Customer engages Ontrack and/or its suppliers to: inspect, evaluate, and identify the problem (if not already identified); and/or retrieve, or minimise the damage to, the equipment/data/media; and/or provide other services as may be requested by Customer from time to time.
Ontrack will use any Customer information contained in the data, media and/or equipment provided to Ontrack by Customer only for the purpose of fulfilling the Engagement, and will otherwise hold such Customer information in the strictest confidence. Any confidential information disclosed by Customer under this Agreement will remain Customer’s sole property, and Ontrack shall employ reasonable measures to prevent the unauthorised use of such information, which measures shall not be less than those measures employed by Ontrack in protecting its own confidential information. Ontrack will not disclose confidential information except to employees or consultants reasonably requiring such information (and who have secrecy obligations to Ontrack) and not to any other party. Ontrack will employ appropriate technical and organizational measures to safeguard Customer personal data and will act only on the instruction of the Customer with respect to Customer data. Ontrack is part of a worldwide organization and Customer hereby agrees to the transfer of Customer data to Ontrack affiliates and suppliers worldwide as needed for the sole purpose of performing the Engagement.
Acknowledgment of Existing Conditions
Customer acknowledges and agrees that the equipment/data/media may be damaged prior to Ontrack receipt, and that the efforts of Ontrack to complete the Engagement may result in the destruction of or further damage to the equipment/data/media. Ontrack will not be liable for additional damage that may occur to the Customer's equipment/data/media during Ontrack efforts to complete the Engagement. Customer acknowledges and agrees that the provision of the services by Ontrack may not result in the complete recovery of the data.
NO WARRANTIES; IMPLIED TERMS
Except where required by law, Ontrack will be under no liability to the Customer in respect of any loss, cost, expense or damage (including consequential loss or damage, loss of profits or economic loss) which may be suffered or incurred directly or indirectly in respect of any services supplied under this Agreement; and any condition or warranty which would otherwise be implied in this agreement is hereby excluded.
Limitation of Liability; Limitation of Damages
To the extent permitted by law, in no event will Ontrack be liable for any damages whatsoever, including without limitation damages for loss or damage occurring in transit, loss of data, loss of business profits, business interruption, or other pecuniary loss, or incidental, consequential or indirect damages arising from the Engagement, even if Ontrack or an authorised representative has been advised of the possibility of such damages. Customer acknowledges that the estimated and actual fees and charges reflect this limitation of liability and allocation of risk. The parties agree the total liability of Ontrack to Customer under this Agreement shall in no event exceed the total sums paid by Customer to Ontrack.
Customer’s Representation and Indemnification
Customer warrants to Ontrack that it is the owner of, and/or has the right to be in possession of, all equipment/data/media provided to Ontrack, and that Customer’s collection, possession, processing and transfer of such equipment/data/media is in compliance with data protection and privacy laws to which Customer is subject. The Customer indemnifies Ontrack from any expense (including reasonable legal fees), damage or liability arising out of any claim, demand or suit resulting from a breach of the Customer’s warranties. Customer further represents and warrants that all items provided to Ontrack under this Agreement: (i) are not subject to any United States or applicable export licensing requirements or that Customer has obtained all required licenses; and (ii) all such items are freely exportable by ONTRACK, as applicable, without restriction.
This agreement will be construed in accordance with and will be governed by the laws in force in the Republic of Singapore. Each of the parties irrevocably submits to and accepts the exclusive jurisdiction of any of the Courts of the Republic of Singapore and any courts of appeal from these courts; provided, however, that if any provision of this Agreement is in violation of any applicable law, such provision shall to such extent be deemed null and void and severed herefrom, and the remainder of the Agreement shall remain in full force and effect. Except for the obligation to make payments, nonperformance of either party shall be excused to the extent performance is rendered impossible due to causes beyond such party's reasonable control. This Agreement, together with any exhibits or other attachments provided by Ontrack, constitutes the entire Agreement between the parties in relation to this subject matter and supersedes all other terms including any Customer purchase order terms. Any items which have not been claimed and paid for within ninety (90) days after the date of completion of the Engagement will be considered abandoned by the Customer and may be disposed of (including all data/media containing data) in the sole discretion of Ontrack or may be subject to a storage fee unless prior arrangements have been secured.