exv10w36






Exhibit 10.36


Portions of this exhibit were omitted and filed separately with the Secretary of the
Securities and Exchange Commission (the “Commission”) pursuant to an application for confidential
treatment filed with the Commission pursuant to Rule 24b-2 under the Securities Exchange Act of
1934. Such portions are marked by a series of asterisks.




LICENSE AGREEMENT

defined hereinafter as “Agreement”




by and between



Nuance Communications, Inc.

One Wayside Road

Burlington, MA 01803



Hereinafter referred to as “Nuance” and / or “Licensor”



and



MedQuist Inc.

1000 Bishops Gate Blvd, #300

Mount Laurel, NJ 08054



Hereinafter referred to as “MedQuist” and / or “Licensee”









 



2


	 	 	 

	Effective Date:

	 	November 10, 2009
	 
	 	 
	Licensor Corporate Name:
	 	 
	 
	 	 
	Nuance Communications, Inc.
	 	 
	One Wayside Road
	 	 
	Burlington, MA 01803
	 	 
	 
	 	 
	Tel:

	 	(781) 565-5134
	Fax:

	 	+(781) 565-5562
	 
	 	 
	Nuance Notices Address:

	 	Nuance Communications, Inc.
	 

	 	One Wayside Road
	 

	 	Burlington, MA 01803
	Attention:

	 	Legal Department
	Phone:

	 	781-565-5000
	Fax:

	 	781-565-5562
	 
	 	 
	Contract Owner: -
	 	 
	 
	 	 
	Contract Manager (if different):
	 	 
	 
	 	 
	Licensee Corporate Name:
	 	 
	 
	 	 
	MedQuist Inc.
	 	 
	1000 Bishops Gate Blvd, #300
	 	 
	Mount Laurel, NJ 08054
	 	 
	 
	 	 
	Tel:

	 	(856) 206-4000
	Fax:

	 	(856) 206-4215
	 
	 	 
	Contract Owner:

	 	Emmy Weber
	 
	 	 
	Contract Manager (if different):
	 	 












 



3

DEFINITIONS



The following terms shall have the meanings ascribed to them herein whenever they are used in this
Agreement, unless clearly indicated otherwise by the context.




1.1  “Affiliates” shall mean any corporation, limited liability company, partnership or other legal
entity, present or future, which is owned or controlled or owns or controls or is under common
control with, directly or indirectly, a Party to this Agreement, as the case may be, as long
as such ownership or control exists and where control means ownership or control of more than
fifty (50) percent of voting stock in the case of a stock issuing entity, or more than fifty
(50) percent of voting control of a non-stock issuing entity.



1.2  “Agreement” shall mean this license agreement, including as an integral part, the Addenda, all duly
initialed, signed or otherwise accepted by the parties, and attached hereto or included by
reference, and any modifications and/or changes made from time to time in accordance with the
provisions hereof.



1.3  “ConText” shall mean a specific speech recognition software module, which can be added to the
Development Software, containing a specialized class of language resources optimized for a
specific user or application group (e.g. radiology)



1.4  “Designated Application” shall mean the applications made by Licensee specified in Addendum B.



1.5  “Development Software” shall mean the Licensor’s Software Development Kit, specified in Addendum A,
including any ConText as per Addendum A , to be integrated into the Designated Application in
accordance with the Documentation, as provided by Licensor for the “Development Software”. The
items specified in Addendum A (i) and (ii) have been delivered to Licensee as of the Effective
Date. Development Software includes any Updates or Upgrades, including any Updates and
Upgrades to the ConTexts that Licensor makes available to all its customers as part of its
Maintenance services obligations, if applicable, as per Addendum E.



1.6  “Documentation” shall mean those visually readable materials, developed by or for Licensor and made
available to Licensee for use in connection with the Development Software. Documentation
includes operating instructions, input information and format specifications.



1.7  “Effective Date” shall mean the date noted above in this Agreement.



1.8  “End-User” shall mean any customer of Licensee and/or of Third Parties, who will only be granted
the right to use the Run-Time Software in connection with the Designated Application.



1.9  “Run-Time Software” shall mean an object code / executable copy of software derived from the
Development Software (or any portion thereof) which is integrated into the Designated
Application.



1.10  “MedQuist” and “Licensee” shall mean MedQuist Inc.



1.11  “Nuance” and “Licensor” shall mean Nuance Communications, Inc.



1.12  “Royalty Report” shall mean the monthly report submitted by Licensee as per Section 3.6.



1.13  “Third Parties” shall mean system houses, value added resellers and other such entities engaged in
doing business with Licensee, and who acquire the Designated Application, incorporating the
Run-Time Software into their applications, for marketing and distribution purposes to
End-Users.



1.14  “Territory” shall mean the country or countries as specified in Addendum C.










 



4



ARTICLE 2: GRANT OF SOFTWARE LICENSE




2.1  Subject to the terms and conditions hereof, Licensor hereby grants to Licensee and Licensee accepts
from Licensor, a non-exclusive, non-transferable license for the Territory to:



2.1.1  use the Development Software solely in connection with Licensee’s development,
distribution and provision of technical support, for Designated Application
incorporating Run-Time Software;



2.1.2  make Run-Time Software copies based on the Development Software solely for
incorporating into the Designated Application;



2.1.3  distribute and sublicense to End-Users directly or through Third Parties, copies of the
Run-Time Software incorporated into the Designated Application, and Documentation in
the Territory as it applies to Run-Time Software with ConText for Radiology and
Run-Time Software with ConText for Multi-Med, as per Addendum C 1 (a) and (b)
respectively, provided, that such sub-licenses to Third Parties shall be in compliance
with the provisions set forth in Section 2.2 hereof.



2.1.4  use copies of the Run-Time Software for the sole purposes of promotion,
demonstration, sales, implementation, testing, customer support in a non-production
environment on systems operated by Licensee.



2.2  All licensing and distributions by Third Parties as referred to in Section 2.1.3 shall be
pursuant to written agreements with Licensee that comply with the applicable terms and
conditions hereof, including appropriate methods of calculation, reporting and payment of
applicable royalties.



2.3  Without prejudice to the provisions of this Article 2, it is furthermore expressly agreed that the
only right granted by Licensee to Third Parties is the right to distribute the Designated
Application incorporating the Run-Time Software.



2.4  Licensor’s language models and ConTexts will continue to be exclusively owned by Licensor and shall
be used and distributed by Licensee only with the Run-Time Software based on the Development
Software of Licensor.



2.5  Open Source Software: Licensee shall not perform any actions with regard to the Development
Software or Run-Time Software that would require the Development Software or any derivative
work thereof to be licensed under Open License Terms. These actions include but are not
limited to:



(i)  combining the Development Software or Run-Time Software or a derivative work thereof with
Open Source Software, by means of incorporation or linking or otherwise; or



(ii)  using Open Source Software to create a derivative work of the Development Software
or Run-Time Software.




“Open Source Software” shall mean any open source software that if linked, combined or used
with the Development Software or Run-Time Software would create a risk, or have the “viral”
effect, of requiring the disclosure or licensure of the Development Software or Run-Time
Software as open source under the GNU General Public License or under the terms of any other
comparable viral open source license.



2.6  Development Software as per Addendum A, has specifications which are unique to Licensee, which is
different from Licensor’s generally commercially available version of SpeechMagic SDK
software. During the Term, Licensee may request Licensor to provide Development and Consulting
Services, to be paid as per the rates in Addendum C and subject to a mutually agreed Statement
of Work (SOW) , to enhance, modify or update the Development Software to match the
specifications of Licensor’s generally commercially available version of SpeechMagic SDK
software.












