTED
A. Subject to any additional restrictions in the Order Form, the
terms of which are incorporated herein by this reference,
Nuance grants to Customer and Customer accepts a
non-exclusive, non-transferable license as follows:
i. to use the Software solely for Customer's own
business operations; solely on the Integrated System
or on a backup system; solely at the Location(s); and
solely for the Capacity or other limitation (if any
limitation applies) ordered pursuant to an executed
Order Form. Customer shall not have the right to
manufacture, sell, or otherwise commercially exploit,
except in support of Customer's own business
operations, any product, system, or service based in
whole or in part on the Software. Customer 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 Customer's authorized use of the
Software;
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iii. to copy the Software for archival or backup purposes;
no other copies shall be made without Nuance's prior
written consent. Customer 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
Customer use the Software on the production
Integrated System and the backup Integrated System
simultaneously. Customer 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.
Customer shall not copy or use the Software (including the
Documentation) except as otherwise specified in this
Agreement.
B. 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 this
Agreement, Customer does not acquire any rights, express or
implied, in the Software.
C. Customer shall not cause or permit the reverse engineering,
decompilation, disassembly or other translation of the
Software.
D. Upon Nuance's prior written consent, Customer may transfer the
license to another Integrated System within its organization.
Such transfer shall be subject to Nuance's transfer fees and
policies in effect at the time of the transfer.
E. Customer shall have the right to allow its third party agents,
suppliers, and customers to use the Software for Customer's
business purposes, provided Customer ensures such use is in
accordance with the terms of this Agreement.
2.2 ACCEPTANCE. Customer shall be deemed to have accepted the Software on
the Commencement Date. If Customer is granted a right to copy the
Software, all copies shall be deemed accepted upon acceptance of the
master copy.
2.3 ASSIGNMENT. Customer may not assign this Agreement or an Software
licenses to a third party without Nuance's prior written consent.
2.4 AUDIT. On Nuance's written request, nor more frequently than annually,
Customer shall provide to Nuance a signed certification (a) verifying
the Software is being used in accordance with the terms of this
Agreement, including any Capacity or other use limitations; and (b)
listing the locations and type(s) of the Integrated System(s) on which
the Software is run.
Nuance may, at Nuance's expense and not more than once annually, audit
Customer's use of the Software. Any such audit shall be conducted
during business hours and shall not unreasonably interfere with
Customer's business activities. If such an audit reveals that Customer
has underpaid fees to Nuance, Customer shall be invoiced for the
underpaid fees based upon Nuance's commercial price list in effect at
the time of the audit.
III. TECHNICAL SUPPORT SERVICES
Technical Support services and Grammar Maintenance services ordered by
Customer will be provided under Nuance's Technical Support and Grammar
Maintenance policies, as applicable, in effect on the date Technical
Support or Grammar Maintenance is ordered. Such services shall be
charged for at the fees stated on the applicable Order Form. For any
on-site services requested by Customer, Customer shall reimburse Nuance
for actual, reasonable travel and out-of-pocket expenses incurred.
IV. PROFESSIONAL SERVICES
Additional development and other services, including grammar and dialog
design, assistance with trials and "tuning" of the Software
(collectively, "Professional Services"), may be obtained from Nuance
pursuant to an executed Order Form and associated Statement of Work (a
form of which is attached hereto as Exhibit A). Nuance will perform the
Professional Services as described in the SOW. The fees for such
Professional Services shall be as specified in such Order Form and
Statement of Work.
All documents, deliverables and other materials generated by Nuance
pursuant to providing Professional Services shall be the exclusive
property of Nuance, unless otherwise specified in the applicable SOW.
Customer shall have a perpetual, non-exclusive worldwide license to use
such documents, deliverables and other materials solely in conjunction
with the Software or other Nuance technology. Customer understands that
Nuance is in the business of providing various services drawing upon
the knowledge, understanding and expertise Nuance has gained in the
course of working with many individual clients, both similar and
different from Customer, and including Customer. Notwithstanding
anything in this Agreement to the contrary, nothing in this Agreement
shall be deemed to assign rights to or limit Nuance's use of any
know-how or knowledge that is not the Confidential Information of
Customer and that Nuance had prior to entering this Agreement or that
Nuance obtains during its performance under this Agreement.
