License and Maintenance Agreement
This Agreement, together with the related Analysis & Recommendations Report (the “Proposal”) signed by NEX and you , describes the terms governing your use of the NEX Software including content, updates and new releases (collectively, the “Software”) and gives you certain rights and responsibilities depending on the software license you’ve selected and subscribed to, as more fully described herein.
LICENSE GRANT AND RESTRICTIONS
The Software is protected by copyright, trade secret, and other intellectual property laws. You are only granted certain limited rights to use the Software, and NEX reserves all other rights in the Software not granted to you in writing herein. As long as you meet any applicable payment obligations and comply with this Agreement, NEX grants you a personal, limited, nonexclusive, nontransferable, revocable license to use the Software unless terminated under the terms, as set forth in this Agreement and in the Proposal (collectively, the “License”)
- Payment for the Software: The Software is licensed on a yearly subscription basis to the named individuals who are authorized by you to use the Software pursuant to this Agreement, for whom Licenses have been procured, and who have been supplied user identifications and passwords (each, a “User”). You will be invoiced for the number of Users with active licenses quarterly. You are responsible to review all of the active subscriptions purchased on the profile of each user to ensure accurate invoicing. No credits will be remitted for any unused licenses. You must pay your invoice within 14 days of receipt. NEX will automatically renew your annual subscription at then-current rates, as required for you to maintain access to the Software, unless your License to the Software is cancelled or terminated under this Agreement.
- Users: Passwords and Access: User logins are for designated Users and cannot be shared or used by more than one User. You may add or cancel Users at any time without prior authorization from NEX. You will not be able to reactivate a cancelled User. You will be responsible for the confidentiality and use of User’s passwords and user names. You will use commercially reasonable efforts to prevent unauthorized access to or use of the Software and shall promptly notify NEX of any unauthorized access or use of the Software or any User’s password or name.
- NEX may periodically update the Software with tools, utilities, improvements, third party applications, or general updates to improve it. Accepting this agreement implies that you agree to receive these updates.
- The Software may be temporarily interrupted or curtailed due to equipment modifications, upgrades, relocations, repairs and other similar activities necessary during its operation and upgrade. No reduction of payments will be made in the case of temporary interruption of the Software. In no event will NEX be liable for any damages due to temporary interruption of the Software
- You are responsible for your content. Content includes any data, information, materials, text, graphics, images, music, software, audio, video, works of authorship of any kind, that are uploaded, transmitted, posted, generated, stored or otherwise made available through the Software ("Content"), which will include without limitation any Content that Users provide through the Software. By making your Content available through your use of the Software, you grant NEX a worldwide, royalty-free, nonexclusive license to host and use your Content for backup purposes as well as in connection with support for and maintenance of the Software. If you are hosting NEX on your server, you are responsible for any lost or unrecoverable Content. NEX is not responsible for any of your Content that you submit through the Software.
- NEX may freely use feedback you provide. You agree that NEX may use your feedback, suggestions, or ideas in any way, including in future modifications of the Software, other products or Software, advertising or marketing materials. You grant NEX a perpetual, worldwide, fully transferable, irrevocable, fully paid-up, royalty free license to use the feedback you provide to NEX in any way. NEX will not sell, publish or share your feedback in a way that could identify you without your explicit permission.
- NEX may, but has no obligation to, monitor access to or use of the Software or Content or review or edit any Content for the purpose of operating the Software, providing support and ensuring compliance with this Agreement.
You acknowledge and agree that the Software is licensed, not sold. You are responsible for all activities conducted under your User logins and for the compliance of Users with this Agreement. Your use of the Service shall not include service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single User login, or time-sharing of the Software. You will not permit any third party to:
- copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Software or any part thereof or otherwise attempt to discover any source code or modify the Software in any manner or form;
- access or use the Software to circumvent or exceed account limitations or requirements;
- use the Software for the purpose of building a similar or competitive product or service,
- obtain unauthorized access to the Software (including without limitation permitting access to or use of the Software via another system or tool, the primary effect of which is to enable input of requests or transactions by other than authorized Users);
- use the Software in a manner that is contrary to applicable law or in violation of any third party rights of privacy or intellectual property rights;
- publish, post, upload or otherwise transmit Content that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data,
personal information or property of another; or
- provide access to or give the Software or any part of the Software to any third party; or
- sell, trade or transfer your license to the Software to any other party;
- use or permit the use of any tools in order to probe, scan or attempt to penetrate or benchmark the Software.
You will comply with all applicable laws, regulations, and conventions in connection with its use of the Software, including without limitation those related to privacy, electronic communications and anti-spam legislation.
If you violate any of these terms, this Agreement and your license to use the Software may be terminated by NEX in its sole discretion.
