THIRD AMENDED AND RESTATED OEM SUPPLY AGREEMENT
Exhibit 10.13
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.
THIRD AMENDED AND RESTATED OEM SUPPLY AGREEMENT
THIS THIRD AMENDED AND RESTATED OEM SUPPLY AGREEMENT (the “Agreement “ or “Third Amended and
Restated Agreement”) is entered into by and between MedQuist Inc., a New Jersey corporation
(“MedQuist”), and Nuance Communications, Inc. (hereinafter “Nuance”), a successor in interest to
Philips Speech Recognition Systems GmbH “PSP”), and made effective as of November 10, 2009 (the
“Third Amended and Restated Agreement Effective Date”), amending and restating that certain
Amendment 1 to Second Amended and Restated OEM Supply Agreement dated December 31, 2008, and Second
Amended and Restated OEM Supply Agreement made effective as of October 1, 2008 (“Second Amended and
Restated Agreement Effective Date”), which amended and restated the Amended and Restated OEM Supply
Agreement made and entered into as of the 21st day of September, 2007 (“Amended and Restated
Agreement Effective Date”), which amended and restated that certain OEM Supply Agreement made and
entered into as of the 23rd day of September, 2004 (the “Original Effective Date”), by and between
PSP and MedQuist.
MedQuist and Nuance hereinafter also collectively referred to as the “Parties” and
individually as a “Party”.
RECITALS
WHEREAS, MedQuist and PSP entered into that certain OEM Supply Agreement (the “Original
Agreement”) as of the Original Effective Date;
WHEREAS, MedQuist and PSP entered into that certain Amended and Restated OEM Supply Agreement
as of the Amended and Restated Agreement Effective Date;
WHEREAS, MedQuist and PSP entered into that certain Second Amended and Restated OEM Supply
Agreement as of the Second Amended and Restated Agreement Effective Date as amended by Amendment 1
to Second Amended and Restated OEM Supply Agreement;
WHEREAS, Nuance, as successor in interest to PSP is assigned the rights and obligations of the
Second Amended and Restated Agreement as amended by Amendment 1 to Second Amended and Restated OEM
Supply Agreement;
WHEREAS, the Nuance and MedQuist desire to amend and restate the Second Amended and Restated
OEM Supply Agreement to extend and clarify certain matters as set forth herein.
NOW THEREFORE, in consideration of the mutual agreements and covenants contained herein and
for other good and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, it is mutually agreed and covenanted by and between the parties to this Agreement, as
follows:
| 1. | Definitions. |
1.1 “Documentation” means user manuals, training materials, product descriptions, product
specifications, technical manuals, license agreements, supporting materials, and like information
related to the Products, which Documentation may be distributed in print, electronic,
video, or other formats.
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1.2 “End User” means the final retail purchasers or MedQuist licensees at the sites where the
Products are installed.
1.3 “Products” means, individually or collectively as appropriate, the Software,
Documentation, developed products and hardware, supplies, accessories, and other commodities
related to any of the foregoing, provided or to be provided by Nuance pursuant to this Agreement,
as described in Schedule B attached to this Agreement, as modified from time to time.
1.4 “Affiliate” 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
percent (50%) of voting stock in the case of a stock-issuing entity, or more than fifty percent
(50%) of voting control of a non-stock-issuing entity.
1.5 “Software” means certain computer programs and software (collectively, the “Programs”),
which Programs may incorporate certain third-party software products provided or to be provided by
Nuance pursuant to this Agreement.
1.6 “Source Code” means the underlying instructions for a computer written in programming
languages, including all embedded comments, as well as procedural code such as job control language
statements, in a form readable by human beings when displayed on a monitor or printed on paper,
etc. and that must be translated (using off-the-shelf commercially available software compilers,
linkers and assemblers or other items delivered with such code or reasonably available including
documentation) into a form that is directly executable by a computer by a process generally known
as compiling or assembly, along with any related documentation, including annotations, flow charts,
schematics, statements of principles of operations, software summaries, software design, program
logic, program listings, functional specifications, logical models and architecture standards,
describing the data flows, data structures, and control logic of the software. For purposes of this
Agreement, mere access to the Source Code in the Nuance online controlled environment is not a
sufficient provision or transfer of Source Code hereunder.
1.7 “Intellectual Property Rights” shall mean any and all patents, utility certificates,
utility models, industrial design rights, copyrights, database rights, trade secrets, any
protection offered by law to information, semiconductor IC topography rights and all registrations,
applications, renewals, extensions, combinations, divisions, continuations or reissues of any of
the foregoing.
| 2. | Grant of License, Co-ownership and Territorial restrictions |
2.1 Source Code. Nuance agrees that, during the Term of this Agreement, for any new Version
of the Product developed pursuant to an SMA, (other than Nuance Modifications as per Section 15) it
shall deliver to MedQuist the Source Code and related documents, at the time of delivery.
2.2 Subject to the terms of this Agreement and notwithstanding the Parties’ co-ownership
rights under Sections 15 and 17, Nuance and MedQuist agree as follows: (i)
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MedQuist’s exclusive territory for offering for sale, licensing, selling, delivering and
servicing the Products, and for authorizing others to do so, directly and through one or more tiers
of distributors, dealers, and resellers (collectively, the “Dealers”), shall be within the
territory set forth on Schedule A to this Agreement (“Territory”); provided further that such
rights are nonexclusive for the specified nonexclusive Territory on Schedule A.
2.3 Nuance reserves all rights related to the Products that Nuance does not expressly grant
MedQuist in this Agreement. Outside MedQuist’s exclusive Territory, Nuance may offer for sale,
sell, license, deliver, and service the Products, and may authorize others to offer for sale, sell,
license, deliver, and service the Products, without providing any rights or compensation to
MedQuist. During and after the Term, inside MedQuist’s exclusive Territory, Nuance and any
Affiliate: (i) may not offer for sale, sell, license, deliver or service the Products; or (ii)
authorize others to offer for sale, sell, license, deliver, or service the Products.
