VOICEOBJECTS STANDARD ONLINE LICENSE AGREEMENT

PLEASE READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE. THIS AGREEMENT DOES NOT SUPERCEDE ANY OTHER WRITTEN AGREEMENT BETWEEEN YOU AND VOICEOBJECTS GMBH.

This agreement (the “Agreement”) is made between VoiceObjects GmbH, a German corporation, with offices at D 51429 Bergisch Gladbach, Friedrich-Ebert-Strasse / Building 27 (“VoiceObjects”) and you, the customer (“Licensee”).

Section 1 – Definitions

1. “Licensed Products” are the software products of VoiceObjects and its licensors, if any, in object code form listed in the present License Agreement made between the two parties. Licensed Products also include updates to the Licensed Products, if and to the extent that VoiceObjects delivers them to the Licensee under this Agreement.
2. “Confidential Information” shall mean any information (a) disclosed by VoiceObjects to Licensee marked “confidential” or “proprietary”, (b) disclosed by VoiceObjects under circumstances that would lead a reasonable person to conclude that the information is confidential or (c) which by its nature is of a type which is considered to be confidential and/or proprietary. The following shall be considered VoiceObjects’ Confidential Information regardless of marking: the Products, the results of any quantitative analysis (benchmark tests) of the Licensed Products, the Keys, VoiceObjects’ technical specifications, marketing materials, product development plans and marketing plans.
3. “Documentation” means the general and technical description of the Licensed Products in electronically form.
4.  “Sessions" means the maximum number of dialog sessions that may simultaneously be active in the software pursuant to license granted by VoiceObjects hereunder. For each caller simultaneously connected to the licensed software a dialog session is maintained, whereas each dialog session requires a licensed port.
5. “Updates” are a further development of the Licensed Products that concern all the main functions of the licensed products but which do not have any additional functionality that correspond in importance to the main functions. Updates of the following types are possible: Service Pack, Patch, Hotfix.

Section 2 – Contents of the License

1. Subject to the terms and conditions of this Agreement, VoiceObjects hereby grants Licensee the royalty-free, non-exclusive and non-sub-licensable right and license, for an unlimited period of time to use the Licensed Products only for internal testing purposes and not in production and in particular not with any productive data. License is granted for a maximum number of five (5) Sessions that may be simultaneously active. The license is further limited to the number of concurrent callers, seats, business tasks and/or other units as permitted and limited by the type of license. This agreement shall not be construed to grant either party any patent license, know-how license, any other intellectual property right or any other rights unless expressly granted herein. It is understood that the license granted hereunder shall be non-transferable.  
2. The Licensed Products obtained under this Agreement are licensed on the basis of a lease of rights against no charge (“gratuitious loan”  = “Leihe”) and not sold.  As between VoiceObjects and Licensee, VoiceObjects or its licensors retain all rights not expressly granted in this Agreement, including but not limited to, copyrights and patents, on a continuing basis. Use of the terms “resell,” “purchase” and “price” shall not connote transfer of title or ownership.
3. The right of use is also limited in scope to use by one simultaneously connected call per licensed Session. The Licensee is explicitly not entitled to make use of the Licensed Products in connection with more calls than there are licensed Sessions.
4. Licensee shall not modify, copy or distribute the Licensed Products, or any portion thereof, except as explicitly authorized by this Agreement or by mandatory statutory law, in particular Section 69d (2), (3) and Section 69e (1) of the German Copyright Act .
5. Licensee shall not, either directly or through a third party, reverse engineer, disassemble or decompile any of the Licensed Products, except and only to the extent required by mandatory statutory law, in particular Section 69e (1) of the German Copyright Act, provided that Licensee shall inform VoiceObjects about its intention to decompile the source code of any the Licensed Products for these purposes in advance, in order to enable VoiceObjects to provide respective source code information. VoiceObjects shall have the right to request the expenses incurred for its activities related to disclosing source code information to the Licensee.
6. Licensee shall not (a) rent the Licensed Products, (b) run the Licensed Products in an ASP mode, whether on Licensee’s own equipment or through a third party host, (c) provide third parties with access to the Licensed Products except as expressly authorized by this Agreement whether through a service bureau or commercial time-sharing arrangement or otherwise, (d) use the Licensed Products to provide out-sourcing services, or (e) train third parties in the Licensed Products.
7. Licensee shall not obscure, remove or modify any copyright notices, serial numbers and other forms of identification on the Licensed Products.
8. Licensee shall comply with all applicable laws and regulations in performing its duties and exercising its rights under this Agreement and in any of its undertakings with respect to the Licensed Products.
9. If Licensed Products are distributed together with third-party software which is subject to additional license terms established by the third-party owner, Licensee shall abide by such third-party license terms
10. The Licensed Products are based on the Eclipse framework and contain portions of other projects licensed under the Eclipse Public License 1.0 available at http://www.eclipse.org/legal/epl-v10.html. The source code for this part of the Licensed Products is available from VoiceObjects and may be sent to Licensee via email on request. In order to get access to the source code, Licensee shall send a corresponding email to productmanagement@voiceobjects.com.
11. The Licensed Products may be, notwithstanding the rights of the Licensee as set forth in lit. 3 of this Section 5 above, duplicated only as part of routine back-up procedures and may be moved to another location or server, and any such back-up copy may be installed and used, only temporarily in the event of computer malfunction.
12. Licensee shall use reasonable efforts to prevent unauthorized access by third parties to the Licensed Products. Licensee shall keep back-up copies at a location that has been secured against unauthorized access by third parties.

