CONDITIONS AND TERMS OF SERVICE
1) Customer engages FlashFixers and/or its suppliers to: inspect, evaluate, and identify the problem and/or retrieve, the equipment/data/media; and/or provide other services as may be requested by Customer from time to time (the “Engagement”).
2) FlashFixers will use any Customer information contained in the data, media and/or equipment provided to FlashFixers by Customer only for the purpose of fulfilling the Engagement, and will otherwise hold such Customer information in the strictest confidence. Any confidential information disclosed by Customer under this agreement will remain Customer’s sole property, and FlashFixers shall employ reasonable measures to prevent the unauthorized use of such information, which measures shall not be less than those measures employed by FlashFixers in protecting its own confidential information.
3) Customer agrees that if, during the course of this engagement, FlashFixers finds within any electronic data or media evidence of child exploitation (e.g., child pornography) or of a credible threat of physical harm to any person, FlashFixers shall be entitled to immediately bring such matters to the attention of federal or state law enforcement authorities and that no assertion of privilege, confidentiality or breach of contract will be raised as a bar to such action.
4) Customer agrees to pay FlashFixers all sums authorized from time to time by Customer, which will typically include charges for FlashFixers services, reasonable travel and per diem expenses for on-site work, 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 FlashFixers, all such sums are due and payable in advance, by company check, bank money order, or credit card.
5) Any consent required of either party will be effective if provided in a commercially reasonable manner, which includes without limitation, verbal authorization if followed by written confirmation by FlashFixers at the earliest possible opportunity, and/or facsimile.
6) Customer acknowledges that media/data/equipment made available to FlashFixers is damaged and Customer understands and agrees that data recovery cannot be guaranteed. Customer further acknowledges that the efforts of FlashFixers to complete the Engagement may result in the destruction of or further damage to the equipment/data/media. FlashFixers regrets that it will not assume responsibility for additional damage that may occur to the Customer’s equipment/data/media during FlashFixers’s efforts to complete the Engagement.
7) Customer agrees that FlashFixers is not responsible for any damage, including damage to or failures by equipment or media furnished by FlashFixers. In no event will FlashFixers or any supplier, contractor, employee, or agent of FlashFixers 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, however caused, even if FlashFixers has been advised of the possibility of such damages. Customer acknowledges that the estimated and actual fees and charges reflect this limitation of liability and allocation of risk. The parties agree the total liability of FlashFixers to Customer under this Agreement shall in no event exceed the total sums paid by Customer to FlashFixers.
8) Customer further warrants and represents that he/she is in lawful possession of all data, media and/or equipment made available to FlashFixers by customer, and that he/she has a lawful purpose to engage FlashFixers for data recovery services.
9) Customer further warrants to FlashFixers that Customer’s collection, possession, processing and transfer of such equipment/data/media is in compliance with data protection laws to which Customer is subject; and Customer will defend, at his/her expense, indemnify, and hold FlashFixers harmless against any damages or expenses that may occur (including reasonable attorneys’ fees), and pay any cost, damages, or attorneys’ fees awarded against FlashFixers resulting from Customer’s breach of this section. Customer further represents and warrants that all items provided to FlashFixers under this Agreement: (i) are not subject to any United States or applicable export licensing requirements or that Customer has obtained all required licenses; and (ii) all such items are freely exportable by FlashFixers, as applicable, without restriction.
10) Customer further understands that FlashFixers may void the hard drive manufacturer’s warranty by opening the hard drive for recovery. Although most hard drive manufactures will still warrant the hard drive after service by a data recovery company, FlashFixers assumes no liability forreplacement of Customer’s hard drive.
11) Each party, on behalf of itself and its affiliates, to the fullest extent permitted by law, knowingly, voluntarily, and intentionally waives its right to a trial by jury in any action or other legal proceeding arising out of or relating to this Agreement or the services. The foregoing waiver applies to any action or legal proceeding, whether sounding in contract, tort or otherwise. Each party, on behalf of itself and its affiliates, also agrees not to include any employee, officer or director of the other party or its affiliates as a party in any such action or proceeding.
12) The parties agree that the laws of the state of New Hampshire shall govern this Agreement and agree to venue in Rockingham County, New Hampshire; provided, however, that if any provision of this Agreement is in violation of any applicable law, such provision shall to such extent be deemed null and void, and the remainder of the Agreement shall remain in full force and effect. Except for the obligation to make payments, nonperformance of either party shall be excused to the extent performance is rendered impossible, hindered, delayed, or made impractical by: (a) the acts of omissions of the other party; (b) flood, fire, natural disaster, strike, war, or riot; (c) unavailability of parts or software; (d) any other cause beyond such party’s reasonable control.
13) Any items which have not been claimed and paid for within ninety (90) days after the date of completion of the Engagement will be considered abandoned by the Customer and may be disposed of (including all data and/or media containing data) in the sole discretion of FlashFixers or may be subject to a storage fee unless prior arrangements have been secured.
14) FlashFixers 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. This constitutes the entire agreement between Customer and FlashFixers.
By using this service, Customer acknowledges that he/she agrees to the Terms of Service.