Terms and conditions for Ontrack data recovery services
1. THESE TERMS
1.1 These terms and conditions ("Terms") govern the supply of Data Recovery Services to you by KLDiscovery Ontrack Limited (registered in England and Wales, Company Number 02669766 trading as “Ontrack”). Please read these Terms carefully before you submit your Order to us. These Terms tell you who we are, how we will provide the Services to you, how you and we may change or end the Contract, what to do if there is a problem and other important information.
2. CONTACT DETAILS
2.1 How to contact us. You can contact us by telephoning our customer service team on +44 (0)1372 741 999, by writing to us at Nexus, 25 Farringdon Street, London, EC4A 4AB or ukinfo@ontrack.com.
3. INTERPRETATION
3.1 In these Terms the following definitions will apply:
(a) "Business Customer" means a customer acting for the purpose of their business, trade or profession including, without limitation, a sole trader, partnership, limited company or public authority;
(b) “Confidential Information” means all confidential information (however recorded or preserved) disclosed by either party to the other party in connection with the Services, including but not limited to your Data, our Data and any information that would be regarded as confidential by either party;
(c) "Consumer Customer" means a customer that is an individual who is not acting for the purposes of a business, trade or profession (excluding, for the avoidance of doubt, any Business Customer);
(d) "Contract" means as defined in Clause 4.4;
(e) "Data" means data in electronic form of any description, including 'personal data' as defined by the General Data Protection Regulation EU 2016/679 and/or the Data Protection Act 2018;
(f) "Equipment" means your Media and, if applicable, mobile phone or tablet;
(g) "Fee" means the fee payable by you for the Services, as set out in the relevant Quotation;
(h) "Media" means storage media such as hard-drives, USB drive, laptop, computer or other devices;
(i) "Order" means as defined in Clause 4.3;
(j) "Quotation" means as defined in Clause 4.1;
(k) “Service Descriptions” means the specific processes employed by Ontrack as more described at the following link www.ontrack.com/en-gb/service-terms#service-descriptions, which sets out, amongst other matters, service limitations, service levels and expectations;
(l) "Services" means the data recovery services to be provided by us to you, as described in Clauses 4 (Order Process) and 5 (Services) of these Terms; and
(n) "Website" means our website at www.ontrack.com/en-gb or such other website as we use to operate our business from time to time.
4. ORDER PROCESS
4.1 Excluding mobiles and tablets, for standard data recovery, following an initial telephone consultation, submission of an online form via our Website or email you will send us your Equipment for our evaluation. We will use reasonable endeavours to: (a) examine the Equipment to determine: (i) what Data is accessible on the Equipment: (ii) the cause of any damage to the Equipment and/or the Data on the Equipment; and (iii) the amount of Data (if any) likely to be recoverable on the Equipment; ("Free Evaluation"); (b) report the results of our Free Evaluation to you. In most cases, we will provide you with a quotation setting out the scope of Services and applicable Fee broken into two parts: (i) the optional diagnosis; and (ii) the full data recovery. For complex cases, you will be offered a paid diagnosis due to the potential complexity of the data recovery (collectively the "Quotation"). All Services will be providing according to the Service Descriptions.
4.2 In the Quotation, where the diagnosis is listed as optional, this stage is automatically applied to the Quotation as the diagnosis will provide more detailed information on the success of the data recovery. If the optional diagnosis is selected, following payment, you will receive a file listing specifying the Data that is likely to be recovered once the full data recovery is completed. Both optional and paid diagnosis fees are not refundable once the work has been completed, irrespective of the outcome of the diagnosis. In some cases, the diagnosis will indicate that a full data recovery is not likely to be successful and only a partial data recovery is expected. In addition to a Consumer Customer’s statutory cancellation rights (see section 7 below) regarding diagnosis, the optional diagnosis can be cancelled at any time within 24 hours of the Quotation acceptance.
4.3 For mobiles and tablets, you will be provided with a fixed price quotation following Ontrack’s receipt of details from you. Mobiles and tablets do not require an evaluation by Ontrack’s engineers. For mobiles and tablets, Ontrack will provide you with a free diagnosis report outlining the likely recovery of your Data. You will then be able to choose to proceed with the data recovery process.
4.4 For other Services, such as remote data recovery (“RDR”) where you do not submit any Equipment to us, or degaussing, the Quotation shall consist of the work expected to be required by Ontrack to perform the Services.
4.5 Following receipt of our Quotation, you may at your option either: (i) accept and sign the service request or statement of work to submit an order for our Services ("Order"); (ii) submit a request for us to return your Equipment (if applicable), the delivery cost of which you agree to pay; or (iii) submit a request for us to destroy your Equipment, in which case we will be permitted to immediately destroy your Equipment. If we do not receive an Order or request to return your Equipment within 90 (ninety) calendar days of the date of the Quotation, we will dispose of your Equipment in line with applicable law.
4.6 Our acceptance of your Order will take place when we send you email confirmation of our acceptance, at which point a legally binding contract will come into existence between you and us, governed by these Terms ("Contract"). We will assign an order number to your Order. It will help us if you can tell us the order number whenever you contact us.
5. OUR SERVICES
5.1 Ontrack will provide the Services with reasonable care and skill. Following an Order, we shall use reasonable endeavours to: (i) retrieve, replicate, reconstruct, provide access to, convert, recover and return any recovered Data to you on an encrypted hard-drive or USB stick (or other hard-drive provided by you); (ii) if required, repair the mobile phone; and (iii) carry out such other services that we have agreed to perform for you in writing, such as degaussing or RDR. When you receive the hard-drive with your recovered data from Ontrack, we urge you to immediately check the hard-drive for technical functionality. Ontrack can only replace your recovered data in case of failure of the delivery device within our data retention period for your recovered personal data according to Ontrack's Data Processing Agreement.
