Miracle Service End User License Agreement
Last Updated and Effective: May 24, 2023
This Agreement is between you, the user (the “Licensee”) and Nexent Innovations Inc. (“Nexent”), for the Miracle Service™ software product provided (the “Product”).
The Product may include server, desktop, web and mobile software, as well as associated media, printed materials, and on-line or electronic documentation. By installing, copying, downloading, accessing or otherwise using the Product, you agree to be bound by the terms of this Agreement. The Product is licensed, not sold.
1. License:
(a) Nexent hereby grants to the Licensee a non-exclusive, non-transferable license (the "License") to use the object code of the Product and any accompanying documentation (the "Documentation"), only on its own systems, and only for the purpose of conducting the Licensee’s business, and only for:
i. one company database,
ii. the number of users listed on your purchase invoice, and
iii. only for the term contained in this agreement.
(b) The Licensee may not:
i. reproduce the Product (except for one back-up copy);
ii. use the Product except as authorized herein;
iii. assign, sublicense, pledge, sell, lease, rent, or otherwise transfer or share its rights under this Agreement; or
iv. use the Product to process data for other parties.
2. Support: Support for this Product is provided under a separate agreement with the Licensee. Nexent may add, enhance, and remove features from the Product at any time. Updates are available only from Nexent’s website. To use a Product identified as an upgrade, you must first be licensed for the Product and identified as eligible for the upgrade.
3. Confidential Information: Confidential Information is all information of Nexent that is not generally known to the public, whether of a technical, business or other nature (including, without limitation, trade secrets, know-how and information relating to technology, customers and customer information, and other business affairs of Nexent), that is disclosed by Nexent to the Licensee or that is otherwise learned by the Licensee in the course of its discussions or business dealings with, or its physical or electronic access to the premises of Nexent, and that has been identified as being proprietary and/or confidential or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as proprietary and/or confidential.
The Licensee shall use Confidential Information only for the purposes contemplated by this Agreement, shall disclose Confidential Information only to those employees who have a need to know such information, and may not disclose Confidential Information to any third party.
4. Intellectual Property: The Product is 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 Product or the business of Nexent in general, including all registrations and applications therefore are the sole and exclusive property of Nexent. The Licensee may not reverse engineer, decompile, disassemble, or create derivative works from the Product or modify the Product in any way, or attempt to do so. If the Licensee 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 products 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 Licensee, or those for whom in law it is responsible.
5. Refunds: Once the software is installed, Nexent does not permit the return of, or offer refunds for the following:
i. Product that is custom configured to your specifications, including personalized reports
ii. Installed software (note that you may return software after rejecting the licensing terms, provided the software is not installed on a computer)
iii. Electronic software downloads
iv. Software upgrades
v. Technical services (including Technical Support Plans)
6. License Term:
(a) This license is perpetual unless earlier terminated pursuant to its terms
(b) Nexent may immediately terminate this license without notice upon the occurrence of any of the following events:
i. Licensee fails to comply with any provision of this Agreement;
ii. Licensee attempts to assign, sub-license, or otherwise transfer any of its rights under this Agreement without the consent of Nexent;
iii. Licensee files an assignment in bankruptcy or is or becomes bankrupt and/or insolvent, upon the appointment of a receiver for all or substantially all of the property or assets of the Licensee, upon the making of any assignment or attempted assignment for the benefit of creditors or on the institution by Licensee of any act or proceeding for the winding up of its business;
iv. Licensee utilizes the Product for any use not provided for in this Agreement; or
v. Licensee fails to pay the required license fees applicable to this agreement within 30 days of the due date.
Upon termination, Licensee agrees to destroy all copies of the Product and to return all documentation to Nexent.
7. 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.
8. Export Law: The Product may be subject to restrictions and controls imposed under Canadian, U.S. or international exportation laws. The Licensee may not acquire, ship, transfer, or export, directly, or indirectly, in whole or in part, into any county prohibited under such laws.
9. Limited Warranty: Nexent warrants that the Product will perform substantially in accordance with the Documentation. This limited warranty and any implied warranties or conditions on the Product are limited to thirty (30) days from the date of receipt of the Product. Nexent’s entire liability and your exclusive remedy shall be to repair or update the Product 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. After the limited warranty period expires, the Licensee will be eligible to receive Product upgrades pursuant to a separate Support Agreement (see Item 2 of this agreement).
