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Data
Recovery Terms
DATA RECOVERY IS NOT GUARANTEED. There will be no charge unless
ESS recovers the “important” data located on CLIENT’s
medium. If only a portion of this important data is recovered,
ESS shall bill pro-rata. A list or separate attachment indicating
the important data is required for this "no data / no
charge" offer. If no list is provided, ESS's rate shall
be based on the percentage of all data that is recovered.
Determination of recovery success shall be at ESS’s
sole discretion. ESS agrees to use all resources and technology
available (located at ESS's data recovery laboratory in California,
Illinois, or Minnesota) to attempt said recovery, and CLIENT
agrees that ESS is in no way liable in the event ESS is unsuccessful
in recovering CLIENT'S data on the aforementioned medium.
In performing its services under this contract, ESS must break
the factory seals on CLIENT'S medium. CLIENT agrees that ESS
is not liable for any consequences of this action. 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. ESS assumes no liability for damage to CLIENT's property
during shipment or for uninsured shipments.
EVALUATION. ESS’s guarantee is to provide an evaluation
using all resources and technology available (located at ESS’s
data recovery laboratory in Edwardsville, Illinois). No warranty
is stated or implied as to the accuracy of such evaluation
or the timeliness thereof.
SERVICES ESTIMATE. ESS has estimated the maximum cost of recovery.
This cost estimate is provided in writing to CLIENT prior to
commencement of work. All amounts are payable in US currency
only. Services estimate does not include evaluation fees (if
any) previously agreed to by CLIENT for priority evaluation
of CLIENT’s medium. ESS 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 ESS for recovery, and ESS is successful in recovering the
data, CLIENT is responsible for the recovery charges.
TRANSPORTATION. The CLIENT authorizes ESS Data
Recovery, Inc., its employees, independent contractors, and
agents, to receive and transport this media/equipment/data
to, from and between its facilities. ESS assumes no liability
for damage to CLIENT's property during shipment or for uninsured
shipments.
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 ESS
Data Recovery, 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 ESS Data Recovery, Inc. for any claims against
ESS Data Recovery, 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 ESS Data
Recovery, Inc. unclaimed for 90 days, will be disposed. At which time, ESS
Data Recovery, Inc. shall have no liability to the CLIENT or any third party.
TURNAROUND TIME. ESS will attempt to complete the recovery
within a time frame specified in its evaluation of said medium. Due to circumstances
beyond its control, ESS 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.
CONFIDENTIALITY. ESS Data Recovery, 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 ESS Data Recovery, Inc. subject to confidentiality agreements
or as required by law.
PREPAYMENT AND FINAL PAYMENT. CLIENT agrees
to pay ESS 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 ESS.
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 ESS or CLIENT, ESS 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 by both parties and, accordingly,
any terms on your ordering documents shall be of no force
or effect. Any action by either party to enforce this agreement
shall be brought about only in the courts of Illinois. Should
any clause, provision, or sentence of this agreement be determined
by a court to be invalid, that clause, provision, or sentence
alone shall be invalid, and the remaining parts of this agreement
shall be considered in full force and effect. In any action
to enforce this Agreement, the ESS shall be entitled to recover
its costs and expenses, including reasonable attorney’s
fees.
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