ONTRACK TERMS AND CONDITIONS FOR DISABLED PHONE SERVICES
1. THESE TERMS
1.1 Unless otherwise agreed to in writing, these terms and conditions ("Terms") in accordance with the applicable Representation Waiver (“Waiver”) and Data Processing Addendum (“DPA”) govern the supply of services to You (“You”) by KLDiscovery Ontrack, LLC, d/b/a “Ontrack” (“Our”, “We”, or “Services”).
2. ORDER PROCESS
2.1 Following an initial telephone consultation, or submission of an online form via www.ontrack.com or such other website We operate (“Website”), We will provide You with a quotation setting out the scope of Services and applicable fee via a service order (“Order”), which will include applicable charges and actual expenses ("Quotation"). Upon execution of the Order, Waiver, and DPA, as well as the initial non-refundable payment for the services, You will send us your Phone or other device (“Media”) for Our evaluation. We will inspect your Media and, as soon as reasonably possible, and advise if We are able to perform the Services.
3. OUR PERFORMANCE OF THE SERVICES
3.1 In consideration of your payment of the Fee, We will provide the Services in accordance with these Terms and with commercially reasonable care and skill. You will be informed of the estimated completion date for Our Services during the order process. The costs of returning of the Equipment will be as set out on the relevant Quotation.
3.2 For some Services, We may need certain information from You such as user names, passwords and/or access codes, as applicable. 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.
3.3 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.
4. OUR SERVICES
4.1 We will use commercially reasonable endeavors to: (a) examine the Media to determine if Our services or the services of Our third parties will be able to enable the disabled phone.
4.2 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. INTELLECTUAL PROPERTY RIGHTS
5.1 Your Media and its internal data (“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 and any third parties as applicable, retain all right, title and interest in the provision of the Services including any intellectual property used to provide the Services, including any improvements or enhancements made to the Services.
6. MUTUAL TERMINATION RIGHTS
6.1 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: (i) 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 days after being notified in writing to do so or repeatedly breach these Terms. A failure to pay a Fee due to us shall constitute a material breach; or (ii) ceases (or threatens to cease) to trade all or part of its business, has a liquidator, receiver or administrative receiver appointed to it or over any part of its undertaking or assets or passes a resolution for its winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction where the resulting entity shall assume all of the liabilities of it) or a court of competent jurisdiction makes an administration order or liquidation order or similar order, or enters into any voluntary arrangement with its creditors, or is unable to pay its debts as they fall due. Following termination, You shall be responsible for all sums owing to us which shall become payable immediately.
7. CUSTOMER ACKNOWLEDGEMENTS
7.1 You hereby acknowledge and warrant to us that: (i) You are legally capable of entering into binding contracts; (ii) You have full authority, power and capacity to agree to these Terms and if You are acting on behalf of a business, have the appropriate legal authority to enter into the Contract for the business which You represent; (iii) all the information that You provide to us in connection with your Order is true, accurate, complete and not misleading; (iv) You are the owner of the Media and have given permission from for us to perform the Services; (v) your supply of your Media and/or Data to us will not breach any obligations or rights of any third parties; (vi) your supply of your Media and/or Data to us will not breach any applicable law; (vii) You are legally permitted to grant access to the Data and/or any password, software, or codes required to perform the Services; (viii) your Media does not contain any material (including without limitation any Data) which may infringe the intellectual property rights of any third party; (ix) your Media does not contain any material which will breach applicable law, and (x) your Media does not contain any Data that is subject to preservation requirements, whether due to litigation, bankruptcy proceedings, creditor’s rights, or statutory or regulatory requirements (including without limitation 45 C.F.R.164.306 – protected health information). We reserve the right to request documentary evidence of your ownership or legal right to authorize the Services and to suspend or not commence the Services without receipt of such evidence.
