ONYXSYNC END USER LICENSE AGREEMENT

This is a legal agreement between you and OnyxSync, LLC, a company incorporated in Decatur, Georgia and having it’s registered office at 122 Williams Street Decatur, GA 30030 and it’s subsidiary (“Onyx Consulting”). OnyxSync, LLC is the owner of accompanying OnyxSync Software and this Agreement lays down the terms and conditions upon which OnyxSync, LLC offers to license the OnyxSync Software together with accompanying items including but not limited to, the executable programs, drivers, libraries and data files associated with such programs and all related documentation (collectively, “the OnyxSync Software”).

1. Scope of Agreement

   If you are installing the OnyxSync Software merely for the purpose of evaluating the performance of the same, the OnyxSync Software will consist of an evaluation version of the OnyxSync Software. Else, the OnyxSync Software comprises of a server component (“OnyxSync Server Software”) which is to be installed on a backup server and a client component (“OnyxSync Client Agent Software”), which is to be installed on each computer, server or such like device, which is to be backed up. If you are installing the evaluation version of the OnyxSync Software on one of your computers or such like devices to evaluate the performance of the OnyxSync Software, this Agreement applies to the installation and / or use of the evaluation version of the OnyxSync Software on that particular computer or device. If you are installing the OnyxSync Server Software on one of your servers, this Agreement applies to the installation and / or use of the OnyxSync Server Software on that particular server. If you are installing the OnyxSync Client Agent Software on one of your computers or such like device which is to be backed-up, this Agreement applies to the installation and / or use of the OnyxSync Client Agent Software on that particular computer / device.

2. Grant of License

   If you are installing and / or using the evaluation version of the OnyxSync Software, subject to the terms and conditions of this Agreement, the Licensor grants to you a non-exclusive, non-transferable and limited right to use the evaluation version of the OnyxSync Software in binary object code form, for trial and evaluation of the performance of the OnyxSync Software. This license is valid for a period of thirty (30) days from the installation of the evaluation version of the OnyxSync Software, (“Evaluation Period”). If you want to use the evaluation version beyond the Evaluation Period or if you want to use OnyxSync Software to backup your data, you have to purchase licenses for the same in accordance with the terms of this Agreement. If you do not purchase licenses to use the OnyxSync Software (any version) beyond the Evaluation Period, you should stop using the OnyxSync Software and / or its functionality and delete all the copies of the OnyxSync including the evaluation version installed in your computer/s forthwith on the expiry of the Evaluation Period. Subsequent downloads of the evaluation version of the OnyxSync Software by or for you does not extend, renew or otherwise restart the term of the license for the evaluation version granted herein. If you are installing the OnyxSync Server Software or the OnyxSync Client Agent Software, subject to the terms of this Agreement, OnyxSync, LLC hereby grants you a limited, non-exclusive, non-transferable license to download, install and use the OnyxSync Server Software / the OnyxSync Client Agent Software, as the case may be, for the sole purpose of using the data back-up applications and any other applications explicitly provided by OnyxSync, LLC from time to time solely for your internal business purposes.

3. Restrictions on Use

   You may only install and use one copy of the OnyxSync Software on one server or computer system, as the case may be. You may not use the OnyxSync Software beyond the period for which you have obtained a license. You may install or use the OnyxSync Software only on such number of machines for which you have obtained licenses. You shall not or permit any other to transmit all or any portion of the OnyxSync Software through any network or communication line. The rights under this Agreement are personal to you and the functionality of the OnyxSync Software may be used only by your employees, agents or others specifically authorized by you to back-up your data and you may not sub-license or transfer in any manner whatsoever any of your rights under this Agreement or allow any third party’s data to be backed-up using the OnyxSync Software. You may not modify any portion of the OnyxSync Software or merge or integrate any portion of the OnyxSync Software into/with any other program. You may not translate, decompile, disassemble or reverse engineer the OnyxSync Software or do anything to obtain underlying information that is not visible to the user in connection with normal use of the OnyxSync Software. You may not display the OnyxSync Software’s object code on any computer screen or make any hardcopy memory dump of the OnyxSync Software’s object code. You may not remove, alter or conceal any copyright or other intellectual property notices from any copy of the OnyxSync Software or any of written materials, if any, accompanying it.

4. Ownership of the OnyxSync Software

   The OnyxSync Software is not sold to you. You are merely granted a license to use the Software in accordance with the terms of this Agreement. OnyxSync, LLC reserves all rights (including all title and intellectual property rights) not specifically granted to you by this Agreement.

5. Excessive Use Policy

   In order to protect the experience of all users of the Service, OnyxSync prohibits excessive use of the Service, which means usage over a given period far exceeds the average level of usage by users of the Service generally. If OnyxSync determines that you have engaged in any excessive use, OnyxSync may offer you an alternative pricing plan or another OnyxSync product that will permit you to continue to use OnyxSync’s services without interruption. If you fail to respond to any such offer, OnyxSync may take remedial action, which may include, but is not limited to, establishing limits on available storage and network capacity and suspension or termination of your account. In its sole discretion, OnyxSync may or may not notify you in advance of any such action.

