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End User License Agreement

Dragon Medical Network Edition (“DMNE Client Software”) and/or Nuance Management Server for Dragon Medical Network Edition (“NMS Software”), (collectively, the “Software”)

End User License and Services Agreement (“Agreement”)—online terms and conditions for United States and Canada between you (the entity signing the Order, hereinafter referred to as “you” or “Company”) and Nuance Communications, Inc. (“Nuance”).

BY PLACING YOUR ORDER WITH NUANCE, YOU REQUEST TO BE GRANTED THE RIGHT TO ALLOW YOUR AUTHORIZED USERS (AS DEFINED BELOW) TO INSTALL AND USE THE DMNE CLIENT SOFTWARE AND ACCESS THE NMS SOFTWARE AND/OR PURCHASE EQUIPMENT AND/OR SERVICES PURSUANT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE ORDER (AS DEFINED BELOW).   BY FULFILLING YOUR ORDER, NUANCE CONFIRMS ITS AGREEMENT TO PROVIDE THE AFORESAID SOFTWARE LICENSES, EQUIPMENT AND/OR SERVICES TO YOU.


IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT SIGN OR SUBMIT THE ORDER.

THIS IS A LICENSE TO USE SOFTWARE AND NOT A SALE OF SOFTWARE CODE.

Definitions

“Add-on Software” means any of the following Nuance proprietary software that is specified on the applicable Order, which is separately purchased and licensed to supplement the DMNE Client Software: Powerpack Plus, and/or SmartLibrary.  Any reference to Software in this Agreement shall include Add-on Software.

 “Affiliate” means any entity that is directly or indirectly controlled by, under common control with, or in control of a party to this Agreement.  For these purposes, an entity shall be treated as being controlled by another if: (i) that other entity has fifty percent (50%) or more of the votes in such entity, or (ii) is able to direct its affairs and/or to control the composition of its board of directors or equivalent body.

“Authorized User” means an employee, agent or contractor of Company who is permitted to access and use the Software subject to the terms and restrictions contained in this Agreement.

“Device” means a personal computing device as specified in the accompanying Documentation.

“Documentation” means the user manuals and/or technical publications, as applicable, supplied with the Software in printed or electronic form, relating to the installation, use and administration of the Software.

“Equipment” means Nuance Equipment and Third Party Equipment, collectively.

“Hosted NMS” means Nuance’s hosted services version of its proprietary NMS Software.

“Instance”. An “Instance” of the NMS Software is created by executing the NMS Software’s setup or install procedure. An instance of the NMS Software is also created by duplicating an existing Instance. References to the NMS Software in this Agreement include “Instances” of the NMS Software.

“License Duration” means the duration of the license grant specific to a particular Software license, which duration is either a Perpetual License or a Term License.

“Maintenance Services” are services that Nuance provides pursuant to an Order to maintain the Software and Equipment (as applicable). The description of these Maintenance Services purchased by Company is posted online on Nuance website at the URL- http://support.nuance.com/healthcare under “Hardware and Software Maintenance Options Terms and Conditions”. Nuance may update the URL from time to time.

“NMS Software License” means the limited right defined in Section 1.A. of this Agreement.

“Non-Physician” means a person who is not a Physician, but provides medical services on behalf of the Company, including, but not limited to, a nurse, physician assistant or psychologist.

“Non-Physician Client License” means a license grant as per Section 1.B. of this Agreement, limited for use to only a Non-Physician, as indicated in the Order, pursuant to the terms of this Agreement. For the avoidance of doubt, Software licenses pursuant to a “Non-Physician Client License” cannot be used by Physicians.

“Nuance Equipment” means Nuance manufactured hardware specified in an Order.

“Order” means a purchasing document placed by Company hereunder for Software licenses, Equipment, Maintenance Services, Training Services, or Professional Services, which indicates, among other things, the number and type of Software license(s) and Services purchased by you.

“Operating System Environment” means one instance of an operating system and instances of applications, if any, configured to run on that single operating system instance.

A “Physical Operating System Environment” is an Operating System Environment configured to run directly on a physical hardware system that uses physical processors, each occupying a single socket on a system’s motherboard in a physical hardware system.

A “Virtual Operating System Environment” is an Operating System Environment configured to run on a virtual (or otherwise emulated) hardware system that uses virtual processors, whereby a “virtual processor” is a processor in a virtual (or otherwise emulated) hardware system. A “virtual processor” is considered to have the same number of threads and cores as a physical processor on the underlying physical hardware system.

“Perpetual License” means a license grant that is not limited in duration, subject to early termination pursuant to this Agreement.
“Physician” means a person who is a physician (including, but not limited to: full time and part time physician, attending physician, physician with privileges, M.D., D.O. or resident) working on behalf of the Company.

“Physician Client License” means a license grant as per Section 1.B. of this Agreement, limited for use to only a Physician, as indicated in the Order, pursuant to the terms of this Agreement.

