Nuance® Click-Through
END USER LICENSE AGREEMENT
This End User License Agreement (the “Agreement”) consists of two distinct parts. Users of the specified Nuance Hosted Services (Dragon Professional Anywhere – including Dragon Professional Anywhere for law enforcement, Dragon Legal Anywhere Hosted Services) are subject to the Hosted Services Subscription Agreement. Users of on-premise versions of these products (Dragon Professional Anywhere, Dragon Professional Anywhere for law enforcement, Dragon Legal Anywhere) are subject instead to the Click-Through License Agreement for On-Premises Software set forth below. As referred to herein, “Agreement” shall refer to either the Hosted Services Subscription Agreement or the License Agreement for On-Premises Software, as applicable.
HOSTED SERVICES SUBSCRIPTION AGREEMENT
(for Dragon® Professional Anywhere – including Dragon Professional Anywhere for Law Enforcement, and Dragon Legal Anywhere® Hosted Services)
Revised October 2022
THIS CLICK-THROUGH HOSTED SERVICES SUBSCRIPTION AGREEMENT IS BETWEEN NUANCE COMMUNICATIONS, INC. FOR CUSTOMERS LOCATED IN THE UNITED STATES AND CANADA, OR NUANCE COMMUNICATIONS IRELAND LTD. FOR CUSTOMERS LOCATED ANYWHERE ELSE IN THE WORLD (IN EITHER CASE, REFERRED TO HEREIN AS "NUANCE"), AND YOU, THE ENTITY OR SOLE PROPRIETOR (THE "COMPANY" OR "END USER") THAT IS PURCHASING SUBSCRIPTION LICENSES TO NUANCE HOSTED SERVICES PURSUANT TO AN ORDER PLACED DIRECTLY WITH NUANCE OR WITH AN AUTHORIZED RESELLER (AN "ORDER").
THIS AGREEMENT DEFINES THE TERMS AND CONDITIONS APPLICABLE TO COMPANY'S ACCESS TO AND USE OF THE HOSTED SERVICES (DEFINED BELOW) THAT ARE IDENTIFIED IN ONE OR MORE ORDERS.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE HOSTED SERVICES, OR DOWNLOADING AND INSTALLING ANY ON-PREMISES COMPONENTS THEREOF. WHEN COMPANY DOWNLOADS AND INSTALLS ON-PREMISES SOFTWARE FOR ACCESS TO THE HOSTED SERVICES OR OTHERWISE USES OR ACCESSES SUCH HOSTED SERVICES, THIS AGREEMENT BECOMES A BINDING AND ENFORCEABLE CONTRACT BETWEEN NUANCE AND COMPANY FOR THE DURATION OF THE SUBSCRIPTION TERM DEFINED IN THE ORDER. AFTER COMPANY EXECUTES THE ORDER, COMPANY MAY NOT CANCEL OR TERMINATE THE ORDER, THIS AGREEMENT OR THE SUBSCRIPTION LICENSES DURING THE SUBSCRIPTION TERM EXCEPT FOR CAUSE AS AUTHORIZED BY THIS AGREEMENT.
IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT PROCEED TO ACCESS OR USE THE HOSTED SERVICES.
PLEASE NOTE THIS AGREEMENT GRANTS COMPANY NON-EXCLUSIVE RIGHTS TO USE CERTAIN HOSTED SERVICES AND RELATED SOFTWARE AND SERVICES BUT DOES NOT CONSTITUTE A SALE OR TRANSFER OF ANY SOFTWARE CODE. FOR CUSTOMERS WHO PROCURE THEIR LICENSES TO THE HOSTED SERVICES VIA MICROSOFT AZURE MARKETPLACE, THIS CLICK-THROUGH AGREEMENT DOES NOT GOVERN YOUR ACCESS AND USE OF THE HOSTED SERVICES. RATHER, PLEASE CHECK THE AZURE MARKETPLACE PORTAL FOR TERMS AND CONDITIONS THAT WILL BE PRESENTED TO YOU THERE.
General Terms and Conditions
This Agreement consists of the following terms and conditions (the "General Terms and Conditions") and all Exhibits attached to or incorporated by reference in this Agreement. Nuance and Company are each sometimes referred to in this Agreement individually as a "Party", and collectively as the "Parties."
For good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, Company and Nuance agree to the following terms and conditions with respect to the Services that Company acquires based on one or more Orders.
1. Definitions. The following terms used in this Agreement shall have the meanings set forth below:
1.1. "Affiliate" means any entity that is directly or indirectly controlled by, under common control with, or in control of a Party to this Agreement. For these purposes, an entity shall be treated as being controlled by another entity if: (i) that other entity has fifty percent (50%) or more of the voting power in such entity, or (ii) is able to direct such entity's affairs and/or to control the composition of its board of directors or equivalent body.
1.2. "Authorized Reseller" means the Nuance authorized reseller, if any, identified in the Order(s).
1.3. "Authorized User" means an individual who is authorized by Company to be a registered user of one of Company's Subscription Licenses on the terms permitted by this Agreement and who is a Company employee or officer, a partner in Company's business if legally organized as a partnership, or an independent contractor who provides services to Company. If Company is a sole proprietor, Company is also the Authorized User. Physicians and other healthcare professionals are excluded from the definition of Authorized Users.
1.4. "Data" means the speech data, audio files and/or text data input via the Hosted Services and Nuance Software and all data elements output via the Hosted Services and Nuance Software (including voice-to-text conversions, structured data in xml or other format), associated transcripts, whether in draft or final form, any information received from Company from any Order under this Agreement, or any other information received by Nuance from Company under this Agreement.
1.5. "Distributor" means an entity appointed by Nuance to act a distributor of the Hosted Services who has engaged the Authorized Reseller as a reseller of those Hosted Services. Resellers may contract directly with a Distributor or the Distributor's authorized third party provider for payment processing, order management and other administrative services and Resellers may subcontract the delivery of the End User Training Package to such third party providers.
1.6. "Documentation" means the administrative guide and user's guide provided by Nuance to Company to facilitate the use of the Nuance Software and Hosted Services.
1.7. “End User Training Package” means a defined training program that will be delivered to each Authorized User (for licenses procured through Authorized Reseller) based on Nuance's proprietary training curriculum and methodology that Authorized Reseller, Distributor and/or Distributor's third party servicer have been authorized to use.
1.8. "Hosted Service" means each Nuance hosted service as identified in an Order, to which Nuance provides access via the internet as a cloud-based software-as-a-service (SaaS) offering hosted by or on behalf of Nuance at one or more secure data centers, the location of which may be changed at Nuance's discretion. For customers located outside of North America, the data center may be hosted by Distributor if indicated in the Order; in such Distributor-hosted environments, Nuance’s hosting obligations set forth herein will apply instead to the applicable Distributor and Nuance will have no liability or responsibility for such obligations as it relates to hosting of the Hosted Service in a data center, including availability of the Hosted Service if caused by a failure related to such data center.
1.9. "NMS" and "NMS Account" mean, respectively, the hosted version of Nuance's proprietary Nuance Management Server software as described Section 3.7 ("NMS"), and the Subscription License management account that Company manages, or which Distributor and/or Authorized Reseller create, manage and maintain for Company, using NMS.
1.10. "Nuance Software" means the binary object code version of any Nuance proprietary thin client software or Web application that Nuance provides to Company and its Authorized Users that provides functionality on a supported device (as identified in the Documentation) for accessing and utilizing a Hosted Service. "Nuance Software" includes all corrections, modifications, enhancements, updates and upgrades to the Nuance Software, if any, that Nuance may provide to Company under this Agreement, and all related Documentation.
1.11. "Order" means an order that Company executes either directly with Nuance or through an Authorized Reseller, pursuant to which Company commits to purchasing the Subscription Licenses and other Services identified in the Order, subject to the terms of this Agreement. An Order includes any Statement of Work that is attached to or incorporated by reference in the Order.
1.12. "Professional Services" means any of the installation, project management, and/or consulting services that Nuance is contracted to provide to Company using its own personnel as indicated in an order. Professional Services as a defined term in this Agreement does not include the End User Training Package or other professional services or training services that Company purchases from an Authorized Reseller or Distributor.
1.13. "Services" means the Hosted Services, Training Services, and Professional Services Company acquires pursuant to an Order.
1.14. "Statement of Work" or "SOW" means any supplement to an Order that describes in further detail the End User Training Package (as defined in Section 2.3) or other Professional Services and/or Training Services identified in the Order.
1.15. "Subscription License" means the per-user license that Nuance grants to Company in this Agreement for each Subscription License identified in an Order. Each Subscription License allows Company to permit a single Authorized User to access and use a single Hosted Service and the Nuance Software associated with that Hosted Service, if any, during the Subscription Term pursuant to the terms of this Agreement.
1.16. "Subscription Start Date" means the first day of the Subscription Term, which for each Subscription License shall be either: (i); if the license is procured directly from Nuance, the date that Nuance provides the welcome letter and access codes necessary to use the Hosted Service; or (ii) if the license is procured via an Authorized Reseller, the date that Distributor or Authorized Reseller creates Company's NMS Account or otherwise enables use of the Subscription License, after which Authorized Reseller will send Company the welcome letter and access codes necessary to use the Hosted Service.
1.17. "Subscription Term" means the duration of each Subscription License which defines the period during which Company is authorized to use the Hosted Service covered by the Subscription License and the period during which Company is committed to paying for such Hosted Service. The Subscription Term may be identified in the Order as the Service Term, Order Term or by a similar term indicating the duration of the Subscription Licenses.
