This license agreement (“Agreement”) is made effective for the Term (as defined herein) and is between Texthelp Ltd., a Northern Ireland registered company with a principle place of business and registered office at Lucas Exchange, 1 Orchard Way, Greystone Road, Antrim, Northern Ireland, BT41 2RU, Company No. NI 31186 (“Licensor”) and the Licensee

Recitals:

(i) Licensor is the author and owner of the Product; and
(i) Licensee (as defined herein) wishes to license the Product to provide text to speech functionality for web site visitors. 


Therefore, the parties agree as follows:

 

1 DEFINITIONS

“Extranet”
means an on-line database, hosted by Licensor, which allows the Licensee to define and amend Licensee preferences relating to the performance of the Product, including but not limited to pronunciation changes.

“Force Majeure”
means performance of either party being rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the nonperforming party.

“Licensee”
means the ultimate owner of the Licensee URLs. 

“Licensee Users”
means any visitor to any of the Licensee URLs during the Term.

“Licensee URLs”
means the list of URLs owned and managed by Licensee which under the terms of this License, as agreed in writing by the Licensor, may be speech enabled using the Product.

“Maintenance & Support SLA”
means the provision of maintenance and support and associated service level agreement as specified in Schedule 1.

“Product”
means the Product stated in the Quote that has been accepted by the Licensee.

“Quote”
means the document that states the Product, Term and cost of the license and refers to acceptance of this license. 

“Term”
Means the Term agreed on the Quote by the Licensee.

“Territory”
means world-wide. 

 

2 GRANT OF LICENSE

2.1 License

Subject to Licensee’s compliance with the terms and conditions of this Agreement, Licensor hereby grants:

2.1.1 To Licensee

(i) a non-transferable and non-exclusive license to use the Product within the Territory for the Term; 
(ii) access to the Extranet for the Term;  
(iii) the right to add up to 250 pronunciation change entries into the Extranet during the Term.  Additional pronunciation changes may be permitted by prior written consent from the Licensor; and
(iv) Permission to display Product logos and buttons on Licensee URLs for the Term.

2.1.2 To Licensee Users   

(i) a non-transferable and non-exclusive license to use the Product for the Term.  

2.2 Restricted Deployment

This Agreement restricts the deployment of the Product to the Territory solely for use with the Licensee URLs. Under no circumstances may the Product be deployed outside of the Territory or used with any other URL(s) without the prior written consent of Licensor. 

 

3 PAYMENT

As full payment for all rights and licenses granted hereunder with respect to the Product, Licensee shall pay to the Licensor the license fees set forth in the Quote for the Term along with any sales taxes which may come due.

 

4 NON-ASSIGNMENT

Neither party shall assign, mortgage, charge (otherwise than by floating charge) or dispose of any of its rights, or sub-contract or otherwise delegate any of its obligations under this Agreement without the prior written consent of the other party and provided that, in the case of an assignment or transfer by a party by operation of law, whether pursuant to a merger, consolidation, sale of assets or otherwise, such consent by the other party shall not be required if the successor-in-interest to the party assumes all of that party’s duties and obligations under this Agreement.  Any attempted assignment, sublicense or transfer without such consent will be void and have no effect. 

 

5 RESTRICTIONS 

5.1 Copying

Licensee may make a reasonable number of copies of the Product in machine readable form solely;

to understand the contents of such machine readable material and to test integration of the Product; 
for back-up purposes; 
for archival purposes; or 
to deploy the Product within the Territory as permitted under this Agreement. 

Copies of the Product for any other purpose may not be made without the prior written consent of Licensor. Any and all copies are subject to the terms and conditions of this Agreement. Licensee shall not provide or otherwise make available the Product to any person other than Licensee’s employees and/or duly authorized agents without the prior written consent of Licensor, except as expressly provided herein. 

5.2 No Reverse Engineering

Licensee may not modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Product, except to the extent that applicable law does not permit Licensor to exclude or limit such rights.

