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Agreement For Consulting Regarding Data Recovery
THIS AGREEMENT is made on [Date] by and between [Name] of [Address], hereinafter referred to as "Data Owner", and [Name] of [Address], hereinafter referred to as "Consultant", agree as follows:
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:
(a) That the Data Owner is the rightful owner, or is entitled to use of the data;
(b) 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;
(c) 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, unforseen 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 sub-contractors 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 [$-------] per hour, plus direct disbursements. Consultant shall not exceed a total charge of [$------] without prior written consent of the Data Owner. Consultant shall provide a billing at least every monthly, 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.
The invalidity or unenforceability of any portion of this Agreement shall not affect the remaining provisions and portions hereof.
This Agreement including any attachments is the entire agreement between the parties and there are no other promises or conditions in any other written agreement.
This Agreement supersedes any prior oral agreements between the parties.
This Agreement shall be binding upon the parties hereto and their respective heirs, administrators, successors, and assigns.
Neither this agreement nor any right or interest thereunder shall be assigned in any respect whatsoever.
This instrument contains all of the agreements of the parties. No oral or other statements shall be binding on either of the parties hereto.
This Agreement shall be governed by the laws of the State of [State].
Time is the essence of this agreement.
IN WITNESS WHEREOF, the parties have executed this agreement the day and year as first above written at [City], [State].
This Section for Notary:
State of _________
County of ________ [County]
On [Date] before me, [Name of Notary], notary, personally appeared [Name of Person(s) Involved], personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
My commission expires: _____