2.4 MedQuist is authorized to appoint Dealers within the Territory defined in Schedule A to
offer for sale, sell, sublicense, deliver, and service the Products at its discretion and without
approval from Nuance. During the Term, MedQuist will give Nuance written notice of the identity of
any Dealer that MedQuist intends to appoint in the non-exclusive Territory. MedQuist will ensure
that all Dealers appointed by MedQuist are sufficiently trained and competent to sell and support
the Product in their respective territories.
| 3. | Term. |
3.1 Term. Unless earlier terminated pursuant to Section 20, this Agreement shall, when signed by
duly authorized representatives of both parties, remain valid as follows:
3.1.1 This Agreement shall become effective on the Effective Date and continue until June
30, 2015 (the “Initial Term”).
3.1.2 Following the Initial Term, and subject to Section 3.1.3 and 3.1.4, 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, MedQuist at its sole option must indicate its
intent to renew the Agreement by providing a written notice to Nuance, 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”).
3.1.3 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, except for the prices and Fees, as per Schedule C, which new
pricing or Fees must be determined and agreed to in writing by the parties, based upon
Nuance’s standard market prices or Fees, in effect at the end of the then-current Initial
Term or Renewal Term.
3.1.4 The parties shall negotiate new pricing upon receipt of MedQuist’s written notice by
Nuance pursuant to Section 3.1.2. In the event that within thirty (30) days following
MedQuist providing Nuance with written notice of MedQuist’s intent to renew pursuant to
Section 3.1.2, (i) Nuance does not respond to such notice from MedQuist, or (ii) the parties
are unable to agree in writing to new pricing as per Section 3.1.3 for the proposed Renewal
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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 continue to apply.
| 4. | Fees. |
4.1 Product Co-Ownership Fee. In consideration of Nuance’s grant of co-ownership of the
Products in accordance with the terms of this Agreement, Nuance agrees and acknowledges that
MedQuist has paid Nuance a Product co-ownership fee in cash in the amount of ******* (the “Product
Co-Ownership Fee”), as follows: 100% on the date Nuance delivered a duly-executed original of the
Amended and Restated OEM Supply Agreement and a copy of the Source Code of the Products to
MedQuist. All Products have been delivered by Nuance.
4.1.1 Prices. During the Term, MedQuist will pay Nuance, in further consideration of Nuance’s
grant of co-ownership rights of the Products in accordance with the terms of this Agreement, the
Revenue Share Fees set forth on Schedule C.
4.2 Payment Terms. During the Term, MedQuist will pay Nuance Prices set forth on Schedule C to
this Agreement, on a calendar monthly basis, ******* from the end of each such calendar month. The
foregoing does not alter the reporting requirement of Section 6.2.
| 4.3 | Software Maintenance Fee. |
4.3.1 During the Term, MedQuist will use reasonable commercial efforts to sell its End Users a
software maintenance agreement (an “SMA”). Such SMA will provide that the subscribing End User will
obtain, directly from MedQuist:
4.3.1.1 Software Releases. As used in this Agreement, “Software Release” means a new Version
of the Products delivered to MedQuist for internal or external user testing or commercial
availability. For the purposes of this Agreement “Version” or “Versions” is used to refer to
Product Patch Releases, and Point Releases, that may include bug fixes, updates, and upgrade
versions that may be generally released by Nuance, if and when available, as a part of a SMA.
Software Releases are typically numbered sequentially (e.g., Release 4.x, Release 6.x).
4.3.1.2 Patch Releases. As used in this Agreement, “Patch Release” means a change Nuance makes
to a Software Release, which is an internal change designed to correct minor anomalies or defects
in the Software (colloquially referred to as “bugs”), or otherwise to provide minor improvements to
performance without changing the Software’s basic design, structure, or functionality. Patch
Releases are typically numbered to signify modifications to a version of Software Release (e.g.,
Version 4.1.05, Version 4.1.06).
4.3.1.3 Point Releases. As used in this Agreement, “Point Release” means a modification or
enhancement ( referred to as an “Upgrade”) to a Software Release that: (i) enables the Software
Release to perform new or different functions; (ii) increases the capability of the Software; or
(iii) enables the Software to function on new or different hardware or in a new or different
software environment without changing its basic design, structure or functionality. Point Releases
are typically numbered as versions of a Software Release (e.g., Version 4.1, Version 4.2, etc.).
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4.3.1.4 Technical Support which includes the following:
MedQuist is responsible for providing First and Second Level Support to its End-Users. “First
and Second 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.
MedQuist Obligations
MedQuist shall be responsible for providing First and Second Level Support to the End-Users as
follows:
To receive Patch Releases as they become available during the SMA term and deploy for its
End-Users;
To comply with Nuance’s procedures for Problem reporting from time to time;
To reproduce the Problem where possible, 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 the Problem on Nuance’s site, such as sound-files and image of the installed software.
MedQuist 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
Product.
To test Patch Releases 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, MedQuist will be permitted to use Nuance’s hotline
service for problem reporting.
For purposes of this Agreement, “Problem” means a material failure of the Product to conform to the
specifications set forth in the Documentation, resulting in the inability to use, or restriction in
the use of, the Product.
Nuance Obligations
Third Level Support is included in the SMA fees. Nuance shall be responsible for Third 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.
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Supply to MedQuist Third Level Support services during Nuance’s normal business hours which
include correction of errors found by MedQuist in a supported release of the Product (a) installed
at any End-User’s testing area or at a pilot site or sites; or (b) installed by End-Users;
4.3.2 SMA contracts MedQuist sells will begin upon date of the license by MedQuist to its End
User, and will be renewable on an annual basis. SMA’s with respect to End User licenses shall be
purchased for all copies of the Software licensed to such End User. In the event that MedQuist
allows an End User to terminate or cancel an SMA before the end of the term of such SMA, MedQuist
will provide notice of such termination to Nuance, and Nuance will refund to MedQuist the pro-rata
portion of fees paid to Nuance for such SMA within thirty (30) days after MedQuist provides such
notice.
