Valid from October 25th, 2016
The following Terms and Conditions apply to the Business ONE service provided by Kroll Ontrack Srl, with registered office in Via Marsala, 34/A – 21013 Gallarate (VA) – Italy, VAT and Tax number 02389900131
Description and limitations of the Business ONE service
Kroll Ontrack’s Business ONE is only applicable to single hard disk drives up to 4TB of capacity and which do not contain databases and/or virtual machines. The CUSTOMER can choose the Business ONE option for Lab service or Clean Room service. The Lab service only includes operations that do NOT require opening of the original drive. It is only suitable if the CUSTOMER believes that the loss of data is imputable to malfunction that does not involve the internal components (e.g., issues with PCB). The Clean Room service is instead suitable if the CUSTOMER believes that the issue responsible for the data loss affects internal parts like the motor, heads, internal electronics.
If the service chosen by the CUSTOMER is not suitable (e.g., in case Clean Room activity is required but the CUSTOMER chose a Lab service), the CUSTOMER must expressly authorize any service change and higher costs before Kroll Ontrack performs any further operations.
A.1 Order form and application of the Terms and Conditions
The recovery service is requested by the CUSTOMER by signing a specific order form. Kroll Ontrack will provide the requested service in accordance with the present Terms and Conditions. The applicability of any conditions established by the CUSTOMER is hereby excluded. Clauses in SECTION C apply to the specified services.
B.1 Nature of the contract and obligation of means
Kroll Ontrack provides its services under a valid service supply contract which, pursuant to article 1326 of the Italian Civil Code, is deemed closed when the order form submitted by the CUSTOMER is received by Kroll Ontrack.
The CUSTOMER is aware that due to the peculiar nature of the services provided, the obligation borne by Kroll Ontrack is purely of means. While still committing to the highest level of diligence and the best possible execution of the service, Kroll Ontrack cannot guarantee that the achieved result will be the one desired by the CUSTOMER.
The CUSTOMER hereby renounces to initiate any objections or actions against Kroll Ontrack based on a result that is different from the one expected.
B.2 CUSTOMER’s right to use the device and privacy of data
The CUSTOMER declares to have a legitimate right to use the storage device(s) shipped to Kroll Ontrack (ORIGINAL DEVICE) and the data they contain. By signing the order form the CUSTOMER exonerates and releases Kroll Ontrack from any request for reimbursement that should arise against Kroll Ontrack as a result of any usage of the ORIGINAL DEVICE and the data it contains. Pursuant to and in accordance with decree-law 196/2003, by signing the order form the CUSTOMER nominates Kroll Ontrack “Responsabile del trattamento dei dati” with reference to the personal data stored in the ORIGINAL DEVICE. The CUSTOMER authorizes Kroll Ontrack to process any kind of data stored in the ORIGINAL DEVICE and to perform any operation that is necessary for the best execution of the requested service. For example Kroll Ontrack may copy, extract, modify, delete or destroy the data or the ORIGINAL DEVICE where data is stored. Kroll Ontrack commits to safeguard the privacy of all CUSTOMER data and all data stored in the ORIGINAL DEVICE.
B.3 Destruction and disposal of the ORIGINAL DEVICE
Unless the return of the ORIGINAL DEVICE is expressly requested in the order form, the CUSTOMER hereby authorizes Kroll Ontrack to destroy and dispose of the ORIGINAL DEVICE according to the current regulation. Return of the device is possible upon request only for HDD and SSD devices. External devices may not be reassembled priori to shipping. SSDs may need to be completely dismantled during the operations (e.g. memory chips may be disassembled) and will not be reassembled prior to return. The selection made on the order form by the CUSTOMER in relation to the return of the ORIGINAL DEVICE is final and cannot be modified. Kroll Ontrack will not give further communication prior or after destruction and disposal of the ORIGINAL DEVICE. The previous clause B.2 still applies in all circumstances.
B.4 Amount due and terms of payment
With reference to clause B.1 and where data recovery services are concerned, the CUSTOMER is required to pay the amount due with respect to the supply of the service. It is irrelevant if the achieved result is the one desired by the CUSTOMER. The amount due (which includes the service, the cost of any spare parts and shipping of the ORIGINAL DEVICE to and from Kroll Ontrack) is to be paid before the recovered data is delivered or before the ORIGINAL DEVICE is returned to the CUSTOMER.
For data recovery services with payment terms upon order Kroll Ontrack will invoice the CUSTOMER prior to performing any activity for the following cost items (where applicable): Return of the original device; Previously opened device; Original PCB missing; Fixed analysis cost for SSDs, smartphones, tablets, USB sticks and memory cards (irrespective of recovery outcome), Diagnosis cost (irrespective of recovery outcome), Additional Shipping and Customs Charges (when the CUSTOMER has not organized the shipping in line with provided shipping instructions). The procedure will begin upon receipt by Kroll Ontrack of the amount due and therefore the indicated timeframes are calculated from this point in time. Costs that are only applicable if recovery fails or if the order is not confirmed by the CUSTOMER (e.g. the fee for previously opened device) will be deducted from the final amount in case of successful recovery followed by order confirmation.
