Terms & Conditions - Website use
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.
- 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:
- 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.
- 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.
- 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.
- 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, non-commercial 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, non-commercial 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.
- 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
- exported, directly or indirectly, in violation of Export Laws, or
- are used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.
- 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 defence of any claim. Company reserves the right, at its own expense, to assume the exclusive defence 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
Terms & conditions - Data recovery service
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.
Terms & conditions - Ontrack DataAdvisor
THESE TERMS AND CONDITIONS GOVERN CLIENT’S ACQUISITION AND USE OF KROLL 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”).
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 Kroll 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 Kroll 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 Kroll Ontrack for Client access and associated professional services as specified in Order Forms issued hereunder.
“Users” means individuals who are authorized by Client to access and use the Services and who have been supplied user identification and passwords by Client (or by Kroll Ontrack at Client’s request) and for whom Client has paid the appropriate User fee.
2. Provision and Use of the Services
Kroll 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 Kroll Ontrack.
Kroll 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 Kroll 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 Kroll Ontrack; (ii) tamper with the security of the Services or otherwise attempt to gain access to or otherwise breach Kroll 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, Kroll 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: Kroll Ontrack will invoice Client on a calendar monthly basis and Client shall make payment to Kroll Ontrack for all Fees as set forth in the applicable Order Form within thirty (30) days from invoice date. Fees are non-refundable and based on Services purchased and not actual usage (except for Fees based on volume in the case of overage Fees).
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 Kroll 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 Kroll Ontrack reserves the right to suspend performance of and/or terminate its Services at any time if Client fails to pay Kroll 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 Kroll Ontrack and/or uploaded for use with the Services.
Kroll 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 Kroll 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 License or Immunity Unless Expressly Granted. NO LICENSE, 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.
Kroll 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 Kroll 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 Kroll Ontrack the Fees agreed in the Order Form.
Client may terminate this Agreement or individual Orders by providing sixty (60) days’ written notice to Kroll Ontrack. Where termination is without material breach by Kroll 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, Kroll 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 Kroll 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, Kroll 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 Kroll 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 Kroll 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 Kroll Ontrack and of the means by which it acquired such data.
Kroll 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 Kroll Ontrack that: (i) Client is the owner of, and/or has the lawful right to be in possession of, all Client Data furnished to Kroll Ontrack under this Agreement; (ii) the collection, processing, processing instructions and transfer of Client Data for use with the Services and/or to Kroll 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.
Kroll 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.
Client agrees to defend, hold harmless and indemnify Kroll 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.
Kroll 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. Kroll 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. Kroll 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 Kroll 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 defense of any such action at the expense of the indemnifying party. The indemnified party may, at its option, participate in the defense 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 defense 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 KROLL 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 Kroll Ontrack and Client, each party shall bear its own costs in connection therewith, except as otherwise set forth in this Agreement.
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.
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-organization, 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.
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-recognized private express courier, and shall be deemed to have been duly given three (3) days subsequent to being sent.