 

6 ACKNOWLEDGMENTS

To protect Licensor’s copyright and other ownership interests, Licensee agrees that, as a condition of its rights hereunder, it will display proprietary notices as mutually agreed.  During the Term, Licensee agrees that any end user documentation will include all applicable copyright and trademark notices of Licensor.

 

7 TITLE AND RIGHTS TO SOFTWARE AND MODIFICATIONS

All rights, title and interest in and to the Product, and any and all parts thereof, in all languages delivered or to be delivered hereunder, and including all modifications and revisions of the foregoing, shall remain solely vested in Licensor. 

All rights, title and interest in and to the Licensee URLs shall remain solely vested in the Licensee.

 

8 LIMITED WARRANTY

8.1 Product

Licensor warrants that the Product, when properly used according to the documentation provided to Licensee by Licensor, will perform in substantial conformance with the documentation in all material respects, for a period of ninety (90) days from the date of delivery to Licensee. Licensor’s sole responsibility under this warranty shall be, at Licensor’s option, to either repair or replace the Product. If, the Licensee having reported a nonconformance, Licensor determines that the original Product did not contain a nonconformance, Licensor may, at its sole discretion, pass to the Licensee all costs of modifications and/or repairs at Licensor’s prevailing rates. 

8.2 Limitations

The foregoing warranties apply only to Licensee. Licensor shall provide warranty service only for the most current version of the Product, which it shall supply, as available, to Licensee during the Term at no additional cost.   Licensor shall have no obligation to provide warranty services if a defect in the Product is caused by malfunction of non-Licensor hardware or software, by modification of the Product not made by Licensor, by operator error, or by use of the Product that is not in accordance with the written operating instructions. 

8.3 Disclaimer 

Except for the express warranties stated herein, Licensor disclaims all express and implied warranties, including without limitation all implied warranties of merchantability and fitness for a particular purpose.

 

9 INDEMNIFICATION

9.1 By Licensor

Licensor will defend at its own expense any third party claim against Licensee that the Product infringes any; 

(i) copyright or intellectual property;
(ii) trademark; or 
(iii) trade secret,

and will indemnify Licensee against all damages and costs awarded in connection with such claim. If such a claim is made or appears possible, Licensor may, at its option, secure for Licensee the right to continue to use the Product, modify or replace the Product so it is non-infringing, or, if neither of the foregoing options is reasonably available in Licensor's judgment, terminate this Agreement.   However, Licensor has no obligation for any claim of infringement based on (i) modifications of the Product not made by Licensor or (ii) the combination, operation, or use of the Product with any product, data, content or apparatus not supported by Licensor, in each case to the extent the Product would not otherwise infringe. This section states the entire liability of licensor for any claim of infringement involving the Product.

9.2 By Licensee

Licensee will defend at its own expense any third party claim against Licensor that the Licensee URLs and/or content displayed on Licensee URLs infringe any;

(i) copyright or intellectual property;
(ii) trademark; or 
(iii) trade secret

and will indemnify Licensor against all damages and costs awarded in connection with such claim. This section states the entire liability of licensee for any claim of infringement involving the licensed product.

9.3 Assistance with Defense

The foregoing indemnities are in addition to any rights otherwise under this Agreement, but shall be expressly contingent on the non-indemnifying party;
 
(i) notifying the indemnifying party in writing of any such claim, demand, action, or liability; 
(ii) cooperating in the defense or settlement thereof (at the indemnifying party’s expense); and 
(iii) allowing the indemnifying party to control the defense or settlement of the same,

provided that any settlement reached by the indemnifying party shall also include settlement of the indemnified party’s liabilities.

 

10 LIMITATION OF LIABILITY 

In no event shall either party be liable for;
 
(i) incidental, consequential, exemplary, punitive, special or indirect damages (including but not limited to lost business profits); 
(ii) any amounts in excess of the actual direct damages caused by the specific product or service complained of; or 
(iii) any amounts in the aggregate in excess of the amount actually paid to Licensor by Licensee hereunder in the twelve (12) months preceding the date of the claim,

in each case even if such party has been advised of the possibility of the same. This section does not limit Licensee’s obligations to make payment of all amounts payable to Licensor hereunder. Both parties acknowledge and agree that this Section 10 represents a reasonable allocation of risk and that, in the absence of these limitations of liability, the terms of this Agreement would be substantially different.