7.2 You hereby acknowledge and understands that there are legal repercussions under applicable law in obtaining personal information belonging to others and providing fraudulent statements to obtain a service, and that Our agreement to provide You with the Services is solely based on Your compliance with and affirmative acceptance of the statements and representations above. You warrant that you are not on any Watch Lists or barred entity/individual lists prohibiting us from providing services to you. In the event you are on a watch list or a barred entity/individual list, We will refuse to provide the services to you and shall return the Media at your cost. You hereby acknowledge that your Media and/or Data may already be damaged prior to Our receipt of them, and that Our efforts to complete the Services may result in the destruction of, or further damage to, your Media and/or Data. We will take commercially reasonable care in performing the Services, but will not, save as specified in Clause 11 of these Terms, bear any responsibility for existing or additional damage that may occur to your Media and/or Data during Our performance of the Services.
8. PRICE AND PAYMENT
8.1 The price of the Services will be the initial fee and the Service fee as set out in the relevant Quotation. The Fee shall be payable prior to the Services commencing, aa aww will then will invoice You the remainder Service Fees when We have completed the Services. You must pay the initial fee immediately and each invoice within 30 calendar days after the date of the invoice. You will be responsible for and indemnify Us against all sales, use, and excise taxes, and like charges imposed with respect to these Terms and any Services provided hereunder, except for taxes based on Our net income.
8.2 Payment by any credit card or debit card is subject to authorization by the card issuer. If such authorization is refused to us, We will not be liable for any delay or non-delivery of the Services and the Order will be deemed to be cancelled.
8.3 If You fail to pay to us any amount due under these Terms in accordance with the provisions of these Terms We may retain the Media and Data until You make full payment. If You do not make full payment within 30 (thirty) calendar days of the due date We may consider the Media and Data to be abandoned. If your Media and Data is considered abandoned by us, We may, in accordance with applicable law, dispose of your Media and Data. Any such disposal of Media and/or Data shall be applicable to the deletion of any records held by us. We reserve any and all statutory or other lawful liens, ownership transfer rights, or remedies available to us for abandoned property and unpaid fees. We will also charge interest to You on the overdue amount at the rate of 1-1/2% per month, or the maximum as allowed by local law, whichever is less. This interest will accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment.
9. WARRANTY.
9.1 THE SERVICES ARE PROVIDED "AS IS" WITHOUT ANY WARRANTIES WHATSOEVER, AND YOU ARE NOT RELYING ON ANY DESCRIPTIONS, STATEMENTS, SPECIFICATIONS, OR ILLUSTRATIONS REPRESENTING THE SERVICES. WE DO NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE PROVIDED ERROR FREE, SECURELY, TIMELY, AND UNINTERRUPTED. WE HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. YOU ACKNOWLEDGE THAT NO EMPLOYEE OF OURS IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF US THAT IS NOT IN THESE TERMS. SOME JURISDICTIONS MAY NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES OR TO SELL A CONSUMER PRODUCT OR SERVICE “ASIS,” SO THIS EXCLUSION MAY NOT APPLY TO YOU.
10. OUR RESPONSIBILITY FOR LOSS OR DAMAGE SUFFERED BY YOU
10.1 We do not accept responsibility for any corruption of, 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 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.
10.2 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 SERVICES SHALL BE LIMITED TO (I) IN CASES OF BREACH OF CONFIDENTIALITY, DATA PROTECTION OR INTELLECTUAL PROPERTY, THE GREATER OF $10,000 (TEN THOUSAND DOLLARS) OR THE VALUE OF THE FEE PAYABLE UNDER THE APPLICABLE CONTRACT; OR (II) IN ANY OTHER CASE, THE VALUE OF THE FEE PAYABLE UNDER THE CONTRACT.
10.3 WE SHALL NOT HAVE ANY LIABILITY WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), FOR BREACH OF STATUTORY DUTY, OR OTHERWISE, ARISING UNDER OR IN CONNECTION WITH THESE TERMS OR ANY CONTRACT FOR ANY INDIRECT OR CONSEQUENTIAL LOSS, PECUNIARY LOSS, LOSS OF DATA, LOSS OR DAMAGE DURING TRANSIT, BUSINESS INTERRUPTION, LOSS OF PROFITS OR LOSS OF SALES OR BUSINESS, OR THE PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR THE COST THEREOF EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
10.4 Use of Couriers. In collecting your Media and/or Media prior to the commencement of the Services, or in delivering the recovered Data, original Media, We outsource such service to nationally recognized 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.
