1.0 ACCEPTANCE OF AGREEMENT
1.1 By engaging Taking IT Mobile Data Solutions, Inc. (“we”, “us”, “our” or “Taking IT Mobile”) to provide you with services, you agree to be bound by the following Terms & Conditions of Service (the “Agreement”). Please review this Agreement carefully. If you do not accept all of the terms and conditions of this Agreement, you should not engage us to perform any services.
2.0OUR SERVICES & YOUR OBLIGATIONS
2.1Engagement of Taking IT Mobile. Subject to the terms and conditions of this Agreement, you hereby engage Taking IT Mobile to provide services as described in this Agreement (the “Services”), and we hereby agree to perform the Services. Our Services relate to failed data storage devices/media (“Data Media”) and ancillary services.
2.2Services. The Services you may retain us to perform are:
2.3In-Lab and On-Site Services Data Recovery Services.
(1)Taking IT Mobile will perform the Services either at a Taking IT Mobile lab or, if you are located in one of the geographical areas serviced by our mobile technicians (see our “On-Site Service Area” list) and you agree to pay our mobile services fee (as described below), one of our technicians will travel to you and perform the Services on-site.
(2)On-site Data Recovery Services are only available in our On-Site Service Area and are applicable to single desktop, server or notebook hard drives (i.e. non-RAID/Span/complex disk array) having an IDE, EIDE or SATA format, and all non-tape removable disks and flash media. If your Data Media does not fall within one of these categories, we provide in-lab Data Recovery Services to customers worldwide.
(3)If the Services are to be performed at one of our labs, you must ship your Data Media to and from our lab at your own expense and risk. We assume no responsibility or liability for any damage caused to your Data Media in transit.
(4)If you retain us to provide Services on-site, we will use our reasonable efforts to complete the Services at your premises. You acknowledge that in some cases it will only be possible for us to attempt to complete the Services at our lab. If it is necessary for us to take your Data Media to our lab to complete the Services, then we will arrange for the transportation of your Data Media to and from our lab, at no additional cost to you.
(1)In order for us to evaluate your request for Services, you must first complete our standard evaluation request form to provide us with your contact information, details of the data that you wish to recover, and information regarding the specifications of your Data Media, the circumstances surrounding the Data Media failure, any prior recovery attempts, and any other information we may reasonably require to evaluate your request.
(2)You represent and warrant to us that all information that you provide to us under this Agreement is, to the best of your knowledge, true and correct. If there is any change in the contact or billing information that you have provided to us, you must inform us immediately, and any failure to do so may result in your inability to receive notices from us, any recovered data, or the return of your Data Media.
(3)You represent and warrant to us that you are of at least 18 years of age, that you are the legal owner of the Data Media and the data contained thereon, and that all such data is lawful in the jurisdiction (state, province and/or country) where you reside, and where our Services will be performed.
2.5Evaluation of Media. Prior to performing any Data Recovery Services, we will evaluate your Data Media and provide you with an assessment of the condition of your Data Media, whether we believe any data on your Data Media is recoverable, a quotation for our fees to perform any possible Data Recovery Services, and our estimate of the time required to perform any Data Recovery Services (the “Initial Assessment”). The Initial Assessment will be provided at no cost to you, and you will not be obligated to engage Taking IT Mobile to perform any additional Services. Upon receipt of the Initial Assessment, you must inform us whether you wish for us to proceed with performing any possible Data Recovery Services or if you decline any further Services.
2.6Authorization to Access Data Media.
(1)You acknowledge that, to evaluate your Data Media and/or perform Services, Taking IT Mobile will be required to access your Data Media. By engaging us to evaluate your Data Media and/or perform Services you hereby authorize us to access your Data Media and to conduct testing, evaluation, recovery attempts and processing of the data on your Data Media. You further acknowledge that such access to your Data Media may require us to break your Data Media factory seal, which may void any applicable manufacturer’s warranty. Taking IT Mobile shall not be liable or responsible to you in any way for any voided manufacturer’s warranty resulting from our evaluation of your Data Media and/or the performance of Services.
(2)If Taking IT Mobile is required to open Data Media which is factory sealed, then Taking IT Mobile will reassemble your Data Media upon completion of its work and will affix a “Taking IT Mobile” seal on the case which, if unbroken, confirms that only our qualified technicians have accessed the interior of your Data Media. Data Media which has its factory seal already broken prior to Taking IT Mobile accessing the Data Media will not be affixed with a “Taking IT Mobile” seal.