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V. TERM AND TERMINATION
5.1 TERM. If not otherwise specified on the Order Form, this Agreement and
each Software license granted hereunder shall remain in effect in
perpetuity, unless otherwise terminated as set forth below.
5.2 TERMINATION BY CUSTOMER. Customer may terminate any Software license at
any time upon written notice to Nuance.
5.3 TERMINATION BY NUANCE. Nuance may terminate this Agreement or any
Software license or service upon written notice if Customer breaches
this Agreement or the terms of any Order Form and fails to correct such
breach within thirty (30) days of written notice specifying the breach.
5.4 EFFECT OF TERMINATION. Termination of this Agreement or any Software
license by either party shall not limit either party from pursuing any
other remedies available to it, including injunctive relief, nor shall
such termination release Customer from any obligation to pay all fees
that have accrued or that Customer has agreed to pay under any Order
Form under this Agreement up to the date of termination. The parties'
rights and obligations under Sections 2.1.B, 2.1.C, 2.3, and Articles
V, VI, VII, VIII, and IX shall survive termination of this Agreement.
If a license granted under this Agreement expires or otherwise
terminates, Customer shall (a) cease using the applicable Software, and
(b) certify to Nuance within thirty (30) days of expiration or
termination that Customer has destroyed or returned to Nuance the
Software and all copies thereof remaining in Customer's possession.
This requirement applies to copies in all forms, partial and complete,
in all types of media and computer memory, and whether or not modified
or merged into other materials.
VI. WARRANTIES AND LIMITATION OF LIABILITY
6.1 WARRANTIES AND DISCLAIMERS
A. Software License. Nuance warrants that for a period of ninety
(90) days from the Commencement Date each unmodified copy of
the Software will perform the functions described in the
Documentation. Nuance does not warrant that the Software will
meet Customer's requirements, that the Software will operate
in the combinations which Customer may select for use, that
the operation of the Software will be uninterrupted or
error-free, or that all Software errors will be corrected.
B. Media. Nuance warrants the tapes, diskettes, or other media to
be free of defects in materials and workmanship under normal
use for ninety (90) days from the Commencement Date.
C. Professional Services. Nuance warrants that its Technical
Support services will be performed consistent with generally
accepted industry standards. This warranty shall be valid for
ninety (90) days from performance of service.
D. LIMITATIONS. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1
("WARRANTIES AND DISCLAIMERS") ABOVE, 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 ARE EXPRESSLY EXCLUDED. THIS IS A LIMITED
WARRANTY AND IS THE ONLY WARRANTY MADE BY NUANCE. IF
PRE-PRODUCTION (OR "ALPHA" OR "BETA") RELEASES OF SOFTWARE ARE
PROVIDED TO CUSTOMER, SUCH COPIES ARE PROVIDED "AS-IS" WITHOUT
WARRANTY OF ANY KIND.
6.2 EXCLUSIVE REMEDIES. For any breach of the warranties contained in
Section 6.1 above, Customer's exclusive remedy, and Nuance's entire
liability, shall be:
A. For Software. The correction of Software errors that cause
breach of the warranty, or if Nuance is unable to make the
Software work as warranted, Customer shall be entitled to
terminate the Software license and recover the fees paid
therefor.
B. For Media. The replacement of defective media returned to
Nuance within ninety (90) days of the Commencement Date.
C. For Professional Services. The re-performance of Professional
Services, or if Nuance is unable to perform the services as
warranted, Customer shall be entitled to recover the fees paid
therefor.
6.3 LIMITATION OF LIABILITY. In no event shall either party be liable to
the other for any special, indirect, incidental, or consequential
damages, or damages for loss of profits, savings, revenue, use, damaged
files or data, or business interruption, incurred by either party or
any third party, which may arise in connection with this Agreement or
the use and support of the Software, regardless of whether such claims
are based or remedies are sought in contract or tort, even if the other
party has been advised of the possibility of such damages. In no event
shall Nuance be liable for any damages based upon the recognition
accuracy of the Nuance software or for the cost of procurement of
substitute goods. Under no circumstances
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shall Nuance's liability exceed the amount of fees paid by Customer
under this Agreement.
