Terms and Conditions of Service

GENERAL

1.      What are the Terms and Conditions of Service?

These terms and conditions of service (“Service Terms”) govern your use of any Services, as defined below.

Throughout this document:

●                   “Agreement” has the meaning set out in Section 2;

●                   “Affiliate” has the meaning set out in the Business Corporations Act, R.S.A., 2000, c. B-9;

●                   “4Cloud” means 508896 Alberta Ltd. and its Affiliates;

●                   “4Cloud Parties” means 4Cloud, its partners, licensors, dealers, representatives, suppliers and agents (and their respective employees, officers, directors, shareholders and representatives);

●                   “Customer Provided Content” has the meaning in Section 24;

●                   “Fees” has the meaning in Section 7;

●                   “HIPAA” means the U.S. Health Insurance Portability and Accountability Act of 1996 as amended and supplemented;

●                   “HITECH” means U.S. Health Information Technology for Economic and Clinical Health Act as amended and supplemented;

●                   “I”, “me”, “you”, “your” and “yours” refer to all individuals, businesses and organizations accessing the Website and / or using the Services, including persons that you authorize to use the Services or act as your agent with regard to the Services;

●                   “Identifiers” means e-mail addresses, account numbers, personal identification numbers (“PINs”), Internet Protocol addresses, personal web page addresses, access codes and any other identifier assigned to you by 4Cloud;

●                   “Late Payment Charges” has the meaning in Section 9;

●                   “My Account Portal” is a customer portal on the Website (https://www.4cloud.ca/account/) that allows you to access features and information relating to your Services and your account with 4Cloud;

●                   “NSF” has the meaning in Section 9;

●                   “Policies” are defined in Section 12 of the Service Terms;

●                   “Residents of Newfoundland” means residents of Newfoundland and Labrador who enter into an Agreement to which the Consumer Protection and Business Practices Act (Newfoundland and Labrador) applies;

●                   “Residents of Québec” means residents of Québec who enter into an Agreement to which the Consumer Protection Act (Québec) applies;

●                   “Service Agreement” means an agreement setting out the terms for specific Services. Service Agreements are available on the Website at the following URL: https://www.4cloud.ca/);

●                   “Services” mean any services to which you subscribe or receive through 4Cloud, including but not limited to email hosting, web hosting, virtual private servers and domain registration. All Software is considered an element of the Services;

●                   “Service Terms” means this Service Terms document;

●                   “Software” means any software used to access, forming part of the Services or used in conjunction with the Services;

●                   “Term” has the meaning in Section 4;

●                   “Software Documents” has the meaning in Section 19;

●                   “us”, “we”, “our” or “ourselves” means 4Cloud; and

●                   “Website” means all content on the https://www.4cloud.ca domain.

 
2.      What is included as part of my Agreement for Services with 4Cloud?

The “Agreement” includes the Service Terms, Service Agreements [made available on the Website at the following URL: https://www.4cloud.ca/policies] for Services to which you subscribe, any 4Cloud document describing features, products or services and any other document incorporated by reference together with these Service Terms. In the event of an inconsistency between the constituent documents of the Agreement, the inconsistency will be resolved by giving preference first to any Service Agreement(s), then to the Service Terms, then to any other 4Cloud documentation describing features, products or services, and lastly to any other documents incorporated by reference.

3.      How do I accept the Agreement?

You acknowledge that you have read, understood and agreed to the Agreement by either: (i) placing an order for Services by any means including online or over the phone; or (ii) using the Services. If you do not agree to the Service Terms or the applicable Service Agreement(s), you may not use the Services. If you are using Services on behalf of a business (e.g., your employer or a contractor) or other legal entity, you represent that you have the authority to bind that company or other legal entity to these Service Terms.

4.      How long does the Agreement last?

The “Term” of your Agreement with 4Cloud begins when you accept the Agreement and will continue on an ongoing month-to-month basis until the Agreement is terminated. Service Agreements may modify the Term.

5.      Can 4Cloud change the Agreement?

Unless otherwise specified in the Agreement, 4Cloud can change any aspect of the Agreement Before we make any changes to the Agreement, we will give you at least thirty (30) days’ written notice by email, letter, bill insert or by posting the notice on our Website. This notice will clearly identify the new or amended term or provision, the former term as it read before (if applicable), the date the amendment will come into force and your rights. If you continue to use the affected Services after thirty (30) days from the effective date indicated in the notice, the new service term will become effective.

6.      What if I do not agree with a change that 4Cloud makes to the Agreement?

If you do not agree with a change made by 4Cloud, you may cancel the affected Services in accordance with Section 29.

