“You” and “your” refers to the individual or entity that has executed this agreement (“agreement”) and ordered programs and/or services from Nexiwave or an authorized distributor. The term “ancillary programs” refers to third party materials specified in the program documentation which may only be used for the purposes of installing or operating the programs with which the ancillary programs are delivered. The term “program documentation” refers to the program user manual and program installation manuals. The term “programs” refers to the software products owned or distributed by Nexiwave which you have ordered, program documentation, and any program updates acquired through technical support. The term “services” refers to technical support, education, hosted/outsourcing services, consulting or other services which you have ordered.
This agreement is valid for the order which this agreement accompanies.
Upon Nexiwave's acceptance of your order, you have the non-exclusive, non-assignable, royalty free, perpetual (unless otherwise specified in the agreement), limited right to use the programs and receive any services you ordered solely for your internal business operations and subject to the terms of this agreement, including the definitions and rules set forth in the order and the program documentation. You may allow your agents and contractors (including, without limitation, outsourcers) to use the programs for this purpose and you are responsible for their compliance with this agreement in such use. For programs that are specifically designed to allow your customers and suppliers to interact with you in the furtherance of your internal business operations, such use is allowed under this agreement. If accepted, Nexiwave will notify you and this notice will include a copy of your agreement. Program documentation is delivered with the programs, or you may access the documentation online at http://nexiwave.com/PC-NG-AA/contracts. Services are provided based on Nexiwave’s policies for the applicable services ordered, which are subject to change, and the specific policies applicable to you, and how to access them, will be specified on your order (except technical support services, which are as specified in section 8 of this agreement). Upon payment for services, you have the non-exclusive, non-assignable, royalty free, perpetual, limited right to use for your internal business operations anything developed by Nexiwave and delivered to you under this agreement; however, certain deliverables may be subject to additional license terms provided in the agreement.
The services provided under this agreement may be related to your license to use programs which you acquire under a separate order. The agreement referenced in that order shall govern your use of such programs. Any services acquired from Nexiwave are bid separately from such program licenses, and you may acquire either services or such program licenses without acquiring the other.
Nexiwave or its licensors retain all ownership and intellectual property rights to the programs. Nexiwave retains all ownership and intellectual property rights to anything developed by Nexiwave and delivered to you under this agreement resulting from the services. You may make a sufficient number of copies of each program for your licensed use and one copy of each program media.
Third party technology that may be appropriate or necessary for use with some Nexiwave's programs is specified in the program documentation. Such third party technology is licensed to you under the terms of the third party technology license agreement specified in the program documentation and not under the terms of this agreement.
You may not:
Nexiwave warrants that a program licensed to you will operate in all material respects as described in the applicable program documentation for one year after delivery (i.e., via physical shipment or electronic download). You must notify Nexiwave of any program warranty deficiency within one year after delivery. Nexiwave also warrants that services will be provided in a professional manner consistent with industry standards. You must notify Nexiwave of any services warranty deficiencies within 90 days from performance of the defective services.
NEXIWAVE DOES NOT GUARANTEE THAT THE PROGRAMS WILL PERFORM ERROR-FREE OR UNINTERRUPTED OR THAT NEXIWAVE WILL CORRECT ALL PROGRAM ERRORS.
FOR ANY BREACH OF THE ABOVE WARRANTIES, YOUR EXCLUSIVE REMEDY AND NEXIWAVE’S ENTIRE LIABILITY SHALL BE: (A) THE CORRECTION OF PROGRAM ERRORS THAT CAUSE BREACH OF THE WARRANTY; OR, IF NEXIWAVE CANNOT SUBSTANTIALLY CORRECT SUCH BREACH IN A COMMERCIALLY REASONABLE MANNER, YOU MAY END YOUR PROGRAM LICENSE AND RECOVER THE FEES PAID TO NEXIWAVE FOR THE PROGRAM LICENSE AND ANY UNUSED, PREPAID TECHNICAL SUPPORT FEES YOU HAVE PAID FOR THE PROGRAM LICENSE; OR (B) THE PERFORMANCE OF THE DEFICIENT SERVICES; OR, IF NEXIWAVE CANNOT SUBSTANTIALLY CORRECT A BREACH IN A COMMERCIALLY REASONABLE MANNER, YOU MAY END THE RELEVANT SERVICES AND RECOVER THE FEES PAID TO NEXIWAVE FOR THE DEFICIENT SERVICES.
TO THE EXTENT PERMITTED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
You may order trial programs, or Nexiwave may include additional programs with your order which you may use for trial, non-production purposes only. You may not use the trial programs to provide or attend third party training on the content and/or functionality of the programs. You have 30 days from the delivery date to evaluate these programs. If you decide to use any of these programs after the 30 day trial period, you must obtain a license for such programs from Nexiwave or an authorized distributor. If you decide not to obtain a license for any program after the 30 day trial period, you will cease using and will delete any such programs from your computer systems. Programs licensed for trial purposes are provided “as is” and Nexiwave does not provide technical support or offer any warranties of any sort for these programs, including but not limited to service quality, service availability and service levels.
