COMPUTER PROGRAM END-USER LICENSE AGREEMENT BETWEEN NEXUS MANAGEMENT, INC. ("LICENSOR") AND LICENSEE

Also, see Website Conditions of Use.

Backup Solutions PRO(TM) (THE "SOFTWARE") IS THE COPYRIGHTED WORK AND PROPERTY OF NEXUS MANAGEMENT, INC. ("LICENSOR").  USE OF THE SOFTWARE IS GOVERNED BY THE TERMS AND CONDITIONS OF THIS COMPUTER PROGRAM END-USER LICENSE AGREEMENT ("AGREEMENT").  PLEASE REVIEW THIS AGREEMENT CAREFULLY.  YOUR "CLICK" ON THE "APPROVED AND ACCEPTED" ICON AT THE END OF THIS AGREEMENT AND YOUR USE OF THIS SOFTWARE SIGNIFIES THAT YOU HAVE READ THIS AGREEMENT AND HAVE AFFIRMATIVELY AGREED TO ACCEPT ITS TERMS AND CONDITIONS.  IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU CANNOT PURCHASE THIS LICENSE AND/OR USE THIS SOFTWARE. 

1.License.  In this Agreement, you (or the entity on whose behalf you intend to download the Software) are referred to as "Licensee" or "You."  Intending to be legally bound, Licensor grants to You, and You accept, a limited, nonexclusive, and nontransferable one (1)-year license (commencing as of the date of delivery of the Software, the “License Effective Date”) for the exclusive purpose (the “Purpose”) of using the Software in order to obtain computer data storage and retrieval services (the “Storage/Retrieval Services”) from either the Licensor or from a third party provider that has been approved by Licensor (the party providing such Storage/Retrieval Services, the “Provider”), subject to the terms and conditions of this Agreement and in return for Your payment to Licensor of the license fee of $169.95 (the “License Fee”).   Both the Storage/Retrieval Services and the Remote Consultation Services (as described below) are being provided to you at no additional cost, in connection with your use of the Software pursuant to this Agreement and your payment of the License Fee. In connection with the Purpose, You are permitted to copy the Software on the hard drive or floppy disk storage system within your own personal computer, provided that You operate the Software on a Windows XP or Windows Vista operating system.  All copies of the Software that you use pursuant to this Agreement must include this Agreement as well as the copyright notice and all other proprietary and intellectual property designations contained in or on the Software.  Licensor reserves any right not expressly granted to You.  You assume sole responsibility for the installation, use and results obtained from use of the Software. 

2. Proprietary Protection and Restrictions; Protection and Security.  The Software is protected by copyright pursuant to U.S. Copyright laws, international conventions, and other copyright laws, and contains trade secrets.  This Agreement does not provide You with title or ownership of the Software, but rather a right of limited use, and you may NOT sublicense, assign, or distribute copies of the Software to third parties. Licensor retains and shall retain sole and exclusive ownership of all right, title, and interest in and to the Software and all modifications, enhancements, and derivative works thereof (including ownership of all trade secrets, patents, trademarks, and copyrights pertaining thereto), subject only to the rights and privileges expressly granted to You herein by Licensor.  Licensor holds title to each copy of the Software. You may not decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human readable form. You agree to use Your best efforts and to take all reasonable steps to safeguard the Software to ensure that no unauthorized person shall have access thereto and that no unauthorized copy, publication, disclosure or distribution in whole or in part, in any form, shall be made with respect to the Software.  You acknowledge that the Software contains valuable confidential information and trade secrets of Licensor, and that unauthorized use and/or copying are harmful to Licensor.

3. Object Code.  The Software shall be delivered and downloaded in object code only, and You shall have no right to use or possess the source code for the Software.  You shall not reverse compile or otherwise reverse engineer the Software.

4.No Modifications.  You shall not in any way (i) modify, adapt, or translate the Software; (ii) delete any portion of the Software; (iii) change any name or designation of any component of or file in the Software; (iv) create derivative works employing all or any part of the Software; (v) sell, distribute, or transmit the Software or any part thereof; or (vi) except as otherwise provided in this Agreement, copy the Software or any part thereof.

