Terms & conditions - website use
Last Revision Date: January 1, 2018
This Agreement is a contractual agreement between you ("you," "your") and Ontrack regarding your use of this Website. You should print a copy of this Agreement for your records. This Agreement shall not apply to any services provided to You by Ontrack which shall be provided according to the written agreement for the applicable services.
DO NOT USE THIS WEBSITE IF YOU DO NOT AGREE WITH THESE TERMS
Ontrack reserves the right, in its sole discretion, to modify, alter or otherwise update this Agreement, or to change or delete any features of this Website, at any time, with or without prior notice to You. Such modifications, alterations, and updates of this Agreement shall be effective immediately upon posting upon the Website. You agree to be bound by such modified, altered and updated terms if You access or use this Website after Ontrack has posted notice of modifications, alterations or updates. If you do not agree with any of the modified, altered or updated terms, then You should not use this Website after such modifications, alterations or updates have been posted.
USE OF THIS WEBSITE AND INTELLECTUAL PROPERTY RIGHTS
Ontrack controls and operates this Website. All content on this Website, including, but not limited to, text, images, illustrations, graphics, logos, digital downloads, data, software, headers, icons, scripts, audio clips, and video clips, is the property of Ontrack or its Third Parties, and is protected by copyrights, trademarks, service marks, and/or other intellectual property rights (which are governed by and subject to United States and international copyright laws and treaty provisions, privacy and publicity laws, and communication regulations and statutes). The content is owned and controlled by Ontrack, its group entities, or the Third Parties that have licensed or otherwise made available their content or the right to market their products and/or services to Ontrack.
You may not use any registered or unregistered trade marks, service marks, copyrighted materials or other proprietary information or intellectual property appearing on this Website, including, but not limited to, any logos, images or characters, meta tags or similar code, or hidden text or elements containing such information or property, without the express written consent of the owner of the trade mark or copyright. You may not frame any trade marks, service marks, copyrights, logos, images, text, or other proprietary information or intellectual property of Ontrack, or otherwise incorporate into another website any of the content or other materials on this Website, without Ontrack's express prior written consent. You may not deep link to any page or portion of this Website without Ontrack's prior written consent.
Violation of trade mark and copyright laws ("Infringement") may result in significant civil liability or criminal penalties under United States and/or international copyright and trade mark laws. You recognize that any reproduction or use of content, copyrights, trade marks, service marks, or other intellectual property on this Website, except as authorized by this Agreement, is considered intentional Infringement.
You warrant and represent to Ontrack that you will not use this Website for any purpose that is unlawful, illegal or prohibited by this Agreement, including, without limitation, engaging in any of the Prohibited Activities set out below, together with the sending, posting, transmitting, displaying, distributing, or knowingly receiving of or searching for any threatening, harassing, libelous, defamatory, obscene, scandalous, inflammatory, sexually oriented, pornographic, or profane material, content or images, or other images, content or messages that might be considered lewd, lascivious, excessively violent or otherwise offensive. If you violate any of these responsibilities, Ontrack may immediately terminate Your access to this Website. Ontrack, at its sole discretion, retains the right to deny access to this Website to anyone for any reason, including for violation of this Agreement.
You agree that any information that you provide will be true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete (or Ontrack has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete), Ontrack has the right to suspend or terminate your access and activity relating to, and to refuse any and all current or future use of, this Website.
