Terms and Conditions
CBIT/CDR/CDFS will undertake an inspection of the failed device to assess the feasibility of recovering data. An Estimate detailing data recovery costs will be provided before data recovery commences. This Estimate is part of this Contract.
You acknowledge seals may be broken on the device, if necessary for the inspection, which may void the manufacturer’s warranties for the device.
You warrant to CBIT/CDR/CDFS that You are the owner or have been authorised by the owner of the device to engage CBIT/CDR/CDFS to perform the data recovery services.
You acknowledge and agree that CBIT/CDR/CDFS does not guarantee data will be recovered. Further You acknowledge that after CBIT/CDR/CDFS has performed the data recovery services on the device, the device will not respond to other data recovery techniques.
You agree to be bound by Our Terms and Conditions below. To accept the Terms and Conditions of Our offer to supply Our Data Recovery Services to You, please sign where indicated below:
Terms and Conditions
In these Conditions:
Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Business Day means a day other than a Saturday, a Sunday or a public holiday in The Australian Capital Territory.
Client means the individual, company or other legal entity requesting the Services, as specified in the Request Form.
Conditions means these terms and conditions.
Contract means the contract formed by CBIT PTY LIMITED ACN 107 115 846 “(CBIT)”, “CBIT Data Recovery (CDR)”, “CBIT Digital Forensics Services (CDFS)” and the Client, the terms of which are set out in these Conditions, the Request Form, the Estimate and acceptance of the Estimate.
Data means the information stored on the Storage Medium.
Deposit means the amount (if any) specified as such in the Estimate.
Estimate means the document setting out the Services and the Price in response to a Request Form.
Major Failure has the meaning given in the Australian Consumer Law.
Price means the price or fee for the Services stated in the Estimate.
Prescribed Terms means any terms, conditions and warranties which the law expressly provides may not in respect of this Contract be excluded, restricted or modified, or may be excluded, restricted or modified only to a limited extent.
Relevant Proportion means the amount determined by CBIT/CDR/CDFS to represent the proportion of the Services completed up to and including the date of termination or cancellation (as the case may be).
Request Form means the form titled Request for Data Recovery Service signed by the Client.
Services means a process of salvaging or retrieving inaccessible, lost, corrupted, damaged or formatted data from a Storage Medium where the data cannot be accessed in a normal way as particularised on an Estimate.
Storage Medium means the computer equipment, hardware, hard disk, solid state disk, mobile, tablet, tape or other data storage media provided by the client as described in the request form.
2.1 The Request Form and the Estimate are to be read with these Conditions and form part of the Contract.
2.2 If there is any inconsistency between the Estimate, Request Form, the Conditions, and any acceptance of the Estimate, then these items will, to the extent of any inconsistency, take precedence in the order in which they are listed in this clause 2.2.
3. REQUEST FOR SERVICES
3.1 The client acknowledges the Services performed by CBIT/CDR teams cannot be used for legal and/or forensic purposes.
3.2 A forensic process and approach to Services, performed by the CBIT Digital Forensics Services (CDFS) team, is required if the Request for Services is for a legal matter. The client must inform a CBIT Digital Forensics Services (CDFS) team member of this requirement in writing so that the appropriate action may be taken. A different application form needs to be submitted for approval before commencement of such Services.
3.3 The Client requests CBIT/CDR/CDFS to provide the Services by completing and signing this Request Form.
3.4 Upon receipt of the Request Form, CBIT/CDR/CDFS will carry out an assessment of the feasibility of the Services and advise the Client if the Services are feasible. If Services are feasible, CBIT/CDR/CDFS will issue an Estimate to the Client.
3.5 The Client may accept or reject the Estimate. This Contract will expire immediately if the Estimate is rejected or if no response from the Client is received by CBIT/CDR/CDFS within 60 days of the date of the Estimate.
3.6 CBIT/CDR/CDFS will not commence the Services until it has received an acceptable signed Statutory Declaration relating to the Services from the Client.
3.7 The Client may cancel the Services by giving notice of cancellation to CBIT/CDR/CDFS, and if it does so, must pay CBIT/CDR/CDFS the Relevant Proportion of the Price when the Client collects the Storage Medium from CBIT/CDR/CDFS or within 5 Business Days of the date of CBIT/CDR/CDFS’s invoice, whichever occurs first.
3.8 Any completion times specified in the Estimate or otherwise given by CBIT/CDR/CDFS for performance of the Services are estimates only. CBIT/CDR/CDFS will not be liable to the Client for any loss or damage sustained by the Client as a result of CBIT/CDR/CDFS’s delay in meeting those completion times for any reason whatsoever.
4.1 Unless otherwise stated in the Estimate, the Price does not include any applicable taxes, duties or tariffs, or freight, handling or insurance charges, all of which the Client must pay to CBIT/CDR/CDFS in addition to and at the same time as the Price.