5. Term; License Fee; Renewal License Fees; Remote Consultation Services.  Subject to the automatic renewal provisions set forth below, this Agreement is effective for an initial three (3)-year term (the “Initial Term”), unless terminated as set forth below in this Section 5.  This Agreement may be terminated by Licensor without any requirement of prior notice to You, written or otherwise, in the event that You fail to comply with any of the Agreement’s provisions or otherwise breach this Agreement.  You may terminate this Agreement at any time upon prior written notice to Licensor; provided, however, that if such notification of termination is not provided to Licensor at least thirty (30) days prior to the end each one-year period of the Initial Term or to the end of a Renewal Term (as defined below), You will be charged for, and obligated to pay, the applicable one-year License Fee Installment Payment (as described below) or the Renewal License Fee (as described below). At the end of the Initial Term, this Agreement will automatically renew for successive one (1)-year renewal terms (each such renewal term, a “Renewal Term”) at the renewal fee of $169.95 per renewal term (the “Renewal License Fee”), unless you have provided Licensor with written notice of your termination of the Agreement at least thirty (30) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable.  All provisions of this Agreement relating to disclaimers of warranties, limitation of liabilities, remedies or damages, License Fee or Renewal Fee payment obligations, and Licensor's proprietary rights shall survive termination of this Agreement.  Upon termination of this Agreement, all rights granted to You will terminate and revert to Licensor.  Promptly upon termination of this Agreement, You shall delete all copies of the Software in your possession, custody, or control.  You agree to pay the License Fee in connection with and as a condition to Your ongoing use of the Software.  The License Fee will be charged to You in three equal annual installments (each installment, a “License Fee Installment Payment”), commencing as of the License Effective Date.  Notwithstanding any other provisions of this Agreement, in the event of any termination of this Agreement, You understand and agree that You will not be entitled to any refund or return of License Fee or Renewal Fee payments that have been already paid to Licensor.  In connection with the Purpose and during the term of this Agreement, the Provider will provide up to 30 minutes of remote consultation services to You regarding your use of the Software, as well as regarding troubleshooting and other resolution of any operational issues You may encounter with the use of Your IT equipment, on which You have downloaded the Software (“Remote Consultation Services”).    Your right to receive the Remote Consultation Services, as well as to receive the Storage/Retrieval Services will end immediately upon termination of this Agreement.

6. Limited Warranty; Limitation of Licensor Liability.  Licensor warrants that, during the thirty (30)-day period commencing as of the License Effective Date (the “Warranty Period”), the Software shall operate substantially in accordance with the published functional specifications current at the time of shipment. If, during the warranty period, a defect appears, You shall return the Software to Licensor and Licensor's only obligation shall be, at Licensor's election, to replace the defective Software or refund the purchase price. You agree that the foregoing constitutes the Your sole and exclusive remedy for breach by Licensor under any warranties made under this Agreement. This warranty does not cover: (i) any Software that has been altered or changed in any way by anyone other than Licensor, including, without limitation, the Provider; and/or (ii) Software that has been infected with a computer virus.  Licensor is not responsible for problems associated with or caused by incompatible operating systems or equipment, or for problems in the interaction of the Software with software not furnished by Licensor.
No oral or written information or advice given by Licensor or its dealers, distributors, employees or agents shall in any way extend, modify or add to the foregoing warranty.