You are specifically prohibited from any use of this Website, and you agree not to use or permit others to use this Website, without limitation, for any of the following:
(a) take any action that imposes an unreasonable or disproportionately large load on, or waste of valuable time for, the Website's infrastructure or resources, including, but not limited to, sending or promoting the distribution of "spam," "junk mail," chain letters, or other such unsolicited or unlawful mass e-mailing techniques;
(b) disclose to, or share with, any unauthorized third parties the ID's, assigned confirmation numbers and/or passwords, or use the ID's, assigned confirmation numbers and/or passwords for any unauthorized purpose, or otherwise allow or facilitate others to gain access to Ontrack's information technology systems, environments, networks, files, data or accounts through the use of the ID's, assigned confirmation numbers and/or passwords;
(c) access or attempt to access Ontrack's information technology systems, environments, networks, files, data or accounts to which express authorization has not been obtained (including access to data not intended for You), or log into a server or account that you are not authorized to access;
(d) attempt to decipher, decompile, disassemble, modify, remove or reverse engineer any of the software or HTML code comprising or in any way making up a part of this Website;
(e) interfere with, disrupt, disable or damage (or attempt to interfere with, disrupt, disable or damage), in an unauthorized manner, the use or operation of this Website or Ontrack's, its affiliated or related entities' or the Third Party's systems, equipment or applications, or service to any user, host, or network, including by use of any programs, scripts, commands, viruses, worms, web bugs, harmful code, Trojan horses, other contaminants, or otherwise. This includes "denial of service" attacks, "flooding" of networks, deliberate attempts to overload a service or to burden excessively a service's resources, attempts to "crash" a host, and/or modifying or rerouting any content or services provided at this Website;
(f) attempt to circumvent or subvert system or network security (i.e., authentication) mechanisms, or probe the security of any system, network, or account, associated or used in conjunction with this Website;
(g) upload, post, e-mail or otherwise transmit any information, content, or proprietary rights that you do not have a right to transmit under this Agreement, any law or other contractual or fiduciary relationships; and/or
(h) use any robot, spider, intelligent agent, meta-searching, other automatic device, or manual process to search, monitor or copy Ontrack's Website pages or the content.
All content, products and services on this Website, unless otherwise expressly stated in writing by Ontrack, are provided "as is" and without warranties of any kind, either express or implied, other than those warranties which, under U.S or other jurisdictional laws, are implied by law and are incapable of exclusion, restriction, or modification. Ontrack disclaims any and all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose.
No company within the Ontrack group of companies, nor the Third Parties, nor any person involved in the creation, production, hosting and/or distribution of this Website, warrant that the functions, features or services contained in this Website will be uninterrupted or error-free, that defects will be corrected, or that the server that makes the content available will be free of viruses or other harmful components. The content that You access on this Website is provided solely for Your convenience and information. Ontrack does not warrant or make any representations regarding the results that may be obtained from the use of this Website, or as to the reliability, accuracy or currency of any content, service, and/or merchandise provided or acquired pursuant to Your use of this Website.
Your use of this Website is at your own risk. You assume the entire cost of all necessary servicing (including, without limitation, your internet connection) and repair or correction of your computer, network and/or system.
LIMITATION OF LIABILITY
In no event shall Ontrack, nor any of its group companies or their respective officers, directors, employees or agents, or any person or entity involved in the creation, production, distribution and hosting of this Website, be liable for any indirect, consequential, incidental, special, punitive or exemplary damages, of any kind, whether arising under contract, warranty, or tort (including negligence) or any other theory of liability, regardless of whether Ontrack (or its group companies) knew or should have known of the possibility of such damages, including, without limitation, from the use or attempted use of this Website or any other linked site. The maximum liability of LDiscovery, LLC arising from any liability pursuant to Your use of this Website shall be limited to $10,000.
GOVERNING LAW AND JURISDICTION
By accessing this Website, you agree that this Agreement and your use of the Website shall be governed in all respect by the laws of the State of Minnesota, without regard to any conflict of laws provisions, and shall not be governed by the United Nations Convention on the International Sale of Goods. You further agree to submit to the exclusive jurisdiction and venue in the state and federal courts located in the State of Minnesota for all disputes, cases and controversies regarding this Website, Your use of this Website, and any matter arising out of or related to this Agreement.
