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 Pte Ltd (registered number: 20-0001181-C with registered office at 3 International Business Park, #02-27, Nordic European Centre, Singapore, 609927 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.
2.1 How to contact us. You can contact us by telephoning our customer service team on +65 3158 5817, by writing to us at Ontrack, 3 International Business Park, #02-27, Nordic European Centre, Singapore, 609927 or firstname.lastname@example.org, or by contacting one of our representatives on our 'Live Chat' platform available on our Website.
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 Singapore Personal Data Protection Act;
(f) "Fee" means the fee payable by you for the Services, as set out in the relevant Quotation;
(g) "Media" means storage media such as hard-drives, USB drive, laptop, computer or other devices;
(h) "Order" means as defined in Clause 4.3;
(i) "Quotation" means as defined in Clause 4.1;
(j) "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
(k) "Website" means our website at www.ontrack.com/en-sg or such other website as we use to operate our business from time to time.
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 Media for our evaluation. We will use reasonable endeavours to: (a) examine the Media to determine: (i) what Data is accessible on the Media: (ii) the cause of any damage to the
Media and/or the Data on the Media; (iii) the amount of Data (if any) likely to be recoverable on the Media; ("Free Evaluation"); (b) report the results of our Free Evaluation to you. We will provide you with a quotation setting out the scope of Services and applicable Fee ("Quotation").
4.2 For other Services, such as remote data recovery (“RDR”) where you do not submit any Media to us, or degaussing, the Quotation shall consist of the work expected to be required by Ontrack to perform the Services.
4.3 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 Media (if applicable), the delivery cost of which you agree to pay; or (iii) submit a request for us to destroy your Media, in which case we will be permitted to immediately destroy your Media. If we do not receive an Order or request to return your Media within 90 (ninety) calendar days of the date of the Quotation, we will dispose of your Media in line with applicable law.
4.4 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 In consideration of your payment of the Fee, we 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) and 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 or USB stick with your recovered data from Ontrack, we urge you to immediately check the hard-drive or USB stick 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. Remote Data Recovery. Where you wish Ontrack to perform a data recovery for those occasions when submitting any Media 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.
5.2 Degaussing. Ontrack will place your Media into a degaussing unit which is a machine which effectively and securely scrambles the magnetic data held on the Media. Following the degaussing process, the Data is no longer readable and will have been securely destroyed.
5.3 You will be informed of the estimated completion date of the Services during the Order process. The costs of returning the Media will be as set out on the relevant Quotation.
5.4 For some Services, we may need certain information from you such as user names, passwords and/or access codes. If you do not provide this information within a reasonable time of our request, or if you provide incomplete or incorrect information, we may make an additional charge of a reasonable sum to compensate us for any extra work that is required as a result. We will not be responsible for supplying the Services late or not supplying any part of them if this is caused by you not giving us the information we need.
5.5 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; or (iii) make changes to the Services as requested by you. We may also suspend supply of the Services if you do not pay.
5.6 While we use approved original Media manufacturer repairs, we offer no guarantee that the Services will be consistent with any warranty offered by the original Media 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, or that we will achieve any other particular result.
5.7 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 Media and Data shall at all times remain your property, and we shall have no right, title or interest in or to them (except the right to possession and use of your Media and Data to perform the Services). We retain all right, title and interest in the provision of the Services, including any improvements or enhancements made to the Services.
7 RIGHTS TO END A 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 are explained in more detail below.
7.2 During the Free Evaluation, you can cancel at any time. If you place an Order, 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 +65 3158 5817 or email us at email@example.com;
(b) By post. write to us at Ontrack, 3 International Business Park, #02-27, Nordic European Centre, Singapore, 609927; 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.
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.
9.1 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 ACKNOWLEDGEMENTS
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 Media and/or have the permission from the owner of the Media for us to perform the Services; (v) your supply of your Media and/or Data to us will not breach any obligations or rights of any third parties; (vi) your supply of your Media and/or Data to us will not breach any applicable law; (vii) you are legally permitted to grant access to the Data; (viii) your Media does not contain any material (including without limitation any Data) which may infringe the intellectual property rights of any third party; and (ix) your Media 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 Media and/or Data may already be damaged prior to our receipt of them, and that our efforts to complete the Services may result in the destruction of, or any further damage to, your Media 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 Media 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. GST 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 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 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 Media 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 Media 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.
12.1 We do not accept responsibility for any corruption of, or physical or other damage to, or destruction of your Media, your Data, or any other Media that may occur, or invalidation of any warranties in respect of your Media or other Media, either: prior to our receiving your Media, your Data, or other Media; or in the course of our providing the Services where such damage, destruction, corruption or invalidation arises from our performing the Services in accordance these Terms.
12.2 Whilst we will use reasonable endeavours to take care of your Media or Data whilst in our possession, we will not be responsible to you if any of your Media or Data is lost, destroyed, corrupted or otherwise damaged through fair wear and tear.
12.3 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 Consumer Customers, for breach of your legal rights in relation to the Services and for defective Services under the Consumer Protection (Fair Trading) Act (Cap 52A).
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 SGD 184,000.00 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.
12.5 Neither Party shall be liable to the other, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with these Terms or any Contract for any indirect or consequential loss, loss of profits or loss of sales or business.
12.6 Use of Couriers. In collecting your Media prior to the commencement of the Services, or in delivering the recovered Data and/or original Media, 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 Media or Data shall be expressly subject to the terms and conditions provided by the applicable courier company, including limitations of liability and compensation limits. You hereby waive all right to bring any claim against Ontrack for any loss or damage to Data or Media arising from negligence and/or breach of contract by the courier company beyond any compensation scheme set out by them.
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.
14.4 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.
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 attached.