Section 3 – BETA Version

In case Licensee is downloading, installing and/or using a BETA Version (“Beta Version”) of the Licensed Products the following additional provisions shall apply and prevail if and to the extent they conflict with any provision of the remainder.

1. VoiceObjects and its licensors, if any, provide access to such Beta Version to Licensee on an “as is” basis to permit Licensee to use and evaluate such software in its testing environment and upon the terms and conditions set forth herein.
2. Test Period. The Beta Version test period starts on the date of download and ends on the date when the Beta Version is announced by VoiceObjects as being commercially generally available (“GA”). The test period ends at the latest after six months from acceptance of this agreement.
3. Subject to the terms and conditions of this Agreement, VoiceObjects and its licensors, if any, hereby grant Licensee a royalty-free, non-exclusive, non-transferable and non-sub-licensable right and license, for a time-limited Test Period, to use the Beta Version only for internal testing and trial purposes, only in a non-productive environment and not in production and in particular not with any productive data. Licensee may make one copy of the Beta Version for backup purposes only. This agreement shall not be construed to grant either party any patent license, know-how license, any other intellectual property right or any other rights unless expressly granted herein.
4. Licensee may not lease, sub-lease, assign, license, sub-license or otherwise transfer or dispose of the Beta Version without the prior written consent of VoiceObjects. Further, the Beta Version and any copies may only be made, kept and used at the specified location.
5. Licensee acknowledges that the Beta Version provided under this Agreement is covered by effective or pending copyrights, patents, trademarks and/or trade secrets of VoiceObjects and its licensors, if any.
6. Licensee agrees that the Beta Version provided under this Agreement is a prototype and does not represent a completed product of VoiceObjects. This Agreement shall in no way be construed as a commitment by VoiceObjects at any time to manufacture and/or offer evaluation products for sale. VoiceObjects may provide documentation and/or instructions which reflect the operation of the Beta Version as closely as possible, but the Licensee acknowledges its understanding that discrepancies may exist between the Products and supporting documentation or instructions. VoiceObjects makes no representation or warranty, express or implied, that the operation of the Beta Version will be uninterrupted or error free.
7. Subject to Sections 6 and 7, VoiceObjects grants access to the Beta Version under this Agreement on an “as is” basis and assumes no warranty or guarantee for the quality thereof and its good title therein, unless explicitly agreed otherwise in this Agreement. It is understood that the descriptions of the Beta Version contained in the Documentation shall in no event constitute a binding description of the Beta Version licensed hereunder.
8. As the Beta Version may be substantially modified prior to its general availability VoiceObjects does not warrant that the Beta Version or any particular feature or function contained in it will ever be announced as a generally available product.
9. In addition VoiceObjects does not give any warranty that applications developed with the Beta Version will be used by any generally available product.
10. VoiceObjects is under no obligation to support the Beta Version in any way, or to provide Licensee with Updates or other modifications or enhancements. If VoiceObjects, at its sole option, supplies Updates to Licensee, such Updates will be considered part of the Beta Version and subject to the terms and conditions of this Agreement.