You agree to indemnify, defend and hold Ontrack, its group companies and their officers, directors, employees, affiliated or related entities, Third Parties, agents, licensors, and suppliers, harmless from and against any and all claims, demands, actions, costs, liabilities, losses and damages of any kind (including attorneys' fees) resulting from your use of this Website, your breach of any provision of this Agreement and/or any negligent acts, omissions or intentional wrongdoing by you.
NO LEGAL ADVICE
The information provided on this Website is neither designed nor intended to provide legal or other professional advice but is intended merely to be a starting point for research on the subject of legal technology. While every attempt has been made to ensure accuracy of this information, no responsibility can be accepted for errors or omissions.
In order for You to use certain services or software on this Website, you may be required to open an account for the purposes of creating a user name and password. In order to do so, You must complete the registration process by providing current, complete and accurate information as requested. You are also responsible for creating and securing an account name and password. You are entirely responsible for maintaining the confidentiality of your password and account and remain entirely responsible for any and all activities that occur under Your account, including charges incurred. Ontrack will not be liable for any loss that You may incur as a result of someone else using your password or account, either with or without your knowledge.
Terms & conditions for Ontrack data recovery services
Updated: 26 October 2018
These Terms and Conditions apply to any Data Recovery Services that KLDiscovery Ontrack Limited ("Ontrack") provides to you (the "Customer").
- These terms
- These terms and conditions ("Terms") govern our supply of Data Recovery Services to you. 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.
- Contact details
- You can contact us by telephoning our customer service team on +44 (0)1372 741 999, by writing to us at KLDiscovery Ontrack Limited trading as "Ontrack", Global House, 1 Ashley Avenue, Epsom, Surrey, KT18 5AD (registered in England, Company Number 02669766) or firstname.lastname@example.org, or by contacting one of our representatives on our 'Live Chat' platform available on our Website.
- In these Terms the following definitions will apply:
- "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;
- "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;
- "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);
- "Contract" means as defined in Clause 4.3;
- "Data" means data in electronic form of any description, including 'personal data' as defined by the General Data Protection Regulation EU 2016/679 and/or the Data Protection Act 2018;
- "Equipment" means your Media and, if applicable, Mobile Phone;
- "Fee" means the fee payable by you for the Services, as set out in the relevant Quotation;
- "Media" means storage media such as hard-drives, USB drive, laptop, computer or other devices;
- "Mobile Phone" means any mobile telephone;
- "Order" means as defined in Clause 4.2;
- "Quotation" means as defined in Clause 4.1;
- "Services" means the data recovery services to be provided by us to you, as described in Clause 5.1 of these Terms, and set out in greater detail in the relevant Quotation; and
- "Website" means our website at https://www.ontrack.com/uk, or such other website as we use to operate our business from time to time.
- Order process
- 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").
- 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, 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.
- 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.
- Our services
- In consideration of your payment of the Fee, we will provide the Services in accordance with these Terms and 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.
- Mobile Phone Repair. The primary service we offer will be the recovery of the Data from the Mobile Phone and we do not offer a standalone Mobile Phone repair. Where a repair is possible, we will repair and restore functionality to the Mobile Phone so that you are able to use it in normal usage conditions.
- 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.
- 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.
- 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 alsosuspend supply of the Services if you do not pay.
- 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.
- Intellectual Property rights
- 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.
- Rights to end a contract (Consumer customers)
- 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, under The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, are explained in more detail below.
- 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.
- To cancel the Order, you can do so through one of the following methods of communication by providing your Order number, name, address and cancellation request:
- Phone or email. Call customer services on +44 (0)1372 741 999 or email us at email@example.com;
- By post. Write to us at Ontrack, Global House, 1 Ashley Avenue, Epsom, Surrey, KT18 5AD; or
- 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.
- Rights to end The contract (Business customers)
- 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.
- Mutual termination Rights
- 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:
- 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
- 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.
- 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.
- Following termination,you shall be responsible for all sums owing to us which shall become payable immediately.
