Cheadle Data Recovery Ltd Terms and Conditions
A. Customer requests certain inspection and evaluation services regarding data retrieval, pursuant to the Order Form, (Exhibit A). B. Cheadle Data Recovery will advise Customer of the results of such inspection and evaluation services by sending or faxing to Customer an additional form labelled “Exhibit B”. Thereafter the Customer may, by returning to Cheadle Data Recovery a fully completed and executed
Exhibit B (which upon acceptance by Cheadle Data Recovery shall be deemed an integrated part of this Agreement), authorise Cheadle Data Recovery and/or its suppliers to perform on a best efforts basis further services, such as analysis, repair, reconstruction of data and/or retrieval of data as more particularly set forth and/or estimated in Exhibit B.
C. All goods and services, including without limitation inspection, evaluation, and analysis, and repair, reconstruction of data and/or retrieval of data for a particular Engagement shall be governed by this Agreement.
In consideration of the foregoing and otherwise, it is agreed that:
1. The Engagement. Customer engages Cheadle Data Recovery, and/or its suppliers, to use best efforts to: inspect, evaluate, and identify the problem (if not already identified); and/or correct the problem; and/or retrieve, or minimize the damage to, the equipment or the data, all subject to the terms and conditions hereof. The estimated charges set forth in Exhibit A may not be sufficient to accomplish the Engagement; if so, Customer will be notified and no additional charges beyond those already estimated in Exhibit A will be incurred without Customer written authorization.
2. Payment. For these services, Customer agrees to pay Cheadle Data Recovery all sums identified in Exhibits A and B, any other sums authorized by Customer under this Agreement, plus 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 Cheadle Data Recovery, all such sums are due and payable in advance, by company cheque, bank money order, or BACS. Prior to completion of recovery, Customer authorization and payment information on Exhibit B must be returned to Cheadle Data Recovery. If Customer is pre-approved for terms, payment is due in 28 days.
3. Damaged Condition of Customer’s Equipment and/or Data. Customer acknowledges that the equipment and/or data is now damaged, and Customer further acknowledges that the efforts of Cheadle Data Recovery and/or its suppliers to analyse the damage, prepare the estimate, and complete the Engagement may result in the destruction of or further damage to the equipment and/or the data. Cheadle Data Recovery, for itself and its supplier’s regrets that due to the damaged condition of the Customer’s equipment and/or data, and the nature of the data recovery business, it will not assume responsibility for additional damage that may occur to the Customer’s equipment and/or data during Cheadle Data Recovery attempt to complete the Engagement.
4. Unpaid Charges; Security Interest. In the event there are any unpaid charges, Customer grants Cheadle Data Recovery a security interest in and to the equipment and data to secure the payment of the charges incurred hereunder. Cheadle Data Recovery reserves the right to charge interest and/or administration fees for any payments outstanding after the due date. The current interest rate charged by 1.5% for each month the payment is outstanding. The current rates charged for administration are as follows: late payment £50 for each calendar month outstanding, £7.50 for each telephone communication, £25 for each letter issued regarding any outstanding balance. All amounts exclude VAT.
5. Confidentiality. Customer agrees that Cheadle Data Recovery may use any information or data supplied with or stored in the equipment (the “Customer Information”) for the purpose of fulfilling the Engagement, and will otherwise hold the Customer Information in the strictest confidence. However, subject to whatever patent rights may exist at the time, the foregoing confidentiality obligations shall not apply to any information: (i) which at the time of disclosure is published or is otherwise in the public domain; (ii) which after disclosure becomes part of the public domain otherwise than through a breach of confidence or confidentiality, (iii) which was known to Cheadle Data Recovery prior to receipt from the Customer, provided that such prior knowledge can be adequately substantiated by documentary evidence antedating the disclosure by the Customer; (iv) which is disclosed to Cheadle Data Recovery party by a third party (other than employees or agents of either party) which in making such information available to Cheadle Data Recovery is not in violation of any obligation of confidentiality to the disclosing party; (v) is independently developed by Cheadle Data Recovery; or (vi) is trivial or obvious.
6. No warranties; disclaimer of all warranties. Cheadle Data Recovery, for itself and its suppliers, makes and customer receives no warranties or conditions for any good or service, express, implied, statutory or in any communication with customer, and Cheadle Data Recovery, for itself and its suppliers, 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.
7. Limitation of liability. In no event will Cheadle Data Recovery or its suppliers be liable for any damages whatsoever, whether based on contract, tort, warranty or other legal or equitable grounds, including without limitation damages for loss of data, loss of business profits, business interruption, or other pecuniary loss, or incidental, consequential or indirect damages arising from the engagement. This limitation will apply even if Cheadle Data Recovery or an authorised dealer, agent, supplier or representative has been advised of the possibility of such damage; customer acknowledges that the estimated and actual fees and charges reflect this limitation of liability and allocation or risk.
