GENERAL TERMS AND CONDITIONS OF SERVICE DIGITAL ELEMENTS HOSTING
Latest Version on May 16nd 2020
This Agreement is entered into between:
- the DIGITAL ELEMENTS HOSTING
- and any person or corporation, individual or professional, private or public, wishing to receive one or more services from DIGITAL ELEMENTS HOSTING, and hereinafter called the “Customer”.
Customer: Person or corporation, signing on to DIGITAL ELEMENTS HOSTING general and specific Agreement terms and conditions in connection with any Service purchased from DIGITAL ELEMENTS HOSTING.
Customer ID: Customer Account for any Service purchased from DIGITAL ELEMENTS HOSTING and giving access to the management interface.
Diagnostic: Research undertaken by DIGITAL ELEMENTS HOSTING at the Customer’s request to identify a malfunction problem of the Service.
Documentation: DIGITAL ELEMENTS HOSTING makes available to its Customer a set of tools and documentation accessible on DIGITAL ELEMENTS HOSTING’s website.
Facilities Management: Specific service performed by DIGITAL ELEMENTS HOSTING at the request of the Customer and billed to the Customer.
Incident: Problem or malfunction encountered with the Service and under the responsibility of DIGITAL ELEMENTS HOSTING. The following are considered problems which DIGITAL ELEMENTS HOSTING is liable for: material, network, electrical problems …
Management Interface: “Manager” space accessible to the Customer on DIGITAL ELEMENTS HOSTING’s website upon identification by entering Customer ID and corresponding password.
DIGITAL ELEMENTS HOSTING Site: DIGITAL ELEMENTS HOSTING website accessible at https://www.digital-elements.net
Personal Data: Last name, first name, phone number, address, e-mail address, and all other information
disclosed by the Customer in the course of its relationship with DIGITAL ELEMENTS HOSTING as well as any information which may be transmitted by DIGITAL ELEMENTS HOSTING to the judicial authorities.
Service: Means all the services provided by DIGITAL ELEMENTS HOSTING in compliance with the Service agreements entered into by the Customer.
Technical Support: Department in charge of advising the Customer regarding the installation and use of the Service by supplying the required documentation.
SECTION 1: PURPOSE
The Customer acknowledges that he/it has checked the suitability of the Service to his/its needs and that he/it has received from DIGITAL ELEMENTS HOSTING all the information and advice needed to enter into this agreement knowledgeably and willingly.
The purpose of this Agreement is to define the legal, technical and financial conditions of DIGITAL ELEMENTS HOSTING’s agreement with the Customer.
These General Terms and Conditions of Service, to which will be added, as applicable, specific terms and
conditions and/or schedules proposed by DIGITAL ELEMENTS HOSTING, shall be applicable, at the exclusion of all other terms and conditions, including the terms and conditions of the Customer, to all the Customer’s orders of Service from the DIGITAL ELEMENTS HOSTING Services.
The DIGITAL ELEMENTS HOSTING services offered gratuitously are also governed by these General Terms and Conditions of Service.
SECTION 2: DIGITAL ELEMENTS HOSTING’S OBLIGATIONS
DIGITAL ELEMENTS HOSTING agrees to use all due care and due dispatch to provide a quality Service in compliance with professional
standards and the state of the art. DIGITAL ELEMENTS HOSTING only has an obligation of means.
