D-ONE (provider), a registered business under the laws of Ontario, Canada, hereinafter referred as “D-ONE”, and any person or corporation, individual or professional, private or public, wishing to receive, purchase, or subscribe to one or more services from D-ONE, and hereinafter referred as the “Customer”.
Customer: Person, organization, corporation or any legal entity, signing on to D-ONE’s general and specific Agreement terms and conditions in connection with any Service purchased from D-ONE.
Customer ID: Customer Account for any Service purchased from D-ONE and / or its servicing partners and giving access to the Service management interface.
D-ONE Site: D-ONE’s website accessible at https://www.d-one.com
Diagnostic: Research undertaken by D-ONE and / or its servicing partners at the Customer’s request to identify a malfunction problem of the Service.
Documentation: D-ONE makes available to its Customer a set of tools and documentation accessible on D-ONE’s website.
Facilities Management: Specific service performed by D-ONE and / or its servicing partners at the request of the Customer and billed to the Customer.
Incident: Problem or malfunction encountered with the Service and under the responsibility of D-ONE and / or its servicing partners.
Management Interface: A portal or space accessible to the Customer on D-ONE’s website and / or any online or offline systems upon identification by entering Customer ID and corresponding password.
Party/Parties: A reference to D-ONE or Customer.
Personal Data: Company name, legal entity name, first name, last name, phone number, address, e-mail address, and all other information disclosed by the Customer in the course of its relationship with D-ONE as well as any information which may be transmitted by D-ONE to the judicial authorities.
Service: Means all the services provided by D-ONE and / or its servicing partners in compliance with the Service agreements entered by the Customer.
Servicing Partners: Other vendors / providers whom D-ONE has a business relationship in providing or create a Service sold / resale by D-ONE.
Technical Support: Department and / or function in charge of advising the Customer regarding the installation and use of the Service by supplying the required documentation and / or hands-on support in person or remotely as deemed necessary.
The Customer acknowledges that he/it has checked the suitability of the Service to his/its needs and that he/it has received from D-ONE all the information and advice needed to enter into this agreement knowledgeably and willingly.
The purpose of this Agreement is to define the legal responsibility, technical responsibility and financial conditions of D-ONE’s agreement with the Customer.
2. D-ONE’S OBLIGATIONS
D-ONE agrees to use all due care and professionalism to provide a quality Service in compliance with professional standards and / or any legal compliance requirement as required by the law.
3. D-ONE’S LIABILITY
D-ONE shall not be liable in the circumstances described below:
If the performance of this Agreement, or of any of D-ONE’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 D-ONE’s reasonable control ("Force Majeure event"), shall be relieved from performing his/its obligations within the limits of this inability to act, limitation or disruption. Within reasonable effort, D-ONE’s shall be in touch with affected Customers.
If and when the effects of this Force Majeure last more than thirty (30) days, from 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 D-ONE shall not be liable for 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 provided to the Customer;
· fault, negligence or omission of a third party over whom D-ONE has no control or supervision power;
· a request for a temporary or permanent interruption of the Service from a competent administrative or legal authority of which D-ONE is operated within, 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 D-ONE authorizes other Service users to install their websites and servers in D-ONE and / or its servicing partners’ facilities. D-ONE 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, D-ONE’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 D-ONE under this Agreement to a maximum of the three- (3-) month period immediately preceding the date on which the claim arose. In no event shall D-ONE be liable for any lost profits, or any special, indirect, consequential, incidental or punitive damages.
D-ONE does not offer any backup for the hosted data unless specifically offered as part of a service and if offered it is to a maximum day of 7 or 14 days. 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.
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 D-ONE his/its accurate and updated contact information upon the creation of the Customer Account and each time such information is modified.
D-ONE 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.
D-ONE 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 D-ONE, in the event of any suspicion that the passwords provided have been disclosed, whether intentionally or not.
