Valid from May, 26th 2017
The following Terms and Conditions apply to the Business LITE service provided by Ontrack Srl, with registered office in Via Marsala, 34/A – 21013 Gallarate (VA) – Italy, VAT and Tax number 02389900131
Description and limitations of the Business LITE service
Ontrack’s Business LITE as detailed in the present Terms & Conditions apply only to single SSDs (Solid State Drives) which contain no databases and/or virtual machines.
The CUSTOMER is required to pay the amount due for the Business LITE service in accordance to what is established in clause A.5 of the present document. Moreover, the CUSTOMER commits to pay the fixed amount due for the analysis of the device as indicated in the order form, irrespective of the recovery result.
A.1 Order form and application of the Terms and Conditions
Ontrack will provide the requested service in accordance with the present Terms and Conditions. The applicability of any conditions established by the CUSTOMER is hereby excluded. The CUSTOMER requests the data recovery service by signing and submitting a specific order form. The service offer detailed in the order form is valid for 15 days since the date of issue. After 15 days without formal acceptance by the CUSTOMER, the offer is considered expired and the conditions are void. The CUSTOMER can request a new offer from Ontrack.
A.2 Nature of the contract and obligation of means
Ontrack provides its services under a valid service supply contract which, pursuant to article 1326 of the Italian Civil Code, is deemed closed when the order form submitted by the CUSTOMER is received by Ontrack.
The CUSTOMER is aware that due to the peculiar nature of the services provided, the obligation borne by Ontrack is purely of means. While still committing to the highest level of diligence and the best possible execution of the service, Ontrack cannot guarantee that the achieved result will be the one desired by the CUSTOMER.
The CUSTOMER hereby renounces to initiate any objections or actions against Ontrack based on a result that is different from the one expected.
A.3 CUSTOMER’s right to use the device and privacy of data
The CUSTOMER declares to have a legitimate right to use the storage device(s) shipped to Ontrack (ORIGINAL DEVICE) and the data they contain. By signing the order form the CUSTOMER exonerates and releases Ontrack from any request for reimbursement that should arise against Ontrack as a result of any usage of the ORIGINAL DEVICE and the data it contains. Pursuant to and in accordance with decree-law 196/2003, by signing the order form the CUSTOMER nominates Ontrack “Responsabile del trattamento dei dati” with reference to the personal data stored in the ORIGINAL DEVICE. The CUSTOMER authorizes Ontrack to process any kind of data stored in the ORIGINAL DEVICE and to perform any operation that is necessary for the best execution of the requested service. For example Ontrack may copy, extract, modify, delete or destroy the data or the ORIGINAL DEVICE where the data is stored. Ontrack commits to safeguard the privacy of all CUSTOMER data and all data stored in the ORIGINAL DEVICE.
A.4 Destruction and disposal of the ORIGINAL DEVICE
The operations performed on the ORIGINAL DEVICE to attempt the recovery of data are invasive and involve destruction of the ORIGINAL DEVICE itself (e.g. removal of memory chips). Unless the return of the ORIGINAL DEVICE is expressly requested in the order form (Return of original device), by signing the order form the CUSTOMER explicitly authorizes Ontrack to destroy and dispose of the ORIGINAL DEVICE according to the current regulation. Return of the device is possible upon request; however, the ORIGINAL DEVICE will not necessarily be reassembled. The selection made on the order form by the CUSTOMER in relation to the return of the ORIGINAL DEVICE is final and cannot be modified. Ontrack will not give further communication prior or after destruction and disposal of the ORIGINAL DEVICE. The previous clause A.3 still applies in all circumstances.
A.5 Amount due and terms of payment
By signing the order form the CUSTOMER authorizes Ontrack to perform the requested service on the ORIGINAL DEVICE and to charge the amount due (as detailed in the order form) if the recovery is successful. In case of failure of any credit card payments, Ontrack will send a written communication to the CUSTOMER; the CUSTOMER commits to use a different payment method and pay the amount due within 5 days from receipt of such communication.
In case of payment through bank transfer all costs deriving from international bank transactions have to be made with “OUR” option: they have to be charged to the CUSTOMER.
The amount due for the service is payable by the CUSTOMER only if recovery of the data from the ORIGINAL DEVICE is successful. The recovery is deemed successful if the software analysis performed by Ontrack on the recovered data structures reveals that at least 80% of the data is complete. The CUSTOMER is aware that such analysis does not guarantee that the recovered data will be working correctly within the applications normally used by the CUSTOMER.
Payment for the provided service must be received prior to shipping of the recovered data. The prices indicated in the DIAGNOSIS order form and described as “ALL INCLUSIVE” include: shipping of the ORIGINAL DEVICE to Ontrack, shipping of the backup with the recovered data to the CUSTOMER, and a backup device up to 2TB of capacity. Where a higher capacity is necessary, the price of the backup device will be quoted separately. If not "ALL INCLUSIVE", the costs of shipping (USD 20.00 (VAT excluded)) and of the backup device are not included in the prices indicated in the DIAGNOSIS order form. Additional information on the prices of backup devices can be requested to Ontrack directly.
For data recovery services with payment terms upon order Ontrack will invoice the CUSTOMER prior to performing any activity for the following cost items (where applicable): Return of the original device; Previously opened device; Original PCB missing; Fixed analysis cost for SSDs, smartphones, tablets, USB sticks and memory cards (irrespective of recovery outcome), Diagnosis cost (irrespective of recovery outcome), Additional Shipping and Customs Charges (when the CUSTOMER has not organized the shipping in line with provided shipping instructions). The procedure will begin upon receipt by Ontrack of the amount due and therefore the indicated timeframes are calculated from this point in time. Costs that are only applicable if recovery fails or if the order is not confirmed by the CUSTOMER (e.g. the fee for previously opened device) will be deducted from the final amount in case of successful recovery followed by order confirmation.