SECTION 3: DIGITAL ELEMENTS HOSTING’S LIABILITY
DIGITAL ELEMENTS HOSTING shall not be liable in the circumstances described below.:
If the performance of this Agreement, or of any of DIGITAL ELEMENTS HOSTING’s obligations under such Agreement, is barred, limited or
disrupted due to a fire, an explosion, a failure in the transmission networks, the collapse of the facilities, an
epidemic, an earthquake, a flood, a power failure, a war, an embargo, a statute, an injunction, a request or
demand from a government, a strike, a boycott, a withdrawal of authorization from the telecommunications
operator, or any other circumstances beyond DIGITAL ELEMENTS HOSTING’s reasonable control (“Force Majeure event”), then DIGITAL ELEMENTS HOSTING, subject to a prompt notice to the Customer, shall be relieved from performing his/its obligations within the limits of this inability to act, limitation or disruption, and the Customer shall be likewise relieved from performing his/its obligations to the extent that his/its obligations pertain to the performance of the obligations thus barred, limited or disrupted, subject to such Party thus affected using its best efforts to avoid or mitigate such failure to perform and to both Parties acting promptly once such causes cease to exist or are eliminated. The Party affected by a Major event shall keep the other Party informed on a regular basis via electronic mail regarding the prognosis of eliminating such Major event or of recovering from it. Should the effects of this Force Majeure last more than thirty (30) days, as of the date of notice regarding such event from one Party to the other, the Agreement may be terminated as a matter of right, at the request of one of the Parties, without any right to compensation for either of them.
Or DIGITAL ELEMENTS HOSTING shall not be liable the Customer causes, for example:
- a deterioration of the application;
- the misuse of the terminals by the Customer or his/its clientele, a fault, negligence, omission or failure on his/its part, or non-compliance with the advice given;
- the disclosure or illegal use of the password confidentially given to the Customer;
- fault, negligence or omission of a third party over whom DIGITAL ELEMENTS HOSTING has no control or supervision power;
- a request for a temporary or permanent interruption of the Service from a competent administrative or judicial authority, or upon notice from a third party; or
- the total or partial destruction of information transmitted or stored resulting from errors directly or indirectly attributable to the Customer.
The Customer acknowledges that DIGITAL ELEMENTS HOSTING authorizes other Service users to install their websites and servers in
his/its facilities. DIGITAL ELEMENTS HOSTING shall not be liable in any way whatsoever for damages, costs or losses incurred by the Customer (or by his/its own customers) and caused by another Service user’s act, material or failure to act, DIGITAL ELEMENTS HOSTING’s liability in contract, in tort (including negligence) or by statute, or otherwise, to the Customer (or his/its own customers), concerning performance or non-performance, as applicable, of any obligation created under this Agreement, with regard to any claim, shall be limited and shall not, in the aggregate, exceed the total fees paid by the Customer to DIGITAL ELEMENTS HOSTING under this Agreement in the three- (3-) month period immediately preceding the date on which the claim arose. In no event shall DIGITAL ELEMENTS HOSTING be liable for any lost profits, or any special, indirect, consequential, incidental or punitive damages.
DIGITAL ELEMENTS HOSTING offers backup for the hosted data as a Courtesy Only. It is therefore recommended the customer to take all required steps in order to back up his/its data in the event of a loss or deterioration of such data for any reason whatsoever, including reasons not explicitly mentioned hereunder.
SECTION 4: CUSTOMER’S OBLIGATIONS AND LIABILITIES
The Customer agrees to use his/its power, authority and capabilities to enter into this Agreement and perform his/its obligations as provided hereunder.
The Customer agrees to communicate to DIGITAL ELEMENTS HOSTING his/its accurate and updated contact information upon the creation
of the Customer Account and each time such information is modified.
DIGITAL ELEMENTS HOSTING reserves the right to request supporting documentation from the Customer to ensure the accuracy of their information.
The Customer is solely and exclusively responsible for the passwords that are required in order to use the Service.
DIGITAL ELEMENTS HOSTING is not responsible for the illegal or fraudulent use of passwords made available to the Customer. The passwords provided are considered confidential. The Customer shall be solely liable, at the exclusion of DIGITAL ELEMENTS HOSTING, in the event of any suspicion that the passwords provided have been disclosed, whether intentionally or not.
The Customer alone shall bare all the consequences of a malfunction of the Service resulting from the use by his/its staff or by any other person to whom the Customer has provided his/its password(s). The Customer shall also bare all the consequences resulting from the loss of such password(s).