 



5



ARTICLE 3:  Minimum Volume and Payment Commitment




3.1  Minimum Volume Commitment: In consideration for the additional rights granted to Licensee herein,
including the additional license grant as per Article 2 for the inclusion of ConText for
Multi-Med into Development Software (as per Addendum A(iii)), and the Term, as per Article 7,
Licensee makes the following minimum volume commitments (“MVC”):



3.1.1  Eighty-Five percent (85%) of all licenses of Front-End Speech Recognition software (such as
the Designated Application or similar) granted by Licensee to all its customers within
the Territory, will incorporate royalty bearing licenses of Run-Time Software as per
this Agreement (“Front-End MVC”).



3.1.2  Eighty-Five percent (85%) of total Lines (as defined below), generated by Licensee in
Licensee’s business of providing Transcription Services and by Licensee in its business
of providing Service Bureau Services, that utilize any Back-End Speech Recognition
software (such as Licensee’s DocQment Enterprise Platform or similar), will be
generated using SpeechMagic, the software product defined as the “Licensed Product”, as
per that certain licensing agreement (the “DEP Licensing Agreement”) dated May 22,
2000, as amended between MedQuist Inc. and Philips Speech Recognition Systems Gmbh
(“Back-End MVC”).



3.1.3  The following terms are ascribed the corresponding meaning:



(a)  “Speech Recognition” means conversion of speech to text via a software program.



(b)  “Front-End Speech Recognition” means the Speech Recognition process which takes
place on the client computer rather than the server.



(c)  “Back-End Speech Recognition” means any Speech Recognition process which takes place
on a server rather than on a client computer.



(d)  “Line” means *******.



(e)  “Services Bureau Services” means the licensing of remote access to Licensee’s
software and hardware systems to enable Speech Recognition, with or without
manual transcription or editing services.



(f)  “Transcription Services” are the medical transcription and/or editing services
provided by Licensee to convert Dictation into Transcript. “Dictation” is the
dictated audio by a physician, recorded on digital media as a computer digital
audio file for conversion from voice into text or data and “Transcript” means
the document or computer file resulting from the conversion of Dictation into
text or data.



3.2  Minimum Payment:



3.2.1  During the Term, as set forth in Section 4.1.2, Licensee will pay Licensor a minimum amount
equal to (i) the per license fees and the Maintenance Fees derived from the Front-End
MVC plus (ii) the Back-End MVC fees, (collectively, the “Minimum Payment”) calculated
as follows:




Total number of licenses of Front-End Speech Recognition software licensed by
Licensee in its business X (multiplied by) applicable per license fee and
Maintenance Fee as per Addendum C of this Agreement X (multiplied by) Eighty-Five
percent (85%)




Plus









 



6



Total number of Lines generated by Licensee, in Licensee’s business of providing
Transcription Services and by Licensee in its business of providing Service Bureau
Services, that utilize Back-End Speech Recognition software X (multiplied by) per
ASR Line rate set forth in the DEP Licensing Agreement X (multiplied by) Eighty-Five
percent (85%).



3.3  Licensee acknowledges that Licensor is entering into this Agreement and has granted certain
additional rights to Licensee as inducement and in reliance of the MVC and the associated
Minimum Payment by Licensee, and that but for the agreement by Licensee to the MVC and the
associated Minimum Payment obligation pursuant to Section 3.2, Licensor would not have granted
such additional rights and entered into this Agreement. In the event that Licensee does not
meet the MVC, Licensor’s sole remedy shall be the payment of the Minimum Payment by Licensee
as set forth in Section 3.2. A breach of the Minimum Payment obligation by Licensee would be a
substantial and material breach of this Agreement.



3.4  The parties further agree and clarify that:




(a) Back-End MVC and the associated Minimum Payment shall not include Acquired Volume.
“Acquired Volume” means those Lines and associated fees generated by an entity that is
acquired by Licensee after the Effective Date, which entity is engaged in the business of
providing medical transcription and editing services through the utilization of Back-End
Speech Recognition software for customers that such acquired entity has written agreements
with as of the date of its acquisition by Licensee. Acquired Volume shall include any Lines
added subsequent to the acquisition of such entity, for such customers with whom the
acquired entity has written agreements with as of the date of its acquisition by Licensee.




(b) Back-End MVC and the associated Minimum Payment shall always include (but not be limited
to) Existing Volume, irrespective of the (i) dictation/transcription platform used by
Licensee (i.e. Licensee’s DocQment Enterprise Platform or any other) to provide its services
or (ii) the Back-End Speech Recognition software utilized by Licensee to provide its
services. “Existing Volume” means the Lines, and the associated fees, generated by Licensee,
in Licensee’s business of providing Transcription Services and by Licensee in its business
of providing Service Bureau Services, that utilize Back-End Speech Recognition software that
are attributable to all Licensee customers as of the Effective Date.




(c) Back-End MVC and the associated Minimum Payment shall always include (but not be limited
to) New Volume, irrespective of (i) dictation/transcription platform used by Licensee (i.e.
Licensee’s DocQment Enterprise Platform) to provide its services or (ii) the Back-End Speech
Recognition software utilized by Licensee to provide its services. “New Volume” means the
Lines, and the associated fees, generated by Licensee, in Licensee’s business of providing
Transcription Services and by Licensee in its business of providing Service Bureau Services,
that utilize Back-End Speech Recognition software that are attributable to all new Licensee
customers acquired anytime after the Effective Date, but not including Acquired Volume.


ARTICLE 4:  LICENSE FEES / PAYMENTS



4.1  Fees




4.1.1  For all licenses of Run-Time Software incorporated in the Designated Application
licensed to End Users, Licensee will pay the license fees and Maintenance Fees as per
the rates in Addendum C of this Agreement.



4.1.2  Licensee shall only pay the Minimum Payment amount as set forth in Section 3.2 if such
Minimum Payment amount is greater than the sum total of (i) the license fees and
Maintenance Fee due as per Section 4.1.1, and (ii) the fees due under the DEP Licensing
Agreement.



4.2   Other Fees: Any support, training or other services other than Maintenance services provided by
Licensor under this Agreement will be invoiced at the end of each month (or, unless otherwise
agreed in an SOW, at the end of each calendar quarter with respect to the Development and
Consulting Services set forth in Section 6.3) in








 



7


which said services are provided. Unless otherwise provided in writing, all invoices are
payable within ******* of date of invoice. Maintenance services to be invoiced as per
Section 6.5 of this Agreement.



4.3  Licensor is entitled to change the payment conditions to advance payment if Licensor is reasonably
of the opinion that Licensee did not fulfill its payment obligations as set forth in this
Agreement with respect to any undisputed invoiced and did not remedy this situation within
******* days after receipt of a respective reminder.



4.4  Late Payments: If Licensee fails to pay any undisputed invoiced amount due to Licensor within
******* , Licensor is entitled to claim from Licensee interest from maturity date to date of
actual payment of such amount, at the rate of seven and one-half percent (7.5%) above the
prevailing bank rate as of the date of maturity, on the unpaid balance, together with any
Licensor costs of collection (including reasonable attorney’s fees). If Licensee disputes any
of the amounts payable by Licensee under this Agreement, Licensee shall so notify Licensor in
writing not later than the time at which such fees or other amounts are due, and such notice
(a “Dispute Notice”) shall provide reasonable detail regarding the amount and nature of the
dispute. Upon delivery of such Dispute Notice to Licensor, the parties agree to negotiate in
good faith the resolution of the payment dispute described in the Dispute Notice and resolve
such payment dispute within thirty (30) calendar days of delivery of the Dispute Notice.



