<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-Q/A
AMENDMENT NO. 1
(Mark One)
( x ) QUARTERLY REPORT UNDER SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1996
OR
( ) TRANSITION REPORT UNDER SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ____________ to_______________
Commission file number 1-4324
------
ANDREA ELECTRONICS CORPORATION
------------------------------------
(Exact name of registrant as specified in its charter)
New York 11-0482020
--------------------- -------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
11-40 45th Road, Long Island City, New York 11101
------------------------------------------- -----------
(Address of principal executive offices) (Zip Code)
1-800-442-7787
--------------------------------------------------------------
(Registrant's telephone number, Including area code)
Indicate by check mark whether the registrant: (1) filed all reports
required to be filed by Section 13 or 15(d) of the Exchange Act during the
past 12 months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements
for the past 90 days.
Yes X No
---- ----
Indicate the number of shares outstanding of each of the issuer's
classes of common equity, as of the latest practicable date. 3,586,302.
Reason for Filing Form 10-Q/A (Amendment No. 1):
This Form 10-Q/A (Amendment No. 1) is being filed to refile Exhibit 10.1
originally filed with the Registrant's Report on Form 10-Q for the
quarterly period ended June 30, 1996 and for which confidential treatment
has been sought for certain portions thereof.
<PAGE> 2
PART II---OTHER INFORMATION
ITEM 6 - EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits.
Exhibit
Number Description
- ----- ---------
4.1* Securities Purchase Agreement, dated as of April 16, 1996,
relating to the sale of the Registrant's 15% Convertible
Subordinated Debentures due October 16, 1997 (with forms of Debenture
and Registration Rights Agreement attached)
10.1** Software License Bundling Agreement, dated as of March 29,
1996 by and between Voxware, Inc. and the Registrant
11* Computation of Fully Diluted Earnings Per Common Share
27* Financial Data Schedule
- --------------------
* Previously filed.
** The Registrant has requested confidential treatment of certain
portions of this Agreement.
Page 2<PAGE>
<PAGE> 3
SIGNATURES
In accordance with the requirements of Section 13 and 15(d) of the
Exchange Act, the Registrant caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
ANDREA ELECTRONICS CORPORATION
/s/ John N. Andrea Co-President October 9, 1996
------------------------
John N. Andrea
/s/ Patrick D. Pilch Executive Vice President, October 9, 1996
----------------------- and Chief Financial Officer
Patrick D. Pilch
Page 3<PAGE>
VOXWARE, INC. AND ANDREA ELECTRONICS CORPORATION
SOFTWARE LICENSE BUNDLING AGREEMENT
This Software License Bundling Agreement (the "Agreement") is entered
into as of March 29, 1996 by and between Voxware, Inc. ("Voxware"), a Delaware
corporation, with its principal place of business at 172 Tamarack Circle,
Skillman, NJ 08558, and Andrea Electronics Corporation ("Licensee"), a New York
corporation, with its principal place of business at 11-40 45th Road, Long
Island City, New York 11101.
1. Definitions.
a. A "Licensed Software Product" shall mean a software product set
forth in Attachment A, together with the documentation, if any, provided
therewith by Voxware expressly for distribution to end-users. "Licensed
Software Product" does not include any update, new version or enhancement of the
foregoing unless Voxware, in its sole discretion, adds such item to Attachment A
and the fees therefor to Attachment D. Voxware reserves the right to change,
modify or discontinue any Licensed Software Product at any time provided that
Voxware provides reasonable notice to Licensee.
b. A "Licensed Software Copy" shall mean an exact object code copy
of the software of a Licensed Software Product in machine readable form together
with an exact copy of the end-user documentation included in the definition of
such Licensed Software Product.
c. A "Licensee Product" shall mean one copy of one of the items
(and only the items) described in Attachment B hereto.