 

11 TERM AND TERMINATION

11.1 Term 

Unless earlier terminated in accordance with the terms of this Agreement, this Agreement will be effective for the Term. Upon the expiration of the Term, this Agreement may be renewed for one or more additional terms by written agreement of the parties, such agreement to be reached a minimum of thirty (30) days prior to the expiration of the then current term.

11.2 Termination for Cause 

In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement by giving thirty (30) days' prior written notice to the other party; provided, however, that this Agreement shall not terminate if the other party has cured the breach prior to the expiration of such thirty (30) day period, or if such breach cannot be cured within such thirty (30) day period, the other party has taken substantial steps acceptable to the non-breaching party within such thirty (30) day period to cure the breach and thereafter cured such breach as soon as practicable.

11.3 Termination for Insolvency 

This Agreement shall terminate, without notice; 

(i) upon the institution by or against either party of insolvency, receivership or bankruptcy proceedings, other than for the purposes of restructuring; 
(ii) upon either party's making an assignment for the benefit of creditors; or 
(iii) upon either party's dissolution or ceasing to do business.

11.4 Return of Materials 

Upon termination of this Agreement for any reason, Licensee shall return to Licensor all copies of the Product in its possession, Confidential Information (as defined below), documentation and all other tangible materials related to the Product.

11.5 Effect of Termination 

Termination shall not relieve Licensee of any of its payment obligations accrued prior to the effective date of the termination, nor shall it relieve either party of any of its indemnification obligations herein. 

11.6 Survival 

The provisions of Sections 1, 9, 10, 11, 12 and 13 shall survive the termination of this Agreement for any reason.

 

12 CONFIDENTIAL INFORMATION

12.1 Definition

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information of a confidential nature (“Confidential Information”) including, without limitation, any technical or design specifications, business plans, customer information, marketing strategies, and any business information of the other Party that; 

(i) is clearly and conspicuously marked as “confidential” or with a similar designation; or
(ii) is identified by the Disclosing Party as confidential and/or proprietary before, during, or promptly after presentation or communication; or 

the Receiving Party should reasonably have understood to be confidential, given the manner or circumstances of its disclosure, irrespective of whether or not the specific designation “confidential” or any similar designation is used. 

12.2 Disclosure and Use 

Except with the prior written consent of the Disclosing Party, neither party shall; 

(i) disclose any Confidential Information of the Disclosing Party other than to employees and contractors who have a need to know and have agreed in writing to protect the confidential information of third parties; 
(ii) make copies or allow others to make copies of such Confidential Information except as is reasonably necessary for internal business purposes to fulfill its obligations under this Agreement; or
(iii) remove or export any such Confidential Information from the country of the Receiving Party to the extent prohibited by applicable export laws.
 
The Receiving Party shall treat the Confidential Information with at least the same degree of care and protection as it would use with respect to its own Confidential Information of a similar nature, but in no event less than a reasonable standard of care. Each party shall use the Confidential Information of the other party solely for the purposes of fulfilling its obligations or exercising its rights under this Agreement or as expressly permitted in this Agreement.  

12.3 Exceptions 

Nothing in this Agreement shall prohibit or limit either party’s use or disclosure of information; 

(i) previously known to it without obligation of confidence; 
(ii) independently developed by or for it without use of or access to the other party’s Confidential Information;
(iii) acquired by it from a third party which is not under an obligation of confidence with respect to such information; or 
(iv) which is or becomes publicly available through no breach of this Section 12.  

A party may disclose Confidential Information that is required to be disclosed by operation of law, court order or other governmental demand provided the Disclosing Party is given prompt notice of such requirement and the scope of such disclosure is limited to the extent possible.  