“Professional Services” means any installation, project management and/or consulting services provided by Nuance pursuant to an Order, as specified in an Order.

"Run-time Engine" means the programmed access of the Software by a Company application or a third party application integrated with the Software.

“Services” means Maintenance Services, Training Services, and Professional Services, as applicable.

“Software” shall also include any modified versions, updates, or upgrades of the Software licensed to you by Nuance. You may install and use a modified version, update, or upgrade of the Software only if you have a validly licensed existing version of the Software being modified, updated, or upgraded. If you download, install, copy, or otherwise use a modified version, update, or upgrade of the Software, then your license terminates as to the previous version or edition of the Software that was the basis for your eligibility to such modified version, update or upgrade, and you have a license only to such modified version, update, or upgrade or edition of the Software under the terms of this Agreement.

“Software Package” means the Software, the associated media, and the Documentation.

“Speech Data” means the audio files, associated transcriptions and log files provided by you hereunder or generated in connection with the Software.

“Term License” means a license grant that is limited in duration and the initial duration of the aforesaid license grant term shall be as indicated in the Order (the “License Term”), subject to early termination pursuant to this Agreement and subject to potential renewal(s) pursuant to the provisions of Section 1.B.i. below.

“Third Party Equipment” means any third party manufactured hardware specified in an Order.

“Training Services” means any training services provided by Nuance pursuant to an Order, as specified in an Order.

“User Profile” refers to the record of an individual’s speaker-specific data that provides a consistent dictation experience across successive dictation sessions by such individual.

1. Grant of License.  Subject to the terms and conditions of this Agreement, Nuance grants Company, and Company accepts, a limited, revocable (subject to Section 5—Term and Termination), non-exclusive, non-transferable, non-sublicenseable license to use the Software, solely during the License Duration, subject to the following subsections A., B., and C. below.

A.    If the Order includes NMS Software, then:

(i)       Company may install and run one Instance of the NMS Software for production purposes (such Instance, the “Production Instance”), and one Instance of the NMS Software solely for non-production testing purposes (such Instance, the “Testing Instance”).  The Production Instance and Testing Instance shall each be run on one compatible Physical Operating System Environment or one Virtual Operating System Environment, whereby, to “run an Instance” means to load the NMS Software into memory and execute one or more of its instructions. Once running, an Instance is considered to be running (whether or not its instructions continue to execute) until it is removed from memory.

(ii)     Company may allow up to: (A) twenty (20) Company employees and contractors, for both the Production Instance and Testing Instance,  to use the Nuance Management Console for Nuance Management Server to set up Company’s licensed users of the DMNE Client Software, manage the user options, and perform maintenance tasks on the NMS Software; and (B)  five (5) Company employees and contractors, for both the Production Instance and Testing Instance, to use the DMNE Client Software for the sole purpose of testing the DMNE Client Software - to support Company’s licensed users. For the avoidance of doubt, when used pursuant to this Section 1.A., the DMNE Client Software cannot be used for clinical dictation.

B.    If the Order includes DMNE Client Software, then for each license to the DMNE Client Software purchased (as indicated on the Order) Company may allow a single Physician or Non-Physician to use the DMNE Client Software solely in conjunction with NMS Software, in a manner commensurate with its intended use. Pursuant to such right, you are authorized to reproduce and install copies of DMNE Client Software on any number of Devices, for use solely by the Authorized Users.  A separate license must be purchased for each user whose User Profile(s) is/are being used by the Software. An Authorized User is permitted to create and use multiple User Profiles under a single license.

(i)   Term Licenses of the DMNE Client Software.  If the Order includes Term Licenses of the DMNE Client Software, then:

(a)      Following the initial License Duration of any Term License (which is set forth in the applicable Order), the License Term will automatically renew at Nuance’s then-current pricing, unless otherwise agreed to by the parties in an Order, for successive one (1) year periods unless either party notifies the other party, in writing and at least ninety (90) days prior to the expiration of the then-current License Term, of its decision not to renew.  Each renewal of the License Term, if applicable, will commence immediately following expiration of the prior License Term.  Termination of this Agreement or any Order shall not relieve Company of its payment obligations incurred prior to such termination.  If the License Term is terminated prior to the completion of the then-current License Term, other than by Company in accordance with the Agreement for Nuance’s uncured material breach, Company shall pay Nuance a fee equal to the total amount of fees that would have come due over the remainder of the then-current License Term but for the early termination (“Early Termination Fee”).  Nuance shall invoice Company in full for the Early Termination Fee following the date of termination of the License Term.   

(b)       Company is required to use Hosted NMS (which is included in the fees for the Term Licenses of the DMNE Client Software).

