DATA RECOVERY SERVICES AGREEMENT
The following terms and conditions apply to all services provided by Datarecovery.com, Inc. (also known as ESS Data Recovery, Inc.), headquartered in Edwardsville Illinois, and its fully owned subsidiaries, hereinafter referred to as Datarecovery.com.
For the purposes of this agreement, any person or entity who engages the services of Datarecovery.com shall be hereinafter referred to as CLIENT. By setting up a ticket (also sometimes referred to as a case), shipping an electronic device; hereinafter be referred to as “medium.” to Datarecovery.com, hand-delivering, or using a courier service to deliver said medium to a location owned by Datarecovery.com, you are agreeing to these terms.
WITNESSETH: Datarecovery.com, Inc. asserts and CLIENT agrees that the data on said medium has been lost, and that Datarecovery.com agrees to attempt to restore CLIENT’s data to it’s condition prior to data loss.
EVALUATION. Datarecovery.com’s guarantee is to provide an evaluation using all resources and technology available (located at Datarecovery.com’s data recovery laboratory in Edwardsville, Illinois). No warranty is stated or implied as to the accuracy of such evaluation or the timeliness thereof. In some situations, there is an evaluation charge. This charge is not refundable and is separate from data recovery service fees.
DATA RECOVERY SERVICES. There will be no services charge unless Datarecovery.com recovers the specified data located on CLIENT’s medium. If only a portion of this specified data is recovered, Datarecovery.com shall bill pro-rata. A list or separate attachment specifying the needed data is required for this “no data / no charge” offer. If no list is provided, Datarecovery.com’s rate shall be based on the percentage of the data recovered on said medium immediately prior to data loss. This no-data, no-charge offer and pro-rata discount shall not apply if it is determined that Datarecovery.com has not been told the truth about the data loss scenario (see MISINFORMATION paragraph below). Determination of recovery success shall be at Datarecovery.com’s sole discretion. Datarecovery.com agrees to use all resources and technology available (located at Datarecovery.com’s data recovery laboratory in California, Illinois, Arizona, or Ontario Canada) to attempt said recovery, and CLIENT agrees that Datarecovery.com is in no way liable in the event Datarecovery.com is unsuccessful in recovering CLIENT’s data on the aforementioned medium. Any claims of missing, corrupted, or otherwise damaged data must be made in writing within 5 business days of your receipt of the recovered data.
SERVICES ESTIMATE. Datarecovery.com will provide an estimate of the maximum cost of recovery. This cost estimate is provided in writing to CLIENT prior to commencement of work. All amounts payable in USD or CAD Currency depending on country service is provided in and/or location of CLIENT. Services estimate does not include parts costs or evaluation fees (if any) previously agreed to by CLIENT for priority evaluation of CLIENT’s medium. Datarecovery.com agrees to notify CLIENT in the event the cost exceeds this estimate by more than ten percent (10%). Overdue Invoices may be subject to a 1.5% service charge per month. Accounts that are delinquent in payment by more than 30 days will result in the loss of any and all discounts applied to original invoice. Any discounts applied are revoked if payment becomes overdue.
CLIENT ERROR. If CLIENT sends the wrong medium to Datarecovery.com for recovery, and Datarecovery.com is successful in recovering the data, CLIENT is responsible for the recovery charges.
TRANSPORTATION. The CLIENT authorizes Datarecovery.com, Inc., its employees, independent contractors, and agents, to receive and transport this media/equipment/data to, from and between its facilities. Datarecovery.com assumes no liability for damage to CLIENT’s property during shipment or for uninsured shipments.
SHIPPING AND INSURANCE. Datarecovery.com assumes no liability for damage to CLIENT’s property during shipment or for uninsured shipments. Datarecovery.com will make its best effort in packaging CLIENT’s medium and estimating the value of CLIENT’s property for shipping insurance purposes. CLIENT agrees to notify Datarecovery.com in writing of special packaging requirements necessary to ensure the safe transportation and delivery of CLIENT’s property. CLIENT agrees to inform Datarecovery.com of the value of its property in writing if CLIENT wishes to insure CLIENT’s property for a specific amount.