12.4 Confidentiality of Agreement

Each party agrees that the terms of this Agreement, any disputes arising out of this Agreement, and any discussions pertaining to the foregoing, shall be deemed Confidential Information of the other party, provided that in addition to the permitted disclosures hereunder, either party may disclose the terms of this Agreement; 

(i) if required to do so by law or generally accepted accounting principles; 
(ii) as required to assert its rights hereunder; and 
(iii) to its own directors, employees, attorneys, accountants, and other advisors on a “need to know” basis and under an obligation of confidentiality no less stringent than set forth herein. 

Each party agrees that the Disclosing Party will be given prompt notice of any disclosure made pursuant to clause (i) or (ii) above, and that any such disclosure shall be limited to the extent possible.

12.5 Equitable and Injunctive Relief

Each of the parties acknowledges that its breach of this Section 12 may cause irreparable damage, and, therefore, the other party shall have the right to seek equitable and injunctive relief, and to recover the amount of damages (including reasonable attorneys' fees and expenses) incurred in connection with any breach hereof.

 

13 GENERAL PROVISIONS

13.1 Governing Law  

This Agreement shall be governed by and construed under the laws of Northern Ireland, without reference to conflicts of law principles which would cause the laws of another jurisdiction to apply.   

13.2 Headings 

The headings in this Agreement are for convenience only and shall not affect its interpretation.

13.3 Entire Agreement  

This Agreement, including the schedule(s) attached hereto, sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges all prior discussions between them.  No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by both parties.

13.4 Unenforceability

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

13.5 Non Waiver

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

13.6 Severability

Should any provision of this Agreement be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision may be modified by such court in compliance with the law and, as modified, enforced.  All other terms and conditions of this Agreement shall remain in full force and effect and shall be construed in accordance with the modified provision, as if such illegal, invalid or unenforceable provision had not been contained herein.

13.7 Notices  

All notices and other communications hereunder shall be in writing and shall be deemed effective when delivered by hand or the next business day if delivered by facsimile or digital transmission or when telexed, or upon receipt when mailed by registered or certified mail (return receipt requested), postage prepaid, to the parties at their principle place of business (or at such other address for a party as shall be specified by like notice from time to time).

13.8 Force Majeure

If either party is affected by Force Majeure, it shall forthwith notify the other party of the nature and extent thereof.

Neither party shall be deemed to be in breach of this Agreement, or otherwise be liable to the other, by reason of any delay in performance, or non-performance, of any of its obligations under this Agreement to the extent that such delay or non-performance is due to any Force Majeure of which it has notified the other party, and the time for performance of that obligation shall be extended accordingly.

If the Force Majeure in question prevails for a continuous period in excess of 3 (three) months, the party not affected by such event of Force Majeure shall be entitled to terminate this Agreement forthwith by notice in writing to the other party.

13.9 Independent Contractors

The relationship of Licensor and Licensee established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to;

(i) give either party the power to direct and control the day-to-day activities of the other; 
(ii) constitute the parties as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking; or 
(iii) allow Licensee to create or assume any obligation on behalf of Licensor for any purpose whatsoever.

13.10 Counterparts

This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

13.11 No Third Party Beneficiaries

The warranties made by Licensor in this Agreement, and the obligations of Licensor under this Agreement, run only to Licensee and not to its affiliates, its customers or any other persons.  Under no circumstances shall any other person be considered a third party beneficiary of this Agreement or otherwise be entitled to any rights or remedies under this Agreement.

13.12 Interpretation

Unless the context of this Agreement clearly requires otherwise; 
(i) references to the plural include the singular, the singular the plural, the part the whole; 
(ii) references to any gender include all genders;
(iii) "or" has the inclusive meaning frequently identified with the phrase "and/or,"; 
(iv) "including" has the inclusive meaning frequently identified with the phrase "including but not limited to"; and 
(V) references to "hereunder" or "herein" relate to this Agreement.

13.13 Fair Usage 

The Licensor shall provide an unlimited number of cached speech requests and an unlimited number of cached translation characters for the URL’s covered in the Licensee’s Agreement. Up to 1,200,000 new speech requests per annum at a rate of up to 100,000 speech requests per month for the URL’s covered in the Licensee’s Agreement shall be considered Fair Usage for every £1,000 of annual Licensee revenue paid and the Licensor reserves the right to limit the delivery of new speech requests in excess of this amount at its own discretion. Up to 1,200,000 new translation characters per annum at a rate of up 100,000 new translation characters per month for the URL’s covered in the Licensee’s Agreement shall be considered Fair Usage for every £1,000 of annual Licensee revenue paid and the Licensor reserves the right to limit the delivery of new translation characters in excess of this amount at its own discretion. 

