End User License Agreement
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End User License Agreement

Proven Backup, LLC
Terms and Conditions
End User License Agreement

THIS DOCUMENT SHALL BE SIGNED OR ACCEPTED
UPON AGREEMENT WITH PROVEN BACKUP, LLC (PBU) PRIOR TO ANY SOFTWARE DOWNLOAD OR INSTALLATION
Proven Backup, LLC (“PBU”) License and Service Agreement. This agreement (the "Agreement") is a legal agreement between you (“You” or “you”), and PBU. This Agreement governs your use of the PBU backup services and software distributed with this Agreement, including any updates that may be provided to you and any accompanying written documentation (the "Software"), and the PBU data storage services ("Data Storage Services"). The Agreement be effective upon use or download of the services and software, whichever is earlier.

TERMS OF SERVICE AND CONDITIONS OF USE.
The purpose of this Agreement is to set forth the respective rights and responsibilities of PBU and you relative to the collection, retrieval, transmission, and remote storage of data maintained by You, as follows:

  1. You understand and agree that PBU is not responsible for the organization, maintenance, and compilation of the Data organized, collected and maintained or stored on your computer or servers (hereinafter “Data”).
  2. You understand and agree that this agreement governs only the collection, retrieval, transmission, and remote storage of the Data by PBU, as selected by you. PBU is only a complementary Data Storage Service which will upload, back up and store Data and Data files identified for such Data Storage Services by You.
  3. You understand and agree that the Data Storage Services offered hereunder by PBU are solely to complement and be redundant backup storage of the Data already maintained by you. You acknowledge and agree that you have already implemented backup storage of the Data, and that you are solely responsible for the proper implementation of the backup selections made by your IT provider, and You understand that the Data Storage Services offered here are meant to complement and be redundant to your existing Data Storage.
  4. You understand and consent to PBU downloading proprietary software necessary to collect, retrieve, and transmit via the internet the Data. PBU shall not be responsible for any conflicts or other damages caused by the proprietary software downloaded to your computers or servers for purposes of collecting and retrieving the Data. PBU shall not be responsible for selecting which Data shall be stored using the Data Storage Services.
  5. You understand and consent to PBU collecting such Data and transmitting it across the internet to data backup servers operated by PBU. PBU shall use standard encryption software to preserve the security of the data, but shall not be responsible for loss or destruction of the Data collected and transmitted to PBU servers via the internet.
  6. You understand and agree that, you may, upon payment of applicable additional fees, request a complete copy of the Data maintained by PBU.
  7. You understand and agree that if you utilize PBU’s complimentary service to assist you to establish your first off-site data storage, including, but not limited to, the choice of the Data selected for such off-site data storage under this Agreement, PBU shall assume no liability for any act, omission, loss or destruction of any data caused during the initial set up, whether caused directly or indirectly by acts or omissions of PBU, because PBU is offering this complementary service as a courtesy to our customers, and is simply your agent for the establishment of the initial Data Storage Services.
  8. You understand that PBU maintains an encryption password which may link You to Your Data, which password is used solely for maintaining and servicing the backup, and which is created at the time of installation of the PBU software on your workstation or server. If this is lost by you after creation, you will not be able to recover the Data backed up on our servers. You are responsible for maintaining that password and additional fees will be applicable if we must recover the Data stored under this Agreement.
  9. You understand by downloading and using the PBU software for your backups, you agree to all the terms in this End User License Agreement.
  10. You bear sole responsibility for all Data used with the development, operation or maintenance of any software programs or services that you use with your access to or use of the Data Storage Services, including without limitation taking the steps necessary to back up such data, software programs or services.
  11. You acknowledge that you bear sole responsibility for adequate security, protection and backup of your Data content and applications. We strongly encourage you, where available and appropriate, to (a) use encryption technology to protect your data and content from unauthorized access, (b) routinely archive your data and content, and (c) keep your Applications or any software that you use or run with our Data Storage Services current with the latest security patches or updates. We will have no liability to you for any unauthorized access or use, corruption, deletion, destruction or loss of any of your data, content or applications.