The Customer hereby agrees to comply with all legal and regulatory requirements in force, and, more specifically, with those pertaining to software, files, freedom and intellectual property, as well as the rights of third parties. The Customer also agrees to take out all required insurance policies from a well-known solvent insurer, in order to cover all damages attributable to the Customer in connection with this Agreement or the performance thereof.
The Customer hereby fully accepts all legal obligations arising from the administration of their Services. DIGITAL ELEMENTS HOSTING cannot be held liable or investigated in this respect for any reason, especially in the event of a violation of the laws or regulations applicable to the Customer’s Services. Non-compliance by the Customer with the aforementioned points detailed in DIGITAL ELEMENTS HOSTING’s Special Conditions, and especially with any activity likely to generate a civil and/or penal liability will give DIGITAL ELEMENTS HOSTING the right to immediately disconnect and/or stop the Customer’s Services without prior notice, and to immediately and lawfully terminate this Agreement, without prejudice to the right to all damages and interest that DIGITAL ELEMENTS HOSTING may claim.
The Customer undertakes to settle directly with a claimant, any sum demanded from DIGITAL ELEMENTS HOSTING by such claimant.
Moreover, the Customer undertakes to intervene at the request of DIGITAL ELEMENTS HOSTING in any proceedings brought against DIGITAL ELEMENTS HOSTING and shall indemnify and hold harmless DIGITAL ELEMENTS HOSTING from any and all such third-party claims. Consequently, the Customer undertakes to address any third-party complaint and/or procedure, regardless of form, object or nature, that is brought against DIGITAL ELEMENTS HOSTING and is related to the Customer’s obligations under this Agreement.
The Customer hereby agrees to inform DIGITAL ELEMENTS HOSTING within 48 hours of any changes in his/its situation, and within 24 hours, of any lost passwords.
When suspicious activity (SPAM, violation of copyright, Attack, Phishing, illegal content, DoS PortScan …) is detected by DIGITAL ELEMENTS HOSTING or reported by a third party, DIGITAL ELEMENTS HOSTING may contact the Client by email (and optionally attach a copy of the complaint received). It is expected that the Client respond to the notification within the time limit (24, 48 or 72 hours depending on the nature of the case) to provide its comments and intentions. Failure to respond could result in the suspension / termination of service.
SECTION 5: TECHNICAL SUPPORT
In the event of Service malfunction, it is the Customer’s responsibility to consult the Documentation and perform the technical tests suggested. If the malfunction problem encountered persists, the Customer shall have the responsibility of reporting the Incident to DIGITAL ELEMENTS HOSTING.
5-1 DIGITAL HOSTING SERVICES will provide support for Customers scripts and web pages on a BEST EFFORT ONLY. No Guarantee for customers scripts or websites outside of the normal operating parameters of the script or coding language shall be implied.
5-2 Incident Reporting Procedure:
In order to report an Incident, the Customer shall complete the form designed for such purpose on the website, then go to the Customer’s Management Interface where earlier tickets of electronic exchanges between the Customer and DIGITAL ELEMENTS HOSTING may be found.
The Customer shall complete the form on DIGITAL ELEMENTS HOSTING Site and attempt to provide as much information as possible on the problem encountered to help with the Diagnostic.
To this end, the Customer explicitly authorizes DIGITAL ELEMENTS HOSTING and its staff to connect to the Customer’s Service and to
perform any operation required in connection with the Diagnostic, with respect to both the hardware and the
software. DIGITAL ELEMENTS HOSTING reserves the right to reject any intervention in this regard if DIGITAL ELEMENTS HOSTING notices in its research work that
the Customer uses the Service in breach of DIGITAL ELEMENTS HOSTING’s General and Specific Terms and Conditions or of laws and
regulations in force.
All the exchanges between the parties, and more particularly the electronic exchanges and telephone
conversations, shall reflect Customer’s assent to DIGITAL ELEMENTS HOSTING’s intervention.
