End-User Services and License Agreement
NexusBackup is willing to license to you its proprietary software program in object code form (the "Software") only upon the condition that you accept all of the terms of this Agreement. In the event you do not agree with any of these terms or conditions, do not install the Software or access NexusBackup' services (the "Services"). Please read carefully the terms and conditions of the Agreement below before installing any Software or accessing services. By clicking the button on the NexusBackup Web site to download the software, or by installing, copying or otherwise using the Software or accessing the services, you agree to be bound by the terms and conditions of this Agreement. The Software contains some or all of the following: "Client Software" that allows a personal computer to access or utilize services provided by the Server Software.
UNDER NO CIRCUMSTANCES WILL NEXUSBACKUP BE LIABLE FOR DATA WHICH WAS NEVER SENT TO THE OPERATIONS CENTER BY THE SOFTWARE. YOU ARE ADVISED TO CHECK THE LOG FILE TO ENSURE THE DESIRED FILES HAVE BEEN TRANSMITTED.
Under the terms of this Agreement, you receive only a limited right to use the Software. Pursuant to this Agreement, NexusBackup grants to you the non-exclusive right to: (a) use the Client Software on any personal computer, as long as it is used in conjunction with NexusBackup' services ("Services") and after registering each such personal computer for said Services; (b) copy the Software into any computer for back-up purposes in support of your use of the Software and Services, after successfully registering for said Services; and (c) transfer the programs and license to another party as provided herein if the other party agrees in writing to accept the terms and conditions of this Agreement. Any other use is strictly prohibited. You may not use, copy, modify or transfer the Software or any copy, in whole or in part, except as expressly provided in this Agreement. You agree not to make any attempt to decompile, disassemble or reverse engineer the Software or otherwise discover or derive the source code or underlying processes, ideas, structure, organization or algorithms of the Software.
If you transfer the programs to another party, you must at the same time either transfer all copies whether in printed or computer readable form to the same party or destroy any copies not transferred, including all modifications and portions of the programs contained or merged into other programs. At the same time, you must transfer the ownership of the Services associated with the transferred Software. You must also comply with all applicable export laws. Any other attempt to transfer the Software or Services is void.
All intellectual property rights in the Software and user documentation are owned by NexusBackup and as applicable its suppliers and are protected by United States copyright laws, other applicable laws and international treaty provisions. NexusBackup and its suppliers retain all rights not expressly granted pursuant to this agreement.
The license is effective for the period of time for which you have prepaid NexusBackup, unless sooner rejected or terminated. You may reject or terminate the license at any time by destroying the Software together with all copies in any form and by canceling the associated Services, with NexusBackup. The license will terminate if you fail to pay the fee set forth by NexusBackup for the Services associated with the Software, within 30 days of the due date. It will also terminate upon conditions set forth elsewhere in this Agreement or if you fail to comply with any term or condition of this Agreement. You agree upon such termination to destroy the programs together with all copies, in any form. ALL OF YOUR DATA WILL BE DELETED FROM NEXUSBACKUP'S SERVERS 30 DAYS AFTER THE TERMINATION OF THIS AGREEMENT.
LIMITED WARRANTY AND REMEDIES
NexusBackup warrants that the Software and Services will perform substantially in accordance with the accompanying help file for 90 days after the shipment of the Software. This Limited Warranty is void if failure of the Software or Services has resulted from an accident, abuse, misapplication, or modification of the Software or Services.
NEXUSBACKUP DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. You assume responsibility for the selection of the Software and Services to achieve your intended results; and for the installation, use and results obtained.
EXCEPT AS EXPRESSLY SET FORTH ABOVE, NEXUSBACKUP SHALL HAVE NO LIABILITY FOR THE SOFTWARE OR ANY SERVICES PROVIDED, INCLUDING ANY LIABILITY FOR NEGLIGENCE. NEXUSBACKUP MAKES AND YOU RECEIVE NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, ARE MADE WITH RESPECT TO THE SOFTWARE OR SERVICES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND NEXUSBACKUP EXPRESSLY DISCLAIMS ALL WARRANTIES NOT STATED HEREIN.
NEXUSBACKUP ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY SHALL BE LIMITED TO THE RETURN OF THE FEES PAID BY YOU FOR THE SOFTWARE AND SERVICES SHOULD THE SOFTWARE OR SERVICES NOT MEET THIS LIMITED WARRANTY. IN NO EVENT WILL NEXUSBACKUP BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DAMAGES, INCLUDING ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, EXPENSES, LOST PROFITS, LOST SAVINGS, OR OTHER DAMAGES ARISING OUT OF USE OF OR INABILITY TO USE SUCH SOFTWARE AND SERVICES, EVEN IF OFFSITE SOLUTIONS INTERNATIONAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. THIS LIMITATION OF LIABILITY IS REFLECTED IN THE PRICING OF THE SOFTWARE.
During the term of this Agreement you will not use the Services for information, data or material that (a) infringes on the intellectual property rights of any third party or any rights of publicity or privacy; (b) violates any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing export control, unfair competition, anti-discrimination or false advertising); (c) is defamatory, trade libelous, unlawfully threatening, or unlawfully harassing; (d) is obscene, pornographic or indecent in violation of applicable law; (e) contains any virus or other programming routine intended to damage any system or data; or (f) is provided in breach of any prior contractual commitment to any third party.
The user agrees to allow NexusBackup to automatically charge the credit card they have on file for the service on an annual or monthly basis, whichever the user signed up for, until the user cancels the service.
NO CRITICAL APPLICATIONS
You will not use the Software or Services in any application that may involve risks of death, personal injury, severe property damage or environmental damage, or life support applications, devices or systems.
This Agreement will be governed by the laws of the Province of Ontario without regard to the conflicts of laws provisions thereof.
Except as modified by a written agreement signed by NexusBackup and you or your employer, this Agreement is the complete and exclusive statement of the Agreement between us and supersedes any prior agreements (including your purchase order) between us relating to the subject matter hereof. No oral statements, promises or agreements will alter the terms of this Agreement.
If any provision of this Agreement is held unenforceable, the unenforceable provision will be construed in accordance with applicable law as nearly as possible to reflect our mutual original intent, and all other provisions will remain in full force and effect.
BY DOWNLOADING THE SOFTWARE, I ACKNOWLEDGE THAT I HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.