PRIVACY AND COMMUNICATIONS.
You acknowledge and agree that PBU may occasionally send you administrative communications regarding your account or the Data Storage Services via email. Please see the PBU Privacy Policy, which is incorporated into this Agreement by reference.

ACCOUNTS, PASSWORDS, AND SECURITY.
You will have no individual access to the Data without passwords set by you during the installation process, and must be a paid registered user to use the Data Storage Services. You are responsible for keeping any passwords secure. You will be solely responsible and liable for any activity that occurs under your user name. If you lose your password or the encryption key for your account, you may not be able to access your Data.

ACCEPTABLE USE AND CONDUCT.
You are solely responsible for your conduct and your Data related to the Data Storage Services. You agree to indemnify, defend, and hold harmless PBU and its suppliers from all loss, cost, liability, and expense, including attorneys fees, arising from or related to your Data, your use of the Data Storage Services, or your violation of these terms. The Software and Data Storage Services are made available to you, your company, or your customers only for personal or commercial use, which use must follow all applicable laws, rules and regulations and must not infringe or violate third party rights. Any unauthorized use of any PBU computer system is a violation of this Agreement and certain federal and state laws. Such violations may subject the unauthorized user and his or her agents to civil and criminal penalties.

CONSENT TO COLLECT NON PERSONAL INFORMATION; USE OF DATA.
The Software and Data Storage Services provided by PBU may collect certain non personally identifiable information that resides on your computer, including, without limitation, statistics relating to how often backups are started and completed, performance metrics relating to the Software, and configuration settings. This information collected will be sent to PBU and may be used by PBU without restriction. When you back up data via the Data Storage Services, you agree that we and our Data Storage Services providers may copy and store such data as part of the Data Storage Services. You understand that any errors in the Data are your responsibility.

CHANGES TO THE DATA STORAGE SERVICES AND TERMS AND CONDITIONS.
PBU reserves the right at any time to modify, suspend, or discontinue providing the Data Storage Services or any part thereof in its sole discretion with or without notice. PBU will use commercially reasonable efforts to notify you of modification, suspension, or discontinuance of the Data Storage Services either by sending an email to the email address you provide with your registration or by a posting on the www.provenbackup.com website. However, in no event will PBU be liable to you or to any third party for any modification, suspension or discontinuance of the Data Storage Services with or without notice. PBU reserves the right at any time to modify this Agreement in its sole discretion, without liability to you. This Agreement, as amended, will be effective upon acceptance of registration for new users and effective for all existing users 15 days after the posting of any amended terms on the www.provenbackup.com website. You agree to be bound by this Agreement, as modified. If you do not agree to any changes to this Agreement, you must terminate your account immediately. Please review the most current version of this Agreement from time to time, located at www.provenbackup.com (or such successor URL as PBU may provide), so that you will be apprised of any changes.

USE OF SOFTWARE.
Subject to the terms and conditions of this Agreement, PBU grants you a non exclusive license to install and execute copies of the Software (in executable code form only) on your company’s computers and only for accessing and using the Data Storage Services. Certain third-party code may be provided with the Software. The third party license terms accompanying such code, and not the terms of this Section, will govern your use of such code. The Software and its structure, organization, source code, and documentation contain valuable trade secrets of Proven Backup and its licensors, and accordingly you agree not to (and agree not to allow third parties to) (1) sub-license, lease, rent, loan, transfer, or distribute the Software and/or Data Storage Services or any derivative thereof to any third party who is not your customer, (2) modify, adapt, translate, or prepare derivative works from the Software or Data Storage Services, (3) decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Software or Data Storage Services, (4) extract portions of the Software's files for use in other applications, or (5) remove, obscure, or alter PBU or any third party's trademarks or copyright or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Software or Data Storage Services.

