TERMS AND CONDITIONS FOR ONTRACK SERVICES
1 THESE TERMS
1.1 Unless otherwise agreed to in writing, these terms and conditions ("Terms") govern the supply of services(“Services”) to you by KLDiscovery Ontrack, LLC, d/b/a “Ontrack”
2 ORDER PROCESS
2.1 Following an initial telephone consultation,email or submission of an online form via www.ontrack.com or such other website we operate (“Website”), or any other form approved by Ontrack, you will send us your hard-drive(s), USB drive(s), laptop(s), computer(s)or other device(s), file(s)or equipment (“Media”) for evaluation. We will inspect your Media and, as soon as reasonably possible, provide you with a quotation setting out the scope of Services and applicable fee(s) (“Fees”) via a service request or statement of work. The service request or statement of work, will typically include applicable charges, such as reasonable travel and per diem expenses for on-site work, shipping and insurance (both ways), actual expenses, if any, for parts, media, and/or off-the-shelf software, custom development, and backup media used to perform the Services ("Quotation").
2.2 Following receipt of our Quotation, you may at your option either:
(a) accept and sign the service request or statement of work authorizing the Services ("Order");
(b) decline and submit a request for us to return your Media, the delivery cost of which you agree to pay; or
(c) decline and submit a request for us to destroy your Media, in which case we will be permitted to immediately destroy your Media.
If we do not receive a signed Order, request for return of your Media, or a request for destruction of your Media within fourteen (14) calendar days of the date of the Quotation, we may consider the Media and data abandoned and dispose of your Media and data or take other such actions as described in Section 8.3 regarding abandoned Media and data.
2.3 Estimates provided are based on the description of the damage to, or condition of the data or Media. Estimates are exclusive of shipping charges, cost of back-up media or applicable taxes. Additional fees will apply in the event of scope changes or you require additional, specialized or optional services.
3 OUR PERFORMANCE OF THE SERVICES
3.1 In consideration of your payment of the Fees, we will provide the Services in accordance with these Terms and with commercially reasonable care and skill. You will be informed of the estimated completion date for our Services during the order process. The costs of returning the media and data will be as set out on the relevant Quotation.
3.2 For some Services, we may need certain information from you such as user names, passwords and/or access codes. If you do not provide this information within a reasonable time of our request, or if you provide incomplete or incorrect information, we may make an additional charge of a reasonable sum to compensate us for any extra work that is required as a result. We will not be responsible for supplying the Services late or not supplying any part of the Services if this is caused by you not giving us the information we need.
3.3 We may have to suspend the supply of Services to (a) deal with technical problems or make technical changes; (b) update the Services to reflect changes in relevant laws and regulatory requirements; (c) make changes to the Services as requested by you. We may also suspend supply of the Services if you do not pay.
3.4 After performance of the Services, any and all recovered data maybe retained by Ontrack for a total of fourteen (14) days. Thereafter, Ontrack may permanently delete any recovered data without notice to you.
4 OUR SERVICES
4.1 We will use commercially reasonable endeavors to:
(a) examine the Media to determine what data is accessible on the Media and (ii) the amount of data (if any) that likely to be recoverable from the Media ("Media Evaluation");
(b) report the results of our Media Evaluation to you;
(c) following an Order, retrieve, replicate, reconstruct, provide access to, convert, recover and/or return any recovered data to you and
(d) carry out such other services that we have agreed to perform for you in writing.
5 INTELLECTUAL PROPERTY RIGHTS
5.1 Your Media and data shall at all times remain your property, and we shall have no right, title or interest in or to them (except the right to possession and use of your Media and data to perform the Services). We retain all right, title and interest in the provision of the Services including any intellectual property used to provide the Services, including any parts, media, and/or off-the-shelf software purchased or improvements or enhancements made to the Services.
6 MUTUAL TERMINATION RIGHTS
6.1 Without affecting any other rights or remedies available to either Party, each Party may terminate these Terms,with immediate effect,by giving written notice if:
(i) Either Party commits a material breach of any part of these Terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so or repeatedly breaches these Terms (a failure to pay a Fee due to Ontrack shall constitute a material breach); or
(ii) ceases (or threatens to cease) to trade all or part of its business, has a liquidator, receiver or administrative receiver appointed to it or over any part of its undertaking or assets or passes a resolution for its winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction where the resulting entity shall assume all of the liabilities of it) or a court of competent jurisdiction makes an administration order or liquidation order or similar order, or enters into any voluntary arrangement with its creditors, or is unable to pay its debts as they fall due.
6.2 Following termination, you shall be responsible for all sums owing to Ontrack which shall become payable immediately.