5-3 Incident Takeover and Development of Diagnostic
DIGITAL ELEMENTS HOSTING shall, in connection with the Incident reporting procedure, carry out a Diagnostic in order to determine the
origin and cause of the malfunction problem. If, during the Diagnostic process, DIGITAL ELEMENTS HOSTING concludes that the
malfunction is an Incident, namely that it is a problem under the responsibility of DIGITAL ELEMENTS HOSTING, the costs related to the
Diagnostic process shall be entirely borne by DIGITAL ELEMENTS HOSTING, in compliance with the Agreement terms and conditions
applicable to the Service.
The Customer undertakes not to improperly make use of the Technical Assistance. DIGITAL ELEMENTS HOSTING reserves the right to refuse to handle a Customer request if their conduct or the frequency of their requests is likely to adversely affect the normal operation of the Technical Assistance Service.
The Customer agrees to avoid using the Technical Support service in an abusive manner. DIGITAL ELEMENTS HOSTING reserves the right to refuse to respond to a Customer’s claim if the Customer’s behavior or the frequency of claims is likely to disrupt the normal operations of the Technical Support service
5-4 Resolution of Malfunction
At the end of the Diagnostic, DIGITAL ELEMENTS HOSTING shall inform the Customer on the cause of the malfunction and indicate which technical solutions will be used to resolve the problem encountered.
SECTION 6: TERM AND RENEWAL OF SERVICE, RATES
The Service agreement shall be signed for an indefinite term. DIGITAL ELEMENTS HOSTING reserves the right to suspend the Service at any time. DIGITAL ELEMENTS HOSTING shall, to the extent possible, notify in advance the Service users, through a message on the mailing list created in connection with the beta-test, on DIGITAL ELEMENTS HOSTING’s website or forum, or by any other means DIGITAL ELEMENTS HOSTING deems necessary.
6.2. Service Renewal
DIGITAL ELEMENTS HOSTING may possibly not renew its Service at the end of the term. DIGITAL ELEMENTS HOSTING shall make every effort to inform the Customer beforehand regarding this and shall delete all the data stored by the Customer on the Service. The Customer hereby agrees to recover all his/its data prior to the end of the Service term.
Any non-payment or irregular payment, meaning incorrect or incomplete amounts in particular, or lacking the required references, or made by any method or procedure not accepted by DIGITAL ELEMENTS HOSTING are not acceptable and will result in rejection by DIGITAL ELEMENTS HOSTING of the registration or renewal request.
Concerning renewals paid by check, it is up to the Customer to request the renewal with sufficient time for the check to be received and processed by DIGITAL ELEMENTS HOSTING prior to expiration of the Service. DIGITAL ELEMENTS HOSTING reminds the Customer that the processing of a payment by check may take more than 5 working days in some cases.
After each payment, DIGITAL ELEMENTS HOSTING will send an invoice by email and/or will make it available to the Customer via their management Interface. The Customer expressly accepts that the invoice will be sent to them electronically.
DIGITAL ELEMENTS HOSTING reserves the right to modify their prices at any time, subject to informing the Customer by email and/or to making an online announcement on the DIGITAL ELEMENTS HOSTING Site one month in advance, if the new prices excluding tax are less favorable to the Customer. In this event, the Customer will have one month from receipt of this information to cancel their contract without penalty. Failing any such action by the Customer, the Customer will be deemed to have accepted the new rates. Price changes will apply to all Agreements, and especially ongoing Agreements.
DIGITAL ELEMENTS HOSTING reserves the right to pass on any new tax or any increase in existing taxes without delay.