5.2 Remote Data Recovery. Where you wish Ontrack to perform a data recovery for those occasions when submitting any Equipment is not required, Ontrack may be able to perform a remote data recovery. You must download and install the Ontrack RDR client software using the link provided by Ontrack. Once installed, the client allows the user to connect to Ontrack via an encrypted internet connection. The RDR connection is only used by Ontrack to control the Ontrack recovery tools directly on the Customer’s machine. Your Data will not be transferred to Ontrack during this process.
5.3 Degaussing. Ontrack will place your Equipment into a degaussing unit which is a machine which effectively and securely scrambles the magnetic data held on the Equipment. Following the degaussing process, the Data is no longer readable and will have been securely destroyed.
5.4 Mobile Phone Repair. The primary service we offer will be the recovery of the Data from the mobile phone and we do not offer a standalone mobile phone repair. In some cases, the work required for a data recovery may result in the partial or temporary repair of the mobile phone. In such cases, this may result in the restoration of functionality to the mobile phone so that you are able to use it in normal usage conditions but Ontrack does not offer any guarantee or warranty with respect to such repairs.
5.5 You will be informed of the estimated completion date of the Services during the Order process. The costs of returning the Equipment will be as set out on the relevant Quotation. For all Services, if Ontrack is not fully successful in the data recovery, Ontrack will not charge the data recovery fee. Ontrack will retain the Data that was recovered for a period of thirty (30) days prior to its deletion. If you wish to receive a copy of this Data, the data recovery fee will be applicable and must be paid prior to your receipt of the Data. There may be costs applicable to the return of the Equipment where you choose not to receive the partial Data.
5.7 We may have to suspend the supply of Services to: (i) deal with technical problems or make technical changes; (ii) update the Services to reflect changes in relevant laws and regulatory requirements; (iii) make changes to the Services as requested by you. We may also suspend supply of the Services if you do not pay.
5.8 While we use approved original equipment manufacturer repairs, we offer no guarantee that the Services will be consistent with any warranty offered by the original equipment manufacturer. Our performance of the Services should, under no circumstances, be taken as a guarantee that the Services will be successful, that all or any of your Data is recoverable or will be useable, that the Mobile Phone will be capable of being used or that we will achieve any other particular result.
5.9 Ontrack warrants that the RDR client software: (a) is free from program code or programming instructions intentionally designed to disrupt, disable, harm, interfere with or otherwise adversely affect computer programs, data files or operations; and (b) contains no other malicious or harmful code typically described as a virus or by similar terms, including trojan horse, worm or backdoor.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Your Equipment 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 Equipment and Data to perform the Services). We retain all right, title and interest in the provision of the Services, including any improvements or enhancements made to the Services.
7. RIGHTS TO END CONTRACT (CONSUMER CUSTOMERS)
7.1 This Clause 7 applies solely to our Contracts with Consumer Customers. Following an Order, you have a legal right to change your mind. These rights, under The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, are explained in more detail below.
7.2 During the Free Evaluation, you can cancel at any time. If you place an Order including any diagnosis, you can cancel within 14 (fourteen) days after the day we email you to confirm we accept your Order. However, once we have completed the Services, you cannot change your mind, even if the period is still running. By placing an Order, you expressly authorise us to commence the Services immediately. If you cancel after we have started the Services, you must pay us for the Services provided up until the time you tell us that you have changed your mind. We will tell you what this Fee will be following the cancellation request.
(a) Phone or email. Call customer services on +44 (0)1372 741 999 or email us at ukinfo@ontrack.com;
(b) By post. write to us at Nexus, 25 Farringdon Street, London, EC4A 4AB ; or
(c) By Cancellation Form: complete and send to us a cancellation form in the format of the Model Cancellation Form included as a Schedule to these Terms.
7.4 The optional diagnosis can be cancelled within 24 hours of the Quotation using the same cancellation methods set out above.
8. RIGHTS TO END THE CONTRACT (BUSINESS CUSTOMERS)
8.1 This Clause 8 applies solely to our Contracts with Business Customers. Following an Order, you shall not be able to terminate the Services unless set out in clause 9 below.
9. MUTUAL TERMINATION RIGHTS
9.1 Without affecting any other right or remedy available to either Party, each Party may terminate the Contract with immediate effect by giving written notice if:
(a) Either Party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 (seven) days after being notified in writing to do so or repeatedly breach these Terms. A failure to pay the Fee shall constitute a material breach; or
(b) either Party 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, or, if an individual, becomes bankrupt.
9.2 We may terminate the Contract if, by performing the Contract, we may breach applicable export and sanctions laws relating to dealings with certain companies and individuals set by the European Commission or other national authorities, including the United States.
9.3 Following termination, you shall be responsible for all sums owing to us which shall become payable immediately.
10. CUSTOMER ACKNOWELDGEMENTS
10.1 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 a Business Customer have the appropriate legal authority to conclude the Contract; (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 Equipment and/or have the permission from the owner of the Equipment for us to perform the Services; (v) your supply of your Equipment and/or Data to us will not breach any obligations or rights of any third parties; (vi) your supply of your Equipment and/or Data to us will not breach any applicable law; (vii) you are legally permitted to grant access to the Data; (viii) your Equipment does not contain any material (including without limitation any Data) which may infringe the Intellectual Property Rights of any third party; and (ix) your Equipment does not contain any material which will breach applicable law. We reserve the right to request documentary evidence of your ownership or legal right to authorise the Services and to suspend or not commence the Services without receipt of such evidence.