IN NO EVENT WILL NEXENT OR ITS SUPPLIERS OR DISTRIBUTORS BE LIABLE TO THE LICENSEE 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 PRODUCT; (B) ANY DELAYS, ERRORS, OMISSIONS, OR OTHER INACCURACIES IN ANY CONTENT OR ANY DATA TRANSMITTED USING THE PRODUCT; (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 PRODUCT 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 LICENSEE FOR THE PRODUCT 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.
10. Waiver: Waiver of any default or breach of this Agreement shall not be construed as a waiver of either a subsequent or continuing default. Termination of this Agreement shall not affect a party's liability by reason of any act, default, or occurrence prior to such termination, nor shall it preclude the non-defaulting party from exercising or pursuing any other right or remedy as may be available to it at law or in equity, including a suit for damages or specific performance.
11. Prior Agreement: This Agreement, along with any Nexent prepared form of purchase order or order confirmation relating to the Product, contains the complete and exclusive statement of the Agreement between the parties and supersedes all prior and contemporaneous agreements, purchase orders, understandings, proposals, negotiations, representations or warranties of any kind whether written or oral. No oral or written representation that is not expressly contained in this Agreement is binding on either party. This Agreement cannot be amended or modified, other than by a change made in writing, dated and executed by the parties.
12. Governing Law: This Agreement shall be interpreted in accordance with and governed by the laws of the Province of Ontario, Canada, excluding conflicts of laws provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods. 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.
Miracle Service Maintenance and Support Agreement
Last Updated and Effective: May 24, 2023
This Agreement is between you, the user (the "Licensee") who has previously licensed Miracle Service™ software (the "Licensed Product") under a separate Nexent Innovations End User License Agreement, and Nexent Innovations Inc. ("Nexent") for maintenance and support services (the "Support Services").
Term: Support shall be provided at no cost for the first thirty (30) days following delivery of the Miracle Service software. Thereafter it will be extended on either monthly or annual terms (as set forth in the purchase order, order confirmation or sales agreement and subject to any minimum term indicated (the “Minimum Term”)) at the support fees set out by Nexent, starting at the later of the expiry of the thirty (30) days and ending when the then current Term expires and Nexent does not receive a renewal fee, or when Nexent terminates this Agreement by giving at least 30 days prior written notice.
Termination: Nexent may immediately terminate this Maintenance and Support agreement without notice upon the occurrence of any of the following events: Licensee fails to comply with any provision of this Agreement; Licensee attempts to assign, sub-license, or otherwise transfer any of its rights under this Agreement without the consent of Nexent; Licensee files an assignment in bankruptcy or is or becomes bankrupt and/or insolvent, upon the appointment of a receiver for all or substantially all of the property or assets of the Licensee, upon the making of any assignment or attempted assignment for the benefit of creditors or on the institution by Licensee of any act or proceeding for the winding up of its business; Licensee fails to pay the Maintenance and Support Services fees by due date; or the Nexent End-User License Agreement for the Licensed Product has been terminated.
Licensee may terminate this Agreement without cause after the Minimum Term is completed upon thirty (30) days written notice to Nexent, however, in such event, all prepaid fees paid hereunder are non-refundable.
Reinstatement: If this Agreement is terminated, a Reinstatement Fee shall be assessed if Licensee seeks to reinstate a Maintenance and Support Agreement. The Reinstatement Fee is calculated from the date the Maintenance and Support Agreement was terminated to the date that Support Services are reinstated.
Contact Information: Nexent will provide email and telephone support through the following contacts:
Telephone: 1-(877) 263-9368 or (905) 206-1828
Email: support@miracleservice.com
Language: Support Services will be provided in English only.
Support Hours: Support Services are provided Monday to Friday 9am to 5pm Eastern Time excluding Ontario Statutory holidays.
Licensee Contacts: Support Services are provided to designated technical personnel employed by or contracted by the Licensee. At time of purchase the Licensee shall provide to Nexent a list of up to 2 technical contacts that may request the Support Services. The Licensee may amend that list from time to time.
Releases: Nexent updates its Products through releases. Each release is assigned a version number comprising of four numbers each separated by a period (e.g. 10.0.4.1). The version number can be viewed through the Help About page within each Licensed Product. The format of the version number is as follows:
A.B.C.D where:
A Represents a Major Release with significant changes to the Product
B Represents a Revision to the release with new features and database changes
C Represents a Minor Release with database and associated software/portal affecting changes
D Represents a Maintenance Release with non-database affecting changes
Software Maintenance covered under this Agreement includes Maintenance and Minor Releases. This Agreement does NOT include Major or Revision Releases, which may be subject to additional cost at Nexent's discretion.
