Terms of Use

Last Modified: July, 3 2024

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Acceptance of the Terms of Use

These terms of use are entered into by and between you and Onyxia Cyber, Inc. ("Company," "we," or "us"). The following terms and conditions of use ("Terms of Use") govern your access to https://www.onyxia.io/ (the "Website") and the Company’s SaaS platform (the “Platform”), and your use of our mobile application (“app,” and collectively, our “Services”), including any content, functionality and services offered on or through our Website, our Platform or app, whether as a guest or a registered user.

Please read the Terms of Use carefully before you start to our Services. By using our Services or by clicking to accept or agree to the Terms of Use when this option is made available to you, you accept and agree to be bound and abide by these Terms of Use and our Privacy Policy, found at https://www.onyxia.io/privacy-policy, incorporated herein by reference. If you do not want to agree to these Terms of Use or the Privacy Policy, you must not access or use any of our Services. 

This Website, our Platform and app are offered and available to users who are 18 years of age or older. By using any of our Services, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use any of our Services.

Changes to the Terms of Use

We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Website, our Platform or app thereafter. However, any changes to the dispute resolution provisions set forth in Governing Law and Jurisdiction will not apply to any disputes for which the parties have actual notice on or prior to the date the change is posted on the Website.

Your continued use of our Services following the posting of revised Terms of Use means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.

Accessing the Website, our Platform or App and Account Security

We reserve the right to withdraw or amend this Website, our Platform or app and any service or material we provide, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website, our Platform or app is unavailable at any time or for any period. From time to time, we may restrict access to some or all parts of our Services to users.

You are responsible for both:

  • Making all arrangements necessary for you to have access to our Services.

  • Ensuring that all persons who access our Services through your internet connection are aware of these Terms of Use and comply with them.

To access any of our Services, or any of the resources they offer, you may be asked to provide certain registration details or other information.  It is a condition of your use of our Services that all the information you provide is correct, current, and complete.  You agree that all information you provide to register to use any of our Services is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity.  You also acknowledge that your account is personal to you and agree not to provide any other person with access to any of our Services, or portions of it using your user name, password, or other security information.  You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security.  You also agree to ensure that you exit from your account at the end of each session.  You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use.

Intellectual Property Rights

Our Services and their entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by the Company, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.

These Terms of Use permit you to use our Services for your personal or limited commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our Website, Platform or app, except as follows:

  • Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.

  • You may store files that are automatically cached by your Web browser for display enhancement purposes.

  • You may print or download one or more copies of a reasonable number of pages of the Website or our Platform for your personal or limited commercial use and not for further reproduction, publication or distribution.

  • If we provide desktop, mobile or other applications for download, you may download a single copy to your computer or mobile device for your personal or limited commercial use, provided you agree to be bound by our end user license agreement for such applications.

  • If we provide social media features on https://twitter.com/OnyxiaCyber or on

    https://www.linkedin.com/company/onyxia-cyber/

    with certain content, you may take such actions as are enabled by such features.

You must not:

  • Modify copies of any materials from this site.

  • Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from this site.

If you wish to make any use of material on the Website, our Platform or app, other than that set out in this section, please address your request to: [email protected].

If you print, copy, modify, download or otherwise use or provide any other person with access to any part of our Services in breach of the Terms of Use, your right to use our Services will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to the Website, our Platform or app or any content on the Website, our Platform or app is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of our Services not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark and other laws.

Trademarks

The Company name, the Company logo and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs and slogans on this Website, our Platform and app are the trademarks of their respective owners.

Prohibited Uses

You may use our Services only for lawful purposes and in accordance with these Terms of Use. You agree not to use our Services:

  • In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).

  • For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.

  • To transmit, or procure the sending of, any advertising or promotional material, including any "junk mail," "chain letter," "spam," or any other similar solicitation.

  • To impersonate or attempt to impersonate the Company, a Company employee, another user or any other person or entity (including, without limitation, by using e-mail addresses associated with any of the foregoing).

  • To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of our Services, or which, as determined by us, may harm the Company or users of our Services, or expose them to liability.

Additionally, you agree not to:

  • Use our Services in any manner that could disable, overburden, damage, or impair the site or interfere with any other party's use of our Services, including their ability to engage in real time activities through our Services.

  • Use any robot, spider or other automatic device, process or means to access our Services for any purpose, including monitoring or copying any of the material on the Website, our Platform or app.