13.14 Consent

Wherever the consent of one or more of the parties is required under this Agreement, such consent shall not be unreasonably withheld or delayed.

13.15 Acceptance

Each party acknowledges that, in entering into this Agreement, it does not do so on the basis of, and does not rely on, any representation, warranty or other provision except as expressly provided in this Agreement, and all conditions, warranties or other terms implied by statute or common law are by this Agreement excluded to the fullest extent permitted by law.

13.16 Conflicts with Schedules

In the event of any conflict or ambiguity between the clauses and the schedule(s) of this Agreement, the clauses shall prevail to the extent of such conflict or ambiguity. 

 

Schedule 1: Maintenance & Support SLA

All Maintenance and Support services shall be provided by Licensor under the following terms and conditions:

 

14 DEFINITIONS

“Browsealoud Server Software”
The software hosted in the cloud, which delivers streaming speech in response to a request from the Product

“Error”
means any material failure of the Software to operate in accordance with its documentation and in compliance with the Agreement.

“Fix”
means the repair or replacement of an object or executable code version of the Software to remedy an Error.

“Software”
means the Product or the Browsealoud Server Software

“Update”
means either (1) a partial update software release, in object code form, containing Error corrections, a Fix, or Workaround, to the Software and any corrections and updates to the associated documentation; or (2) a modification or new software release, in object code form, containing new features, functionality, or operating system support for the Software and the associated documentation.

“Upgrade”
means a new version of the Software, which adds one or more substantial features to the Software, or otherwise makes one or several substantial changes to the current feature set for the Software.

Workaround”
means a change in the procedures to be followed by Licensee to avoid an Error without significantly impairing performance of the Software.

“Critical Hosting Service Interruption”
means a fault with the hosting service that prohibits a user from using the Software. 

 

15 Maintenance and Support Services

15.1 Methods  

Licensor shall provide Maintenance and Support services regarding an Error as follows:

15.1.1 By Phone
 
Licensee can communicate an Error to Licensor by phone.  Maintenance and Support is available via phone from 9am to 5pm British Standard Time, Monday through Friday. For Maintenance and Support via phone: UK toll-free 0800-328-7910, North America toll-free 888-248-4947, Rest of World +44 2894428105.

15.1.2 By Email

Licensee can communicate an Error to Licensor by email.  When emailing Licensor about an Error, Licensee shall use “Browsealoud” in the subject line.  Maintenance and Support is available via email from 9am to 5pm British Standard Time Monday through Friday.  For Maintenance and Support via email:  support@texthelp.com

15.2 Updates 

Licensor shall make Updates available to Licensee within a reasonable time after publication of each Update, in a manner generally made available to licensees having a valid Maintenance and Support SLA in effect at the time of the release.

15.3 Upgrades 

Upgrades to the Software are provided to licensees having a valid Maintenance and Support SLA in effect at the time of the release.

15.4 Training Materials / Technology Support Tools
 
Licensor shall provide Licensee with, and access to, any new training materials and technology support tools for the Software, developed by Licensor from time to time.

15.1 Standard of Performance

Licensor warrants that it shall perform Maintenance and Support services in a professional and workmanlike manner, consistent with prevailing industry standards.  Licensee warrants that it has sufficiently skilled staff to follow and implement recommendations and/or instructions from Licensor’s Maintenance and Support staff.

Licensor warrants the provision of the online speech service including compute and storage.  If a speech server fails, Licensor warrants that restoration, repair or replacement will be complete within 6 working hours of notification of problem.

15.6 Currently Supported Browsers and Flash Versions 

Licensor warrants support for operating systems and browsers as recommended atsupport.texthelp.com . 

