Photo Recovery Service Terms & Conditions

The Engagement
Customer engages Ontrack Data Recovery, Inc. (“Ontrack”) and/or its suppliers 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.

Confidentiality
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 unauthorized 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.

Payment
Customer agrees to pay Ontrack all sums authorized from time to time by Customer, which will typically include charges for Ontrack services, shipping, insurance and certain media. Unless otherwise agreed to in advance by Ontrack, all such sums are due and payable in advance, by company check, bank money order, or credit card.   

Consent

Any consent required of either party will be effective if provided in a commercially reasonably manner, which includes without limitation, verbal authorization if followed by written confirmation by Ontrack at the earliest possible opportunity, and/or facsimile.

Acknowledgment of Existing Conditions
Customer acknowledges that the equipment/data/media may be damaged prior to Ontrack receipt, and Customer further acknowledges that the efforts of Ontrack to complete the Engagement may result in the destruction of or further damage to the equipment/data/media. Ontrack regrets that it will not assume responsibility 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 photos.

NO WARRANTIES; DISCLAIMER OF ALL WARRANTIES
ONTRACK, MAKES AND CUSTOMER RECEIVES NO WARRANTIES OR CONDITIONS FOR ANY GOOD OR SERVICE, EXPRESS, IMPLIED, STATUTORY, OR IN ANY COMMUNICATION WITH CUSTOMER, AND ONTRACK 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.

Limitation of Liability; Limitation of Damages
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 authorized 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 furnished to Ontrack, and that its collection, possession, processing and transfer of such equipment/data/media is in compliance with data protection laws to which Customer is subject; and Customer will defend, at its expense, indemnify, and hold Ontrack harmless against any damages or expenses that may occur (including reasonable attorneys’ fees), and pay any cost, damages, or attorneys’ fees awarded against Ontrack resulting from Customer’s breach of this section.

Miscellaneous
The parties agree that the laws of the state of Minnesota shall govern this Agreement and agree to venue in Hennepin County, Minnesota; 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 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.