4.3.3 For each SMA contract that MedQuist sells, it will pay Nuance the following sums *******
after the reporting date for the Prices are due per Section 6.3:
4.3.3.1 For sums owed for the period beginning July 1, 2006, through the remainder of the Term
of this Agreement: maintenance fees (the “Maintenance Fees”) equal to ******* . MedQuist’s
obligation to pay the Maintenance Fees shall cease upon the earlier of: (i) the end of the Term; or
(ii) MedQuist’s termination of Nuance’s maintenance and support obligations hereunder pursuant to
Section 4.3.5.
4.3.4 All sums owed set forth in Section 4.3.3 of this Agreement: (i) will be calculated based
on the Prices and without regard to any discounts available to MedQuist; and (ii) will be amortized
on a straight-line basis for each month over the term of the SMA.
4.3.5 Nuance will provide the services to maintain the current code base of the Products, as
per Section 4.3 until the earlier of: (i) ******* ; or (ii) MedQuist’s termination of Nuance’s
maintenance and support obligations hereunder via thirty (30) days advance written notice to
Nuance. Nuance maintenance obligation above includes supporting any code related to MedQuist
integrations of the Products to PACS, RIS and HIS vendors, delivered under this Agreement by Nuance
as a part of Additional Consulting Services and made a part of the Product.
4.4 Additional Consulting Services. During the Term, Nuance will provide to MedQuist, upon
MedQuist’s request from time to time, additional consulting/development/training services (using
the hourly rates set forth in SCHEDULE C) (“Additional Consulting Services”) subject to the mutual
agreement of Nuance and MedQuist.
| 5. | Order Placement. |
5.1 Upon MedQuist’s request, Nuance will provide MedQuist with the Products as described in
this Agreement, including without limitation the accompanying Schedules.
5.2 Nuance delivered to MedQuist a “gold master” of the then-current Version of the Software:
(i) within seven (7) days after the execution and delivery of the Amended and Restated OEM Supply
Agreement; and (ii) Nuance will deliver a “gold master” of the then-current Version of the Software
promptly on the commercial availability of each Software Release. Software MedQuist distributes
under this Agreement will be copies of the gold master Nuance most
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recently furnished to MedQuist pursuant to this Agreement or, as determined by MedQuist, such other
subsequent Versions created by MedQuist following the transfer set forth in Section
| 6. | Payment. |
6.1 MedQuist will pay such sums owed free and clear of, and without offset or deduction for,
any and all state and local use, sales, property, and similar taxes, levied or assessed on or in
respect of such payments (other than any tax measured by or attributable to MedQuist’s gross or net
income), as and when the same are due.
6.2 By thirty (30) days after the end of each calendar month, MedQuist will furnish to Nuance
a written statement showing, in such detail as Nuance may reasonably request, the quantities of
Products actually sold and delivered (including Software), during the immediately-preceding month.
6.3 MedQuist will, throughout the Term of this Agreement and for one (1) year following the
expiration or termination of this Agreement, maintain a full and accurate record of the number of
copies of the Products actually sold and delivered (including Software) in such detail as may
enable Nuance to verify the amount of Prices due under this Agreement. So as to permit
verification, MedQuist will permit Nuance to examine such records on reasonable advance written
notice, during normal business hours at MedQuist’s offices at reasonable intervals no more
frequently than two (2) times per calendar year. Nuance will bear all costs and expenses for such
an examination, except in those cases in which the examining accountant ascertains a discrepancy of
more than five percent (5%) during the audited period to the disadvantage of Nuance between
payments actually made and payments due, in which event MedQuist will reimburse Nuance all
reasonable costs and expenses for such audit.
6.4 Nuance reserves the right to charge an interest rate of the lesser of: (i) eight percent
(8%) per annum; or (ii) the maximum amount permitted by applicable law, on past-due sums MedQuist
owes under this Agreement.
| 7. | Development Services. |
7.1 Nuance delivered a beta ready version of version 1.2 “Lite” Software to MedQuist for
internal and external user testing on or before ******* , including a full copy of the Source Code
thereto (“Beta Deliverable”). Nuance delivered a commercial version 1.2 “Lite” Software to MedQuist
on or before ******* , including a full copy of the Source Code thereto (“Commercial Deliverable”).
This enabled MedQuist to showcase a new version of the Software at ******* and to make the version
commercially available by no later than *******.
8. Limited Warranty.
8.1 Nuance warrants that, for a period of ninety (90) days after the delivery date (the
“Warranty Period”), the Software will perform in all material respects in accordance with the
Documentation accompanying the Software. If any copy of the Software is found not to perform
materially in accordance with the Documentation, Nuance will correct such error or malfunction or
(at Nuance’s sole option) replace such Software free of charge as soon as is reasonably
practicable, provided that: (i) the Software has been used in accordance with instructions for use;
(ii) no alteration, modification or addition has been made to the Software without Nuance’s prior
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written consent; and (iii) Nuance has been promptly notified of the alleged non-conformity
within the Warranty Period specified.
8.2 MedQuist will send each claim of MedQuist under this warranty to Nuance in accordance with
the notice provisions of this Agreement. Each such claim will state generally the nature of the
alleged non-conformity. If Nuance determines in its sole discretion to repair the Software (or such
portion of it as is giving rise to the non-conformity), MedQuist will afford Nuance a reasonable
time in which to do so. Any Software so repaired or replaced will be warranted for such period of
time as is remaining in the original Warranty Period.
8.3 This Limited Warranty is subject to the terms of Section 12 below. This Limited Warranty
is Nuance’s only obligations and the exclusive remedy of the End User with respect to the Nuance
supported Products and Nuance’s only warranty with respect to the Products to the End User. Nuance
will have no responsibility whatsoever with respect to the Products if the failure is due to
accident, abuse, or misapplication on the part of MedQuist or the End User.
8.4 MedQuist may offer any warranty that Nuance makes hereunder to any End Users provided that
warranty claims by MedQuist’s End Users will be made solely against MedQuist and not Nuance. The
warranties contained in this Agreement are solely for the benefit of MedQuist.
| 9. | Notification of Upgrades and Updates. |
9.1 Nuance will notify MedQuist of any revisions and updates to the Software with respect to
the development, maintenance and other Nuance services provided hereunder that affect the
operation, performance, or cost of such Software.
