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Terms
and Conditions
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The
Engagement.
Customer engages
Data Recovery Services, Inc. (“DataRecoveryServicesinc.com”) and/or its
suppliers to: inspect, evaluate, and identify the problem (if not
already identified); and/or retrieve, or minimize the damage to, the
equipment/data/media; and/or provide other services as may be requested
by Customer from time to time.
Confidentiality.
Data
Recovery Services, Inc. will use any Customer
information contained in the data, media and/or equipment provided to
Data Recovery Services, Inc. by Customer 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 Customer’s sole property, and Data
Recovery Services, Inc. shall employ
reasonable measures to prevent the unauthorized use of such information,
which measures shall not be less than those measures employed by Data
Recovery Services, Inc. in protecting its own confidential information.
Data
Recovery Services, Inc. will not disclose confidential information
except to employees or consultants reasonably requiring such information
(and who have secrecy obligations to Data
Recovery Services, Inc.) and not to
any other party.
Payment.
Customer agrees
to pay Data Recovery Services, Inc. all sums authorized from time to time by
Customer, which will typically include charges for Data Recovery
Services, Inc. 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 Data Recovery Services, Inc., all such
sums are due and payable in advance, by company check, bank money order,
or credit card.
Consent.
Any
consent required of either party will be effective if provided in a
commercially reasonably manner, which includes without limitation,
verbal authorization if followed by written confirmation by Data
Recovery Services, Inc. at the earliest possible opportunity, and/or facsimile.
Acknowledgment
of Existing Conditions.
Customer
acknowledges that the equipment/data/media may be damaged prior to Data
Recovery Services, Inc. receipt, and Customer further acknowledges that the efforts of
Data Recovery Services, Inc. to complete the Engagement may result in the destruction of or further
damage to the equipment/data/media. Data Recovery Services, Inc. regrets that it
will not assume responsibility for additional damage that may occur to
the Customer's equipment/data/media during Data Recovery Services, Inc. efforts
to complete the Engagement.
NO
WARRANTIES; DISCLAIMER OF ALL WARRANTIES.
Data
Recovery Services, Inc.,
MAKES AND CUSTOMER RECEIVES NO WARRANTIES OR CONDITIONS FOR ANY GOOD OR
SERVICE, EXPRESS, IMPLIED, STATUTORY, OR IN ANY COMMUNICATION WITH
CUSTOMER, AND Data Recovery Services, Inc. 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
Data Recovery Services, Inc. be
liable for any indirect damages whatsoever. The total liability of Data
Recovery Services, Inc. to Customer under this Agreement shall in no event exceed the total sums
paid by Customer to Data Recovery Services, Inc..
Customer’s
Representation and Indemnification.
Customer warrants to
Data Recovery Services, Inc. that it is the owner of, and/or has the right to be in possession of,
all equipment/data/media furnished to Data Recovery Services, Inc.; and Customer
will defend, at its expense, indemnify, and hold Data Recovery Services, Inc.
harmless against any damages or expenses that may occur (including
reasonable attorneys’ fees), and pay any cost, damages, or
attorneys’ fees awarded against Data
Recovery Services, Inc. resulting from
Customer’s breach of this section.
Miscellaneous.
The
parties agree that the laws of the state of Delaware shall govern this
Agreement and agree to venue in New York County, New York; provided,
however, that 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. Except for the obligation to make payments, nonperformance of
either party shall be excused to the extent performance is rendered
impossible due to causes beyond such party's reasonable control. This Agreement, together with any exhibits or other attachments
provided by Data Recovery Services, Inc., constitutes the entire Agreement
between the parties in relation to this subject matter.
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Data
Recovery Services,
inc.
