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This Company Internet Web Site Agreement (the “Agreement”) is between you and Kroll Ontrack, Inc. (“Company”) with a principal place of business at 9023 Columbine Rd. Eden Prairie, MN 55347.
(1) Use of the Ontrack Data Recovery Web site (the “Web Site”) signifies your agreement to the terms and conditions of use set forth below in the Agreement:
(2) You acknowledge that you have read the terms and conditions of use and that you accept the terms thereof. YOU AGREE TO READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING THIS WEB SITE. If you are not satisfied with the Web Site or do not agree to these terms and conditions of use, your sole and exclusive remedy is to discontinue using the Web Site.
(3) Please note that in addition to these terms and conditions of this Agreement, supplementary terms and conditions may apply to your use of various portions of this site. Please review all notices and license agreements applicable to the portion of the Web Site you are using. In addition, Company reserves the right, at its sole discretion, to change, modify, add or remove any portion of this Agreement, in whole or in part, at any time. By using the Web Site you agree to be bound by any such revisions and should therefore periodically visit this page to determine the then current Terms and Conditions of Use to which you are bound.
(4) Company may change, suspend or discontinue any aspect of the Web Site at any time, including the availability of any Web Site feature, database, products or services, or Content (as defined below). Company may also impose limits on certain features and services or restrict your access to parts or all of the Web Site without notice or liability. Prices and availability are subject to change without notice. Errors will be corrected where discovered, and Company reserves the right to revoke any stated offer and to correct any errors, inaccuracies or omissions, including after an order has been submitted.
(5) Content on or comprising the Web Site, including, but not limited to, information, data, software, services, photographs, graphs, videos, sounds and other material (collectively “Content”) is protected by copyrights, trademarks, patents or other proprietary rights and these rights are valid and protected in all forms, media, and technologies existing now or hereinafter developed. All Content is protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other copyright laws. Except where otherwise expressly noted, the Contents of the Web Site are only for your personal, non-commercial use. You will abide by any and all additional terms and conditions, copyright notices, information, or restrictions contained in any Content on the Web Site. You may download and make a copy of the Content and other downloadable items displayed on this Web Site for personal, noncommercial use only, provided that you maintain all copyright and other notices contained in such Content. Copying or storing of any Content for other than personal, noncommercial use is expressly prohibited without the prior written permission from Company or the copyright holder identified in the individual Contents copyright notice. It is strictly prohibited to modify, transmit, distribute, reuse, repost, “frame”, link or use content for public or commercial use without permission from an authorized Company representative.
(6) Any software that is made available for use via the Web Site or for download from the Web Site (Software) is the copyrighted work of Company and/or its suppliers. Use of the Software is governed by the terms of the end user license agreement that accompanies, or is included with, the Software (“End User License Agreement”). You agree to comply fully with all laws and regulations of the United States and other countries (Export Laws) to assure that neither the Software, nor any direct products thereof are (1) exported, directly or indirectly, in violation of Export Laws, or (2) are used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.
(7) You hereby agree to indemnify, defend and hold Company, and all its officers, directors, owners, agents, employees, information providers, affiliates, licensors and licensees (collectively, the “Indemnified Parties”) harmless from and against any and all liability and costs incurred by the Indemnified Parties in connection with any claim arising out of your misuse of this Web Site including, without limitation, attorneys fees and costs. You shall cooperate as fully as reasonably required in the defense of any claim. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without the written consent of Company.
(8) The Web Site may contain links and pointers to the other related World Wide Web Internet sites, resources, and sponsors of the Web Site. Links to and from Web Site to other third party sites, maintained by third parties, do not constitute an endorsement by Company or any of its subsidiaries or affiliates of any third party resources, or their contents.
(9) Company does not represent or endorse the accuracy or reliability of any advice, opinion, statement, or other information displayed or distributed through the Web Site. You acknowledge that any reliance upon any such opinion, advice, statement, memorandum, or information shall be at your sole risk. Company reserves the right, in its sole discretion, to correct any errors or omissions in any portion of the Web Site.