Without prejudice to the CUSTOMER’s obligation to pay the above listed cost items (where applicable), by signing the order form the CUSTOMER expressly authorizes Kroll Ontrack to destroy and dispose of the ORIGINAL DEVICE if the CUSTOMER fails to pay within 30 days from the issue date of the invoice. The CUSTOMER is aware that in the event described in the above paragraph it will no longer be possible to access or recover the data stored in the ORIGINAL DEVICE. The CUSTOMER therefore forgoes the possibility to have the ORIGINAL DEVICE back. Kroll Ontrack will not give further communication prior or after destruction and disposal of the ORIGINAL DEVICE.
B.5 Risk of transportation
The CUSTOMER accepts the risk of loss or damage to the device or data that may occur during transportation, including transportation between branches of Kroll Ontrack and between Kroll Ontrack and its affiliates. Kroll Ontrack will only be liable if any loss or damage is attributable to malice or grievous negligence by Kroll Ontrack. The burden of proof is borne by the CUSTOMER. Upon request by the CUSTOMER it is possible to insure the shipment. The insurance costs are payable by the CUSTOMER. In shipping the ORIGINAL DEVICE the CUSTOMER commits to follow the provided instruction carefully; any additional costs arising by following a different procedure or choosing other shipping options will be chargeable to the CUSTOMER.
B.6 Limitation of liability
Due to the nature of the service object of this contract, the CUSTOMER expressly exonerates Kroll Ontrack of any liability arising within or outside of this contract for any direct, indirect, incidental or consequential damages suffered by the CUSTOMER and/or by third parties as a result of the provided service, except in the event of proven malice or grievous negligence by Kroll Ontrack. Examples of damages include but are not limited to: loss of profit, interruption of productive or professional activities, loss of programs or other data. In the events for which Kroll Ontrack may be considered liable for the above mentioned damages, the liability of Kroll Ontrack is limited to five times the amount due for the provided service as indicated in the order form.
B.7 Applicable legislation and competent court
The interpretation and execution of the present contract, and the resulting relationship between parties are subject to Italian law. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
Unless a specific jurisdiction is established by law, the parties agree that for any dispute arising from the present contract the competent Court is identified with the Tribunal of Busto Arsizio (VA) – Italy.
B.8 Partial invalidity
In the event that one or more clauses of the present contract is deemed null and void, invalid or ineffective by the competent authority, in no event such voidance, invalidity or ineffectiveness impacts on the other clauses of the contract. The remaining clauses or parts thereof are considered modified as necessary so that the competent authority deems them valid and effective.
C.1 DATA RECOVERY SERVICE – APPLICABLE CONDITIONS
C.1.a The service offer detailed in the order form is valid for 15 days since the date of issue. After 15 days without formal acceptance by the CUSTOMER, the offer is considered expired and the conditions are void. The CUSTOMER can request a new offer from Kroll Ontrack.
C.1.b Due to the nature of the Service, it is an existing risk that the analysis of the device (DIAGNOSIS) or the data recovery operations may cause loss or alteration of the structure of the data stored in the ORIGINAL DEVICE and/or the destruction of the device itself. Such risk is borne by the CUSTOMER without prejudice to Kroll Ontrack’s liability in the event of malice or grievous negligence as stated in clause B.6.
C.1.c Unless otherwise requested in the order form, at the end of the DIAGNOSIS Kroll Ontrack will inform the CUSTOMER of the result. Based on this result, the CUSTOMER can decide whether to proceed with the recovery service or not. 15 days after the result is provided, if the CUSTOMER has not yet confirmed in writing their intention, Kroll Ontrack is expressly authorized by the CUSTOMER to destroy and dispose of the ORIGINAL DEVICE, irrespective of what is stated in the order form. In these circumstances the CUSTOMER will be liable to pay € 200.00 (VAT excluded) for order processing and device analysis (DIAGNOSIS).
The CUSTOMER is aware that in the event described in the above paragraph it will no longer be possible to access or recover the data stored in the ORIGINAL DEVICE. The CUSTOMER therefore gives up the possibility to have the ORIGINAL DEVICE back. Kroll Ontrack will not give further communication prior or after destruction and disposal of the ORIGINAL DEVICE.
C.1.d At completion of the DIAGNOSIS phase Kroll Ontrack will provide the CUSTOMER with a list of files in .ODR or text format. Kroll Ontrack performs a software analysis of the structure of all files included in the list. The CUSTOMER is aware that such analysis does not guarantee that the recovered data will be working correctly within the applications normally used by the CUSTOMER.
If said analysis reveals that at least 80% of the data present in the above mentioned list is complete, but the CUSTOMER decides not to proceed with the recovery, the CUSTOMER will be required to pay € 200.00 (VAT excluded) for order processing and device analysis (DIAGNOSIS). If requested in the order form, the ORIGINAL DEVICE will be returned after payment is received.