1.18. "Term" means the duration of this Agreement as defined in Section 6.1 of the General Terms and Conditions.
1.19. "Territory" means any country in which the Hosted Services are sold, either directly by Nuance or via an Authorized Reseller.
1.20. "Training Services" any of training services that Nuance is contracted to provide to Company using its own personnel as indicated in an Order. Training Services as a defined term in this Agreement does not include the End User Training Package or other professional services or training services that Company purchases from an Authorized Reseller or Distributor.
2. PROVISION OF SERVICES.
2.1. Hosted Services. Nuance or Distributor will provide Company with access to and use of the Hosted Services identified in an Order during the Subscription Term of each Subscription License, subject to the terms of this Agreement. Nuance or Distributor will host, operate and maintain the equipment and software comprising the Hosted Services.
2.2. Hosted Services Support. During the Subscription Term, Nuance or (for orders placed with Authorized Reseller) Authorized Reseller will provide Company with the telephone question and answer support for the Hosted Services as described in the Order, provided Company is current in its payment obligations. Authorized Reseller may subcontract the delivery of these support services to the Distributor or a Distributor affiliate, which will be disclosed in the Order, but will remain responsible to Company for the performance of these services.
2.3. Implementation; Training. Authorized Reseller may subcontract the delivery of the End User Training Package to the Distributor or Distributor's third party servicer, which will be disclosed in the Order, but Authorized Reseller will remain responsible to Company for the performance of these services. Company agrees to promptly schedule and to participate in the training provided as part of the End User Training Package. In addition, Company may purchase additional Professional Services and Training Services to be delivered by Nuance if custom implementation services are required. Unless otherwise indicated in the Order or Statement of Work, Professional Services and Training Services will be provided during Nuance's normal business hours. Company shall ensure that all Authorized Users attend the required training sessions and that all attendees are registered Authorized Users and have the skills and experience to participate in the training sessions. If End User Training Packages, Professional Services or Training Services are provided at facility other than the service provider's facilities, Company shall provide or arrange for the necessary equipment, information, and facilities that the service provider requires. Company may purchase additional professional services and training services to be delivered by the Authorized Reseller, Distributor or their agents. Nuance shall have no responsibility for any services not delivered directly by Nuance personnel.
2.4. Infrastructure and Services. Company is responsible for providing and/or modifying at its own expense all computer hardware, software, communications equipment, telecommunications services, internet connectivity, firewall functionality and related infrastructure that are necessary for Authorized Users to access and use the Hosted Services (collectively, the "Systems") as recommended in the Documentation. Company will provide Systems access and information to Authorized Reseller, Distributor and Nuance to the extent reasonably required by any of them in order to provide Services to Company. Company agrees to provide a reasonably skilled individual who shall serve as the Company's contact person in connection with the provision of services to Company, and shall maintain a knowledgeable employee or contractor who will assist with any issues that may arise during routine operation of the Hosted Services during the Subscription Term. Company acknowledges its responsibility to adequately test use of the Nuance Software and Hosted Services in a configuration that reasonably simulates Company's planned production environment before initial production use and before continued use following any change to such environment.
2.5. Data Back-up. Company acknowledges that the Hosted Services do not serve as a repository for Company's Data and it is Company's responsibility to store and regularly back-up its Data.
3. GRANT OF RIGHTS.
3.1. Subscription License Grant. Subject to the terms and conditions of this Agreement, Nuance grants to Company, and Company accepts the following licenses.
3.1.1.
Licenses. For each Subscription License to
a particular Hosted Service that Company purchases, as indicated in the
applicable Order, Nuance hereby grants Company, and Company accepts, a
revocable, non-exclusive, non-transferable, limited right to allow a single Authorized
User of Company:
(a) to remotely, via the Internet, access and use that Hosted Service during
the Subscription Term solely from within the Territory; provided such access
and use is: (i) in a manner commensurate with the intended use of the Hosted
Services (as prescribed by this Agreement, and the Documentation), and (ii)
solely for Company's internal business purposes;
(b) to use the Nuance Software during the Subscription Term solely within the
Territory for the sole and limited purpose of accessing and using that Hosted
Services in connection with the rights granted in subsection 3.1.1(a) and to
download and copy the Nuance Software to as many devices as reasonably
necessary to exercise the right granted in subsection 3.1.1(a), provided that
all such use and copying is in a manner commensurate with the intended use of
the Nuance Software as prescribed by this Agreement and the Documentation.
3.1.2. Restrictions. Company shall not allow any Authorized User to access and use the Hosted Services or the Nuance Software for the benefit of any third party. Company and its Authorized Users shall not (i) allow anyone other than the Authorized Users to access or use the Hosted Services or the Nuance Software, or any components thereof, or (ii) interfere with or disrupt the integrity or performance of the Hosted Services. Use of the Hosted Services to document protected health information (“PHI” as defined by the Health Insurance Portability and Accountability Act (“HIPAA”)) or other personally identifiable information as defined by applicable privacy laws outside of the United States, in connection with patient care is prohibited. Notwithstanding the foregoing, social workers, case workers, insurance workers, therapists, and other professionals who are Authorized Users may use the Hosted Services for the documentation of PHI; in such cases, for United States customers the Business Associate Addendum (“BAA”) linked herein below, or for all other customers, the Data Processing Agreement linked below, shall apply to such processing.
3.1.3. Reassignment of Subscription Licenses to Different Authorized Users. If an Authorized User ceases to be a Company employee or contractor or elects to cease using a Hosted Service for the remainder of the Subscription Term, that license may be reassigned; however, the procedure is different depending on whether user provisioning through the administrator console to NMS (“NMS Console”) is managed directly by Company or rather by Distributor.
(a) If Company’s Order is fulfilled by Nuance directly, Company’s own administrator shall be responsible for reassigning Authorized User’s Subscription License through the administrator console to NMS (“NMS Console”).
(b) If Company’s Order is fulfilled through an Authorized Reseller, Company may request Authorized Reseller to have Distributor reassign Authorized User's Subscription License to another Company employee or contractor. Each Subscription License may be reassigned once per 12-month period. Any request for an additional reassignment in a 12-month period will require Nuance's written consent, which it may grant in its sole discretion. In order to activate the reassignment, Authorized Reseller will arrange for Distributor or Distributor's agent to terminate the former Authorized User's user profile within NMS and will create a user profile for the new Authorized User. The former Authorized User's right to use the Applicable Software shall immediately terminate when the reassignment is effective and Company shall promptly terminate the former Authorized User's use of the Hosted Services and ensure that the Nuance Software is uninstalled from the former Authorized User's devices. The reassignment of a Subscription License pursuant to this Section will be considered a continuation of the original Subscription License and will not constitute an early termination or default, provided that Company continues to make timely payment of the Monthly License Fee without interruption.
3.2. Proprietary Rights. All rights not expressly granted to Company under this Agreement are reserved by Nuance and/or its licensors. Notwithstanding any use of the term "sale," "purchase" or other similar terms in this Agreement, Nuance and its licensors retain all right, title and interest in and to the Hosted Services and Nuance Software, and any derivative works thereof, including, but not limited to, all patent, copyright, trade secret, and trademark rights and other intellectual property rights associated with the Hosted Services and Nuance Software. In no event shall anything in this Agreement or in Nuance's conduct or course of dealing convey any license, by implication, estoppel or otherwise, under any patent, copyright, trademark or other intellectual property right not explicitly licensed.
3.3. Restrictions. Without limiting the generality of Section 3.2, Company will not itself, directly or indirectly, and will not permit Authorized Users, employees, contractors, or any third party to do any of the following: (i) access the Hosted Services with software or means other than as described in this Agreement, submit any automated or recorded requests to the Hosted Services except as otherwise provided in this Agreement, or interfere with or disrupt the integrity or performance of the Hosted Services; (ii) subject any Hosted Service or its infrastructure to security testing including penetration testing, network discovery, port and service identification, vulnerability scanning, password cracking, or remote access testing without the written approval of Nuance; (iii) modify, port, translate, or create derivative works of the Hosted Services, Nuance Software or Documentation; (iv) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, or algorithms of the Hosted Services or Nuance Software by any means (except to the extent permitted by mandatory laws); (v) sell, lease, license, sublicense, copy, assign, transfer, share, market, or distribute the Hosted Services, Nuance Software or Documentation, except as expressly permitted in this Agreement; (vi) grant any access to, or use of, the Nuance Software or Hosted Services through a service bureau, timesharing or application service provider basis; (vii) remove any proprietary notices, labels or marks from the Hosted Services, Nuance Software, or Documentation; (vii) release to a third party the results of any benchmark testing of the Hosted Services or Nuance Software; or (viii) defeat or circumvent any controls or limitations contained in or associated with the use of the Hosted Services or Nuance Software.
3.4. Compliance by Authorized Users. Company is responsible for each Authorized User's compliance with the terms of this Agreement and guarantees each Authorized User's full and faithful compliance with the terms of this Agreement. Company will be liable for any act or omission by an Authorized User that, if performed or omitted by Company, would be a breach of this Agreement. Except to the extent of Nuance's liability under Section 12, Company will, at its expense, defend any and all claims, actions, suits, or proceedings made or brought against Nuance by any Authorized User with respect to this Agreement (each, a "User Claim"), and pay any losses, claims, costs, expenses, damages, or liabilities (including reasonable attorneys' fees) incurred by Nuance arising from a User Claim. Company shall promptly notify Nuance upon learning of any actual or suspected unauthorized possession or use of any Software or Hosted Services supplied under this Agreement.