9.2 MedQuist will apply any revisions or updates to the Nuance supported Software as soon as
reasonably practicable after receipt of notification from Nuance.
| 10. | MedQuist’s Representations and Undertakings. MedQuist represents and undertakes with Nuance that: |
10.1 It will use commercially reasonable efforts to promote, market, and sell the Products
during the term of this Agreement;
10.2 It has the resources, facilities, and financial ability to market, distribute and provide
first line customer support for the Product and fulfill all of its obligations under this
Agreement;
10.3 It will not incur any liability on behalf of Nuance, pledge or purport to pledge Nuance’s
credit, or purport to act as an agent of Nuance or make any contract binding on Nuance;
10.4 It will permit Nuance or any independent third party Nuance retains to enter MedQuist’s
premises at a time MedQuist agrees to for the purpose of reviewing records related to this
Agreement (including, without limitation, verifying the number of Software sublicenses granted by
or through MedQuist and obtaining information concerning any Product complaints);
10.5 Third party software, as defined in Schedule E to this Agreement (the “Third Party
Software”), that is provided by Nuance to MedQuist and distributed with the Software will not be
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used in conjunction with any other programs or software whatsoever;
10.6 It will obtain and maintain at its sole risk, cost, and expense, all governmental
approvals required for or applicable to its distribution and other activities contemplated by this
Agreement, and will be responsible at its sole risk, cost, and expense for complying with all
applicable governmental statues, regulations, and ordinances (collectively, the “Laws”) related to
such activities; and
10.7 It will, before the delivery of the Products to an End User, ensure that such End User
enters into a software license agreement with MedQuist that will accompany each copy of the
Software in substantially the form set forth on Schedule F to this Agreement or such other end user
license agreement as determined by MedQuist from time to time (the “End User License Agreement”).
MedQuist will, from time to time, provide Nuance with a copy of any such updates to MedQuist’s
standard End User License Agreement as such applies to the Nuance supported Products.
11. Nuance’s Obligations. Nuance covenants, warrants, and agrees that it:
11.1 Has the necessary approvals and licenses to grant to MedQuist the co-ownership, right to
use, sublicense, and distribute the Software in accordance with the terms of this Agreement.
11.2 Has the resources, facilities, and financial ability to develop and provide second line
support for the Products and to fulfill all of its obligations under this Agreement.
11.3 Will provide initial 2 days of training in the use of the Products to technical staff of
MedQuist at no additional charge, at the place agreed on by both parties. Nuance and MedQuist will
mutually limit the number of personnel participating in training sessions. On MedQuist’s request,
Nuance will provide a similar training program for all upgrades to the Software. Each first
technical training for a new version will be done free of charge; for any subsequent training,
Nuance and MedQuist will agree on a reasonable price.
11.4 Will at all times during the Term of this Agreement and where applicable, following
termination hereof, observe and perform the terms and conditions set out in this Agreement.
12. Exclusion Of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8 OF THIS AGREEMENT,
NUANCE MAKES NO WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, WHATSOEVER, AS TO THE PRODUCTS AND THE
DOCUMENTATION. NUANCE EXPRESSLY DISCLAIMS, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSES, ACCURACY, SATISFACTORY QUALITY, NON-INFRINGEMENT, COURSE OF DEALING, OR COURSE
OF PERFORMANCE.
13. Limited Liability. IN NO EVENT WILL EITHER PARTY OR ANY OF ITS AFFILIATES, SUBSIDIARIES,
OR LICENSORS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, MULTIPLIED,
ENHANCED, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS
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OF REVENUE, PROFITS, OR GOODWILL, BUSINESS INTERRUPTION, OR LOST IN CONNECTION WITH THIS
AGREEMENT OR THE PRODUCT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY, ITS AFFILIATES, ITS
SUBSIDIARIES, OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY
LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED ITS ESSENTIAL PURPOSE. SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL
DAMAGES, SO THIS LIMITATION MAY NOT APPLY IN THOSE JURISDICTIONS. IF ANY CLAIM IS MADE AGAINST A
PARTY, INCLUDING WITHOUT LIMITATION CLAIMS AS A RESULT OF THE SUBSTANTIAL NONCONFORMANCE OF THE
SOFTWARE TO THE DOCUMENTATION OR OTHERWISE, THE PARTY’S TOTAL LIABILITY FOR DAMAGES WILL BE
LIMITED, IN THE AGGREGATE, TO ITS ACTUAL DIRECT DAMAGES, AND IN ANY EVENT WILL NOT EXCEED THE TOTAL
OF ALL AMOUNTS MEDQUIST IS OBLIGATED TO PAY NUANCE UNDER THIS AGREEMENT. SOME JURISDICTIONS MAY NOT
ALLOW LIMITATIONS OF LIABILITY FOR CERTAIN TYPES OF DAMAGE OR CERTAIN CLAIMS, SO SUCH LIMITATION
MAY NOT APPLY IN SUCH JURISDICTION.