Section 4 – Services, Training and Support

1. Nothing in this Agreement shall require VoiceObjects to install the Licensed Products or the Beta Version. Any installation or other services may be obtained from VoiceObjects pursuant to mutually acceptable, fully executed agreements.
2. There is no obligation for VoiceObjects to provide training going beyond the information and explanations given as of the time that the download is completed. Any separate agreement that may be made between the parties to this Agreement concerning any training shall remain unaffected by this.
3. VoiceObjects is under no obligation to support the Licensed Products or Beta Version in any way, or to provide Licensee with Updates or other modifications or enhancements. If VoiceObjects, at its sole option, supplies Updates to Licensee, such Updates will be considered part of the Licensed Products or Beta Version and subject to the terms and conditions of this Agreement.

Section 5 – Maintenance of the Licensed Products

1. In principle, VoiceObjects offers its licensees maintenance of the Licensed Products on the basis of an agreement to be made separately. Updates for the Licensed Products are made available exclusively after a software maintenance agreement of this type or another separate agreement has been concluded in written form. If Updates are made available as part of the software maintenance agreement, the terms and conditions of the present Agreement shall apply unless there is anything to the contrary in the agreed software maintenance agreement. Notwithstanding VoiceObjects may make available Updates from time to time without having a software maintenance agreement in place and on a voluntary basis.
2. VoiceObjects will not arbitrarily refuse to sign a software maintenance agreement of this type.

Section 6 – Warranty

1. Subject to lit. 2 of this Section 6, VoiceObjects grants access to the Licensed Products and other software under this Agreement on an “as is” basis and assumes no warranty or guarantee for the quality thereof and its good title therein, unless explicitly agreed otherwise in this Agreement. It is understood that the descriptions of Products and Software contained in the User Documentation shall in no event constitute a binding description of the Software and Products licensed hereunder for the gratuitous loan -Evaluation Period. Any deviating warranty terms in respect of a period following the termination or otherwise the expiry of the Evaluation Period shall remain unaffected.
2. Subject to section 7 VoiceObjects shall be liable for defects in quality or in title only in the event of fraudulent misrepresentation (arglistig verschwiegener Mangel). In the event of such liability for defects, VoiceObjects is entitled to choose whether to make good by either correcting the defects or by providing a workaround or by making a substitute delivery. Further damage claims shall be subject to the limitations set forth in the following Section.

Section 7 – Liability

1. VoiceObjects shall be fully liable for damages that have been caused intentionally or as a result of gross negligence, where defects (either material defects or defect of title) are concealed fraudulently, where representations and warranties are given with respect to quality, for claims under the German Product Liability Act as well as for personal injury.
2. Any further liability is excluded.
3. The previous limitations of liability shall, with respect to their basis and scope, also apply in favor of the legal representatives, employees and other vicarious and/or ancillary agents acting on behalf of VoiceObjects.

Section 8 – Confidentiality

1. The parties to this Agreement warrant that they shall not disclose confidential information as defined in Section 1. The Licensee warrants that he shall keep confidential such knowledge and information gained exclusively within the scope of this present Agreement. He shall impose the same obligation to maintain confidentiality upon his own employees. The passing on of information requires prior written permission from VoiceObjects in all cases.
2. The stipulations under section 1 above shall not apply to information or knowledge that the other party to this Agreement already knew of before this Agreement was concluded; is generally known or was provided without any fault on the part of the parties to this Agreement or their employees, legal counsel and vicarious agents; that had been made available to the relevant party to this Agreement by an authorized third party. The burden of proof lies on the party to this Agreement that is claiming that an exception exists.
3. In the event of an infringement of the present stipulations by one party to this Agreement or their legal counsel, the relevant party shall pay the other party a contractual penalty in the amount of the damages incurred subject to VoiceObjects´ sole discretion. This does not exclude any subsequent legal claims for damage going beyond this.