- 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:
- Customer acknowledgements
- 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 Equipment and/or have the permission from the owner of the Equipment for us to perform the Services; (v) your supply of your Equipment and/or Data to us will not breach any obligations or rights of any third parties; (vi) your supply of your Equipment and/or Data to us will not breach any applicable law; (vii) you are legally permitted to grant access to the Data; (viii) your Equipment does not contain any material (including without limitation any Data) which may infringe the Intellectual Property Rights of any third party; and (ix) your Equipment 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.
- You hereby acknowledge that your Equipment 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 Equipment 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 Equipment and/or Data during our performance of the Services.
- Price and payment
- The price of the Services (which includes VAT) 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 on the date specified.
- How you must pay. Payment can be by cheque, bank transfer or credit/debit card. Payment by any credit/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.
- 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 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.
- Our responsibility for loss or damage suffered by you
- We do not accept responsibility for any corruption of, or physical or other damage to, or destruction of your Equipment, your Data, or any other equipment that may occur, or invalidation of any warranties in respect of your Equipment or other equipment, either: prior to our receiving your Equipment, your Data, or other equipment; 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.
- Whilst we will use reasonable endeavours to take care of your Equipment or Data whilst in our possession, we will not be responsible to you if any of your Equipment or Data is lost, destroyed, corrupted or otherwise damaged through fair wear and tear.
- 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 Act 1987.
- 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 £10,000 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.
- Neither Party shall not 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.
- Use of Couriers. In collecting your Equipment prior to the commencement of the Services, or in delivering the recovered Data and/or original Equipment, 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 Equipment 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 Equipment arising from negligence and/or breach of contract by the courier company beyond any compensation scheme set out by them.
- 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.
- How we may use your personal data (Consumer Customers)
- 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).
- 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.
- 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.
- How we process personal data (business customers)
- By agreeing to these Terms, our Business Customers are also agreeing 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/uk/terms/.
- Confidential information
- 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 this Agreement; (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 this Agreement.
- 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.
- Other important terms
- 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.
- 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.
- As well as any other rights you have under law or regulation, if you are resident in the European Union, you may have the option to submit complaints on the European Union’s Online Dispute Resolution platform (the "Platform") which facilitates the settlement of disputes online. For more information, please visit the Platform on https://webgate.ec.europa.eu/odr/. Ontrack does not intend to use the Platform to settle disputes and you accept that Ontrack is under no obligation to use the Platform to settle any disputes.
- These terms are governed by English law and each Party may bring legal proceedings in the courts of England and Wales.
Schedule - Model Cancellation Form
|To||[TRADER'S NAME, ADDRESS, TELEPHONE NUMBER AND, WHERE AVAILABLE, FAX NUMBER AND E-MAIL ADDRESS TO BE INSERTED BY THE TRADER]|
|I/We* hereby give notice that I/We* cancel my/our* contract of sale of the following goods*/for the supply of the following service*,|
|Ordered on*/received on*,|
|Name of consumer(s),|
|Address of consumer(s),|
|Signature of consumer(s) (only if this form is notified on paper),|
*Delete as appropriate
Data Processing Agreement
Updated: 11 December 2018
This Data Processing Agreement applies to: (i) KLDiscovery Ontrack Limited (company number 02669766) having its registered office address at Global House, 1 Ashley Avenue, Epsom Surrey, KT18 5AD ("Ontrack"); and (ii) the applicable Business Customer placing an order for Ontrack's services pursuant to the applicable service terms of business ("Terms").
The Parties have agreed that the terms of this Data Processing Agreement shall apply to the Processing of Personal Data (as defined below) that is required to enable Ontrack to provide the services to the applicable Business Customer.