14. Intellectual Property Indemnification. Nuance will indemnify, defend, and hold harmless
MedQuist, and MedQuist’s directors, officers, shareholders, employees, agents, and attorneys, and
MedQuist’s affiliates and their directors, officers, shareholders, partners, members, employees,
agents, and attorneys, and the End Users, and the successor, and assigns of any or all of them,
from all third-party Claims for infringement, misappropriation or violation of copyrights,
trademarks, trade secrets, or other proprietary rights associated with any portion of the Product,
or any other material delivered under this Agreement; provided that: (i) MedQuist promptly notifies
Nuance in writing of the Claim; (ii) Nuance has sole control of the defense and all related
settlement negotiations with respect to the Claim; provided however, that MedQuist has the right,
but not the obligation, to participate in the defense of any such Claim through counsel of its own
choosing (at MedQuist’s sole expense), which right will not detract from Nuance’s sole right to
control such defense; and (iii) MedQuist cooperates fully to the extent reasonably necessary, and
executes all documents reasonably necessary for the defense of such Claim. “Claim” will mean all
loss, losses, liabilities, damage, damages, claims, taxes, and all related costs and expenses;
including, without limitation, reasonable attorneys’ fees and costs of investigation, litigation,
settlement, judgment, interest, and penalties. If MedQuist provides Nuance with notice of a Claim,
MedQuist may withhold any further payments due to Nuance pursuant to this Agreement, and deposit
the same in an interest-bearing escrow account with a commercial bank. On the resolution of any
claim, the amounts in escrow, including accrued interest thereon, will be distributed to Nuance
after deductions of amounts Nuance is required to pay MedQuist under this Section 14. If MedQuist’s
or its End Users’ use of any portion of the Product or any other material delivered under this
Agreement is enjoined in an action by reason of a Claim of infringement, violation or
misappropriation of any third party’s patents, copyrights, trademarks, trade secrets or other
proprietary rights, or Nuance reasonably believes that it will be so enjoined, then Nuance will, at
its sole option and expense, in addition to its other obligations in this Section 14: (i) procure
for MedQuist and its End Users the right to continue using the Product or any portion thereof; (ii)
replace the same with software of equivalent functions and efficiency that is not subject to an
action described in this section; or (iii) modify the applicable Software so that there is no
longer any infringement or breach,
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provided that such modification does not adversely affect the functional capabilities of the
Product as set out in this Agreement. If neither (i), (ii), or (iii) may be accomplished despite
Nuance’s reasonably diligent efforts, MedQuist may terminate this Agreement with regard to the
portion of the Product that is alleged to infringe, violate, or misappropriate a third party’s
rights, and MedQuist shall, during the Term of this Agreement, be entitled to a pro-rata refund of
the total of all amounts MedQuist has paid and is obligated to pay Nuance under clauses 4.1 and 4.4
of this Agreement after the Amended and Restated Agreement Effective Date, with respect to such
portion. Nuance will have no liability respecting any claim of infringement or breach as aforesaid
to the extent such claim is based on the combination, operation, or use of the Software with other
equipment, software, apparatus, devices, or things not supplied by Nuance or in a manner not
substantially consistent with Nuance’s specifications and instructions.
Notwithstanding anything to the contrary provided in this Agreement, Nuance shall not be liable for
and the obligations of Nuance in this Section will not apply to the extent of the use of the
Product other than in accordance with its specifications or normal intended use; or any Claim based
on or related to any modification or adaptation of the Product by any person other than Nuance
unless made on Nuance’s behalf.
In no event shall Nuance’s liability under this Section 14 exceed, in the aggregate, the total of
all amounts MedQuist has paid and is obligated to pay Nuance under this Agreement.
This Section 14 states the entire liability of Nuance for any type of infringement or breach
whatsoever of Intellectual Property Rights of third parties related to the manufacture, sale,
operation, or use of the Product.
15. Product Co-Ownership. As of the execution and delivery of the Amended and Restated
OEM Supply Agreement, the Second Amended and Restated Agreement Effective Date or the Third Amended
and Restated Agreement Effective Date, Nuance and MedQuist jointly own all right title and interest
in and to the Products (including object and Source Code for the SpeechQ for Radiology application
and the SpeechQ for Radiology Integration SDK) and the Intellectual Property Rights therein and all
derivatives, modifications, enhancements, corrections, additions, and extensions to the Products
(and Source Code) provided by Nuance hereunder (including but not limited to the beta version of
version 1.2 “Lite” Software and the commercial version of SpeechQ for Radiology version 1.2
“Lite”), without any right or duty of accounting to or consulting with the other party (excluding
the obligations of Section 4.2 during the Term) and in relation to which each party shall, and does
hereby, assign and convey to the other all rights, titles and interests necessary to give full
effect to such joint ownership. Each party shall, and does hereby, assign and convey to the other
all rights, titles and interests necessary to give full effect to such joint ownership of the
Products (including Source Code); Nuance covenants and agrees that Nuance has all of the right,
title and interest to the Products necessary to effectuate the foregoing and no further transfer or
assignments from any other Nuance Affiliate or any third party are necessary to effectuate the
foregoing. Upon the request of MedQuist, Nuance shall take such further actions, at MedQuist’s
expense, as may be reasonably appropriate or necessary to confirm such rights. Nuance represents,
warrants and covenants that: (i) it has and will have the full and sufficient right to assign and
grant the rights granted to MedQuist pursuant to this Agreement free and clear of any liens, claims
or encumbrances and (ii) to Nuance’s knowledge, none of the Products at the Amended and Restated
Agreement Effective Date or at the Second Amended and Restated Agreement Effective Date infringes
any Intellectual Property Rights of any third party, nor has any claim of such infringement been
threatened or asserted. The sole
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11
remedy for MedQuist for any breach of the warranty in subsection (ii) of the preceding sentence is
set forth in Section 14 of this Agreement. Nuance agrees that, on and after the Amended and
Restated Agreement Effective Date, MedQuist may make further derivatives, modifications,
enhancements, corrections, additions, and extensions to the Products (“MedQuist Modifications”) and
that MedQuist will be the sole and exclusive owner of the MedQuist Modifications without a duty to
disclose or provide such to Nuance, and Nuance agrees to do nothing inconsistent with such
ownership by MedQuist and nothing herein grants any license to such MedQuist Modifications to
Nuance. MedQuist agrees that Nuance may make further derivatives, modifications, enhancements,
corrections, additions, and extensions to the Products separate and apart from the development,
maintenance and other Nuance services provided hereunder (“Nuance Modifications”) and that Nuance
will be the sole and exclusive owner of the Nuance Modifications without a duty to disclose or
provide such to MedQuist, and MedQuist agrees to do nothing inconsistent with such ownership by
Nuance and nothing herein grants any license to such Nuance Modifications to MedQuist; provided
that the foregoing shall not relieve Nuance of any of its development, maintenance and other Nuance
service obligations hereunder. The provisions of this Section shall survive the termination or
expiration of this Agreement. On or after the Third Amended and Restated Agreement Effective Date,
MedQuist may make MedQuist Modifications to market the Products to medical specialties, other than
radiology, subject to its rights under Section 15 and Section 17.5.
16. Legal Compliance.
16.1 Neither party may download or otherwise export or re-export the Software or any
underlying information or technology except in full compliance with all United States and other
applicable laws and regulations. In particular, but without limitation, none of the Software or
underlying information or technology may be downloaded or otherwise exported or re-exported: (i)
into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Syria, or Sudan (as
such list is updated by the US Government from time to time); or (ii) to anyone on the U.S.
Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s
Table of Deny Orders.
16.2 In accordance with the Federal Center for Devices and Radiological Health regulations, in
order to permit tracing in the event of recall, each party will retain distribution records for the
Products for a period of five (5) years from the date of termination or expiration of this
Agreement.
16.3 Each party is aware of and will advise its End Users to comply with Section 1 12B(b) of
the Social Security Act (42 U.S.C. 1320a-7b) (the “Act”) when seeking reimbursement from any
governmental entity for products supplied under this Agreement. Specifically, each party
acknowledges that the Act may require proper disclosure of any discounts, rebates, credits,
reimbursements, and other programs Nuance or MedQuist provide in connection with delivery of the
Products.
16.4 Neither party will ship, transfer, or export any of the Products, or any derivative
thereof, directly or indirectly, into any country except as permitted by the U.S. Export
Administration Act and the regulations thereunder, or use any of the Products for any purpose
prohibited by the U.S. Export Administration Act.
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12
17. Intellectual Property Rights.
17.1 With respect to the co-owned Products, in the event that either MedQuist or Nuance, or
both, wish to pursue a patent in any Product technology or any component thereof provided
hereunder, they shall cooperate with each other in preparing and submitting one or more patent
applications. Where the Parties agree to, and do, share equally in the cost of prosecuting these
patent applications in any Product technology or any component thereof provided hereunder, the
Parties shall jointly own any resulting patent without any right or duty of accounting to or
consulting with the other party. Where the Parties agree that one of them shall pay more than half
of the cost of prosecuting the patent application, and it does so, that Party shall own the patent
and shall grant to the other party, absent any other written agreement between the Parties, a non
exclusive, perpetual, transferable, worldwide, irrevocable, royalty-free, fully paid-up license to
use, copy, modify and prepare derivative works of the patent (including, without limitation, the
right to make, have made, use, import, offer for sale and sell or otherwise provide or dispose of
products and services using or incorporating the same) or to practice any process in connection
therewith, with the right to sublicense the same.
17.2 The Parties shall cooperate with each other and execute such other documents as may be
necessary and appropriate to achieve the objectives of this Section and Section 15. Each of the
joint owners of the Products shall have the right to assign its rights and interest in any jointly
owned Product (including the Intellectual Property Rights therein) to an Affiliate or to an
acquirer of (or a part of) the joint owner’s business, as part of a bona fide and solvent
divestiture carried out at arm’s length basis, to which the jointly owned Product is relevant. For
purposes of this Agreement, the terms joint ownership and co-ownership are used interchangeably to
mean joint ownership by Nuance and MedQuist.
17.3 In no event shall either Party be precluded from independently developing for itself, or
for others, anything, whether in tangible or non-tangible form, which is competitive with, or
similar to, the co-owned Products. In addition, both Parties shall be free to use its general
knowledge, skills and experience, and any ideas, concepts, know-how, and techniques that are
acquired or used in the course of providing or receiving the co-owned Products hereunder.
17.4 Nuance grants MedQuist a limited, nonexclusive right to use Nuance’s trademarks and trade
names (the “Marks”) in connection with the advertising, marketing and sale of the Products. To the
extent necessary in connection with the foregoing, Nuance shall cause its applicable Affiliates to
grant similar rights to MedQuist as set forth in this Section with respect to any Marks used by
Nuance but held in the name of any such Affiliates. MedQuist will not use Nuance’s trade names or
abbreviations (with the exception of a logo or xxxx or graphic design Nuance provides which
indicates MedQuist is an authorized value-added reseller of Nuance) in MedQuist’s corporate title
or name, or in any manner that may result in confusion as to separate and distinct identities of
Nuance and MedQuist. MedQuist agrees that it has no right, title, or interest in or to the Marks
except the limited right of use set forth in this Agreement. MedQuist will not use any Xxxx in any
way except as Nuance may authorize. MedQuist will submit to Nuance representative samples of all
labels, advertising, promotional and marketing materials, and other items that use or bear any Xxxx
for Nuance’s approval prior to publication or distribution. MedQuist will use the Marks only in the
forms Nuance designate, will not alter or modify any Xxxx, and will include an appropriate
trademark notice ® or TM with each use of any Xxxx. On expiration or termination of this Agreement,
the license granted
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13
under this Section 17.4 will automatically terminate and MedQuist will immediately cease and
desist all use of the Marks licensed under this Agreement.
17.5 MedQuist intends to market the Products described in this Agreement under the trademark
“SpeechQTM” and certain trademarks, trade names, service marks, logotypes, and other commercial
symbols related thereto (collectively, the “SpeechQ Marks”). Nuance further acknowledges and agree
that: (i) there is substantial and valuable goodwill in the SpeechQ Marks; (ii) as between Nuance
and any of its Affiliates on the one hand, and MedQuist and any of its Affiliates on the other,
MedQuist owns all rights to the SpeechQ Marks and all goodwill related to them; (iii) neither
Nuance nor any of its Affiliates will contest MedQuist’s ownership of the SpeechQ Marks, or the
validity of the SpeechQ Marks, at any time during or after the Term of this Agreement; and (iv)
neither Nuance nor any of its Affiliates will misappropriate the SpeechQ Marks, infringe on
MedQuist’s rights in the SpeechQ Marks, or use the SpeechQ Marks without MedQuist’s prior written
consent, at any time during or after the Term of this Agreement.
17.6 Any advertising, publicity, release or other disclosure of information concerning this
Agreement should be released only after receiving a prior written approval by both parties except
as required by law.
17.7 Neither Party, unless approved by both Parties in writing, is allowed to link, combine or
otherwise use the co-owned Products with any open source software, if such linkage, combination or
use would create a risk, or have the “viral” effect, of requiring the disclosure or licensure of
the co-owned Products as open source under the GNU General Public License or under the terms of any
other comparable viral open source license. In the event an action is performed resulting in the
co-owned Products being licensed under the GNU General Public License or under the terms of any
other comparable viral open source license without approval by both Parties, the Party causing this
action shall indemnify the other Party against and hold the other Party harmless from any and all
damages and/or costs arising from or in connection with any breach of the provisions of this
Section 17.7 and shall reimburse any and all costs and expenses incurred by the other Party in
defending any claim, demand, suit or proceeding arising from or in connection with such breach. The
indemnification in this Section is not subject to the limitations set forth in Sections 13 or 14 of
this Agreement.
