Terms Of Service
Name Z General Terms and Conditions of Service
Name Z General Terms and Conditions of Service
GENERAL TERMS AND CONDITIONS OF SERVICE
Latest Version on December 22nd 2017
This Agreement is entered into between: • • Hatter Inc, Barrie, Ontario (ON), Canada a corporation incorporated under the laws of Canada, hereinafter called “Name Z,” and any person or corporation, individual or professional, private or public, wishing to receive one or more services from Name Z, and hereinafter called the “Customer”.
Customer: Person or corporation, signing on to Name Z’s general and specific Agreement terms and conditions in connection with any Service purchased from Name Z.
Customer ID: Customer Account for any Service purchased from Name Z and giving access to the management interface.
Diagnostic: Research undertaken by Name Z at the Customer’s request to identify a malfunction problem of the Service.
Documentation: Name Z makes available to its Customer a set of tools and documentation accessible on Name Z’s website. Facilities
Management: Specific service performed by Name Z at the request of the Customer and billed to the Customer.
Incident: Problem or malfunction encountered with the Service and under the responsibility of Name Z. The following are considered problems which Name Z is liable for: material, network, electrical problems … Management
Interface: "Manager" space accessible to the Customer on Name Z’s website upon identification by entering Customer ID and corresponding password.
Name Z Site: Name Z’s website accessible at https://name-z.com/
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 Name Z as well as any information which may be transmitted by Name Z to the judicial authorities.
Service: Means all the services provided by Name Z 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 they have checked the suitability of the Service to their needs and that they have received from Name Z 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 Name Z’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 Name Z, 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 Name Z. The Name Z services offered gratuitously are also governed by these General Terms and Conditions of Service.
SECTION 2: Name Z’S OBLIGATIONS
Name Z 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. Name Z only has an obligation of means.
SECTION 3: Name Z’S LIABILITY
Name Z shall not be liable in the circumstances described below.: If the performance of this Agreement, or of any of Name Z’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 Name Z’s reasonable control ("Force Majeure event"), then Name Z, 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 Force Majeure event shall keep the other Party informed on a regular basis via electronic mail regarding the prognosis of eliminating such Force Majeure 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 Name Z shall not be liable the Customer causes, for example: • • • • • • a deterioration of the application; the misuse of the terminals by the Customer or their clientèle, 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 Name Z 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 Name Z authorizes other Service users to install their websites and servers in his/its facilities. Name Z 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, Name Z’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 Name Z under this Agreement in the three- (3-) month period immediately preceding the date on which the claim arose. In no event shall Name Z be liable for any lost profits, or any special, indirect, consequential, incidental or punitive damages. Name Z does not offer any backup for the hosted data. It is therefore the Customer’s responsibility 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
SECTION 5: TECHNICAL SUPPORT
5-1 Tools and Documentation provided by Name Z Name Z makes available to the Customer a set of tools and documentations which are accessible on the Name Z Site. This page also includes contact information to reach the Name Z staff. On the same page, Name Z makes available to its Customer: • a set of documentation and technical guides, designed to provide a better understanding and an easier use of the Service (“Documentation”); • communication tools to find out about the condition of Name Z’s facilities; • interfaces to view in real time Name Z’s network; • contact information to reach Name Z’s Technical Support; • an Incident Reporting Form; and • the Facilities Management’s contact information to obtain complementary services (facilities management, specific intervention …) which will be billed separately. Preliminary checks: In the event of Service malfunction, it is the Customer’s responsibility to consult the Documentation and perform the technical tests suggested by Name Z on the Name Z Site in the contact tools. If the malfunction problem encountered persists, the Customer shall have the responsibility of reporting the Incident to Name Z. 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 Name Z may be found. The Customer shall complete the form on the Name Z 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 Name Z 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. Name Z reserves the right to reject any intervention in this regard if Name Z notices in its research work that the Customer uses the Service in breach of Name Z’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 Name Z’s intervention.