3.5. Notice of Unauthorized Use. Company shall promptly notify Nuance upon learning of any actual or suspected unauthorized possession or use of any Software or Hosted Services supplied under this Agreement.
3.6. Updates and Upgrades. From time to time, Nuance may provide Company and its Authorized Users with updated or upgraded versions of the Nuance Software, which Nuance may distribute directly or through the Authorized Reseller or Distributor. Company is required to implement and deploy such updates and upgrades to Authorized Users within 12 (twelve) months from Nuance's release date unless otherwise authorized by Nuance in writing. Following Nuance's general release of an upgrade that constitutes a new version of the Nuance Software (defined as an upgrade increment of 0.1 or higher), Nuance will continue to support the immediately preceding version of the Nuance Software for 12 (twelve) months from the date of Nuance's general release of the new version and at any point in time will support any other version released within the preceding 12 months. Upon installation of a Nuance Software update or upgrade, Company shall discontinue use of the previous version of such Nuance Software and Company will be licensed to use only the updated or upgraded version of the Nuance Software. From time to time, Nuance may enhance and modify a Hosted Service provided such changes do not significantly reduce its functionality.
3.7. NMS Account Management. Company's use and administration of the Subscription Licenses and the creation of user profiles for its Authorized Users is managed by Nuance's proprietary Nuance Management Server software ("NMS"), which is hosted by Nuance or Distributor. NMS constitutes part of the Hosted Services. If Company orders directly from Nuance, Company shall be responsible for managing NMS through its own NMS Console, to provision and de-provision users. If Company orders from an Authorized Reseller, then unless otherwise agreed between Company and Authorized Reseller or Distributor, Authorized Reseller or Distributor shall administer the NMS Console portion of NMS for Company, in accordance with a contract with Nuance, and Company consents to having Authorized Reseller, Distributor or their authorized agents provide such administrative services. In this event Company will provide reasonable cooperation and assistance to Authorized Reseller and Distributor in connection with their administration of Company's NMS Account, if applicable.
3.8. Audit. Company shall keep full, true and accurate records and accounts to support its use of the Hosted Services, as applicable, under this Agreement. Nuance, or a third party appointed by Nuance, will have the right, not more than once a year and upon reasonable notice, to conduct an audit of Company's systems and records to confirm compliance with the terms of this Agreement. Any audit will be performed during Company's normal business hours. If an audit reveals that Company's Hosted Services usage exceeds the usage authorized by this Agreement, Company shall pay Nuance for all such excess usage, based on Nuance's standard pricing in effect at the time of the audit. If such excess usage exceeds five percent (5%) of the authorized usage, Company shall also pay Nuance's reasonable costs of conducting the audit. Nothing in this Section 3.8 will limit any other remedy available to Nuance.
3.9. Dragon Anywhere Mobile – Additional Terms and Conditions. Dragon Anywhere Mobile, a distinct Hosted Service, may be sold separately. Each Authorized User’s use of Dragon Anywhere Mobile is subject to the terms and conditions of the End User License Agreement and Terms of Service, to which each Authorized User must agree to be bound, located at: https://www.nuance.com/dragon/dragon-anywhere/eula.html.
4. DISCLAIMER. COMPANY ACKNOWLEDGES THAT THE SOFTWARE AND HOSTED SERVICES MAY EMPLOY SPEECH RECOGNITION AND NATURAL LANGUAGE PROCESSING, WHICH ARE STATISTICAL PROCESSES, AND THAT INACCURACIES ARE INHERENT IN SUCH PROCESSES AND IN THE OUTPUT FROM NUANCE PRODUCTS AND SERVICES EMPLOYING SUCH PROCESSES. COMPANY FURTHER ACKNOWLEDGES THAT INACCURACIES AND ERRORS IN THE OUTPUT FROM NUANCE PRODUCTS AND SERVICES ARE INEVITABLE, AND AGREES THAT IT IS THE SOLE RESPONSIBILITY OF COMPANY, ITS AUTHORIZED USERS TO IDENTIFY AND CORRECT ANY INACCURACIES AND ERRORS BEFORE USING AND/OR RELYING ON THE RESULTS OF THE USE OF ANY SOFTWARE, HOSTED SERVICES AND/OR TRANSCRIPTION SERVICES PROVIDED UNDER THIS AGREEMENT. ACCORDINGLY, NUANCE SHALL BEAR NO LIABILITY IN CONNECTION WITH THE FOREGOING.
5. ORDERS, PAYMENTS – DIRECT WITH NUANCE.
5.1. Company acquires rights to use a Hosted Service by purchasing Subscription Licenses on the basis of one or more Orders. A separate Subscription License is required for each Authorized User for each different Hosted Service. Subscription Licenses on different Orders will have different Subscription Terms as identified in the Order. After the expiration of any applicable statutory right to cancellation (if any) without Company exercising such right, all fees due under the Agreement are non-cancelable.
5.2. Payments. If Company purchases any Services directly from Nuance pursuant to an Order placed with Nuance, Company shall pay all amounts due to Nuance under the Order in accordance with Nuance's standard payment and delivery terms and conditions which will apply to the extent they do not conflict with this Agreement. Except as otherwise set forth in the applicable Order or schedule, Company shall pay all invoices issued in the currency specified on the applicable invoice, either by mail or wire transfer, within thirty (30) days of the date of invoice in accordance with the remittance information contained on the invoice. Interest shall accrue at the rate of one and one half percent (1.5%) per month on any amounts past due. Nuance reserves the right to suspend Services to Company in the event any invoice is past due. Company must notify Nuance within thirty (30) days of the date of invoice if it disputes any amount contained in an invoice.
5.3. Taxes. Company shall pay all taxes, duties, import and export fees, and any other charges or assessments, except the withholding of income taxes, which are applicable to the performance of this Agreement, and shall reimburse Nuance for any encumbrance, fine, penalty, or other expense which Nuance may incur as a result of Company’s failure to pay any such taxes, duties, fees, charges, or assessments. For purposes of this Agreement, the term “taxes” shall include, but is not limited to any and all assessments and other governmental charges, impositions and liabilities, including taxes based upon or measured by gross receipts, income, profits, sales, use, value added, ad valorem, consumption, transfer, franchise and withholding taxes, except taxes imposed on the net income of Nuance, together with all interest, penalties and additions imposed with respect to such amounts. If any applicable law requires Company to withhold an amount from any payment to Nuance hereunder, Company shall effect such withholding, remit such amount to the appropriate taxing authority, and supply Nuance with the tax receipt evidencing the payment of such amount to the government within sixty (60) days of its receipt by Company. To the extent that an income tax convention between the country of Nuance and the country of Company permits, upon the filing of a proper application, for a reduction or elimination of such withholding tax, the Parties shall cooperate in the completion and filing of such application. Company shall provide to Nuance, and Nuance shall complete and return to Company, all applicable forms required by the governing tax authority in order to secure the reduction or elimination of withholding tax as authorized by the convention.
5.4. Company Purchase Orders. Company agrees to pay Nuance’s invoices without a purchase order reference. Company acknowledges and agrees that if it is Company’s standard practice to issue unsigned purchase orders, such purchase orders are valid and binding. Neither Party shall be subject to provisions of any pre-printed terms on or attached to purchase orders generated by Company, or any Company policies, regulations, rules, or the like, including those set forth in any Company-sponsored registration system, regardless if such requires affirmative acknowledgement from a Nuance representative.
5.5. Delivery and Shipment. Company agrees to accept electronic delivery of the Nuance Software at Nuance's option. The Hosted Services are hosted by Nuance or Distributor in its data center and delivered via the Internet.
6. ORDERS, PAYMENTS – THROUGH AUTHORIZED RESELLER. Authorized Reseller will invoice Company for the Hosted Services on a monthly or annual basis beginning on the Subscription Start Date, and will invoice other Services in accordance with the payment schedule in the Order. Company is responsible for paying all fees, expenses and related taxes and assessments indicated in the Order(s) to or as directed by the Authorized Reseller. After the expiration of any applicable statutory right to cancellation (if any) without Company exercising such right, all fees due under the Agreement are non-cancelable.
6.1. Assignment of Company's NMS Account or Orders; Payments to Assignees. Under certain circumstances, Company's NMS Account, its Orders and/or Company's payment obligations under one or more Orders may be transferred by Authorized Reseller to Distributor or to Nuance or may be reassigned by Distributor or Nuance to another Authorized Reseller. Such a transfer will not terminate the Orders, this Agreement or Company's Subscription Licenses. Company agrees that after receiving notice of such a transfer, Company will make all payments to the party to whom the transfer or assignment is made if directed to do so by Nuance or Distributor.
6.2. Delivery and Shipment. The delivery terms for Nuance-supplied Services that Company purchases from Authorized Reseller are between Company and Authorized Reseller, as stated in Company's agreement or End User Order with Authorized Reseller. Company agrees to accept electronic delivery of the Nuance Software at Nuance's option.
7. TERM; TERMINATION.
7.1. Term. This Agreement commences on the date the Order is executed by Company and accepted by either Nuance or Authorized Reseller ("Effective Date") and will continue in effect until the expiration or earlier termination of all Orders (the "Term"). An Order will be in effect from the Order date until the later of the expiration or early termination of the Subscription Licenses that Company acquires under the Order and the completion or early termination of any other Services ordered pursuant to the Order. Expiration or termination of an Order will terminate all Subscription Licenses that Company acquired under that Order.
