1. These terms
1.1 These terms and conditions ("Terms") govern the supply of services to you by Kroll Ontrack, LLC, d/b/a “Ontrack” (“Services”).
(a) “Phone Repair Services” shall mean the replacement of screens and batteries for your phone.
(b) “Data” shall mean the data stored on the storage device (“Media”) within your phone.
(c) “Data Recovery” shall mean the Services performed in order to gain access and copy the available data from your phone. Data Recovery shall not mean a refurbishment of your phone or a restoration of your phone to working condition.
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”), you will send us your phone for evaluation. Following this initial evaluation, an associate will contract you to discuss the possible recourses for Phone Repair Services. If you select to proceed with the offered Phone Repair Services, selection of such Services and payment must be made to Ontrack in order to proceed. Should further Services be necessary to facilitate additional data recovery, you will be contacted by an Ontrack sales representative or you may make a separate request for additional services via the online order form and a separate price quote will be supplied for any such services.
2.2 All Services performed shall be governed by and performed in accordance with this contract (“Contract”). By sending us your phone, you expressly consent to our performance of the requested Services and the terms of the Contract.
2.3 The costs and fees provided at the time of order may exclude the costs of back-up media or applicable taxes. Additional fees will apply in the event of scope changes or you require additional, specialised or optional 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.
3.2 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. Should you fail or refuse to supply the required information, we may consider the phone abandoned and dispose of your phone or take other such actions as described in Section 10.3 regarding abandoned phones or data storage Media.
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 endeavours to examine the phone to determine: (i) the cause of any damage to the phone and/or the Data on the phone and (ii) what steps may be taken to repair the 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 phone will be useable, or that we will achieve any other particular result. Therefore, all fees and costs are final and not subject to any refund.
5. Intellectual property rights
5.1 Your phone and data contained therein 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 phone and data to perform the Services). We 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.
6.2 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 phone and/or have the permission from the owner of the phone for us to perform the Services; (v) your supply of your phone and/or Data to us will not breach any obligations or rights of any third parties; (vi) your supply of your phone and/or Data to us will not breach any applicable law; (vii) you are legally permitted to be granted access to the Data and/or any password, software, or codes required to perform the Services; (viii) your phone does not contain any material (including without limitation any Data) which may infringe the intellectual property rights of any third party; (ix) your phone does not contain any material which will breach applicable law, (x) your phone 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), and (xi) you will supply to Ontrack any security code necessary to allow access to your phone. 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.
7.2 To the extent that You require secure data erasure or phone disposal, you acknowledge that the strong magnetic field used in the degaussing process will render the phone unusable and may void the manufacturer’s warranty.
7.3 You hereby acknowledge that your phone 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 phone 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 phone and/or Data during our performance of the Services.
7.4 You hereby acknowledge that water damaged phones may not be submitted for Phone Repair Services.
7.5 You hereby acknowledge that if the Home Button is damaged, the fingerprint Touch ID feature will not be functional in the case of an Apple iPhone screen replacement. If the Home Button is damaged, we recommend going to Apple directly for repair services. ”Touch ID” is a fingerprint recognition feature within the Home Button, designed and released by Apple Inc., that allows users to unlock Apple devices, substitute as a password for certain apps, make purchases in the various Apple digital media stores (the iTunes Store, the App Store, and the iBooks Store), and authenticate Apple Pay online or in apps. “Home Button” is a physical button on a smartphone that takes the user to the home screen as well as activating and selecting functions in the apps or software. The iPhone 7 and newer iPhones use a static “button” that is force sensitive instead of a mechanical button. Instead of a button that physically moves, these buttons provide tactile sensations in the form of vibrations to users.
7.6 You hereby acknowledge that the “Force Touch” feature will not be calibrated to Apple specifications in the case of an Apple iPhone screen replacement and, therefore, may not be functional after repair. In most cases, the “Force Touch” feature will work after the screen replacement. [Force Touch is a technology developed by Apple Inc. that enables touchscreens to distinguish between different levels of force being applied to their surfaces. Force Touch is a pressure-sensitive multi-touch technology.]
8. Price and payment
8.1 The price of the Services will be the Costs and Fees as set out during the initial ordering process. After the phone Repair Services have been completed, the Costs and Fees shall be payable prior to the return shipment of your phone. 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.
8.2 Payment by any credit card or debit card is subject to authorisation by the card issuer. If such authorisation 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 phone and Data until you make full payment. If you do not make full payment within 90 (ninety) calendar days of the due date we will notify you that we consider the phone and Data to be abandoned by sending notice to the email address you provided when you authorized the service. If your phone and Data is considered abandoned by us, we may, in accordance with applicable law, dispose of your phone and Data. 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. To the 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.
9.1 LIMITED WARRANTY. ONTRACK WARRANTS THAT AT THE TIME OF COMPLETED PHONE REPAIR SERVICES, THE REPLACEMENT PARTS WILL BE OF GOOD COMMERCIAL QUALITY AND FREE FROM MANUFACTURING DEFECTS. THE DURATION OF THIS LIMITED WARRANTY IS 90 DAYS AND BEGINS ON THE SHIPMENT DATE FROM ONTRACK’S LOCATION. ONTRACK WILL REPAIR OR REPLACE, AT ITS OPTION, ANY DEFECTIVE PRODUCT THAT YOU RETURN TO ONTRACK DURING THE WARRANTY PERIOD, PROVIDED SUCH RETURNED PRODUCT INCLUDES INFORMATION IN SUFFICIENT DETAIL REGARDING THE NATURE OF THE DEFECT AND ITS ORIGINAL SHIPMENT DATE. THE REMEDY SET FORTH HEREIN IS THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER. ONTRACK MAY, IN ITS SOLE DISCRETION, REVISE ITS WARRANTY AT ANY TIME. NOTWITHSTANDING THE FOREGOING, NO WARRANTY CHANGE WILL AFFECT ORDERS ALREADY PLACED BY CUSTOMER. 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 OTHER 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. SOME REPAIR WORK MAY VOID THE MANUFACTURER'S WARRANTY. WE ARE NOT LIABLE IF YOU CHOOSE TO PROCEED WITH REPAIRS OF A PHONE UNDER SUCH WARRANTY.
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 phone, your Data, or any other Device that may occur, or invalidation of any warranties in respect of your phone or other phone, at any time, including: prior to our receiving your phone, your Data, or other Device; 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; or after returning your phone to you.
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 intentional misconduct or gross negligence or the intentional misconduct or gross negligence of our employees, agents or subcontractors; for fraud or fraudulent misrepresentation. 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 THE LESSOR OF $1,000 US (ONE THOUSAND US DOLLARS) OR THE VALUE OF THE FEES PAYABLE UNDER THE APPLICABLE CONTRACT.
10.3 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.
10.4 Use of Couriers. In collecting your phone and/or Media prior to the commencement of the Services, or in delivering the repaired phone, recovered Data, or original phone, 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 phone 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 phone or Data arising from negligence and/or breach of contract by the courier company beyond any compensation scheme set out by them. Ontrack is not responsible to phone and/or Media or Data damaged in transit to or from Ontrack’s premises.
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, except to the extent such Losses are due to Our intentional misconduct or negligence.
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.
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.
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 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. 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.
14.2 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.
14.3 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..
14.4 These Terms, together with any Quotation, Order, exhibits or other attachments provided by Ontrack, constitutes the entire Agreement between the parties in relation to this subject matter, unless the parties have entered into a previously written master services agreement, in which case the master 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.
Version: July 17, 2018