15.7 Copy/Modification Restrictions

Except as expressly approved in writing by Licensor, Licensee may not modify, adapt, translate, reverse engineer, decompile, disassemble the Software or any copy of the Software, or create derivative works based on the Software or any copy. If Licensee does so, this Maintenance and Support SLA is automatically terminated.  

15.8 Compulsory Upgrade or Update

Licensor reserves the right to require Licensee to adopt a more recent Upgrade or Update to the Software than currently being used by Licensee in order to resolve an Error reported by Licensee.  If Licensee does not comply with such a requirement, then Licensor shall no longer be obligated to provide Maintenance and Support SLA services under the terms of this Agreement.

15.9 Right to Charge

Licensor reserves the right to charge Licensee additional fees at its then prevailing rates upon occurrence of any of the following events, and only if Licensee actions, omissions or failures have caused Licensor to provide additional support services than ordinarily required or that is industry standard:
                    
(i) Licensee has failed to adhere to the terms of this Agreement;
(ii) Licensee has failed to follow previous maintenance and support instructions from Licensor; or 
(iii) Upon investigation it emerges that the reported fault has been caused by actions of Licensee not related to the Software. 

 

16 Critical Hosting Service Interruption

Licensor warrants to deliver the streamed speech either from its own servers or through a bona fide 3rd party hosting service.  Any third party hosting service shall be required to provide continuity of service guarantees in line with industry standards for delivery of streamed speech.   Licensor reserves the right to change the hosting service from time to time.
 

Schedule 2: Service Levels

Texthelp (Licensor) shall use all reasonable commercial efforts, being no less than prevailing industry standards in this regard, to ensure the BrowseAloud Service is available to Customers 99.99% of the time in any calendar month. If it is not, the licensee may be eligible to receive the Service Credits described below.

Definitions
  • "Downtime" Means that the Services are not responding.
  • "Downtime Period" Means the amount of time the Services are not available and must be 10 consecutive minutes or more.
  • "Monthly Uptime Percentage" means the total number of minutes in the calendar month minus the number of minutes of Downtime suffered from all Downtime Periods in the calendar month, divided by the total number of minutes in the calendar month.
  • "Scheduled Downtime" means those times where Texthelp gives notification of periods of Downtime five (5) days prior to the commencement of such Downtime. There will be no more than twelve (12) hours of Scheduled Downtime per calendar year. Scheduled Downtime is not considered Downtime for purposes of this Uptime Agreement and will not be counted towards any Downtime Periods.
  • "Services" means the services provided to you by the BrowseAloud Service including generation of speech and extranet access.
  • "Service Credit" may be provided according to the following schedule:
    • One day Credit: Includes One (1) days of Services added to the end of the BrowseAloud service term, at no charge to the Customer, if the Monthly Uptime Percentage for any calendar month is between 99.9% and 97.0%
    • One week Credit: Includes Seven (7) days of Services added to the end of the BrowseAloud service term, at no charge to the Customer, if the Monthly Uptime Percentage for any calendar month is between 97.0% and 95.0%;
    • Two weeks Credit: Includes Fourteen (14) days of Services added to the end of the BrowseAloud service term, at no charge to the Customer, if the Monthly Uptime Percentage for any calendar month is less than 95.0%.
 
Customer Must Request Service Credit
In order to receive any of the Service Credits described above, you must notify licensor by email or otherwise in writing within thirty (30) days from the time you become eligible to receive a Service Credit.
  
Maximum Service Credit
The aggregate maximum number of Service Credits claimable for any and all Downtime Periods that occur in a single calendar month shall not exceed thirty days of Services added to the end of the BrowseAloud service term. Service Credits may not be exchanged for, or converted to, monetary compensation.
 
Exclusions
This Uptime Agreement does not apply to any performance issues: (i) caused by factors outside of Texthelp's reasonable control; (ii) that resulted from any actions or inactions of the licensee or any third parties; or (iii) that resulted from licensee’s equipment and/or third party equipment (not within the primary control of licensor). This Uptime Agreement states your sole and exclusive remedy for any failure by licensor to provide the services as a result of downtime, except as may be otherwise agreed.