C.     If the Order includes any Add-on Software, then for each license to the Add-on Software purchased (as indicated on the Order,) Company may allow a single Authorized User to use the Add-on Software solely in conjunction with a validly licensed copy of the DMNE Client Software (licensed separately), in a manner commensurate with its intended use. The number of concurrent Authorized Users accessing and/or using the Add-on Software may in no event exceed the number of licenses specified on the Order. If the Add-on Software is Powerpack Plus, then Company’s rights under this Section 1.C. shall include allowing up to two (2) Company employees and contractors to use the Powerpack Administrator licenses to manage the user options and perform maintenance tasks on the Powerpack Plus Add-on Software.  For the avoidance of doubt, the Powerpack Administrator portion of the Add-on Software cannot be used for clinical documentation.  Pursuant to the rights granted under this Section 1.C., Company may reproduce and install copies of Add-on Software on as many Devices as is reasonably necessary to exercise its license rights under this Section 1.C.  All such copies must be true and complete copies (including intellectual property notices) and be made from media or files supplied by Nuance to Company under the Agreement or from a network source if true and complete copies of such media or files supplied by Nuance are copied to the network source.

D.    Documentation. Subject to the terms and conditions of this Agreement, Nuance grants to Company a non-exclusive license to make copies of the Documentation in connection with its use of the Software in accordance with this Agreement, but no more than the amount reasonably necessary. Any permitted copy of the Documentation that Company makes must contain the same copyright and proprietary notices that appear on or in the Documentation.

E.    Customer Loyalty Discounts for previously purchased Perpetual Licenses of Dragon Medical Software. 

(i)    Eligibility.  From time to time Nuance may at its sole discretion offer a promotion wherein Company may receive a discount (“Customer Loyalty Discount”) when purchasing new Term Licenses of the DMNE Client Software in exchange for surrendering or terminating previously purchased Perpetual Licenses of certain Dragon Medical Software from Nuance or a Nuance-authorized reseller (the “Legacy Licenses”).  If an Order identifies a Customer Loyalty Discount, then upon Company’s acceptance of the Order, Company’s rights to the Legacy Licenses shall terminate automatically, Company shall immediately cease using, un-install, and return to Nuance or destroy, the Legacy Licenses, and any copies thereof as well as license keys (if any). Upon written request from Nuance, Company shall certify to Nuance in writing and within ten days of the request that Company has taken such action as described in the previous sentence.  Any Maintenance Services for the Legacy Licenses shall also be automatically deemed terminated upon Company’s acceptance of the Order. 

(ii)     Application of the Discount.  The details and underlying mechanism regarding the calculation the Customer Loyalty Discount will be applied by Nuance on a case by case basis and outlined in an Order to the Company.  For the avoidance of doubt, Company will not receive a refund for any pre-paid Maintenance Services associated with the Legacy Licenses, as any pre-paid amounts are calculated into the Customer Loyalty Discount.  Unless otherwise indicated on the Order, any Customer Loyalty Discount which may be offered by Nuance to Company will be amortized over the first three years of the License Term (if the License Term is five years), or over the first two years of the License Term (if the License Term is three years).

2. Nuance’s Rights.  Company acknowledges that the Software Package, Equipment, and Services consist of proprietary information and products of Nuance (or other third parties) protected under United States or other patent, copyright, or trade secret laws. Company further acknowledges and agrees that all right, title and interest in and to the Software Package, Equipment, and Services, and each component thereof, are and shall remain with Nuance, or its licensors. This Agreement does not convey to Company an interest in or to the Software Package, but only a limited right to use, revocable in accordance with the terms of this Agreement. Nuance reserves all rights not expressly granted to you in this Agreement.

3. Equipment.  Equipment supplied by Nuance is subject to the terms and conditions of this Agreement and, if Third Party Equipment, the applicable third party terms.

4.  Services.  Subject to the terms and conditions of this Agreement, Nuance will provide the Services, as may be specified in an Order. 

A.    Term Licenses.  Unless otherwise provided in the Order, Maintenance Services are provided for the License Duration of each Term License to the Software.        

B.    All Other Licenses.   Unless otherwise agreed by Nuance, Company is required to purchase first year Maintenance Services for all other licenses of Software. Nuance will provide the first year Maintenance Services indicated in the Order.  If Nuance offers Maintenance Services for the applicable Software and/or Equipment for renewal periods, Nuance will, at least thirty (30) days prior to the end of the then-current Maintenance Service term, invoice Company for a subsequent one-year renewal term of Maintenance Services at the rates in effect on the renewal date.  Company shall, if it wishes to renew annual Maintenance Services for the applicable Software and/or Equipment, pay the invoice for renewal Maintenance Services in full within thirty (30) days of the date of such invoice. 

C.    Maintenance Services Terms. 

(i)     Company acknowledges that failure to pay its invoice for Maintenance Services within the required thirty (30) day period will result in Maintenance Services expiring with respect to such Software and/or Equipment. If permitted by Nuance, Company may reinstate Maintenance Services that have expired, provided that Company first pays all Maintenance Services fees that would have been due for the period following the expiration of the previous Maintenance Service period, and orders all Professional Services (at Nuance’s then-current rates) necessary to implement the then-current version of the applicable Software. 