18. Confidential Information. Each party to this Agreement has imparted and may from
time to time impart to the other certain confidential information related to the performance
of this Agreement, and the Products or the marketing or support thereof (including specifications
therefor), and each party may otherwise obtain confidential information concerning the business and
affairs of the other pursuant to this Agreement. Each party hereby agrees that it will use such
confidential information solely for the purposes of this Agreement and that it will not disclose,
whether directly or indirectly, to any third party such information other than as required to carry
out the purposes of this Agreement. In the event of and prior to such disclosure, the disclosing
party will obtain from such third parties duly binding agreements to maintain in confidence the
information to be disclosed to the same extent at least as such party is so bound hereunder. The
foregoing provision will not prevent the disclosure or use by a party of any information which is
or hereafter, through no fault of such party, becomes public knowledge or to the extent permitted
by law, provided that each party has a reasonable opportunity to prevent or limit such disclosure.
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14
MedQuist will return to Nuance all confidential information received pursuant to this
Agreement or otherwise in its possession or control on termination of this Agreement, or forthwith
on the request of Nuance.
19. Remedies on Breach. Each party acknowledges that the unauthorized use or disclosure
of any confidential information will cause irreparable harm to the other for which damages
will be an inadequate remedy, and the each party hereby agrees that, in additional to all other
remedies available to it at law and in equity, it will have the right to obtain injunctive relief.
20. Termination.
20.1 Either party may terminate this Agreement on written notice to the other if any of the
following events occur:
20.1.1 If any proceeding in bankruptcy, receivership, liquidation or insolvency is commenced
against the other party or its property, and the same is not dismissed within ninety (90) days; or
20.1.2 If the other party makes any assignment for the benefit of its creditors, becomes
insolvent, commits any act of bankruptcy, ceases to do business as a going concern, or seeks any
arrangement or compromise with its creditors under any statute or otherwise.
20.2 Nuance may terminate this Agreement on written notice to MedQuist if any of the following
events occur:
20.2.1 In the event that a material breach by MedQuist remains uncured for more than thirty
(30) days following Nuance’s delivery of written notice to MedQuist specifying the nature of the
breach; or
20.3 MedQuist may terminate this Agreement on written notice to Nuance in the event that a
material breach by Nuance remains uncured for more than thirty (30) days following MedQuist’s
delivery of written notice to Nuance specifying the nature of the breach.
21. Obligations On Termination. On the expiration or termination of this Agreement:
21.1 Nuance will be under no obligation to refund to MedQuist any Prices paid pursuant to this
Agreement so long as Nuance has fulfilled all of its obligations under this Agreement related to
such Prices; including, without limitation, delivery of the applicable Product and fulfilling the
warranty obligations for such Products as specified hereunder;
21.2 Subject to Section 4.3.5., Nuance will continue to perform its support obligations to
MedQuist for the duration of all SMAs between MedQuist and the End Users entered into before such
expiration or termination (but, in accordance with Section 4.3.5, in no event beyond ******* unless
otherwise separately agreed by Nuance and MedQuist), where support fees have been paid to Nuance;
21.3 Any End User licenses granted before the expiration or termination of this Agreement will
continue to survive after the effective date of termination provided that MedQuist
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15
has paid all amounts owing hereunder (and pursuant to MedQuist’s co-ownership rights
hereunder, MedQuist may grant additional End User licenses to the Products after such expiration or
termination, subject to the Territory restrictions in Section 2, and provided such End User
licenses to the Products do not impose any maintenance, support or service obligations or any other
obligations on Nuance); and
21.4 The following provisions shall survive termination or expiration of this Agreement: 1,
2.2 (including the Territorial restrictions therein), 2.3, 6.3, 11.4, 12, 13, 14, 15, 17, 18, 19,
20, 21 and 22.
22. Miscellaneous.
22.1 Force Majeure. The term “Force Majeure” will be defined as an act of God; severe weather
conditions; strikes; war, terror or other violence; law or proclamation, demand, or requirement of
any governmental agency; or any other similar act or condition whatsoever, beyond the reasonable
control of the parties to this Agreement. If the performance of this Agreement by either party or
any obligation under this Agreement is prevented, restricted, or interfered with by reason of a
Force Majeure event, the party whose performance is so affected, on giving prompt notice to the
other party, will be excused from such performance to the extent of such Force Majeure event;
provided, however, that the party so affected will take all reasonable steps to avoid or remove
such causes of nonperformance and will continue performance under this Agreement with dispatch
whenever such causes are removed.
22.2 Relationship of MedQuist to Nuance. Neither party is an agent, employee, fiduciary,
partner, or representative of the other, and has no authority or power to bind or contract in the
name of or to create any liability against the other in any way or for any purpose. It is
understood that MedQuist is an independent contractor with rights confirmed by this Agreement to
market, distribute, and support the Product on its own accord and responsibility in the Territory.
22.3 Waiver. Failure or neglect by either party to enforce at any time any of the provisions
of this Agreement will not be construed nor will be deemed to be a waiver of either party’s rights
under this Agreement nor in any way affect the validity of the whole or any part of this Agreement
nor prejudice either party’s rights to take subsequent action.
22.4 Agreement. This Agreement, including the Schedules attached to this Agreement, states the
completed agreement between the parties concerning this subject and supersedes earlier oral and
written communications between the parties concerning this subject. No addition, amendment to, or
modification of this Agreement will be effective unless it is in writing and signed by both
parties. This Agreement takes precedence over and supersedes any previous agreements between the
parties regarding the subject matter hereof, even if such agreements are still in effect as of the
date of the Third Amended and Restated Agreement.
22.5 Assignment. 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
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16
any purchaser of substantially all of the assets or the business of this respective Party.
