Data Recovery Terms

DATA RECOVERY SERVICES. There will be no services charge unless ESS recovers the specified data located on Client’s medium. If only a portion of this specified data is recovered, ESS shall bill pro-rata. A list or separate attachment specifying the needed 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 the data recovered on said medium immediately prior to data loss. This no-data, no-charge offer and pro-rata discount shall not apply if it is determined that ESS has not been told the truth about the data loss scenario (see MISINFORMATION paragraph below). 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, Minnesota, or Ontario Canada) 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. 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.

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 will provide an estimate of the maximum cost of recovery. This cost estimate is provided in writing to client prior to commencement of work. All amounts payable in USD or CAD Currency depending on country service is provided in and/or location of client. Services estimate does not include parts costs or 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.

SHIPPING AND INSURANCE. ESS assumes no liability for damage to CLIENT's property during shipment or for uninsured shipments. ESS will make its best effort in packaging CLIENT’s medium and estimating the value of CLIENT's property for shipping insurance purposes. CLIENT agrees to notify ESS in writing of special packaging requirements necessary to ensure the safe transportation and delivery of CLIENT’s property. CLIENT agrees to inform ESS of the value of its property in writing if CLIENT wishes to insure CLIENT’s property for a specific amount.

MISINFORMATION. ESS asserts and CLIENT agrees that if ESS is given false information about a data loss scenario and through its recovery efforts ESS reveals that that it has not been told the truth and as a result of this false information ESS has gone to great effort and expense, then the pro-rata discount shall not apply and CLIENT is responsible for all normal recovery charges. Such misinformation includes, but is not limited to cases from a RAID array or server. If ESS is misinformed by client about the state of the array, such as when a rebuild has taken place, when a failed disk is taken back online, or when a disk in a RAID set fails several days before the second disk, and CLIENT informs ESS that both disks failed at the same time, CLIENT shall be responsible for the additional cost of completing the recovery.

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.

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.

CONFIDENTIALITY AND NON-DISCLOSURE. 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. CLIENT agrees that under no circumstance will client disclose to any third party, including but not limited to: any person, company, website, blog, public forum or other news agency, the terms of this Agreement, the pricing structure, or any matter related to the performance of ESS Data’s services in connection herewith. ESS and CLIENT agree and stipulate and the mutual promises contained in this section constitute full and adequate consideration for this provision of the Agreement. Both parties hereby stipulate and agree to entry of an Ex Parte Temporary Restraining Order to prevent any threatened, anticipated, or actual breaches of this section by either party.

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 prevailing party shall be entitled to recover its costs and expenses, including reasonable attorney’s fees.