(ii)     The annual Maintenance Services term shall commence as described in the applicable Order, and each subsequent annual Maintenance Services term will commence on the anniversary thereof.  Company must purchase the same Maintenance Service level for all Software licenses and Equipment units for a given Nuance product.

(iii)    Unless otherwise agreed, Nuance shall not be obligated to provide Maintenance Services for, or required as result of, (i) any Software or Equipment modified by any party other than Nuance, (ii) any Software or Equipment used for other than its intended purpose, (iii) any Software or Equipment used with equipment not specified as compatible in the Documentation,(iv) any Software or Equipment being used with software not supplied by Nuance, unless specified as compatible in the Documentation, (v) any Software or Equipment (or any associated equipment, software or firmware) which Company failed to properly install or maintain, (vi) any willful misconduct or negligent action or omission of Company, (vii) any computer malfunction not attributable to the Software or Equipment, or (viii) damage to Software or Equipment from any external source, including computer viruses not attributable to Nuance, computer hackers, or force majeure events.

D.    Training Services.  Unless otherwise agreed to by the parties, Training Services will be held at a designated Nuance location during Nuance’s standard business hours, excluding Nuance recognized holidays.  If the parties agree to hold any Training Services at Company’s site, all such Training Services (including associated travel time) will be conducted between the hours of 8:00 a.m. to 5:00 p.m. local Company site time, Monday through Friday, excluding Nuance recognized holidays.  Company shall ensure that all Training Services attendees are or will be Authorized Users and have the skills and experience to participate in the training sessions.

E.    Professional Services.  Unless otherwise agreed to by the parties, all Professional Services (including associated travel) will be conducted between the hours of 8:00 a.m. to 5:00 p.m. local Company site time, Monday through Friday, excluding Nuance recognized holidays.

F.    On-Location.  If Nuance will perform Services at a location other than a Nuance facility, Company shall provide or arrange for the necessary equipment, information, and facilities required by Nuance to perform such Services, as reasonably specified by Nuance.

5. Term and Termination.

A.    This Agreement and the Software licenses granted hereunder are effective upon Nuance’s acceptance of the Order and shall continue for the License Duration. Nuance’s acceptance of an Order is usually confirmed implicitly by Nuance fulfilling the Order.  Nuance may terminate this Agreement at any time upon breach by Company of any terms hereof including non-payment of applicable fees, as indicated in the Order, to Nuance. Upon such termination by Nuance, Company agrees to uninstall the Software and promptly return the Software Package to Nuance.

B.    Termination of this Agreement shall not relieve Company of its payment obligations incurred prior to such termination, and Company shall be responsible for all remaining (and subsequently invoiced) monthly payments of license fees with respect to a Term License purchased under this Agreement. 

6. Other Restrictions.

A.    Company may not sub-license, rent, lease, lend, or otherwise commercialize the Software Package or any portion of the Software in any manner including rights (such as use or access rights) on a membership, subscription or pay per use basis.

B.    Except as expressly authorized under this Agreement, Company is prohibited from providing use of the Software in a computer service business, third-party outsourcing facility or service, service bureau arrangement, or time sharing basis.

C.    Company may not reverse engineer, decompile, modify, create derivative works (except for User Profiles or custom vocabularies as set forth in the Documentation) of, or disassemble the Software, except to the extent that the foregoing restriction is expressly prohibited by applicable law.

D.    Company may use the Software for its internal use only, in accordance with and in the manner intended by the Documentation.

E.    Company may not publish the results of benchmarking the Software against competitive software, except with the prior written permission of Nuance.

F.    Company may not transfer or assign any Software license or the Software Package to any third party without the prior express written consent of Nuance. Without prejudice to Section 6.C., any changes to, modifications to, or derivative works (except as set forth above) of the Software shall become the exclusive property of Nuance, except to the extent that the foregoing restriction is expressly prohibited by applicable law.

G.    This license for the Software Package does not allow Company to use the Software as a Run-time Engine.

H.    Company shall not allow any Authorized User to use the Software for: (i) the Authorized User’s own personal use, or (ii) the benefit of any third party.  Company shall not allow anyone other than the Authorized Users to use the Software.   

7. Limited Warranties.

A.    Nuance Software Warranty.  Nuance warrants that upon initial installation of the Software (in the case of Software that, pursuant to the applicable Order, is to be installed by Nuance) or initial delivery of the Software to Company (in all other cases), and for a period of ninety (90) days thereafter (the “Software Warranty Period”), the Software will operate in all material respects in conformity with its Documentation.  Company’s sole and exclusive remedy and Nuance’s sole obligation for any breach of the warranty set forth in this Section 7.A. will be for Nuance, at Nuance’s option, to undertake reasonable efforts to correct or replace the nonconforming Software reported by Company during the Software Warranty Period, or to accept a return of, and refund to Company the fees paid by Company to Nuance for, such non-conforming Software, and terminate the license to any such non-conforming Software.