16 CONFIDENTIAL INFORMATION
16.1 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.
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.
17.1 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.
17.2 We may change the Services to reflect changes in relevant laws and regulatory requirements and to implement minor technical adjustments and improvements, for example to address a security threat. These changes will not affect your use of the Services. In addition, we may make more material changes to these Terms or the Services, but if we do so we will notify you and you may then contact us to end the Contract before the changes take effect and receive a refund for any Services paid for but not received.
17.3 These terms are governed by Singapore law and each Party may bring legal proceedings in the courts of Singapore.
Data Processing Agreement
In this Annex:
|means an "organisation" as defined in the Data Protection Laws who collects, uses and discloses personal data;
|has the meaning given to that term (or to the term ‘data intermediary’) in Data Protection Laws;
|Data Protection Laws
|means all applicable data protection law binding on the Client, Ontrack and/or in relation to the data recovery services including: (i) the Personal Data Protection Act 2012 (No. 26 of 2012).
|means an "individual" as defined in the 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;
|has the meaning given to that term in Data Protection Laws and is data contained within the Media and subsequently restored by Ontrack;
|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;
|means any current, former or prospective employee, consultant, temporary worker, agency worker, intern, other non-permanent employee, contractor, secondee or other personnel;
|has the meaning given to that term in Data Protection Laws (and related terms such as process have corresponding meanings);
|means another Processor engaged by Ontrack on behalf of the Client for carrying out Processing activities in respect of the Personal Data. This does not include ancillary services, such as telecommunication services, generic 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
|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
1.1 The Parties agree that, in respect of Personal Data, the Client shall be the Controller and Ontrack shall be the Processor. It is acknowledged that the Client 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 Client warrants, represents and undertakes, that: (i) all Personal Data used in connection with the Services 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 Annex.
1.3 Ontrack warrants, represents and undertakes, that it shall: (i) process the Personal Data only to the extent necessary in connection with the Services; and (ii) process the Personal Data in accordance with the Client’s documented instructions and the requirements of Data Protection Laws; (iii) promptly inform the Client if Ontrack considers that the Client’s instructions infringe Data Protection Laws, or if Ontrack becomes unable to comply with Client's instructions regarding the Processing of Personal Data (whether as a result of a change in applicable law, or a change in Client’s instructions); and (iv) comply with the terms of this Annex.
2.1 The Processing of Personal Data to be carried out by Ontrack under this Annex shall comprise the Processing as required for Ontrack to provide the Services being: and set out in Appendix 1 attached.
3.1 Ontrack shall implement and maintain, at its cost and expense, appropriate technical and organisational measures in relation to the Processing and security of Personal Data in accordance with Data Protection Laws . Ontrack shall ensure that such technical and organisational measures are appropriate to the particular risks that are presented by its Processing activities, in particular to protect Personal Data from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access.
4.1 Ontrack shall not engage any Sub-processor for carrying out any processing activities in respect of the Personal Data without the Client’s prior written authorisation. In the event that authorisation is provided, prior to making any disclosure to any approved sub-processor, Ontrack shall put in place a written agreement with the sub-processor which are equivalent to those set out in this Agreement. It is acknowledged and accepted that, notwithstanding anything to the contrary in this Agreement, Ontrack shall remain fully liable to the Client for the performance of each sub-processor’s obligations. Ontrack shall inform the Client of any intended changes concerning the addition or replacement of such sub-processors and allow Client a reasonable opportunity to object, on reasonable grounds, to any such changes or replacements.
4.2 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 data recovery 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.
5.1 Ontrack shall promptly refer all Data Subject Requests it receives to the Client. Ontrack shall provide such reasonable assistance as the Client reasonably requires (taking into account the nature of Processing and the information available to Ontrack) to the Client in ensuring compliance with the Client’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; (iv) notifications to the Supervisory Authority and/or communications to Data Subjects by the Client in response to any Personal Data Breach; and (v) the processing of Data Subject Requests.
7.2 Ontrack shall grant to Client 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 Client 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 Media where only visual and accompanied inspection is permitted.
7.3 Ontrack shall at Client’s request and expense promptly provide Client with all information necessary to enable Client to demonstrate compliance with its obligations under Data Protection Laws, to the extent that Ontrack is able to provide such information.
8.1 In respect of any Personal Data Breach, Ontrack shall, without undue delay: (i) notify the Client of the Personal Data Breach; and (ii) provide the Client with details of the Personal Data Breach.
9.1 Ontrack shall, at the Client’s written request, either delete or return all the Personal Data to the Client in such form as the Client reasonably requests within a reasonable time after the earlier of: (i) the end of the provision of the Services; or (ii) once Processing by Ontrack of any Personal Data is no longer required for the purpose of Ontrack’ performance of its relevant obligations under this Annex, and delete existing copies (unless storage of any Personal Data is required by applicable law and, if so, Ontrack shall inform the Client 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’ possession or control for any period longer than 12 (twelve) months without any active instructions from the Client, 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.
11.1 Unless terminated by agreement of the Parties, this Data Processing Agreement shall continue in force for so long as Ontrack continues to process Personal Data.
12 CHOICE OF LAW
12.1 This Data Processing Agreement shall be subject to the terms of the choice of law provision set out in the Terms.
Appendix 1 – Processing Instructions
|1. Subject Matter of Processing
|Data Recovery efforts and data extraction as described in the agreement
|2. Duration of Processing
|Term of the Agreement
|3. Nature and Purpose of Processing
|Purposes of DATA RECOVERY
|4. Type of Personal Data
|All types of personal data
|5. Categories of Data Subjects
|CATEGORIES WITHIN MEDIA PROVIDED
|6. Processing Instructions
|As set out in the TERMS