INTELLECTUAL PROPERTY.
You acknowledge that PBU or third parties own all right, title and interest in and to the Software and Data Storage Services, portions thereof, or software or content provided through or in conjunction with the Software or Data Storage Services, including without limitation all intellectual property rights. Except for the license granted in this Section, all rights in and to the Software and Data Storage Services are reserved, and no implied licenses are granted by PBU. If you have comments on the Software or Data Storage Services or ideas on how to improve them, please visit www.provenbackup.com/feedback. Please note that by doing so, you also grant PBU a perpetual, royalty free, irrevocable, transferable license, with right of sub-license, to use and incorporate your ideas or comments into the Software or Data Storage Services (or third-party software, content, or services), and to otherwise exploit your ideas and comments, in each case without further compensation.

TERM AND TERMINATION.
This Agreement is effective until terminated. You may terminate this Agreement at any time by uninstalling and destroying the Software and closing your account by following the instructions on the www.provenbackup.com website. This Agreement automatically terminates if you fail to comply with its terms and conditions. PBU reserves the right to refuse or discontinue participation to you or any user at any time at its sole discretion. You agree that, upon such termination, you will destroy and permanently erase all copies of the Software and that your access rights to the Data Storage Services will immediately terminate. The terms of the Sections entitled Prohibited Actions, Consent to Collect Non Personal Information, Intellectual Property, Feedback, Disclaimer of Warranties, Limitation of Liability, and Miscellaneous will survive expiration or termination. If this Agreement terminates, other than for your failure to comply, PBU will use commercially reasonable efforts to make your Data available for you to download for a period of three (3) days, and upon payment of any outstanding or applicable fees. PBU has no obligation to provide you with a copy of your Data and may remove and discard any Data without notice to you. In the event of any termination by us of any Data Storage Services or any set of Services, or termination of this Agreement in its entirety, other than a for cause termination, we will not take any action to intentionally erase any of your data stored on the Services for a period of thirty (30) days after the effective date of termination; and (ii) your post termination retrieval of data stored on the Services and the proper destruction of the Data under any applicable regulations will be conditioned on your further payment of any Data Storage Service charges for the period following termination, together with any past due fees or costs, payment in full of any other amounts due us, and your compliance with terms and conditions we may establish with respect to such data retrieval.

DISCLAIMER OF WARRANTIES
THE SOFTWARE AND DATA STORAGE SERVICES AND ANY THIRD-PARTY SOFTWARE AND DATA STORAGE SERVICES ARE PROVIDED "AS IS," WITH NO WARRANTIES WHATSOEVER. PBU AND SUCH THIRD PARTIES EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON INFRINGEMENT OF PROPRIETARY RIGHTS AND ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SOFTWARE OR DATA STORAGE SERVICES AND SUCH THIRD-PARTY SOFTWARE OR DATA STORAGE SERVICES.

YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD AND/OR USE THE SOFTWARE AND DATA STORAGE SERVICES, AND ALL THIRD PARTY SOFTWARE OR DATA STORAGE SERVICES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SOFTWARE OR DATA STORAGE SERVICES, AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE SOFTWARE OR DATA STORAGE SERVICES AND SUCH THIRD PARTY SOFTWARE AND DATA STORAGE SERVICES. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.

LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL PBU OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SOFTWARE OR DATA STORAGE SERVICES, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF PBU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). THIS LIMITATION OF LIABILITY SHALL INCLUDE IN THE BROADEST TERMS PERMITTED BY LAW ALL SPECIAL OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OR CORRUPTION OF BUSINESS DATA, LOSS OF PROFITS OR GOODWILL, BUSINESS INTERRUPTION OR INTERFERENCE, OR INABILITY TO USE OR INTERFERENCE WITH USE OF PRODUCTS) INCURRED OR SUFFERED BY CUSTOMER IN CONNECTION WITH, OR ARISING OUT OF, THIS AGREEMENT OR SERVICES OR CUSTOMER'S USE OF ANY DOCUMENTATION, EQUIPMENT OR SERVICES PROVIDED, OR TO BE PROVIDED, HEREUNDER, EVEN IF PBU, HAS BEEN APPRISED OF THE LIKELIHOOD OF THE SAME.