Without prejudice to the CUSTOMER’s obligation to pay the above listed cost items (where applicable), by signing the order form the CUSTOMER expressly authorizes Ontrack to destroy and dispose of the ORIGINAL DEVICE if the CUSTOMER fails to pay within 30 days from the issue date of the invoice. The CUSTOMER is aware that in the event described in the above paragraph it will no longer be possible to access or recover the data stored in the ORIGINAL DEVICE. The CUSTOMER therefore forgoes the possibility to have the ORIGINAL DEVICE back. Ontrack will not give further communication prior or after destruction and disposal of the ORIGINAL DEVICE.
A.6 Original devices previously opened, not intact or encrypted
In the event that the ORIGINAL DEVICE on which the DIAGNOSIS is performed has been previously open or is otherwise not intact when delivered to Ontrack (manufacturer’s seals are broken or missing or any other signs of tampering) the CUSTOMER expressly authorizes Ontrack to apply an additional fee of USD 200.00 (VAT excluded) for each device that has been tampered with. If the device is encrypted, the CUSTOMER expressly authorizes Ontrack to charge an extra fee of USD 250 (VAT excluded) in case of successful recovery.
The CUSTOMER accepts the relevant extra charges and authorizes Ontrack to go ahead with the DIAGNOSIS procedures.
A.7 Risk of transportation
The CUSTOMER accepts the risk of loss or damage to the device or data that may occur during transportation, including transportation between branches of Ontrack and between Ontrack and its affiliates. Ontrack will only be liable if any loss or damage is attributable to malice or grievous negligence by Ontrack. The burden of proof is borne by the CUSTOMER. Upon request by the CUSTOMER it is possible to insure the shipment. The insurance costs are payable by the CUSTOMER. In shipping the ORIGINAL DEVICE the CUSTOMER commits to follow the provided instruction carefully; any additional costs arising by following a different procedure or choosing other shipping options will be chargeable to the CUSTOMER.
In case of delivery of ORIGINAL DEVICE directly to the drop off point, the receipt of the delivery itself must be expressly requested by the CUSTOMER. The COSTUMER accepts the risk of loss, theft or damage to the ORIGINAL DEVICE provided. By signing the order form the CUSTOMER exonerates and releases Ontrack from any request for reimbursement that should arise against Ontrack.
A.8 Limitation of liability
Due to the nature of the service object of this contract, the CUSTOMER expressly exonerates Ontrack of any liability arising within or outside of this contract for any direct, indirect, incidental or consequential damages suffered by the CUSTOMER and/or by third parties as a result of the provided service, except in the event of proven malice or grievous negligence by Ontrack. Examples of damages include but are not limited to: loss of profit, interruption of productive or professional activities, loss of programs or other data. In the events for which Ontrack may be considered liable for the above mentioned damages, the liability of Ontrack is limited to five times the amount due for the provided service as indicated in the order form.
A.9 Data encryption and backup device warranty
If the data recovery is successful as detailed in clause A.5, the data will be saved on a suitable storage device (including but not limited to external hard drives and USB sticks). Windows NTFS backups up to 2TB in size and with a file count up to 1.000.000 which are saved on a hard disk device will be encrypted with 128-bit AES algorithm. Exceptions are possible due to technical reasons. Backups saved on different storage devices, Mac backups and backups over 2TB will not be encrypted.
The external hard drives provided by Ontrack to the CUSTOMER as backup device are subject to the warranty conditions offered by their supplier and/or manufacturer. Any additional warranty by Ontrack is explicitly excluded. Ontrack reserves the right to provide the CUSTOMER with a backup on USB stick at no cost. USB sticks are not covered by any kind of warranty. Upon receipt of the backup the CUSTOMER will copy the recovered data on his or her own computer or other storage device for additional protection. Any expenses for shipping of the backup device between Ontrack and the device supplier and/or manufacturer are payable by the CUSTOMER.
Without prejudice to the provisions of the first paragraph of the present clause A.9, after the recovery procedure Ontrack will store the data recovered from the ORIGINAL DEVICE, as a precaution and free of charge for the CUSTOMER, for a period of 14 days. When this term expires, unless otherwise requested in writing by the CUSTOMER, Ontrack will proceed with the permanent erasure of the recovered data.
Ontrack does not perform a virus scan of the recovered data. It is the CUSTOMER’s responsibility to perform a virus scan and verify that the backup received is free of viruses. In no event Ontrack will be held liable by the CUSTOMER for any virus detection or any damage arising from presence of virus.
A.10 Location of execution of the technical operations
Ontrack reserves the right to perform the necessary procedures or parts thereof at any of its branches or affiliates’ headquarters, in Italy or overseas. Any risk of loss or destruction of the devices or the data they contain is regulated by clause A.7 of these Terms and Conditions.
A.11 Applicable legislation and competent court
The interpretation and execution of the present contract, and the resulting relationship between parties are subject to Italian law. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
Unless a specific jurisdiction is established by law, the parties agree that for any dispute arising from the present contract the competent Court is identified with the Tribunal of Busto Arsizio (VA) – Italy.
A.12 Partial invalidity
In the event that one or more clauses of the present contract is deemed null and void, invalid or ineffective by the competent authority, in no event such voidance, invalidity or ineffectiveness impacts on the other clauses of the contract. The remaining clauses or parts thereof are considered modified as necessary so that the competent authority deems them valid and effective.