4.5  Licensee will provide reports to Licensor, at end of each calendar month, in the form of a written
electronic statement, in connection with Licensee’s grant to its End-Users of licenses for a
Designated Application incorporating the Run-Time Software. The reports will include the
relevant data necessary to calculate the amount of the Licensee fees payable pursuant to this
Agreement with respect to each month, and the corresponding amount of license fees payable to
Licensor in connection therewith, shall be submitted to Licensor not later than the 20th of
the month following the end of each calendar month. Licensee shall submit to Licensor a
detailed report containing information with respect to each End-User as identified by a unique
assigned number or identifier, its state, its city, and the number of licenses delivered
during the immediately preceding calendar month, and the rolling total for the respective
calendar year.



4.6  Licensee will provide a letter, at the end of each calendar quarter, signed by an authorized
officer of Licensee, certifying Licensee’s compliance with the terms of this Agreement, in
particular Article 3 of this Agreement.



4.7  In the event, an End-User does not accept a license for Designated Application incorporating the
Run-Time Software, after such license have been delivered to such End-User and reported by
Licensee in a Royalty Report, Licensee may transfer or redeploy such licenses to another
End-User, without incurring additional fees. The Maintenance Term for such redeployed licenses
will be the original delivery date when such licenses were first reported in a Royalty Report.
This right to redeploy licenses does not apply if the licenses are terminated after initial
acceptance of the Designated Application incorporating the Run-Time Software by the End-User.
Furthermore, Licensee cannot return such licenses to Licensor for a refund of any fees and
Licensee’s payment obligation on these licenses will remain unchanged.


ARTICLE 5:  WARRANTY



5.1  Licensor warrants that it has the right to grant the licenses contained in this Agreement.




5.2  Licensor warrants that the Development Software will perform substantially in accordance with the
specifications mentioned in the Documentation. Licensee acknowledges that the Development
Software is of such complexity, that it may have inherent defects. Licensee agrees that, if
any significant deviations from the Documentation exist, as Licensee’s exclusive remedy and
Licensor’s sole responsibility, Licensor shall use its commercially best efforts to eliminate
any such significant deviations reported to it by Licensee in writing. This warranty shall
expire three (3) months after delivery of each new release of the Development Software (the
“Warranty Period”).












 



8




5.3
The express warranties stipulated in this clause constitute the sole warranty in respect of the
Development Software. Licensor offers no other warranty and therefore excludes all other
warranties of any nature whatsoever regarding the Development Software, whether express or
implied, including without limitation, warranties of merchantability or fitness for a
particular purpose. Licensor does not warrant that performance of the Development Software
will be error-free or uninterrupted, or that the functions contained in the Development
Software will be suitable for or meet Licensee’s, Third Parties’ or End-Users’ requirements.
Licensee acknowledges that Licensor has made no representations regarding warranty or
liability other than as stated in this Agreement.



5.4
For the avoidance of doubt, this Agreement does not exclude warranties which cannot be excluded
as a result of applicable law and any liability incurred thereby shall be limited to
correction or replacement of the Development Software, at Licensor’s option.


ARTICLE 6: MAINTENANCE/TRAINING




6.1
Licensee commits to participate in integration training and training for support teams offered by
Licensor and insofar as Third Parties are involved by Licensee will also ensure that these
Third Parties participate. Licensor will provide ample opportunities at the Vienna location or
at a location chosen by Licensee upon request. Upon passing the above training, Licensee and /
or Third Parties are allowed to provide end-user training and other related services.



6.2
Unless otherwise agreed, Licensee and Third Parties shall at all times have in their organization a
minimum of two (2) technical support persons that have passed the training for support teams
as specified in Section 6.1. If a new version of the Licensee’s solution is released, Licensee
needs to make sure that its development team has participated in integration training. When
the Software is released, the integration shall be validated by Licensor.



6.3
Licensor may provide Licensee, if mutually agreed in writing, with training services pursuant to
Section 6.1 and 6.2, and Development and Consulting Services related to Development Software,
as per the hourly rates in Addendum C, all of which will be invoiced separately.



6.3.1
Licensor will assign a minimum of ******* to provide ongoing Development and Consulting
Services to Licensee, at the hourly rate as per Addendum C. In consideration for this
minimum staffing level, Licensee will pay a minimum amount of ******* , beginning from
the Effective Date (“Development Minimum”). The initial ******* Development Minimum
shall be pro-rated based on the elapsed time of the ******* within which the Effective
Date occurs and the final ******* Development Minimum shall be pro-rated to reflect the
termination date of this Agreement.



6.3.2
This Development Minimum may be reduced or modified by Licensee *******. Upon mutual
agreement of a statement of work (SOW) for these Development and Consulting Services
Licensor will use reasonable efforts to hire or assign resources to the agreed upon
staffing level as soon as commercially practical.



6.3.3
At all times during the Term of this Agreement, Licensor shall maintain staffing
levels commensurate with the Development Minimum, as agreed upon as of the Effective
Date as per Section 6.3.1, and subsequently adjusted as per Section 6.3.2 of this
Agreement, to provide ongoing Development and Consulting Services to Licensee. In
addition, Licensor agrees and acknowledges that it shall have a sufficient number of
appropriately trained back-up FTE’s available at all times to ensure that the staffing
levels associated with the then-current Development Minimum shall be continuously
maintained in the event regular staff assigned to provide Development and Consulting
Services to Licensee (i) terminates his or her employment with Licensor or (ii) is
unavailable because of vacation, illness or other leave.



6.3.4
“Development and Consulting Services” means services that are outside the scope of the
Maintenance services such as feature enhancement requests, additional software
development, professional




 


******* - Material has been omitted and filed separately with the Commission.






 



9


services, etc., related to the Development Software and Designated Application, as
applicable. All Development and Consulting Services are subject to a written SOW
that describes in detail the deliverables and total price based on number of hours
required for these services, agreed in writing and signed by both parties.



6.4  The maintenance and support services are set forth in Addendum E (“Maintenance”). Maintenance is
provided by Licensor subject to Licensee paying the corresponding Maintenance fee as specified
in Addendum C (“Maintenance Fee”).



Maintenance services will begin upon delivery of each license of Run-Time Software
incorporated into the Designated Application, to an End-User, for an initial term of
*******, and will be invoiced as further described in Section 6.5 below. Thereafter,
Maintenance shall automatically renew for ******* terms (each, a “Renewal Service Term”) and
Licensor will continue to invoice annually unless (i) canceled in writing by either party at
least thirty (30) days prior to the ******* renewal date or (ii) termination of the entire
Agreement. Maintenance services will be provided as long as Licensee pays the corresponding
Maintenance Fee (“Maintenance Term”). Unless otherwise agreed, Maintenance with respect to
End-User licenses shall be purchased for all copies of the Run-Time Software licensed to
such End-User.



