Valid from May 26th 2017
The following Terms and Conditions apply to the 1:1 Copy services 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 1:1 Copy service
In performing the 1:1 Copy service Kroll Ontrack will make a copy the original storage device on an external hard drive. The 1:1 Copy service without Clean Room activity 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 1:1 Copy service with Clean Room activity is instead suitable if the CUSTOMER believes that the issue responsible for the data loss affects internal parts like the motor, heads, internal electronics.
Kroll Ontrack does not perform any kind of check on the 1:1 Copy in terms of file and/or content integrity. The 1:1 Copy service is therefore recommended to the CUSTOMER only when they are able to work independently on the logic structure of data. The 1:1 Copy created with this service is NOT suitable for forensic purposes.
The 1:1 Copy service does not guarantee:
- That the copied data will be working
- That the copied data will retain the original folder structure and the original names
- The recovery of files overwritten or stored in damaged areas of the drive platters
The service is recommended only to CUSTOMERS who have available the software tools and technical knowledge to rebuild the logical structure of the files. Kroll Ontrack cannot be held accountable if the structure rebuild is not actually feasible or if the use of the above mentioned software tools results in any kind of damage. If the service chosen by the CUSTOMER is not suitable (e.g., in case Clean Room activity is needed but the CUSTOMER chose a service without Clean Room activity), 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 devices. External devices may not be reassembled prior to shipping. 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 whether the achieved result is the one desired by the CUSTOMER.
In case of payment through bank transfer all costs deriving from international bank transactions have to be made with “OUR” option: they have to be charged to the CUSTOMER.
The amount due for the provided service is payable 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.
In case of delivery of ORIGINAL DEVICE directly to the drop off point, the receipt of the delivery itself must be expressly requested by the CUSTOMER. The COSTUMER accepts the risk of loss, theft or damage to the ORIGINAL DEVICE provided. By signing the order form the CUSTOMER exonerates and releases Kroll Ontrack from any request for reimbursement that should arise against Kroll Ontrack.
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 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 Not applicable to 1:1 Copy services
C.1.d Not applicable to 1:1 Copy services
C.1.e In the event that the ORIGINAL DEVICE on which the service 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 additional fee of USD 200.00 (VAT excluded) for each device that has been tampered with. An additional fee of USD 100.00 (VAT excluded) is applied to any ORIGINAL DEVICE missing the original PCB. The CUSTOMER accepts these charges and authorizes Kroll Ontrack to go ahead with the operations. The additional fees detailed above apply also in case the recovery is not successful.
C.1.f The ‘ALL INCLUSIVE’ prices indicated in the order form include shipping of the ORIGINAL DEVICE to Kroll Ontrack, shipping of the backup with the copied 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 (USD 20.00 (VAT excluded)) and of the backup device are not included in the prices indicated in the 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 for order processing and/or 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 the amount due 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 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.h The recovered data will be saved on an external backup hard disk drive. 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. 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 is 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 all or part of the necessary procedures at any of its branches or affiliates’ headquarters, in Italy or overseas. Any risk of loss or damage 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.