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 Pty Ltd ACN 112 851 591 with registered office at 9/28 Donkin St, West End QLD 4101, Australia (Ontrack, “ we”, “us” or “our”). Please read these Terms carefully before you request a Quotation. By requesting a Quotation, you agree to be bound by these Terms.
2 CONTACT DETAILS
2.1 How to contact us. You can contact us by telephoning our customer service team on 1800 872 259, by writing to us at Ontrack, 9/28 Donkin Street, West End, Queensland 4101 or ask.au@ontrack.com, or by contacting one of our representatives on our 'Live Chat' platform available on our Website.
3 INTERPRETATION
3.1 In these Terms the following definitions will apply:
(a) “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;
(b) "Contract" means as defined in Clause 4.4;
(c) "Data" means any data in electronic form of any description, including 'Personal Information', which is stored on the Equipment or otherwise provided to us by you or on your behalf;
(d) "Equipment" means your Media and, if applicable, Mobile Phone;
(e) "Fee" means the fee payable by you for the Services, as set out in the relevant Quotation;
(f) “Insolvency Event” means, in relation to a person, any of the following:
(i) the person, being an individual, commits an act of bankruptcy;
(ii) the person becomes insolvent;
(iii) the person assigns any of its property for the benefit of creditors or any class of them;
(iv) a receiver, receiver and manager, administrator, controller, provisional liquidator or liquidator is appointed to the person or the person enters into a scheme of arrangement with its creditors or is wound up;
(v) the holder of a Security Interest takes any step towards taking possession of or takes possession of any assets of the person or exercises any power of sale;
(vi) a judgment or order is made against the person in an amount exceeding $10,000 (or the equivalent in any other currency) and that judgment or order is not satisfied, quashed or stayed within 20 business days after being made;
(vii) any step is taken to do anything listed in the above paragraphs; and
(viii) any event that is analogous or has a substantially similar effect to any of the events specified in this definition in any jurisdiction.
(g) “Intellectual Property Rights” means any rights in or to any patent, copyright (including rights in computer software), database rights, registered design or other design right, utility model, trade mark (whether registered or not and including any rights in get up or trade dress), brand name, logo, service mark, trade or business name, domain name, eligible layout right, chip topography right and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not and wherever existing in the world, including all registrations, applications, renewals, extensions, continuations, divisions and re-issuances associated with, and all rights to apply for, any such rights.
(h) "Media" means storage media such as hard-drives, USB drive, laptop, computer or other devices;
(i) "Mobile Phone" means any mobile telephone;
(j) "Order" has the meaning given in clause 4.4;
(k) “Personal Information” means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
(l) “Privacy Laws” means all laws which regulate the access to or the use, disclosure, retention or processing of Personal Information including the Privacy Act 1988 (Cth), the Privacy and Data Protection Act 2014 (Vic), the Health Records Act 2001 (Vic), the Health Records and Information Privacy Act 2002 (NSW), and the Spam Act 2003 (Cth).
(m) "Quotation" has the meaning given in clause 4.2;
(n) "Services" means the data recovery services to be provided by us to you, as set out in an Order; and
(o) "Website" means our website at https://www.ontrack.com/en-au or such other website as we use to operate our business from time to time.
4 ORDER PROCESS
4.1 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.
4.2 We will: (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; (iii) the amount of Data (if any) likely to be recoverable on the Equipment; (iv) if you have submitted a broken Mobile Phone, whether a repair is possible to your Mobile Phone and what hardware, if any, needs to be repaired or replaced to restore any functionality to the Mobile Phone; (b) provide you with a quotation setting out the scope of Services based on our evaluation and applicable Fee; (c) provide you with an estimated completion date for the Services; and (d) the costs of returning the Equipment ("Quotation").
4.3 For other Services, such as remote data recovery (“RDR”) where you do not provide us with the Equipment to evaluate, or degaussing, the Quotation will consist of the work expected to be required by Ontrack to perform the Services.
4.4 Following receipt of our Quotation, you may at your option either: (i) accept the Quotation by signing a service request or statement of work containing the Quotation ("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, you authorise us to dispose of your Equipment in accordance with applicable law.
4.5 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").