6.5  Maintenance Fees for the initial term of ******* will be invoiced following each ******* Royalty
Report of new licenses, as per Addendum C. Nuance will invoice Licensee for Maintenance Fees
in respect of each Renewal Service Term at the percentage rate as per Addendum C, prior to the
first day of such Renewal Service Term. Licensee will pay such Maintenance Fees within *******
of the invoice date.



6.6  If there is a break between the expiration or termination of Maintenance services and the
reinstatement of Maintenance services specific to an End-User, Licensee shall pay Nuance (i)
the Maintenance Fees that would have accrued during the intervening period between expiration
or termination of the Maintenance and the reinstatement thereof, and (ii) for any professional
services, at Nuance’s then-current rates, for the repairs or modifications necessary to bring
Licensee into compliance with Nuance’s then-current specifications. Such payments shall be
made prior to renewing any Maintenance, which will be renewed at then current Licensor rates.



6.7  The parties acknowledge that, as of the Effective Date, Licensor has ******* employed to provide
Maintenance services provided for in this Agreement based on the amount of Maintenance Fees
paid by Licensee as of the Effective Date (the “Minimum Maintenance Staff”). Licensor further
agrees to adjust the number of Minimum Maintenance Staff FTEs proportionate to the change in
the amount of Maintenance Fees paid by Licensee during the Term. In addition, Licensor agrees
and acknowledges that it shall have a sufficient number of appropriately trained back-up FTE’s
available at all times to ensure that the Minimum Maintenance Staff levels shall be
continuously maintained in the event regular staff assigned to provide Maintenance services to
Licensee (i) terminates his or her employment with Licensor or (ii) is unavailable because of
vacation, illness or other leave.


ARTICLE 7: TERM




7.1  Initial Term and Renewal Terms. This Agreement shall, when signed by duly authorized
representatives of both parties, remain valid as follows:



7.1.1  This Agreement shall become effective on the Effective Date and continue until June
30, 2015 (the “Initial Term”).



7.1.2  Following the Initial Term, and subject to Section 7.1.3 and 7.1.4, the Agreement may be
renewed, for two (2) successive terms of five (5) years each (each a “Renewal Term”).
To renew the Agreement for each Renewal Term, Licensee at its sole option must indicate
its intent to renew the Agreement by providing a written notice to Licensor, to be
provided no less than six (6) months prior to the end of the then-current Initial Term
or Renewal Term (each a “Notice Period”).



 



******* - Material has been omitted and filed separately with the Commission.












 



10




7.1.3  The parties agree that the same terms and conditions of this Agreement in effect at
the end of the then-current Initial Term or Renewal Term, will apply upon a renewal of
this Agreement as provided herein, including but not limited to the Minimum Payment as
per Article 3 of this Agreement, except for the pricing, as per Addendum C Section 2,
which new pricing must be determined and agreed to in writing by the parties, based
upon Licensor’s standard market prices for the Development Software and services, in
effect at the end of the then-current Initial Term or Renewal Term.



7.1.4  The parties shall negotiate new pricing upon receipt of Licensee’s written notice
by Licensor pursuant to Section 7.1.2. In the event that within thirty (30) days
following MedQuist providing Licensor with written notice of Licensee’s intent to renew
pursuant to Section 7.1.2, (i) Licensor does not respond to such notice from Licensee,
or (ii) the parties are unable to agree in writing to new pricing as per Section 7.1.3
for the proposed Renewal Term, the Agreement will terminate on the date that is two (2)
years from the end of the then current Initial Term, or Renewal Term (the “Termination
Period”). During the Termination Period, all terms and conditions of this Agreement in
effect at the end of the then-current Initial Term or Renewal Term will apply, except
for the Minimum Payment terms as per Article 3 of this Agreement.


7.2  Notwithstanding Section 7.1 hereof, this Agreement may be terminated at anytime as follows:




7.2.1  by Licensor: if Licensee fails to make timely payments or provide royalty reports
as required as per Article 4 of this Agreement, and any such failure is not remedied
within thirty (30) days after receipt by Licensee of Licensor’s written notice;



7.2.2  by Licensor: if Licensee expressly repudiates this Agreement by defaulting on or
refusing to observe the restricted use or confidentiality requirements as mentioned in
this Agreement, Licensor may terminate this Agreement immediately by providing written
notice to Licensee stating such breach, and any such breach is not remedied, where
remediable, within thirty (30) days after receipt by Licensee of such notice;



7.2.3  by either party: if a party ceases its business activities as a result of
bankruptcy, dissolution, liquidation, or other causes, the other party may immediately
terminate this Agreement by providing written notice to that party;



7.2.4  by either party: in case any substantial breach of this Agreement is not remedied
by the party in breach within thirty (30) days after receipt of the other party’s
written notice thereto.



7.3  Any termination of this Agreement shall terminate Licensee’s rights as defined in Article 2,
provided however that such termination does not terminate or affect sublicenses previously and
properly granted to End-Users and Third Parties.



7.4  Furthermore, upon any termination of this Agreement Licensee shall stop using the Development
Software and promptly return all Development Software and Documentation and any copies
thereof, or at Licensor’s request destroy such Development Software and Documentation and
certify in writing by a duly authorized representative that it has destroyed all such
Development Software and Documentation and any copies thereof, within ten (10) days upon
Licensor’s first written request thereto.



7.5  Upon termination of this Agreement neither party hereto shall be liable to the other party for any
damages, loss of profits or prospective profits of any kind or nature sustained, arising out
of or alleged to have arisen out of such termination, nor for any goodwill payments or similar
compensation.



7.6  The termination of this Agreement shall however not relieve or release Licensee from making
payments which are due under the terms hereof, nor shall termination of this Agreement affect
any right, liability or obligation of either party hereunder arising by reason of any event
other then termination. If this Agreement is terminated for cause by Licensor as per Section
7.2, Licensee shall be obligated to pay Licensor the








 



11


Minimum Payment and Development Minimum amount payments, committed by Licensee as per
Section 3.2 and 6.3.1 of this Agreement, that would otherwise be due and payable for the
balance of the then-current Initial Term or Renewal Term of this Agreement, and the
remaining term of the DEP Licensing Agreement, even though Licensee’s right to use the
Development Software is terminated upon such termination pursuant to Section 7.4. The
termination of this Agreement as per its terms shall not terminate the DEP Licensing
Agreement.


ARTICLE
8: INTELLECTUAL PROPERTY RIGHTS INDEMNIFICATION




8.1
Subject to the provisions set forth herein, Licensor shall, at its own expense, defend any suit
brought against Licensee insofar as such suit is based upon a claim that the Development or
Run-Time Software in the form as delivered by Licensor hereunder and not modified in any way
by Licensee, alone and not in combination with any other product, directly infringes any third
party United States patent, copyright, trade secret or other intellectual property right
(“third party IP Rights”) when used in accordance with the terms of this Agreement, provided
however that Licensor is notified promptly in writing by Licensee of such claim or suit for
infringement, is given full authority, at Licensor’s option, to settle or conduct the defense
thereof and is provided all information and reasonable assistance by Licensee in connection
therewith. In case these conditions have been met Licensor shall indemnify Licensee against
any final award of damages and costs in such suit. In case a third party refuses to grant a
license with a royalty based on the purchase price of the Development or Run-Time Software,
Licensor will only reimburse Licensee with an equitable percentage of the product price.
Licensor shall not reimburse costs and expenses made by Licensee without Licensor’s prior
written consent. In the event that the use of Development or Run-Time Software is held to
constitute an infringement, or in Licensor’s opinion such claim is likely to succeed, Licensor
shall, at its option and at its expense, either obtain for Licensee the right to continue
using the Development Software or Run-Time Software, substitute other software with equivalent
functional capabilities, modify the Development Software or Run-Time Software so that it is no
longer infringing while retaining equivalent functions or terminate this Agreement and refund
the pro-rata royalties paid by Licensee under Addendum C of this Agreement, in which case the
applicable provisions of Sections 7.3 and 7.4 shall apply correspondingly.



