Terms & conditions - website use

Last Revision Date: January 1, 2018

This website, including all of its features and content ("Website"), is made available by Kroll Ontrack, LLC (hereafter known as “Ontrack”) and is subject to this Terms of Use Agreement ("Agreement"). Ontrack is part of a group of companies specializing in electronic discovery and data recovery solutions and operates through (i) Kroll Ontrack, LLC; (ii) LDiscovery, LLC; and (iii) LD International Holdings Limited together with their respective subsidiaries across the world.

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.

This Website may permit You to link to other websites that may or may not be affiliated with this Website and/or with Ontrack. These other linked websites, including the websites of Ontrack's group companies, as well as the websites of Ontrack's third party service providers, or partners (collectively "Third Parties") may have different terms of use that are not the same as in this Agreement. Your access to and use of such linked websites through links provided on this Website are not governed by this Agreement, but instead are governed by the terms of use and policies of those websites, and Ontrack disclaims any and all responsibility for your access to and use of such linked websites.

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.

YOUR RESPONSIBILITIES

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.

PROHIBITED ACTIVITIES

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.

WARRANTIES

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.

INDEMNIFICATION

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.

GENERAL PROVISIONS

Ontrack's failure to act with respect to a breach by You or others does not waive Ontrack's right to act with respect to subsequent or similar breaches. If any provision of this Agreement is held to be invalid or unenforceable, such provision will be struck and the remaining provisions enforced. Headings are for reference purposes only. You and Ontrack are dealing at arms' length, creating a commercial relationship. Ontrack is not your agent, representative or fiduciary. The provisions and conditions of this Agreement, and each obligation referenced herein, represent the entire Agreement between Ontrack (including the Third Parties), its group companies and You, and supersede any prior agreements or understandings not incorporated herein. In the event that any inconsistencies exist between this Agreement and any future published terms of use or understanding, the last published Agreement shall prevail.

ACCOUNT CREATION

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.

PRIVACY

Personal Information that you may submit or provide to Ontrack through this Website is subject to Ontrack's Privacy Policy, which can be found at http://www.Ontrack.com/privacy and is incorporated into this Agreement. In addition, by using this Website you expressly consent to Ontrack collecting Personal Information and other information about you, as more fully described in Ontrack's Privacy Policy.

Terms & conditions - data recovery services

Updated: 9 November 2016 See previous terms & conditions

These Terms and Conditions apply to any Data Recovery Services that Ontrack Ltd (“Ontrack”) provides to you (the "Customer").