B.    Nuance Equipment Warranty.  Nuance warrants that upon initial installation of the Nuance Equipment (in the case of Nuance Equipment that, pursuant to the applicable Order, is to be installed by Nuance) or initial delivery of the Nuance Equipment to Company (in all other cases), and for a period of ninety (90) days thereafter (the “Equipment Warranty Period”), the Nuance Equipment will operate in all material respects in conformity with its Documentation.  Company’s sole and exclusive remedy and Nuance’s sole obligation for any breach of the warranties set forth in this Section 7.B. will be for Nuance, at Nuance’s option, to undertake reasonable efforts to correct or replace the nonconforming Nuance Equipment reported by Company during the Equipment Warranty Period, or to accept a return of, and refund to Company the fees paid by Company to Nuance for, such non-conforming Nuance Equipment.

C.    Services Warranty.  Nuance warrants that the Services provided by Nuance pursuant to this Agreement shall be performed in a professional manner by trained and skilled personnel.  Company must notify Nuance of any breach of such warranty within ninety (90) days following performance of the non-conforming Services giving rise to the breach of warranty claim.  Company’s sole and exclusive remedy and Nuance’s entire liability for any breach of the warranty set forth in this Section 7.C. will be for Nuance to re-perform such non-conforming Services that Company notified Nuance of in accordance herewith.

D.    Limitation of Warranties. The warranties set forth in this Section [Limited Warranties] shall not apply, and Nuance shall have no warranty obligation or liability with respect to (a) any Nuance Equipment or Software that (i) is damaged through no fault of Nuance; (ii) is modified by anyone other than Nuance; (iii) is used for any purpose other than its intended purpose (as specified in the Documentation); (iv) is used with equipment not specified as compatible with the Nuance Equipment or Software in such Nuance Product’s Documentation; (v) is used with software not specified as compatible with said Nuance Equipment or Software in the Documentation; (vi) Company fails to properly install or maintain; (b) any computer malfunction not attributable to the Nuance Equipment or Software or Nuance; (c) any incorrect use of the Nuance Equipment or Software; or (d) any willful misconduct or negligent action or omission of Company.

E.    Disclaimer.  To the maximum extent permitted by applicable law, THE WARRANTIES EXPRESSLY SET FORTH IN THIS Section [limited warranties] are exclusive and there are no OTHER WARRANTIES, EXPRESS OR IMPLIED, AND Nuance HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT AND TITLE.  NUANCE DOES NOT guarantee that the SOFTWARE, EQUIPMENT OR SERVICES WILL YIELD ANY PARTICULAR BUSINESS OR FINANCIAL RESULT, or that the Services will be performed without error or interruption.  NUANCE MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY THIRD PARTY SOFTWARE OR ANY THIRD PARTY EQUIPMENT.  Company acknowledges its responsibility to regularly back-up data and to adequately test prior to deployment each production version of the Software in a configuration that reasonably simulates Company’s planned production environment.

8. No Consequential Damages.  In no event shall NUANCE or ITS AFFILIATES, or THEIR RESPECTIVE OFFICERS, AGENTS, SUPPLIERS AND EMPLOYEES, be liable for any incidental, special, indirect, consequential, or punitive damages, including, but not limited to, loss of revenues, LOSS OF, or loss of use of, software or DATA, loss of customers, loss of anticipated savings and loss of profits, WHETHER SUCH ALLEGED DAMAGES ARE LABELED IN TORT, CONTRACT OR INDEMNITY, even if SUCH PARTY has been advised of the possibility of such damages.

9. Limitation of Liability.  The total aggregate liability of Nuance and its Affiliates, and their respective officers, agents, suppliers and employees, for any and all claims arising under this Agreement or otherwise arising from the transactions contemplated herein, regardless of the form of action (including, but not limited to actions for breach of contract, negligence, strict liability, rescission and breach of warranty) will not exceed the aggregate fees actually paid to Nuance under THE RELEVANT ORDER.  The existence of more than one claim shall not enlarge or extend the limit. 