8.2
Except as provided above, Licensor shall have no liability to Licensee, Third Parties and/or
End-Users in the event infringement of any third party IP Rights arises from components of a
Designated Application which are not derived directly from the Development Software or
Run-Time Software, operating of the Designated Application, but which are introduced into the
Designated Application by Licensee, or use of the Development or Run-Time Software for
purposes for which these were not intended, or which result from compliance with Licensee’s
designs, specifications or instructions, or from modification of the Development Software by
Licensee.



8.3
The foregoing states the entire liability of Licensor in connection with infringement of third
party IPR by the Development Software and/or Run-Time Software supplied by Licensor hereunder
and except as stated in this clause, Licensor shall not be liable for any loss or damage of
any kind whatsoever, including any incidental, indirect, special or consequential damages,
loss of (prospective) profits and turnover, suffered or incurred by Licensee, Third Parties
and/or End-Users in respect of or in connection with the infringement of any third party IP
Rights.



8.4
Notwithstanding anything to the contrary elsewhere in this Agreement, purchase or acquisition of
any Development Software or Run-Time Software under this Agreement DOES NOT convey an implied
license under any patent right that may be asserted by Licensor to use or operate the
Development Software or Run-Time Software in conjunction with other software, hardware or
systems that may be used with speech/voice recognition-type applications. In particular,
Licensor and/ or respectively its Affiliates has one or more patents that cover the use and/or
operation of speech recognition technology, as embodied in such Development Software or
Run-Time Software, in conjunction with, or coupled to, other software, hardware or
telecommunication systems for which no patent license is granted herein.












 



12



ARTICLE 9: LIABILITY




9.1
LIMITATION ON LIABILITY:



9.1.1
EXCEPT FOR BREACH OF ARTICLE 10, IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY LOSS OF OR
DAMAGE TO REVENUES, PROFITS OR GOODWILL OR OTHER SPECIAL, INCIDENTAL, INDIRECT OR
CONSEQUENTIAL DAMAGES OF ANY KIND, RESULTING FROM ITS PERFORMANCE OR FAILURE TO PERFORM
PURSUANT TO THE TERMS OF THIS AGREEMENT OR RESULTING FROM THE FURNISHING, PERFORMANCE,
OR USE OR LOSS OF USE OF ANY DEVELOPMENT SOFTWARE, RUN-TIME SOFTWARE OR OTHER MATERIALS
DELIVERED TO LICENSEE HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY INTERRUPTION OF
BUSINESS, WHETHER RESULTING FROM BREACH OF CONTRACT, BREACH OF WARRANTY, OR ANY OTHER
CAUSE.



9.1.2
EXCEPT FOR A BREACH OF SECTION 2.1 AND ARTICLE 10, IN NO EVENT SHALL LICENSEE BE LIABLE FOR
ANY LOSS OF OR DAMAGE TO REVENUES, PROFITS OR GOODWILL OR OTHER SPECIAL, INCIDENTAL,
INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, RESULTING FROM ITS PERFORMANCE OR
FAILURE TO PERFORM PURSUANT TO THE TERMS OF THIS AGREEMENT, INCLUDING, WITHOUT
LIMITATION, ANY INTERRUPTION OF BUSINESS, WHETHER RESULTING FROM BREACH OF CONTRACT,
BREACH OF WARRANTY, OR ANY OTHER CAUSE.



9.2
MAXIMUM LIABILITY: LICENSOR’S TOTAL LIABILITY TO LICENSEE FROM ANY AND ALL CAUSES SHALL BE LIMITED
TO THE TOTAL AMOUNT OF ALL LICENSEE PAYMENTS ACTUALLY PAID BY LICENSEE TO LICENSOR UNDER THIS
AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THAT LICENSOR IS
NOTIFIED IN WRITING BY LICENSEE OF A CLAIM UNDER THIS AGREEMENT. THIS LIMITATION OF LIABILITY
IS CUMULATIVE WITH ALL LICENSOR PAYMENTS BEING AGGREGATED TO DETERMINE SATISFACTION OF THE
LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE OR EXTEND THE LIMIT.



9.3
ANY CLAIM FOR DAMAGE UNDER THIS AGREEMENT SHALL BE PRESENTED TO THE LICENSOR AS SOON AS POSSIBLE
AFTER OCCURRENCE OF ANY OF SUCH EVENT, ULTIMATELY WITHIN ONE (1) YEAR AFTER THE OCCURRENCE,
WHEREAS ALL REASONABLE EFFORTS SHALL BE MADE TO MITIGATE SUCH DAMAGE.


ARTICLE 10:
CONFIDENTIAL INFORMATION




10.1
“Confidential Information” shall mean any information conveyed in written, graphic,
machine-readable or other tangible form, or any information conveyed orally. 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 recipient; (ii) was known to and recorded by the recipient at the time of disclosure;
(iii) is disclosed with the prior written approval of the disclosing party; (iv) can be
demonstrated by the recipient to have been independently developed by it without any use of
the disclosing party’s Confidential Information; or (v) becomes known to the recipient from a
source other than the disclosing party without breach of this Agreement. The obligation not to
use or disclose said Confidential Information will remain in effect until one of these
exceptions occurs.



10.2
Both parties agree not to disclose any Confidential Information made available to it by the other
party. Each party shall protect the other party’s Confidential Information from unauthorized
dissemination and use with the same degree of care that such party uses to protect its own
like information. Neither party will use the other party’s Confidential Information for
purposes other than necessary to directly further the purpose of this Agreement and as
permitted in Article 2. Neither party will disclose to third parties the other party’s
Confidential Information without the prior written consent of such other party. Except as
expressly








 



13


provided in this Agreement, no ownership or license rights are granted in any trade secrets
or Confidential Information.



10.3 Both parties agree that the terms and conditions hereof, and this Agreement itself shall be
considered as Confidential Information, except as expressly otherwise stated in this
Agreement. Any press releases concerning this Agreement, must be approved in writing by
Licensor prior to release.


ARTICLE
11: RESTRICTED USE




11.1 Licensee shall not use, distribute or have distributed the Development Software as such, nor shall
Licensee use, distribute or have distributed any Run-Time Software in connection with or on
any application other than the Designated Applications.



11.2 Licensee shall pay for the Run-Time Software the license fee(s) in accordance with the model
defined in Addendum C. Licensee will implement the licensing conditions towards its
End-customer in a manner which provides sufficient transparency to Licensor that the
obligations of Licensee for the payment of the fees based on the applicable License models are
met.



11.3 Licensee shall not recreate, generate or reverse-engineer any portion or version of the Development
Software or attempt any of the foregoing, or assist, abet or permit others to do so. Licensee
is not allowed to make any derivative works based on or make any modifications to the
Development Software, other than expressly agreed to in this Agreement. Furthermore, Licensee
undertakes not to change, remove or obscure any labels, plates, (copyright-) notices or other
markings which appear on or are embodied in the said Software.