2. License Grant.
a. Subject to all the terms of this Agreement, Voxware grants to
Licensee a license to distribute Licensed Software Copies only as provided
herein, only bundled with (or for use only with) the Licensee Products, directly
to end-user, and to make Licensed Software Copies solely for purposes of such
licensing. However, Licensee may use subdistributors provided that any such
subdistributor shall be bound by an enforceable writing to all the limitations
and restrictions of this Agreement.
b. In order to effect the license granted hereunder, at Voxware's
expense, Voxware agrees to deliver to Licensee a golden master containing the
Licensed Software Product, together with one copy of any applicable printed
marketing and technical materials for the Licensed Software Products.
c. Notwithstanding anything else, as between Voxware and Licensee,
Voxware retains (i) all title to, and, except as expressly and unambiguously
licensed herein, all rights to the Licensed Software Products, all copies and
derivative works thereof (by whomever produced) and all related documentation
and materials, (ii) all of their service marks, trademarks, tradenames or any
other designations, and notwithstanding anything else herein, Licensee may not
use any name, mark or designation used by Voxware except for use in advertising
or marketing the Licensed Software Products in accordance with written approval
of Voxware (not to be unreasonably withheld); and (iii) all copyrights, patent
rights, trade secret rights and other proprietary rights in the Licensed
Software Products. Licensee will have no right to receive any source code with
respect to any Licensed Software Product.
3. End User Restrictions. No distribution or license of a
Licensed Software Copy by Licensee shall be made except pursuant to an
enforceable written agreement that is at least as protective of Voxware and its
rights as the form set forth in Attachment C.
Furthermore, if a Licensed Software Copy is to be provided to a
government agency or to anyone that may acquire it pursuant to a government
contract or with government funds, Licensee will make commercially reasonable
efforts to ensure that Voxware's right, title and interests in the Licensed
Software Product will be fully protected.
4. Price; Payment Terms; Reporting.
a. The license fees and royalties for the Licensed Software
Product are set forth in Attachment D hereto.
b. Unless otherwise set forth on Attachment D hereto or in Section
4.c. below, Voxware will invoice Licensee for the license fees due hereunder.
Payment is due within [Confidential Treatment Requested] days after the date of
the invoice.
c. No later than [Confidential Treatment Requested] following each
calendar [Confidential Treatment Requested], Licensee will deliver to Voxware a
report itemizing (i) the number of Licensed Software Copies shipped by or on
behalf of Licensee, or otherwise delivered to customers, during the previous
[Confidential Treatment Requested], and (ii) the royalties and/or license fees
(if any) due. Licensee shall remit payment in accordance with such report
within [Confidential Treatment Requested] of the end of each calendar
[Confidential Treatment Requested].
d. For at least [Confidential Treatment Requested] after the
relevant shipments, Licensee will retain records adequate for Voxware to verify
the accuracy of Licensee's reports and payments. Voxware shall have the right
to audit and copy such records upon not less than [Confidential Treatment
Requested] days' prior notice to Licensee, such audit to be performed by such
nationally recognized auditors as Voxware shall desire in its sole discretion.
In the event that any such audit shall reveal a deficiency in royalty payments,
then Licensee shall immediately pay to Voxware the total amount of said
deficiency plus interest at the rate set forth in Section 4.e. below. In the
event such deficiency is equal to [Confidential Treatment Requested] or more of
the royalties set forth in the most recent royalty report, or if Licensee is in
default hereunder, then Licensee shall also pay to Voxware the cost of such
audit. The provisions of this Section 4.d. shall survive expiration or
termination of this Agreement.
e. Interest shall accrue on all amounts past due hereunder,
including royalties, at the monthly rate of [Confidential Treatment Requested]
or at the maximum legal rate, whichever is less. Nothing contained in this
Section shall be deemed a waiver of the termination provisions of this
Agreement in the event of Licensee's default hereunder.