5-3 Incident Takeover and Development of Diagnostic Name Z 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, Name Z concludes that the malfunction is an Incident, namely that it is a problem under the responsibility of Name Z, the costs related to the Diagnostic process shall be entirely borne by Name Z, in compliance with the Agreement terms and conditions applicable to the Service. Alternatively, if the Diagnostic reveals that Name Z does not bear responsibility for the Incident encountered by the Customer or that its existence cannot be confirmed the time spent by Name Z on carrying out the Diagnostic will be invoiced to the Customer at a flat rate available for consultation noted on Name Z’s Website. In the event of Name Z being unable to identify the origin or the cause of the incident, the investigations relating to production of the Diagnostic will not be invoiced to the Customer if Name Z is unable to identify the cause of the dysfunction, or if Name Z is unable to provide the customer with a quotation for the correction of the malfunction. Likewise, the Diagnostic will not be invoiced to the Customer if Name Z is unable to provide a quotation for the correction of the incident. The Customer undertakes not to improperly make use of the Technical Assistance. Name Z 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. Name Z 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, Name Z shall inform the Customer on the cause of the malfunction and indicate which technical solutions will be used to resolve the problem encountered. At the end of the Diagnostic, Name Z will convey the cause of the malfunction and will direct the Customer to the technical solutions for resolving the problem encountered. In the event of Name Z not bearing the responsibility for the Malfunction, Name Z will forward a quotation to the Customer corresponding to the cost of the resolution operations, if the Customer wants Name Z to take charge of resolving its problem. As previously stated, Name Z only has an obligation of means.
5.5 Conditions of payment The base price of the quotation is set out on the Name Z Site. The sums due will be invoiced monthly on the anniversary date of technical support being received for the Service. In the event of monthly renewal of the Service, all sums due relating to this Service, including technical support, will be invoiced. No new interventions will be carried out if the payment of the preceding intervention has not been honored.
SECTION 6: TERM AND RENEWAL OF SERVICE, TARIFF
6.1. Term The Service agreement shall be signed for an indefinite term. Name Z reserves the right to suspend the Service at any time. Name Z 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 Name Z’s website or forum, or by any other means Name Z deems necessary.
6.2. Service Renewal Name Z may possibly not renew its Service at the end of the term. Name Z 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 Name Z are not acceptable and will result in rejection by Name Z of the registration or renewal request. Concerning renewals paid by cheque, it is up to the Customer to request the renewal with sufficient time for the cheque to be received and processed by Name Z prior to expiration of the Service. Name Z reminds the Customer that the processing of a payment by cheque may take more than 5 working days in some cases.
6.3 Tariff Name Z will invoice the Customer for the setup fees of any dedicated server order. These fees correspond particularly to setting up and configuring the server, according to the operating system chosen by the Customer. After each payment, Name Z 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. Name Z 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 Name Z 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 tariffs. Price changes will apply to all Agreements, and especially ongoing Agreements. Name Z reserves the right to pass on any new tax or any increase in existing taxes without delay. The Services provided by Name Z are payable at the time of ordering. The Customer is solely responsible for payment of all sums due under the Agreement for Name Z Services. By express agreement and unless deferment is requested in good time and specifically granted by Name Z 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 Name Z to terminate the contract; removal of the possibility to subscribe to new services or to renew them; application of interest at a rate equal to the legal rate of interest in force.
Any disagreement concerning invoicing or the nature of the Services must be forwarded to Name Z’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 their obligations as defined hereunder, including all activities specifically barred while using Name Z services and/or any content specifically barred when using Name Z 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 Name Z’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 Name Z may have a right to claim. At the end of the term of this Service, for any reason whatsoever, Name Z shall entirely delete all the files on the Customer‘s Service. Name Z 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 Name Z 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 Name Z 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 Name Z may restrict, limit or suspend the Service offered if Name Z 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. Name Z reserves the right to interrupt the Customer’s Service if such Service endangers the maintenance of security or stability on Name Z’s hosting platform. Name Z shall, to the extent possible, give the Customer prior notice regarding such interruption. Name Z 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 Name Z, which it would be unable to resolve. However, the Service shall be restricted, limited or suspended, as of right, by Name Z 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 Name Z 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 Name Z 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
Name Z reminds the Customer that, while providing the Service to the Customer, Name Z 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 Name Z 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, Name Z shall not disclose nor sell the Customer’s personal data. The Customer agrees that their personal data may be stored, handled and transferred by Name Z 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 Name Z 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 Name Z 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 Name Z 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
13.1 Severability The invalidity of one of the provision of the Service Agreement entered into with Name Z, 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.
