Last Updated and Effective: March 23, 2020
PLEASE READ CAREFULLY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT (THE “AGREEMENT”) BEFORE USING THIS SOFTWARE OR SERVICES
This Agreement is between you, the user (the “Customer”) and Nexent Innovations Inc. (“Nexent”), for the TEN4 online service management solution and the hosted and non-hosted services provided (referred collectively herein as the “Services”).
The Services include access to the hosted TEN4 solution as well as the TEN4 Android App, TEN4 iOS App, TEN4 UWP Windows App and associated media, printed materials, and on-line or electronic documentation. By accepting electronically (for example, clicking “I Agree”), installing, accessing or using the Services, you agree to these terms. If you do not agree to this Agreement, then you may not use the Services.
1. License: Nexent hereby grants to the Customer a limited, non-exclusive, non-transferable, right and license to use the Services for the purpose of conducting the Customer’s business, and only for: (i) one Customer license and (ii) only for the term contained in this Agreement.
The Customer may not:
(i) Use the Services except as authorized herein;
(ii) Assign, sublicense, pledge, sell, lease, lend, rent, or otherwise transfer or share its rights under this Agreement; or
(iii) Use the Services to process data for other parties, except for the certificates provided for in this Agreement.
2. Services: The Services provided to the Customer include some or all of the following:
(i) Set-up Customer on the TEN4 online platform;
(ii) Support Services as set forth in this Agreement;
(iii) Hosted Services as set forth in this Agreement;
(iv) Android, iOS or UWP Windows Apps for TEN4, which may not be available for all mobile devices or telecommunication providers as Nexent is not obligated to provide a compatible version of the Services for all mobile devices.
3. Term: The Term commences upon the effective date of your order and shall be as set forth in your order documentation (the “Order Form”). Thereafter it can be extended on annual terms at the renewal fees set out by Nexent. The term ends when the then current term expires and Nexent does not receive a renewal fee, or when this Agreement is terminated in accordance with section 20 of this Agreement.
4. Payment: Fees for Services (the “Fees”) have been set forth in the Order Form. Fees are due and payable in advance of a service term. Once placed, your order is non-cancelable and the sums paid non-refundable, except as provided in the relevant Order Form. Customer agrees that the placed order was not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Nexent or any third party regarding future functionality or features.
Nexent reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial service Term, or then current renewal term, or when new features or functionality are released, upon thirty (30) days prior notice to Customer.
5. Hosted Services: Nexent shall host the TEN4 platform and shall provide the Customer with:
(i) Application level access to the site via an Internet Uniform Resource Locator (URL) together with a User ID and password.
(ii) Storage of all Customer data created and managed by the Services, including files, text and parameters;
(iii) Nightly back-up of the data;
(iv) Storage capacity available for uploaded files as specified in the Order Form. Customer has the option to prepay for increased network data transfer capacity and/or storage capacity.
Nexent will use commercially reasonable efforts to make the hosted services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Nexent shall provide advanced electronic notice), and (ii) any unavailability caused by circumstances beyond Nexent’s reasonable control, including as provided for in section 25.
6. Support Services: Technical support services (Support Services) are provided remotely from Nexent’s premises for issues that are demonstrable in the currently supported release(s) of the Services, running unaltered, and on a certified hardware and operating system configuration, as specified in the Order Form or program documentation.
7. Support Contact Information: Nexent will provide Support Services through the following contacts:
Telephone: 1-(877) 263-9368 (North America) or +1 (905) 206-1828
8. Language: Support Services will be provided in English only. All communications and documentation for the Services to be furnished under this Agreement shall be in the English language.
9. Support Hours: Support Services are provided Monday to Friday 8:30am to 5pm Eastern Time (excluding Ontario Statutory holidays).
10. Customer Contacts: Support Services are provided to designated personnel employed by or contracted by the Customer. You may designate one (1) primary and two (2) backup individuals to serve as liaisons with Nexent Support. Please note that access to the Services should not be given to individuals under the age of eighteen (18).
11. Updates: The Services may periodically be updated with tools, utilities, improvements, third party applications, or general updates to improve the Services. You agree to receive these updates.
12. System Access: If the Customer provides access to its systems for the purpose of performing Support Services, the Customer shall restrict Nexent Support from accessing the Customer’s systems outside the Services. Without limiting the generality of the limitations of liability outlined in this Agreement, Nexent shall not be responsible for any effects its support actions cause to any of the Customer’s systems or data resulting from its ability to access systems other than the Services. Please do not provide Nexent with access to any payment cards or other sensitive data that requires protections greater than those specified here.
13. Exclusions: Custom software engineering assistance and Customer specific software development is not included in this Agreement. Implementation and training are also not included and are separately chargeable.
14. Supported Systems: Nexent relies on a variety of products developed by third party vendors, which may include but are not limited to: operating systems, database management systems, application servers, web servers, device drivers, internet browsers, and mobile devices. While Nexent makes every effort to ensure the broadest possible product compatibility is achieved, it is not possible to test every combination. Untested configurations are considered unsupported environments. An issue must be reproducible within a supported environment before investigation can occur.