5 OUR SERVICES
5.1 In consideration of the payment of the Fee, we will provide the Services to you. In providing the Services, we will: (i) use reasonable endeavours to retrieve, replicate, reconstruct, provide access to, convert, recover and return any recovered Data from the Equipment to you on an encrypted hard-drive or USB stick (or other hard-drive provided by you); (ii) if set out in the Order, 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. All Services will be provided according to the Service Descriptions.
5.2 Remote Data Recovery. In some cases, Ontrack may be able to perform a remote data recovery. If the Order contains remote data recovery services, you will be required to download and install the Ontrack RDR client software using the link provided by Ontrack. Once installed, you will be able 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 your Media. Your Data will not be transferred to Ontrack during this process.
5.3 Degaussing. If specified in the Order, 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. If specified in the Order, we will repair and restore functionality of the Mobile Phone so that you are able to use it in normal usage conditions.
5.5 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 charge you an additional amount for any extra work that is required by us as a result.
5.6 We will use our best endeavours to complete the Services by the estimated completion date, however we accept no responsibility, and will not be liable, for failing to complete the Services by the estimated completion date.
5.7 We may suspend, cancel or vary the Services: (i) if we encounter technical problems or technical changes are required; (ii) to reflect changes in relevant laws and regulatory requirements; (iii) if you required changes to the Services. If we cancel the Services, we will refund you for any Services paid for but not received. If we vary the Services, we will negotiate with you in good faith any variation to the Fee.
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. We do not 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 will at all times remain your property, and we 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). All Intellectual Property Rights subsisting in, relating to or arising out of the Services are owned by us, including any improvements, developments or enhancements made by or on behalf of either party to the Intellectual Property Rights.
6.2 You acknowledge and agree that these Terms do not transfer any right, title or interest in our Intellectual Property Rights in the Services to you or any other person.
6.3 You grant us a non-exclusive, non-transferable royalty free licence to use, disclose and reproduce the Data to the extent necessary for us to perform the Services.
7 MUTUAL TERMINATION RIGHTS
7.1 Without affecting any other right or remedy available to the Party, either Party may terminate the Contract with immediate effect by giving written notice if:
(a) the other Party commits a material breach of these Terms which is not capable of remedy or, if such breach is capable of remedy, fails to remedy that breach within a period of 7 (seven) days after being notified in writing to do so by the other Party. A failure to pay the Fee constitutes a material breach; or
(b) the other Party suffers an Insolvency Event.
7.2 On termination of the Contract, you must pay to us all amounts due and payable within 7 days.
8 CUSTOMER ACKNOWLEDGEMENTS
8.1 You represent and warrant to us that: (i) you have full legal capacity and power to enter into, and to exercise your rights and perform your obligations under these Terms and the Contract; (ii) you have full authority, power and capacity to agree to these Terms and 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 either own or otherwise have the right to use the Equipment and the Data (including the Intellectual Property Rights in the Data); (v) the supply of the Equipment and/or Data to us and the exercise by us of our rights under clause 6.3 will not infringe the rights (including Intellectual Property Rights) of any third parties; (vi) the supply of the Equipment and/or Data to us will not breach any applicable law; (vii) you are authorised and legally permitted to grant access to the Data; (viii) the Equipment and Data does not and does not contain any material which may infringe the Intellectual Property Rights of any third party; and (ix) the Equipment and Data does not contain any material which will breach applicable law. You must provide documentary evidence of your ownership or legal right to the Equipment and/or Data on request in such form acceptable to us and we may suspend or not commence the provision of Services without receipt of such evidence.
8.2 You 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, be responsible for any existing or additional damage to your Equipment and/or Data, unless caused by our negligence.
9 PRICE AND PAYMENT
9.1 The price for the Services will be the Fee as set out in the relevant Quotation.
9.2 We will render an invoice at the times specified in the Quotation and you must pay the invoiced amounts.
9.3 We will retain the Equipment and Data (including any recovered Data) until you make payment in full. If an amount is outstanding 90 or more days after the due date for payment, we may, without liability or consulting you further, and without limiting our other rights, dispose of your Equipment and/or Data in accordance with applicable law. We may also charge you and you must pay interest on the overdue amount at the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic) plus 2%. Interest will accrue on a daily basis from the due date until the date of actual payment of the overdue amount.