8. Limitation of liability for certain claims by customer and/or third parties; indemnification. In no event will Cheadle Data Recovery or its suppliers be liable for any damages based upon any claim of liability from the customer or from any third party, directly or indirectly, that the equipment or any data was damaged, altered or rendered unusable; and customer will defend, at its expense, indemnify and hold Cheadle Data Recovery and/or its suppliers harmless against any damages or expenses that may occur (including reasonable legal’ fees and costs incurred), and pay any costs, damages or legal fees and costs incurred awarded against Cheadle Data Recovery or its suppliers resulting from such claim.
9. Customer’s representation as to data and equipment; indemnification. Customer warrants and represents to Cheadle Data Recovery that it is the owner of, and/or has the right to be in possession of, all data, technology and equipment furnished to Cheadle Data Recovery under this agreement; and customer will defend, at its expense, indemnify and hold Cheadle Data Recovery and its suppliers harmless against any damages or expenses that may occur (including reasonable legal fees and costs incurred), and pay any costs, damages or legal fees and costs incurred awarded against Cheadle Data Recovery or its suppliers resulting from a breach of this paragraph 9.
10. Uncontrollable Circumstances. Either party’s performance of any part of this Agreement shall be excused to the extent that such performance is hindered, delayed, or made impractical by:(a) the acts of omissions of the other party; (b) flood, fire, strike, war, or riot; (c) unavailability of parts or software; (d) any other cause (whether similar or dissimilar to those listed) beyond the reasonable control of that party. Upon the occurrence of any such events(s), the party whose performance is so affected shall notify the other party of the nature and extent of the event(s) so that decisions to mitigate the negative effect(s) of such events(s) may be promptly made.
11. Limitation of Damages. The parties agree, notwithstanding any other provision of this Agreement to the contrary, that the total liability of Cheadle Data Recovery or its suppliers to Customer under this Agreement shall in no event exceed the total sums paid by Customer to Cheadle Data Recovery under this Agreement.
12.1 Publicity and Acknowledgements – Cheadle Data Recovery shall have an automatic right to use their work for promotion purposes, including but not limited to live demonstrations, printed screen shots and links to the clients site (if available to the general public) from suppliers site. This is a condition of contract unless agreed differently in writing with that supplier.
12.2 In the event any provision of this Agreement is declared by a judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable or indications of the same are received by either of the parties from any relevant competent authority the parties shall amend that provision in such reasonable manner as achieves the intention of the parties without illegality or at the discretion of Cheadle Data Recovery it may be severed from this Agreement
12.3 The Customer acknowledges that this Agreement contains the whole Agreement between the parties and it has not relied upon any oral or written representations made to it by Cheadle Data Recovery or its employees or agents
12.4 Any notice to be served on either of the parties by the other shall be sent by pre-paid recorded delivery or registered post or by telex or by electronic mail or by facsimile and shall be deemed to have been received by the addressee within 72 hours of posting or 24 hours if sent by telex or electronic mail or facsimile to the correct number of the addressee
12.5 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 authorized representative of each party to this Agreement.
12.6 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
12.7 Any proceedings arising out of or in connection with this Agreement may be brought in any Court of competent jurisdiction in Greater Manchester
12.8 The submission by the parties to such jurisdiction shall not limit the right of Cheadle Data Recovery to commence any proceedings arising out of this Agreement in any other jurisdiction it may consider appropriate
12.9 Any notices of proceedings or other notices in connection with or which would give effect to any such proceedings may without prejudice to any other method of service be served on any party in accordance with clause 12.4
12.10 In the event that the Customer is resident outside England its address for service in England shall be the address for such service nominated at the head of this Agreement and any time limits in any proceedings shall not be extended by virtue only of the foreign residence of the Customer.
12.11 All data recovered will be kept for a period of 7 days (after successful delivery to customer or failure to recover the data) prior to data deletion. No charge will be made in the destruction of data. Data will be destroyed and thereafter no further records will be kept.
12.12 Additional charges may be made for media to return data on
12.13 Cost of return failed media is to be passed on to the client.
12.14 Cheadle Data Recovery reserves the right to dispose of any device when the client has not returned contact for a period of 30 days.
13. Cancellation Fee
13.1 Once work has commenced on your media and you decide not to go ahead with the recovery, a cancellation fee is applicable. The minimum charge will be between 15 and 75 percent of the accepted quote value plus return shipping and plus VAT dependent upon the stage of recovery at the point of cancellation.
13.2 The cancellation fee does not apply if Cheadle Data Recovery are unable to proceed with the recovery for reasons beyond the customer’s control, for example; you decide to cancel because spares are unavailable to complete the recovery (in this example Cheadle Data Recovery’s ‘unrecoverable’ status would apply and no charges would be made).