(3)In the case of on-site Services, you acknowledge that, to access your Data Media, Taking IT Mobile may be required to open your computer system to gain access to and/or remove the Data Media, and you hereby agree that, by engaging us to evaluate your Data Media and/or perform Services, you are authorizing us to open your computer system as aforesaid. Unless you retain us to provide Data Reintegration Services, it shall be your responsibility, and not the responsibility of Taking IT Mobile, to reassemble your computer system upon the completion of the Services.
(1)If our Initial Assessment indicates that it is not possible for us to perform any Data Recovery Services or if you, in your absolute discretion, decline the performance of these Services, then no further Services will be performed.
(2)If no Services are to be performed after the Initial Assessment, and if the Data Media is in our possession, then you may either: (a) arrange, at your own cost, for your Data Media to be returned to you; or (b) instruct us to dispose of your Data Media, in which case we will dispose of your Data Media through our complimentary media recycling program which enhances your privacy by erasing or destroying all data. If you do not provide us with instructions within ninety (90) days of the date of our Initial Assessment, then you will be deemed to have selected option (b) and we will dispose of your Data Media.
2.8Data Recovery Services.
(1)If upon receipt of our Initial Assessment you wish for Taking IT Mobile to perform any possible Data Recovery Services, you shall provide us with a valid credit card for the payment of all amounts which may be due to us under this Agreement, or you shall make such other payment arrangement as may be satisfactory to us in our absolute discretion. We will not charge you until you have approved the results of our Data Recovery Services as described herein.
(2)If you instruct us to proceed with the Data Recovery Services, then we will use our existing technology and processes and our reasonable efforts to attempt to recover any available data from your Data Media within the timeframe estimated in the Initial Assessment. Upon completion of the Data Recovery Services, the following shall apply:
2.9Return of Recovered Data. Any recovered data which is to be returned to you in accordance with the terms above will, if the volume of data allows, be returned to you on a single complimentary DVD. If the volume of data exceeds the capacity of a single DVD, then you may either: (a) provide us, at your own cost, with new Data Media of sufficient capacity onto which the recovered data will be stored; or (b) purchase from us, at our preferred customer pricing rate, new Data Media onto which the recovered data will be stored.
2.10Data Reintegration Services. If we successfully provide you with on-site Data Recovery Services, you may also, in your discretion and for an additional fee, retain us to provide Data Reintegration Services. If you retain us to provide such services, then we shall reintegrate your recovered data onto your new or repaired computer system, reassemble your computer system (if applicable), and verify the successful reintegration of the recovered data.
3.0FEES & PAYMENT
3.1Fees. In consideration of Taking IT Mobile performing the Services, you agree to pay such of the following fees as may be applicable:
3.2Taxes. In addition to the fees payable to Taking IT Mobile for the Services, you also agree to pay all applicable sales and excise taxes required to be collected by us in connection with the Services and any products you may purchase from us.
3.3Payment. Upon an amount becoming payable by you to us under this Agreement, such amount shall be immediately due in full. You hereby authorize Taking IT Mobile to charge your credit card (or other payment method satisfactory to us) for all applicable amounts payable by you under this Agreement. If for any reason any amount due from you to Taking IT Mobile is not paid when due, then Taking IT Mobile shall be entitled to withhold the delivery of your Data Media and any recovered data until all outstanding amounts owing to Taking IT Mobile are paid in full. If payment remains outstanding for ninety (90) days or more, then we may, in our discretion, dispose of your Data Media and any recovered data, and upon disposal you hereby release us from any obligations under Section 5.1 to maintain the privacy and confidentiality of your data.
4.0SERVICE STANDARDS & LIMITATIONS
4.1Our Service Standards.
(1)Taking IT Mobile represents, warrants and covenants to you that we will use our reasonable efforts to perform the Services, subject to the limits of our existing technology and processes.
(2)In the event that we fail to perform the Services in accordance with our obligations under this Agreement, your exclusive remedy will be, at our option, for us to either re-perform the Services or refund to you any fees actually paid by you to us in connection with this Agreement. We shall bear no other obligation or liability whatsoever to you.
(1)You hereby acknowledge that we cannot and do not make any representation or warranty to you that our Data Recovery Services will successfully recover all or any part of the data on your Data Media, or will yield any particular results. Our obligations in relation to the Data Recovery Services are limited to using our existing technology and processes and our reasonable efforts to recover any available data from your Data Media.
(2)You hereby acknowledge that the performance of any Data Recovery Services may result in damage to your Data Media and could render data unrecoverable. We assume no responsibility or liability for the loss of any such data resulting from the performance of the Data Recovery Services. To the extent possible, you should attempt to backup any available data before submitting your Data Media to us.