10.2 You hereby acknowledge that your Equipment 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 any further damage to, your Equipment and/or Data. We will take reasonable care in performing the Services, but will not, save as specified in Clause 12 of these Terms, bear any responsibility for existing or additional damage that may occur to your Equipment and/or Data during our performance of the Services.
11. PRICE AND PAYMENT
11.1 The price of the Services will be the Fee as set out in the relevant Quotation. VAT shall be added at the statutory rate and, if applicable, is payable by the Customer.
11.2 How you must pay. Payment can be by cash, bank transfer or credit/debit card. If you pay by credit/debit card Ontrack will send you a payment link to a secure 3rd party payment platform to complete the payment process once the work is completed. Some Services, such as file listings (see Service Description) are payable prior to commencement of the Services. For other Services, following completion of the Order, payment must be made to Ontrack before any recovered Data is returned. Business Customers that apply for credit terms must pay their invoice within the agreed terms, subject to providing Ontrack with a signed acceptance of our order or a valid purchase order.
11.3 If you fail to pay to us any amount due under these Terms we may retain the Equipment and Data until you make full payment. If you do not make full payment within 90 (ninety) calendar days of the due date we may, without liability or consulting you further, dispose of your Equipment and/or Data in line with applicable law. We will also charge interest to you on the overdue amount at the rate of 4% a year above the base lending rate of Barclays Bank plc from time to time. 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.
11.4 No Data will be provided by Ontrack until payment has been made in full for the applicable Order.
12. OUR RESPONSIBILITY FOR LOSS OR DAMAGE SUFFERED BY YOU
12.2 Whilst we will use reasonable endeavours to take care of your Equipment or Data whilst in our possession, we will not be responsible to you if any of your Equipment or Data is lost, destroyed, corrupted or otherwise damaged through fair wear and tear.
12.4 Subject to the provisions of this clause 12, our total liability to you, whether in contract, tort (including negligence), 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 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.
12.6 Use of Couriers. In collecting your Equipment prior to the commencement of the Services, or in delivering the recovered Data and/or original Equipment, we outsource such service to nationally recognised courier companies. By agreeing to us using them for the Services, you agree that any loss or damage to the Equipment 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 all right to bring any claim against Ontrack for any loss or damage to Data or Equipment arising from negligence and/or breach of contract by the courier company beyond any compensation scheme set out by them.
13. INDEMNITY
13.1 You shall indemnify us in full against and hold us harmless from all claims, costs, damages, liabilities, expenses (including without limitation legal expenses) demands and judgments awarded against or incurred or paid by us as a result of or in connection with any and all of your acts, inactions and/or omissions connected with the Contract and these Terms.
14. HOW WE MAY USE YOUR PERSONAL DATA (CONSUMER CUSTOMER AND BUSINESS CUSTOMER CONTACT DATA
14.1 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 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).
14.2 The purposes for which we process your personal data include: (i) to provide the Services and fulfil your Order; (ii) obtaining your views on our Services, and (iii) with the appropriate legal permission, direct marketing.
14.3 We may disclose your personal data to other entities of the KLDiscovery group (of which Ontrack forms part), a full list of which is provided in our Privacy Policy, and to (i) legal and regulatory authorities for the purposes of reporting any actual or suspected breach of applicable law or regulation; (ii) our accountants, auditors, lawyers and other outside professional advisors; (iii) third party Processors (such as payment services providers; shipping/courier companies; technology suppliers, processors who provide compliance services). The purpose of disclosure to other entities is to fulfil our contractual obligations towards you or for legitimate business purposes, in accordance with applicable law. We have implemented security measures described in our Privacy Policy and all entities are under an obligation to implement security measures ensuring a high level of protection.
14.4 Without affecting any of your statutory rights, you shall at any time have the right to: (i) access and obtain information about the nature, processing or disclosure of your personal data; (ii) rectify your personal data; (iii) request, on legitimate grounds, erasure or restriction of processing of your personal data; (iv) object, on legitimate grounds, to the processing of your personal data; (v) request to have your personal data transferred to another controller; (vi) withdraw your consent to processing of personal data; and (vii) lodge complaints with the applicable Data Protection Authority.
14.5 By agreeing to these Terms, you are also agreeing to the storage and use of your personal data pursuant to the terms of our Privacy Policy, which is available at www.ontrack.com/en-gb/privacy/.
15. HOW WE PROCESS PERSONAL DATA (RECOVERED DATA)
15.1 By agreeing to these Terms, in respect of any recovered Data, our Customers are also agreeing to the storage and use of your personal data pursuant to the terms of our Data Processing Agreement.
16. CONFIDENTIAL INFORMATION
16.2 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.
17. OTHER IMPORTANT TERMS
17.1 This Contract is between you and us. No other person shall have any rights to enforce any of its terms. Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful and/or unenforceable, the remaining paragraphs will remain in full force and effect. If we delay in taking steps against you in respect of your breaking this contract, this will not prevent us taking steps against you at a later date.
17.3 As well as any other rights you have under law or regulation, if you are resident in the European Union, you may have the option to submit complaints on the European Union’s Online Dispute Resolution platform (the “Platform”) which facilitates the settlement of disputes online. For more information, please visit the Platform on https://webgate.ec.europa.eu/odr/. Ontrack does not intend to use the Platform to settle disputes and you accept that Ontrack is under no obligation to use the Platform to settle any disputes.
17.4 These terms are governed by English law and each Party may bring legal proceedings in the courts of England and Wales.