MISINFORMATION. Datarecovery.com asserts and CLIENT agrees that if Datarecovery.com is given false information about a data loss scenario and through its recovery efforts Datarecovery.com reveals that that it has not been told the truth and as a result of this false information Datarecovery.com has gone to great effort and expense, then the pro-rata discount shall not apply and CLIENT is responsible for all normal recovery charges. Such misinformation includes, but is not limited to cases from a RAID array or server. If Datarecovery.com is misinformed by CLIENT about the state of the array, such as when a rebuild has taken place, when a failed disk is taken back online, or when a disk in a RAID set fails several days before the second disk, and CLIENT informs Datarecovery.com that both disks failed at the same time, CLIENT shall be responsible for the additional cost of completing the recovery.
TURNAROUND TIME. Datarecovery.com will attempt to complete the recovery within a time frame specified in its evaluation of said medium. Due to circumstances beyond its control, Datarecovery.com does not imply, represent, guarantee or commit to a completion date. Any turnaround estimate given is an estimate only, and all amounts due under this contract apply regardless of turnaround time.
OWNERSHIP. The CLIENT hereby represents, warrants, and affirms that he, she, or it is the owner or the authorized representative of the owner of the property and all of the information and data stored on said property. By asking Datarecovery.com, Inc. to enter into this agreement with you, as CLIENT, you declare, under penalty of perjury, that the foregoing representations are true and correct. You agree to indemnify Datarecovery.com, Inc. for any claims against Datarecovery.com, Inc. related to this data recovery effort, in the event that your representation that you own the data and other information is incorrect.
FAILURE TO CLAIM PROPERTY. Any property left with Datarecovery.com, Inc. unclaimed for 90 days, will be disposed. At which time, Datarecovery.com, Inc. shall have no liability to the CLIENT or any third party.
CONFIDENTIALITY AND NON-DISCLOSURE. Datarecovery.com, Inc. agrees not to disclose any and all information or data files supplied with, stored on, or recovered from CLIENT equipment except to employees, independent contractors, attorneys, or agents of Datarecovery.com, Inc. subject to confidentiality agreements or as required by law. Datarecovery.com and CLIENT agree and stipulate and the mutual promises contained in this section constitute full and adequate consideration for this provision of the Agreement. Both parties hereby stipulate and agree to entry of an Ex Parte Temporary Restraining Order to prevent any threatened, anticipated, or actual breaches of this section by either party.
PREPAYMENT AND FINAL PAYMENT. CLIENT agrees to pay Datarecovery.com for all services provided to CLIENT as described above. Any advance payment is to be applied to CLIENT’s final bill which is due upon receipt of an invoice from Datarecovery.com. Payment includes all applicable taxes (unless you provide proof of your tax-exempt status) including, but not limited to, sales and use, rental, excise, gross receipts and occupational or privilege taxes. If the original media remains unclaimed thirty (30) days after the recovery process has been ended by Datarecovery.com or CLIENT, Datarecovery.com reserves the right to securely destroy CLIENT’s original media at no additional charge to CLIENT.
ENTIRE AGREEMENT AND ENFORCEMENT: This Agreement (including any Addenda) constitutes the entire agreement as to its subject matter and supersedes all prior and contemporaneous oral and written agreements. All changes to this Agreement must be made in writing and signed or acknowledged by both parties. No waiver at any time of any of the provisions of the Agreement will be effective unless in writing. A waiver on one occasion will not be deemed to be a waiver at any subsequent time. This Agreement will be governed by Illinois law without regard to principles of conflicts of laws. The parties further agree and stipulate that this Agreement is being entered into in Edwardsville, Madison County, Illinois, and both parties contractually agree and stipulate to selection of the Circuit Court for Madison County, Illinois as the sole and exclusive jurisdiction over any and all disputes arising under, based upon, or in any way connected to this Agreement, and both parties waive any defenses to jurisdiction and venue and further agree, stipulate and consent to the personal and subject matter jurisdiction of the Circuit Court for Madison County as a convenient forum to resolve any disputes based upon or arising out of this Agreement or the performance of either party hereto. Should any clause, provision, or sentence of this Agreement be determined by a court to be void or invalid, that clause, provision or sentence shall be deemed severable and the remaining parts of this Agreement shall remain in full force and effect. Should Datarecovery.com be required to retain legal counsel to secure the performance of CLIENT with the terms of this Agreement, including payment of all amounts due and owing from CLIENT to Datarecovery.com, CLIENT agrees to pay to Datarecovery.com all reasonable costs and expenses incurred by Datarecovery.com, including its attorney’s and paralegal fees, expenses and costs.