Unless otherwise specified, all general industry accepted rules and conditions apply to the Nexiwave trial program. Unless otherwise specified, the Nexiwave free plan should be considered as part of Nexiwave trial programs.None of the Nexiwave Service Level Guarantees apply to the Trial programs or the free plan.
Fair use: free plan does not mean unlimited usage. To ensure the proper operation of Nexiwave systems, Nexiwave limits free plans to maximum four (4) audio processings per day. Any usage exceeded this amount may subject to extra service delays, service rejections, or in extreme cases, account suspension.
Nexiwave reserves the right to make changes to the trial programs from time to time without notice.
If a third party makes a claim against either you or Nexiwave (“Recipient” which may refer to you or Nexiwave depending upon which party received the Material), that any information, design, specification, instruction, software, data, or material (“Material”) furnished by either you or Nexiwave (“Provider” which may refer to you or Nexiwave depending on which party provided the Material), and used by the Recipient infringes its intellectual property rights, the Provider, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:
If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any fees the Recipient may have paid for it and any unused, prepaid technical support fees you have paid for the license. If you are the Provider and such return materially affects Nexiwave’s ability to meet its obligations under the relevant order, then Nexiwave may, at its option and upon 30 days prior written notice, terminate the order. The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider’s user documentation or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon any information, design, specification, instruction, software, data, or material not furnished by the Provider. Nexiwave will not indemnify you to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by Nexiwave. Nexiwave will not indemnify you for infringement caused by your actions against any third party if the Nexiwave's program(s) as delivered to you and used in accordance with the terms of this agreement would not otherwise infringe any third party intellectual property rights. This section provides the parties’ exclusive remedy for any infringement claims or damages.
For purposes of the agreement, technical support consists of annual technical support services you may have ordered for the programs. If ordered, annual technical support (including first year and all subsequent years) is provided under Nexiwave’s technical support policies in effect at the time the services are provided. The technical support policies, incorporated in this agreement, are subject to change at Nexiwave’s discretion; however, Nexiwave will not materially reduce the level of services provided for supported programs during the period for which fees for technical support have been paid. You should review the policies prior to entering into the agreement for the applicable services.
Technical support is effective upon the effective date of the agreement unless otherwise stated in your order. If your order was placed through the Nexiwave Store, the effective date is the date your order was accepted by Nexiwave.
If either of us breaches a material term of this agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate this agreement. If Nexiwave ends this agreement as specified in the preceding sentence, you must pay within 30 days all amounts which have accrued prior to such end, as well as all sums remaining unpaid for programs ordered and/or services received under this agreement plus related taxes and expenses. If Nexiwave ends the license for a program under the Indemnification section, you must pay within 30 days all amounts remaining unpaid for services related to such license plus related taxes and expenses. Except for nonpayment of fees, the non-breaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if you are in default under this agreement, you may not use those programs and/or services ordered. You further agree that if you have used an Nexiwave Financing Division contract to pay for the fees due under an order and you are in default under that contract, you may not use the programs and/or services that are subject to such contract. Provisions that survive termination or expiration are those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive.
All fees payable to Nexiwave are due immediately from the invoice date. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that Nexiwave must pay based on the programs and/or services you ordered, except for taxes based on Nexiwave’s income. Also, you will reimburse Nexiwave for reasonable expenses related to providing the services. Fees for services listed in an agreement are exclusive of taxes and expenses. You agree that you have not relied on the future availability of any programs or updates in entering into the payment obligations in your agreement.
By virtue of this agreement, the parties may have access to information that is confidential to one another (“confidential information”). We each agree to disclose only information that is required for the performance of obligations under this agreement. Confidential information shall be limited to the terms and pricing under this agreement and all information clearly identified as confidential at the time of disclosure.
A party’s confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
We each agree to hold each other’s confidential information in confidence for a period of three years from the date of disclosure. Also, we each agree to disclose confidential information only to those employees or agents who are required to protect it against unauthorized disclosure. Nothing shall prevent either party from disclosing the terms or pricing under this agreement or orders submitted under this agreement in any legal proceeding arising from or in connection with this agreement or disclosing the confidential information to a federal or state governmental entity as required by law.