Schedule - Model cancellation form
(Complete and return this form only if you wish to withdraw from the contract)
| To | [TRADER'S NAME, ADDRESS, TELEPHONE NUMBER AND, WHERE AVAILABLE, FAX NUMBER AND E-MAIL ADDRESS TO BE INSERTED BY THE TRADER] |
| I/We* hereby give notice that I/We* cancel my/our* contract of sale of the following goods*/for the supply of the following service*, | |
| Ordered on*/received on*, | |
| Name of consumer(s), | |
| Address of consumer(s), | |
| Signature of consumer(s) (only if this form is notified on paper), | |
| Date | |
*Delete as appropriate
Effective: 1 February 2023
Data Processing Agreement
This Data Processing Agreement applies to: (i) KLDiscovery Ontrack Limited (company number 02669766) having its registered office address at Ontrack, Nexus, 25 Farringdon Street, London, EC4A 4AB (“Ontrack”); and (ii) the applicable Customer
placing an order for Ontrack’s services pursuant to the applicable service terms of business (“Terms”).
The Parties have agreed that the terms of this Data Processing Agreement shall apply to the Processing of Personal Data (as defined below) that is required to enable Ontrack to provide the services to the applicable Customer.
Definitions
In this Data Processing Agreement:
| Data Controller | has the meaning given to that term (or to the term ‘controller’) in Data Protection Laws; |
| Data Processor | has the meaning given to that term (or to the term ‘processor’) in Data Protection Laws; |
| Data Protection Laws | means all applicable data protection law binding on the Customer, Ontrack and/or in relation to the services including: (i) the GDPR and/or any corresponding or equivalent national laws or regulations; and (ii) in member states of the European Union, all relevant laws or regulations giving effect to or corresponding with the GDPR. |
| Data Subject | has the meaning given to that term in Data Protection Laws; |
| Data Subject Request | means a request made by a Data Subject to exercise any rights of Data Subjects under Data Protection Laws; |
| GDPR | means the General Data Protection Regulation (EU) 2016/679; |
| Personal Data | has the meaning given to that term in Data Protection Laws and covers all personal data provided to Ontrack by the Customer which is contained within the Media; |
| Personal Data Breach | means any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Personal Data; |
| Personnel | means any current, former or prospective employee, consultant, temporary worker, agency worker, intern, other non-permanent employee, contractor, secondee or other personnel; |
| Processing | has the meaning given to that term in Data Protection Laws (and related terms such as process have corresponding meanings); |
| Sub-Processor | Sub-Processor means another Data Processor engaged by KLDiscovery Ontarck on behalf of the Client for carrying out processing activities in respect of the Personal Data for services which relate directly to the main Service. This does not include ancillary services, such as telecommunication services, postal / transport services, maintenance or user support services or the disposal of data carriers and paper documents as well as other soft- or hardware-based actions and |
| Supervisory Authority | means any local, national or multinational agency, department, official, parliament, public or statutory person or any government or professional body, regulatory or supervisory authority, board or other body responsible for administering Data Protection Laws. |
Data Processing provisions
1 Data Processor and Data Controller
1.1 The Parties agree that, in respect of Personal Data, the Customer shall be the Data Controller and Ontrack shall be the Data Processor. It is acknowledged that the Customer shall have sole responsibility for the accuracy, quality, integrity and reliability of any Personal Data and of the means by which it acquired such Personal Data.
1.2 The Customer warrants, represents and undertakes, that: (i) all Personal Data used in connection with the services pursuant to the Terms shall comply in all respects with Data Protection Laws; (ii) all instructions given by it to Ontrack in respect of Personal Data shall at all times be in accordance with Data Protection Laws; (iii) it has obtained all necessary consents from any Data Subject whose Personal Data is included within the Personal Data or otherwise has the appropriate legal permission to provide the Personal Data to Ontrack; and (iv) it will comply with the terms of this Data Processing Agreement.
1.3 Ontrack warrants, represents and undertakes, that it shall: (i) process the Personal Data only to the extent necessary in connection with the Terms; and (ii) process the Personal Data in accordance with the Customer’s documented instructions and the requirements of Data Protection Laws; (iii) promptly inform the Customer if Ontrack considers that the Customer’s instructions infringe Data Protection Laws, or if Ontrack becomes unable to comply with Customer's instructions regarding the Processing of Personal Data (whether as a result of a change in applicable law, or a change in Customer’s instructions); and (iv) comply with the terms of this Data Processing Agreement.
2 Instructions and details of Processing
3 Technical and organisational measures
4 Using Personnel and Sub-Processors
4.2 Approved sub-processors at the date of this Data Processing Agreement are set out at Annex 1.
4.3 Ontrack shall ensure the reliability of its Personnel who have access to Personal Data and ensure that they process it only where strictly necessary for the services, ensure that they are fully aware of the measures to be put in place and the steps to be taken when Processing the Personal Data having regard to Data Protection Laws, and ensure that they have committed themselves to protect the confidentiality of the Personal Data including by way of an appropriate obligation of confidentiality (whether by written contract or otherwise) in respect of the Personal Data .
5 Assistance with the Customer’s compliance and Data Subject rights
5.1 Ontrack shall promptly refer all Data Subject Requests it receives to the Customer. Ontrack shall provide such reasonable assistance as the Customer reasonably requires (taking into account the nature of Processing and the information available to Ontrack) to the Customer in ensuring compliance with the Customer’s obligations under Data Protection Laws with respect to: (i) the security of Processing; (ii) data protection impact assessments (as such term is defined in Data Protection Laws); (iii) prior consultation with a Supervisory Authority regarding high risk Processing; and (iv) notifications to the Supervisory Authority and/or communications to Data Subjects by the Customer in response to any Personal Data Breach, provided that, in the event that such assistance is disproportionate in time and resources to Ontrack, Customer shall pay Ontrack’s fees for providing such assistance.