5. Support.
a. Voxware may, at such time (if any) as Voxware deems
appropriate, distribute Updates to Licensee. "Updates" may consist of those
corrections and modifications of Licensed Programs or portions thereof, in
machine readable binary image format, as Voxware deems appropriate and which
Voxware distributes generally to its other licensees. Licensee shall use
reasonable commercial efforts, upon receipt of any Update, to implement its use
such that it replaces entirely any previous version of the Licensed Software
Product or portion thereof to which the Update applies. Upon implementation, an
Update shall constitute a Licensed Software Product and shall be subject to all
the terms, conditions and limitations of this Agreement. If Licensee fails to
implement the use of any Update, Voxware will be under no obligation to furnish
any further support services under this Agreement, and if Voxware chooses to
honor Licensee's request for such services, any and all costs incurred to
correct errors in any previous version of Licensed Software Products will be
borne by Licensee.
b. Voxware will use all diligent efforts to correct any error in
Licensed Software Products identified by Licensee in writing. An error will be
deemed to exist if, and only if, the Licensed Software Product substantially
deviates from the description thereof in the pertinent user manual. Licensee,
however, acknowledges that Licensed Software Products are of such complexity
that it may be impossible or impracticable to effectuate the correction of an
error. If an error is, in the opinion of Voxware, not reasonably capable of
correction, Voxware will use all diligent efforts to advise Licensee on methods
of avoiding or overcoming the error. Voxware does not guarantee the results of
any services provided under this subparagraph or that all or any errors will be
corrected, overcome or avoided.
c. Voxware's obligation to provide support services hereunder is
conditioned upon the proper use of the Licensed Software Products by Licensee
and does not cover Licensed Software Products that have been (i) modified
without Voxware's approval, (ii) used contrary to Voxware's instructions or
(iii) serviced by anyone other than Voxware. Voxware will not be obligated to
furnish service hereunder if the need for such service arises from hardware
malfunction, user error, conditions correctable by reference to available
documentation or malfunction of programs not furnished by Voxware. If service
is requested by Licensee and furnished by Voxware as a result of any of the
causes specified in the preceding subparagraph, Licensee will be obligated to
pay for such service at Voxware's standard rates then in effect for time, travel
and materials.
d. Voxware has no obligation to provide any support services to or
answer any questions of the customers or licensees of Licensee. If Voxware
chooses to provide support services to such customers, Voxware may charge its
standard rates for such services.
6. Licensee Covenants and Representations.
Except as expressly and unambiguously provided herein and as conditions
of Licensee's license hereunder, Licensee represents, warrants and agrees:
a. not to modify, create any derivative work of, or include in any
other product other than the Licensee Products the Licensed Software Products or
Copies or any portion thereof.
b. not to delete, alter, add to or fail to reproduce in and on any
Licensed Software Copy and media the name of the Licensed Software Product and
any copyright or other notices appearing in or on any copy, media or master or
package materials provided by Voxware or which may be required by Voxware at any
time which are commercially reasonable.
c. not to reverse assemble, decompile, reverse engineer or
otherwise attempt to derive source code from the Licensed Software Products or
Copies or from any other information.
d. to use its commercially reasonable efforts to successfully
market, distribute and support (including installation, training and other
support) Licensed Software Copies on a continuing basis and to comply with good
business practices and all laws and regulations relevant to this Agreement or
the subject matter hereof. In its distribution efforts, Licensee will use the
then current names used by Voxware for the Licensed Software Products (but will
not represent or imply that it is Voxware or is a part of Voxware). Licensee
will not contest the use by or authorized by Voxware of any of Voxware's
trademark or application or registration therefor, whether during or after the
term of this Agreement.
e. to keep Voxware informed as to any problems encountered with
the Licensed Software Products and any resolutions arrived at for those
problems, and to communicate promptly to Voxware any and all modifications,
design changes or improvements of the Licensed Software Products suggested by
any customer, employee or agent. Licensee further agrees (i) that Voxware shall
have any and all right, title and interest in and to any such suggested
modifications, design changes or improvements of the Licensed Software Products,
without the payment of any additional consideration therefor either to Licensee,
or its employees, agents or customers and (ii) that it will fully cooperate with
Voxware.
f. not to market during the term hereof any product in competition
with any of the Licensed Software Products as described in Attachment B.