6. Warranty & Disclaimer

   ONYXSYNC WARRANTS THAT IT HOLDS ALL RIGHT, TITLE AND INTEREST IN AND TO THE ONYXSYNC SOFTWARE OR THAT IT IS OTHERWISE ENTITLED TO PROVIDE THE ONYXSYNC SOFTWARE TO YOU ON THE TERMS CONTAINED HEREIN. ONYXSYNC LLC WARRANTS THAT THE ONYXSYNC SOFTWARE, WHEN IT IS DELIVERED TO YOU, IS FREE OF VIRUSES, TROJAN HORSES, WORMS, AND OTHER SIMILAR DESTRUCTIVE OR DISABLING CODE. THE ABOVE IS A LIMITED WARRANTY AND IS THE ONLY WARRANTY MADE BY ONYXSYNC LLC. THE ONYXSYNC SOFTWARE IS PROVIDED ON AN “AS IS” BASIS AND YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK. ONYXSYNC EXPRESSLY DISCLAIMS AND YOU HEREBY EXPRESSLY WAIVE ALL OTHER CONDITIONS, WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; THAT THE OnyxSync SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE ONYXSYNC SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ERRORS IN THE OnyxSync SOFTWARE, IF ANY, WILL BE CORRECTED. ONYXSYNC ‘S ABOVE LIMITED WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF ONYXSYNC FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE INSTALLATION, USE OR PERFORMANCE OF THE ONYXSYNC SOFTWARE. THE ONYXSYNC SOFTWARE’S FAILURE TO PERFORM IN ACCORDANCE WITH THE SPECIFICATIONS SHALL NOT BE CONSIDERED A FAILURE OF THE ESSENTIAL PURPOSE OF THE WARRANTIES CONTAINED HEREIN.

7. Limitation of Liability

   NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL ONYXSYNC LLC BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS OR SAVINGS, BUSINESS INTERRUPTION OR LOSS OF INFORMATION OR DATA) WHETHER IN CONTRACT, NEGLIGENCE, TORT OR OTHERWISE ARISING OUT OF YOUR USE OR INABILITY TO USE THE OnyxSync SOFTWARE OR THE BREACH OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT, ONYXSYNC’S AGGREGATE LIABILITY OR DAMAGES TO YOU OR TO ANY OTHER PERSON SHALL NOT EXCEED THE AMOUNT PAID BY YOU TO USE THE ONYXSYNC SOFTWARE REGARDLESS OF THE FORM OF THE CLAIMS.

8. Indemnity

   If you use or distribute the OnyxSync Software in violation of this Agreement, you hereby agree to indemnify, hold harmless and defend OnyxSync, LLC from and against any and all claims or lawsuits, including attorney’s fees and costs that arise, result from or are connected with the said use or distribution of the OnyxSync Software in violation of this Agreement.

9. Right to Collect Information

   The OnyxSync Software contains programs that collect data about your use of the Software. You agree that OnyxSync, LLC may collect such data about your use of the OnyxSync Software and that the data collected through such programs may be used by OnyxSync, LLC to monitor your compliance with the terms of this Agreement, to provide you with support services and/or to improve the OnyxSync Software. You agree that you will not prevent or in any manner restrict the right of OnyxSync, LLC to collect such data about your use of the OnyxSync Software.

10. Support Services

    Notwithstanding anything contained anywhere in this Agreement, OnyxSync, LLC shall not be responsible to you for the maintenance or for the provision of support services for the OnyxSync Software under this Agreement.

11. Third Party Software

    Portions of the OnyxSync Software include software with open source licenses from third parties that govern the use of those portions. Nothing contained herein limits the rights and obligations you may have under such open source licenses. However, the disclaimer of warranty and limitation of liability provisions in this Agreement will apply to the OnyxSync Software as a whole. For details of the open source software included in the Software and the terms of the license for the same.

12. Governing Law & Jurisdiction

    This Agreement is governed by the laws of the United States of America. You agree that any dispute between the parties arising out of or in connection with this Agreement (including any question regarding its existence, validity or termination) shall be submitted exclusively to the competent courts located at Decatur, Georgia to the exclusion of any other court that may have jurisdiction in the matter.

13. General

    This Agreement is binding on you as well as your employees, contractors, agents and any person who uses the computer / device on which the OnyxSync Software is installed. This Agreement is also binding on your successors and assignees. This Agreement is the entire agreement between us and supersedes all previous agreements, arrangements, understandings or representations (including advertisement) relating to the subject matter hereof. If any provision of this Agreement is deemed invalid or unenforceable that particular provision will be deemed modified to the extent necessary to make the provision valid and enforceable and the remaining provisions will remain in full force and effect. Any failure or delay by a party to exercise any right or remedy under this Agreement shall not operate as a waiver of that right or remedy. © 2010, OnyxSync, LLC. Technical support – support@onyxsync.com