11.4 Licensee acknowledges that unauthorized reproduction or use of the Development Software and/or
Run-Time Software as provided in this Article 11 is a breach of a material obligation of this
Agreement and is subject to any available remedies for such breach.


ARTICLE
12: TITLE AND RIGHTS TO SOFTWARE AND MODIFICATIONS




12.1 Title, interests and rights in and to the Development Software, the Run-Time Software, in all
language versions, and Documentation is and shall remain with Licensor. The grant of license
and distribution rights by Licensor to Licensee under Article 2 hereof is Licensee’s only
right to the Development Software and the Run-Time Software.



12.2 Title, interests and rights to knowledge bases, localization help files and tutor, created and
compiled by Licensee shall remain with Licensee.



12.3 In order to protect the intellectual property rights of Licensor, the business and product
reputation of Licensor’s software, and the reputation of speech recognition products
generally, Licensor shall have the following rights: (1) to review all versions of the
Designated Application, including executable graphic user interface elements, overview text,
“about boxes”, “Read-Me” files, “splash-screens” and online help; (2) to review hardcopy
documentation; (3) to test the reliability of the Designated Application; (4) to assess the
level of Licensee’s customer support; (5) to review press releases about the Designated
Application and sales and marketing materials, whenever deemed appropriate by both parties;
and (6) to require any reasonable changes in any of the foregoing. Licensor shall have the
right to delegate the rights 1 to 6 above to authorized representatives. Licensee shall have
the right to require Licensor to delegate the rights in Section 12.3 (1), (2), (3) and (4)
above to an independent third party, provided the parties share in half the cost of such
review by an independent third party appointed at Licensee’s request. Licensor’s exercise of
its right as per Section 12.3 (1) through (4) is limited to once in every twelve month period
as measured from the Effective Date or each anniversary of the Effective Date.



12.4 Licensee and/or Third Party shall be responsible for the preparation of all documentation, both in
hard copy format and electronic format to be sold with the Designated Application, subject,
however to Licensor’s rights to review the same as defined in Section 12.3. Licensee and/or
Third Parties shall also provide all customer








 



14


support for the Designated Application at its / their own expense. Licensor shall have
access to Licensee’s facilities in order to review and audit Licensee’s compliance with the
terms and conditions set forth herein. Such access shall be granted upon two (2) days prior
notice from Licensor.



12.5 Upon request of Licensor, Licensee will provide any materials in its possession as may be
reasonably requested by Licensor in order to execute its rights as set forth in 12.3 and 12.4.


ARTICLE
13: TAXES



The Run-Time Software licensed hereunder is intended for use by End-Users and therefore should be
exempt from sales, use, excise and other similar taxes. However, if such tax, or any import duty,
or export duty, should be imposed on Licensor, Licensee shall either bear such tax or duty by a
direct payment to the taxing authority or shall reimburse Licensor for such tax or duty paid by
Licensor.



ARTICLE
14: USE OF LOGO



Unless otherwise instructed by Licensor in writing at any moment in time Licensee and/or Third
Parties are obliged to use “powered by SpeechMagicTM” logo for all Designated Applications,
packaging, internet, advertising, initial splash screen and related SpeechMagic marketing material
of Licensee’s Designated Applications, or in the accompanying documentation. In addition the
“SpeechMagicTM” word marks can be used provided and as long as Licensee adheres to the Nuance
Corporate Guidelines, set forth by Addendum D to this Agreement.



ARTICLE
15: MISCELLANEOUS




15.1 Governing Law. The parties hereby agree that this Agreement will be governed by and construed and
interpreted in accordance with the laws of the State of New York and the laws of the United
States applicable in the State of New York, The parties agree that the U.N. Convention on
Contracts for the International Sale of Goods does not apply to this Agreement.



15.2 The invalidity or un-enforceability of any particular provision of this Agreement shall not
affect the other provisions, and this Agreement shall be construed in all respects as if such
invalid or un-enforceable provisions were omitted.



15.3 The failure of either party to insist in any one or more instances upon the performance of any of
the terms of this Agreement or to exercise any right hereunder, shall not be construed as a
waiver of the future performance of any such term or the future exercise of such right.



15.4 Whenever any occurrence (e.g. an event of “force majeure”) is delaying or threatens to delay either
party’s timely performance under this Agreement, such party will promptly give notice thereof,
including all relevant information with respect thereto, to the other party.



15.5 Any terms of this Agreement that by their nature extend beyond termination or expiration, such as
but not limited to Articles 3, 4, 5, 6, 7, 8, 9, 10 and 11 shall survive and continue and
shall bind the parties, their successors, their assigns and their legal representatives.



15.6 This Agreement sets forth and shall constitute the entire agreement between Licensee and Licensor
with respect to the subject matter thereof, and shall supersede any and all prior agreements,
understandings, promises and representations made by one party to the other, in writing or
orally, concerning the subject matter herein and the terms and conditions applicable thereto.
This Agreement may not be released, discharged, supplemented, interpreted, amended or modified
in any manner except by an instrument in writing signed by a duly authorized representative of
each of the parties hereto.



15.7 In making and performing this Agreement the parties act and shall act at all times as
independent contractors and nothing contained in this Agreement shall be construed or implied
to create the relationship of partner or of








 



15


employer and employees, between the parties. At no time shall either party make commitments
for or in the name of the other party.



15.8    This Agreement is personal to the Parties, and therefore, it may not be assigned by either Party
whether voluntarily or involuntarily or by operation of law, in whole or in part, to any party
without the prior written consent of the other Party, which consent will not be unreasonably
withheld. No such assignment by either Party, howsoever occurring, will relieve the Parties of
their obligations under this Agreement. Notwithstanding the foregoing, either Party may assign
this Agreement without consent: (a) if this Party undergoes a change of control, whether by
means of a sale or issuance of shares or otherwise; (b) to any of its Affiliates or (c) to any
purchaser of substantially all of the assets or the business of this respective Party.



15.9    All notices under this Agreement shall be sent to the address mentioned above in this Agreement.
All such notices shall be deemed to be received by the other party three (3) days after the
postal date or on the date of signature of the receipt of delivery by a courier mail company.



15.10  The Addenda referenced in this Agreement, and the specifications referenced therein, as well as
other documentation which now or hereafter may become expressly incorporated to this Agreement
form part of this Agreement with the same force and effect as if fully set forth herein. In
case of any inconsistency between the provisions of this Agreement and those set forth in the
referenced Addenda or other referenced specifications or documentation, the terms and
conditions of this Agreement shall prevail, unless expressly set forth otherwise in any
Addendum.



[SIGNATURES CONTAINED ON FOLLOWING PAGE]












 



16



Licensee AND Licensor ACKNOWLEDGE THAT THEY HAVE READ AND AGREE TO BE BOUND BY THE ATTACHED TERMS
AND CONDITIONS.



IN WITNESS WHEREOF, THIS AGREEMENT HAS BEEN DULY SIGNED AND EXECUTED BY THE AUTHORISED
REPRESENTATIVES OF BOTH PARTIES HERETO, AS OF THE EFFECTIVE DATE.