  • Use any manual process to monitor or copy any of the material on the Website, our Platform or app, or for any other purpose not expressly authorized in these Terms of Use, without our prior written consent.

  • Use any device, software or routine that interferes with the proper working of the Website, our Platform or app.

  • Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.

  • Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Website, our Platform or app, the server on which the Website, our Platform or app is stored, or any server, computer or database connected to the Website, our Platform or app.

  • Attack the Website, our Platform or app via a denial-of-service attack or a distributed denial-of-service attack.

  • Otherwise attempt to interfere with the proper working of the Website, our Platform or app.

Monitoring and Enforcement; Termination

We have the right to:

  • Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website, our Platform or app.

  • Terminate or suspend your access to all or part of our Services for any or no reason, including without limitation, any violation of these Terms of Use.

YOU WAIVE AND HOLD HARMLESS THE COMPANY FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE COMPANY DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER THE COMPANY OR LAW ENFORCEMENT AUTHORITIES.

Reliance on Information Posted

The information presented on or through the Website is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.

Changes to the Website

We may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.

Information About You and Your Visits to the Website or Use of Our Platform or App

All information we collect on this Website, our Platform or app is subject to our Privacy Policy. By using the Website, our Platform or app, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

When you visit or log in to our website, cookies and similar technologies may be used by our online data partners or vendors to associate these activities with other personal information they or others have about you, including by association with your email or home address. We (or service providers on our behalf) may then send communications and marketing to these email or home addresses. You may opt out of receiving this advertising by visiting https://www.onyxia.io/support

Links from the Website

If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

Disclaimer of Warranties

YOUR USE OF THE WEBSITE, OUR PLATFORM OR APP, THE CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE, OUR PLATFORM OR APP, IS AT YOUR OWN RISK. THE WEBSITE, OUR PLATFORM OR APP, THE CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE, OUR PLATFORM OR APP ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE WEBSITE, OUR PLATFORM OR APP. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, OUR PLATFORM OR APP, THE CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE, OUR PLATFORM OR APP, WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE WEBSITE, OUR PLATFORM OR APP, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE, OUR PLATFORM OR APP WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. 

THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Limitation on Liability

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, OUR PLATFORM OR APP, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Indemnification

You agree to defend, indemnify and hold harmless the Company, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to your violation of these Terms of Use or your use of the Services, or any use of the content, services and products arising out of the Services, other than as expressly authorized in these Terms of Use.

Governing Law and Jurisdiction

All matters relating to the Website, our Platform or app and these Terms of Use, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction).

Any legal suit, action or proceeding arising out of, or related to, these Terms of Use or our Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York although we retain the right to bring any suit, action or proceeding against you for breach of these Terms of Use in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

Arbitration

At Company's sole discretion, it may require you to submit any disputes arising from these Terms of Use or use of our Services, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying New York law.

Limitation on Time to File Claims

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE WEBSITE, OUR PLATFORM OR APP MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

Waiver and Severability

No waiver by the Company of any term or condition set forth in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

Entire Agreement

The Terms of Use and our Privacy Policy constitute the sole and entire agreement between you and Onyxia Cyber, Inc. with respect to the Services and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Services.

Your Comments and Concerns

This website is operated by Onyxia Cyber, Inc., 7 World Trade Center, New York, New York 10007.

All feedback, comments, requests for technical support and other communications relating to the Website, our Platform or app should be directed to: [email protected].

Platform General Terms and Conditions


1. Definitions

1.1 “Documentation” means Onyxia-provided Customer documentation, in all forms, relating to the Onyxia Software (e.g., Customer manuals, on-line help files etc.).

1.2 “Onyxia” means Onyxia Cyber Inc., a Delaware corporation.

1.3 “Onyxia Software” means the Onyxia software product identified in the Proposal in executable object code form.

1.4 “Scope Limitations” means a limitation on the scope of the licenses granted to Customer under these Terms and Conditions.

1.5 “Terms and Conditions” means these General Terms and Conditions of Onyxia.

1.6 “Unauthorized  Use” means any use, reproduction, de-compiling, disassembling, reverse-engineering or otherwise attempting to discover the source code, structure, sequence or organization of the Onyxia Software, distribution, disclosure, possession, examination, or other activity involving any part of the Onyxia Software or Documentation  that  is not expressly  authorized under these Terms and Conditions.

1.7 “Technical Support Services” means technical support services relating to the Onyxia Software described in Exhibit B.