g. that neither this Agreement (or any term hereof) nor the
performance of or exercise of rights under this Agreement, is restricted by,
contrary to, in conflict with, ineffective under, requires registration or
approval or tax withholding under, or affects Voxware's or Licensee's
proprietary rights (or the duration thereof) under, or will require any
termination payment or compulsory licensing under, any law or regulation of any
organization, country, group of countries or political or governmental entity
located within any jurisdiction in which Licensee distributes the Licensed
Software Products.
h. to comply with all export laws and restrictions and regulations
of the Department of Commerce or other United States or foreign agency or
authority, and not to export, or allow the export or reexport of any Proprietary
Information or Licensed Software Product or Copy or any direct product thereof
in violation of any such restrictions, laws or regulations, or to Afghanistan,
the People's Republic of China or any Group Q, S, W, Y or Z country specified in
the then current Supplement No. 1 to Section 770 of the U.S. Export
Administration Regulations (or any successor supplement or regulations).
i. to, in addition to and without in any way limiting Licensee's
other obligations hereunder, use all methods to protect Voxware's rights with
respect to the Licensed Software, Licensed Software Copies and Proprietary
Information as it uses to protect its own or any third party's software,
confidential information or rights.
7. Confidentiality. Licensee and Voxware agree that the Licensed
Software Products and Copies, and all code, inventions, algorithms, know-how and
ideas they obtain from each other and all other non-public business and
technical information they obtain from each other are the confidential property
of the other party ("Proprietary Information"). Except as expressly and
unambiguously allowed herein, each party will hold in confidence and not use or
disclose any Proprietary Information that has been identified as proprietary and
shall similarly bind its employees. Each party's nondisclosure obligation shall
not apply to information it can document and is generally available to the
public (other than through breach of this Agreement).
8. Limited Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS
AGREEMENT OR OTHERWISE, LICENSOR WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT
MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE
OF THE LICENSE FEES PAID TO LICENSOR HEREUNDER DURING THE TWELVE MONTH PERIOD
PRIOR TO THE DATE THE CAUSE OF ACTION AROSE OR (II) FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES OR LOST DATA OR (III) FOR COST OF PROCUREMENT OF
SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES.
9. Relationship of Parties. The parties hereto expressly
understand and agree that Licensee is an independent contractor in the
performance of each and every part of this Agreement, is solely responsible for
all of its employees and agents and its labor costs and expenses arising in
connection therewith and is responsible for and will indemnify Voxware from any
and all claims, liabilities, damages, debts, settlements, costs, attorneys'
fees, expenses and liabilities of any type whatsoever that may arise on account
of Licensee's activities, or those of, its employees or agents (including,
without limitation, direct and indirect subdistributors), including without
limitation, providing unauthorized representations or warranties (or failing to
effectively disclaim all warranties and liabilities on behalf of Voxware) to its
customers or breaching any term, representation or warranty of this Agreement.
Voxware is in no manner associated with or otherwise connected with the actual
performance of this Agreement on the part of Licensee, nor with Licensee's
employment of other persons or incurring of other expenses. Except as expressly
provided herein, Voxware shall have no right to exercise any control whatsoever
over the activities or operations of Licensee.
10. Assignment. This Agreement and the rights hereunder are not
transferable or assignable by Licensee without the prior written consent of
Voxware. The license provided hereunder is not sublicensable except that
Licensee may provide licenses to end-users in accordance with the provisions of
this Agreement and may use subdistributors to do so only as provided in Section
2.a.
11. Term and Termination.
a. This Agreement shall have an initial term of 1 year commencing
on the date first set forth above and shall automatically renew for successive
terms of 1 year each unless one party provides written notice of non-renewal to
the other party at least [Confidential Treatment Requested] days prior to the
expiration of the then current term.
b. This Agreement may be terminated by a party for cause if the
other party materially breaches any material provision of this Agreement and
fails to cure such breach within [Confidential Treatment Requested] days in the
case of a failure to pay, and immediately in the case of a breach of Sections 6
or 7) of written notice describing the breach.
c. Licensee's obligation to pay any amounts due hereunder shall
survive any expiration or termination of this Agreement.