10.  Confidentiality.  Company shall not disclose or use Nuance’s Confidential Information (as defined below) except as provided in this Agreement while this Agreement is in effect and for three (3) years following termination or expiration of this Agreement, provided, however, that the foregoing restriction shall be perpetual as to all Software provided by Nuance hereunder until an exception described in this Section 10 applies.  Company may disclose Confidential Information to its agents or employees who have a need to know and who are bound in writing by confidentiality terms no less restrictive than those contained herein.  Notwithstanding the foregoing, Confidential Information may be disclosed if required by law, provided, however, that Company shall notify Nuance of such requirement immediately in writing and will reasonably cooperate with Nuance in obtaining a protective or similar order.  “Confidential Information” means: (a) this Agreement, the Software Package and related technology, algorithms, and information contained therein, including related trade secrets; and (b) any other information, including but not limited to product plans, designs, prices, non-published financial information, business opportunities, research, development, and know-how designated as confidential at the time of disclosure or that Company should know is confidential.  “Confidential Information” does not include information that: (i) can be demonstrated by written records was in Company’s possession without restriction prior to disclosure by Nuance; (ii) is or becomes publicly known or readily ascertainable without breach of this Agreement; (iii) is lawfully received by Company from a third party without an obligation of confidentiality; (iv) is disclosed by Nuance to a third party without an obligation of confidentiality on the part of the third party; (v) is independently developed by Company; (vi) Protected Health Information (which shall be governed by the applicable Business Associate Agreement); or (vii) is disclosed by Company with Nuance’s prior written consent.  Upon Nuance’s written request, Company shall promptly return or destroy all of Nuance’s Confidential Information. 

11. Assignment.  In no event may Company assign its rights or obligations hereunder or subcontract any portion of its performance hereunder without Nuance’s prior written consent.

12. Remedies.  A breach by Company will irrevocably harm Nuance, and Nuance shall be entitled to injunctive and/or other equitable relief, in addition to any other remedies afforded by law.

13. Governing Law.  This Agreement shall be governed by the laws of the Commonwealth of Massachusetts.

14. Severability.  Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.

15. No Waiver.  The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

16. United States Government End Users.  This Section 16 applies to all acquisitions of the Software by or for the Federal government or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement, or other activity with the Federal government. By accepting delivery of the Software, the government hereby agrees that this software qualifies as “commercial” computer software within the meaning of the acquisition regulation(s) applicable to the procurement. The terms and conditions of this Agreement shall pertain to the government’s use and disclosure of the Software and shall supersede any conflicting contractual terms or conditions. If this Agreement fails to meet the government’s needs or is inconsistent in any respect with Federal law, the government agrees to return the Software, unused, to Nuance. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights—Use, duplication, and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988).” In the event any of the above referenced agency regulations is amended or replaced, the equivalent successor regulation shall apply instead.

17. MEDICAL CARE RESPONSIBILITY.  COMPANY ACKNOWLEDGES THAT SOFTWARE AND SERVICES ARE NOT ERROR FREE. FURTHERMORE, SPEECH RECOGNITION, NATURAL LANGUAGE PROCESSING, AND MEDICAL FACT EXTRACTION (SUCH AS PERFORMED IN MEDICAL TRANSCRIPTION SERVICES) ARE STATISTICAL PROCESSES THAT ARE INHERENTLY INACCURATE AND THAT ERRORS OCCUR IN THE CONTENT, OUTPUT AND RESULTS OF SUCH PROCESSES THAT NUANCE IS NOT RESPONSIBLE FOR. COMPANY AGREES THAT IT IS THE SOLE RESPONSIBILITY OF COMPANY AND EACH AUTHORIZED USER TO IDENTIFY AND CORRECT ANY SUCH ERRORS AND INACCURACIES BEFORE USING AND/OR RELYING ON THE CONTENT, RESULTS OR OUTPUT OF ANY SOFTWARE AND/OR SERVICES PROVIDED UNDER THIS AGREEMENT, FOR ANY MEDICAL-PRACTICE-RELATED PURPOSES.  COMPANY AGREES THAT NUANCE IS NOT PROVIDING MEDICAL PRACTICE ADVICE, AND THAT COMPANY AND EACH AUTHORIZED USER WILL CONSULT WITH AND RELY EXCLUSIVELY ON ITS OWN PHYSICIANS OR OTHER MEDICAL DIRECTION FOR REVIEW, NECESSARY REVISIONS AND APPROVAL OF ANY AND ALL SUCH MEDICAL-PRACTICE-RELATED CONTENT, RESULTS OR OUTPUT. NUANCE ASSUMES NO RESPONSIBILITY FOR ANY OF THE FOREGOING.

18. Export Restrictions. You acknowledge that the Software Package is subject to U.S. export jurisdiction. You agree to comply with all applicable laws that apply to the Software Package, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by the U.S. government.

19. Consent To Use Of Speech Data. The Software has a feature by which you may enable Nuance to collect Speech Data. By turning on the feature to provide Nuance with Speech Data, you acknowledge, consent and agree that Nuance may collect and use the Speech Data as provided hereunder and may de-identify the Data in accordance with 45 C.F.R. §164.514. Company is solely responsible for obtaining all necessary consents under applicable laws and regulations in order to allow Nuance to use the Speech Data in accordance with this Section 19. The parties agree that Speech Data shall only be used by Nuance or third parties acting under the direction of Nuance, pursuant to confidentiality agreements, to tune, enhance and improve the speech recognition and other components of the Software, and other Nuance services and products, or to meet legal or regulatory requirements, such as under a court order or to a government institution if required or authorized by law. To the extent any Speech Data is compiled or used by Nuance in or with any such software and services, all intellectual property rights in such software and services shall be owned by Nuance. Nuance will not use the information elements in any Speech Data for any purpose except as set forth above.  Nuance will not use the names of individuals and companies to contact anyone for any reason. 