(3)While Taking IT Mobile will use its commercially reasonable efforts to perform the Services within the timelines identified to you and is usually able to do so, all such timelines are estimates only. Our time estimates are subject to change due to factors beyond our reasonable control, including, without limitation, instability or unpredictability of failing Data Media, unavailability of components, structural damage to imaged data, or otherwise. Taking IT Mobile will not be liable to you for any losses or damages of any kind if we do not complete any Services within any estimated timeline.
(4)Except for the express representations and warranties provided by Taking IT Mobile to you under this Agreement, Taking IT Mobile makes no warranties or representations of any kind whatsoever, express or implied, in fact or in law, in relation to the Services or any other matter in connection with this Agreement, and Taking IT Mobile disclaims any implied representation, warranty or condition of merchantable quality or fitness for a particular purpose other than as set forth in Section 4.1(1).
4.3Limitation of Liability. In no event shall Taking IT Mobile be liable to you for any indirect, special or consequential damages, including, without limitation, loss of anticipated profits, loss of time, loss of data, or loss of opportunity, that you may suffer or incur as a result of or in relation to this Agreement, whether such loss or damage may be based upon principles of contract, warranty, negligence or other tort, the failure of any limited or exclusive remedy to achieve its essential purpose or otherwise, even if Taking IT Mobile has been advised of the possibility of such damages. In all circumstances the maximum aggregate liability of Taking IT Mobile to you for damages for any and all causes whatsoever, and your maximum remedy, regardless of the form of action (whether in contract, negligence or other tort, or otherwise) in relation to this Agreement and the Services provided hereunder shall be limited to the aggregate fees actually paid by you to Taking IT Mobile in connection with this Agreement.
4.4Allocation of Risk. You acknowledge that the limitations of liability and allocations of risk under this Agreement are fundamental terms of this Agreement, that such limitations and allocations are reflected in our prices for the Services, and that if we were to assume more extensive liability our prices for the Services would be much greater.
4.5Third Party Components. You acknowledge that the representations and warranties provided by Taking IT Mobile under this Agreement relate only to the Services provided by Taking IT Mobile, and that Taking IT Mobile does not make any representations or warranties of any kind whatsoever in relation to any products which you may purchase from us. Third party products may be covered by a manufacturer’s warranty for which Taking IT Mobile assumes no liability or responsibility.
5.1Confidentiality. Taking IT Mobile shall treat all information contained in your Data Media as your private and confidential information. For so long as any of your Data Media remains in the possession of Taking IT Mobile, Taking IT Mobile shall take reasonable precautions to safeguard your Data Media and the information contained therein, and shall not permit the use or disclosure of your information for any purpose whatsoever, except as may be required to perform the Services or as may be required by law.
6.1Subcontracting. You acknowledge and agree that Taking IT Mobile may engage third party sub-contractors in performing all or part of the Services, provided that any such engagement shall not relieve Taking IT Mobile from responsibility for compliance with the terms of this Agreement.
6.2Force Majeure. Taking IT Mobile shall not be deemed to be in breach of this Agreement if Taking IT Mobile is unable to complete the Services or any portion thereof by reason of fire, earthquake, labour dispute, act of God or public enemy, any law or governmental order or regulation, or any other event beyond our reasonable control (a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, we will notify you of our inability to perform or of any delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
6.3Waiver. No party to this Agreement shall be deemed or taken to have waived any provision of this Agreement unless such waiver is in writing, and then such waiver shall be limited to the circumstances set forth in such written waiver. No failure or delay on the part of a party in exercising any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
6.4Entire Agreement. This Agreement constitutes the entire agreement among the parties and contains all of the covenants, representations and warranties of the respective parties in relation to the subject matter hereof. This Agreement supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter hereof, and there are no oral representations or warranties among the parties of any kind. This Agreement may not be amended or modified in any respect except by written instrument signed by all parties.
6.5Severability. Any provision herein which in any way contravenes the law or which is void shall be deemed to not be a part of this Agreement and shall severable therefrom, and the remainder of this Agreement shall remain in full force and effect.
6.6Extended Meanings & Headings. In this Agreement words importing the singular number include the plural and vice versa, and words importing a gender include the masculine, feminine and neuter gender. The division of this Agreement into paragraphs and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
6.7Successors & Assigns. This Agreement shall enure to the benefit of and be binding upon you, Taking IT Mobile, and the parties respective heirs, administrators, executors, successors and assigns, as applicable.
6.8Governing Law. The terms of this Agreement will be construed and enforced in accordance with the laws of Ontario and shall be treated in all respects as an Ontario contract. Each party attorns to the exclusive jurisdiction of the courts of the Province of Ontario with respect to any dispute arising hereunder.
If you have any questions regarding these Terms please get in touch with us via our Contact Us page.
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