SO AGREED AND SIGNED:




	 	 	 	 	 	 	 	 	 	 	 

	LICENSEE	 	 	 	LICENSOR	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	MEDQUIST INC.	 	 	 	NUANCE COMMUNICATIONS, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Peter Masanotti
	 	 	 	By:
	 	/s/ John Shagoury	 	 
	 

	 	 

Name: Peter Masanotti
	 	 
	 	 	 	 

Name: John Shagoury
	 	 
	 

	 	Title: President & CEO
	 	 	 	 	 	Title: President, Healthcare	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	Date: November 10, 2009
	 	 	 	 	 	Date: November 10, 2009	 	 












 



17


ADDENDUM A




DEVELOPMENT SOFTWARE SPECIFICATION


Development Software:





	A.	 	(i) SpeechMagic Version 5.1(Alderaan) for the client portion of the software, as customized
and delivered to for MedQuist, consisting of the Software Development Kit including API’s,
Active X control interfaces and software building blocks, known as: SpeechMagic Alderaan.






	 	(ii)	 	ConText for Radiology — North American English and United Kingdom English
	 
	 	(iii)	 	ConText for Multi-Med — North American English










 



18







ADDENDUM B




DESIGNATED APPLICATION




	1.	 	Name of Partner’s application/solution:
	 
	(a)	 	SpeechQ for Radiology, and
	 
	(b)	 	SpeechQ for General Medicine










 



19







ADDENDUM C




TERRITORY, PRICING and ORDERING




	1.	 	Territory:
	 
	(a)	 	Territory for Run Time Software with Context for Radiology— North America, Australia and
United Kingdom.
	 
	(b)	 	Territory for Run Time Software with ConText for Multi-Med—North America.




“North America” shall specifically include, without limitation: (i) the United States of America;
(ii) the Dominion of Canada;



(iii) those islands in the Caribbean Basin beginning with Bermuda to the north and extending to
Grenada and Barbados in the south, as the borders of such countries are configured as of the
Effective Date of this Agreement.



The United States of America shall expressly include: (i) the following dependent areas of the
United States of America: American Samoa, Baker Island, Guam, Howland Island, Jarvis Island,
Johnston Atoll, Kingman Reef, the Midway Islands, Navassa Island, the Northern Mariana Islands,
Palmyra Atoll, Puerto Rico, the U.S. Virgin Islands, and Wake Island; (ii) those areas leased by
the United States from separate sovereign nations, including without limitation Guantanamo Bay,
Cuba;



The Dominion of Canada shall expressly include Hans Island, in the Kennedy Channel between
Ellesmere Island and Greenland, which area is subject to a border dispute between the Dominion of
Canada and the Kingdom of Denmark.



“Australia” shall specifically include, without limitation (i) the Australian continent; (ii) the
major island of Tasmania; (iii) the Australian controlled islands in the Southern, Indian and
Pacific Oceans; and (iv) New Zealand (including the North Island and the South Island and the other
islands controlled by New Zealand, most notably Stewart Island/Rakiura and the Chatham Islands).



“United Kingdom” shall specifically include, without limitation: (i) the United Kingdom of Great
Britain and Northern Ireland (including England, Northern Ireland, Scotland and Wales); (ii) The
Crown Dependencies of the Channel Islands and the Isle of Man; and (iii) the British Overseas
Territories.





	2.	 	Pricing licenses , product prices and payment terms





(a)

Run Time Software with ConText for Radiology




	 	 	 	 	 
	 	 	 	 	License Fees payable
	 	 	SpeechMagic SDK Runtime License Fee items	 	to Nuance
	1.1

	 	SpeechMagic per Server License Fee	 	*******
	1.2

	 	SpeechMagic per Workstation License Fee*	 	********
	1.3

	 	SpeechMagic per Concurrent User License Fee*	 	********








 




			
	*	 	For every concurrent user or workstation, a Report Station needs to be purchased.




A concurrent user is a user that is logged into SpeechMagic: For example, if the number of
concurrent users is limited to 10, then the 11th users that wants to log into the system has to
wait until one user logs off. The number of concurrent users must be tracked by the Designated
Application.




 



******* - Material has been omitted and filed separately with the Commission.













 



20



The MSRP is subject to change upon notification by Licensor to Licensee; provided that,
notwithstanding such changes to the MSRP from time to time, each of the items in rows 1.2 and 1.3
shall in no event exceed *******.



Maintenance Fee: Run Time Software with ConText for Radiology—******* of license fees payable as
per above table.




(b)

Run Time Software with ConText for Multi-Med



*******






 




			
	*	 	License fee payable to Licensor by Licensee is based on total number of individual users or
named-user licenses per End-User customer order. Licensee is not entitled to a cumulative discount,
or lower license fee based on multiple unique customer licenses. Licensee shall be entitled to
transfer a named-user license within an End-User, without incurring additional fees, upon the
departure of an individual user associated with the named-user license at the End-User.




Maintenance Fee: Run Time Software with ConText for Multi-Med— ******* of license fees payable as
per above table.



(c) Development and Consulting Services, and Training Fees: *******. Beginning *******, Licensor
reserves the right to update these fees to *******.



(d) Invoices will be issued in US Dollars



(e) As of the Effective Date of this Agreement, Licensee has pre-paid ******* to be applied towards
hourly fees for Development and Consulting Services and/or training services, to be used anytime
during the Term.



(f) Licensor may at its own expense audit and take copies of Licensee’s books of account relating
to Licensee’s obligations as per this Agreement, at the place where such books are kept, in order
to verify Licensee’s compliance with the payment and other terms of this Agreement. Any such audit
shall be conducted by an independent professional auditor, on then (10) working days prior written
notice and during normal business hours. A copy of the report made by such auditor shall be
provided to both Parties at the same time. If any such audit reveals any underpayment to Nuance,
Licensee shall immediately pay the same together with interest at the rate of 10% per annum
calculated from the date such payment was due until such payment is actually made. If such
underpayment amounts to more than 5% for the sums due to Nuance, Licensee shall, in addition to
correcting such underpayment in accordance with above, pay, to Nuance, as an additional penalty, an
amount twice as high as the underpayment plus the costs for such audit.





 


******* - Material has been omitted and filed separately with the Commission.









 



21




ADDENDUM D




CORPORATE COMPANY IDENTITY GUIDELINES OF LICENSOR


The guidelines below are valid at the time of signature of this License Agreement. It is the
Licensee’s responsibility to ensure that the latest guidelines are used (available from Nuance.




General 



These guidelines explain how you, as an authorized partner, should employ the Nuance Corporate
Identity rules to ensure that the Nuance brand and “powered by SpeechMagicTM” stands out from the
brands of our competitors. If you have any questions about any aspect of the addendum, please
contact your Regional Marketing Manager.




Principles




1. powered by SpeechMagicTM



If you provide your own solution integrating or based on SpeechMagic, it is obligatory to use the
“powered by SpeechMagicTM” logo.








This logo has been especially introduced for our partner companies as both a designation and a mark
of excellence: “powered by SpeechMagicTM” is synonymous with the following ACE values





	 	•	 	Accuracy: the right information, in the right place, at the right moment.
	 
	 	•	 	Convenience: saving time and energy, and cutting down frustration.
	 
	 	•	 	Efficiency: document creation with higher productivity for a shorter turnaround time.




“powered by SpeechMagicTM” is a sign that your solution is relying on industrial grade speech
recognition technology with highest accuracy levels for convenient workflow and efficient
information capturing.




2. SpeechMagicTM



You may also use the SpeechMagic logo on your printed materials, your website and your advertising.
Respect a clear zone equal to the height of the ‘S’ around the wordmark.








Wherever possible the wordmark is to be shown in black on a white background. In situations where
there is a colored or photographic background the word mark can be shown in white.



