Customer engages Ontrack and/or its suppliers to: inspect, evaluate, and identify the problem (if not already identified); and/or retrieve, or minimise the damage to, the equipment/data/media; and/or provide other services as may be requested by Customer from time to time.
In the performance of the Services, the parties will have access to information which may include information, data or materials relating to a party’s products and services, technology, business plans, prices, financial information, marketing plans, and other trade secret or proprietary information (“Confidential Information”). The party disclosing such information under this Agreement is referred to as “Disclosing Party” and the party receiving such information is referred to as the “Receiving Party.”
Receiving Party agrees to: (i) use such Confidential Information only for the purposes of carrying out its obligations pursuant to this Agreement; (ii) to 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) to disclose Confidential Information to its employees only on a need-to-know basis. Confidentiality obligations shall not apply to any information which (i) enters the public domain through no fault of the Receiving Party; (ii) which was known to Receiving Party prior to receipt from Disclosing Party; (iii) which is disclosed to Receiving Party by a third party (other than employees or agents of either party) which in making such information available to Receiving Party is not in violation of any confidentiality obligation to Disclosing Party; or (iv) which is independently developed by Receiving Party without recourse to Confidential Information. Notwithstanding the foregoing, Ontrack will employ appropriate technical and organizational measures to safeguard personal data and will act only on the instruction of the Customer with respect to such personal data. Ontrack is part of a worldwide organization and Customer hereby agrees to the transfer of Customer’s data, including any personal data, to Ontrack affiliates and suppliers worldwide as needed for the sole purpose of performing the Engagement.
In the event that Receiving Party is served with a subpoena, request for information or documents or similar legal process (“Request”) Receiving Party will provide the Disclosing Party with prompt notice of the Request so that Disclosing Party may seek a protective order or otherwise seek to limit or protect such Confidential Information and/or documents from disclosure. If Ontrack is required to respond to a Request to produce documents or provide testimony in connection with this Engagement, Customer agrees to compensate Ontrack for all costs and expenses incurred, including, without limitation, paying Ontrack’s hourly rates for responding to discovery requests and preparing for and testifying in depositions, administrative proceedings and at trial.
Acknowledgment of Existing Conditions
Customer acknowledges and agrees that the equipment/data/media may be damaged prior to Ontrack receipt, and that the efforts of Ontrack to complete the Engagement may result in the destruction of or further damage to the equipment/data/media. Ontrack will not be liable for additional damage that may occur to the Customer's equipment/data/media during Ontrack efforts to complete the Engagement. Customer acknowledges and agrees that the provision of the services by Ontrack may not result in the complete recovery of the data.
NO WARRANTIES; IMPLIED TERMS
Except where required by law, Ontrack will be under no liability to the Customer in respect of any loss, cost, expense or damage (including consequential loss or damage, loss of profits or economic loss) which may be suffered or incurred directly or indirectly in respect of any services supplied under this Agreement; and any condition or warranty which would otherwise be implied in this agreement is hereby excluded.
Limitation of Liability; Limitation of Damages
To the extent permitted by law, in no event will Ontrack be liable for any damages whatsoever, including without limitation damages for loss or damage occurring in transit, loss of data, loss of business profits, business interruption, or other pecuniary loss, or incidental, consequential or indirect damages arising from the Engagement, even if Ontrack or an authorised representative has been advised of the possibility of such damages. Customer acknowledges that the estimated and actual fees and charges reflect this limitation of liability and allocation of risk. The parties agree the total liability of Ontrack to Customer under this Agreement shall in no event exceed the total sums paid by Customer to Ontrack.
Customer’s Representation and Indemnification
Customer warrants to Ontrack that it is the owner of, and/or has the right to be in possession of, all equipment/data/media provided to Ontrack, and that Customer’s collection, possession, processing and transfer of such equipment/data/media is in compliance with data protection and privacy laws to which Customer is subject. The Customer indemnifies Ontrack from any expense (including reasonable legal fees), damage or liability arising out of any claim, demand or suit resulting from a breach of the Customer’s warranties. Customer further represents and warrants that all items provided to Ontrack under this Agreement: (i) are not subject to any Hong Kong or applicable export licensing requirements or that Customer has obtained all required licenses; and (ii) all such items are freely exportable by ONTRACK, as applicable, without restriction.
Intellectual Property Rights.
Ontrack retains all right, title and interest in and to all computer software, computer code, technology, know-how, tools, inventions, discoveries or processes used or developed to perform the Services under any Engagement.
Software License to Access Data.
To the extent Ontrack requires access to or use of any software owned and/or licensed by Customer in order to access Customer’s data (“Software”), Customer grants to Ontrack a limited, non-exclusive, revocable license to use such Software on Customer’s data storage devices provided to Ontrack hereunder solely for the purpose of enabling Ontrack’s access to such data in order to perform the requested Services. Such Software and any associated access keys or codes shall be considered Confidential Information hereunder.
This agreement will be construed in accordance with and will be governed by the laws in force in the Hong Kong. Each of the parties irrevocably submits to and accepts the exclusive jurisdiction of any of the Courts of the Hong Kong and any courts of appeal from these courts; provided, however, that if any provision of this Agreement is in violation of any applicable law, such provision shall to such extent be deemed null and void and severed herefrom, and the remainder of the Agreement shall remain in full force and effect. Except for the obligation to make payments, nonperformance of either party shall be excused to the extent performance is rendered impossible due to causes beyond such party's reasonable control. This Agreement, together with any exhibits or other attachments provided by Ontrack, constitutes the entire Agreement between the parties in relation to this subject matter and supersedes all other terms including any Customer purchase order terms. Any items which have not been claimed and paid for within ninety (90) days after the date of completion of the Engagement will be considered abandoned by the Customer and may be disposed of (including all data/media containing data) in the sole discretion of Ontrack or may be subject to a storage fee unless prior arrangements have been secured.