Conditions générales

1. Introduction

1.1. Agreement to Terms
This Terms and Conditions of Service ("Agreement") is a legally binding contract between you ("Client," "you," or "your") and DataSmart Inc. ("DataSmart," "we," "us," or "our") governing your access to and use of our data backup and restoration services ("Services"). By accessing or using our Services, you agree to be bound by this Agreement.

1.2. Modification of Terms
DataSmart reserves the right, at its sole discretion, to modify or replace any part of this Agreement at any time without prior notice. Your continued use of the Services after any such changes constitutes acceptance of the new terms.
 

2. Services

2.1. Provision of Services
DataSmart agrees to provide data backup, storage, replication, and restoration services in accordance with the terms set forth herein.

2.2. Service Availability
DataSmart endeavors to provide continuous, uninterrupted access to the Services. However, we do not guarantee 100% availability. Acceptable downtime prior to restoration initialization is up to twenty-four (24) hours.

2.3. Client Responsibilities
You are responsible for maintaining the confidentiality of your account credentials, encryption keys, and for all activities that occur under your account.
 

3. Payment Terms

3.1. Fees and Charges
All fees for Services ("Fees") are specified on our website or in a separately executed agreement. Fees are subject to change upon thirty (30) days' notice.

3.2. Payment Methods
We accept the following payment methods:

• Credit Cards (Visa, MasterCard, American Express)

• Debit Cards

• PayPal

3.3. Billing Cycle
Fees for subscription plans are billed in advance on a monthly or annual basis, as per the chosen plan.

3.4. Taxes
All Fees are exclusive of applicable taxes, levies, or duties imposed by taxing authorities. You are responsible for payment of all such taxes.
 

4. Refund Policy

4.1. Defective Merchandise
We offer a thirty (30) day refund policy for defective merchandise purchased from DataSmart. To initiate a refund, you must notify us in writing within thirty (30) days of the purchase date.

4.2. Non-Refundable Services
All Fees paid for Plans, Subscriptions, or Services are non-refundable. This includes, but is not limited to, subscription fees, service charges, and any other related costs.

4.3. Chargebacks
Any chargebacks or disputed payments may result in immediate suspension or termination of your account and Services.
 

5. Intellectual Property Rights

5.1. Ownership
DataSmart retains all right, title, and interest in and to the Services, including all related intellectual property rights.

5.2. License Grant
DataSmart grants you a limited, non-exclusive, non-transferable, revocable license to access and use the Services strictly in accordance with this Agreement.
 

6. Acceptable Use Policy

6.1. Compliance with Laws
You agree to use the Services only for purposes that are legal, proper, and in accordance with all applicable laws and regulations.

6.2. Prohibited Activities
You shall not engage in any of the following activities:

• Attempting to interfere with or disrupt the integrity or performance of the Services.

• Uploading or transmitting any viruses or malicious code.

• Using the Services to infringe upon the intellectual property rights of others.
   

7. Data Security and Privacy

7.1. Data Encryption
All Client Data is encrypted at rest and in transit using industry-standard encryption protocols. You are responsible for safeguarding your encryption keys.

7.2. Access to Data
DataSmart shall not access, view, or modify Client Data without your express prior written consent, except as necessary to comply with applicable laws or lawful governmental requests.
 

8. Limitation of Liability

8.1. No Warranty
The Services are provided on an "as is" and "as available" basis without warranties of any kind, either express or implied.

8.2. Limitation of Damages
In no event shall DataSmart be liable for any indirect, incidental, special, consequential, or punitive damages, including but not limited to loss of profits, data, use, goodwill, or other intangible losses.

8.3. Maximum Liability
DataSmart's total liability to you for all claims arising out of or relating to this Agreement shall not exceed the amounts paid by you to DataSmart in the twelve (12) months immediately preceding the event giving rise to such liability.
 

9. Indemnification

9.1. Client's Obligations
You agree to indemnify, defend, and hold harmless DataSmart, its affiliates, officers, directors, employees, agents, and representatives from any and all claims, liabilities, damages, losses, or expenses arising out of or in any way connected with your use of the Services or violation of this Agreement.
 

10. Term and Termination

10.1. Term
This Agreement commences on the Effective Date and continues until terminated as set forth herein.

10.2. Termination by Client
You may terminate this Agreement at any time by discontinuing the use of the Services.

10.3. Termination by DataSmart
DataSmart may terminate or suspend your access to the Services immediately, without prior notice, for any reason, including but not limited to breach of this Agreement.

10.4. Effects of Termination
Upon termination, your right to access or use the Services immediately ceases. All provisions of this Agreement that by their nature should survive termination shall survive.
 