15. Problem Reporting: To provide quick and efficient support, the following information should be provided when requesting Support Services:
• Customer’s full contact details (Company name, contact name, phone, email)
• Full problem description including:
– What are the symptoms
– What context does the problem occur
– What was expected to happen
– What actually happened
– Did the problem occur once or often
– Is the problem erratic or consistent
– Can the problem be duplicated and, if so, what steps are required
– What is the exact error message(s)
– Problem severity
– Screen shots of issue (if feasible)
16. Incident Resolution: All support incidents will result in either an answer to the question, a solution to the problem, or an issue filed in Nexent’s bug/feature tracking system with a release priority. Nexent shall use reasonable efforts to correct any reproducible and material programming defects in the Services with the level of effort reasonably commensurate with the severity of the error. Nexent shall not be responsible for correcting errors not attributable to Nexent.
Note: a defect is any error, unexpected result, or incorrect behaviour that deviates from the expected result or use as described in the associated product documentation. Architectural modifications in subsequent releases or failures resulting from the use of undocumented product behaviour, or use on unsupported platforms or systems will not be classified as a defect.
17. Response Time: Nexent Support will use reasonable efforts to respond to all Support Services requests within a reasonable time, with either a solution, or a request for further information to assist it in providing a solution. Support Services requests are handled in priority basis as follows:
Level 1: Customer’s use of the Services is impacted so that the Customer experiences a complete loss of service and the operation is mission critical to the business.
Level 2: Customer experiences a severe loss of service. Important features are unavailable with no acceptable workaround; however, operations can continue in a restricted fashion.
Level 3: Customer experiences a minor loss of service. The impact is an inconvenience, which may require a workaround to restore functionality
Level 4: Customer requests information, an enhancement, or documentation clarification regarding the Services but there is no impact on the operation of the software. Customer experiences no loss of service. The result does not impede the operation of a system.
18. Ownership: Any corrections, changes, clarifications, additions or other improvements to the Services which the Customer reports to or requests of Nexent are the property of Nexent, unless Nexent explicitly agrees otherwise in writing prior to performing the work.
19. Changes: We reserve the right to modify this Agreement at any time by posting an amended Agreement that is always accessible through a link on our website. We may also change or discontinue the Services, in whole or in part. It is important that you review this Agreement periodically because your continued use of the Services indicates your agreement to the modifications.
20. License Term & Termination:
(a) Nexent may immediately terminate this license without notice upon the occurrence of any of the following events:
(i) Customer fails to comply with any provision of this Agreement
(ii) Customer attempts to assign, sub-license, or otherwise transfer any of its rights under this Agreement without the consent of Nexent;
(iii) Customer utilizes the Services for any use not provided for in this Agreement; or
(iv) Customer fails to pay any of the applicable Fees under this agreement within thirty (30) days of the due date.
(b) Once the Term is complete Customer may terminate this Agreement by providing thirty (30) days’ written notice to Nexent, however in such event, all prepaid fees paid hereunder are non-refundable.
(c) Nexent may terminate this Agreement by providing thirty (30) day’s written notice to the Customer.
(d) Nexent may terminate a free account at any time.
(e) Upon termination of this Agreement, Nexent and the Customer shall have no obligations to each other except as provided in this Agreement. Upon termination of this Agreement, Customer shall pay all amounts due and owing to Nexent, and cease immediately to use the Services. The rights and obligations of both parties, which by their nature would continue beyond the termination of this Agreement (including, without limitation, those relating to confidentiality, payment of Fees, limitations of liability and indemnification), shall survive such termination.
21. Intellectual Property: The Services are protected by copyright and patent laws, international copyright and patent treaties, as well as other intellectual property laws and treaties. All patent, copyright, trademark, trade secret, source code, internet domain, and other intellectual and intangible property rights relating to the Services or the business of Nexent in general, including all registrations and applications therefore are the sole and exclusive property of Nexent. The Customer may not reverse engineer, decompile, disassemble, or create derivative works from the Services or modify the Services in any way, or attempt to do so. If the Customer makes any unauthorized use of any intellectual property or rights that belong to Nexent it may result in irreparable harm, lost sales or goodwill, or a negative image to Nexent or its Services which cannot be adequately compensated for by damages. Nexent shall be entitled to injunctive relief to the extent that such damage is caused by the Customer, or those for whom in law it is responsible.
22. Disclaimer: Nexent does not give professional advice. Nexent is not in the business of providing legal, financial, accounting, tax, governmental audit or other professional services advice. Consult the services of a competent professional when you need this type of assistance.
23. Confidentiality: By virtue of Customer’s order, the parties may have access to information that is confidential to one another (“confidential information”). Each party agree to disclose only information that is required for the performance of obligations under the Order Form. Confidential information shall be limited to the terms and pricing under the Order Form and all information clearly identified as confidential at the time of disclosure. A party’s confidential information shall not include information that:
(i) is or becomes a part of the public domain through no act or omission of the other party;
(ii) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party;
(iii) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or
(iv) is independently developed by the other party.