20.  Audit.  Nuance, or a third party appointed by Nuance, shall have the right, not more than once a year and upon reasonable notice, to conduct an audit of Company’s records to confirm compliance with the terms of this Agreement.  Any audit shall be performed during Company’s normal business hours. 

21. Entire Agreement.  This Agreement constitutes the sole and complete agreement between the parties with regard to its subject matter.  Neither party shall be subject to any provisions of any pre-printed purchase order, or any Company policies, regulations, rules, or the like, including those set forth in any Company sponsored registration system, regardless if such requires affirmative acknowledgement from a Nuance representative. 

22.  Order of Precedence.  In the event of a conflict between or among the provisions in this Agreement and any Order, the terms and conditions contained in this Agreement shall prevail. 

23.  HIPAA.  Unless the parties have a valid and existing “business associate agreement” in place, the parties agree to the Business Associate Terms and Conditions attached hereto as Exhibit A, wherein Nuance is referred to as “Business Associate” and Company is referred to as “Covered Entity”.  The Business Associate Terms and Conditions are only relevant if Company purchases Services from Nuance.
  

 

Exhibit A

HIPPA BUSINESS ASSOCIATE ADDENDUM 

Business Associate Terms and Conditions

WHEREAS, Nuance (or “Business Associate”) may, pursuant to the agreement to which this HIPAA Business Associate Addendum is attached (the “Agreement”), perform certain services on behalf of or for Company (or “Covered Entity”) that require Nuance to access, create and use health information that is subject to the Health Insurance Portability and Accountability Act of 1996, Subtitle D of the Health Information Technology for Economic and Clinical Health Act, and their implementing regulations, as amended (collectively, “HIPAA”); and

WHEREAS, this Exhibit A, which is attached to and made part of the Agreement, serves to establish the responsibilities of both parties regarding Protected Health Information (“PHI”), and to bring this Agreement into compliance with HIPAA.

NOW, THEREFORE, the parties agree to the following additional terms and conditions to those otherwise in the Agreement:

AGREEMENT

1.   Definitions.  Capitalized terms used in this Exhibit A, but not otherwise defined, shall have the same meanings ascribed to them in HIPAA.

2.   No Third Party Beneficiary.  Nothing in this Exhibit A is intended, nor shall be deemed, to confer any benefits on any third party.

3.   Permitted Uses and Disclosures.  Except as otherwise specified herein, Business Associate may use and/or disclose PHI to perform the functions, activities, or services for or on behalf of Covered Entity as specified in this Agreement, provided that such use and/or disclosure would not violate HIPAA if done by Covered Entity.  Except as otherwise limited in this Agreement, Business Associate may:

a.   use PHI for the proper management and administration of Business Associate and to carry out the legal responsibilities of Business Associate, and except as otherwise limited by this Exhibit A or the Agreement, as permitted by HIPAA.

b.   disclose PHI for the proper management and administration of Business Associate and to carry out the legal responsibilities of Business Associate, provided that the disclosures are required by law, or Business Associate obtains reasonable assurances from the person to whom PHI is disclosed that the PHI will remain confidential and used or further disclosed only as required by law or for the purpose for which it was disclosed to the person, and the person notifies Business Associate of any instances of which it is aware in which the confidentiality of PHI has been breached.

c.   use PHI to provide Data Aggregation services to Covered Entity as permitted by 45 C.F.R. §164.504(e)(2)(i)(B).

d.   use PHI to create de-identified health information in accordance with 45 C.F.R. §164.514(b) and may disclose de-identified health information for any purpose permitted by law.

4.   Responsibilities of Business Associate.  Business Associate agrees:

a.   to use appropriate safeguards, and to comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information, to prevent use or disclosure of protected health information other than as provided for by the Agreement.  

b.   not to use or further disclose PHI other than as permitted or required by this Agreement or by law.

c.   to report to Covered Entity any use or disclosure of PHI not provided for by this Agreement of which Business Associate becomes aware, including a Breach of Unsecured PHI as required by 45 C.F.R. § 164.410, and any successful Security Incident of which it becomes aware.  The parties acknowledge and agree that this Section 4.c. constitutes notice by Business Associate to Covered Entity of the ongoing existence and occurrence or attempts of Unsuccessful Security Incidents for which no additional notice to Covered Entity shall be required.  “Unsuccessful Security Incidents” means, without limitation, pings and other broadcast attacks on Business Associate’s firewall, port scans, unsuccessful log-on attempts, denial of service attacks, and any combination of the above, so long as no such incident results in unauthorized access, use, or disclosure of PHI.