VII. INDEMNITY
7.1 NUANCE INDEMNITY. Nuance will defend and indemnify Customer against a
claim that Software furnished and used within the scope of this
Agreement directly infringes a United States patent, copyright, or
trademark, provided that: (a) Customer notifies Nuance of such claim in
writing within thirty (30) days of the claim; (b) at Nuance's expense,
Nuance has sole control of the defense and all related settlement
negotiations; and (c) Customer provides Nuance with the reasonable
assistance, information, and authority necessary to perform Nuance's
obligations under this Article. Nuance shall have no liability for any
claim of infringement based on: (i) use of a superseded or altered
release of the Software (if the infringement would have been avoided by
the use of a current or unaltered release of the Software); (ii) use of
the Software in combination with other hardware or software not
provided by Nuance (but only to the extent that the Software alone
would not have infringed); (iii) a Customer or third party application;
(iv) Professional Services in compliance with Customer's design
requirements or specifications; or (v) use of the Software other than
as permitted under this Agreement or in a manner for which it was not
intended.
In the event the Software is held or is believed by Nuance to infringe,
Nuance shall have the option, at its expense, to: (a) modify the
Software to be non-infringing; (b) procure for Customer a license to
continue using the Software; (c) replace the Software with computer
software of equal or superior functional capability; or, if it is not
commercially reasonable for Nuance to perform (a), (b) or (c), then,
(d) terminate the license for the infringing Software and refund the
license fees paid for that Software, prorated over a straight-line
three year method. This Article VI states Nuance's entire liability and
Customer's exclusive remedy for infringement.
7.2 CUSTOMER INDEMNITY. Except with respect to Nuance's indemnity as
described in this Section 7, Customer agrees to indemnify, defend and
hold harmless Nuance, its shareholders, directors, officers, employees,
agents and affiliated companies from and against any losses, costs, or
damages (including reasonable attorneys' fees) resulting from any
claims by third parties in connection with the use of the Integrated
Systems by Customer and Customer's direct and indirect customers,
provided that Nuance gives Customer prompt written notice of any such
claim, tenders to Customer the defense or settlement of any such claim
at Customer's expense, and cooperates with Customer, at Customer's
expense, in defending or settling such claim.
VIII. PAYMENT OF FEES
All fees hereunder shall be due and payable net thirty (30) days of the
date of invoice in the lawful money of the United States of America.
All Technical Support fees shall be payable annually in advance, net
thirty (30) days from the date of invoice. Any amounts payable by
Customer hereunder which remain unpaid after the due date shall be
subject to late penalty fees equal to 1.5% per month from the due date
until such amount is paid. Customer agrees to pay applicable media and
shipping charges.
Fees hereunder do not include local, state, or federal sales, use,
property, value-added, or other taxes based on the licenses and
services provided under this Agreement or Customer's use thereof.
Customer agrees to pay all such taxes as may be imposed upon Nuance or
Customer. Customer shall be invoiced for such taxes if Nuance is
required to pay them on Customer's behalf. This provision shall not
apply to taxes based on Nuance's income.
IX. OTHER
9.1 CONFIDENTIAL INFORMATION. By virtue of this Agreement, the parties may
have access to information that is confidential to one another
("Confidential Information"). Confidential Information shall be limited
to the Software, Documentation, the terms and pricing under this
Agreement, and all information clearly identified as confidential.
A party's Confidential Information shall not include information that:
(a) is or becomes a part of the public domain through no act or
omission of the other party; (b) was in the other party's lawful
possession prior to the disclosure and had not been obtained by the
other party either directly or indirectly from the disclosing party;
(c) is lawfully disclosed to the other party by a third party without
restriction on disclosure; or (d) is independently developed by the
other party. Customer shall not disclose the results of any benchmark
tests of the Software to any third party without Nuance's prior written
approval.
The parties agree to hold each other's Confidential Information in
confidence during the term of this Agreement and for a period of two
years after the termination of this Agreement. The parties agree that,
unless required by law, they will not make each other's Confidential
Information available in any form to any third party, including
customers or customer prospects, or use each other's Confidential
Information for any purpose other than the implementation of this
Agreement. Each party agrees to take all reasonable steps to ensure
that Confidential Information is not disclosed or distributed by its
employees or agents in violation of the terms of this
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Agreement. Nothing in this Agreement shall be construed as permitting
Customer the right to use the Nuance name in conjunction with any
product or service offered by Customer.