Section 9 – Records and Audit

1. Licensee shall keep accounts of the number of copies produced and of the exact location of the copies (including, without limitation, computer serial number, as applicable) and in particular the number of Concurrent Callers, Seats, Business Tasks and/or other units used.  At the request of VoiceObjects Licensee shall hand over to VoiceObjects the corresponding copies of such records within five (5) business days.
2. VoiceObjects may audit Licensee’s compliance with the provisions of this Agreement during normal business hours upon five (5) business days’ written notice to Licensee. The expense of such audit shall be borne by VoiceObjects unless such audit reveals a violation of any term of this Agreement, in which case, in addition to all other remedies that may be available to VoiceObjects hereunder, Licensee shall promptly pay all reasonable costs and expenses of such audit.

Section 10 – Data security

1. Licensee is aware that the Products could be used in ways that could violate data security, privacy and confidentiality laws.  Licensee agrees and acknowledges that the license granted to Licensee pursuant to this Agreement does not permit any such use.
2. Licensee shall indemnify, defend and hold harmless VoiceObjects, its Affiliates, and its and their directors, officers, employees and agents against all claims of any type arising from any claimed or actual violation of any data security, privacy or confidentiality laws or regulations in any jurisdiction through the use of the Products.

Section 11 – Assignment of rights and obligations

1. This Agreement shall not be assigned by Licensee without the prior written consent of VoiceObjects.  Any assignment made without such consent shall be void.  VoiceObjects may assign this Agreement to any of its Affiliates or any person or entity which acquires all or substantially all of the assets or equity of VoiceObjects. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. 

Section 12 – Right of withdrawal

1. VoiceObjects shall be entitled to withdraw the granted rights of use with respect to the Licensed Products for important reason. An important reason shall occur in particular if the Licensee infringes the limitations of use or infringes its contractual obligations stipulated in this Agreement and does not remedy such infringements despite a written warning notice encompassing a withdrawal. In case of a withdrawal of the rights of use, the Licensee shall delete all copies of the Licensed Products. He shall confirm to VoiceObjects the complete deletion in writing.
2. Regardless of the above, it is possible for VoiceObjects to withdraw without having first set a period of notice if Licensee infringes the limits on the number of calls / Sessions.

Section 13 – Closing stipulations

1. The Parties to this Agreement are independent contractors. No provisions in this Agreement shall be construed in a way that a partnership, a joint venture or an agency relationship will be founded between the Parties.
2. Neither one of the Parties shall be responsible for non-performance, other than for a payment obligation due to causes beyond its control, including, without limitation, in particular force majeure, non-operational industrial disputes or actions of a foreign or domestic government.
3. The stipulations of this Agreement also apply in cases of doubt to the obligations of the parties to this Agreement with respect to the appendices to this Agreement unless anything there is stipulated to the contrary.
4. All notices, including notices of address change, shall be deemed to have been given when sent by registered mail with return receipt requested to the relevant address listed in the signature blocks of this Agreement or the address stated in the most-recent notice of address change given in accordance with this Section 13.4.
5. This Agreement, and all matters arising out of or relating to this Agreement, shall be governed by German law. The contractual Parties hereby exclude the applicability of the United Nations Convention on the International Sale of Goods, as well as all possible conflict of laws provisions. Exclusive venue is Köln; however, VoiceObjects is entitled to submit actions against Licensee to any other legally admissible court of law.
6. In the event one or several provisions of this Agreement are invalid or unenforceable, the Parties shall replace this invalid or unenforceable provision with a provision which comes as close as possible to the economic purpose of this Agreement. The remaining provisions of this Agreement remain fully enforceable