THIRD PARTY APPLICATIONS
TRANSMISSION OF DATA
You understand that the technical processing and transmission of your Content is fundamentally necessary to the use of the Software. You are responsible for securing DSL, cable or another highspeed Internet connections and an up-to-date Google Chrome browser software in order to utilize the Software. You expressly consent to NEX’s interception and storage of your Content, and you acknowledge and understand that your Content will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by NEX. You further acknowledge and understand that your Content may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. NEX is not responsible for any Content which is delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by NEX, including, but not limited to, the Internet and your local network.
NEX’S SUPPORT SERVICES AND PROFESSIONAL SERVICES
NEX provides you with complete training to one or two users (Superusers). NEX will provide you with integrated help documentation and online support via NEX’s portal to assist you in your use of the Software. Only Superusers are authorized to access assistance on the portal or any other method. NEX also offers optional “for fee” support and training services and professional services including modifications and customizations.
NEX shall maintain commercially reasonable administrative, physical and technical safeguards designed for the protection, confidentiality and integrity of your Content.
Each party agrees to use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (at all times exercising at least a commercially reasonable degree of care in the protection of such Confidential Information) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by you. Either party may disclose Confidential Information on a need to know basis to its affiliates, contractors and service providers who have executed binding written agreements requiring confidentiality and non-use obligations at least as restrictive as those in this Section.
For the purposes of this Agreement, “Confidential Information” means: (a) Content; (b) the terms of this Agreement and the Proposal, (c) the Software, and (d) any commercial, financial, marketing, business, technical or other data, security measures and procedures, know-how or other information disclosed by or on behalf of the disclosing party to the receiving party for purposes arising out of or in connection with this Agreement, that:
- in the case of information in tangible form, is marked “confidential” or “proprietary;”
- in the case of information disclosed orally, visually or any other intangible form, is designated confidential or proprietary at the time of disclosure, and if disclosed orally, is summarized in reasonable detail in a writing delivered to the receiving party within ten (10) days following
- under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary;
- will include any reproduction of such information in any form or medium, or any part of such information.
The following shall not be deemed Confidential Information:
- information that was in the public domain at the time of its disclosure, or which becomes public domain property through no fault of the receiving party;
- information that was rightfully in the receiving party’s possession without restriction prior to disclosure;
- information that was rightfully disclosed to the receiving party by a third party without restriction
- information that was independently developed by employees and/or contractors of the receiving party who did not have access to and without use of or reference to the disclosing party’s Confidential Information and
- aggregate data collected or generated by NEX or on behalf of NEX regarding NEX’s products and services (for purposes of providing or improving NEX products and services, benchmarking system performance, preparing statistics and system metrics, marketing and other purposes) that does not contain any personally identifiable or customer-specific information.
OWNERSHIP OF CONTENT
As between you and NEX, all title and intellectual property rights in and to your Content is owned exclusively by you. You acknowledge and agree that NEX, as part of its standard hosting service offering for so long as the License is in force, makes daily backup copies of your database located on NEX servers and stores and maintains such data for a period of ninety (90) days. Documents stored on NEX servers via the Software are backed-up daily and retained for a period one hundred and eighty (180) days. NEX will not backup nor be responsible of any of your Content located on your servers.
NEX INTELLECTUAL PROPERTY RIGHTS
All rights, title and interest in and to the Software (including without limitation all intellectual property rights therein and all modifications, extensions, customizations, scripts or other derivative works of the Software provided or developed by NEX) are owned exclusively by NEX or its licensors. Except as provided in this Agreement, the rights granted to you do not convey any rights in the Software, express or implied, or ownership in the Software or any intellectual property rights thereto. You grant NEX a royalty-free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the Software (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by you or any Users related to the operation or functionality of the Software. Any rights in the Software or NEX’s intellectual property not expressly granted herein by NEX are reserved by NEX.
DISCLAIMER OF WARRANTIES
- Your use of the software and content is entirely at your own risk. Except as described in this agreement, the software is provided "as is." To the maximum extent permitted by applicable law, NEX, its affiliates, and its and their third party providers, licensors, distributors or suppliers (collectively "suppliers") disclaim all warranties and conditions, express or implied, including any warranty or condition that the software is fit for a particular purpose, title, merchantability, data loss, non-interference with or non-infringement or misappropriation of any intellectual property rights, or the accuracy, reliability, quality of content in or linked to the software. NEX and its affiliates and suppliers do not warrant that the software is secure, free from bugs, viruses, interruption, errors, theft, or destruction. If the exclusions for implied warranties or conditions do not apply to you, any implied warranties or conditions are limited to 60 days from the date of purchase or delivery of the software, whichever is sooner. Some provinces do not allow the exclusion of implied warranties or conditions, so the above exclusions may not apply to you. This warranty gives you specific legal rights, and you may have other rights that vary from province to province.
- NEX, its affiliates and suppliers, disclaim any representations or warranties that your use of the software will satisfy or ensure compliance with any legal obligations or laws or regulations.