  1. The Engagement.
    1. By confirming an order Customer engages Ontrack (directly or through its suppliers) to provide with reasonable care and skill the following services (each an "Engagement"):
      1. inspecting and evaluating the problem reported by Customer;
      2. to the extent reasonably practical, identifying (if not already identified) the problem; and
      3. to the extent possible, retrieving the data or minimising the damage to, the equipment/data/media; and
      4. any other services requested by Customer and agreed by Ontrack from time to time.
    2. Ontrack will use reasonable endeavours to perform the Data Recovery Services within the timeframe agreed with the Customer or, if no timeframe is agreed, within a reasonable time.
  2. Confidentiality.
    1. 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 such Engagement, and will otherwise hold such Customer Information in the strictest confidence.
    2. Any Customer Information disclosed by Customer to Ontrack as part of the Engagement will remain the Customer's (or relevant owner's) sole property, and Ontrack shall employ reasonable measures to prevent the unauthorised use of such Customer Information, which measures shall not be less than those measures employed by Ontrack in protecting its own confidential information. Ontrack will not disclose Customer 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 any Customer Information to Ontrack affiliates and suppliers worldwide as needed for the sole purpose of performing the Engagement.
  3. Payment.
    1. Customer agrees to pay Ontrack all sums due from time to time by Customer and as always previously notified by Ontrack in writing, which will typically include charges for Ontrack’s 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 cheque, bank wire transfer, or credit card.
  4. Consent.
    1. If consent is required of either party for performance of any aspect of the Engagement, such consent will be effective if provided in writing (including by email or facsimile), or verbally if such verbal consent is followed by written confirmation from the relevant party at the earliest possible opportunity.
  5. Acknowledgment of Existing Condition.
    1. By confirming an order Customer acknowledges that the equipment/data/media may be damaged prior to Ontrack’s 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 will take reasonable care but regrets that it will otherwise not assume responsibility for existing or additional damage that may occur to Customer's equipment/data/media during Ontrack’s efforts to complete the Engagement.
  6. No other terms
    1. No other terms these terms set out everything the parties have agreed. Except as expressly set out in these terms and subject always to the limitations below.
    2. Ontrack makes, and customer receives, no express representations, warranties or conditions (in any materials or communication) in relation to:
    3. The standards or results of the service; or
    4. The standards, quality, merchantability or fitness for purpose of any goods furnished to the customer by Ontrack as part of the services.
    5. Any implied warranty, condition or representation is excluded to the fullest extent permitted by law.
  7. Limitation of liability
    1. Ontrack does not exclude or limit in any way any liability that cannot be restricted or excluded as a matter of law, and these Terms and Conditions are to be interpreted accordingly.
    2. If Ontrack fails to take reasonable care in providing the Data Recovery Services, Ontrack will use reasonable endeavours to correct its performance and repair any damage caused at no additional cost to the Customer. Alternatively, if it is not possible for Ontrack to correct its performance, the Customer will be entitled to an appropriate reduction in the price payable for the Data Recovery Services.
    3. If any recovered data is furnished by Ontrack to the Customer on a durable medium as part of the Data Recovery Services, such durable medium will be of satisfactory quality and reasonably fit for the purpose for which Ontrack has provided such durable medium to the Customer, for a reasonable period following delivery of such durable medium to the Customer. If such durable medium does not conform to the standards set out in this section, Ontrack's sole liability, and the Customer's sole remedy, in respect of such non-conforming good is repair or replacement of the relevant durable medium at the sole cost of Ontrack.
    4. Under no circumstances will Ontrack accept any liability for any of the following whatever the cause:
      1. Subject to taking reasonable skill and care, loss of or damage to data;
      2. Loss of profits, sales, business or revenues;
      3. Loss of or damage to reputation or goodwill;
      4. Any indirect or consequential loss, cost or expense of any nature whatsoever
    5. Ontrack's total liability (in contract, negligence or otherwise) to Customer in connection with any Data Recovery Services shall in no event exceed the total sums payable under the relevant Engagement by Customer to Ontrack.
  8. Customer’s Representation and Indemnification.
    1. Ontrack is not liable to any third party for any loss such third party may suffer in connection with the Data Recovery Services, including but not limited to any damage to, or loss or disclosure of, any equipment, data (including any incidental data stored on any equipment) or media furnished to Ontrack by the Customer in connection with the Data Recovery Services.
    2. Customer represents and warrants to Ontrack that it is the owner of, and/or has the right to be in possession of, all equipment, data or media furnished to Ontrack, that it has the full authority, and has obtained all necessary consents, to engage Ontrack to perform the Data Recovery Services for such equipment, data or media, and that the collection, possession, processing and transfer of such equipment, data or media as part of the Data Recovery Services is in compliance with all applicable data protection laws.
    3. The Customer further warrants and undertakes that it will only use the Data Recovery Services for its own use (being, where Customer is a consumer, personal domestic and private use and, where Customer is a business, for internal use by Customer's business) and will not resell Ontrack's services to any third party or pass off (or attempt to pass off) any of Ontrack's services as its own.
    4. Customer will defend, at its expense, indemnify, and hold Ontrack harmless against any damages or expenses that may occur (including reasonable legal fees), and pay any cost, damages, or attorneys’ fees awarded against Ontrack resulting from Customer’s breach of this section.
  9. Other Terms
    1. These Terms and Conditions and all associated contracts are governed by English Law and any related dispute or claim will be determined by the English courts (provided that this shall not exclude the right of a consumer in Scotland or Northern Ireland to bring claims there).
    2. The parties agree that if any provision of these Terms and Conditions is held unenforceable, the validity of the remaining portions or provisions of these Terms and Conditions shall not be affected. Any revision or modification of these Terms and Conditions shall be effective only if it refers to these Terms and Conditions in writing, and is signed by an authorised representative of each party. Facsimile, scanned, email and digital signatures for agreement to these Terms and Conditions and any subsequent exhibits are effective to bind the signing party and admissible in any court and/or for any lawful purpose.
    3. These Terms and Conditions (which are only in English) and any other related documents (e.g. order forms) for the Engagement and our Privacy Policy are the whole agreement between Ontrack and Customer. Any terms of purchase of the Customer are excluded.
    4. Before confirming your order, check the order and these Terms and Conditions carefully, and print or save a copy of these Terms and Conditions for future reference.
  10. Return of Data and Equipment
    1. As stated above, the Customer acknowledges that the efforts of Ontrack to recover data may result in the destruction of the Customer's data, media, equipment or hardware. However, if any data, media, equipment or hardware remains intact and in the possession of Ontrack following any evaluation or performance of Data Recovery Services such items will be either:
      1. destroyed; or
      2. returned to Customer’s address subject to Ontrack's standard delivery charges as provided in writing, and as agreed by the Customer and Ontrack.
    2. If the Customer fails to provide Ontrack with adequate instructions for the return of any data, media, equipment or hardware (including but not limited to provision of an up-to-date address for delivery), Ontrack will retain such items for ninety (90) days following completion of the Data Recovery Services (whether or not any data is recovered), following which the items will be considered abandoned by the Customer and will be disposed of or destroyed (including all data or media containing data) in the sole discretion of Ontrack.
  11. Data Protection
    1. The information provided by Customer, will be held and used subject to Ontrack's Privacy Policy. Ontrack may use that information for administering Customer's account, credit risk assessment and customer management.
    2. Subject to the terms of Ontrack's Privacy Policy, Customer information will be disclosed to employees of these departments, and/or carefully selected organisations who may contact Customer by mail or by telephone on behalf of Ontrack. Customer may apply for a copy of the information that Ontrack holds about them and has the right to have any inaccuracies corrected