(10) THE WEB SITE, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE WEB SITE, IS PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMISSIBLE BY LAW, COMPANY AND ITS SUBSIDIARIES AND AFFILIATES MAKE NO REPRESENTATION OR WARRANTIES OF ANY KIND WHATSOEVER FOR THE CONTENT ON THE WEB SITE OR THE MATERIALS, INFORMATION AND FUNCTIONS MADE ACCESSIBLE BY THE SOFTWARE USED ON OR ACCESSED THROUGH THE WEB SITE, FOR ANY PRODUCTS OR SERVICES OR HYPERTEXT LINKS TO THIRD PARTIES OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE WEB SITE OR ANY LINKED SITE. FURTHER, COMPANY AND ITS SUBSIDIARIES AND AFFILIATES DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE WEB SITE OR ANY MATERIALS OR CONTENT CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEB SITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. COMPANY AND ITS SUBSIDIARIES AND AFFILIATES SHALL NOT BE LIABLE FOR THE USE OF THE WEB SITE, INCLUDING, WITHOUT LIMITATION, THE CONTENT AND ANY ERRORS CONTAINED THEREIN.
(11) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MINNESOTA, WITHOUT REGARD TO CONFLICTS OF LAWS PROVISIONS. SOLE AND EXCLUSIVE JURISDICTION FOR ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE AN APPROPRIATE STATE OR FEDERAL COURT LOCATED IN THE STATE OF MINNESOTA.
(12) This Agreement constitutes the entire agreement between Company and you with respect to your use of the Web Site. Any cause of action you may have with respect to your use of the Web Site must be commenced within one (1) year after the claim or cause of action arises. If for any reason a court of competent jurisdiction finds any provision of the Agreement, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the Agreement, and the remainder of this Agreement shall continue in full force and effect. Company disclaims any and all responsibility for content contained in any third party materials provided through links from the Company Internet site.
Customer engages Kroll Ontrack, Ltd. (“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 information contained in the data, media and/or equipment provided to Ontrack by Customer ("Customer Information") 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 the owner's sole property, and Ontrack shall employ reasonable measures to prevent the unauthorised use of Customer 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 except as required by law. Ontrack will employ appropriate technical and organisational measures to safeguard any Customer Information, including personal data, and will act only on the instruction of the Customer with respect to such information. Ontrack is part of a worldwide organisation and Customer hereby agrees to the transfer of information to Ontrack affiliates and suppliers worldwide as needed for the sole purpose of performing the engagement.
Customer agrees to pay Ontrack all sums authorised from time to time by Customer, which will typically include charges for Ontrack services, reasonable travel and per diem expenses for on-site work, shipping and insurance (both ways), and actual expenses, if any, for parts, media, and/or off-the-shelf software used in the Engagement. Unless otherwise agreed to in advance by Ontrack, all such sums are due and payable in advance, by company check, bank wire transfer, or credit card.
Any consent required of either party will be effective if provided in a commercially reasonable manner, which includes without limitation, verbal authorisation 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.
NO WARRANTIES; DISCLAIMER OF ALL WARRANTIES.
KROLL 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 indirect damages whatsoever. 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.
The parties agree that this Agreement shall be governed by English Law in every particular including formation and interpretation and shall be deemed to have been made in England. The parties agree that if any provision of this Agreement is held unenforceable, the validity of the remaining portions or provisions of the Agreement shall not be affected. Any revision or modification of this Agreement shall be effective only if it refers to this Agreement, is in writing, and is signed by an authorised representative of each party. Facsimile signatures for this Agreement and any subsequent exhibits are effective to bind the signing party and admissible in any court and/or for any lawful purpose. This Agreement, together with any exhibits or other attachments, constitutes the entire Agreement between the parties in relation to this subject matter. No provisions in either party’s purchase orders or in any other standard business forms employed by either party will apply even if accepted by the other party.
KROLL ONTRACK will hold the information you have given on this form for administering your account, credit risk assessment and customer management. Your information will be disclosed to employees of these departments, and/or carefully selected organisations who may contact you by mail or by telephone on behalf of KROLL ONTRACK. You may apply for a copy of the information that we hold about you and you have the right to have any inaccuracies corrected.