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OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF,
AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY
(CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS
BASED. IN ANY CASE, NUANCE’S AND ITS SUPPLIERS’ AND
LICENSORS’ ENTIRE LIABILITY UNDER ANY PROVISION OF THIS
AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM
OF THE FEES LICENSEE PAID FOR THIS LICENSE (IF ANY), WITH
THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY
THE NEGLIGENCE OF NUANCE TO THE EXTENT APPLICABLE LAW
PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION
OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS
EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE.
EXPORT CONTROL. Licensee agrees to comply with all applicable
export laws and restrictions and regulations of the United States of
America or foreign agencies or authorities, and not to export or re-export
the Software in violation of any such restrictions, laws or regulations, or
without all necessary approvals.
U.S. GOVERNMENT END USERS. This Section applies to all
acquisitions of the Software by or for the government of the United States
of America (“government”) or by any prime contractor or subcontractor (at
any tier) under any contract, grant, cooperative agreement, or other
activity with the 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 the federal law of the United States of
America, 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.
GENERAL. This Agreement constitutes the entire agreement between
the parties concerning the subject matter hereof. This Agreement may be
amended only by a writing signed by both parties. Except to the extent, if
any, applicable law requires otherwise, this Agreement shall be governed
by the laws of the Commonwealth of Massachusetts, United States of
America, excluding its conflict of law provisions. Unless otherwise agreed
in writing, all disputes relating to this Agreement (excepting any dispute
relating to Nuance’s or its Licensors’ or Suppliers’ intellectual property
rights) shall be subject to final and binding arbitration in Boston,
Massachusetts, United States of America under the auspices of a single
arbitrator pursuant to the commercial arbitration rules of the American
Arbitration Association then in effect, with the losing party paying all costs
of arbitration. This Agreement shall not be governed by the United
Nations Convention on Contracts for the International Sale of Goods. If
any provision in this Agreement should be held illegal or unenforceable
by a court having jurisdiction, such provision shall be modified to the
extent necessary to render it enforceable without losing its intent, or
severed from this Agreement if no such modification is possible, and the
other provisions of this Agreement shall remain in full force and effect.
The controlling language of this Agreement is English. The Licensee
agrees to bear any and all costs of interpreters if necessary. If Licensee
has received a translation into another language, it has been provided for
Licensee’s convenience only. A waiver by either party of any term or
condition of this Agreement or any breach thereof, in any one instance,
shall not waive such term or condition or any subsequent breach thereof.
The provisions of this Agreement that require or contemplate
performance after the expiration or termination of this Agreement shall be
enforceable notwithstanding such expiration or termination. Licensee may
not assign or otherwise transfer by operation of law or otherwise this
Agreement or any rights or obligations herein except to an acquirer of
Licensee’s business in the case of a merger or the sale of all or
substantially all of Licensee’s assets to such acquirer. This Agreement
shall be binding upon and shall inure to the benefit of the parties, their
successors and permitted assigns. The relationship between Nuance and
Licensee is that of independent contractors and neither Licensee nor its
agents shall have any authority to bind Nuance in any way. If any dispute
arises under this Agreement, the prevailing party shall be reimbursed by
the other party for any and all legal fees and costs associated therewith.
The headings to the sections of this Agreement are used for convenience
only and shall have no substantive meaning. Nuance may use Licensee’s
name in any customer reference list or in any press release issued by
Nuance regarding the licensing of the Software.
LICENSEE OUTSIDE THE U.S. Licensee is responsible for complying
with any local laws in its jurisdiction which might affect its right to import,
export or use the Software, and Licensee represents that it has complied
with any regulations or registration procedures required by applicable law
to make this license enforceable.
Copyright © 2010 Nuance Communications, Inc. All rights reserved.
Nuance and the Nuance logo are trademarks or registered trademarks of
Nuance Communications, Inc. or its affiliates in the United States and/or
other countries.
October 2009, Inc. End User License Agreement Revised Nuance Communications