TERMS AND CONDITIONS FOR ONTRACK SERVICES
1 THESE TERMS
1.1 These terms and conditions ("Terms") govern the supply of Data Recovery Services to you by KLDiscovery Ontrack, LLC with trading address at 9023 Columbine Road, Eden Prairie, MN 55347 (“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 at 1-800-872-2599, or by writing to us at Ontrack, 9023 Columbine Road, Eden Prairie, MN 55347 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.;
(f) "Equipment" means your Media and, if applicable, Mobile Phone;
(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) "Mobile Phone" means any mobile telephone;
(j) "Order" means as defined in Clause 4.3;
(k) "Quotation" means as defined in Clause 4.1;
(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
(m) "Website" means our website at www.ontrack.com 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. 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; (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 ("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 Equipment 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 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.
4.4 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) 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 or USB stick with your recovered data from Ontrack, we urge you to immediately check the hard-drive or USB stick for technical functionality.
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 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.
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 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.
5.6 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.
5.7 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.
5.8 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 A CONTRACT (CONSUMER CUSTOMERS)
7.1 During the Free Evaluation, you can cancel at any time. If you place an Order, you can cancel within 7 (seven) 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 1-800-872-2599 or email us at email@example.com;
(b) By post. write to us at Ontrack, 9023 Columbine Road, Eden Prairie, MN 55347.
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. 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 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/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 be 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 authorise the Services and to suspend or not commence the Services without receipt of such evidence.
10.2 To the extent that You require secure data erasure or media disposal, you acknowledge that the strong magnetic field used in the degaussing process will render the Media unusable and may void the manufacturer’s warranty.
10.3 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 due to our intentional misconduct or negligence, 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. The Fee shall be payable prior to the Services commencing, or, if applicable, we will invoice you for the Fee when we have completed the Services. In the event we agree to invoice you, you must pay each invoice within 30 calendar days after the date of the invoice. You will be responsible for and indemnify Ontrack 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.
11.2 How you must pay. Payment can be by cash, check, direct debit, bank transfer, credit/debit card or mobile pay. 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 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 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. To the extent that You request Ontrack present invoices electronically for payment, via an electronic payment site ("Site"), Ontrack agrees to do so provided that all such costs for requiring Ontrack to submit invoices via the Site will be borne solely by You.
12.1 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 “AS- IS,” SO THIS EXCLUSION MAY NOT APPLY TO YOU.
13 OUR RESPONSIBILITY FOR LOSS OR DAMAGE SUFFERED BY YOU
13.1 We do not accept responsibility for any corruption of, 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 to your Media, data, or other media, either: (i) prior to our receiving your Media, your data, or other media; or (ii) 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.
13.2 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 intentional misconduct, gross negligence, fraud or fraudulent misrepresentation (including those actions or inactions of our employees, agents or subcontractors). SUBJECT TO THE PROVISIONS OF THIS CLAUSE 13, OUR TOTAL LIABILITY TO YOU, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE)OR OTHERWISE ASSERTED, 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 (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.
13.3 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, 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 THE OTHER PARTY HAS 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.
13.4 Use of Couriers. In collecting your Media and/or data prior to the commencement of the Services, or in the return delivery of your data or media, we outsource such service to nationally recognized courier companies. By agreeing to these Terms for performance of the Services, you expressly agree to the use of such courier companies and 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 any and all rights to bring a claim against Ontrack for losses or damage to your data or media arising from negligence and/or breach of contract by any courier company beyond any compensation paid by you to Ontrack for the Services provided hereunder.
14.1 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 these Terms, you request for return of your Media, or a request for destruction of your Media, except to the extent such Losses are due to Our intentional misconduct or negligence.
15 HOW WE MAY USE YOUR PERSONAL DATA (CONSUMER CUSTOMERS AND BUSINESS CUSTOMER CONTACT DATA)
15.1 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).
15.2 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.
15.4 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.
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.
16.3 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.
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.
17.2 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 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.
17.4 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 any Quotation, Order, Statement(s) of Work, exhibits or other attachments, constitutes the entire Agreement between the parties in relation to this subject matter, unless the parties have entered into a separate written agreement, in which case that agreement shall govern with respect to any conflicting terms hereunder. The terms and conditions of any Customer issued Purchase Order, or terms contained on the Website, are specifically excluded from and superseded by the terms and conditions contained in these Terms.
Effective: May 1, 2021