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NO WARRANTIES; DISCLAIMER OF ALL WARRANTIES: FERGUSON COMPUTER SERVICES (FCS) MAKES AND CUSTOMER RECEIVES NO WARRANTIES OR CONDITIONS FOR ANY GOOD OR SERVICE, EXPRESS, IMPLIED, STATUTORY, OR IN ANY COMMUNICATION WITH CUSTOMER, AND FCS SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ARISING FROM USAGE OF TRADE OR COURSE OF DEALING OR PERFORMANCE. SERVICES PROVIDED: Customer engages FCS and/or its partners or subcontractors to inspect, evaluate, and identify the problem (if not already identified); and/or retrieve, or minimize the damage to, the equipment/data/media; and/or provide other services as may be requested by Customer from time to time. INDEPENDENT CONTRACTOR: FCS states and affirms to Customer that it is an independent contractor. It shall have the direction and control of its employees in the provision of services to Customer. Nothing contained in this Agreement shall be construed so as to create a partnership between the Parties or to authorize either Party to act as a general agent of the other Party. Neither Party shall have any authority to make contracts, commitments, statements or representations on behalf of the other Party, except as set forth in this Agreement. COMPENSATION: Customer agrees to pay FCS all sums authorized from time to time by Customer, which will typically include charges for FCS services, reasonable travel and per diem expenses for on site work, shipping and insurance (both ways), and actual expenses, if any, for part, media and/or off the shelf software used in the services. Unless otherwise agreed to in advance by FCS, all such sums are due and payable in advance, by company check, bank money order, or credit card. LIMITATION LIABILITY: Customer acknowledges that the equipment/data/media may be damaged prior to FCS's receipt, and Customer further acknowledges that the efforts of FCS to complete the services may result in the destruction of or further damage to the equipment/data/media. FCS regrets that it will not assume responsibility for additional damage that may occur to the Customer's equipment/data/media during FCS's efforts to complete the services. In no event will FCS be liable for any indirect damages whatsoever. FCS will not be held liable for any damages due to any virus, worm, Trojan horse, etc. The total liability of FCS to Customer under this Agreement shall in no event exceed the total sums paid by Customer to FCS. CONFIDENTIALITY: FCS agrees, on its own behalf and on behalf of any agents it utilizes to perform FCS's responsibilities under this Agreement, that the materials and information which Customer provides to FCS or to which FCS gains access in the course of performing its responsibilities hereunder including, but not limited to, materials and information relating to software, hardware, technical and systems profiles, documents, records, programs, systems, data, disks, ideas, concepts, theories, designs, approaches, improvements, techniques, methodologies, methods, processes, formulae, procedures, ledgers, files, communications, technical requirements, names, addresses and other identifiers of individuals and business entities, financial information, insurance, and other know-how or information relating to Customer (collectively "Customer Information"), as between the Parties, are the property of Customer, and shall be used and viewed by FCS only within the scope of its rights and responsibilities under this Agreement, and shall not be otherwise disclosed to third parties by FCS or any of its agents without Customer's prior written approval. The confidentiality obligations set forth in this Section shall not apply to information and materials: (1) that are or subsequently become publicly available without FCS's breach of any duties it owes to Customer or the breach of any confidentiality obligations of any of FCS's agents or affiliates which are owed to Customer; (2) was know to FCS prior to Customer's disclosure to FCS, other than any information or materials obtained from any of FCS's agents or affiliates which are either subject to confidentiality obligations in favor of Customer from such agents or affiliates of FCS or fail to fall with the exception categories (1), (2), (3), of (4) described herein; (3) become know to FCS from a source other than Customer, other than by the breach of an obligation of confidentiality owed to Customer; or (4) is independently developed by FCS without reference to or use of Customer Information. FCS agrees to use Customer Information only to provide services hereunder and not to use such information for any other purpose. Business entities, government entities and organizations whose data is successfully recovered by FCS provide FCS the right to use for promotional purposes their respective copyright protected logos and/or names. If any such business entity, government entity or organization does not wish to allow FCS use their respective copyright protected logo and/or name for promotional purposes, FCS will remove the copyright protected logo and/or name immediately upon request. FCS agrees to implement and maintain reasonable and customary security measures to safeguard Customer Information. Such measures shall include, but not be limited to, requiring employees who will have access to such information to agree to the confidentiality requirements of this Section. Parties acknowledge and agree that it may be necessary for Customer to share Customer Information with FCS in order for FCS to meet its obligations under this Agreement. With respect to the sharing, use, and protection of Customer Information, FCS agrees to the following: To hold in strict confidence Customer Information obtained from Customer during this Agreement. Not to disclose Customer Information, in any form or medium, to any affiliated or non-affiliated person, firm or corporation except as necessary to perform services under this Agreement or as may be required by law. To the extent that FCS contracts with a third party that obtains Customer Information in order to provide services under this Agreement, FCS agrees to obtain contractual confidentiality protections to require the third party to hold Customer Information in strict confidence and not disclose it to any person unless required by law. FCS agrees to return all Customer Information to Customer either upon request or termination of this Agreement. FCS agrees to comply with applicable privacy laws and regulations including, but not limited to, the Gramm-Leach-Bliley Act, Public Law 106-102 (1999) as set forth in 15 U.S.C.A. ? 6801, as amended to comply with applicable changes in such laws and regulations as these occur and become effective. MISCELLANEOUS PROVISIONS: Customer warrants to FCS Inc. that it is the owner of, and/or has the right to be in possession of, all equipment/data/media furnished to FCS Inc.; and Customer will defend, at its expense, indemnify, and hold FCS Inc. harmless against any damages or expenses that may occur (including reasonable attorneys' fees), and pay any cost, damages, or attorneys' fees awarded against FCS Inc. resulting from Customer's breach of this section. This Agreement is intended by the Parties to be the final expression of their agreement, and it constitutes the full and entire understanding between the Parties with respect to the subject hereof. This Agreement may be amended only by a writing signed by the Parties. The construction, interpretation and enforcement of this Agreement shall be governed by the substantive contract law of the State of Wisconsin without regards to its conflict of law provisions. Should any part, term, or provision of this Agreement be declared invalid, void, or unenforceable, all remaining parts, terms, and provisions hereof shall remain in full force and effect and shall no way be invalidated, impaired, or affected thereby.
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