7.2. Subscription Term and Renewal. The initial Subscription Term for a Hosted Service Subscription License is stated in the applicable Order. If Company is a government entity subject to a budget appropriation process, the Subscription Term shall expire after the initial Subscription Term unless the parties agree separately in writing to renew or extend it. If Company is not a government entity, unless the order is placed through Authorized Reseller where the order does not provide for automatic renewal, the Subscription Term will automatically renew for successive one-year periods following the initial Subscription Term unless either Company or Nuance gives notice of nonrenewal to the other party (and to the Authorized Reseller, if applicable) not less than 30 days before the expiration of the current term, at the renewal rate set forth in Company’s Order or, if no renewal rate is specified, at the contracted rate applicable under Company’s Order immediately before renewal.
7.3. Suspension of Hosted Services. Nuance may suspend Company's access to and use of applicable Hosted Services immediately if Nuance reasonably determines that (a) that Company or its Authorized Users have violated their confidentiality obligations, their license grant, or the intellectual property rights provisions and use restrictions in this Agreement; (b) Company fails to pay all past due amounts within 15 (fifteen) days of written demand and Company continues to owe Authorized Reseller, Distributor or Nuance undisputed amounts that are more than 25 (twenty-five) days past due; (c) Company, its employees, Authorized Users or vendors are causing disruptions to the Hosted Services Infrastructure or the delivery of the Hosted Services; (d) unlawful activities are occurring and such actions may result in liability on the part of Nuance; or (e) Nuance is prevented from providing the Hosted Services by any governmental order, direction of any government agency, or order of a court of competent jurisdiction. Nuance will use reasonable commercial efforts to promptly notify Company of such suspension promptly and will cooperate with Company to resolve the issue.
7.4. Termination for Cause. Either Party may terminate this Agreement, effective immediately upon delivery of written notice (or effective as of any later date identified in the termination notice), if the other Party commits a material breach of its obligations under this Agreement, and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching Party. Without limiting the foregoing, failure of Company to pay when due any sum owed to the Authorized Reseller under an Order, or due to Nuance or Distributor directly or as a result of Authorized Reseller's assignment of Orders and/or related accounts, is a material breach of this Agreement. Notwithstanding the foregoing, Nuance may terminate this Agreement immediately upon delivery of written notice to Company if (a) Company or any of Company's Authorized Users infringes Nuance's intellectual property rights, breaches the intellectual property rights and use restrictions provisions of this Agreement or commits, or permits any third party to commit, any breach of confidentiality obligations under Section 8 [Confidentiality]; or (b) if Company has a receiver appointed to handle its assets or affairs, admits that it is insolvent, files for bankruptcy, or is otherwise unable to pay its debts as they mature, or ceases to do business in the ordinary course.
7.5. Effect of Termination. Upon termination of this Agreement, all Subscription Licenses and/or other Services obtained by Company under any Order shall immediately terminate and Company and its Authorized Users shall immediately (a) cease use of the Hosted Services and applicable Nuance Software; (b) within ten days of the expiration or termination, return to Nuance or destroy all copies of the Nuance Software and certify in writing to Nuance that no copies have been retained; and (c) pay any outstanding amounts due under the Orders. The expiration or termination of this Agreement, the Order, or any Subscription License shall not affect Company's payment obligations under the Orders.
7.6. Early Termination Fee. If Nuance terminates this Agreement pursuant to Section 7.4, the balance of all fees that would have become due under the Subscription Licenses had they not been terminated will immediately become due and payable. Nuance, Distributor or Authorized Reseller will invoice Company for such fees and Company will pay such invoice within 30 (thirty) days.
7.7. Survival. Notwithstanding anything to the contrary in this Section 7, the provisions of Sections 1, 4, 5, 6.4 through-6.7, inclusive, 7, 8, 9, 10, 12, 13 and 14 of these General Terms and Conditions shall survive expiration or termination of this Agreement.
8. CONFIDENTIALITY.
8.1. Definition. Subject to the exceptions contained in this Section 8.1, "Confidential Information" shall mean (a) all information disclosed by a Party or its Affiliates (the "Disclosing Party"), in whatever tangible form or otherwise, to the other Party or its Affiliates (the "Receiving Party") that is clearly marked "confidential" or with some other proprietary notice, (b) all information disclosed orally or otherwise in intangible form by the Disclosing Party and designated as confidential or proprietary at the time of the disclosure, (c) the Nuance Software, Documentation, and information provided as part of any Services, and (d) Nuance pricing, Orders, Statements of Work, and proprietary nonpublic information relating to Nuance's products and business plans. Notwithstanding the above, information shall not be deemed Confidential Information to the extent that it: (i) was generally known and available in the public domain at the time it was disclosed or subsequently becomes generally known and available in the public domain through no fault of the Receiving Party; (ii) was rightfully known to the Receiving Party at the time of disclosure without any obligation of confidentiality; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information of the Disclosing Party; or (v) is protected health information or any other personally identifiable information, the protection of which is governed by the BAA or Data Processing Agreement, as applicable. The obligation not to use or disclose Confidential Information will remain in effect until one of these exceptions occurs.
8.2. Use and Obligations. The Receiving Party will only use the Disclosing Party's Confidential Information for the purpose of performing its obligations under this Agreement and for other purposes authorized in this Agreement (the "Authorized Purposes"). The Receiving Party shall protect the Disclosing Party's Confidential Information from unauthorized use, disclosure or publication by using the same degree of care, but no less than a reasonable degree of care, as the Receiving Party uses to protect its own Confidential Information of a like nature. A Receiving Party may disclose Confidential Information to its employees, agents and contractors, and to those of its Affiliates (the "Authorized Recipients"), only to the extent necessary for the Authorized Purposes. A Receiving Party shall be liable for any act or omission by its Authorized Recipients, which if performed or omitted by the Receiving Party, would be a breach of this Agreement. Each Party agrees that its Authorized Recipients shall be bound by the terms of an agreement that protects the Disclosing Party against unauthorized use or disclosure of Confidential Information that is at least as protective of the Disclosing Party's rights as this Agreement. No Confidential Information shall be disclosed to any person who does not have a need for such information.
8.3. Permitted Disclosure. Notwithstanding any other provision of this Agreement, disclosure of Confidential Information shall not be precluded if such disclosure (a) is in response to a valid order of a court or other governmental body, provided, however, that the responding Party shall first have given notice to the other Party hereto and shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued; (b) is otherwise required by law; or (c) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary.
8.4. Return of Confidential Information. Upon the written request of the Disclosing Party or upon the expiration or termination of this Agreement, whichever comes first The Receiving Party shall return to the Disclosing Party, or destroy, all Confidential Information of the Disclosing Party in tangible form and all electronic copies that can be feasibly destroyed. Any copies that cannot be feasibly destroyed shall be safeguarded against unauthorized access until destruction is feasible. In either case, the Receiving Party shall, upon request, promptly certify in writing that it has complied with the obligations of this Section 8.4. Notwithstanding the foregoing, each Party may retain a copy of the Confidential Information for legal purposes in electronic format in accordance with its corporate security and/or disaster recovery procedures.
9. DATA COLLECTION AND PRIVACY.
(a) Provision of Services: By registering for and using the Service, you acknowledge that the Nuance will process Data in connection with the provision of the Services and as further described herein, including without limitation, in Section 10 (Data) if applicable.
(b) Data Processing Agreement. Data may contain Personal Data (as defined in the DPA below), including potentially Sensitive Personal Data (as defined under the applicable data protection laws), relating to you and/or third parties. Knowing that the rights of other individuals may be involved in or referenced by your use of the Services, you explicitly acknowledge and accept that you are solely responsible for determining the lawful basis of processing the Data and obtaining all required consents, authorizations and permissions from such third parties to enable you to provide such information to us and to grant to us the rights set forth in this Agreement and the DPA. Except as otherwise set forth under Section 9(g) below, upon acceptance of these terms and accessing the Software and Services, the terms and conditions of the Data Processing Agreement located at https://www.nuance.com/about-us/terms-and-conditions/data-processing-terms.html (“DPA”) are incorporated herein by reference and shall govern the processing of Personal Data under these Terms.
(c) Sensitive Personal Data: By using the Services you may be submitting and providing data which may potentially contain Sensitive Personal Data which enjoy enhanced protection under data protection laws. You acknowledge that Nuance does not require nor request the disclosure of Sensitive Personal Data for the provision of Services. If you choose to submit or allow individuals to submit Sensitive Data, you acknowledge you do so on your own responsibility. You may not provide us with any data or other information containing personal data of third parties without fully complying with all applicable laws including but not limited to professional secrecy obligations and data privacy and protection laws.
(d) Professional Secrecy. If you are subject to secrecy laws or similar common law principles (such as attorney/client privilege among others) by reason of your profession, by accepting this Agreement, you accept that you are solely responsible to analyze whether the conditions set out in this Agreement, the DPA, and the way that we process the data that you provide us, are adequate to preserve your legal and deontological obligations regarding secrecy of communications where you would be acting in your professional role.
(e) Protected Health Information (“PHI”). The Service is a hosted service that transmits the end user’s Data via the internet. If you are a covered entity or a business associate of a covered entity, and your use of the Service includes PHI, Nuance’s Business Associate Agreement (“BAA”) at https://www.nuance.com/about-us/terms-and-conditions/business-associate-agreement.html, shall apply to Nuance’s use of the PHI provided by you hereunder. “Covered Entity”, “Business Associate” and “PHI” shall have the meaning as defined by the Health Insurance Portability and Accountability Act (“HIPAA”).