7 CUSTOMER ACKNOWLEDGEMENTS
7.1 You hereby acknowledge and warrant to us that:
(i) you are legally capable of entering into binding contracts;
(ii) you have full authority, power and capacity to agree to these Terms and if you are acting on behalf of a business, have the appropriate legal authority to enter into these Terms for the business which you represent;
(iii) all the information that you provide to us in connection with your Order is true, accurate, complete and not misleading;
(iv) you are the owner of the Media and/or have the permission from the owner of the Media for us to perform the Services;
(v) your supply of your Media and/or data to us will not breach any obligations or rights of any third parties;
(vi) your supply of your Media and/or data to us will not breach any applicable law;
(vii) you are legally permitted to grant access to the data and/or any password, software, or codes required to perform the Services;
(viii) your Media does not contain any material (including without limitation any data) which may infringe the intellectual property rights of any third party;
(ix) your Media does not contain any material which will breach applicable law, and
(x) your Media does not contain any data that is subject to preservation requirements, whether due to litigation, bankruptcy proceedings, creditor’s rights, or statutory or regulatory requirements (including without limitation 45 C.F.R.164.306 –protected health information).
(xi) Performance of the Services may render the Media unusable and may void the manufacturer’s warranty.We reserve the right to request documentary evidence of your ownership or legal right to authorize the Services and to suspend or not commence the Services without receipt of such evidence.
7.2 To the extent that you require secure data erasure or media disposal, you acknowledge that the strong magnetic field used in the degaussing process will render the Media unusable and may void the manufacturer’s warranty.
7.3 You hereby acknowledge that your Media and/or data may already be damaged prior to our receipt of them, and that our efforts to complete the Services may result in the destruction of, or further damage to, your Media and/or data. We will take commercially reasonable care in performing the Services, but will not, save as specified in Clause 11 of these Terms, bear any responsibility for existing or additional damage that may occur to your Media and/or data during our performance of the Services.
8 PRICE AND PAYMENT
8.1 The price of the Services will be the Fee as set out in the relevant Quotation. The Fee shall be payable prior to the Services commencing, or,if applicable, we will invoice you for the Fee when we have completed the Services. In the event we agree to invoice you, you must pay each invoice within 30 calendar days after the date of the invoice. You will be responsible for and indemnify Us against all sales, use, and excise taxes, evaluation, backup and recovery expenses, shipping, insurance, parts or backup media,and like charges imposed with respect to these Terms and any Services provided here under, except for taxes based on our net income.
8.2 Payment by any credit card or debit card is subject to authorization by the card issuer. If such authorization is refused to us,we will not be liable for any delay or non-delivery of the Services and the Order will be deemed to be cancelled.
8.3 If you fail to pay to us any amount due in accordance with the provisions of these Terms,your Media and data may be considered abandoned, and we may, in accordance with applicable law,dispose of your Media and data. Any such disposal of Media and/or data shall be applicable to the deletion of any backup or retention records held by us. We reserve any and all statutory or other lawful liens, ownership transfer rights, or remedies available to us for abandoned property and unpaid fees. We will also charge interest to you on the overdue amount at the rate of 1-1/2% per month, or the maximum as allowed by local law, whichever is less. This interest will accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. If you request Ontrack present invoices electronically for payment, via an electronic payment site ("Site"), Ontrack agrees to do so provided that all such costs for requiring Ontrack to submit invoices via the Site will be borne solely by you.
9.1 THE SERVICES ARE PROVIDED "AS IS" WITHOUT ANY WARRANTIES WHATSOEVER, AND YOU ARE NOT RELYING ON ANY DESCRIPTIONS, STATEMENTS, SPECIFICATIONS, OR ILLUSTRATIONS REPRESENTING THE SERVICES. WE DO NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE PROVIDED ERROR FREE, SECURELY, TIMELY, AND/ OR UNINTERRUPTED. WE HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. YOU ACKNOWLEDGE THAT NO EMPLOYEE OF OURS IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF US THAT IS NOT IN THESE TERMS. SOME JURISDICTIONS MAY NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES OR TO SELL A CONSUMER PRODUCT OR SERVICE “AS-IS,” SO THIS EXCLUSION MAY NOT APPLY TO YOU.
10 OUR RESPONSIBILITY FOR LOSS OR DAMAGE SUFFERED BY YOU
10.1 We do not accept responsibility for any corruption of, physical or other damage to, or destruction of your Media, your data, or any other media that may occur, or invalidation of any warranties in respect to your Media, data,or other media, either:
(i) prior to our receiving your Media, your data, or other media; or
(ii) in the course of our providing the Services where such damage, destruction, corruption or invalidation arises from our performing the Services in accordance these Terms.
10.2 We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes our liability for death or personal injury caused by our intentional misconduct,gross negligence, fraud or fraudulent misrepresentation (including those actions or inactions of our employees, agents or subcontractors). SUBJECT TO THE PROVISIONS OF THIS CLAUSE 10, OUR TOTAL LIABILITY TO YOU, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE)OR OTHERWISE ASSERTED, FOR BREACH OF STATUTORY DUTY, OR OTHERWISE, ARISING UNDER OR IN CONNECTION WITH A CONTRACT SHALL BE LIMITED TO (I) IN CASES OF BREACH OF CONFIDENTIALITY, DATA PROTECTION OR INTELLECTUAL PROPERTY, THE GREATER OF $10,000 (TEN THOUSAND DOLLARS) OR THE VALUE OF THE FEE PAYABLE UNDER THE APPLICABLE CONTRACT; OR (II) IN ANY OTHER CASE, THE VALUE OF THE FEE PAYABLE UNDER THE CONTRACT.