9.2 IN-SERVICE DATA. In-Service Data is necessary to ensure optimal
performance and accuracy of the Software for a given application.
Normal uses of In-Service Data include determining dialog "hot spots,"
tuning the system parameters (rejection point, beam width, etc.)
grammar tuning, training acoustic models and measuring accuracy. Nuance
shall have full access and rights to all In-Service Data generated
through the use of each Integrated System in which Software is
installed. Customer acknowledges that the primary use of such
In-Service Data shall be to improve the performance of the Software for
the Customer and its end users, but that such In-Service Data may also
be used to train, refine, supplement or test the Nuance speech
recognition and natural language understanding software, models and
algorithms, and that the resulting improvements to the software, models
and algorithms may be used for the benefit of all users of Nuance
software. Nuance shall have no rights to the content of any In-Service
Data which includes any Confidential Information of Customer or its end
users.
9.3 EXPORT. Customer agrees to comply fully with all relevant export laws
and regulations of the United States ("Export Laws") to assure that the
Software is not (a) exported, directly or indirectly, in violation of
Export Laws; or (b) intended to be used for any purposes prohibited by
the Export Laws, including, without limitation, nuclear, chemical, or
biological weapons proliferation.
9.4 NOTICE. All notices under this Agreement, including notices of address
change, shall be in writing and shall be deemed to have been given when
sent by registered mail, return receipt requested, to the first address
listed in the relevant Order Form (if to Customer) or to the nuance
address on the Order Form (if to Nuance).
9.5 LEGAL EXPENSES. In the event legal action is taken by either party to
enforce this Agreement or any Order Form, all costs and expenses,
including reasonable attorney's fees incurred by the prevailing party,
shall be paid by the other party.
9.6 SEVERABILITY. If any provision of this Agreement is held by a court of
competent jurisdiction to be illegal, unenforceable, or in conflict
with any law of a federal, state, or local government, the validity of
the remaining portions or provisions shall remain in full force and
effect.
9.7 GOVERNING LAW. This Agreement shall be construed and enforced according
to the laws of the State of California, without respect to its conflict
of law principles.
9.8 RELATIONSHIP OF THE PARTIES. The relationship of the parties is that of
independent contractors. No one party is the agent of the other and
neither party is authorized to act on behalf of the other party.
9.9 WAIVER. The waiver by either party of any default or breach of this
Agreement shall not constitute a waiver of any other or subsequent
default or breach. Except for actions for nonpayment or breach of
Nuance's proprietary rights in the Software, no action, regardless of
form, arising out of this Agreement may be brought by either party more
than one year after the cause of action has accrued.
9.11 U.S. GOVERNMENT RESTRICTED RIGHTS. The Software is provided with
restricted rights. Use, duplication, or disclosure by the U.S.
Government is subject to restrictions as set forth in subparagraph
(c)(1)(ii) of the Rights in Technical Data and Computer Software clause
at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the
Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19,
as applicable. Contractor/manufacturer is Nuance Communications, 1380
Willow Road, Menlo Park, CA 94025.
9.12 ENTIRE AGREEMENT. This Agreement contains all the agreements,
representations, and understandings of the parties hereto and
supersedes any previous understandings, commitments, or agreements,
oral or written, with respect to the subject matter of this
Agreement. It is expressly agreed that all terms of any Customer
purchase order or other ordering document shall be superseded by the
terms of this Agreement. This Agreement may not be modified or amended
except in a writing signed by a duly authorized representative of each
party; no other act, usage, or customer shall be deemed to amend or
modify this Agreement.
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The Effective Date of this Agreement shall be April 24, 2000
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
NUANCE COMMUNICATIONS INTRACO:
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Authorized Signature: /s/ PAUL SCOTT Authorized Signature: /s/ TONY NAWROCKI
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Name: Paul Scott Name: Tony Nawrocki
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Title: Sr. V.P. Sales Title: Voice ASP Business Unit Manager
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Area Manager: Kathy Patrick
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