(f) Other Uses: Nuance uses your Contact Information for the fulfilment of your order. Where Nuance acts as a controller, business, or other similar designation go to our Privacy Statement at https://www.nuance.com/about-us/company-policies/privacy-policies.html for additional information about how Nuance handles your Personal Data. If at any time you do not wish to receive communications in the future, you have the right to manage your email preferences at https://connect.nuance.com/Subscription-Management..
(g) If you are purchasing through a Distributor or Reseller outside of the United States or Canada, the DPA found at the links set forth in section 9(b) does not apply; rather, you should have a DPA in place with your Distributor or Reseller which governs data shared under this Agreement.
10. DATA. [Note: This Section 10 only applies where the data center is hosted by Nuance; this Section 10 does not apply where the data center is hosted by Distributor.] Company authorizes Nuance to use the Data in accordance with this Section 10 or as otherwise set forth in this Agreement, and is solely responsible for obtaining all necessary consents under applicable laws and regulations in order to allow Nuance to do so. Data that consists of PHI or other personally identifiable information, if any, is also subject to the applicable privacy agreement identified in Section 9. Nuance may de-identify or anonymize the Data for its internal uses only, in accordance with 45 C.F.R. §164.514, or outside of the U.S. in accordance with applicable privacy laws. Nuance may use, compile, annotate and otherwise analyze the Data and de-identified data (including creating statistical and other models), to develop, train, tune, enhance and improve the speech recognition, natural language understanding and other components of its software and services. Nuance will own all intellectual property rights in the software and services it develops, improves and enhances using the Data and/or de-identified data. Nuance will keep all Data confidential and will only provide access to Data to Nuance employees and contractors working for Nuance under Nuance's direction pursuant to confidentiality agreements. Notwithstanding the foregoing, Nuance may disclose Data to the minimum extent necessary to meet legal or regulatory requirements, such as a court order or government agency request. Nuance will not use the names of individuals and companies to contact anyone for any reason. Notwithstanding anything in this Agreement to the contrary, for Data which has been de-identified or anonymized as provided above, Nuance will be permitted to retain, use and disclose such de-identified or anonymized data during and after termination of this Agreement, subject to the provisions of, and for the purposes permitted in, this Section 10 and the applicable BAA or other applicable privacy agreement between the parties.
11. LIMITED WARRANTIES.
11.1. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 11 [LIMITED WARRANTIES] ARE EXCLUSIVE AND THERE ARE NO OTHER WARRANTIES APPLICABLE TO THE SERVICES. THE NUANCE SOFTWARE AND HOSTED SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND. TO THE EXTENT PERMITTED BY LAW, NUANCE AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. NUANCE DOES NOT GUARANTEE THAT THE NUANCE SOFTWARE, EQUIPMENT OR SERVICES WILL YIELD ANY PARTICULAR BUSINESS OR FINANCIAL RESULT, OR THAT THE SERVICES WILL BE PERFORMED WITHOUT ERROR OR INTERRUPTION. NUANCE MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY THIRD PARTY SOFTWARE OR ANY THIRD PARTY EQUIPMENT.
11.2. IF COMPANY IS LOCATED IN AUSTRALIA:
(a) NUANCE GOODS AND SERVICES COME WITH GUARANTEES THAT CANNOT BE EXCLUDED UNDER THE AUSTRALIAN CONSUMER LAW. NOTHING IN THIS AGREEMENT PURPORTS TO MODIFY OR EXCLUDE THE CONDITIONS, WARRANTIES AND UNDERTAKINGS AND ANY OTHER LEGAL RIGHTS UNDER THE COMPETITION AND CONSUMER ACT 2010 (Cth) AND ANY OTHER LAW, EXCEPT AS PERMITTED BY THAT LAW.
(b) IF GOODS AND SERVICES PURCHASED ARE NOT OF A KIND ORDINARILY ACQUIRED FOR HOUSEHOLD USE OR CONSUMPTION THEN, SUBJECT TO LAW, NUANCE LIMITS ITS LIABILITY TO:
(i) FOR GOODS:
(A) REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS; OR
(B) THE COST OF REPLACING THE GOODS OR ACQUIRING EQUIVALENT GOODS; OR
(C) REPAIR OF THE GOODS; OR
(D) THE COST OF HAVING THE GOODS REPAIRED; AND
(ii) FOR SERVICES:
(A) SUPPLYING THE SERVICES AGAIN; OR
(B) PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN, UNLESS IT IS UNREASONABLE TO DO SO.
(c) GOODS (OTHER THAN SOFTWARE) PRESENTED FOR REPAIR FURTHER MAY BE REPLACED BY REFURBISHED GOODS OF THE SAME TYPE RATHER THAN BEING REPAIRED. REFURBISHED PARTS MAY BE USED TO REPAIR THE GOODS.
(d) WHERE NUANCE ELECTS TO REPAIR GOODS, THIS REPAIR MAY RESULT IN LOSS OF USER-GENERATED DATA.
(e) If the Australian Consumer Law (ACL) applies to this transaction then Nuance’s Australian Consumer Law Policy applies visit https://www.nuance.com/en-au/about-us/company-policies/legal-notices.html for information on this policy.
12. Limitation of Liability.
12.1. Application. Nothing in this Agreement shall be taken to exclude or limit Nuance's liability for fraud or fraudulent misrepresentation; for intentional or criminal misconduct; for death, personal injury or tangible property damage caused by its negligence in providing services at Company locations; or to the extent that such exclusion or limitation is not otherwise permitted by law.
12.2. Limitation of Liability. EXCEPT FOR NUANCE'S LIABILITY FOR INTELLECTUAL PROPERTY INDEMNIFICATION UNDER SECTION 12 AND NUANCE'S LIABILITY FOR BREACH OF THE BAA (WHICH IS ADDRESSED IN THE BAA), THE TOTAL AGGREGATE LIABILITY OF NUANCE, ITS DISTRIBUTORS AND AUTHORIZED RESELLERS, THEIR RESPECTIVE AFFILIATES, MEMBERS, OFFICERS, DIRECTORS, AGENTS, SUPPLIERS AND EMPLOYEES OF EACH OF THEM, TO COMPANY and its affiliates, and their respective officers, agents, customers, contractors and employees, for any and all claims arising under this Agreement or otherwise arising from the transactions contemplated herein, regardless of the form of action (including, but not limited to actions for breach of contract, negligence, strict liability, rescission and breach of warranty) will not exceed the aggregate fees actually paid to Nuance for the hosted services and other services delivered by Nuance under this Agreement during the one year preceding such claim. Nuance's limitation of liability is cumulative with all Company's payments during such one-year period being aggregated to determine satisfaction of the limit. The existence of more than one claim shall not enlarge or extend the limit.
12.3. No Consequential Damages. IN NO EVENT SHALL NUANCE, ITS DISTRIBUTORS AND AUTHORIZED RESELLLERS, THEIR RESPECTIVE AFFILIATES, AND THE MEMBERS, OFFICERS, DIRECTORS, AGENTS, SUPPLIERS AND EMPLOYEES OF EACH OF THEM, BE LIABLE TO COMPANY or its affiliates or their respective officers, agents, customers, contractors and employees, for loss of revenues, LOSS OF PROFITS, LOSS OF or loss of use of software or DATA, loss of customers, loss of anticipated savings, or for any incidental, special, indirect, consequential, or punitive damages, (including, but not limited to, loss of revenues, LOSS OF, or loss of use of, software or DATA, loss of customers, loss of anticipated savings and loss of profits) WHETHER SUCH ALLEGED DAMAGES ARE LABELED IN TORT, CONTRACT OR INDEMNITY, even if SUCH PARTY has been advised of the possibility of such damages.
12.4. Third Party Suppliers. Under no circumstances shall Nuance's third party suppliers of any component of the Nuance Software, Hosted Services or Nuance Equipment be responsible or liable to Company or its affiliates for any damages, direct or otherwise, arising under this Agreement or otherwise arising from the transactions contemplated herein. Such third party suppliers are third party beneficiaries of this Section 12.4.
12.5. Essential Basis. The disclaimers, exclusions, and limitations of liability set forth in this Agreement form an essential basis of the bargain between the Parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different. The disclaimers, exclusions, and limitations of liability set forth in this Agreement shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
13. INDEMNIFICATION.
13.1. By Nuance. Nuance shall, at its own expense, defend or, at its option, settle, any claim or action brought against Company by a third party during the Term to the extent it is based on a claim that the Nuance Software and/or Hosted Services directly infringes any patent, copyright or trademark of such third party issued by the country in which Company is located, or misappropriates a trade secret of such third party protected by the laws of the country in which Company is located. Nuance will indemnify Company against any losses, damages, and expenses that are attributable to such claim or action and are assessed against Company in a final judgment. Nuance shall have the foregoing obligations only if Company provides Nuance with: (a) a prompt written request to undertake the defense in such claim or action; (b) sole control and authority over the defense and settlement thereof; and (c) all available information, assistance, and authority reasonably necessary to settle and/or defend any such claim or action. Nuance shall not be responsible for any attorneys' fees or other expenses or costs that Company incurs before receipt of Company's request for indemnification or defense.