In this Data Processing Agreement:
|Business Data||means all Personal Data provided to Ontrack by the Business Customer;|
|Data Controller||has the meaning given to that term (or to the term ‘controller') in Data Protection Laws;|
|Data Processor||has the meaning given to that term (or to the term ‘processor') in Data Protection Laws;|
|Data Protection Laws||means all applicable data protection law binding on the Business Customer, Ontrack and/or in relation to the services including: (i) the GDPR and/or any corresponding or equivalent national laws or regulations; and (ii) in member states of the European Union, all relevant laws or regulations giving effect to or corresponding with the GDPR.|
|Data Subject||has the meaning given to that term in 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;|
|GDPR||means the General Data Protection Regulation(EU)2016/679;|
|Personal Data||has the meaning given to that term in Data Protection Laws;|
|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;|
|Personnel||means any current, former or prospective employee, consultant, temporary worker, agency worker, intern, other non-permanent employee, contractor, secondee or other personnel;|
|Processing||has the meaning given to that term in Data Protection Laws (and related terms such as process have corresponding meanings);|
|Sub-Processor||means another Data Processor engaged by Ontrack on behalf of the Client for carrying out Processing activities in respect of the Business Data; and|
|Supervisory Authority||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
- Data Processor and Data Controller
- The Parties agree that, in respect of Business Data, the Business Customer shall be the Data Controller and Ontrack shall be the Data Processor. It is acknowledged that the Business Customer shall have sole responsibility for the accuracy, quality, integrity and reliability of any Business Data and of the means by which it acquired such Business Data.
- The Business Customer warrants, represents and undertakes, that: (i) all Business Data used in connection with the services pursuant to the Terms shall comply in all respects with Data Protection Laws; (ii) all instructions given by it to Ontrack in respect of Business 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 Business 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 Data Processing Agreement.
- Ontrack warrants, represents and undertakes, that it shall: (i) process the Business Data only to the extent necessary in connection with the Terms; and (ii) process the Business Data in accordance with the Business Customer's documented instructions and the requirements of Data Protection Laws; (iii) promptly inform the Business Customer if Ontrack considers that the Business Customer's instructions infringe Data Protection Laws, or if Ontrack becomes unable to comply with Business Customer's instructions regarding the Processing of Business Data (whether as a result of a change in applicable law, or a change in Business Customer's instructions); and (iv) comply with the terms of this Data Processing Agreement.
- Instructions and details of Processing
- The Processing of Business Data to be carried out by Ontrack under this Data Processing Agreement shall comprise the Processing as required for Ontrack to provide the services.
- Technical and organisational measures
- Ontrack shall implement and maintain, at its cost and expense, appropriate technical and organisational measures in relation to the Processing and security of Business Data in accordance with Data Protection Laws and in accordance with Articles 32-34 of the GDPR in particular. 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 Business Data from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access.
- Using Personnel and Sub-Processors
- Save as set out in clause 4.2, KLDiscovery shall not engage any sub-processor for carrying out any processing activities in respect of the Client 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, KLDiscovery shall put in place written terms 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, KLDiscovery shall remain fully liable to the Client for the performance of each sub-processor's obligations. KLDiscovery shall inform the Client of any intended changes concerning the addition or replacement of such sub-processorsand allow Client a reasonable opportunity to object, on reasonable grounds, to any such changes or replacements.
- Approved sub-processors at the date of this Agreement are set out at Annex 1.
- 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 services, ensure that they are fully aware of the measures to be put in place and the steps to be taken when Processing the Business Data having regard to Data Protection Laws, and ensure that they have committed themselves to protect the confidentiality of the Business Data including by way of an appropriate obligation of confidentiality (whether by written contract or otherwise) in respect of the Business Data.
- Assistance with the Business Customer's compliance and Data Subject rights
- Ontrack shall promptly refer all Data Subject Requests it receives to the Business Customer. Ontrack shall provide such reasonable assistance as the Business Customer reasonably requires (taking into account the nature of Processing and the information available to Ontrack) to the Business Customer in ensuring compliance with the Business Customer'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; and (iv) notifications to the Supervisory Authority and/or communications to Data Subjects by the Business Customer in response to any Personal Data Breach, provided that, in the event that such assistance is disproportionate in time and resources to Ontrack, Business Customer shall pay Ontrack's fees for providing such assistance.