 

ACCOUNT, BILLING AND PAYMENT

7.      How does 4Cloud bill me for the Services?

4Cloud will invoice you in advance for recurring and one-time charges (collectively, “Fees”). We shall issue invoices on a monthly basis unless you select a different invoicing arrangement (e.g., monthly, bi-weekly, quarterly, annually) pursuant to the terms of an applicable Service Agreement. All Fees and applicable taxes are invoiced and due by the date indicated in your invoice. In advance of the invoice date, you can log-on to the My Account Portal and access a statement of the Fees that will be due for the next invoicing period. Newly added Services or changes to your Services may result in pro-rated charges for a partial billing cycle. Service Agreements may also modify the billing terms for certain Services.

8.      How can I pay my bill?

You can pay your bill online through your bank account, by cheque (through the mail) or with select credit cards. You confirm that you are an authorized user of the credit card or bank account and that it is valid and has not expired. If you are using a method of payment that is subject to processing delays, you must ensure that 4Cloud receives payments on the first day of each month, when payment is due. You must promptly advise 4Cloud if your credit card or bank account information changes by contacting us at the coordinates set out in Section 42 of these Service Terms.

9.      What charges apply to late payments, rejected payments and other account processing actions?

If 4Cloud does not receive payment when due, you will be subject to a late payment charge of 1.5% per month. This late payment charge accrues on a daily basis and is calculated and compounded monthly on the outstanding amount (19.56% per year)  (“Late Payment Charges”) from the date of the first invoice on which it appears until the date we receive that amount in full. You agree that we can charge any unpaid and outstanding amount, including any Late Payment Charges and taxes, on your account to your credit card, bank account or any other payment method pre-authorized by you for payment of Fees.

Not applicable to Residents of Québec: Administrative charges in the amount of $35.00 may be levied for administration or account processing activities in connection with your account, including as a result of:

●         a change of any Identifier.

●         collection efforts due to non-payment or having a balance over your credit limit, including unbilled usage and pending charges, fees and adjustments;

●         returned or rejected payments due to non-sufficient funds (“NSF”) or any other reason; and/or

●         the restoral of Service

Applicable only to Residents of Québec: Administrative charges in the amount of $35.00 may be levied for administration or account processing activities in connection with your account, including as a result of a change of any Identifier. We will not levy administrative charges due to NSF.

10.  Do I need to pay any deposits for use of Services?

Yes. In some cases, 4Cloud may request payment of a deposit for Services.

Not applicable to Residents of Québec or Residents of Newfoundland:

4Cloud may request a deposit at any time and on such terms that we shall determine in our sole discretion. All such deposits shall not earn any interest. If your Service is cancelled, deposits held by 4Cloud shall be setoff against the outstanding final balance on your account.

Applicable only to Residents of Québec and Residents of Newfoundland:

4Cloud may request a deposit at any time and on such terms that we shall determine in our sole discretion. Deposits held by 4Cloud shall bear interest at the rate determined by applicable legislation or regulation, as determined from time to time, from the date we collect a security deposit (but no earlier than required under applicable legislation or regulation), until the date we return it to you. If we use all or part of the deposit to collect amounts not paid when due, we will provide you written notice. If your Service is cancelled, deposits held by 4Cloud and accrued interest on those deposits shall be setoff against the outstanding final balance on your account within 30 days of cancellation of your Services.

11.  What if I dispute Fees on my invoice?

If you have any questions, disputes or discrepancies to report regarding Fees, you must do so within thirty (30) days of the invoice date. Failure to notify us within this time period will constitute your acceptance of such Fees. We will investigate disputes and if, in our sole discretion, we determine that a portion of the Fees was incorrectly charged, then we will reverse the disputed portion of the Fees. You must pay the undisputed portion of the Fees in accordance with Section 8.

 

 

YOUR RESPONSIBILITIES

12.  Does 4Cloud have any policies that apply to the Services?

Yes. From time to time, 4Cloud may establish policies, rules and limits (collectively “Policies”) concerning the use of the Services and any products, content, applications or services used in conjunction with the Services. The Policies are incorporated into these Service Terms by reference, and are available on the Website.

13.  Are there any limits to my use of the Services?

Yes. You agree to comply with and use the Services for your own business, personal, family or household use, in accordance with the Agreement and all applicable laws. You also agree not to: (i) use, sell, rent, lease, encumber, host, copy, license, publish, display, distribute, or otherwise transfer or market any Services except as expressly permitted by the Agreement; and (ii) use the Services on a time share or service bureau basis. You must also follow any Policies setting out acceptable use guidelines for the Services.