11. Dispute Resolution

11.1. Mandatory Arbitration

11.1.1. Agreement to Arbitrate
Any dispute, controversy, or claim arising out of or relating to this Agreement shall be resolved exclusively by final and binding arbitration.

11.2. Arbitration Procedure

11.2.1. Governing Rules
The arbitration shall be conducted in accordance with the Arbitration Rules of the Canadian Arbitration Association.

11.2.2. Location
The seat of arbitration shall be in the Province of [Insert Province], Canada.

11.2.3. Selection of Arbitrator
The arbitration shall be conducted before a single arbitrator selected solely by DataSmart.

11.2.4. Language
The arbitration proceedings shall be conducted in English.

11.3. Waiver of Class Actions and Jury Trials
You waive any right to a trial by jury or to participate in a class action.
 

12. Downtime and Maintenance

12.1. Scheduled Maintenance
DataSmart may perform scheduled maintenance, which may result in temporary service interruptions. We will use reasonable efforts to provide advance notice of any scheduled maintenance.

12.2. Acceptable Downtime
Acceptable downtime prior to restoration initialization is twenty-four (24) hours. DataSmart shall not be liable for any damages resulting from downtime within this acceptable period.
 

13. Force Majeure

13.1. Events
DataSmart shall not be liable for any failure to perform its obligations under this Agreement due to events beyond its reasonable control, including but not limited to natural disasters, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labor, or materials.
 

14. Governing Law

14.1. Applicable Law
This Agreement shall be governed by and construed in accordance with the laws of the Province of [Insert Province], and the federal laws of Canada applicable therein.

14.2. Jurisdiction
Subject to the arbitration provisions herein, you agree to submit to the exclusive jurisdiction of the courts located within the Province of Alberta, Canada.
 

15. Severability

15.1. Invalid Provisions
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law.
 

16. Entire Agreement

16.1. Integration Clause
This Agreement constitutes the entire agreement between you and DataSmart regarding the Services and supersedes all prior agreements, understandings, and communications, whether written or oral.
 

17. No Waiver

17.1. Rights and Remedies
No failure or delay by DataSmart in exercising any right or remedy shall operate as a waiver thereof.
 

18. Assignment

18.1. Transferability
You may not assign or transfer any of your rights or obligations under this Agreement without the prior written consent of DataSmart. DataSmart may assign or transfer this Agreement without restriction.
 

19. Notices

19.1. Method of Notice
All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

 

Schedules

Schedule A: Definitions

• "Client Data": All personal and business data provided by the Client for backup and restoration purposes.

• "Services": The data backup, storage, replication, and restoration services provided by DataSmart.

• "Fees": All charges, costs, and expenses payable by the Client for the use of the Services.
   

Schedule B: Payment Details

• Payment Methods Accepted:

  • Credit Cards: Visa, MasterCard, American Express

  • Debit Cards

  • PayPal

• Billing Information:

  • Clients must provide accurate and complete billing information, including full name, address, state, zip code, telephone number, and a valid payment method.
     

Schedule C: Refund Procedures

• Defective Merchandise Refunds:

  • Eligibility: Merchandise must be returned in its original packaging with proof of purchase.

  • Process: Contact customer support to obtain a Return Merchandise Authorization (RMA) number before returning any products.

  • Exclusions: Does not apply to merchandise damaged due to misuse, negligence, or accident.

• Non-Refundable Services:

  • Subscriptions and Plans: All sales are final.

  • Services Rendered: No refunds will be provided for any services that have already been rendered.
     

Schedule D: Service Level Agreement (SLA)

• Acceptable Downtime:

  • Restoration Initialization: Up to twenty-four (24) hours of downtime is acceptable before restoration processes must be initiated.

• Performance Metrics:

  • Data Backup: Data backups will occur at intervals specified in the chosen plan.

  • Data Restoration: Restoration services will commence within the acceptable downtime window upon request.

• Exceptions:

  • Force Majeure Events: Downtime resulting from events beyond DataSmart's control is excluded from SLA commitments.

  • Scheduled Maintenance: Planned downtime for maintenance will be communicated in advance and is excluded from SLA calculations.
     

Schedule E: Arbitration Procedures

• Initiation of Arbitration:

  • Notice Requirement: The initiating party must provide written notice to the other party, specifying the nature of the dispute.

• Arbitration Fees:

  • Cost Sharing: Each party is responsible for its own arbitration-related expenses. The fees and expenses of the arbitrator shall be shared equally.

• Confidentiality:

  • Non-Disclosure: All aspects of the arbitration shall be strictly confidential.
     

Schedule F: Contact Information

• Customer Support:

  • Email: support@datasmart.ca

  • Phone: +1 (825) 962-9345

  • Chat: www.datasmart.ca