NO ACTION, REGARDLESS OF FORM, RELATED TO THE TRANSACTIONS OCCURRING UNDER, OR CONTEMPLATED BY THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.

WITHOUT LIMITING THE FOREGOING, THE TOTAL AGGREGATE LIABILITY OF PBU AND ITS SUPPLIERS ARISING FROM OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT, IF ANY, PAID BY YOU TO PBU FOR THE SOFTWARE OR DATA STORAGE SERVICES DURING THE PRECEEDING TWELVE (12) MONTHS.

IF THE SOFTWARE AND DATA STORAGE SERVICES ARE PROVIDED WITHOUT CHARGE, THEN PBU AND ITS SUPPLIERS SHALL HAVE NO LIABILITY TO YOU WHATSOEVER. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SOFTWARE OR DATA STORAGE SERVICES, FROM INABILITY TO USE THE SOFTWARE OR DATA STORAGE SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SOFTWARE OR DATA STORAGE SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.

SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR DIRECT DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

THE SOFTWARE AND DATA STORAGE SERVICES ARE NOT INTENDED FOR USE IN CONNECTION WITH ANY NUCLEAR, AVIATION, MASS TRANSIT, OR MEDICAL APPLICATION OR ANY OTHER INHERENTLY DANGEROUS APPLICATION THAT COULD RESULT IN DEATH, PERSONAL INJURY, CATASTROPHIC DAMAGE, OR MASS DESTRUCTION, AND LICENSEE, AGREES THAT LICENSOR WILL HAVE NO LIABILITY OF ANY NATURE AS A RESULT OF ANY SUCH USE OF THE SOFTWARE.

ARBITRATION.
In the event of any dispute or controversy between the parties hereto arising out of or relating to this MSA or any transaction contemplated hereby, such dispute or controversy shall be submitted to single-arbitrator arbitration under the Commercial Rules of Arbitration of the American Arbitration Association in White Plains, New York for decision in any such matter in accordance with the then applicable rules, and shall be conducted in the English language. Absent agreement of the parties, no party to the arbitration may take more than three fact witness depositions, including a deposition taken pursuant to FRCP 30(b)(6). The determination of the arbitrator shall be final and shall not be subject to judicial review; provided, however, that any award or determination rendered by the arbitrators may be enforced in any court of competent jurisdiction.

MISCELLANEOUS PROVISIONS.
You acknowledge and agree that the Software which is the subject of this Agreement, may be controlled for export purposes. You agree to comply with all United States export laws and regulations. You assume sole responsibility for any required export approval and/or licenses and all related costs and for the violation of any United States export law or regulation. If you are located in a country subject to embargo by the United States government, you are not entitled to use the Software or Data Storage Services.

This agreement will be governed by and construed in accordance with the laws of the State of New York, without giving effect to any conflict of laws and provisions that would require the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

All disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts serving White Plains, New York, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts, except that nothing will prohibit PBU from instituting an action in any court of competent jurisdiction to obtain injunctive relief or to protect or enforce its intellectual property rights.

The failure of PBU to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, the remainder of this Agreement will continue in full force and effect.

This Agreement, which incorporates the PBU Privacy Policy, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of this Agreement will be effective only if in writing and signed by PBU.

You may not assign or transfer any of your rights or obligations under this Agreement to a third party without the prior written consent of PBU. PBU may freely assign this Agreement. Any attempted assignment or transfer in violation of the foregoing will be void from the beginning.

Contacting PBU
Users with questions about this Agreement or the Privacy Policy may contact PBU via email support@provenbackup.com.

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Proven Backup is a service of Professional Data Systems, a leading provider of IT solutions for the healthcare industry since 1997. Proven Backup provides secure, affordable and reliable HIPAA compliant Medical Data Backup including backups of EMR Solutions, Medical Records Storage, Medical Records Management and Medical Records Software. Located in White Plains, Westchester County, New York serving medical practices nationwide.