2. Use 

2.1 Use of the Onyxia Software.  Subject  to  the  terms  and conditions   of  these Terms and Conditions,  Onyxia   grants to Customer a limited, non-exclusive, non-transferable (except as permitted in Section 11.2)  license,  without  right to sublicense,  to install, and use licensed copies of the Onyxia Software solely in connection with Customer’s internal business operations during  the term  of  these Terms and Conditions. Customer’s right to use the Onyxia Software is subject to each Scope Limitation and contingent upon Customer’s compliance with each Scope Limitation. 

2.2 Use of the Documentation.  Subject   to the terms and conditions of these Terms and Conditions, Onyxia   grants to Customer a limited, non-exclusive, non-transferable (except as permitted in Section 11.2) license, without right of sublicense, during the term of these Terms and Conditions to internally use the Documentation solely in connection with its internal use of the Onyxia Software in accordance with the terms of these Terms and Conditions.

2.3 License Key.  The Onyxia Software may contain a feature that is used to automatically disable the Onyxia Software to ensure that Customer does not use the Onyxia Software longer than the term of, or beyond the scope of, Customer’s license to use the Onyxia Software. Customer acknowledges that upon the expiration of Customer’s license to the Onyxia Software, and if Onyxia has not issued Customer a new license key, the Onyxia Software may cease to function in some, or all respects, and Customer may lose access to data made with or stored using the Onyxia Software. Customer   acknowledges that the disabling of the Onyxia Software is a key feature of the license rights and responsibilities conveyed under these Terms and Conditions.


2.4 Reservation of Rights.  The Onyxia Software and Documentation are licensed, not sold, by Onyxia to Customer, and nothing in these Terms and Conditions will be interpreted or construed as a sale or purchase of the Onyxia Software or Documentation.  Customer will not have any rights in or to the Onyxia Software or Documentation except as expressly granted in these Terms and Conditions. Onyxia reserves to itself all rights to the Onyxia Software and Documentation not expressly granted to Customer in accordance with these Terms and Conditions. Onyxia retains all intellectual property rights in and to the Onyxia Software and Documentation. Customer acknowledges that the Onyxia Software and Documentation, all copies of the Onyxia Software and Documentation, and any know-how and trade secrets related to the Onyxia Software or Documentation are the sole and exclusive property of Onyxia and contain Onyxia’s confidential and proprietary materials. Customer hereby irrevocably assigns Onyxia all right, title, and interest in and to all authorized and unauthorized derivative works of the Onyxia Software or Documentation created by Customer.

3. Customer Obligations

3.1 General Restrictions.   Except as otherwise explicitly provided in these Terms and Conditions, Customer will not, and will not permit or authorize third parties to: (i) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative  works of the Onyxia Software; (ii) rent, lease, or sublicense  the Onyxia Software or Documentation;  (iii) use the Onyxia Software on a service bureau or application service provider basis; (iv) provide, divulge, disclose, make available to, or permit the use of the Onyxia Software by any third party; (v) circumvent or disable any technological or security features or measures in the Onyxia Software, including, without limitation, to attempt to discern the source code for the Onyxia Software.

3.2 Proprietary  Rights  Notices. Customer will neither alter nor remove any copyright notice or other proprietary rights notices that may appear on the Onyxia Software or Documentation.

3.3 Compliance   with   Laws. Customer will   use the Onyxia Software and Documentation in compliance with all applicable laws and regulations, and refrain from any unethical conduct or any other conduct that tends to damage the reputation of Onyxia.

3.4 Export. The Onyxia Software may be subject to United States export control laws, including the U.S. Export Administration Act and its associated   regulations, and may be subject to export or import regulations in other countries. Customer must comply strictly with all such regulations that are now or later in effect and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import the Onyxia Software or Documentation.

3.5 No Warranties.  Customer will not make or publish any representations, warranties, or guarantees on behalf of Onyxia or otherwise concerning the Onyxia Software or Documentation without Onyxia’s specific prior written approval.