d. Neither party shall incur any liability whatsoever for any
damage, loss or expenses of any kind suffered or incurred by the other (or for
any compensation to the other) arising from or incident to any termination of
this Agreement by such party which complies with the terms of the Agreement
whether or not such party is aware of any such damage, loss or expenses.
e. Upon termination of this Agreement by either party or naturally
at the end of the term (i) all rights and licenses of Licensee and its
sublicenses and restrictions on Voxware hereunder shall terminate, except that
end-user licenses granted to customers in accordance with this Agreement will
remain in effect in accordance with their terms and Licensee shall be entitled
to sell remaining inventory over the next [Confidential Treatment Requested]
days; (ii) Licensee will immediately return to Voxware all Proprietary
Information, catalogues and literature in its possession, custody or control in
whichever form held (including all copies or embodiments thereof and will cease
using any trademarks, service marks and other designations of Voxware, and (iii)
except as provided herein or elsewhere in this Agreement, the provisions of this
Agreement shall remain in effect.
f. Termination is not the sole remedy under this Agreement and,
whether or not termination is effected, all other remedies will remain
available.
12. Warranty Disclaimer. EXCEPT FOR THE WARRANTY MADE DIRECTLY TO
END-USERS IN ATTACHMENT C (AS MODIFIED BY THE NEXT SENTENCE), LICENSOR MAKES NO
WARRANTIES TO ANY PERSON WITH RESPECT TO THE LICENSED SOFTWARE PRODUCTS OR ANY
SERVICES OR LICENSES AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT
LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT. LICENSEE WILL HANDLE AND BE RESPONSIBLE FOR ALL WARRANTY
RETURNS FROM ITS DIRECT AND INDIRECT CUSTOMERS AND WILL BE ENTITLED TO (AND ONLY
TO) CREDIT FOR AMOUNTS PAID TO LICENSOR FOR PROPERLY RETURNED LICENSED SOFTWARE
COPIES THAT ARE NOT REPLACED.
13. Voxware's Representations and Warranties.
Voxware represents and warrants that:
a. to the best of its knowledge, the manufacture, use, sale and/or
distribution of the Licensed Software Copies does not infringe any intellectual
property rights, of any third party enforceable under the laws of the United
States;
b. all corporate action necessary for the authorization and
delivery of this Agreement by Voxware and the performance of Voxware's
obligations hereunder has been taken; and
c. the entry into this Agreement by Voxware does not violate any
contract, agreement, or arrangement of any kind between Voxware and any third
party.
Voxware makes no warranties and representations as to the validity or scope of
the patents pertaining to the Licensed Software Product. Licensor makes no
agreement to bring or prosecute actions or suits against third parties for
patent, trademark, trade dress or copyright infringement or for unfair
competition or related causes of action.
14. Licensee's Representations and Warranties.
Licensee represents and warrants that:
a. all corporate action necessary for the authorization and
delivery of this Agreement by Licensee and the performance of Licensee's
obligations hereunder has been taken; and
b. the entry into this Agreement by Licensee does not violate any
contract, agreement, or arrangement of any kind between Licensee and any third
party.
15. General.
a. Amendment and Waiver-Except as otherwise expressly provided
herein, any provision of this Agreement may be amended and the observance of any
provision of this Agreement may be waived (either generally or in any particular
instance and either retroactively or prospectively) only with the written
consent of the parties. However, it is the intention of the parties that this
Agreement be controlling over additional or different terms of any purchase
order, confirmation, invoice or similar document, even if accepted in writing by
both parties, and that waivers and amendments shall be effective only if made by
agreements clearly understood by both parties to be an amendment or waiver.