6 International data transfers
6.1 Save with Customer’s written consent, Ontrack shall not transfer any Personal Data outside of the United Kingdom or European Economic Area. The Customer acknowledges that, at the date of this Data Processing Agreement, in respect of Personal Data subject to the GDPR, the United Kingdom has received an Adequacy Decision dated June 28, 2021 from the European Commission pursuant to Article 45(3) of the GDPR which confirms that transfers of Personal Data to the United Kingdom may take place without the need to obtain any further authorisation (“Adequacy Decision”).
6.2 In the event that the United Kingdom’s Adequacy Decision expires or is otherwise declared invalid, the Parties shall enter the EU Controller to Processor Standard Contractual Clauses in force at the applicable time to ensure compliant Processing of Personal Data by Ontrack in the United Kingdom.
7 Records, information and audit
7.2 Ontrack shall grant to Customer the right of audit, no more than once per calendar year and on a minimum of 30 (thirty) days written notice, during normal business hours and subject to reasonable confidentiality undertakings being given, to access and take copies of such records relating to Processing of Personal Data and shall provide all reasonable assistance to Customer in exercising its audit rights. This audit right shall not extend to any third party data centre or other third party facility housing any server equipment where only visual and accompanied inspection is permitted.
8.1 In respect of any Personal Data Breach involving Personal Data, Ontrack shall, without undue delay: (i) notify the Customer of the Personal Data Breach; and (ii) provide the Customer with details of the Personal Data Breach.
9 Deletion or return of Personal Data and copies
9.1 Ontrack shall, at the Customer’s written request, either delete or return all the Personal Data to the Customer in such form as the Customer reasonably requests within a reasonable time after the earlier of: (i) the end of the provision of the relevant data recovery services pursuant to the Terms related to Processing; or (ii) once Processing by Ontrack of any Personal Data is no longer required for the purpose of Ontrack’s performance of its relevant obligations under this Data Processing Agreement, and delete existing copies (unless storage of any Personal Data is required by applicable law and, if so, Ontrack shall inform the Customer of any such requirement). Ontrack shall procure that its Sub-Processors shall undertake the same actions with regard to Personal Data.
9.2 In the event that Personal Data remains within Ontrack’s possession or control for any period longer than 12 (twelve) months without any active instructions from the Customer, Ontrack shall delete such Personal Data.
10.1 Each Party (the “Indemnifying Party”) shall indemnify and keep indemnified the other Party (the “Indemnified Party”) in respect of all claims, demands, actions, settlements, interest, charges, procedures, expenses, losses and damages suffered or incurred by, awarded against or agreed to be paid by, the Indemnified Party arising from or in connection with the Indemnifying Party’s non-compliance with this Data Processing Agreement and/or breach of Data Protection Laws.
11 Liability
11.1 The total liabilities of either Party under this Data Processing Agreement shall in no event exceed the contractual limits set out and agreed in the Terms.
12 Term and Termination
12.1 Unless terminated by agreement of the Parties, this Data Processing Agreement shall commence on the date an order is placed for services pursuant to the Terms and continue in force for so long as Ontrack continues to process Personal Data.
13 Choice of Law
13.1 This Data Processing Agreement shall be subject to the terms of the choice of law provision set out in the Terms.
Date: 1 February 2023
Annex 1 – Sub-Processors and Transfers
| Ontrack Product / Business System | Name of Sub-Processor |
|---|---|
| Mobile Phone Unlock Service | Cellebrite UK Limited, 100 New Bridge Street, London, EC4V 6JA, United Kingdom |
Ontrack Data Recovery Services Description
Updated: 1 February 2023
1. Service Description
1.1 Ontrack will recover as much data as possible from one or more damaged data carriers or shall attempt to make them readable again through appropriate measures.
1.2 Data recovery is carried out in several possible stages:
1.2.1 The Freeval Evaluation - see section 2 below;
1.2.2 Quotation for smartphones and tablets – see section 3 below;
1.2.3 The Diagnosis - as an option - see section 4 below;
1.2.4 Data recovery - see sections 5, 6 and 7 below; and/or
1.2.5 Remote data recovery – see section 8 below.
1.3 Despite the greatest care and experience, however, it may not be possible to read deleted and/or damaged data even when using Ontrack’s tools and technologies. Therefore, Ontrack cannot guarantee that data on damaged media can be recovered, repaired or read.
1.4 Additionally, even with using the highest technical and processing standards according to the state of the art, the processing operations necessary for data recovery include the risk of partial or complete loss of remaining data and/or the only partial recoverability of data on the damaged media. The customer acknowledges that there remains a risk that: (i) once existing data can no longer be recovered, additional data will be lost; (ii) recovered data can not be used by the customer; (iii) the information content embodied in the data carriers will be destroyed in whole or in part; and (iv) the data carriers, software and other items provided will be damaged, unusable or destroyed.
2. Freeval Evaluation
2.1 The Freeval Evaluation consists of an investigation of the type and extent of the data damage as well as an investigation into the possibilities of data recovery on the data carrier. The first step is to determine whether the damage is logical and/or physical and whether the data carrier must be sent to the clean room laboratory for processing. In addition, an assessment of the expected data recovery result is given.
2.2 The Freeval Evaluation can be performed in the laboratory of Ontrack or through a remote connection to the customers own systems using the Ontrack Remote Data Recovery (“RDR”) technology (see section 8).
2.3 Ontrack will inform the customer after the Freeval Evaluation how successful the subsequent data recovery measure is expected to be. The following estimations of the expected data recovery result are possible:
2.3.1 Excellent - We expect that most ( 95%-100%) of your raw data can be recovered and will be readable in the respective application.