13.2. Limited Remedies. If the Nuance Software and/or Hosted Services becomes, or in the opinion of Nuance, is likely to become, the subject of an infringement claim or action, Nuance may, at its option and in its sole discretion, discharge its obligations under this Section 13 (Indemnification) by: (a) procuring, at no cost to Company, the right to continue using the Nuance Software and/or Hosted Services; (b) replacing or modifying the Nuance Software and/or Hosted Services to render it non-infringing, provided there is no material loss of functionality; or (c) if, in Nuance's reasonable opinion, neither (a) nor (b) above are commercially feasible, terminating Company's rights to use such Nuance Software and/or Hosted Services by written notice and refunding or causing the Authorized Reseller or Distributor to refund to Company any unused fees Company may have prepaid for the infringing Hosted Services for the terminated portion of the Subscription Term.
13.3. Exclusions. Nuance will have no obligation or liability under this Section 13 (Indemnification) for any claim or action regarding any claim resulting from any of the following: (i) modifications to the Nuance Software and/or Hosted Services by a party other than Nuance; (ii) the combination or use of the Nuance Software and/or Hosted Services with other products, processes, or materials if the Nuance Software and/or Hosted Services itself would not infringe; (iii) where Company continues allegedly infringing activities after being provided with modifications from Nuance that would have avoided the alleged infringement; (iv) any development, modification, or customization of the Nuance Software and/or Hosted Services by Nuance based on specifications or requirements supplied by Company; (v) components of software programs that are not Nuance Software and were not provided by Nuance; or (vi) Company's use of the Nuance Software and/or Hosted Services in a manner that is not in compliance with the terms of this Agreement.
13.4. Exclusive Obligation. This Section 13 (Indemnification) states the sole obligation and exclusive liability of Nuance (express, implied, statutory or otherwise), and the sole remedy of Company, for any third-party claims or actions alleging infringement of any intellectual property rights or other proprietary rights.
14. Miscellaneous.
14.1. Assignment. Company shall not assign or otherwise transfer its rights, obligations or remedies under this Agreement, in whole or in part, to a third party unless such assignment is approved in writing by Nuance. Notwithstanding the foregoing, Company may assign or transfer its rights hereunder in their entirety pursuant to: a merger, sale of substantially all of its assets, or consolidation with a third party; provided (a) Company provides Nuance and Authorized Reseller with prompt written notice of such sale, merger or consolidation, (b) the assignee/transferee agrees to be bound by all terms and conditions set forth by this Agreement and in each Order issued in connection with this Agreement, (c) the number of Authorized Users remains the same after the assignment or transfer unless Company's successor purchases additional Subscription Licenses, and (d) Company's NMS Account and all Orders for all Subscription Licenses covered by this Agreement are assigned to and assumed by the same assignee/transferee. Except as authorized by this Section, any purported transfer or assignment of this Agreement by Company shall be void and without effect. Nuance shall be free to assign or otherwise transfer its rights and obligations under this Agreement, in whole or in part, to a third party who agrees in writing to assume and perform Nuance's obligations hereunder, provided that Nuance provides Company with prompt written notice of the assignment.
14.2. Force Majeure. Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, acts of God, governmental acts or orders or restrictions, acts of terrorism, war, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party and not due to its fault or negligence.
14.3. Notices. All notices hereunder shall be sent by the notifying Party, in writing, to the other Party at its address set forth above (or such other address as they may communicate to the notifying Party in writing), to the attention of the General Counsel. Notices shall be deemed delivered on the date of personal delivery or on the date of delivery confirmed by the records of the carrier or courier, or if there is no delivery confirmation available from the courier, then five days after posting when sent by certified United States mail (return receipt requested), or one day after posting when sent by reputable private overnight courier (e.g., DHL, Federal Express, etc.).
14.4. Relationship Between the Parties. In all matters relating to this Agreement, Company and Nuance shall act as independent contractors. Neither Party will represent that it has any authority to assume or create any obligation, expressed or implied, on behalf of the other Party, or to represent the other Party as agent, employee, or in any other capacity, unless such authority is granted by this Agreement. Nuance shall at all times have the sole right and obligation to supervise, manage, contract, direct, procure, perform, and/or cause to be performed all work that is necessary for delivery of the Hosted Services.
14.5. Authorized Reseller and Distributor. Authorized Reseller and Distributor, and their agents and affiliates, are independent legal entities separate from Nuance. Nuance is not responsible for the actions, omissions, statements or recommendations of Authorized Reseller, Distributor or their agents and affiliates, or any obligations that Authorized Reseller, Distributor or their agents or affiliates have to Company.
14.6. Governing Law. This Agreement shall be governed by the laws of the country indicated below, and the Parties hereby submit to the jurisdiction of the courts located in the jurisdiction below and the applicable service of process. The official text of this Agreement or any notices required hereby shall be in English. In Canada, Province of Quebec for all contracts drafted in English, both Parties agree to write this document in English. Les Party ont convenu de rédiger le présent document en langue anglaise.
|
Country of incorporation of Company |
Governing Law |
Jurisdiction |
|
United States, Taiwan, South Korea, Japan, Canada or Mexico |
Laws of Commonwealth of Massachusetts, U.S. |
Federal or state courts of Massachusetts |
|
Colombia |
Laws of Colombia |
Courts of Colombia |
|
Hong Kong or China |
Laws of Hong Kong Special Administrative Region |
Courts of Hong Kong Special Administrative Region |
|
India or Singapore |
Singaporean law |
Courts of Singapore |
|
Australia or New Zealand |
Laws of New South Wales |
Courts of New South Wales, Australia |
|
Rest of world |
Irish law |
Dublin, Ireland |
14.7. Injunctive Relief. Each Party recognizes and acknowledges that any use or disclosure of Confidential Information by the receiving Party in a manner inconsistent with the provisions of this Agreement may cause irreparable damage to the disclosing Party for which remedies other than injunctive relief may be inadequate, and the receiving Party agrees that in any request by the disclosing Party to a court of competent jurisdiction for injunctive or other equitable relief seeking to restrain such use or disclosure, the receiving Party will not maintain that such remedy is not appropriate under the circumstances. The Parties further agree that in the event such equitable relief is granted, they will not object to courts in other jurisdictions granting provisional remedies enforcing such judgments.
14.8. Partial Invalidity; Waiver. If any provision of this Agreement or the application thereof to any Party or circumstances shall be declared void, illegal or unenforceable, the remainder of this Agreement shall be valid and enforceable to the extent permitted by applicable law. In such event the Parties shall use reasonable efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by applicable law, achieves the purposes intended under the invalid or unenforceable provision. Any deviation by either Party from the terms and conditions required under applicable laws, rules and regulations shall not be considered a breach of this Agreement. No failure of either Party to exercise any power or right given either Party hereunder or to insist upon strict compliance by either Party with its obligations hereunder, and no custom or practice of the Party at variance with the terms hereof shall constitute a waiver of either Party's right to demand exact compliance with the terms of this Agreement.
14.9. Publicity. The Parties may mutually agree upon a press release announcing this Agreement to be issued at a mutually agreed upon time. Either Party may refer to statements made in such press release in future marketing materials and advertisements. Nuance may include Company's name in Nuance's customer list, and may identify Company as its customer in its sales presentations, marketing materials, advertising, promotion and similar public disclosures. Any additional statements regarding the relationship of the Parties hereunder shall require mutual written consent, except that either Party may refer to the existence of this Agreement or the relationship of the Parties in connection with a press release related to regulatory filings.
14.10. Order of Precedence. In the event of conflicting terms in the following documents, the order of precedence shall be as follows: (i) Business Associate Addendum or Data Processing Agreement (as applicable), (ii) the General Terms and Conditions, and (iii) each Order.
14.11. Third Party Beneficiaries. Except as expressly stated otherwise in this Agreement, nothing in this Agreement is intended to create any rights in, or confer any benefits upon, any person or entity other than the Parties to this Agreement. Company acknowledges and agrees that Nuance is a third party beneficiary of Company's Orders and has the right to directly enforce Company's payment obligations under such Orders in addition to the right to require the Authorized Reseller or Distributor to collect against such Orders and to assign such Orders and related accounts receivable to Nuance.
14.12. Export Controls. Company will not directly or indirectly export or re-export any technical information or software that is subject to or acquired in connection with this Agreement.
14.13. Anti-Corruption Laws. By signing this Agreement, Company confirms it has knowledge and understanding of the Foreign Corrupt Practices Act of the United States of America ("FCPA") and has not violated that law in connection with the transactions associated with this Agreement. Company shall comply with all applicable laws or regulations in all countries in which Company conducts business. The fact that in some countries certain laws prohibiting particular conduct are not enforced in practice or that violation is not subject to public criticism or censure, will not excuse noncompliance with those laws.
14.14. [For U.S. customers only.] Government Use. If the Hosted Services are being acquired by or on behalf of the U.S. Government or by a U.S Government prime contractor or subcontractor (at any tier), the Hosted Services and related documentation are “commercial items” as that term is defined at 48 C.F.R. 2.101. The Hosted Services and documentation consist of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end-users acquire the Hosted Services and documentation with only those rights set forth herein.
14.15. [For U.S. customers only.] HHS Audit Right. If Company is subject to US laws, then until the expiration of four (4) years after the furnishing of Services under this Agreement, Nuance shall make available, upon written request of the Secretary of the Department of Health and Human Services ("Secretary"), or upon request of the Comptroller General, or any of their duly authorized representatives, this Agreement and the books, documents and records of Nuance that are necessary to certify the nature and extent of the costs for which Company seeks reimbursement. Nuance further agrees that if Nuance carries out any of the duties of this Agreement through a subcontract with a value or cost of ten thousand dollars ($10,000) or more over a twelve (12) month period with a related organization, such subcontract shall contain a clause to the effect that until the expiration of four (4) years after furnishing services pursuant to such subcontract, the related organization shall make available to the Secretary or the Comptroller General, as the case may be, or any of their duly authorized representatives, the subcontract, and such books and documents and records of such organization that are necessary to verify the nature and extent of such costs.