10.3 NEITHER PARTY SHALL BE LIABLE TO THE OTHER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), FOR BREACH OF STATUTORY DUTY, OR OTHERWISE, ARISING UNDER OR IN CONNECTION WITH THESE TERMS OR ANY CONTRACT FOR ANY INDIRECT OR CONSEQUENTIAL LOSS, PECUNIARY LOSS, LOSS OF DATA, LOSS OR DAMAGE DURING TRANSIT, BUSINESS INTERRUPTION, LOSS OF PROFITS OR LOSS OF SALES OR BUSINESS, OR THE PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR THE COST THEREOF EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
10.4 Use of Couriers-In collecting your Media and/or data prior to the commencement of the Services, or in the return delivery of your data or media, we outsource such service to nationally recognized courier companies. By agreeing to these Terms for performance of the Services, you expressly agree to the use of such courier companies and that any loss or damage to the media or data shall be expressly subject to the terms and conditions provided by the applicable courier company, including limitations of liability and compensation limits. You hereby waive any and all rights to bring a claim against Ontrack for losses or damage to your data or media arising from negligence and/or breach of contract by any courier company beyond any compensation paid by you to Ontrack for the Services provided hereunder.
You shall indemnify us in full against and hold us harmless from all claims, costs, damages, losses, liabilities, expenses (including without limitation legal expenses) demands, settlements, and judgments awarded against or incurred or paid by us (collectively “Losses”) as a result of or in connection with any and all of your acts, inactions and/or omissions connected with these Terms, you request for return of your Media, or a request for destruction of your Media, except to the extent such Losses are due to Our intentional misconduct or negligence.
12 HOW WE MAY USE YOUR PERSONAL DATA
12.1 We will use the personal data you provide to us to supply the Services to you and to process your payment for the Services. Providing your personal data is voluntary, however, Ontrack may be unable to provide the Services if you choose not to provide your personal data or withdraw consent at any time. We may collect your personal data: (i) when you contact us via email, telephone or by any other means and (ii) in the ordinary course of our relationship with you when providing Services (including personal data we obtain in the course of administering your payments).
13 CONFIDENTIAL INFORMATION
13.1 Each party agrees to not disclose any Confidential Information of the other party to any third party without the prior written authorization of the party disclosing the Confidential Information and to:
(i) use such Confidential Information only for the purposes of carrying out its obligations pursuant to these Terms;
(ii) use the same methods and degree of care to prevent disclosure of such Confidential Information as it uses to prevent disclosure of its own proprietary and Confidential Information but in no event less than reasonable care; and
(iii) disclose Confidential Information to its employees and approved third parties, only on a need-to-know basis provided that all such persons are bound by duties of confidentiality no less onerous than are set out in these Terms. Confidential Information is deemed to be “all information (however recorded) disclosed by either party to the other party in connection with the Services, including but not limited to your data and any information that would reasonably be regarded as confidential by either party.”
13.2 Confidentiality obligations shall not apply to any Confidential Information:
(i) which enters the public domain through no fault of the recipient party;
(ii) which was known to the recipient party prior to receipt from the other party;
(iii) which is disclosed to the recipient party by a third party (other than employees or agents of either party) in circumstances that such disclosure is not in violation of any confidentiality obligation to the party disclosing the Confidential Information; or
(iv) which is independently developed by the recipient party without recourse to Confidential Information.
13.3 Confidential Information may be disclosed in response to a valid court order or other legal process only to the extent required by such order or process and only after the receiving party provides the disclosing party written notice, if legally allowed, of such court order or other legal process promptly and the opportunity to seek a protective order or confidential treatment of such Confidential Information, at the disclosing party’s expense, with reasonable cooperation by the receiving party. We may disclose Confidential Information, including Your data, where required by law and to cooperate with any law enforcement authorities, governmental agencies, or court orders requesting or directing such disclosure.
14 OTHER IMPORTANT TERMS
14.1 We may change the Services to reflect changes in relevant laws and regulatory requirements and to implement minor technical adjustments and improvements, for example to address a security threat. In addition, we may make more material changes to these Terms or the Services. The parties agree that the laws of the state of Minnesota shall govern these Terms and agree to venue in Hennepin County, Minnesota; provided, however, that if any provision of these Terms is in violation of any applicable law, such provision shall to such extent be deemed null and void, and the remainder of the Terms shall remain in full force and effect.Except for Your obligation to make payments, either party’s performance shall be excused to the extent performance is hindered, delayed or made impractical due to causes beyond such party's reasonable control. These Terms, together with any Quotation, Order, exhibits or other attachments provided by Ontrack, constitutes the entire Agreement between the parties in relation to this subject matter, unless the parties have entered into a previously written master services agreement, in which case the master agreement shall govern with respect to any conflicting terms hereunder. The terms and conditions of any Customer issued Purchase Order, or terms contained on the Website, are specifically excluded from and superseded by the terms and conditions contained in these Terms.