- International data transfers
- In general, Business Data is hosted and processed by Ontrack within the European Economic Area ("EEA"). Notwithstanding this, Ontrack is part of a corporate group that has been accredited by the US Chamber of Commerce under the EU-US and Swiss-US Privacy Shield frameworks. Accordingly, from time to time, Ontrack may require the transfer of Business Data outside the EEA in order for Ontrack to effectively provide the services, for example if a specialised service is required. Such transfers shall be performed in accordance with the requirements of all applicable laws and regulations. Business Customer acknowledges and agrees to such transfers. Additionally, any transfers required based upon Client's choice of products and services are set out in Annex 1 and are expressly approved.
- Records, information and audit
- Ontrack shall: (i) create; (ii) keep up-to-date; and (ii) maintain, full and accurate records relating to all Processing of Business Data.
- Ontrack shall grant to Business Customer 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 Business Data and shall provide all reasonable assistance to Business Customer 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 equipment where only visual and accompanied inspection is permitted.
- Ontrack shall at Business Customer's request and expense promptly provide Business Customer with all information necessary to enable Business Customer to demonstrate compliance with its obligations under the GDPR, to the extent that Ontrack is able to provide such information.
- Breach notification
- In respect of any Personal Data Breach involving Business Data likely to result in a high risk to the rights and freedoms of natural persons, Ontrack shall, without undue delay: (i) notify the Business Customer of the Personal Data Breach; and (ii) provide the Business Customer with details of the Personal Data Breach.
- Deletion or return of Personal Data and copies
- Ontrack shall, at the Business Customer's written request, either delete or return all the Business Data to the Business Customer in such form as the Business Customer reasonably requests within a reasonable time after the earlier of: (i) the end of the provision of the relevant data recovery services pursuant to the Terms related to Processing; or (ii) once Processing by Ontrack of any Business Data is no longer required for the purpose of Ontrack's performance of its relevant obligations under this Data Processing Agreement, and delete existing copies (unless storage of any Business Data is required by applicable law and, if so, Ontrack shall inform the Business Customer of any such requirement). Ontrack shall procure that its Sub-Processors shall undertake the same actions with regard to Business Data.
- In the event that Business Data remains within Ontrack's possession or control for any period longer than 12 (twelve) months without any active instructions from the Business Customer, Ontrack shall delete such Business Data.
- 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.
- The total liabilities of either Party under this Data Processing Agreement shall in no event exceed the contractual limits set out and agreed in the Terms.
- Term and Termination
- Unless terminated by agreement of the Parties, this Data Processing Agreement shall commence on the date an order is placed for services pursuant to the Terms and continue in force for so long as Ontrack continues to process Business Data.
- Choice of Law
- This Data Processing Agreement shall be subject to the terms of the choice of law provision set out in the Terms.
Annex 1 – Sub-Processors and Transfers
|Ontrack Product/Business System||Mandatory use of Sub-processor||Name of Sub-Processor||Location of Sub-Processor||Transfers outside EEA||Data|
|Courier services||No||DHL||UK||No||Original client media, encrypted hard-drive for data return|
|Customer Management systems (internal)||Yes||Nobile (support VISMA system)||Norway||No||Client contact data and work history|
|Customer marketing||Yes||GetResponse||Poland||No||Name, email address, IP address, phone number, physical address, marketing preferences|
|Out of hours calls||No||Message Direct||UK||No||Customer name, contact details, data recovery requirements|
|Call tracking||Yes||Infinity||UK||No||Customer IP address, name, user statistics|
|Customer marketing/service quality reporting||Yes||Trust Pilot||Germany/Poland||No||Name, email|