Terms & conditions - Data recovery service

The Engagement

Customer engages 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.

Confidentiality

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.

Payment

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.

Consent

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

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.

Miscellaneous

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.

Data protection

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 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.

Terms & conditions - Ontrack DataAdvisor

THESE TERMS AND CONDITIONS GOVERN CLIENT’S ACQUISITION AND USE OF Ontrack’S SERVICES, AS FURTHER DEFINED BELOW. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS, OR BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS AND CONDITIONS, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT THAT YOU HAVE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS.

This agreement is effective as of the date you first accept this Agreement (the “Effective Date”).

1. Definitions

The definitions set forth in this Article shall apply to the following terms when used with initial capital letters in this Agreement, its attachments, and amendments hereto.

“Client” means the company or legal entity referenced above or on the Order Form(s) issued under this Agreement.

“Client Data” means any data uploaded by Client, Users or by Ontrack on Client’s behalf for the purpose of using the Services.

“Fees” means the sums charged for access to and/or use of the Services and any additional services ordered under this Agreement and any Order Form by Client

“Order Forms” means proposals, statements of work and associated ordering documents for Client’s purchases from Ontrack that are executed hereunder All Order Forms shall be subject to the terms and conditions of this Agreement.

“Services” means the specific technology products made available by Ontrack for Client access and associated professional services as specified in Order Forms issued hereunder.

“Users” means individuals who are authorised by Client to access and use the Services and who have been supplied user identification and passwords by Client (or by Ontrack at Client’s request) and for whom Client has paid the appropriate User fee.

2. Provision and Use of the Services

Ontrack shall make the Services available to Client and its Users pursuant to the terms of this Agreement, and all Order Forms.  Access to and use of the Services is granted solely to the Client stated in the Order Form and its designated Users and shall not be shared with any third parties other than those designated by Client and approved by Ontrack.

Ontrack shall: (i) provide basic technical support for the Services at no additional charge; (ii) use commercially reasonable efforts to make the Services available to Client 24 hours a day, 7 days a week, except for: (a) planned downtime for regularly scheduled maintenance, which will be communicated to Client in advance; or (b) any circumstances beyond Ontrack’s reasonable control including without limitation, internet service provider failures or delays.