b. Governing Law and Legal Actions - This Agreement shall be
governed by and construed under the laws of the State of New York and the United
States without regard to conflicts of laws provisions thereof and without regard
to the United Nations Convention on Contracts for the International Sale of
Goods. Unless otherwise elected by Voxware in writing for a particular instance
(which Voxware may do at its option), the sole jurisdiction and venue for
actions related to the subject matter hereof shall be the New York state and
U.S. federal courts having within their jurisdiction the location of Voxware's
principal place of business. Both parties consent to the jurisdiction of such
courts and agree that process may be served in the manner provided herein for
giving of notices or otherwise as allowed by New York state or U.S. federal
law. [Confidential Treatment Requested]
c. Headings - Headings and captions are for convenience only and
are not to be used in the interpretation of this Agreement.
d. Notices - Notices under this Agreement shall be sufficient only
if personally delivered, delivered by a commercial rapid delivery courier
service, fax followed by hard copy or mailed by certified or registered mail,
return receipt requested to a party at its addresses first set forth herein or
as amended by notice pursuant to this subsection. If not received sooner,
notice by mail shall be deemed received 5 days after deposit in the U.S. mails.
e. Basis of Bargain - Each party recognizes and agrees that the
warranty disclaimers and liability and remedy limitations in this Agreement are
material bargained for bases of this Agreement and that they have been taken
into account and reflected in determining the consideration to be given by each
party under this Agreement and in the decision by each party to enter into this
Agreement.
f. Entire Agreement - This Agreement supersedes all proposals,
oral or written, all negotiations, conversations, or discussions between or
among parties relating to the subject matter of this Agreement and all past
dealing or industry custom.
g. Severability - If any provision of this Agreement is held to be
illegal or unenforceable, that provision shall be limited or eliminated to the
minimum extent necessary so that this Agreement shall otherwise remain in full
force and effect and enforceable.
h. Attribution - Licensee agrees to display Voxware's logo and
trademarks in context appropriate places in the packaging and documentation of
the Licensee Products. Further, Licensee agrees to place notice of any
copyright and patent protection or other proprietary legend reasonably requested
by Voxware within the Licensee Products.
i. Advertising - Licensee agrees that Licensor may mention this
License Agreement in sales presentations. Licensor also may mention this
License Agreement in collateral materials consisting of sell sheets, brochures,
packaging and related marketing materials with the prior consent of Licensee,
which consent will not be unreasonably withheld. Licensor shall, in connection
with its activities under this paragraph 16, ensure that all trademarks and
copyrights pertaining to Licensee will be observed. Both parties may issue a
press release announcing the relationship and intended benefits and use of the
Licensed Programs within the Software Products defined herein.
j. Hot Links - Both parties agree to provide hot links on their
sites on the World Wide Web that link to the other party.
VOXWARE:
By/s/ Kenneth Traub
Name Kenneth Traub
TitleExecutive VP & CFO
Licensee:
By /s/ Patrick D. Pilch
Name Patrick D. Pilch
Title EVP & CFO
<PAGE>
Attachment A
LICENSED SOFTWARE PRODUCTS
TeleVox (Version 1.0)
<PAGE>
Attachment B
LICENSEE PRODUCTS
Licensee Products shall include:
Andrea Anti-Noise ANC - 100 Computer Headset
Andrea Anti-Noise ANC - 200 Computer Handset
Andrea Anti-Noise ANC - 500 Computer Headset
[Confidential Treatment Requested]
<PAGE>
Attachment C
END-USER LICENSE AGREEMENT
BY CLICKING ON THE ACCEPT BUTTON, YOU ARE CONSENTING TO BE BOUND BY THIS
AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE
DO NOT ACCEPT BUTTON AND THE INSTALLATION PROCESS WILL NOT CONTINUE.
LICENSE AGREEMENT FOR TELEVOX(TM)
Installation of TeleVox (the "Product") is contingent on your (hereinafter
"Recipient") agreement to the following terms:
1. GRANT OF LICENSE.
Subject to the terms, conditions and limitations below, Voxware, Inc.
("Voxware") grants to Recipient (and only Recipient) a limited, non-exclusive,
royalty-free license to use one copy of the executable code of the Product on a
single CPU residing on Recipient's premises. Recipient may only transfer the
Product (and all (and only all) of his rights in the Product) to an individual,
provided that (i) such transfer is not for commercial purposes, (ii) the
individual agrees to only be irrevocably bound by all the terms, limitations and
conditions set forth in this Agreement. All other rights are reserved to
Voxware. Recipient shall not rent, lease, sell, sublicense, assign, or
otherwise transfer the Product, including any accompanying printed materials.