d.   to make PHI about an Individual contained in any Designated Record Set of Covered Entity maintained by Business Associate available to Covered Entity for Covered Entity to comply with an Individual’s right of access to their PHI in compliance with 45 C.F.R. §164.524. 

e.   to make PHI about an Individual contained in any Designated Record Set of Covered Entity maintained by Business Associate available to Covered Entity for amendment and incorporate any amendment(s) to PHI that Covered Entity directs, in accordance with 45 C.F.R. §164.526. 

f.    to make the information required to provide an accounting of disclosures of PHI with respect to the Individual available to Covered Entity in response to a request from an Individual in accordance with 45 C.F.R. §164.528.

g.  to the extent this Agreement requires Business Associate to carry out one or more of Covered Entity's obligation(s) under Subpart E of 45 C.F.R. Part 164, to comply with the requirements of Subpart E that apply to Covered entity in the performance of such obligation(s).

h.   to make its internal practices, books, and records relating to the use and disclosure of PHI received from, or created or received by Business Associate on behalf of, Covered Entity available to the Secretary of the Department of Health and Human Services or his/her designee (the “Secretary”), in a time and manner designated by the Secretary, for purposes of determining Covered Entity’s compliance with the HIPAA.

i.    to ensure that any Subcontractors that create, receive, maintain, or transmit PHI on behalf of Business Associate agree to substantially the same restrictions and conditions that apply to Business Associate with respect to such information in accordance with 45 C.F.R. § 164.502(e)(1)(ii).

j.    if Business Associate knows of a pattern of activity or practice of a Subcontractor that constitutes a material breach or violation of HIPAA, to take reasonable steps to cure the breach or end the violation, as applicable, and if such steps are unsuccessful, terminate the contract or arrangement with such entity, if feasible.

k.   to the extent required by the “minimum necessary” requirements of HIPAA, Business Associate shall only request, use and disclose the minimum amount of PHI necessary to accomplish the purpose of the request, use or disclosure.

l.    to refrain from receiving any remuneration in exchange for any Individual’s PHI unless such exchange (i) is pursuant to a valid authorization that includes a specification of whether the PHI can be further exchanged for remuneration by the entity receiving PHI of that Individual, or (ii) satisfies one of the exceptions enumerated in the HIPAA regulations and specifically Section 13405(d)(2) of the HITECH Act.

m.  to refrain from marketing activities that would violate HIPAA and specifically Section 13406 of the HITECH Act.

5.   Responsibilities of Covered Entity.   Covered Entity shall:

a.   provide Business Associate with the notice of privacy practices that Covered Entity produces in accordance with 45 C.F.R. §164.520, as well as any changes to such notice.

b.   provide Business Associate, in writing, with any changes in, or revocation of, permission by Individual to the use or disclosure of PHI, if such changes affect Business Associate’s permitted or required uses or disclosures.  Upon receipt by Business Associate of such notice of changes, Business Associate shall cease the use and disclosure of any such Individual’s PHI except to the extent it has relied on such use or disclosure, or where an exception under HIPAA expressly applies.

c.   notify Business Associate of any restriction to the use or disclosure of PHI that Covered Entity has agreed to in accordance with 45 C.F.R. §164.522.

6.   Termination

a.   Termination for Cause.  Either party may immediately terminate this Agreement if such party (the “Non-Breaching Party”) determines that the other party (the “Breaching Party”) has breached a material term of this Exhibit A.  Alternatively, the Non-Breaching Party may choose to provide the Breaching Party with written notice of the existence of an alleged material breach and afford the Breaching Party an opportunity to cure the alleged breach.  Failure to cure the material breach within thirty (30) days of the written notice constitutes grounds for immediate termination of this Agreement.

       b.  Effect of Termination.   

(1)  Except as provided in paragraph (2) of this Section 5(b), upon termination of this Agreement for any reason, Business Associate shall return or destroy all PHI received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity.  This Section 5(b)(1) shall apply to PHI that is in the possession of Business Associate and its subcontractors or agents.  Business Associate shall retain no copies of the PHI.

(2)  In the event that Business Associate reasonably determines that returning or destroying the PHI is infeasible, Business Associate shall provide to Covered Entity, in writing, notification of the conditions that make return or destruction infeasible, and Business Associate shall extend the protections of this Exhibit A to such PHI and limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such PHI.

7.   Indemnification.

Business Associate shall reimburse, indemnify and hold harmless Covered Entity for all costs, expenses (including reasonable attorneys’ fees), damages and other losses resulting directly from any negligent breach of this Business Associate Addendum, Security Incident or Breach of PHI maintained by Business Associate or Business Associate’s agent or subcontractor, subject to the provisions of the Agreement. The foregoing includes, without limitation: fines or settlement amounts owed to a state or federal government agency; the cost of any notifications to individuals or government agencies; credit monitoring for affected individuals; or other mitigation steps taken by Covered Entity to comply with HIPAA or state law.

 

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