The logos shown here are the only official SpeechMagic logos. No other logo (e.g. with a version
number) should be used. The TM sign must be used with the name SpeechMagic in titles but not in
continuous text.




3. Press



All press releases, which mention the names Nuance or SpeechMagic, need approval from Nuance
corporate communications department. A minimum of 4 working days is required for the approval of
press releases. As the








 



22


approval process can take up to 2 weeks, we encourage consulting your
Regional Marketing Manager as early as possible.




4. Standard Texts



You may use the following texts to describe Nuance SpeechMagic. Translations are available on
request.





	 	•	 	develops and markets speech recognition technology
	 
	 	•	 	provides expertise and consultancy services including:






	 	•	 	Integration services
	 
	 	•	 	Deployment services
	 
	 	•	 	Support services
	 
	 	•	 	Productivity services




With more than 8,000 installations worldwide, Nuance SpeechMagic has established itself at the
forefront in providing professional solutions integrated into the professional workflow for
document creation, dictation, transcription and information capture.



SpeechMagicTM — Industrial grade speech recognition



SpeechMagic rises to the challenges of a globalized business world. At the same time, it guarantees
maximum flexibility to develop locally adapted solutions which are tailored to the specific needs
of each user.



SpeechMagic includes speech recognition technology for a broad portfolio of languages, expertise,
consulting, integration support



and statistical evaluation — the platform for a network-based solution for distributed
installations throughout a hospital or a region.




SpeechMagic ensures





	 	•	 	seamless accessibility of reliable information
	 
	 	•	 	instant availability of information for the successful communication in the electronic
health record
	 
	 	•	 	highest levels of protection to guard against system failures and ensure access to
authorized personnel only
	 
	 	•	 	support of a variety of reporting scenarios enabling the choice of the preferred and
most efficient document creation workflow. (back-end, front-end, mobile reporting, etc.)




powered by SpeechMagicTM in numbers:





	 	•	 	integrated by more than 200 healthcare IT vendors
	 
	 	•	 	more than 8,000 sites installed in 45 countries
	 
	 	•	 	scalability up to 15,000 users
	 
	 	•	 	25 supported languages










 



23


	 	•	 	more than 150 specialized ConTexts




Our technology is constantly evolving. Please make sure that the information and texts that you use
are up-to-date. Contact your Regional Marketing Manager.













 



24




ADDENDUM E




MAINTENANCE AND SUPPORT SERVICES


Definitions





“Bug Fixes” shall mean solutions or workarounds to particular problems with the programs as
reported to Nuance via the hotline service (email, fax or telephone).




“Licensee’s Services” shall mean the services provided by Licensee to the End-Users as more
specifically described below.




“First-Level Support” shall mean basic help-desk functions typically including initial call
handling, call logging, assignment of call priority, queue placement, initial problem
diagnostic services for identifying problems and generic application faults, analysis, and
where possible, problem resolution, detailed product problem analysis (including any problem
duplication), detailed problem diagnostic services for identifying complex problems and
application faults, application of any service releases or end-user-specific fixes and
interface.




“Update” means an easy to install service pack, fix pack or service release to update the
Development Software, which includes, bug fixes, workarounds and possibly some new
functionalities, which Update is recommended to be installed at all existing users. An
Update is typically identified by an increase in a release or version number to the right of
the first decimal (for example, an increase from Version 5.1 to 5.2 or from Version 5.1.1 to
5.1.2). “Update” shall not be construed to include Upgrades.




“Upgrade” means a new release of the Development Software which new release may include
service packs, updates and/or new technology that Nuance generally releases to its customers
as part of its Maintenance services which may include some feature enhancements and/or
additional capabilities (functionality) over versions previously supplied to Licensee, and
typically is identified by an increase in the release or version number to the left of the
decimal (for example, an increase from Version 5.2 to Version 6.0). Upgrades do not include
new software and/or products that Nuance, in its sole discretion, designates and markets as
being independent from the Development Software


Licensee Obligations



Licensee shall be responsible for providing First Level Support to the End-Users as follows:



To receive Updates and Bug Fixes as they become available during the Maintenance Term and deploy it
within the Designated Application for its End-Users;



To comply with Nuance’s procedures for problem reporting from time to time;



To report the problems that cannot be resolved to Nuance’s local Product Hotline or to the Central
Product Hotline if no local Product Hotline is in place. Licensee shall describe the problem in
detail in the appropriate box of the Case Reporting Form to be provided to Licensee by Nuance.
Licensee must quote the name of the Development Software concerned, its release level, and the
latest date of the Update supplied to it or to the End-User concerned as well as a detailed
description of the problem;



To reproduce the problem also on their own test system in order to identify the problem; and to
provide all reasonably necessary test material and log files to make it possible to reproduce a
Problem on Nuance’s site, such as sound-files and image of the installed software. Licensee will
cooperate with Nuance in order to reproduce (duplicate) the Problem, to report to Nuance how to
reproduce the Problem and to help indicate that the Problem is located in the Licensed Software.













 



25



To test Bug Fixes and, once satisfied, or if alternative solutions or workarounds to the problem
have been identified report that back to Nuance hotline that the problem is really solved



In order to facilitate the above Support, Licensee will be permitted to use Nuance’s hotline
service for problem reporting.



Nuance Obligations



Second Level Support is included in the Maintenance fees. Nuance shall be responsible for Second
Level Support with the following responsibilities:



Technical Support Hours, Monday — Friday, from 9.00 A.M. to 5.00 P.M. CET, excluding public
holidays. Time and Material “overtime rates” available at the current prevailing hourly billable
rates.



Supply to Licensee Second Level Support services during Nuance’s normal business hours which
include correction of errors found by Licensee in a supported release of the Development Software
(a) installed at any End-User’s testing area or at a pilot site or sites; or (b) installed by
End-Users;



Provide access to Bug Fixes on the Remote Access System (ftp server) chosen as appropriate by
Nuance for Bug Fixes or via email. It shall be Licensee’s responsibility to monitor the Remote
Access System to ensure that it becomes aware promptly of Bug Fixes, and to re-test all Bug Fixes
before supplying them to any End-User. It is Licensee’s responsibility to re-test the combination
of original Development Software releases and Updates and Upgrades prior to their installation at
End-User’s Site.



Subject to the nature and extent of the changes in the Development Software made by Nuance from
time to time, to supply to Licensee with either a different edition of the current release, an
Upgrade or Update. Nuance will support the most current version and one previously released version
of the Development Software. Upgrades and Updates, if and when available, will be provided as part
of the Maintenance services under the Agreement.



If, Nuance creates an Upgrade of the Development Software and Licensee has questions on such
Upgrade, Nuance, at its discretion, may provide up to 20 hours of remote technical support
services. If the total hourly time spent by Nuance exceeds 20 hours, any additional services are
subject to additional fees, based on standard professional services offering by Nuance.



Exclusions from Maintenance: Unless otherwise agreed, Nuance shall not be obligated to
provide Maintenance for, or required as result of (i) any modification of Development Software by
anyone other than Nuance; (ii) if Development Software is used for other than its intended purpose;
(iii) if Licensee failed to properly install or maintain the Development Software (including any
associated equipment, software or firmware); (iv) any willful or negligent action or omission of
Licensee, (v) any computer malfunction not attributable to the Development Software; or (vi) damage
to Development Software from any external source, including computer viruses unattributable to
Nuance, computer hackers, or force majeure events.