_________________________, referred to as the DATA OWNER, and _________________________, referred to as CONSULTANT, agree:
DATA OWNER is the owner of various magnetic media, on which DATA OWNER believes that computer data exists, and herewith retains consultant to attempt to recover the data.
In order to induce CONSULTANT to perform this work, the DATA OWNER makes the following representations:
(1) That the DATA OWNER is the rightful owner, or is entitled to use of the data;
(2) That the data to be recovered is not used in any unlawful activity or in the violation of the rights of other parties under contracts between DATA OWNER and others;
(3) That DATA OWNER shall provide upon request of CONSULTANT such documents and other written assurances or information requested by CONSULTANT.
DATA OWNER shall fully cooperate with CONSULTANT in providing such assistance as may be requested from time to time in attempts to recover the data including provision of software, manuals and other times in possession of the DATA OWNER.
CONSULTANT may reveal certain trade secrets, useful processes or proprietary techniques to the DATA OWNER. DATA OWNER agrees not to reveal the same to third parties without the prior consent of CONSULTANT.
SCOPE OF EFFORTS
CONSULTANT agrees to use its best efforts to recover all or part of the data. However, CONSULTANT advises DATA OWNER that certain types of destruction to data are not recoverable and in certain instances that there are no known techniques to recover part or all of the data despite the use of state of the art techniques and all care. In many instances experimental methods or educated guesses may be the only means to attempt to recover the data. As experimental methods or educated guesses the same are not guaranteed. There can be no assurances made of success. Any estimations made of the charge to recover data are not definite since as examination of the data progresses, unforeseen contingencies may occur which could result in additional charges or services being necessary.
DATA OWNER please initial here: _________________
I have read, understand and agree to scope of efforts stated above.
In the event that in CONSULTANT’s judgment techniques to attempt to recover the data are necessary that may or will result in destruction of the diskettes, hard drives, tapes, cards or other media, CONSULTANT shall notify DATA OWNER of that it intends to utilize destructive techniques to attempt to recover the data, and unless written notice is received objecting to the use of destructive techniques, the CONSULTANT may proceed with such techniques. In the event that DATA OWNER objects to the use of destructive techniques, CONSULTANT may terminate its undertaking herein at its option, or may attempt to recover the data by other means.
DATA OWNER shall have the right to approve the specific methods and expenditures to be made to attempt to recover the data. However, if DATA OWNER rejects some or all suggestions or expenditures recommended by CONSULTANT, DATA OWNER shall thereby waive any right to proceed with an action for breach of this contract.
CONSULTANT agrees that it shall maintain strict confidentiality of the existence of this agreement and as to the nature and contents of data, which is recovered. However, in the event of the receipt of a valid subpoena or other writ from legal authorities CONSULTANT shall cooperate therewith.
CONSULTANT undertakes this agreement under the following limits of liability:
- that CONSULTANT may only be found in breach of this agreement if it is proven that CONSULTANT did not use its best efforts to attempt to recover the data in good faith, and
- that CONSULTANT did not attempt in good faith to use available knowledge together with information and assistance provided by the DATA OWNER to recover the data.
CONSULTANT shall not be responsible for loss of prospective profits or consequential damages claimed by DATA OWNER; the sole measure of damages herein shall be restitution of the sums paid by DATA OWNER, or actual economic damages, whichever is lesser.
CONSULTANT may utilize sub-contractors to perform tasks herein, provided that all subcontractors shall agree to secrecy as to the fact of the contract and the contents of the data.
CONSULTANT shall be paid at a rate of $______________
(________________________________________ & _____/100 dollars) per hour, plus direct disbursements.
CONSULTANT shall not exceed a total charge of $_________________________ (________________________________________ & _______/100 dollars) without prior written consent of the DATA OWNER.
CONSULTANT shall provide a billing at least every _________________________, which shall be paid by DATA OWNER within _________________________ days.
DATA OWNER herewith grants an express lien on the data to CONSULTANT to secure repayment of charges herein.
_________________________ By Consultant
Data Recovery or Development Agreement
This review list is provided to inform you about this document in question and assist you in its preparation. This agreement can be used for various aspects of technology consulting, and can be adapted accordingly.
1. Make multiple copies. Give each signer an original.
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