LIMITATION OF LIABILITY AND INDEMNITY
To the maximum extent permitted by applicable law, the entire liability of NEX, its affiliates and suppliers, for all claims relating to this agreement shall be limited to the amount you paid for the software subscription during the twelve (12) months prior to such claim. Subject to applicable law, NEX, its affiliates and suppliers, are not liable for any of the following: (a) indirect, special, incidental, exemplary, punitive, or consequential damages; (b) damages relating to failures of telecommunications, the internet, electronic communications, corruption, security, loss or theft of data, viruses, spyware, loss of business, revenue, profits or investment, or use of software or hardware that does not meet NEX systems requirements. The above limitations apply even if NEX and its affiliates and suppliers have been advised of the possibility of such damages. This agreement sets forth the entire liability of NEX, its affiliates and your exclusive remedy with respect to the software and its use.
NEX will not be liable for and shall be excused from any interruptions, delays, failures, errors or defects in transmission and from failure to deliver or perform or for delay in delivery or performance due to causes beyond its reasonable control, including, but not limited to, work stoppages, shortages, civil disturbances, terrorist actions, transportation problems, interruptions of power or communications, failure of suppliers or subcontractors, fire, natural disasters or acts of God
- You agree to indemnify and hold NEX and its Affiliates and Suppliers harmless from any and all claims, liability and expenses, including reasonable legal fees and disbursements on a full indemnity basis, arising out of your use of the Software or breach of this Agreement, including third party claims (collectively referred to as "Claims"). NEX reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as requested by NEX in the defense of any Claims.
CHANGES TO THIS AGREEMENT OR THE SOFTWARE
We have the right to change any of the terms of this Agreement upon reasonable notice to you. We may also change or discontinue the Software, in whole or in part, including but not limited to, any feature or aspect of the Software, Internet based services, pricing, technical support options, and other product-related policies. Your continued use of the Software after NEX notifies you of any changes indicates your agreement to the changes.
You may terminate this agreement at any time after the initial 12 months subscription upon 90 days’ written notice to NEX. NEX can terminate this Agreement upon 90 days’ written notice to you. Fees and applicable taxes for the Software are not eligible for any proration of unused subscriptions or refunds, even if access to the Software is cancelled or terminated. You are responsible for the payment of your subscription until the date of the termination. NEX may, in its sole discretion and without notice, restrict, deny, terminate this Agreement or suspend the Software, related or other Software, effective immediately, in whole or in part, if we determine that your payment is due but unpaid for more than thirty (30) days or your use of the Software violates the Agreement, is improper or substantially exceeds or differs from normal use by other users, raises suspicion of fraud, misuse, security concern, illegal activity or unauthorized access issues, to protect the integrity or availability of the Software or systems and comply with applicable NEX policy, if you no longer agree to receive electronic communications, or if your use of the Software conflicts with NEX’s interests or those of another user of the Software. After your access to the Software is terminated, you may no longer have access to any your Content in the Software. We suggest you retain your own copies of the Content that you may need as NEX is not responsible for providing you with access to your Content or the Software after any cancellation or termination of this Agreement. Upon NEX’s notice that your use of the Software has been terminated you must immediately stop using the Software and any outstanding payments will become due. Any termination of this Agreement shall not affect NEX’s rights to any payments due to it. NEX may terminate a free account at any time. Other requirements regarding termination or cancellation of your license to the Software may apply based on the specific ordering or activation terms for the Software.
Handling of Customer Data Upon Termination/Expiration
Following expiration or termination of the Agreement or a Customer account, if applicable, NEX may immediately deactivate the applicable Customer account(s) and shall be entitled to delete such Customer account(s) from NEX’s “live” site following a forty (40) day period. Customer further agrees that NEX shall not be liable to Customer nor to any third party for any termination of Customer access to the Service or deletion of Customer Data, provided that NEX is in compliance with the terms of this Section.
GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by The Province of Ontario and the federal laws of Canada without regard to its conflicts of laws provisions. To resolve any legal dispute arising from this Agreement, you and NEX agree to the exclusive jurisdiction of the Province of Ontario. You are using the Software on your own initiative and you are responsible for compliance with all applicable laws.
The parties hereby confirm that they have requested that this Agreement and all related documents be drafted in English.
Les parties ont exigé que le présent contrat et tous les documents connexes soient rédigés en anglais.
This Agreement is the entire agreement between you and NEX and replaces all prior understandings, communications and agreements, oral or written, regarding its subject matter. This Agreement may be modified only by a written amendment signed by the parties or as provided in this Agreement in Section 16 above. If any court of law, having the jurisdiction, rules that any part of this Agreement is invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. You cannot assign or transfer ownership of this Agreement to anyone without the prior written approval of NEX. However, NEX may assign or transfer it without your consent to (a) an Affiliate, (b) another company through a sale of assets by NEX or (c) a successor by merger. Any assignment in violation of this Section shall be void. If you want to request a transfer of this Agreement or if your company is acquired by or merged into another company, you must contact NEX.