The Services provided by DIGITAL ELEMENTS HOSTING are payable at the time of ordering. The Customer is solely responsible for payment of all sums due under the Agreement for DIGITAL ELEMENTS HOSTING Services. By express agreement and unless deferment is requested in good time and specifically granted by DIGITAL ELEMENTS HOSTING in writing, the total or partial non-payment of any sum due under the Agreement by the due date will automatically result in the following, without prior notification:
– immediate payment of any outstanding amounts owed by the Customer under the Agreement, regardless of the planned method of payment;
– suspension of all ongoing services, regardless of their nature, without prejudice to the ability of DIGITAL ELEMENTS HOSTING to terminate the contract;
– removal of the possibility to subscribe to new services or to renew them;
Any disagreement concerning invoicing or the nature of the Services must be forwarded to DIGITAL ELEMENTS HOSTING’s Customer Service via the Customer’s management Interface, within one month of the order confirmation being issued.
SECTION 7: TERMINATION, LIMITATION AND SUSPENSION OF SERVICE
Breach by the Customer of his/its obligations as defined hereunder, including all activities specifically barred while using DIGITAL ELEMENTS HOSTING services and/or any content specifically barred when using DIGITAL ELEMENTS HOSTING services, and/or likely to result in civil and/or criminal liability and/or likely to prejudice a third party’s rights, shall give rise to DIGITAL ELEMENTS HOSTING’s right to immediately cut off the cable and/or interrupt the Customer’s services, without any prior demand, and to immediately terminate the Service, as of right, without prejudice to any other damages DIGITAL ELEMENTS HOSTING may have a right to claim.
At the end of the term of this Service, for any reason whatsoever, DIGITAL ELEMENTS HOSTING shall entirely delete all the files on the Customers Service.
DIGITAL ELEMENTS HOSTING reserves the right to restrict, limit or suspend its services without prior notice nor indemnity if it appears that the Customer uses the services provided for any activity which violates the terms and conditions of the Agreement with DIGITAL ELEMENTS HOSTING or the Service objectives.
The Service may also be restricted, limited or suspended when the specific terms and conditions applicable to a type of Service offered by DIGITAL ELEMENTS HOSTING provide for such sanctions in the event of a breach.
The restriction, limitation or suspension measures shall always be taken in accordance with the seriousness or recurrence of the breach(es), and shall be based on the nature of such breach(es).
The Customer agrees in advance that DIGITAL ELEMENTS HOSTING may restrict, limit or suspend the Service offered if DIGITAL ELEMENTS HOSTING receives a notice in that regard from a competent administrative, arbitral or judicial authority, in compliance with the laws and regulations in force.
Either Party may terminate the Agreement, as of right and without indemnity, in the case of a Force Majeure event lasting more than thirty (30) days.
DIGITAL ELEMENTS HOSTING reserves the right to interrupt the Customer’s Service if such Service endangers the maintenance of security or stability on DIGITAL ELEMENTS HOSTING’s hosting platform. DIGITAL ELEMENTS HOSTING shall, to the extent possible, give the Customer prior notice regarding such interruption.
DIGITAL ELEMENTS HOSTING reserves the right to interrupt the Service, as needed, for technical interventions designed to improve its operations, or for maintenance procedures.
SECTION 8: OPERATING CONDITIONS
The Customer hereby acknowledges that bandwidth fluctuations and problems with the access provider could cause a gap in the services provided by the DIGITAL ELEMENTS HOSTING Corporation, which it would be unable to resolve. However, the Service shall be restricted, limited or suspended, as of right, by DIGITAL ELEMENTS HOSTING:
- if it seems that the Customer is using the services provided for any activity whatsoever which is not in
compliance with these General Terms and Conditions;
- in compliance with the applicable Specific Terms and Conditions;
- if DIGITAL ELEMENTS HOSTING receives a notice in that regard from a competent administrative, arbitral or judicial authority, in compliance with the appropriate applicable laws, or from a third party;
- if the contact information in the Customer’s account seems to be false, inaccurate or out of date.
SECTION 9: CUSTOMER INFORMATION AND COMPLIANCE WITH SERVICE
SECTION 10: TOLERANCE
The fact that DIGITAL ELEMENTS HOSTING fails to invoke one of the General Terms and Conditions of Service and/or tolerates the violation by the other Party of any of the obligations hereunder shall not be construed as a waiver to invoke in the future any of these Terms and Conditions.