Client shall use the Services for internal business purposes only, and shall not: (i) sell, resell, lease, distribute, license, or otherwise commercially exploit the Services or make the Services available to an undesignated third party, unless otherwise agreed by Ontrack; (ii) tamper with the security of the Services or otherwise attempt to gain access to or otherwise breach Ontrack’s systems; or (iii) reverse engineer the Services.

Client is responsible for all activities that occur in Client’s account and for each User’s compliance with all terms and conditions of this Agreement.

3. Fees and Payments

The Fee Schedule (and applicable service assumptions) shall be as set forth in individual Order Forms issued hereunder.

The Fees do not include taxes and Client shall be responsible for all taxes associated with its purchases under this Agreement.

Capacity-based fees: To the extent a capacity limitation is specified in the Order Form and Client exceeds such limits, Ontrack shall charge Client, and Client agrees to pay the excess Fees as set forth in any Order Form for the remainder of the then-existing term of the Order Form.

Payment: Ontrack will invoice Client on a calendar monthly basis and Client shall make payment to Ontrack for all Fees as set forth in the applicable Order Form within thirty (30) days from invoice date.

Late Payments: Late payments on charges (that are not under reasonable and good-faith dispute) are subject to a late payment charge which will be added in the amount of 5% per annum above the base rate of the Bank of England. Should it become necessary for Ontrack to undertake collection activities Client also agrees to pay all costs of collection, including but not limited to reasonable legal fees.

Client understands that Ontrack reserves the right to suspend performance of and/or terminate its Services at any time if Client fails to pay Ontrack’s invoices in a timely manner.

4. Ownership and Proprietary Rights

Client retains all right, title and interest in and to all Client Data provided to Ontrack and/or uploaded for use with the Services.

Ontrack retains all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights throughout the world) in and to the Services, including all derivative works, improvements, documentation and all materials that result from Ontrack’s performance of the support services or feedback received by Client. Other than the limited license granted herein to access and use the Services, Client is granted no other rights.

No Licence or Immunity Unless Expressly Granted. NO LICENCE, NON-ASSERT OR IMMUNITY IS GRANTED BY EITHER PARTY HERETO TO THE OTHER PARTY, EITHER DIRECTLY OR BY IMPLICATION, ESTOPPEL OR OTHERWISE, OTHER THAN AS EXPRESSLY PROVIDED IN THIS AGREEMENT.

5. Term and Termination

This Agreement shall commence on the Effective Date and is effective until terminated. To the extent a minimum term is specified in an Order Form, the term for that particular Order Form will commence on and continue for the minimum term specified in the Order Form.  If, at the end of the specified term in an Order Form, the parties have not reached an agreement on an extension, the Services shall continue on a month-to-month basis for a period up to three (3) months at the same rates specified in the Order Form.

Ontrack may terminate this Agreement or individual Order Forms for any material breach of the Agreement or any Order Form that remains uncured for a period of thirty (30) days after notice from Ontrack to Client of the existence of such breach.  A material breach as that term is used herein shall include, but is not limited to failure of the Client to make payments in accordance with this Agreement. Termination shall not relieve Client of the obligation to pay Ontrack the Fees agreed in the Order Form.

Client may terminate this Agreement or individual Orders by providing sixty (60) days’ written notice to Ontrack. Where termination is without material breach by Ontrack, a termination fee will apply. The termination fee will be the greater of: (i) the projected monthly fees for the remainder of the term of the Order Form; or (ii) three (3) months of the monthly fees. The termination fee is payable in full on or before the time termination is to become effective.

Upon any termination of this Agreement or expiration or termination of individual Orders and upon Client’s written request, Ontrack may provide Client with continued access to the Services for a period of up to thirty (30) days to facilitate the retrieval of Client Data by Client. After such 30-day period Ontrack shall have no obligation to maintain or provide access to any Client Data and shall thereafter, unless legally prohibited, remove Client Data from its systems.

In the event of termination, Client shall be responsible for all Fees incurred up to and including the effective date of termination.

The following sections survive any expiration or termination of this Agreement: 3-17.

6. Confidentiality and Data Protection

In the performance of this Agreement, the Parties may have access to information that may include information, data or materials relating to a Party’s products and services, technology, business plans, prices, financial information, marketing plans, and other trade secret or proprietary information that a party either designates as confidential, or should be reasonably understood given the nature of the information to be confidential (“Confidential Information”). The Party disclosing such information under this Agreement is referred to as “Disclosing Party” and the Party receiving such information is referred to as the “Receiving Party.”