2.3.2 Good - We expect that a large part of your raw data ( 75%-100%) can be recovered and will be readable in the respective application.
2.3.3 Partial - We expect that a small part of your raw data (less than 50%) can be recovered and will be readable in the respective application.
2.3.4 Unrecoverable - We cannot access the data on your data carrier.
2.3.5 Complex - We are not able to provide an accurate percentage of expected data at this stage. Other data recovery options must be explored.
2.4 Freeval Evaluation cannot guarantee compliance with the % thresholds listed under section 2.3 above as there may be damage which is difficult to detect and which cannot be completely detected by the Freeval Evaluation.
2.5 Alongside the estimation of the data recovery, Ontrack will inform the customer how much time is expected to be required to perform the data recovery, together with the applicable price.
2.6 At the Customer's request, Ontrack may, after the Freeval Evaluation, carry out an extended Diagnosis, subject to a fee, with the creation of a Verifile File List, in which the amount of data that is expected to be recoverable can be determined more precisely.
2.7 If the customer, on the basis of the results of the Freeval Evaluation, places the order for diagnosis or data recovery, Ontrack will perform the applicable service, either diagnosis (see section 4) or data recovery (see section 5).
2.8 The customer may decide not to perform the data recovery after the Freeval Evaluation in which case the order is complete. If so requested by the customer when the data recovery order is placed, the data carrier will be returned to the customer for the fee shown in the quotation form. Otherwise, the media will be destroyed.
2.9 Depending on the type of media, the Freeval Evaluation may lead to the transfer of the data to another medium and to the destruction of the original media.
3. Quotation for smartphones and tablets
3.1 Mobiles and Tablets do not require an evaluation. The first step is to provide Ontrack with information for Ontrack to determine the device type and whether the damage is logical and/or physical.
3.2 The customer is provided with a fixed price quotation for data recovery. Upon receiving the device, Ontrack will perform a diagnosis and provide a report to the customer specifying the amount of data Ontrack expects to recover. Ontrack requires the customer to supply the passcode for the smartphone or tablet. The customer may decide not to perform the data recovery after receiving the diagnosis report, in which case the process is complete.
3.3 If the customer decides to proceed with a data recovery, Ontrack will begin the data recovery.
4. Diagnosis/result of diagnosis
4.1 At the customer's request, Ontrack may perform a chargeable Diagnosis after the Freeval Evaluation to determine the amount of data that is likely to be recoverable. A Diagnosis may also be requested without the Free Evaluation.
4.1.1 In this Diagnosis the type and extent of the data damage, the exact determination of the possibilities of data recovery on the data carriers provided by the customer, and the quantity of the files/data that can probably be recovered shall be determined. Predictions about the readability of data due to other causes of damage are not always reliable or even possible and Ontrack does not offer any guarantee in this respect.
4.1.2 Further, it is not possible to check the usability of the data in connection with the respective application program within the scope of this Diagnosis.
4.2 The Diagnosis can be performed in the laboratory of Ontrack or it may be possible through a remote connection to the customers own systems (using the Ontrack RDR technology (see section 8)).
4.3 After the Diagnosis, Ontrack will inform the customer which measures are necessary for data recovery, which data/files can be expected to be recovered and what time expenditure is expected to be necessary.
4.4 Depending on the type of media, the Diagnosis may lead to the transfer of the data to another media and to the destruction of the original media.
4.5 Where possible, Ontrack will create a detailed file list (Verifile) of the data/files that Ontrack expects to recover. The file list contains an identification of the files with respect to their expected usability:
4.5.1 Green - the data will most likely work/open in the respective application.
4.5.2 Yellow - the data or files are partially corrupted - this may result in the files not being able to be opened and edited in the respective application. It is possible that the damaged files can be repaired but this is not part of the offered data recovery.
4.5.3 Red - the data or files are damaged - this will probably result in the files not being able to be opened and edited in the respective application.
4.6 There are special data loss scenarios in which the validity of the colored statements in the file list (Verifile) is not given. If this is the case, it is indicated in writing in the Diagnosis result.
4.7 If the customer decides on the basis of the file list to carry out the data recovery, section 5 below shall apply.
4.8 If the customer decides not to carry out the data recovery based on the file list (Verifile) in which case, the order is complete. If so requested by the customer when the order for diagnosis is placed, the data carrier will be returned to the customer for the fee shown in the analysis form. Otherwise, the media will be destroyed.
5. Data recovery after Freeval Evaluation
5.1 If the customer places an order for data recovery based on the results of the Freeval Evaluation and the data recovery offer, Ontrack will carry out the data recovery.
5.2 If the Freeval Evaluation was performed remotely, the data recovery can be performed with the Ontrack RDR technology (see section 8).
5.3 In addition to the separate data carrier with the recovered data, Ontrack shall return the damaged data carrier, if so requested by the customer when the order for data recovery is placed.
5.4 At the customer's request, the damaged data carrier can be stored and securely sealed at Ontrack for a separate charge for the purpose of preserving evidence and stored in the safe.
5.5 At the customer's request, Ontrack may delete and/or dispose of the data carrier in accordance with data protection regulations at no charge.
5.6 If the amount of data recovered is considerably less than that estimated in the Freeval Evaluation, the order will be deemed unsuccessful.
5.7 In circumstances specified in 5.6 above, the customer will have 2 options:
Option 1. Ontrack will create a detailed file list (Verifile) for the customer free of charge with the data/files that Ontrack expects
to be able to recover. The file list contains an indication of the files in terms of their expected usability:
5.7.1 Green - the data will most likely work/open in the respective application.
5.7.2 Yellow - the data or files are partially corrupted - this may result in the files not being able to be opened and edited in the respective application. It may be possible to repair the damaged files, but Ontrack does not offer this.