System Access: If Licensee provides access to its systems for the purpose of performing Support Services, Licensee shall restrict Nexent Support from accessing Licensee's systems outside the Licensed Product's installation. 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 Licensee's systems or data resulting from its ability to access systems other than the Licensed Product.
Exclusions: Custom software engineering assistance and Licensee specific software development is not included in this Agreement. Implementation and training are not included and are separately chargeable.
Supported Systems: Support Services are limited to Licensees running the Miracle Service Licensed Product on supported systems and software listed on the http://www.miracleservice.com system requirements web page.
Problem Reporting Checklist: To provide quick and efficient support, the following information should be readily available prior to contacting Support Services:
- Your Name
- Product License or Tracking Number
- Company Name
- Telephone Number
- E-mail Address
- Product Name(s) and Version(s)
- Operating System and Version
- Hardware Platform
- Detailed description of the Product Defect (including any transcripts or error messages that you may have received)
Note - a defect is any error, unexpected result, or incorrect behavior that deviates from the expected result or use as described in the associated product documentation. Architectural modifications in subsequent product releases or failures resulting from the use of undocumented product behavior, or use on unsupported platforms will not be classified as a defect. Products are subject to support only on the platforms explicitly designated on the system requirements web page.
Error Correction: In order to verify a defect or problem report, Nexent may require a small but complete test program that can be compiled and executed consistently in demonstrating the problem. Nexent shall use reasonable efforts to correct any reproducible and material programming error in the Licensed Product 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. Nexent shall provide error corrections through a Maintenance Release.
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.
Ownership: Any corrections, changes, clarifications, additions or other improvements to the Licensed Product which the Licensee reports to or requests of Nexent are the property of Nexent, unless Nexent explicitly agrees otherwise in writing prior to performing the work.
Licensee Obligations: In connection with Nexent's provision of the Support Services, the Licensee agrees to: (1) maintain the relevant computer system on which the Licensed Product is used and associated peripheral equipment in good working order in accordance with the manufacturers' specifications, and in compliance with the minimum system requirements set forth in the Licensed Software documentation, to ensure that any problems reported to Nexent are not due to hardware malfunction; (2) reasonably perform any tests or procedures recommended by Nexent for the purpose of identifying and/or resolving any problems; (3) maintain procedures external to the Licensed Product for reconstruction of lost or altered files, data, or programs; (4) implement in a reasonably timely manner all updates and releases provided by Nexent.
Support Duration: Nexent supports each Major Release of the Licensed Product for a period of twelve (12) months after the issuance of the next Major Release. Support Services for any earlier versions or for other problems not covered under the description of Support Services in this Agreement may be purchased from Nexent at Nexent's then current rates for special technical services. Nexent reserves the right to discontinue Support Services for any Licensed Product with 12 months prior notice.
Governing Law: This Agreement shall be interpreted in accordance with and governed by the laws of the Province of Ontario, Canada, excluding conflicts of laws provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods. 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.
Privacy: Any personal information on the Licensee's systems viewed by Nexent while performing this Agreement is subject to Nexent's privacy policy, which is available on Nexent's web site.
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.
Waiver: Waiver of any default or breach of this Agreement shall not be construed as a waiver of either a subsequent or continuing default. Termination of this Agreement shall not affect a party's liability by reason of any act, default, or occurrence prior to such termination, nor shall it preclude the non-defaulting party from exercising or pursuing any other right or remedy as may be available to it at law or in equity, including a suit for damages or specific performance.
Entire Agreement: This Agreement, along with any Nexent prepared form of purchase order, order confirmation or sales order relating to the Licensed Product, contains the complete and exclusive statement of the Agreement between the parties and supersedes all prior and contemporaneous agreements, purchase orders, understandings, proposals, negotiations, representations or warranties of any kind whether written or oral. No oral or written representation that is not expressly contained in this Agreement is binding on either party. This Agreement cannot be amended or modified, other than by a change made in writing, dated and executed by the parties.
Limited Warranty: In no event will Nexent or its suppliers or distributors be liable to the Licensee 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 relating to this Agreement or the Support Services. In all circumstances, the maximum amount that Nexent or its suppliers or distributors may be held liable for, for any reason whatsoever is the Support Services fee paid by the Licensee for the then current term.
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.
Terms of Service for Miracle Service Hosted Services
Last Updated and Effective: March 19, 2021
This Agreement is between you, the user (the “Customer”) and Nexent Innovations Inc. ("Nexent"), for the hosted and support services provided (referred collectively herein as the “Services”).