Receiving Party agrees, with respect to such Confidential Information to: (i) use such Confidential Information only for the purposes of carrying out its obligations pursuant to this Agreement; (ii) to 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) to disclose Confidential Information to its employees and Users only on a need-to-know basis and, to the extent a User is not an employee of Client, provided that such User(s) have signed confidentiality agreements with Client containing provisions no less stringent than required in this section.

Confidentiality obligations shall not apply to any information which (i) enters the public domain through no fault of Receiving Party; (ii) which was known to Receiving Party prior to receipt from Disclosing Party; (iii) which is disclosed to Receiving Party by a third party which in making such information available to Receiving Party is not in violation of any confidentiality obligation to the Disclosing Party; or (iv) which is independently developed by Receiving Party.

In the event that Receiving Party is served with a witness summons, request for information or documents or similar legal process (“Request”) Receiving Party will provide the Disclosing Party with prompt notice of the Request so that Disclosing Party may seek a Protective Order or otherwise seek to limit or protect such Confidential Information and/or documents from disclosure.

If and to the extent any legislation applying to the processing of personal data applies to the Client Data or the Services, it is agreed and understood that at all times in undertaking any and all aspects of the Services, Ontrack is acting as a data processor appointed by Client in its capacity as data controller. Client acknowledges and agrees that Client Data may be transferred, accessed, stored and processed in the United States and/or other countries in order to carry out the Services and by using the Services consents to such transfer, processing and use of the Client Data by Ontrack. Client confirms that it has obtained all necessary consents or permissions from the data subject(s), other data controllers and/or any relevant government or regulatory body to enable the transfer, storage and processing of Client Data outside the European Economic Area, or, if Client is unable to obtain such consents and/or permissions, that it will execute model clause agreements directly with such affiliates or sub-contractors of Ontrack to ensure such transfers are in accordance with data protection laws.

Client shall also have sole responsibility for the accuracy, quality, integrity and legality and reliability of any Client Data provided to Ontrack and of the means by which it acquired such data.

Ontrack shall maintain appropriate administrative, physical and technical safeguards for the protection of the security, confidentiality and integrity of the Client Data and shall not: (i) access, process, or use the Client Data except to provide or improve the Services or otherwise at the direction of Client, including to perform any support to address or prevent technical problems; or (ii) disclose Client Data except as compelled by law or regulation or with Client’s consent.

7. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS

Client represents and warrants to Ontrack that: (i) Client is the owner of, and/or has the lawful right to be in possession of, all Client Data furnished to Ontrack under this Agreement; (ii) the collection, processing, processing instructions  and transfer of Client Data for use with the Services and/or to Ontrack is in compliance with all applicable laws and regulations; and (iii) that it has validly entered into this Agreement and has the legal power and authority to do so and bind Client to these terms and conditions.

Ontrack warrants to Client that the Services shall perform materially in accordance with their published specifications.

Each party hereby represents and warrants that it has the full right, power and authority to enter into this Agreement and perform its duties and obligations hereunder.

Each party further represents and warrants that in entering into this Agreement, it does not rely on any promises, inducements, or representations made by any party or third party with respect to this Agreement or any other business dealings with any party or third party, now or in the future.

EXCEPT AS EXPRESSLY SET FORTH HEREIN NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM USAGE OF TRADE OR COURSE OF DEALING OR PERFORMANCE TO THE MAXIMUM EXTENT PERMITTED BY LAW.

8. Indemnification

Client agrees to defend, hold harmless and indemnify Ontrack (including its officers, directors, employees and agents) against any claim, demand, suit, proceeding, damages and costs (including reasonable legal fees and disbursements) that arise out of Client’s breach of Section 7.

Ontrack shall defend, indemnify and hold Client harmless from any third party claim, demand, or cause of action based upon or arising out of any claim that the Services infringe any U.S. patent or copyright or misappropriates any trade secret existing under the laws of the U.S. Ontrack shall pay any related damages, costs and expenses, including reasonable attorneys’ fees, if any, finally awarded in such suit or the amount of the settlement thereof. Ontrack will not be liable for claims based upon or arising from: (a) the use or combination of the Services with software, hardware, or other materials not provided by Ontrack; or (b) any use of the Services in violation of this Agreement or any Order Form.