Each party agrees to hold each other’s confidential information in confidence for a period of three years from the date of disclosure. Also, each agree to disclose confidential information only to those employees or agents who are required to protect it against unauthorized disclosure. Nothing shall prevent either party from disclosing the terms or pricing under the order in any legal proceeding arising from or in connection with the order or disclosing the confidential information to a federal or state governmental entity as required by law.
Nexent shall have the right collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer data and data derived therefrom), and Nexent will be free (during and after the term hereof) to:
(i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Nexent offerings, and
(ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
24. Interpretation: Each paragraph and provision of this Agreement is severable, and if one or more paragraphs or provisions are declared invalid, the remaining provisions of this Agreement will remain in full force and effect. Time shall be of the essence in this Agreement.
25. Limited Warranty: Nexent warrants that the Services will perform substantially in accordance with the Documentation. This limited warranty and any implied warranties or conditions on the Services are limited to thirty (30) days from the date of receipt of the Services. Nexent’s entire liability and the Customer’s exclusive remedy shall be to repair or update the Services that does not meet this Limited Warranty. Any updated software will be warranted for the remainder of the original limited warranty period or thirty (30) days, whichever is longer.
IN NO EVENT WILL NEXENT OR ITS SUPPLIERS OR DISTRIBUTORS BE LIABLE TO THE CUSTOMER FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION AND THE LIKE), OR ANY OTHER DAMAGES ARISING IN ANY WAY (EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OPERATION OF LAW OR OTHERWISE) FOR ANY MATTER INCLUDING WITHOUT LIMITATION: (A) THE AVAILABILITY, USE, RELIANCE ON, OR INABILITY TO USE THE SERVICES; (B) ANY DELAYS, ERRORS, OMISSIONS, OR OTHER INACCURACIES IN ANY CONTENT OR ANY DATA TRANSMITTED USING THE SERVICES; (C) THE RELIABILITY OR ANY FAILURE OF THIRD PARTY COMMUNICATIONS SYSTEMS, INCLUDING THE INTERNET AND WIRED AND WIRELESS NETWORKS TO OPERATE; (D) ANY UNINTENDED OR UNAUTHORIZED ACCESS, ALTERATION, THEFT, CORRUPTION OR DESTRUCTION OF FILES, DATA, TRANSMISSION FACILITIES OR EQUIPMENT (WHETHER BY NEXENT OR THIRD PARTIES); OR (E) ANY USE OF THE SERVICES FOR ILLEGAL, IMPROPER OR UNACCEPTABLE PRACTICES. IN ALL CIRCUMSTANCES, THE MAXIMUM AMOUNT THAT NEXENT OR ITS SUPPLIERS OR DISTRIBUTORS MAY BE HELD LIABLE FOR, FOR ANY REASON WHATSOEVER, IS THE PRICE PAID BY THE CUSTOMER FOR THE SERVICES ONLY.
The parties acknowledge that Nexent has set its prices and entered into this Agreement in reliance on the limitations of liability and disclaimers of warranties and damages set forth herein, and that the same form a fundamental and essential basis of the agreement between the parties. They shall apply even if this Agreement is found to have failed in its fundamental or essential purpose or been fundamentally breached.
26. Force Majeure: Nexent and its Distributors shall not be liable for any failure by Nexent and its Distributors to perform its obligations under this Agreement because of circumstances beyond the reasonable control of Nexent and its Distributors, which such circumstances shall include (without limitation) natural disaster, terrorism, riot, sabotage, labor disputes, war, any acts or omissions of any government, governmental authority or third party, declarations of governments, transportation delays, power failure, computer failure, telecommunications failure, internet service provider failure or delay, third party technology failure, failure of the Customer to cooperate with the reasonable requests of Nexent and its Distributors, misuse of the Services by the Customer or third party, breach of this Agreement by the Customer or a third party and any other events reasonably beyond the control of Nexent and its Distributors.
27. Indemnification: Customer shall release, defend, indemnify and hold harmless Nexent (including its officers, directors, employees, affiliates, independent contractors, distributors, agents and successors) against any expense, loss, cost or liability (including, without limitation, interest, penalties, attorney fees and paralegal fees) arising from any and all claims, demands, damages or actions resulting from or related to (i) use of the Services by the Customer, (including, without limitation, any claim regarding use of the Services by the Customer in an infringing manner or any claim by third parties for breach of warranty, negligence, loss of data, libel, slander, unfair competition, trademark infringement, or invasion of privacy); (ii) performance of the Services; (iii) The Customer’s negligence or the acts (or any failure to act) of the Customer hereunder; (iv) any breach by the Customer of the obligations of the Customer hereunder; and (v) investigation or defense of any of the above or in asserting Nexent’s rights hereunder.
28. Applicable Law: This Agreement shall be interpreted in accordance with and governed by the laws of the Province of Ontario, Canada. The parties hereby submit to the non-exclusive jurisdiction of the courts of Ontario, and the Federal Court of Canada. Any actions against Nexent must be commenced in the courts of Ontario or the Federal Court of Canada.