3.6 Protection against Unauthorized Use. Customer acknowledges that the Onyxia Software and any other materials furnished to Customer by Onyxia involve valuable proprietary rights of Onyxia. Customer will take appropriate steps and precautions to protect the Onyxia Software. Without limiting the generality of the foregoing, Customer will use its best efforts to prevent any Unauthorized Use and immediately notify Onyxia in writing of any Unauthorized Use that comes to Customer’s attention. In the event of any Unauthorized Use by anyone who obtained access to the Onyxia Software directly or indirectly through Customer or any of its employees, agents, representatives, or contractors, Customer will take all steps reasonably necessary to terminate such Unauthorized Use and to retrieve any copy of the applicable Onyxia Software in the possession or control of the person or entity engaging in such Unauthorized Use. Customer will provide to Onyxia such cooperation and assistance related to any such Unauthorized Use as Onyxia may reasonably request.

4. Onyxia Services

4.1 Delivery.  Onyxia has delivered, or will deliver within a reasonable time after the date of the Proposal (the “Effective Date”), one copy of the Licensed Software and Documentation to Customer.

4.2 Reserved.

4.3 Technical Support Services.  For so long as Customer is current with its payment of the fees specified in the Proposal, Onyxia will provide the Technical Support Services during the term of these Terms and Conditions.

5. Fees and Payment

5.1 Fees and Payment Terms

(i) Customer will pay Onyxia the fees specified in the Proposal and any other amounts owing under these Terms and Conditions, plus any applicable sales, use, excise, or other taxes. Unless otherwise specified in the Proposal, Customer will pay all amounts due within 30 days of the date of the applicable invoice.

(ii) Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Onyxia to collect any amount that is not paid when due. Amounts due from Customer under these Terms and Conditions may not be withheld or offset by Customer against amounts due to Customer for any reason. All amounts payable under these Terms and Conditions are denominated in United States dollars, and Customer will pay all such amounts in United States dollars.

(iii) Subsequent to the first twelve (12) months after the Effective Date, Onyxia shall be entitled  annually  to increase  the fees in the Proposal by an amount equal to the greater of (i) 3% or (ii) the increase in the Consumer Price Index For All Urban Consumers/New  York area/All Items, published monthly by the Bureau  of Labor Statistics of the United States Department of Labor, measured as of most recently available figure published on the applicable anniversary of the Effective Date and the corresponding  figure for the same calendar month in the immediately preceding year.

5.2 Taxes.  Other than federal and state net  income taxes imposed on Onyxia by the United  States,  Customer will bear all taxes, duties, and other  governmental charges (collectively,  “taxes”) resulting from these Terms and Conditions. Customer will pay any additional  taxes as are necessary to ensure that the net amounts  received by Onyxia after all such taxes are paid are equal to the amounts that Onyxia would have been entitled to in accordance with these Terms and Conditions as if the taxes did not exist.

5.3 Audit.  During the term of the Proposal and these Terms and Conditions and for three years thereafter, Customer will keep current, complete, and accurate records regarding the distribution, and use of Onyxia Software. Customer  will provide such  information to Onyxia and certify  that it has paid all fees required under the Proposal and these Terms and Conditions  within five business  days of any written  request,  so long  as no more  than  two  requests  are made each  year.  Customer will, after reasonable prior notice from Onyxia, provide Onyxia reasonable access to Customer’s premises, records, and personnel so that Onyxia may audit and confirm that Customer complies with these Terms and Conditions. If an audit reveals any use, or distribution of the Onyxia Software   that is not compliant with these Terms and Conditions, Customer will promptly comply with these Terms and Conditions and make an additional payment as contemplated in these Terms and Conditions, plus interest at the rate specified in Section 5.1(ii).  If the amount of the underpayment is five percent or greater, Customer will promptly reimburse Onyxia for its reasonable costs of conducting such audit.


6. Term and Termination

6.1 Term.   These Terms and Conditions will commence upon the Effective Date and continue for the initial term specified in the Proposal unless these Terms and Conditions is terminated earlier in accordance with the terms of these Terms and Conditions. These Terms and Conditions will automatically renew for additional successive one-year terms unless at least 60 days before the end of the then-current term either party provides written notice to the other party that it does not want to renew.

6.2 Termination for Nonpayment.   Onyxia may, without limitation to any of its other rights or remedies, terminate the engagement with the Customer immediately if Customer fails to timely pay any fees specified in the Proposal or any other amounts owing under these Terms and Conditions, including failure to pay the Annual License Fee.

6.3 Termination for Material Breach. Without limiting Section 6.2, either party may terminate the engagement if the other party does not cure its material breach of the Proposal or these Terms and Conditions within 30 days of receiving written notice of the material breach from the non-breaching party and such termination will take effect when the breaching party receives written notice of termination from the non-breaching party.