Each indemnified party (the party seeking indemnification) hereunder shall provide the indemnifying party with prompt written notice of a claim and shall cooperate with the indemnifying party in good faith and in all reasonable respects in connection with the defence of any such action at the expense of the indemnifying party. The indemnified party may, at its option, participate in the defence in any such claim, with its separate counsel and at its own cost, and the indemnifying party agrees to cooperate in good faith and in all reasonable respects with such counsel; provided, however, that the indemnifying party shall have sole control of the defence and any settlement of such claim or action and the indemnified party shall not compromise or settle any such claim without the prior written consent of the indemnifying party. In no event shall the indemnifying party, without the reasonable consent of the indemnified party, enter into any settlement that reasonably can be expected to require a material affirmative obligation of, result in any ongoing material liability to, or materially prejudice the indemnified party.

9. Limitation of Liability; Limitation of Damages

THE TOTAL LIABILITY OF EITHER PARTY TO THE OTHER SHALL IN NO EVENT EXCEED THE TOTAL SUMS PAID BY CLIENT TO Ontrack UNDER THE ORDER FORM THAT GIVES RISE TO THE CLAIM FOR DAMAGES. CLIENT ACKNOWLEDGES THAT THE ESTIMATED AND ACTUAL FEES AND CHARGES REFLECT THIS LIMITATION OF LIABILITY AND ALLOCATION OF RISK.

IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (WHICH SHALL INCLUDE WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS OR PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, OR OTHER PECUNIARY LOSS) WHETHER BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY, ARISING OUT OF THIS AGREEMENT AND ANY ORDER FORM OR SOW THERETO, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

THE LIMITATIONS SET FORTH IN THIS SECTION DO NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS.

10. Uncontrollable Circumstances

Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent that such performance is rendered impossible or made impracticable due to causes beyond either Party’s reasonable control.

11. Governing Law and Dispute Resolution

The Agreement, all non-contractual obligations arising from this Agreement and any disputes will be governed the laws of England and the parties submit to the exclusive jurisdiction of the English courts. If any dispute arises between us, we will attempt to resolve the dispute in good faith by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. The commencement of mediation will not prevent the parties commencing or continuing court proceedings. In the event of any dispute or claim between Ontrack and Client, each party shall bear its own costs in connection therewith, except as otherwise set forth in this Agreement.

12. Severability

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.

13. Independent Contractors

Each Party is acting as an independent contractor and neither this Agreement nor any terms and conditions contained herein, shall be construed as creating a partnership, joint venture or agency relationship among the Parties.

14. Assignment

Neither Party may assign this Agreement or any of its rights or obligations hereunder without the express written consent of the other Party. Any assignment in violation of this paragraph will be null and void. Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, in connection with a merger, corporate re-organisation, sale of substantially all of its assets, or similar transaction (a “Change in Control”). In the event of a Change in Control the Agreement shall bind and inure to the benefit of the parties, their successors and assigns.

15. No Waiver

The failure of either Party to enforce at any time any of the provisions hereof shall not be deemed a waiver of such provision, or any other provision, or of the right of such Party thereafter to enforce any provision hereof.

16. Entire Agreement

This Agreement, together with any Order Forms, exhibits or other documents referred to herein, constitutes the entire agreement between the Parties in relation to this subject matter hereof and supersedes any prior and contemporaneous oral or written agreements. In the event of any conflict or inconsistency between the terms of an Order Form and this Agreement, the terms of this Agreement shall take precedence, unless specifically agreed to otherwise in writing in an Order Form. No terms or conditions in any Client-issued purchase order, documentation or contract shall be incorporated into or form any part of the Agreement and all such terms will be null and void.

17. Notices

All notices and demands hereunder shall be in writing and shall be served by personal service or by mail at the address of the receiving Party as reflected on the Order Form with a copy to legal counsel. All notices or demands by mail shall be sent by registered mail, return receipt requested, or by nationally-recognised private express courier, and shall be deemed to have been duly given three (3) days subsequent to being sent.