The Customer alone shall bear 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 bear 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 acquire insurance policies by the Customer 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. D-ONE 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 D-ONE’s Special Conditions, and especially with any activity likely to generate a civil and/or penal liability will give D-ONE 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 D-ONE may claim.
The Customer undertakes to settle directly with a claimant, any sum demanded from D-ONE by such claimant.
Furthermore, the Customer undertakes to intervene at the request of D-ONE in any proceedings brought against D-ONE and shall indemnify and hold harmless D-ONE from any and all such third party claims. The Customer shall undertake to address any third party complaint and/or procedure, regardless of form, object or nature, that is brought against D-ONE and is related to the Customer's obligations under this Agreement.
The Customer hereby agrees to inform D-ONE within 48 hours of any changes in his/its situation, and within 24 hours, of any lost passwords or security breach or data breach.
When suspicious activity including but not limited to SPAM, violation of copyright, cyber attack, phishing, hosting of illegal content, DoS, PortScan, and any activities that are design to harm or disrupt systems and networks are detected by D-ONE and / or its servicing partners or reported by a third party, D-ONE may contact the Customer by email (and optionally attach a copy of the complaint received) to inform the Customer of such violation o complain. It is expected that the Customer respond to the notification within a reasonable time limit (4, 8, 12, 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 without further notice.
5. TECHNICAL SUPPORT
a. Tools and Documentation provided by D-ONE
D-ONE makes or may make available to the Customer a set of tools and documentations which are accessible on the D-ONE Site.
This page also includes contact information to reach the D-ONE staff.
On the same page, D-ONE 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”);
· contact information to reach D-ONE’s Technical Support;
· an Incident Reporting Form; and
· any contact information that will assist a Customer in obtaining Service or support from D-ONE
In the event of Service malfunction, it is the Customer’s responsibility to consult any available Documentation and perform the technical tests suggested by D-ONE on the D-ONE Site in the contact tools. If the malfunction problem encountered persists, the Customer shall have the responsibility of reporting the Incident to D-ONE.
b. Incident Reporting and Support Request Procedure:
In order to report an Incident, the Customer shall complete the form designed for such purpose on the website, or contact the Customer sales / support representative, and / or any other designated contact provide by D-ONE to the Customer.
By submitting a request, the Customer explicitly authorizes D-ONE 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. D-ONE reserves the right to reject any intervention in this regard if D-ONE notices in its research work that the Customer uses the Service in breach of D-ONE’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 D-ONE’s intervention.
c. Incident Takeover and Development of Diagnostic
D-ONE 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, D-ONE concludes that the malfunction is an Incident, namely that it is a problem under the responsibility of D-ONE, the costs related to the Diagnostic process shall be entirely borne by D-ONE, in compliance with the Agreement terms and conditions applicable to the Service.
Alternatively, if the Diagnostic reveals that D-ONE does not bear responsibility for the Incident encountered by the Customer or that its existence cannot be confirmed the time spent by D-ONE on carrying out the Diagnostic will be invoiced to the Customer at D-ONE’s current hourly rate plus any expenses that D-ONE might incurred.
In the event of D-ONE 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 D-ONE is unable to identify the cause of the dysfunction, or if D-ONE 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 D-ONE is unable to provide a quotation for the correction of the incident.
The Customer who improperly make use of the Technical Assistance, D-ONE 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. D-ONE reserves the right to refuse to respond to a Customer’s claim if the Customer’s behaviour or the frequency of claims is likely to disrupt the normal operations of the Technical Support service.
d. Resolution of Malfunction
At the end of the Diagnostic, D-ONE 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, D-ONE 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 D-ONE not bearing the responsibility for the Malfunction, D-ONE will forward a quotation to the Customer corresponding to the cost of the resolution operations, if the Customer wants D-ONE to take charge of resolving its problem.
As previously stated, D-ONE only has an obligation of means.
e. Conditions of payment
The base price of the quotation is set out on the D-ONE Site and / or any contract or quotations that have been accepted by Customer. 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 honoured.