13.2 Headings 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 Name Z’s website all the documents incorporated by reference into this Agreement. Such documents are subject to amendments or updates.
13.4 Communications The Name Z 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 Name Z 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 electronic mail.
13.5 Advertising and Promotion Name Z 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 Ontario 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 Barrie, Province of Ontario, where the Parties elect their current domicile.
SPECIFIC CONDITIONS FOR AUTOMATIC RENEWAL OF SERVICES
Last version of 4th December 2017
ARTICLE 1 : OBJECT
The purpose of these Specific Conditions is to define the conditions governing the use of the automatic renewal feature (or the “Autorenew”) for the eligible Services. Some Services may be governed by different conditions for renewal, as provided for in their applicable Specific Conditions. These conditions are complementary to Name Z General Terms and Conditions, as well as to the Specific Conditions of the Services providing the Autorenew feature. These conditions will prevail over the General Terms and Conditions and the Specific Conditions of the Services whose Autorenew feature has been activated by the Customer.
ARTICLE 2 : CONDITIONS OF RENEWAL
During the ordering process, the Customer selects the initial duration of subscription to the Service (“Initial Duration”). The Initial Duration starts on the day that the Service is activated. At the end of the Initial Duration, the Service is automatically renewed for successive periods of the same duration (“Renewal Period(s)”), subject to modification of the renewal duration or cancellation under the conditions herein or the General Terms of Services applicable. During the ordering process, and every time the Service is renewed, an invoice is issued and automatically paid through the Customer’s registered payment method. The Customer shall register a payment method from those offered by Name Z. The Customer may change the duration of their future Renewal Periods in their Control Panel. Such a change must be made at least 24 hours before the end of the Initial Duration or the current Renewal Period. When the Initial Duration does not start on the first day of the calendar month (i.e. it starts at another point during the month), the Service’s renewal cycle is lined up on a calendar cycle from the first renewal date. This means that the next renewal period will start on the first day of the calendar month. (For example: the customer subscribes to a Service for an Initial Duration of (1) year from May 24, 2017, automatic payment is made on May 24, 2018, this extends the Service’s next renewal date to May 31, 2019). If the Customer does not wish to renew their Service at the end of the Initial Duration or the ongoing Renewal Period (“Renewal Date”), they must deactivate the automatic-payment feature from their Control Panel. In order to be effective and ensure that the Service is canceled at the end of Initial Duration or the Renewal Period, automatic-payment must be deactivated.
Services based on a monthly renewal cycle must be deactivated before 11:00 pm (EST) on the 19th day of the calendar month, at the very latest. Services based on a non-monthly renewal cycle (quarterly, bi-annual, annual etc.), must be deactivated before 11:00 pm (EST) on the 19th day of the calendar month preceding the Renewal Date, at the very latest. (For example: if Customer subscribed to a Service on June 17, 2017 for one (1) year, they must deactivate automatic-payment before 11:00 pm (EST) on May 19, 2018).
If automatic payment is deactivated under the conditions mentioned above, the Service concerned is automatically canceled and deleted at the end of the Initial Duration or the current Renewal Period (“Expiry Date”), including all the content and data hosted by the Customer on the Service. Before the Service’s cancellation, the Customer commits to taking every necessary measure to make sure that such content and data have been saved. Nevertheless, the Customer maintains the ability to renew such a Service up to 24 hours before the Expiry Date either by reactivating the automatic payment feature or by paying in advance for the forthcoming Renewal Period. The Duration, renewal conditions and cancellation of some options and features attached to the Service, may be different from the ones applicable to the Service. The Customer commits to paying particular attention to these conditions.