14.16. Children’s Online Privacy Protection Act (COPPA). The Parties acknowledge the Hosted Service is not an online site, service, or product that is directed at children under the age of 13 as defined under COPPA, and the Parties agree not to send each other any data that would render either the Hosted Service or this Agreement subject to COPPA.
14.17. [For U.S. customers only.] CCPA Compliance. Nuance and Company shall each comply with all applicable provisions of the California Consumer Privacy Act (“CCPA”). Each party shall, upon the other’s reasonable written request, cooperate in good faith to enter into additional and modified terms to address any amendments to the CCPA or otherwise ensure the parties’ compliance. For the purposes of this Section 14.16, the terms “Personal Information”, “Consumer”, “Processing”, “Service Provider”, “Business Purpose”, “Commercial Purpose”, “Sell” and “Third Party” shall have the meaning given to those terms in the CCPA. To the extent that Nuance receives from Company any Personal Information of any Consumer for Processing on behalf of Company pursuant to this Agreement: (a) Nuance shall be a Service Provider to Company under the CCPA; (b) Nuance shall not retain, use or disclose the Personal Information for any purpose other than for the specific purpose of performing services under this Agreement or as otherwise permitted by the CCPA, including for any Business Purpose; (c) Nuance shall not retain, use or disclose the Personal Information for a Commercial Purpose other than providing the services under this Agreement, and (d) Nuance shall not Sell the Personal Information. If Nuance authorizes any subcontractor, service provider or third party to use, store or process Personal Information of Company, Nuance shall enter into contractual provisions so that such subcontractor, service provider or third party is a Service Provider and not a Third Party under CCPA.
14.18. Entire Agreement; Headings; Counterparts. This Agreement and the exhibits and other attachments to this Agreement that are incorporated by reference herein, including but not limited to the BAA if applicable, constitute the entire agreement and understanding between the Parties with respect to the subject matter hereof, and supersede all prior agreements, arrangements and undertakings between the Parties. No addition to or modification of any provision of this Agreement shall be binding upon the Parties unless made by a written instrument signed by a duly authorized representative of each Party that purports to amend or modify this Agreement. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which shall be deemed to be an original instrument.
CLICK-THROUGH LICENSE AGREEMENT FOR ON-PREMISES SOFTWARE
DRAGON PROFESSIONAL ANYWHERE, DRAGON PROFESSIONAL Anywhere for lAW eNFORCEMENT, DRAGON LEGAL ANYWHERE (When Deployed On-Premises)
Your acceptance of the terms of this Agreement is required before your use of the accompanying Software.
This Agreement is between you (“Licensee” or “you”) and Nuance Communications, Inc. for customers located in the United States and Canada, or Nuance Communications Ireland Ltd. for customers located anywhere else in the world (in either case, referred to herein as "Nuance"). By installing or otherwise using the software accompanying this Agreement, including any accompanying documentation (the “Software”), you agree to be bound by the terms and conditions of this Agreement. The term “Software” shall also include any modified versions, updates, or upgrades of the Software licensed to you by Nuance.
If you download, install, copy, or otherwise use a modified version, update, or upgrade of the Software, then your license terminates as to the previous version of the Software, and you have a license only to such modified version, update, or upgrade of the Software under the terms of this Agreement. If you do not agree to the terms and conditions of this Agreement, you may not install or use the Software and must promptly return the Software and all accompanying materials to the entity from which you obtained this Software. THIS IS A LICENSE TO USE SOFTWARE AND NOT A SALE OF SOFTWARE CODE.
This document is Licensee’s proof of a non-exclusive license to exercise the rights granted herein and must be retained by Licensee. If you or your company have signed a separate software license agreement with Nuance or with any of Nuance’s authorized resellers, and that separate software license agreement is intended to govern the use of Software, the terms of that separate license agreement shall control over any conflicting terms in this End User License Agreement.
1. SOFTWARE ; MAINTENANCE AND SUPPORT
a. Grant of License
Subject to the restrictions contained herein, for each user license indicated in an order, Nuance hereby grants Licensee, and Licensee hereby accepts, a limited, revocable, non-exclusive, non-transferable right, solely during the term of an applicable order unless a perpetual license, to allow a single user to use the Software, provided such use is in a manner commensurate with the intended use of the Software.
b. Maintenance and Support. Maintenance and Support services, which include incident escalation, access to a web support portal, and software updates, are available in connection with certain volume purchases. Maintenance and Support Services may be optional or mandatory depending on specific commercial terms as required by Nuance, and in all cases require an additional charge. If separately purchased, additional applicable maintenance and support terms and conditions shall be provided upon written request and if provided shall be considered as having been added to this Section 1.b. If Licensee has purchased a perpetual license to Software, Maintenance and Support services are available for optional purchase annually but are not included automatically along with the license granted herein. If the license is term-based, then Maintenance and Support services are included in the subscription fee for the duration of the applicable subscription term.
2. Nuance’s Rights
Licensee acknowledges that the Software consists of proprietary information and products of Nuance (or other third parties) protected under applicable patent, copyright, or trade secret laws. Licensee further acknowledges and agrees that all right, title and interest in and to the Software, and each component thereof, are and shall remain with Nuance. This Agreement does not convey to Licensee an interest in or to the Software but only a limited right to use same, revocable in accordance with the terms of this Agreement.
3. Term
This License is effective upon Licensee’s first installation and/or use of the Software and shall continue until terminated or expired. If Licensee purchases a license under a subscription license model, the License is effective so long as Licensee keeps the subscription paid up and in force, or until the license expires or is otherwise terminated in accordance with the following. Nuance may terminate this Agreement upon written notice following material breach by Licensee of any terms hereof. For term-based subscription licenses, the license is not terminable by Licensee during the applicable term except for Nuance’s uncured material breach hereof following Nuance’s receipt of written notice of same from Licensee and an opportunity to cure the purported breach. Upon expiration of the order(s) for term-based subscription license (which shall expire at the end of the applicable Order Term) or termination of the Agreement by either Party as permitted by this Section, all rights granted to Licensee with respect to the Software shall terminate and Licensee shall immediately cease using the Software and return all copies of the same to Nuance. The rights and obligations under this Section shall survive expiration or termination of this Agreement and/or the applicable Order.
4. Other Restrictions
(a) Licensee may not sub-license, rent, lease, or otherwise commercialize the Software in any manner.
(b) Licensee may not reverse engineer, decompile, modify, create derivative works of, or disassemble the Software. You may not use any feature of the Software to create works such as custom vocabularies or language models for sale to third parties or re-sale by third parties, and/or to commercialize in any other manner. The foregoing restriction is applicable to you except to the extent that such restriction is expressly prohibited by applicable law.
(c) Licensee may not modify, make additions to or otherwise adapt the Software, or use the Software in conjunction with other software or data packages, for the purpose of enabling or adding features or functionality from another version or edition of the Software or development tool associated with the Software.
(d) Licensee may only use the Software in accordance with and in the manner intended by its accompanying documentation.
(e) Licensee may not publish the results of benchmarking the Software against competitive software, except to the extent that the foregoing restriction is expressly prohibited by applicable law.
(f) Licensee may not transfer or assign this license or the Software to any third party without the prior express written consent of Nuance. Any changes to, modifications to, or derivative works (except as set forth above) of the Software shall become the exclusive property of Nuance except to the extent that the foregoing restriction is expressly prohibited by applicable law.
5. Proprietary Rights
Title, ownership rights, and intellectual property rights in the Software shall remain in Nuance and/or its suppliers or licensors. Licensee acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit, or interfere in any manner with Nuance’s or its suppliers’ or licensors’ ownership of or rights with respect to the Software. The Software is protected by copyright and other intellectual property laws and by international treaties.
6. Disclaimer of Warranty
6.1 THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION THE WARRANTIES THAT IT IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE, OR NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS BORNE BY LICENSEE. SHOULD THE SOFTWARE PROVE DEFECTIVE IN ANY RESPECT LICENSEE, AND NOT NUANCE OR ITS SUPPLIERS OR RESELLERS, ASSUMES THE ENTIRE COST OF ANY SERVICE OR REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
6.2 IN AUSTRALIA:
(a) OUR GOODS AND SERVICES COME WITH GUARANTEES THAT CANNOT BE EXCLUDED UNDER THE AUSTRALIAN CONSUMER LAW. NOTHING IN THIS AGREEMENT PURPORTS TO MODIFY OR EXCLUDE THE CONDITIONS, WARRANTIES AND UNDERTAKINGS AND ANY OTHER LEGAL RIGHTS UNDER THE COMPETITION AND CONSUMER ACT 2010 (Cth) AND ANY OTHER LAW, EXCEPT AS PERMITTED BY THAT LAW.
(b) IF GOODS AND SERVICES PURCHASED ARE NOT OF A KIND ORDINARILY ACQUIRED FOR HOUSEHOLD USE OR CONSUMPTION THEN, SUBJECT TO LAW, NUANCE LIMITS ITS LIABILITY TO:
(i) FOR GOODS:
(A) REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS; OR
(B) THE COST OF REPLACING THE GOODS OR ACQUIRING EQUIVALENT GOODS; OR
(C) REPAIR OF THE GOODS; OR
(D) THE COST OF HAVING THE GOODS REPAIRED; AND
(ii) FOR SERVICES:
(A) SUPPLYING THE SERVICES AGAIN; OR
(B) PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN,
UNLESS IT IS UNREASONABLE TO DO SO.
