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The services
you are requesting will be performed under the following terms
and conditions. This is the complete agreement between you and
Nekston Associates, Inc dba Nekston Associates. Nekston Associates must
approve any modification to this Service Agreement in writing.
1.You hereby
engage Nekston Associates and/or its suppliers to use all commercially
reasonable efforts to determine the existence and extent of recoverable
data on your media (“Evaluation”) and retrieve and/or provide
access to your recoverable data (“Data Recovery”), or to delete
data from your media (“Deletion”) (collectively, the 'Engagement')
2. Information
contained in your data/media (“Client Information”) will be used
by Nekston Associates only for the purpose of fulfilling this Engagement,
and will otherwise be held in confidence by Nekston Associates.
These confidentiality obligations shall not apply to any information
which enters the public domain through no fault of Nekston Associates,
which was known to Nekston Associates prior to receipt from you,
which is disclosed to Nekston Associates by a third party (other
than employees or agents of either party) which to Nekston Associates's
knowledge in making such information available to Nekston Associates
is not in violation of any confidentiality obligation to you,
which is independently developed by Nekston Associates without
recourse to the Client Information, or which is used by Nekston Associates in any legal process. You acknowledge that Nekston Associates
may keep record copies of its deliverables and the data/media
received from you under this Agreement. This confidentiality agreement
may be breached by Nekston Associates at any time, when Client
Information is found to contain data such as child pornography
or information that is detrimental to national security.
3. You will
be charged a custom quoted Data Recovery Fee and you agree to
be responsible for all media, shipping and handling charges and
all risk of loss during shipping, even by Nekston Associates between
its offices. You agree to pay all charges quoted, plus shipping
charges, as well as taxes and similar charges. No services will
be performed and no charges incurred unless you consent by executing
this Service Agreement. Additionally, in the event data is deemed
unrecoverable, you agree to pay all shipping charges associated
with the return of the unrecoverable media to you.
4. You acknowledge
that the media/data/equipment you are making available to Nekston Associates is already damaged, that data recovery efforts can
result in further damage, and that Nekston Associates is not responsible
for this or any other type of damage, including damage to or failures
by equipment or media furnished by Nekston Associates.
5. You
warrant and represent and warrant to Nekston Associates that
you are in lawful possession of all data, media and/or equipment
you make available to Nekston Associates, and that you have a lawful purpose
to engage Nekston Associates for the Engagement. If you are requesting
any Deletion services of any kind whatsoever, you hereby warrant
and represent that such data is not involved in any current or
anticipated legal proceeding, investigation or government inquiry.
You agree to indemnify and hold Nekston Associates harmless from
any and all claims, liabilities, costs (including attorneys’ fees)
and damages of any kind related to this Service Agreement.
6. You agree
that Nekston Associates grants no warranties regarding its services
of any kind, and all services are provided on an “as-is” basis.
ALL IMPLIED WARRANTIES (INCLUDING THE WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE) ARE DISCLAIMED.
7. NEKSTON ASSOCIATES WILL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER
DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE,
OR EXEMPLARY (INCLUDING, WITHOUT LIMITATION DAMAGES FOR LOSS OF
BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION
OR DATA, AND THE LIKE) ARISING OUT OF THE SERVICES OR DELIVERABLES
PROVIDED HEREUNDER, EVEN IF NEKSTON ASSOCIATES HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
8. Any consent
required of either party will be effective if provided in a commercially
reasonable manner, which includes without limitation email or
facsimile, and/or verbal authorization if followed by written
confirmation at the earliest possible opportunity. Nekston Associates
will store your data for 10 calendar days after your recovery
has been completed. After such 10 calendar day period, Nekston Associates will delete your data.
9. Should
your data be deemed completely “Unrecoverable”; or you simply
elect not to have your data recovered, shipping charges will remain
your responsibility. Unrecoverable” means that there is mechanical
failure in the media that precludes access to any data on the
media by any means within Nekston Associates's capability. This
definition does not apply in cases where 'desired' data is not
present. |