10 OUR RESPONSIBILITY FOR LOSS OR DAMAGE SUFFERED BY YOU
10.1 We do not accept responsibility for any corruption of, or physical or other damage to, or destruction of your Equipment, your Data, or any other equipment that may occur, or invalidation of any warranties in respect of your Equipment or other equipment, either: prior to our receiving your Equipment, your Data, or other equipment; or in the course of our providing the Services unless and only to the extent such damage, destruction, corruption or invalidation arises from our negligence.
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 negligence or the negligence of our employees, agents or subcontractors; for fraud or fraudulent misrepresentation; and for non-excludable consumer guarantees.
10.3 Subject to the provisions of this clause 10, and to the maximum extent permitted by law, our total liability to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with these Terms and any Contract shall be limited to the aggregate amount of the total Fees paid by you under the Contract.
10.4 To the extent permitted under applicable law, and notwithstanding any other provision of these Terms, we are not responsible for indirect damages or losses (included, but not limited to, consequential losses, special or incidental losses, loss of profits or revenues, disruption of operations, loss or misuse of business information; loss of or damage to data; loss of time on the part of management or other staff; professional fees or expenses (except for reasonable legal fees resulting from any dispute awarded by any court or tribunal of competent jurisdiction) or any indirect, special, incidental, exemplary, extraordinary, punitive, or consequential loss or damages of any kind whatsoever).
10.5 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 third party couriers. You agree to us using third party couriers for this purpose and you agree that any loss or damage to the Equipment or Data while under or in the courier’s possession or control will be expressly subject to the terms and conditions provided by the applicable courier. You waive all right to bring any claim against Ontrack for any loss or damage to Data or Equipment while under or in the courier’s possession or control.
11 INDEMNITY
11.1 You 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, or omissions of a breach by you of a Contract and these Terms.
12 HOW WE MAY USE YOUR PERSONAL INFORMATION
12.1 The Parties will comply with all applicable Privacy Laws.
12.2 We will use the Personal Information you provide to us to supply the Services to you and to process your payment for the Services. Providing your Personal Information is voluntary, however, Ontrack may be unable to provide the Services if you choose not to provide your Personal Information or withdraw consent at any time. We collect your Personal Information: (i) when you contact us via email, telephone or by any other means and (ii) in the ordinary course of providing Services (including Personal Information we obtain in the course of administering your payments).
12.3 We will collect, store, use and disclose Personal Information in accordance with the terms of Ontrack’s privacy policy https://www.ontrack.com/en-au/privacy-policy.
12.4 We may disclose your Personal Information 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.
12.5 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 Information; (ii) rectify your Personal Information; (iii) request, on legitimate grounds, erasure or restriction of processing of your Personal Information; (iv) object, on legitimate grounds, to the processing of your personal data; (v) request to have your Personal Information transferred to another controller; (vi) withdraw your consent to processing of Personal Information; and (vii) lodge complaints with the applicable Data Protection Authority.
12.6 You must, to the extent that you provide Personal Information to Ontrack in connection with these Terms and a Contract, ensure you have all necessary rights, have received all necessary consents, and have provided all necessary notices, required by Privacy Laws in order to provide that Personal Information to Ontrack and for Ontrack to collect, access, use, disclose and otherwise handle that Personal Information in the manner contemplated by these Terms and a Contract, including the privacy policy.
13 HOW WE PROCESS PERSONAL INFORMATION (RECOVERED DATA)
13.1 By agreeing to these Terms, in respect of any recovered Data, you also agree to the storage and use of your Personal Information pursuant to the terms of our Privacy Policy available at https://www.ontrack.com/en-au/privacy-policy.
14 CONFIDENTIAL INFORMATION
14.1 Each party agrees to not disclose any Confidential Information of the other party to any third party without the prior written authorisation 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.
14.2 Confidentiality obligations will 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.
15 CONSUMER GUARANTEES
15.1 If any consumer guarantee under Division 1 of Part 3-2 of the Australian Consumer Law (Consumer Guarantee) applies to any goods provided by Ontrack to you under these Terms, to the extent permitted by law, Ontrack limits its liability for failure to comply with a relevant Customer Guarantee (other than a guarantee under section 51, 52 or 53 of the Australian Consumer Law) to one or more of the following, at Ontrack’s election:
(a) the replacement of the goods or the supply of equivalent goods;
(b) the repair of the goods;
(c) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(d) the payment of the cost of having the goods repaired.