4.2 CBIT/CDR/CDFS reserves the right to increase the Price at any time to reflect any significant increase in the cost to CBIT/CDR/CDFS of supplying the Services (such as any significant increase in government charges or in the cost of labour or materials). Specifically, storage prices will be reviewed annually and will be adjusted after taking into account the movement in CPI as well as those economic indicators that have had a major influence/impact on our business over the past twelve (12) months.
4.3 Any estimate of anticipated Price for Services provided prior to or during the course of the work is CBIT/CDR/CDFS’s best estimate of the effort that will be required to complete the services based on the information available at the time. Under no circumstances shall this estimate be deemed a maximum fee or fixed Price. It is not a quotation, and it is subject to change. If your instructions and/or requirements do alter, or if more information comes to light that changes the scope of work, CDR will furnish you with a further estimate.
4.4 CBIT/CDR/CDFS reserves the right to deny or withdraw any individual or group, from the use of any Services without explanation or cause, and to refund any associated fees paid for the relevant service.
4.5 You will be charged for any expenses and disbursements (being money we pay or are liable to pay to others) that we incur on your behalf.
5.1 The Client must pay the Deposit (if any) to CBIT/CDR/CDFS on delivery of the Storage Medium to CBIT/CDR/CDFS’s premises.
5.2 Subject to clauses 3.4 and 5.3, the Client must pay the Price less the Deposit (if applicable) to CBIT/CDR/CDFS in full when the Client collects the Storage Medium from CBIT/CDR/CDFS or takes delivery of it or within 14 Business Days of the date of CBIT/CDR/CDFS’s invoice, whichever occurs first.
5.3 If CBIT/CDR/CDFS terminates the Contract under clause 10, the Client must pay CBIT/CDR/CDFS the Relevant Proportion of the Price when the Client collects the Storage Medium from CBIT/CDR/CDFS or takes delivery of it or within 5 Business Days of the date of CBIT/CDR/CDFS’s invoice, whichever occurs first.
5.4 If any money owed by the Client to CBIT/CDR/CDFS is overdue by more than 7 days from date of invoice, CBIT/CDR/CDFS may retain the Storage Medium or withhold delivery or performance until arrangements as to payment or credit have been established which are satisfactory to CBIT/CDR/CDFS.
6. DELIVERY OF STORAGE MEDIUM
6.1 The Client is responsible for transportation of the Storage Medium to and from CBIT/CDR/CDFS’s premises.
6.2 The Client must pay all charges in connection with delivery, collection, transportation, special packaging and insurance of the Storage Medium and Data (including whilst in transit). If CBIT/CDR/CDFS incurs any of these expenses on behalf of the Client, then the Client must reimburse CBIT/CDR/CDFS in addition to and at the same time as the Price.
7. COLLECTION OF STORAGE MEDIUM
7.1 The Client must collect or arrange collection of the Storage Medium and Data from CBIT/CDR/CDFS’s premises within 14 Business Days of being informed that they are ready for collection. If the Client fails to do so, CBIT/CDR/CDFS may charge, and if so, the Client must pay, an additional reasonable sum for continued storage, including storage and insurance costs.
7.2 Storage Mediums that are not collected within 20 Business Days of the date of the ready for collection notification will be sold or otherwise dealt with in accordance with the Uncollected Goods Act 1996 (ACT).
8. RISK OF LOSS OR DAMAGE
8.1 The risk of loss or damage to the Storage Medium and Data, including whilst in transit, remains with the Client at all times.
9. WARRANTIES AND LIABILITIES
9.1 To the maximum extent permitted by law, all terms and warranties implied by any law or otherwise in relation to the Services or the Contract are expressly excluded.
9.2 CBIT/CDR/CDFS’s liability to the Client for a breach of any Prescribed Term implied into this Contract is, unless the breach is a Major Failure, limited to:
9.2.1 in the case of goods, the repair or replacement of the goods or the supply of equivalent goods or the cost of repairing or replacing the goods or of acquiring equivalent goods; and
9.2.2 in the case of services, the re-supply of the services or the payment of the cost of re-supplying the services.
9.3 CBIT/CDR/CDFS’s liability to the Client for a breach of any Prescribed Term implied into this Contract, if the breach is a Major Failure, is limited as stated in the Australian Consumer Law.
9.4 CBIT/CDR/CDFS does not guarantee the recovery of Data. CBIT/CDR/CDFS is not liable for any damages suffered by the Client due to the loss of Data.