6. TERM AND RENEWAL OF SERVICE, TARIFF
The Service agreement shall be signed for an indefinite term. D-ONE reserves the right to suspend the Service at any time. D-ONE 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 D-ONE’s website or forum, or by any other means D-ONE deems necessary.
b. Service Renewal
D-ONE may possibly not renew its Service at the end of the term. D-ONE 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 D-ONE are not acceptable and will result
in rejection by D-ONE 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 D-ONE prior to expiration of the Service. D-ONE reminds the Customer that the processing of a payment by cheque may take more than 5 working days in some cases.
Unless otherwise specified, D-ONE will invoice the Customer for the setup fees of any hosting services. These fees correspond particularly to setting up and configuring of a hosting server, according to the operating system chosen by the Customer.
D-ONE 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.
D-ONE 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 D-ONE Site one month in advance. 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.
D-ONE reserves the right to pass on any new tax or any increase in existing taxes without delay.
The Services provided by D-ONE are payable at the time of ordering. The Customer is solely responsible for payment of all sums due under the Agreement for D-ONE Services. By express agreement and unless deferment is requested in good time and specifically granted by D-ONE 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 D-ONE 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 1.5 times the legal rate of interest in force in the Republic of Ireland.
Any disagreement concerning invoicing, or the nature of the Services must be forwarded to D-ONE’s Customer Service via the Customer's management Interface, within one month of the order confirmation being issued.
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 D-ONE services and/or any content specifically barred when using D-ONE 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 D-ONE’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 D-ONE may have a right to claim.
At the end of the term of this Service, for any reason whatsoever, D-ONE shall entirely delete all the files on the Customer‘s Service.
D-ONE 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 D-ONE 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 D-ONE 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 D-ONE may restrict, limit or suspend the Service offered if D-ONE 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.
D-ONE reserves the right to interrupt the Customer’s Service if such Service endangers the maintenance of security or stability on D-ONE’s hosting platform. D-ONE shall, to the extent possible, give the Customer prior notice regarding such interruption.
D-ONE reserves the right to interrupt the Service, as needed, for technical interventions designed to improve its operations, or for maintenance procedures.
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 D-ONE Corporation, which it would be unable to resolve.
However, the Service shall be restricted, limited or suspended, as of right, by D-ONE:
· 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 D-ONE 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.
9. CUSTOMER INFORMATION AND COMPLIANCE WITH SERVICE
The Customer acknowledges that he/it has checked the suitability of the material and the Service to his/its needs and has received from D-ONE all the information and advice needed to knowingly enter into this agreement.
The fact that D-ONE 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.
11. PERSONAL DATA
D-ONE reminds the Customer that, while providing the Service to the Customer, D-ONE may keep some or all of the Customer’s personal data in compliance with its regulatory and judicial obligations.
Information such as “company report, first name, Last name, mailing address, e-mail address, phone numbers, and IP connection addresses” shall be kept by D-ONE 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, D-ONE 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 D-ONE to its affiliates and / or servicing partner(2), 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 D-ONE may communicate the Customer’s information at the request of administrative, regulatory or judicial authorities.
The General and Specific Terms and Conditions online take precedence over the printed General and Specific Terms and Conditions. The parties agree that D-ONE 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 D-ONE 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.
13. GENERAL PROVISIONS
The invalidity of one of the provisions of the Service Agreement entered with D-ONE, 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.
c. 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 D-ONE’s website all the documents incorporated by reference into this Agreement.
Such documents are subject to amendments or updates without notice.
The D-ONE 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 D-ONE 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 D-ONE: 2806 – 8 York Street, Toronto, ON M5J 2Y2
• in the case of the Customer: at the mailing and/or e-mail address provided to D-ONE.
e. Advertising and Promotion
D-ONE 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.
14. APPLICABLE LAWS AND JURISDICTION
This Agreement 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.
Updated: August 2019