22.6 Notices. Any notice required or permitted under the terms of this Agreement or required
by Law will, unless otherwise provided, be in writing and will he delivered in person, sent by
registered mail or air mail as appropriate, properly posted and fully prepaid, in an envelope
properly addressed; or sent by next-day delivery via a courier that has the ability to track
deliveries and confirm receipts to the respective parties, as follows:
| To Nuance: | Nuance Communications, Inc. | |||
| Attn: Xxxxx Xxxxxxxxxx | ||||
| 0 Xxxxxxx Xx | ||||
| Xxxxxxxxxx, XX 00000 | ||||
| To MedQuist: | MedQuist Inc. | |||
| 0000 Xxxxxxx Xxxx Xxxx. #000 | ||||
| Xxxxx Xxxxxx, XX 00000 | ||||
| Attn: Chief Legal Officer |
with a simultaneous copy, which will not constitute notice, to:
| Xxxxx Xxxxx, Esq. | ||||
| Xxxxxxxx Ingersoll & Rooney PC | ||||
| One Oxford Centre | ||||
| 000 Xxxxx Xxxxxx, 00xx Xxxxx | ||||
| Xxxxxxxxxx, XX 00000-0000 | ||||
| Fax: 000-000-0000 |
or to such other address as may from time to time be designated by written notice hereunder. Any
such notice will be in the English language and will be considered to have been given at the time
when actually delivered if delivered by hand, on the next business day following sending by courier
or in any other event within seven (7) days after it was mailed in the manner provided in this
Section 22.6.
22.7 Headings. The headings of the sections of this Agreement are inserted for convenience of
reference only and are not intended to be part of or to affect the meaning or interpretation of
this Agreement.
22.8 Severability. In the event that any or any part of the terms, conditions, or provisions
contained in this Agreement arc determined by any competent authority to be invalid, unlawful, or
unenforceable to any extent, such term, condition, or provision will to that extent be severed from
the remaining terms, conditions, and provisions, which will continue to be valid and enforceable to
the fullest extent permitted by law.
22.9 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.
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17
22.10 No Damages for Termination or Expiration. NUANCE WILL NOT BE LIABLE TO MEDQUIST FOR
DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO INCIDENTAL OR CONSEQUENTIAL DAMAGES, SOLELY ON
ACCOUNT OF NUANCE’S TERMINATION OR EXPIRATION OF THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS.
MEDQUIST WAIVES ANY RIGHT IT MAY HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS ON TERMINATION
(OTHER THAN IN THE CASE OF A TERMINATION OF THIS AGREEMENT BY MEDQUIST FOR CAUSE UNDER SECTION 20.3
OF THIS AGREEMENT) OR EXPIRATION OF THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS UNDER THE LAW OF
ANY TERRITORY, STATE, OR OTHERWISE. Nuance will not be liable to MedQuist on account of termination
(other than in the case of termination of this Agreement by MedQuist for cause under Section 20.3
of this Agreement) or expiration of this Agreement in accordance with its terms for reimbursement
or damages for the loss of goodwill, prospective profits, or anticipated income, or on account of
any expenditures, investments, or commitments made by MedQuist, or for any other reason whatsoever,
based on or growing out of such expectation or termination.
22.11 Authority. Each of the parties hereby represents that it has full power and authority to
enter into and perform its respective obligations under this Agreement, and does not know of any
contracts, agreements, promises, or undertaking, that would prevent the full performance and
compliance with this Agreement.
[SIGNATURES CONTAINED ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have duly executed and delivered this Amended and Restated
Agreement as of the Third Amended and Restated Agreement Effective Date.
| MEDQUIST INC. | NUANCE COMMUNICATIONS, INC. | |||||||||
By:
|
/s/ Xxxxx Xxxxxxxxx | By: | /s/ Xxxx Xxxxxxxx | |||||||
| Title: President & CEO | Title: President, Healthcare | |||||||||
| Date: November 10, 2009 | Date: November 10, 2009 | |||||||||
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19
SCHEDULE A
TERRITORY
Description of Territory:
MedQuist’s exclusive Territory shall be all that area within 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, Xxxxx Island, Guam, Xxxxxxx Island, Xxxxxx Island,
Xxxxxxxx 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 Xxxxxxx Channel between
Ellesmere Island and Greenland, which area is subject to a border dispute between the Dominion of
Canada and the Kingdom of Denmark.
MedQuist’s non-exclusive Territory shall be all that area of Australia and the United Kingdom.
“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 Xxxxxxx 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.
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SCHEDULE B
PRODUCTS
Description of Products:
The Products that are the subject of this Agreement are:
| 1. | “SpeechQ for Radiology”, together with its components; front-end Integration SDK, and SpeechLink. |
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SCHEDULE C
PRICES
PRICES
| Prices may be adjusted from time to time based upon the mutual agreement of the need for such a change by both MedQuist and Nuance. |
| The Prices consist of a revenue share part for the Product (“Revenue Share Fee”) for the items listed below, jointly referred to as “Prices” in this Agreement. |
Table 1 Prices
| Revenue Share Fee items | Revenue Shares Fee payable to Nuance | |
Per Link
|
******* | |
Report Station per Concurrent Transcription User Fee*
|
******* | |
Report Station per Concurrent Dictation User Fee*
|
******* | |
Test Server Package
|
******* |
| * | For every transcription user or workstation, a Report Station needs to be purchased. |
A concurrent user is a user that is logged into the Software: For e.g: 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 Software.
For end-customers who have no SMA contracts, Nuance and MedQuist will agree on a case by case
basis on a recommended end-user upgrade price for patches and point releases, and Nuance will get
******* of that price.
Development/Consulting/Training Services: ******* . Beginning January 1, 2011, Nuance reserves the
right to update these fees to Nuance’s then current published rates for these services.
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SCHEDULE E
THIRD PARTY SOFTWARE
*******
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SCHEDULE F
END USER LICENSE AGREEMENT
END USER LICENSE AGREEMENT for MEDQUIST ‘Branded’ SOFTWARE
[see attached]
END USER LICENSE AGREEMENT for MEDQUIST ‘Branded’ SOFTWARE
[see attached]
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