15.2 Clause 15.1 does not apply to goods that are of a kind ordinarily acquired for personal, domestic or household use or consumption.
15.3 If any Consumer Guarantee applies to any services provided by Ontrack to you under these Terms, to the extent permitted by law, Ontrack limits its liability for failure to comply with a relevant Consumer Guarantee to one of the following, at Ontrack’s election:
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again.
15.4 No provision in these Terms will have the effect of excluding, restricting or modifying the application of any Consumer Guarantee to the extent that such exclusion, restriction or modification is not permitted by the Australian Consumer Law.
15.5 In clauses 15.1 to 15.4, Australian Consumer Law means the Australian Consumer Law set out at Schedule 2 to the Competition and Consumer Act 2010 (Cth).
16 GST
16.1 In this clause 16:
(a) words and expressions that are not defined in these Terms but which have a defined meaning in the GST Law have the same meaning as in the GST Law; and
(b) GST Law has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
16.2 Except as otherwise provided in these Terms, all consideration payable under these Terms in relation to any supply is exclusive of GST.
16.3 If GST is payable in respect to any Services provided by a Ontrack under these Terms (GST Amount), You must pay to Ontrack an amount equal to the GST payable on the Services. Subject to clause 16.4, You must pay the GST Amount at the same time and in the same manner as the consideration for the Services to be provided under these Terms in full and without deduction, set off, withholding or counterclaim (unless otherwise provided in these Terms).
16.4 Ontrack must provide a tax invoice to You before Ontrack will be entitled to payment of the GST Amount under clause 16.3.
16.5 If these Terms require a party to pay, reimburse or contribute to any expense, loss or outgoing suffered or incurred by another party, the amount which the first party must pay, reimburse or contribute is the sum of:
(a) the amount of the payment, reimbursement or contribution, less any input tax credit in respect of the payment, reimbursement or contribution to which the other party is entitled; and
(b) if the payment, reimbursement or contribution is subject to GST, an amount equal to that GST.
16.6 If an adjustment event occurs in relation to a taxable supply under these Terms;
(a) the Ontrack must issue an adjustment note to Youwithin 7 days after becoming aware of the adjustment; and
(b) any payment necessary to give effect to that adjustment must be made within 7 days after the date of receipt of the adjustment note.
17 DISPUTE RESOLUTION
17.1 A party must not start court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of these Terms or a Contract unless that party has complied with this clause 17.
17.2 A party claiming that a dispute has arisen in respect of these Terms or a Contract must notify the other party’s Chief Executive Officer.
17.3 During the 10 day period after notice is given under clause 17.2 (or such longer period as agreed to in writing by the key contacts) the parties must use all reasonable endeavours to resolve the dispute.
17.4 A party who has complied with clause 17.3 may terminate the dispute resolution process by giving notice to the other party, and on such termination, may institute such legal proceedings as the party deems appropriate.
18 OTHER IMPORTANT TERMS
18.1 A Contract is between you and us. No other person has any rights to enforce any of its terms. Each of the clauses in these Terms operate separately. If any court or relevant authority decides that any of them are unlawful and/or unenforceable, the other clauses remain in full force and effect. The failure or delay by a party at any time to exercise or enforce any of its powers, remedies or rights under these Terms will not be deemed to be a waiver of such powers, remedies or rights and will not affect the party’s rights to enforce those powers, remedies or rights at any time.
18.2 We may amend these Terms by notice to you, which take effect from the date of the notice. If you do not accept these new Terms, you may terminate the Contract by notice to us within 7 days of the notice. If you continue to perform your obligations under the Contract, you are deemed to have accepted the new Terms. If you terminate under this clause:
(a) we will refund you for any Services paid for but not received; and
(b) you must pay to us all amounts due and payable within 7 days.
18.3 These terms are governed by Victorian law and each Party may bring legal proceedings in the courts of Victoria, Australia.
Effective: 1 May 2021
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