11. INDEMNITY
11.1 You shall indemnify us in full against and hold us harmless from all claims, costs, damages, losses, liabilities, expenses (including without limitation legal expenses) demands, settlements, and judgments awarded against or incurred or paid by us (collectively “Losses”) as a result of or in connection with any and all of your acts, inactions and/or omissions connected with the Contract and these Terms, or as a result of or arising from any breach, or deemed breach, of Your obligations and/or representations under the issued Waiver.
12. HOW WE MAY USE YOUR PERSONAL DATA
12.1 We will use the personal data You provide to us to supply the Services to You and to process your payment for the Services. Providing your personal data is voluntary, however, Ontrack may be unable to provide the Services if You choose not to provide your personal data or withdraw consent at any time. We may collect your personal data: (i) when You contact us via email, telephone or by any other means and (ii) in the ordinary course of Our relationship with You when providing Services (including personal data We obtain in the course of administering your payments).
12.2 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. 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.
12.3 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. By agreeing to these Terms, You are also agreeing to the storage and use of your personal data pursuant to the terms of O u r Privacy Policy, which is available at https://www.ontrack.com/privacy. If You act as a business and are based within the European Union, You agree to the storage and use of your personal data pursuant to the terms of Our Data Processing Agreement, which is available at https://www.ontrack.com/.
13 CONFIDENTIAL INFORMATION
13.1 Each party agrees to not disclose any Confidential Information of the other party to any third party without the prior written authorization of the party disclosing the Confidential Information and to: (i) use such Confidential Information only for the purposes of carrying out its obligations pursuant to these Terms; (ii) use the same methods and degree of care to prevent disclosure of such Confidential Information as it uses to prevent disclosure of its own proprietary and Confidential Information but in no event less than reasonable care; and (iii) disclose Confidential Information to its employees and approved third parties, only on a need-to-know basis provided that all such persons are bound by duties of confidentiality no less onerous than are set out in these Terms. Confidential Information is deemed to be “all information (however recorded) disclosed by either party to the other party in connection with the Services, including but not limited to your Data and any information that would be regarded as confidential by either party”.
13.2 Confidentiality obligations shall not apply to any Confidential Information: (i) which enters the public domain through no fault of the recipient party; (ii) which was known to the recipient party prior to receipt from the other party; (iii) which is disclosed to the recipient party by a third party (other than employees or agents of either party) in circumstances that such disclosure is not in violation of any confidentiality obligation to the party disclosing the Confidential Information; or (iv) which is independently developed by the recipient party without recourse to Confidential Information.
13.3 Confidential Information may be disclosed in response to a valid court order or other legal process only to the extent required by such order or process and only after the receiving party provides the disclosing party written notice, if legally allowed, of such court order or other legal process promptly and the opportunity to seek a protective order or confidential treatment of such Confidential Information, at the disclosing party’s expense, with reasonable cooperation by the receiving party. We may disclose Confidential Information, including Your Data, where required by law and to cooperate with any law enforcement authorities, governmental agencies, or court orders requesting or directing such disclosure.
14 OTHER IMPORTANT TERMS
14.1 We may change the Services to reflect changes in relevant laws and regulatory requirements and to implement minor technical adjustments and improvements, for example to address a security threat. In addition, We may make more material changes to these Terms or the Services. The parties agree that the laws of the state of Minnesota shall govern these Terms and agree to venue in Hennepin County, Minnesota; provided, however, that if any provision of these Terms is in violation of any applicable law, such provision shall to such extent be deemed null and void, and the remainder of the Terms shall remain in full force and effect. Except for Your obligation to make payments, either party’s performance shall be excused to the extent performance is hindered, delayed or made impractical due to causes beyond such party's reasonable control. These Terms, together with the Quotation, Order, Waiver, DPA and/or other attachments provided by Ontrack, constitutes the entire Agreement between the parties in relation to this subject matter. The terms and conditions of the Waiver and the DPA shall be read in conjunction with these the terms and conditions, and in the event of a conflict, the strictest terms shall apply.
Version: December 2, 2019