Customer is required to have an active Miracle Service™ technical support contract, and to maintain that contract during the term of this Agreement.
1. License to Use: 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.
2. Services: The Services provided to the Customer include some or all of the following:
i. Set-up of Miracle Service™ software and any associated modules or programs on the hosting platform;
ii. Upgrade of Miracle Service™ software and any associated modules as set forth in this Agreement;
iii. Support Services as set forth in this Agreement;
iv. Hosted Services as set forth in this Agreement.
3. Term: The Term commences upon the effective date as set forth in your (the “Order Form”). Thereafter it can be extended on a monthly basis 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 11 of this Agreement.
4. Fees: Fees for the Services (the “Fees”) have been set forth in the Order Form. Once placed, your order is non-cancelable and the sums paid non-refundable, except as provided in the relevant Order Form. Fees are due and payable in advance of a service term, with the exception of data transfer overage fees as set forth in the Order Form which are billed and payable thirty (30 days) from when they are incurred.
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, upon thirty (30) days prior notice to Customer.
5. Hosted Services: Nexent shall host the Miracle Service™ software 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 Miracle Service™, including files, text and parameters to a maximum storage capacity as specified in the Order Form;
iii. Data transfer between Miracle Service™ and the internet to a maximum data transfer allowance as specified in the Order Form;
iv. Nightly back-up of the data.
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, without limitation, any force majeure events or Customer internet access.
6. Support Services: Technical support services (Support Services) for the Services are provided remotely from Nexent's premises Monday to Friday 8:30am to 5pm Eastern Time (excluding Ontario Statutory holidays). Technical support for the Miracle Service™ software is provided under separate Miracle Service™ technical support contract.
Nexent will provide Support Services, in English only, through the following contacts:
• Telephone: 1-(877) 263-9368 or (905) 206-1828
• Email: support@nexent.com
7. Upgrades: The Services and the Miracle Service™ software may periodically be updated with tools, utilities, improvements, third party applications, or general updates to improve the software or Services. You agree to receive these updates.
8. 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.
9. 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.
10. Remedies: In the event that the Customer is not satisfied with the Services’ network availability or performance, or the provision of the Support Services, Customer may provide notice of termination in accordance with section 11 of this Agreement. THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR SERVICE INTERRUPTIONS, SERVICE RESPONSE ISSUES, EQUIPMENT AND/OR SOFTWARE FAILURES, AND/OR SERVICE DEFICIENCIES OF ANY KIND.
11. 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) The Customer may terminate this Agreement by providing thirty (30) day’s 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) 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.
12. 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.
13. 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.
14. Limited Warranty: With the exception of the remedies available to Customer pursuant to section 10 of this Agreement, the Services are being provided “as-is”, and Nexent and its Suppliers and Distributors make no representations or warranties, express, implied, statutory, or otherwise, with respect to the service. To the fullest extent permissible by law, Nexent and its Suppliers and Distributors expressly disclaim any and all warranties regarding non-infringement, any implied warranties, or any warranty regarding merchantability or fitness for a particular purpose, even if arising from course of performance, course of dealings, or usages or trade. Nexent does not warrant that the Services shall meet Customer’s requirements or that the operation of the Services shall be uninterrupted or error-free. Customer assumes all risks associated with the quality, performance, installation, and use of the Services, including risks of errors, damage to equipment, loss of data, or unavailability or interruption of operations.
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.
15. 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.
16. 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.
17. 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.
Terms of Service for SaaS Hosted Miracle Service Software and Services
Last Updated and Effective: January 3, 2022
This Agreement is between you, the user (the “Customer”) and Nexent Innovations Inc. ("Nexent"), for the Miracle Service™ 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 Miracle Service solution 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 of Miracle Service™ software and any associated modules or programs on the hosting platform;
ii. Upgrade of Miracle Service™ software and any associated modules as set forth in this Agreement;
iii. Support Services as set forth in this Agreement;
iv. Hosted Services as set forth in this Agreement.
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 Miracle Service 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 Miracle Service™, including files, text and parameters to a maximum storage capacity as specified in the Order Form;
iii. Data transfer between Miracle Service™ and the internet to a maximum data transfer allowance as specified in the Order Form;
iv. Nightly back-up of the data.
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 elsewhere.
• Email: support@nexent.com
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: Nexent reserves the right to modify this Agreement at any time by posting an amended Agreement that is always accessible through a link on its website. Nexent may also change or discontinue the Services, in whole or in part. It is important that the Customer reviews this Agreement periodically because continued use of the Services indicates the Customer's 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.