5.7.3 Red - the data or files are corrupted - this will probably result in the files not being able to be opened and edited in the respective application.
Option 2. The customer decides not to carry out the data recovery or request a file list (Verifile) in which case the order is complete. If so requested by the customer when the order for data recovery is placed, the data carrier will be returned to the customer for the fee shown in the quotation form. Otherwise, the media will be destroyed.
6. Data recovery after Diagnosis
6.1 If the customer places an order for data recovery on the basis of the diagnostic results and the data recovery offer, Ontrack will carry out the data recovery. In case the Diagnosis was performed remotely, the data recovery can be performed with the Ontrack RDR technology (see section 8).
6.2 The customer receives the data presented in the file list (Verifile).
6.3 In addition to the separate data carrier with the recovered data, Ontrack will return damaged data carrier, if so requested by the customer when the order for data recovery is placed.
6.4 At the customer's request, the damaged data carrier can be stored and securely sealed at Ontrack and stored in the safe against separate invoicing for the purpose of preserving evidence.
6.5 At the customer's request, Ontrack shall destroy the data carrier.
7. Data recovery for smartphones and tablets
7.1 If the customer places an order for data recovery based on the diagnosis report and data recovery offer, Ontrack will carry out the data recovery.
7.2 Upon payment, Ontrack will return the recovered data along with the damaged smartphone/tablet.
7.3 At the customer's request, Ontrack may delete and/or dispose of the smartphone/tablet in accordance with data protection regulations at no charge.
7.4 If only a partial data recovery is possible, the order will be deemed unsuccessful and the customer will not be charged for the data recovery. The smartphone/tablet can be returned to the customer for the fee shown in the quotation. Otherwise, the smartphone/tablet will be destroyed. If the customer wishes to receive the partial data, the fee is payable prior to Ontrack sending the data. The data is retained for thirty (30) days before it will be deleted.
8. RDR Remote Data Recovery Service
8.1 RDR® is for Remote Data Recovery™ (“RDR”). RDR is a patented technology, allowing Ontrack’s engineers to perform a lab-quality data recovery directly on the Customer’s server, desktop or laptop through a modem or Internet connection. The only requirement is that the storage device is operational. Ontrack’s RDR consists of three main components:
8.1.1 Communications client: The customer initiates a connection to an Ontrack RDR Server using the specially designed RDR Client software. The RDR Client works with commonly used Operating Systems. The drive(s) to be recovered do not need to be from a specific Operating System.
8.1.2 RDR servers: Locations around the world to facilitate connections.
8.1.3 RDR workstation: Used by Ontrack engineers to remote control our tools onto Customer’s machine and recover Customer’s valuable data.
8.2 First, the customer downloads the appropriate RDR Client version and installs it on the server, desktop or laptop that will be used for the recovery. Next, the Ontrack Client software connects as an outgoing TCP/IP connection from the Customer’s
location to the Ontrack server, creating a tunnel or point to point connection through the internet. Since the connection is likely to use a web connection, it can get through most firewalls without any additional configuration requirements.
Security of the data is paramount due to Ontrack’s proprietary communication protocol, encrypted packets and secure Ontrack facilities. RDR protects Customer data over an RDR connection four ways:
8.2.1 Direct connection to the RDR server: The client software uses a direct TCP connection from the customer’s machine to the Ontrack RDR server. RDR does not use a 3rd party hosting product
8.2.2 Encryption: The communication link uses 256 bit encryption on all packets
8.2.3 Proprietary protocol: The RDR communication uses a proprietary protocol, not HTTP or any other common protocol that others would understand
8.2.4 No customer data is transferred over the connection: The RDR connection is only used by the Ontrack engineer to remote control the Ontrack utilities directly on the customer’s machine. Screen updates and keyboard packets are sent across the connection, but actual customer data files are not. Instead the Ontrack engineer is controlling tools to repair file system structures to make the data accessible to the customer.
8.3 Once the connection is established, either the Freeval Evaluation, or if a data recovery order is made, the recovery service will commence.
9. Service Levels
9.1 For the data recovery order, the customer can choose between the following service levels according to urgency:
9.1.1 24-hour emergency service - Processing will take place immediately upon receipt of the order, 24 hours a day. The processing time is around the clock until completion and delivery of the data
9.1.2 Priority Service - Processing will take place immediately upon receipt of the order from Monday to Friday from 8.00 a.m. to 6.00 p.m. The processing time is usually 3-5 days.
9.1.3 Standard Service - The data carrier will be processed after receipt of the order from Monday to Friday between 9.00 a.m. and 5.00 p.m. The processing time is usually 7-10 working days.
9.1.4 Economy service - The data carrier will be processed after receipt of the order from Monday to Friday between 9.00 a.m. and 5.00 p.m. The processing time usually lasts 20 working days.
9.1.5 Home Service - The data carrier will be processed after receipt of the order from Monday to Friday between 9.00 a.m. and 5.00 p.m. The processing time is usually 30 working days.
9.2 The processing time may be adjusted depending on the circumstances of your recovery requirement. This will be advised by your Data Services Representative on your service contract.
Additional Mobile Unlock Service Terms
These additional mobile unlock service terms applicable to the mobile unlock service (“Additional Unlock Terms”) are supplemental to the Terms and Conditions for Ontrack Data Recovery Services (https://www.ontrack.com/en-gb/service-terms) (“Service Terms”) and are provided to You in connection with a request to unlock the mobile device specified in the fact sheet (“Device”) to enable the extraction and/or decoding of data and information from that mobile device (“Mobile Data”) (collectively, the “Unlock Service”). These Additional Unlock Terms apply only to an Order for the Unlock Service.
