1. Definitions

1. Documentation shall mean those visually-readable materials, in English, developed by or for Nuance for use in connection with the Products and delivered by Nuance to Licensee. Documentation includes, without limitation, operating instructions, input information, and format specifications.
2. End User License Agreement shall mean the end user license agreement accompanying the Product.
3. Equipment means the equipment or hardware to be supplied by Nuance to Licensee pursuant to an order.
4. Maintenance means the technical support and Upgrade, Update services described in Section 2 below.
5. Products shall mean the Nuance software products license by Licensee and their accompanying Documentation.Update” shall mean bug fixes and/or fixes of minor errors in a Product that are incorporated in a new release of the Product. The change from version X.01 to version X.02 or the change of version X.10 to X.20 shall be considered an Update.
6. Upgrade shall mean enhancements and/or new functionalities in a Product that are incorporated in a new release of the Product. The change from version 1.X to version 2.X shall be considered an Upgrade.

2. If Licensee elects and pays for the Maintenance services Nuance shall provide Licensee with the following services:

Licensee is responsible for having trained staff available to support remote access connections.  Nuance requires the identification of trained and authorized callers to its support help desk.  Additionally, only two authorized callers per site may contact the support help desk.  The Licensee is responsible for defining and managing its data back up and recovery strategy in accordance with its operational needs. 

1. 24x7 Remote Only Coverage  Nuance will use commercially reasonable efforts to diagnose and resolve any issues concerning the Products via telephone, email, web page and/or fax support.  Regular telephone support and assistance is provided for Updates and Upgrades.  Licensee shall receive any Updates and Upgrades released by Nuance in the ordinary course of its business during Maintenance term.  Licensee is also entitled to receive documentation, technical files and minor enhancements as Nuance makes them available during the Maintenance term.  The following additional terms apply:

   1. Remote Support Requirements
      For remote support, Nuance requires either dial-in or Internet access to all Licensee systems.  In order to provide this support, Nuance may require and will provide pcANYWHERE, which is a third party Products OR utilization of Citrix GoToAssist Web based support technology for console and workstation level access.  If Licensee is unwilling to allow the use of the pcANYWHERE Products, then Nuance will be severely limited in its ability to provide Support. If Licensee requires the use of a customized remote access solution such as VPN client Products, secure ID tokens, or individual user IDs and passwords to facilitate remote access, Licensee must submit a detailed request to Nuance in writing.  Approval of such written request may result in additional support charges.  Licensee is responsible for having trained staff available to support either this dial-in or Internet connection.  Updates and Upgrades are designed to be installed only by trained systems technicians.  Nuance will make available to Licensee’s systems technicians all current Updates and Upgrades, either via Nuance’s Support web site, or by direct e-mail transmission. The Licensee must have Internet access in order to download these Updates and Upgrades.

   2. Emergency Remote Support
      Emergency remote support is provided on a 24-hour/7 days per week basis.  An Emergency Support call is authorized when the Products fails to operate in accordance with the Documentation and the failure is of such a nature as to prevent the continuation of the day-to-day business operations of Licensee, and for which no immediate workaround is available.  Nuance will make commercially reasonable efforts to assist the Licensee in becoming operational and will return all Emergency Support calls within one (1) hour following receipt of the call by Nuance. 

   3. Non-Emergency Remote Support - Response Time
      For Non-Emergency Remote Support calls, Nuance will contact Licensee within four (4) hours following receipt of the call.

   4. Extended Update and Upgrade Coverage
      Nuance will provide to Licensee Updates and Upgrades of the applicable Products released during the Maintenance Term.  Installation of Updates by Nuance is not included under these services.

   5. Implementation Services and Upgrades 
      If Licensee may request additional services such as implementation of Updates and/or Upgrades on applicable Products that Licensee receives or user training, administrator training, and Products programming.  Any such services are not included in Maintenance and are separately charged to Licensee.

   6. Equipment Support
      Nuance will provide Customer with remote support help desk guidance on Equipment replacement.  Licensee will be responsible for (i) Equipment fault troubleshooting, (ii) any labor related to Equipment replacement, and (iii) returning any defective Equipment directly to the applicable manufacturer.  Nuance will provide hardware replacement parts for only Nuance- proprietary hardware products covered hereunder.  However, Customer will be responsible to obtain any post warranty Equipment coverage directly from any applicable third party manufacturer of Equipment.  Defective third party manufacturer Equipment parts are not covered by Nuance.

   7. Depot Repair Support
      Nuance maintains a depot repair center located in Melbourne, Florida for its desktop and portable Nuance products (i.e., connections telephones (i.e., C-Phones), telephones, microphones and similar peripherals, foot pedals and accessories (collectively, “Desktop, Portable and Peripheral Products”).  In the event Licensee requires repair support for any Desktop, Portable and Peripheral Product, Licensee will collect, ship, receive and deploy the applicable Desktop, Portable and Peripheral Product to the Nuance depot repair center.
2. Exclusions
   

   Requests for Support based on the instances listed below are expressly excluded from Support and shall, as such, be invoiced at Nuance’s then-current fees if Nuance agrees to Support them upon Licensee request:

   1. any modification of the Products by anyone other than Nuance,

   2. the use of the Products other than for its intended purpose and Documentation,
   3. the use of any third party peripheral devices or add-ons not supplied or specified by Nuance, or Licensee-supplied Products or third party-supplied Products or interfacing,
   4. the failure by Licensee to properly install or maintain the Products or associated equipment, Products or firmware,
   5. any willful or negligent action or omission of Licensee,
   6. any computer malfunction, or
   7. damage to Products from any external source such as, but not limited to, computer viruses not attributable to Nuance, computer hackers, fires, floods, lightning, earthquakes, natural disasters, riots, acts of war, acts of terrorism, radiation, or nuclear events, failures or fluctuations of electrical power or the operation of the Products outside of the environmental specifications applicable to them.
3. Conditions for providing Maintenance
   1. In no event shall any Maintenance be provided for any application, Products or run-time Products other than the Products.
   2. It is a condition to the delivery of any Maintenance that Licensee has personnel on site that are trained and skilled in Products engineering and in the integration of Products components into the Licensee’s Product and that Nuance’s Maintenance personnel be able to interact with such personnel in providing Maintenance. If, in Nuance’s reasonable opinion, no such person is employed by Licensee, Nuance may, at its option, terminate this Agreement and return any unused portion of the fees paid for a current Maintenance term. Unused Maintenance fees will be calculated according to the following formula: (Annual fee / 12) X (Number of full months remaining in the current one-year term).
   3. Notwithstanding any other provision in this Agreement, if any of the obligations of Nuance under this Agreement may be satisfied by providing Licensee with an Update or an Upgrade, then Nuance may, according to its sole discretion, provide Licensee with such Upgrade or Update at no additional charge.
   4. Nuance shall have no obligation to provide any Maintenance if any payments are outstanding under this Agreement.
   5. On-site visits are not covered under Maintenance and, in the event that an on-site visit is requested by Licensee, Licensee will be invoiced for all travel, food, and lodging expenses as well as a fee for such on-site Maintenance based upon Nuance’s then-prevailing rates.
4. Business Hours for Maintenance

Nuance’s normal business hours are as follows:

Monday – Friday 9:00 a.m. to 5:00 p.m. Eastern Time
excluding Nuance published holidays.