9.5 CBIT/CDR/CDFS shall have no liability to the Client (whether in contract, tort (including negligence), breach of statutory duty or otherwise) arising out of, or in connection with, the Services and/or this Contract for any
9.5.1 indirect or direct loss of, or damage to:
(a) profit; (b) business; (c) contracts; (d) opportunity; (e) goodwill; (f) revenue; (g) anticipated savings, expenses, costs or similar loss; or
9.5.2 indirect, special or consequential loss or damage; or
9.5.3 claims arising out of a claim against the Client by a third party.
10. DEFAULT AND TERMINATION
10.1 If in CBIT/CDR/CDFS’s opinion:
(a) the Data cannot be restored or can only be restored in part; or
(b) the Storage Medium cannot be repaired; or
(c) it is otherwise not practicable or expedient to complete the Services, CBIT/CDR/CDFS may terminate that portion of the Contract or the entire Contract, as applicable, before the Services are completed on giving notice of termination to the Client.
10.2 CBIT/CDR/CDFS may terminate the Contract immediately on giving notice of termination to the Client if a statement made by the Client in the Request Form or Estimate is or becomes untrue, or if the Client:
(a) fails to make any payment when due under the Contract and fails to remedy that breach within 3 Business Days after receiving notice from CBIT/CDR/CDFS requiring it to do so;
(b) fails to remedy any other breach of its obligations under the Contract within 7 Business Days after receiving notice from CBIT/CDR/CDFS requiring it to do so; or
(c) threatens or resolves to become or is in jeopardy of becoming bankrupt or subject to any form of insolvent administration.
10.3 If CBIT/CDR/CDFS terminates the Contract following the Client’s default, CBIT/CDR/CDFS may take whatever steps may be available to CBIT/CDR/CDFS in respect of any loss or damage suffered by reason of the Client’s default, including selling the Storage Medium and retaining the proceeds.
10.4 Without limiting CBIT/CDR/CDFS’s other rights and remedies under the Contract, if the Client defaults in its obligation to pay any part of the Price, then the unpaid balance of the Price becomes a debt immediately due and payable to CBIT/CDR/CDFS.
10.5 Any legal costs or other expenses incurred by CBIT/CDR/CDFS in consequence of this Contract and any other expenses incurred in respect of collection costs, dishonoured cheque (s) fees, legal costs, whether charged on scale or on any other basis incurred, shall be paid by the Client on demand.
11. CLIENT’S WARRANTIES
11.1 The Client warrants to CBIT/CDR/CDFS that:
(a) it is the owner or has been validly authorised by the owner of the Storage Medium to engage CBIT/CDR/CDFS to perform the Services; and
(b) the Storage Medium and the Data do not contain illegal, infringing or offensive material.
12.1 Waiver: A waiver is not effective unless it is in writing.
12.2 Subcontractors: CBIT/CDR/CDFS may use subcontractors to perform some or all of the Services.
12.3 Governing Law: The Contract is governed by and is to be interpreted in accordance with the laws in force in the Australian Capital Territory and the parties submit exclusively to the jurisdiction of the courts in that Territory.
12.4 Severance: If a court decides that a provision of the Contract is void then that provision will be severed without affecting the remainder of the Contract.
12.5 Variations: An amendment or variation to the Contract is not effective unless it is in writing and signed by the parties.
12.6 Notices: Notices under the Contract must be in writing and in English addressed to the addressee at the address of that party stated in the Estimate or as subsequently notified by that party. Notices may be delivered by hand, by mail, by email or by facsimile transmission.
12.7 No Set-off: The Client may not withhold any payment due under the Contract (including payment of the Price) or set-off all or any part of a payment against any amount claimed by the Client from CBIT/CDR/CDFS, for any reason.
13.1 In this clause 12 the expressions “GST” and “supply” have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999.
13.2 Unless otherwise stated, the Price and any other amount payable for any supply under the Contract are specified exclusive of GST.
13.3 If GST is imposed on any supply made under the Contract, the Client must pay to CBIT/CDR/CDFS an amount equal to the GST payable on that supply in addition to and at the same time as payment for that supply is required to be made under the Contract.
14. PRIVACY NOTICE
14.1 The Client agrees that CBIT/CDR/CDFS may use their personal information in the Request Form so that CBIT/CDR/CDFS can provide the Services to the Client. CBIT/CDR/CDFS will not usually disclose the Client’s personal information to others.
14.2 CBIT/CDR/CDFS may gain access to the Client’s, and others’ personal and confidential information in the course of performing the Services. This information will be stored in Australia for up to 20 Business Days after CBIT/CDR/CDFS notifies the Client it is ready for collection. Upon the expiry of the 20 Business Days, the Data will be deleted in full.
14.3 If any Data is recovered by CBIT/CDR/CDFS that is evidence of, or is of itself, criminal activity, CBIT/CDR/CDFS may, and in some circumstances must, disclose personal information and the Data to the relevant authority.