Recipient may not reverse engineer, decompile or disassemble the Product.
Voxware shall retain title and all ownership rights to the Product.
2. PRODUCT MAINTENANCE.
Voxware is not obligated to provide maintenance or updates to Recipient for the
Product. However, if Voxware should provide any maintenance or updates it would
be covered by this Agreement.
3. DISCLAIMER OF WARRANTY.
Product is deemed accepted by Recipient. The PRODUCT is provided AS IS WITHOUT
WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
VOXWARE FURTHER DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE
PRODUCT AND DOCUMENTATION REMAINS WITH RECIPIENT. THIS DISCLAIMER OF WARRANTY
IS AN ESSENTIAL PART OF THIS AGREEMENT. BECAUSE SOME STATES/JURISDICTIONS DO
NOT ALLOW THE EXCLUSIONS OF AN IMPLIED WARRANTY, THIS DISCLAIMER MAY NOT APPLY
TO RECIPIENT AND RECIPIENT MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO
STATE OR BY JURISDICTION.
4. LIMITATION ON LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL
THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL VOXWARE OR ITS AGENTS BE LIABLE TO
YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF
GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER
COMMERCIAL DAMAGES OR LOSSES, EVEN IF VOXWARE SHALL HAVE BEEN INFORMED OF THE
POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. THIS
LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL
INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE,
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
5. U.S. GOVERNMENT RESTRICTED RIGHTS AND EXPORT RESTRICTIONS. The
Product is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by
the Government is subject to restrictions as set forth in subparagraph (l)(ii)
of The Rights in Technical Data and Computer Software clause of DFARS
252.227-7013 or subparagraphs (i) and (2) of the Commercial Computer
Software-Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is
Voxware, 172 Tamarack Circle, Skillman, New Jersey 08558. Recipient
acknowledges that the Product licensed hereunder is subject to the export
control laws and regulations of the U.S.A., and any amendments thereof.
Recipient confirms that with respect to the Product, it will not export or
re-export it, directly or indirectly, either to (i) any countries that are
subject to U.S.A. export restrictions (currently including, but not necessarily
limited to, Cuba, the Federal Republic of Yugoslavia (Serbia and Montenegro),
Haiti, Iran, Iraq, Libya, North Korea, South Africa (military and police
entities), and Syria); (ii) any end user who Recipient knows or has reason to
know will utilize them in the design, development or production of nuclear,
chemical or biological weapons; or (iii) any end user who has been prohibited
from participating in the U.S.A. transactions by any federal agency of the
U.S.A. government. Recipient further acknowledges that the Product may include
technical data subject to export and re-export restrictions imposed by U.S.A.
law.
6. GOVERNING LAW; [Confidential Treatment Requested].
This Agreement shall be governed by the laws of the State of New Jersey and
Recipient further consents to jurisdiction by the state and federal courts
sitting in the State of New Jersey. [Confidential Treatment Requested]
7. ENTIRE AGREEMENT.
This Agreement constitutes the complete and exclusive agreement between Voxware
and Recipient with respect to the subject matter hereof, and supersedes all
prior oral or written understandings, communications or agreements not
specifically incorporated herein. This Agreement may not be modified except in
a writing duly signed by an authorized representative of Voxware and Recipient.
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Attachment D
FEES
Nonrefundable Upfront fee: [Confidential Treatment Requested]
Royalty: [Confidential Treatment Requested]
Licensee shall pay Voxware's standard rate for any support services (other than
those specified in Section 5 of this Agreement) requested by Licensee and
provided by Voxware, as well as any travel, room, board or other expenses
incurred by Voxware in connection therewith.
All payments shall be made by Licensee as provided in Section 4 of the Agreement
unless otherwise agreed to in writing by Voxware.