You agree that this agreement and the information which is incorporated into this agreement by written reference (including reference to information contained in a URL or referenced policy), together with the applicable agreement, are the complete agreement for the programs and/or services ordered by you, and that this agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such programs and/or services. If any term of this agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of this agreement. It is expressly agreed that the terms of this agreement and any Nexiwave agreement shall supersede the terms in any purchase order or other non-Nexiwave agreement and no terms included in any such purchase order or other non-Nexiwave agreement shall apply to the programs and/or services ordered. This agreement and agreements may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online through the Nexiwave Store by authorized representatives of you and of Nexiwave. Any notice required under this agreement shall be provided to the other party in writing.
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA, OR DATA USE. NEXIWAVE’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT OF THE FEES YOU PAID NEXIWAVE UNDER THIS AGREEMENT, AND IF SUCH DAMAGES RESULT FROM YOUR USE OF PROGRAMS OR SERVICES, SUCH LIABILITY SHALL BE LIMITED TO THE FEES YOU PAID NEXIWAVE FOR THE DEFICIENT PROGRAM OR SERVICES GIVING RISE TO THE LIABILITY.
Export laws and regulations of the Canada and any other relevant local export laws and regulations apply to the programs. You agree that such export control laws govern your use of the programs (including technical data) and any services deliverables provided under this agreement, and you agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, program and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 90 days, either of us may cancel unperformed services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for programs delivered or services provided.
To fully understand your license grant, you need to review the definition for the licensing metric and term designation as well as the licensing rules.
You agree to pay any sales, value-added or other similar taxes that must be paid based on the services provided to you. You shall reimburse Nexiwave for any actual, reasonable travel and out-of-pocket expenses incurred in connection with the services delivered on-site; such expenses are not included in the fees for the services and will be invoiced separately. All fees due under this Agreement are non-cancelable and the sums paid nonrefundable.
Account refill time: upon receiving your payment, Nexiwave will refill your account with audio processing minutes balance. You understand that it may take up to three days for the account balance to be refilled.
Disaster Recovery: upon activation of Disaster Recovery plan, Nexiwave can switch to backups sites within 60 minutes of notice. However, extreme circumstances, Nexiwave may require up to 4 hours to switch to Disaster Recovery environment. During disaster recovery period, you may experience reduced level response time or/and call quality.
Data Recovery: you understand that, under extreme circumstances, your data stored on our network may get corrupted and result un-useable form. Nexiwave guarantees to recover any data that is one day old in our storage system.
Accuracy: You understand that Machine transcription result accuracy has many dependencies, including, but not exclusive, audio quality, audio codec, audio compression rate, speaker speed, speaker accent, background noise. Under acceptable acoustic conditions, Nexiwave machine transcription provides average minimum of 50% accuracy.
Data storage time: No data stored is the best security. Unless otherwise noted, Nexiwave purges your voicemail audio and associated text transcript from our system at the noted periods: for email based service, Nexiwave purges voicemail audio and associated text transcript when the outgoing email is confirmed delivered (or confirmed unable-to-deliver). For services where voicemail audio requires to be stored on Nexiwave servers, such as Nexiwave hosted voicemail service where the main delivery method is SMS text, the voicemail audio is stored on Nexiwave system for up to one (1) month whereas generated text transcript are purged as soon as the transcript is delivered or confirmed unable to deliver.
At Nexiwave's written request, not more frequently than annually, you shall furnish Nexiwave with a signed certification verifying that the services are being used in accordance with the provisions of the Agreement and this Agreement.
Upon 45 days written notice, Nexiwave at its own expense may audit your use of the services. You agree to cooperate with Nexiwave's audit and provide reasonable assistance and access to information. You agree to pay, within 30 days of written notification, any fees applicable to your use of the services in excess of your service rights. Nexiwave may cease providing services if fees remain unpaid. You agree that Nexiwave shall not be responsible for any costs incurred in cooperating with the audit.
You understand that Nexiwave allows a single delivery of the machine transcription within seven (7) days after the transcription is generated by Nexiwave. The delivery methods include, but not limited to, retrieving via Nexiwave API, delivering via outbound voicemail email to customer designated email address, and delivering to customer via callback API. At the end of this seven (7) day period or after the success of the first delivery, the submitted audio and any associated transcription is purged from Nexiwave system.
Our respective responsibilities for maintaining the privacy and security of your production data in connection with Nexiwave's Speech Indexing Services are published at http://www.nexiwave.com/PC-NG-AA/help/privacy.jsp.
You agree not to use or permit use of the services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, "junk mail", "spam" or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to Nexiwave under the Agreement, the Agreement, Nexiwave reserves the right to remove or disable access to any material that violates the foregoing restrictions. Nexiwave shall have no liability to you in the event that Nexiwave takes such action. You agree to defend and indemnify Nexiwave against any claim arising out of a violation of your obligations under this Section.
In the event of any inconsistencies between the License and Service Agreement by and between you and Nexiwave and the Agreement, the Agreement shall take precedence.
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