(c) GOODS (OTHER THAN SOFTWARE) PRESENTED FOR REPAIR FURTHER MAY BE REPLACED BY REFURBISHED GOODS OF THE SAME TYPE RATHER THAN BEING REPAIRED. REFURBISHED PARTS MAY BE USED TO REPAIR THE GOODS.
(d)WHERE NUANCE ELECTS TO REPAIR GOODS, THIS REPAIR MAY RESULT IN LOSS OF USER-GENERATED DATA.
(e) If the Australian Consumer Law (ACL) applies to this transaction then Nuance’s Australian Consumer Law Policy applies. Visit https://www.nuance.com/en-au/about-us/company-policies/legal-notices.html for information on this policy.
7. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL NUANCE OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL,INCIDENTAL, ECONOMIC OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING THE SOFTWARE, DOCUMENTATION, OR MICROPHONE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE SHALL NUANCE’S LIABILITY EXCEED THE AMOUNT PAID BY LICENSEE FOR THE SOFTWARE. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES (SUCH AS AUSTRALIA IN CERTAIN CIRCUMSTANCES PURSUANT TO THE AUSTRALIAN CONSUMER LAW), SO IN THOSE STATES OR JURISDICTIONS, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. AS A CONDITION OF YOUR USE OF THE SOFTWARE PACKAGE, YOU AGREE TO INDEMNIFY NUANCE FOR ALL CLAIMS RELATING TO YOUR USE, REPRODUCTION AND/OR RECEIPT OF CONTENT THROUGH USE OF THE SOFTWARE. LICENSEE UNDERSTANDS THAT SPEECH RECOGNITION IS A STATISTICAL PROCESS AND THAT RECOGNITION ERRORS ARE INHERENT IN THE PROCESS. LICENSEE ACKNOWLEDGES THAT IT IS LICENSEE’S RESPONSIBILITY TO CORRECT RECOGNITION ERRORS BEFORE USING THE RESULTS OF THE RECOGNITION.
8. Dragon Anywhere Mobile – Additional Terms and Conditions.
Dragon Anywhere Mobile, a distinct Hosted Service, may be sold separately. Licensee’s use of Dragon Anywhere Mobile is subject to the terms and conditions of the End User License Agreement and Terms of Service, to which each Licensee must agree to be bound, located at: https://www.nuance.com/dragon/dragon-anywhere/eula.html
9. Assignment
Licensee shall not sublicense, rent, lease or lend the Software to another party.
10. Remedies
If Licensee breaches this Agreement, upon written notice from Nuance Licensee shall promptly return the Software to Nuance.
11. Governing Law
11.1 This Agreement shall be governed by the laws of the country indicated below, and the Parties hereby submit to the jurisdiction of the courts located in the jurisdiction below and the applicable service of process. The official text of this Agreement or any notices required hereby shall be in English. In Canada, Province of Quebec for all contracts drafted in English, both Parties agree to write this document in English. Les Party ont convenu de rédiger le présent document en langue anglaise.
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Country of incorporation of Company |
Governing Law |
Jurisdiction |
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United States, Taiwan, South Korea, Japan, Canada or Mexico |
Laws of Commonwealth of Massachusetts, U.S. |
Federal or state courts of Massachusetts |
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Colombia |
Laws of Colombia |
Courts of Colombia |
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Hong Kong or China |
Laws of Hong Kong Special Administrative Region |
Courts of Hong Kong Special Administrative Region |
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India or Singapore |
Singaporean law |
Courts of Singapore |
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Australia or New Zealand |
Laws of New South Wales |
Courts of New South Wales, Australia |
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Rest of world |
Irish law |
Dublin, Ireland |
11.2 Notwithstanding the foregoing provisions of this Section, a breach of this Agreement by Licensee may cause Nuance irrevocable harm, for which damages as a remedy may be inadequate. Licensee agrees that Nuance is entitled to injunctive and/or other equitable relief, from any court of competent jurisdiction in addition to any other remedies afforded by law. Licensee agrees that in the event such equitable relief is granted, Licensee will not: (i) object that such remedy is inappropriate under the circumstances; nor (ii) object to courts in other jurisdictions granting provisional remedies enforcing such judgments.
12. Severability
Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.
13. No Waiver
The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
14. U.S. Government
This Section applies to all acquisitions of the Software by or for the U.S. Federal government or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement, or other activity with the Federal government. By accepting delivery of the Software, the government hereby agrees that this software qualifies as “commercial” computer software within the meaning of the acquisition regulation(s) applicable to the procurement. The terms and conditions of this Agreement shall pertain to the government’s use and disclosure of the Software and shall supersede any conflicting contractual terms or conditions. If this Agreement fails to meet the government’s needs or is inconsistent in any respect with Federal law, the government agrees to return the Software, unused, to Nuance. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights—Use, duplication, and disclosure by the 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 (Oct. 1988).” In the event any of the above referenced agency regulations is amended or replaced, the equivalent successor regulation shall apply instead.
15. Licensee expressly agrees that Nuance is not a licensed health care provider and that the Software is not a substitute for independent medical decision making by a qualified health care practitioner. Licensee is solely responsible for its own conduct with respect to patient care and any reliance upon the Software shall not diminish Licensee's responsibility for patient care that Licensee may be involved or associated with. NUANCE SHALL BEAR NO LIABILITY IN CONNECTION WITH THE FOREGOING.
16. Processing of Data; Personal Data
(a) By registering for and using the Software, you acknowledge that the Software will process Data. Data may contain Personal Data (as defined in the Data Processing Agreement), including potentially Sensitive Personal Data (as defined under the applicable data protection laws), relating to you and/or third parties. Knowing that the rights of other individuals may be involved in or referenced by your use of the Software, you explicitly acknowledge and accept that you are solely responsible for determining the lawful basis of processing the Data and obtaining all required consents, authorizations and permissions from such third parties to enable you to provide such information to us and to grant to us the rights set forth in this Agreement and the DPA (referenced below). Except as otherwise set forth under Section 16(g), upon acceptance of these terms and accessing the Software, the terms and conditions of the Data Processing Agreement located at https://www.nuance.com/about-us/terms-and-conditions/data-processing-terms.html (the “DPA”) are incorporated herein by reference and shall govern the processing of Personal Data under this Agreement.
(b) Sensitive Personal Data: By using the Software you may be submitting and providing data which may potentially contain Sensitive Personal Data which enjoy enhanced protection under data protection laws. You acknowledge that Nuance does not require nor request the disclosure of Sensitive Personal Data for the provision of Software. If you choose to submit or allow individuals to submit Sensitive Data, you acknowledge you do so on your own responsibility. You may not provide us with any data or other information containing personal data of third parties without fully complying with all applicable laws, including but not limited to, professional secrecy obligations and data privacy and protection laws.
(c) Professional Secrecy: If you are subject to secrecy laws or similar common law principles (such as attorney/client privilege among others) by reason of your profession, by accepting this Agreement, you accept that you are solely responsible to analyze whether the conditions set out in this Agreement, the DPA, and the way that we process the data that you provide us, are adequate to preserve your legal and deontological obligations regarding secrecy of communications where you would be acting in your professional role.
(d) Protected Health Information (“PHI”). The Software processes data; however, since this is on-premises Software in the vast majority of circumstances Nuance does not have access to such data. Nevertheless, Nuance may have access to PHI in certain limited circumstances, including without limitation, in providing support for the Software to Authorized Users. If you are a covered entity or a business associate of a covered entity, and your use of the Software includes PHI, Nuance’s Business Associate Agreement (“BAA”) at https://www.nuance.com/about-us/terms-and-conditions/business-associate-agreement.html is incorporated herein by reference and shall apply to Nuance’s use of the PHI provided by you hereunder. “Covered entity”, “business associate” and “PHI” each shall have the meaning as defined by the Health Insurance Portability and Accountability Act (“HIPAA”).
(e) Usage Data: The Software has a feature by which you may enable Nuance to collect anonymized usage data on how you use the Software (the “Usage Data”). This feature utilizes the Google Analytics service to collect the Usage Data (information on the Google Analytics service and how it collects and processes data is located at https://www.google.com/policies/privacy/partners/). By turning on the feature to provide Nuance with Usage Data, you acknowledge, consent and agree that Nuance or third parties acting under the direction of Nuance pursuant to confidentiality agreements, may collect and use the Usage Data as provided herein. The parties agree that Usage Data shall be used by Nuance solely to tune, enhance and improve the Software and other Nuance services and products.
(f) Other Uses: Nuance uses your contact information for the fulfilment of your order. Where Nuance acts as a controller, business or other similar designation, go to our Privacy Statement at https://www.nuance.com/about-us/company-policies/privacy-policies.html for additional information about how Nuance handles your Personal Data. If at any time you do not wish to receive communications in the future, you have the right to manage your email preferences at https://connect.nuance.com/Subscription-Management.
(g) If you are purchasing through a Distributor or Authorized Reseller outside of the United States or Canada, the DPA found at the link set forth in section 16(a) does not apply; rather you should have a DPA in place with your Distributor or Authorized Reseller that governs the processing of data hereunder.
18. Export Restrictions
The Software is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Software.