By requesting the services of Data Recovery Center, Customer agrees to the terms and conditions herein. Customer engages Data Recovery Center and/or its partners or subcontractors to inspect, evaluate, and identify the problem (if not already identified); and/or retrieve, or minimize the damage to, the equipment/data/media; and/or provide other services as may be requested by Customer from time to time.
A No Data-No Charge Policy applies to services rendered by Data Recovery Center. This policy states the following: If Data Recovery Center is unable to recover the required data from a customer's media or device, that customer is not responsible for any labor charges. (This policy applies only to labor costs. Any replacement or donor parts, if applicable, will still be billed to the customer. The customer will be notified of the need for replacement or donor parts as it arises.)
Data Recovery Center states and affirms to Customer that it is an independent contractor. It shall have the direction and control of its employees in the provision of services to Customer. Nothing contained in this Agreement shall be construed so as to create a partnership between the Parties or to authorize either Party to act as a general agent of the other Party. Neither Party shall have any authority to make contracts, commitments, statements or representations on behalf of the other Party, except as set forth in this Agreement.
Customer agrees to pay Data Recovery Center all sums authorized from time to time by Customer, which will typically include charges for Data Recovery Center services, reasonable travel and per diem expenses for onsite work, shipping and insurance (both ways), and actual expenses, if any, for part, media and/or off the shelf software used in the services. Unless otherwise agreed to in advance by Data Recovery Center, all such sums are due and payable in advance, by company check, bank money order, or credit card.
Customer acknowledges that the equipment/data/media may be damaged prior to Data Recovery Center's receipt, and Customer further acknowledges that the efforts of Data Recovery Center to complete the services may result in the destruction of or further damage to the equipment/data/media. Data Recovery Center regrets that it will not assume responsibility for additional damage that may occur to the Customer's equipment/data/media during Data Recovery Center's efforts to complete the services.
In no event will Data Recovery Center be liable for any indirect damages whatsoever. Data Recovery Center will not be held liable for any damages due to any virus, worm, Trojan horse, etc. The total liability of Data Recovery Center to Customer under this Agreement shall in no event exceed the total sums paid by Customer to Data Recovery Center.
In no event will Data Recovery Center be liable for any abandoned equipment/data/media whatsoever.
Data Recovery Center agrees, on its own behalf and on behalf of any agents it utilizes to perform Data Recovery Center's responsibilities under this Agreement, that the materials and information which Customer provides to Data Recovery Center or to which Data Recovery Center gains access in the course of performing its responsibilities hereunder including, but not limited to, materials and information relating to software, hardware, technical and systems profiles, documents, records, programs, systems, data, disks, ideas, concepts, theories, designs, approaches, improvements, techniques, methodologies, methods, processes, formulae, procedures, ledgers, files, communications, technical requirements, names, addresses and other identifiers of individuals and business entities, financial information, insurance, and other know-how or information relating to Customer (collectively "Customer Information"), as between the Parties, are the property of Customer, and shall be used and viewed by Data Recovery Center only within the scope of its rights and responsibilities under this Agreement, and shall not be otherwise disclosed to third parties by Data Recovery Center or any of its agents without Customer's prior written approval.
The confidentiality obligations set forth in this Section shall not apply to information and materials: (1) that are or subsequently become publicly available without Data Recovery Center's breach of any duties it owes to Customer or the breach of any confidentiality obligations of any of Data Recovery Center's agents or affiliates which are owed to Customer; (2) was known to Data Recovery Center prior to Customer's disclosure to Data Recovery Center, other than any information or materials obtained from any of Data Recovery Center's agents or affiliates which are either subject to confidentiality obligations in favor of Customer from such agents or affiliates of Data Recovery Center or fail to fall with the exception categories (1), (2), (3), (4), or (5) described herein; (3) become known to Data Recovery Center from a source other than Customer, other than by the breach of an obligation of confidentiality owed to Customer; (4) is independently developed by Data Recovery Center without reference to or use of Customer Information; or (5) when client information is found to contain illegal data such as child pornography or information that is detrimental to national security.
Data Recovery Center agrees to use Customer Information only to provide services hereunder and not to use such information for any other purpose.
Data Recovery Center agrees to implement and maintain reasonable and customary security measures to safeguard Customer Information. Such measures shall include, but not be limited to, requiring employees who will have access to such information to agree to the confidentiality requirements of this Section.
Business entities, government entities and organizations whose data is successfully recovered by Data Recovery Center provide Data Recovery Center the right to use for promotional purposes their respective copyright protected logos and/or names. If any such business entity, government entity or organization does not wish to allow Data Recovery Center use their respective copyright protected logo and/or name for promotional purposes, Data Recovery Center will remove the copyright protected logo and/or name immediately upon request.
Parties acknowledge and agree that it may be necessary for Customer to share Customer Information with Data Recovery Center in order for Data Recovery Center to meet its obligations under this Agreement. With respect to the sharing, use, and protection of Customer Information, Data Recovery Center agrees to the following below.
To hold in strict confidence Customer Information obtained from Customer during this Agreement. Not to disclose Customer Information, in any form or medium, to any affiliated or non-affiliated person, firm or corporation except as necessary to perform services under this Agreement or as may be required by law. To the extent that Data Recovery Center contracts with a third party that obtains Customer Information in order to provide services under this Agreement, Data Recovery Center agrees to obtain contractual confidentiality protections to require the third party to hold Customer Information in strict confidence and not disclose it to any person unless required by law. Data Recovery Center agrees to return all Customer Information to Customer either upon request or termination of this Agreement. Data Recovery Center agrees to comply with applicable privacy laws and regulations including, but not limited to, the Gramm-Leach-Bliley Act, Public Law 106-102 (1999) as set forth in 15 U.S.C.A. 6801, as amended to comply with applicable changes in such laws and regulations as these occur and become effective.
Customer warrants to Data Recovery Center that it is the owner of, and/or has the right to be in possession of, all equipment/data/media furnished to Data Recovery Center Inc.; and Customer will defend, at its expense, indemnify, and hold Data Recovery Center Inc. harmless against any damages or expenses that may occur (including reasonable attorneys' fees), and pay any cost, damages, or attorneys' fees awarded against Data Recovery Center Inc. resulting from Customer's breach of this section.
This Agreement is intended by the Parties to be the final expression of their agreement, and it constitutes the full and entire understanding between the Parties with respect to the subject hereof. This Agreement may be amended only by a writing signed by the Parties.
The construction, interpretation and enforcement of this Agreement shall be governed by the substantive contract law of the State of Wisconsin without regards to its conflict of law provisions.
Should any part, term, or provision of this Agreement be declared invalid, void, or unenforceable, all remaining parts, terms, and provisions hereof shall remain in full force and effect and shall no way be invalidated, impaired, or affected thereby.
Data Recovery Center MAKES AND CUSTOMER RECEIVES NO WARRANTIES OR CONDITIONS FOR ANY GOOD OR SERVICE, EXPRESS, IMPLIED, STATUTORY, OR IN ANY COMMUNICATION WITH CUSTOMER, AND Data Recovery Center SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ARISING FROM USAGE OF TRADE OR COURSE OF DEALING OR PERFORMANCE.
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