6.4 Post-Termination Obligations. If the engagement is terminated for any reason, (i) Customer will pay to Onyxia any fees, or other amounts that have  accrued prior to the effective date of  the termination,  (ii) any and all liabilities accrued prior to the effective date of the termination will survive, and (iii) Customer will provide  Onyxia  with a written certification  signed by an authorized  representative  certifying that Customer  has  destroyed all copies of the Onyxia Software and Documentation and that all use of the Onyxia Software  and Documentation by Customer has been discontinued.

7. Warranties and Disclaimer

7.1 Mutual Warranties. Each party represents  and warrants  to the other that: (i) the Proposal and these Terms and Conditions has been duly approved and accepted by the Customer and they constitute a valid and binding agreement enforceable against such party in accordance  with its terms; (ii) no authorization or approval from any third  party  is  required  in  connection  with  such  party’s  execution, delivery,   or  performance  of  the Proposal and these Terms and Conditions;  and  (iii) the  execution, delivery, and performance of the proposal and these Terms and Conditions does not violate the laws of any  jurisdiction  or  the  terms or conditions of  any other agreement to which it is a party or by which it is otherwise bound. 

7.2 Disclaimer. EXCEPT  FOR  THE  EXPRESS REPRESENTATIONS AND WARRANTIES STATED     IN THIS SECTION 7, ONYXIA MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY  OF ANY KIND WHETHER EXPRESS, IMPLIED  (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. Onyxia EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON- INFRINGEMENT. Onyxia DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE Onyxia SOFTWARE OR AGAINST INFRINGEMENT. Onyxia DOES NOT WARRANT THAT THE Onyxia SOFTWARE IS ERROR-FREE OR THAT OPERATION OF THE Onyxia SOFTWARE WILL BE SECURE OR UNINTERRUPTED. Onyxia EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE CUSTOMER’S USE OF THE Onyxia SOFTWARE. CUSTOMER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF Onyxia TO ANY THIRD PARTY.

8. Intellectual Property Infringement

8.1 Infringement Defense. Onyxia will defend Customer from any actual or threatened third party claim that the Onyxia Software infringes or misappropriates any copyright  or trade secret of  any third party during the  term of these Terms and Conditions if: (i) the Customer gives Onyxia prompt written notice of the claim; (ii) Onyxia has full and complete control over the defense and settlement of the  claim;  (iii) Customer provides assistance in connection  with the defense and settlement of the claim as Onyxia may reasonably request; and (iv) Customer complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).

8.2 Infringement  Indemnification.  Onyxia will indemnify Customer  against  (i) all  damages,  costs,  and attorneys’  fees  finally  awarded  against Customer in any proceeding under Section 8.1; (ii) all out-of-pocket   costs (including   reasonable attorneys’  fees) reasonably  incurred  by Customer in connection with the defense of such proceeding (other  than  attorneys’  fees  and  costs incurred without Onyxia’s consent after Onyxia has accepted defense of such claim); and (iii) if any  proceeding arising under Section 8.1 is settled, all  amounts  paid  to  any third party agreed to by Onyxia in settlement of any such claims.

8.3 Exclusions. Onyxia will have no obligation   under this Section 8 for  any  infringement  to  the  extent  that  it arises out  of or is based upon (i) the combination,  operation, or use of the Onyxia Software if such infringement  would have been avoided but for such combination, operation, or use; (ii) designs,  requirements,  or  specifications  for  the Onyxia Software required by or provided by Customer, if the alleged infringement would not have occurred but for such designs, requirements, or specifications;  (iii) use of the Onyxia Software outside of the scope of the  license  granted  to  the  Customer;  (iv) Customer’s  failure  to  use  the latest  release  of  the  Onyxia  Software or  to comply  with instructions provided by Onyxia, if the alleged  infringement would not have occurred but for such failure; (v) any modification of the Onyxia Software not made by Onyxia where such infringement would not have occurred absent such modification;  or (vi) Unauthorized  Use of the Onyxia Software.  Customer will reimburse Onyxia for any costs or damages that result from these actions.

8.4 Exclusive Remedy. This Section 8 states Onyxia’s sole and exclusive  liability,  and  Customer’s  sole  and  exclusive  remedy,  for  the actual or alleged infringement  of any third party intellectual property right by the Onyxia Software.