You hereby confirm that the undertakings and statements contained in these Additional Unlock Terms are irrevocable and that Ontrack is providing the Unlock Service in reliance upon the undertakings and statements set out below.
- These Additional Unlock Terms are entered into pursuant to the Service Terms between you and Ontrack in relation to an Order (as defined in the Service Terms) for the Unlock Service. In the event of any conflict or inconsistency between these Additional Unlock Terms and the Service Terms, these Additional Unlock Terms shall prevail over the Service Terms.
- Ontrack will commence the Unlock Service upon payment of the initial setup fee (set out in the payment table in the Order). The initial Setup Fee is not refundable and represents Ontrack’s reasonable initial costs in setting up and implementing the Unlock Service. Following completion of the Unlock Service, the Processing Fee shall be invoiced by Ontrack and is payable within 30 (thirty) days of invoice. The password for the Device and access to the Mobile Data shall not be provided until the invoice for the Processing Fee is paid by you. If you cancel the Order and any further fees are payable (see clauses 3 to 5 below), the cancellation fee is payable within 30 (thirty) days of invoice. The Device will not be returned until the cancellation fee is paid. Ontrack reserves the right to claim late interest at the statutory rate in the event that payment is not made on time.
- Cancellation as a Consumer. This form authorises Ontrack to begin the Unlock Service immediately. If you are a consumer and place an Order, you have a period of 14 days in which to cancel the Order. In this case, Ontrack will retain the Setup Fee as this represents Ontrack’s reasonable initial costs in setting up and implementing the Unlock Service. After 14 days, consumers can cancel the Order but will pay Ontrack a fee of £1,500 (inclusive of VAT). Cancellation is permitted until Ontrack confirms that it has successfully completed the Unlock Service, whereupon the Processing Fee becomes due and payable.
- Cancellation as a Business Customer. If you are a business customer, the cancellation fee is £1,450 (not including VAT at 20%). Cancellation is permitted until Ontrack confirms that it has successfully completed the Unlock Service, whereupon the Processing Fee becomes due and payable.
- For all customers, in the event that Ontrack does not successfully complete the Unlock Service within 120 days after the Order, no cancellation fees are chargeable but Ontrack shall retain the Setup Fee. In order to cancel, all customers should email or call Ontrack using the contact details provided or use the model cancellation form on our website.
- You hereby acknowledge and warrant to Ontrack that: (i) you are legally capable of entering into binding contracts; (ii) you have full authority, power and capacity to agree to these Additional Unlock Terms and if you are a Business Customer (defined in the Service Terms) have the appropriate legal authority to enter the Additional Unlock Terms; (iii) you are not seeking to utilise the Unlock Service with regards to legal cases dealing with divorce, probate, or criminal litigation; (iv) all the information that you provide to Ontrack in connection with the Order is true, accurate, complete and not misleading; (v) you are the legal owner of the Device or have explicit authorisation from the owner of the Device to grant permission to Ontrack to perform the Unlock Service; (vi) the possession of the Mobile Data by Ontrack will not breach any obligations or rights of any third parties; (vii) your supply of the Device and/or Mobile Data to us will not breach any applicable law; and (ix) your Device does not contain any material which will breach applicable law. We reserve the right to request documentary evidence of your ownership or legal right to authorise the Unlock Service including purchase receipts for the Device, legally binding Will and death certificates and we reserve the right to suspend or not commence the Unlock Service without receipt of such evidence.
- You acknowledge and agree that the provision of the Unlock Service may not be successful and that Ontrack may not be able to successfully unlock the Device. The Unlock Service shall be provided on an “as is” basis without any representation or warranty regarding the accuracy of the Unlock Service, its validity, utility, or completeness.
- You hereby undertake to use the unlocked Device or Mobile Data strictly for your own use. You will not utilise the unlocked Device or Mobile Data for any unlawful purpose, and Ontrack is not liable for your use of the Device or Mobile Data once received by you following completion of the Unlock Service.
- You acknowledge that the Unlock Service is provided by a supplier to Ontrack, Cellebrite. You expressly and irrevocably release and discharge Cellebrite, of and from all actions, causes of action, suits, obligations, damages as of the date hereof and thereafter in connection with the provision of the Unlock Services, whether in contract, custom, law or equity. However, nothing in this section shall preclude you from making any claim against Ontrack under applicable law arising from the Unlock Service.
- You expressly acknowledge, understand, and agree that the Unlock Services may require unlocking, obtaining the passcode, decrypting, accessing, and/or extraction of information or data (including transmission, storage, copying, or analyses), performed on an electronic device, including a portable electronic device such as a mobile phone or tablet, computer systems, programs, applications, servers, telecommunications or electronic communications systems, media, intellectual property (including, but not limited to, copyrightable material, trade secrets and know-how).
- You will indemnify and hold harmless Ontrack, its directors, officers, shareholders, employees and service partners (“Ontrack Indemnitees”), from and against all demands, claims, suits, losses, liabilities, damages, costs and expenses which may be made or brought against any of Ontrack’s Indemnitees, or which that Ontrack’s Indemnitee may suffer or incur, as a result of or arising from any breach, or deemed breach, of your obligations under these Additional Unlock Terms.
- Ontrack does not accept responsibility for any corruption of, or physical or other damage to, or destruction of the Device, that may occur, or invalidation of any manufacturer warranties in respect of the Device, either: prior to Ontrack receiving the Device; or in the course of Ontrack providing the Unlock Service where such damage, destruction, corruption or invalidation arises from Ontrack performing the Unlock Service in accordance the Additional Unlock Terms.