Without prejudice to the CUSTOMER’s obligation to pay the order processing and analysis cost, by signing the order form the CUSTOMER expressly authorizes Kroll Ontrack to destroy and dispose of the ORIGINAL DEVICE (regardless of what indicated in the order form) if the CUSTOMER fails to pay within 30 days from the issue date of the invoice. The CUSTOMER is aware that in the event described in the above paragraph it will no longer be possible to access or recover the data store in the ORIGINAL DEVICE. The CUSTOMER therefore gives up the possibility to have the ORIGINAL DEVICE back. Kroll Ontrack will not give further communication prior or after destruction and disposal of the ORIGINAL DEVICE.
C.1.e In the event that the ORIGINAL DEVICE on which the DIAGNOSIS is performed has been previously open or is otherwise not intact when delivered to Kroll Ontrack (manufacturer’s seals are broken or missing or any other signs of tampering) the CUSTOMER expressly authorizes Kroll Ontrack to apply an extra fee of € 200.00 (VAT exclude) for each device that has been tampered with. An additional fee of € 100.00 (VAT excluded) is also applied to any ORIGINAL DEVICE missing the original PCB.
If the device is encrypted, the CUSTOMER expressly authorizes Kroll Ontrack to charge an extra fee of € 250.00 (VAT excluded) in case of successful recovery. The CUSTOMER accepts the relevant extra charges and authorizes Kroll Ontrack to go ahead with the DIAGNOSIS procedures.
C.1.f The prices indicated in the DIAGNOSIS order form and described as “ALL INCLUSIVE” include: shipping of the ORIGINAL DEVICE to Kroll Ontrack, shipping of the backup with the recovered data to the CUSTOMER, and a backup device up to 2TB of capacity. Where a higher capacity is necessary, the price of the backup device will be quoted separately. If not "ALL INCLUSIVE", the costs of shipping (€ 20.00 (VAT excluded)) and of the backup device are not included in the prices indicated in the DIAGNOSIS order form. Additional information on the prices of backup devices can be requested to Kroll Ontrack directly.
C.1.g If the CUSTOMER has requested the return of the ORIGINAL DEVICE, this is subject to full payment of any invoice issued for order processing, analysis (DIAGNOSIS) and/or data recovery service. Without prejudice to the CUSTOMER’s obligation to pay the amount due for the services provided, by signing the order form the CUSTOMER expressly authorizes Kroll Ontrack to destroy and dispose of the ORIGINAL DEVICE (regardless of what indicated in the order form) if the CUSTOMER fails to pay within 30 days from the issue date of the invoice.
The CUSTOMER is aware that in the event described in the above paragraph it will not be possible to access or recover the data store in the ORIGINAL DEVICE. The CUSTOMER therefore gives up the possibility to have the ORIGINAL DEVICE back. Kroll Ontrack will not give further communication prior or after destruction and disposal of the ORIGINAL DEVICE.
C.1.h If the CUSTOMER submits the recovery order, the data will be saved on a suitable storage device (including but not limited to external hard drives and USB sticks). Windows NTFS backups up to 2TB in size and with a file count up to 1.000.000 which are saved on a hard disk device will be encrypted with 128-bit AES algorithm. Exceptions are possible due to technical reasons. Backups saved on different storage devices, Mac backups and backups over 2TB will not be encrypted.
The external hard drives provided by Kroll Ontrack to the CUSTOMER as backup device are subject to the warranty conditions offered by their supplier and/or manufacturer. Any additional warranty by Kroll Ontrack is explicitly excluded. Kroll Ontrack reserves the right to provide the CUSTOMER with a backup on USB stick at no cost. USB sticks are not covered by any kind of warranty. Upon receipt of the backup the CUSTOMER will copy the recovered data on his or her own computer or other storage device for additional protection. Any expenses for shipping of the backup device between Kroll Ontrack and the device supplier and/or manufacturer are payable by the CUSTOMER.
Unless otherwise requested in writing in the order form, after the recovery procedure Kroll Ontrack will store the data recovered from the ORIGINAL DEVICE, as a precaution and free of charge for the CUSTOMER, for a period of 14 days. When this term expires, unless otherwise requested in writing by the CUSTOMER, Kroll Ontrack will proceed with the permanent erasure of the recovered data.
C.1.i In providing the requested service Kroll Ontrack reserves the right to perform the necessary procedures or parts thereof at any of its branches or affiliates’ headquarters, in Italy or overseas. Any risk of loss or destruction to the devices or the data they contain is regulated by clause B.5 of these Terms and Conditions.
C.1.l Kroll Ontrack does not perform a virus scan of the recovered data. It is the CUSTOMER’s responsibility to perform a virus scan and verify that the backup received is free of viruses. In no event Kroll Ontrack will be held liable by the CUSTOMER for any virus detection or any damage arising from presence of virus.