SECTION 11: PERSONAL DATA
DIGITAL ELEMENTS HOSTING reminds the Customer that, while providing the Service to the Customer, DIGITAL ELEMENTS HOSTING may keep some of the Customer’s personal data in compliance with its regulatory and judicial obligations.
Information such as “last name, first name, mailing address, e-mail address, phone numbers, and IP connection addresses” shall be kept by DIGITAL ELEMENTS HOSTING during the entire term of the Agreement and up to twelve (12) months after the expiration of the Service.
The data transmitted by the Customer shall be kept as long as deemed necessary for evidence purposes. Except as otherwise provided in the Specific Terms and Conditions, DIGITAL ELEMENTS HOSTING shall not disclose nor sell the Customer’s personal data.
The Customer agrees that his/its personal data may be stored, handled and transferred by DIGITAL ELEMENTS HOSTING to its affiliates, who shall only have access to such data in order to perform essential functions in the provision of the Service, all in strict compliance with the Customer’s privacy rights.
The Customer also acknowledges that DIGITAL ELEMENTS HOSTING may communicate the Customer’s information at the request of administrative, regulatory or judicial authorities.
SECTION 12: AMENDMENTS
The General and Specific Terms and Conditions online take precedence over the printed General and Specific Terms and Conditions. The parties agree that DIGITAL ELEMENTS HOSTING may, as of right, bring changes to its Service simply by informing the Customer through an online notice and/or by amending its General Terms and Conditions online.
Any amendment or introduction of new options offered shall be posted online on the DIGITAL ELEMENTS HOSTING Site or sent via e-mail to the Customer. Notwithstanding the provisions of section 7, the Customer shall then have the right to terminate the
Agreement within thirty (30) days of the effective date of such amendments.
SECTION 13: GENERAL PROVISIONS
The invalidity of one of the provision of the Service Agreement entered into with DIGITAL ELEMENTS HOSTING, particularly under a law or a regulation or as a result of the final judgment of a court of competent jurisdiction, shall not invalidate the other provisions of such Service Agreement, which will remain in full force and effect.
The Parties shall, in such cases, to the extent possible, replace the invalid provision with a valid provision consistent with the spirit and object of the Agreement’s terms and conditions.
The Agreement section headings are inserted solely for reference purposes and do not have any contractual value nor any specific meaning.
13.3 Specific Conditions and Schedules
The Specific Conditions and prospective schedules are incorporated by reference into the General Terms and Conditions of Service and are necessarily incidental thereto. The combination of all these documents is hereunder referred to as the “General Terms and Conditions.”
The Customer may consult on DIGITAL ELEMENTS HOSTING’s website all the documents incorporated by reference into this Agreement. Such documents are subject to amendments or updates.
The DIGITAL ELEMENTS HOSTING server’s date and time shall be relied upon as evidence of the exchange of information by e-mail between the Parties. Such information shall be kept by DIGITAL ELEMENTS HOSTING during the entire term of the contractual relationship between the Parties.
All notices, communications, and demands provided under the General Terms and Conditions shall be deemed to have been validly delivered if they are sent by registered mail, return receipt requested, to:
- in the case of the Customer: at the mailing and/or e-mail address provided to DIGITAL ELEMENTS HOSTING.
13.5 Advertising and Promotion
DIGITAL ELEMENTS HOSTING may from time to time, in connection with advertisements, events, seminars, and specialized publications within the professional markets, indicate the services provided to the Customer, on its commercial documents and/or in its annual report.
SECTION 14: APPLICABLE LAWS AND JURISDICTION
This Agreement, its interpretation, performance, application, validity, and effects shall be subject to the applicable laws in force in the Province of Quebec and in Canada, which will govern its provisions, in whole or in part. The Parties hereby agree that all judicial proceedings instituted shall be filed with and heard by the courts having jurisdiction in the judicial district of Montreal, Province of Quebec, where the Parties elect their current domicile.