9. Customer Indemnification

9.1 Defense. Customer will defend Onyxia from any actual or threatened  third party claim arising out of or based upon the Customer’s use of the Onyxia Software, a third party’s use of the Onyxia Software, or Customer's breach of any of the provisions of the Proposal and these Terms and Conditions.  Onyxia will: (A) give Customer prompt written notice of the claim; (ii) grant Customer full and complete control over the defense and settlement of the claim; (iii) assist Customer with the defense and settlement of the claim as Customer may reasonably request and at Customer’s expense; and (iv) comply with any settlement or court order made in connection with the claim.

9.2 Indemnification. Customer will indemnify Onyxia against: (i) all damages, costs, and attorneys’ fees finally awarded against Onyxia in any proceeding under Section 9.1; (ii) all out-of-pocket costs (including reasonable  attorneys’  fees) reasonably incurred by Onyxia in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of  such  claim);  and  (iii) if any  proceeding  arising  under  Section 9.1  is settled, Customer will pay any amounts to any third party agreed to by Customer in settlement of any such claims.

10. Limitations of Liability

10.1 Disclaimer of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS AND CONDITIONS,  ONYXIA WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER  FOR CONSEQUENTIAL, INCIDENTAL,  SPECIAL,  OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THESE TERMS AND CONDITIONS, INCLUDING BUT NOT LIMITED TO LOST  PROFITS   OR  LOSS  OF  BUSINESS,  EVEN IF ONYXIA IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

10.2 Cap on Liability. UNDER NO   CIRCUMSTANCES WILL ONYXIA’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO ONYXIA UNDER THESE TERMS AND CONDITIONS WITHIN 12 MONTHS OF THE DATE UPON A CLAIM IS ASSERTED BY CUSTOMER AGAINST ONYXIA.

10.3 Independent Allocations of Risk. EACH PROVISION OF THESE TERMS AND CONDITIONS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENTTERMS AND CONDITIONS BETWEEN THE PARTIES.  THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY Onyxia TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE   BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS AND CONDITIONS. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THESE TERMS AND CONDITIONS.

General

11.1 Relationship. Onyxia will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of the terms of the Proposal and these Terms and Conditions.

11.2 Assignability. Neither party may assign its right, duties, and obligations under the Proposal and these Terms and Conditions without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign the Proposal and these Terms and Conditions without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees in writing to assume and fulfill all of the assigning party’s obligations under the Proposal and these Terms and Conditions and the assignor remains responsible, jointly and severely with the assignee for all of its obligations under the Proposal and these Terms and Conditions.

11.3 Subcontractors. Onyxia may utilize a subcontractor or other third party to perform its duties under the Proposal and these Terms and Conditions so long as Onyxia remains responsible for all of its obligations under the Proposal and these Terms and Conditions.

11.4 Non-Solicitation. During the term of the Proposal and these Terms and Conditions and for a period of one year thereafter, Customer will not, directly or indirectly, employ or solicit the employment or services of an Onyxia employee or independent contractor without the prior written consent of Onyxia.

11.5 Notices. Any notice required or permitted to be given in accordance with the Proposal and these Terms and Conditions will be effective if it is in writing and sent by certified or   registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the Proposal and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.

11.6 Force Majeure. Onyxia will not be liable for, or be considered to be in breach of or default under the Proposal and these Terms and Conditions on account of, any delay or failure to perform as required by the Proposal and these Terms and Conditions as a result of any cause or condition beyond Onyxia’s reasonable control, so long as Onyxia uses commercially reasonable efforts to avoid or remove such causes of non-performance.

11.7 Governing Law. The Proposal and These Terms and Conditions will be   interpreted, construed, and enforced in all respects in accordance with the laws of the State of New York, USA, without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction   and venue of the federal, state, and local courts in Southern District of New York, in connection with any action arising out of or in connection with the Proposal and these Terms and Conditions. 

11.8 Waiver. The waiver by either party of any breach of any provision of the Proposal and these Terms and Conditions does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with the Proposal and these Terms and Conditions will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of the Proposal and these Terms and Conditions.


11.9 Severability. If any part of the Proposal and these Terms and Conditions is found to be illegal, unenforceable, or invalid, the remaining portions of the Proposal and these Terms and Conditions will remain in full force and effect.   If any material limitation or restriction on the use of the Onyxia Software under the Proposal and these Terms and Conditions is found to be illegal, unenforceable, or invalid, Customer’s right to use the Onyxia Software will immediately terminate.