THE WARRANTY AND REMEDY PROVIDED ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. YOU ASSUME ALL RISK ASSOCIATED WITH USING THE SOFTWARE, AND YOU ASSUME ANY RISK AS TO THE SUITABILITY, QUALITY, AND PERFORMANCE OF THE SOFTWARE. THE COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY SERVICES THAT MAY BE PROVIDED TO YOU HEREUNDER IN CONNECTION WITH THE PURPOSE, INCLUDING WITHOUT LIMITATION, THE STORAGE/RETRIEVAL SERVICES OR THE REMOTE CONSULTATION SERVICES.  YOU MAY HAVE OTHER RIGHTS IN SOME STATES.  IN NO EVENT WILL LICENSOR, OR ITS DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES, BE LIABLE TO YOU:  (I) FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR EXEMPLARY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR INFORMATION, OR ANY OTHER PECUNIARY OR OTHER LOSS) ARISING OUT OF OR RELATING TO (A) THE USE OF OR INABILITY TO USE THE SOFTWARE OR ACCOMPANYING WRITTEN MATERIALS, (B) THE STORAGE/RETRIEVAL SERVICES, THE REMOTE CONSULTATION SERVICES OR ANY OTHER SERVICES THAT MAY BE PROVIDED TO YOU HEREUNDER IN CONNECTION WITH THE PURPOSE, OR (C) THE ACTS OR OMISSIONS OF ANY THIRD PARTIES, INCLUDING ANY THIRD PARTY PROVIDER, IN CONNECTION WITH THE PURPOSE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (II) FOR ANY CLAIM BY ANY THIRD PARTY.
LICENSOR'S LIABILITY TO YOU (IF ANY) FOR ACTUAL DIRECT DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO, AND IN NO EVENT SHALL EXCEED, THE AMOUNT OF THE LICENSE FEE ORIGINALLY PAID TO LICENSOR FOR THE LICENSE OF THE SOFTWARE.

7. Enhancements.  From time to time Licensor may, in its sole discretion, advise You of updates, upgrades, enhancements or improvements to the Software and/or new releases of the Software (collectively, "Enhancements"), and may license You to use such Enhancements upon payment of prices as may be established by Licensor from time to time. All such Enhancements to the Software provided to the You shall also be governed by the terms of this Agreement. IN ORDER FOR YOU TO BE ASSURED THAT YOU WILL BE ADVISED OF AND LICENSED TO USE ANY ENHANCEMENTS TO THE SOFTWARE AND FOR PURPOSES OF LICENSOR’S PROVIDING YOU WITH OTHER NOTIFICATIONS AND/OR NOTICES HEREUNDER, YOU MUST COMPLETE, SIGN AND RETURN TO LICENSOR THE REGISTRATION CARD INCLUDED AS PART OF THE WRITTEN MATERIALS ACCOMPANYING THE SOFTWARE.

8. Governing Law; Venue.  This Agreement shall be governed by and construed in accordance with the laws of the State of Maine, without regard to conflict of laws principles, and shall inure to the benefit of Licensor and Licensee and their respective successors, assigns and legal representatives. The parties agree that the exclusive venue for any disputes arising between Licensor and Licensee relating to this Agreement shall be the state and/or federal courts in the State of Maine. 

9. Severability.  In the event that any of the terms of this Agreement are declared to be invalid or void by any court or tribunal of competent jurisdiction to any extent under applicable law, such term or terms shall be null and void and be deemed severed from this Agreement, and all the remaining terms of this Agreement shall remain in full force and effect.  

10. Notices by Licensee.  Any required notices or other communications by Licensee to Licensor pursuant to this Agreement must be made in writing and shall be mailed first class, postage prepaid, to the following address: NEXUS MANAGEMENT, INC., 4 Industrial Pkwy, Suite 101, Brunswick, ME 04011 (attn: Tara Carpenter). 

11. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and all prior proposals, agreements, representations, statements and undertakings are hereby expressly cancelled and superseded. This Agreement may not be changed or amended except by a written instrument executed by a duly authorized officer of Licensor. The subject headings of the Paragraphs of this Agreement are included for purposes of convenience and reference only and shall not be deemed to explain, modify, limit, amplify or aid in the meaning, construction or interpretation of any of the provisions of this Agreement.

12. Restricted Rights.  If the United States of America, its agencies and/or instrumentalities thereof (the "U.S. Government") is the Licensee of this Agreement, the Software is provided with Restricted Rights.  Use, duplication, or disclosure by U.S. Government is subject to the restrictions set forth in subparagraph (c)(2)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Software-Restricted Rights clause at 48 CFR 52.227-19, as applicable. 

13. Export Law Assurances.   You agree that the Software is to be used only in the United States, and that the Software will not be transferred or exported, directly or indirectly, outside the United States.