14.  How can I be sure that 4Cloud has accurate contact information for my account?

You are responsible for keeping the contact and payment information you provide to 4Cloud (including name, mailing address, email address, address where the Services will be provided to you), phone number, and any authorized users) up to date. If this Agreement is cancelled, you will provide 4Cloud with forwarding information for final invoices or correspondence if your new contact information is different from the information we have on file.

15.  What am I responsible for if my 4Cloud account is compromised?

You must notify 4Cloud immediately using the contact coordinates provided in Section 42 should you suspect unauthorized use of the Services. You are responsible for payment of all Fees and taxes charged to your account, whether authorized by you or not, which is why it is so important to protect your account and keep account information (including authorized users) up-to-date.

4CLOUD SERVICES

16.  Are there any warranties on the Services?

Not applicable to residents of Québec:

To the maximum extent permitted by law, 4Cloud Parties do not guarantee or warrant the performance, availability, coverage, uninterrupted use, security, pricing or operation of the Services or any products, content, applications, services, facilities, connections or networks used or provided by us or third parties.

You bear the entire risk as to the use, access, transmission, availability, reliability, timeliness, quality, security and performance of the Services.

4Cloud Parties do not make any express or implied representations, warranties or conditions, including warranties of title or non-infringement, or implied warranties of merchantable quality or fitness for a particular purpose, with regard to the Services or any products, content, applications, services, facilities, connections or networks used or provided by us or third parties.

All representations, warranties and conditions of any kind, express or implied, are excluded to the maximum extent permitted by applicable law. To the maximum extent permitted by applicable law, no advice or information, whether oral or written, obtained by you from the 4Cloud Parties creates any term, condition, representation or warranty not expressly stated in the Agreement.

 

Applicable only to Residents of Québec:

To the maximum extent permitted by law, 4Cloud Parties do not guarantee or warrant the performance, availability, coverage, uninterrupted use, security, pricing or operation of the Services or any products, content, applications, services, facilities, connections or networks used or provided by us or third parties.

You bear the entire risk as to the use, access, transmission, availability, reliability, timeliness, quality, security and performance of the Services.

4Cloud Parties do not make any express or implied representations, warranties or conditions, including warranties of title or non-infringement, or implied warranties of merchantable quality or fitness for a particular purpose, with regard to the Services or any products, content, applications, services, facilities, connections or networks used or provided by us or third parties.

 

17.  Does this mean that there may be circumstances when the Services are not available?

Unfortunately, yes. Performance and availability of the Service depend on several factors, including access to third-party providers and suppliers that 4Cloud does not fully control.

 

18.  Can the Services be used for purposes that involve health information?

No. You further agree not to provide, transmit or otherwise disclose or use health information in any manner that would require 4Cloud to be compliant with HIPAA or HITECH or similar provincial or federal laws or regulations relating to the collection, use or disclosure of health information in Canada. You acknowledge and agree that 4Cloud is not acting on your behalf as a “business associate”, as that term is used and defined in HIPAA.

 

 

4CLOUD SOFTWARE

19.  Are there any limitations to the use of Software?

Yes. Software, including all related documentation accompanying the Software (“Software Documents”), is for your own business, personal, family or household use and may not be distributed, transferred or sold. All Software and Software Documents remain our property or that of our licensors or content providers, as applicable. You agree to take reasonable steps to protect Software and Software Documents from theft, loss or damage. You must review and agree to any applicable end user licence agreement of 4Cloud, our licensors or content providers. Unless otherwise provided in the applicable end user licence agreement, all end user licence agreements will terminate upon termination of the applicable Service Agreement.

20.  Are Software updates required?

Yes. From time to time, you may be required to update your Software, including by way of automatic downloads. By entering into the Agreement, you consent to receiving these downloads. If you do not agree to receiving updates to Software, you may not use the Service and your only option is to terminate the Service Agreement for the Service(s) that are subject to the software update.

PROPRIETARY RIGHTS

21.  What are the terms and conditions relating to intellectual property rights associated with the Services?

You acknowledge and agree that except where expressly stated otherwise, all Software, content, documentation, processes, designs, technologies, materials and all other things comprising the Services are owned by 4Cloud, its licensors or its suppliers and are protected by applicable copyrights, trade-marks, patents, trade secrets and/or other proprietary rights and laws.

22.  Do I have any rights to the content that I provide in connection with the Services?

Yes. 4Cloud does not claim ownership of information, materials, software or other content that you post, upload, input, provide, submit or otherwise transmit to 4Cloud or any third party, using the Services (collectively, the “Customer Provided Content”). However, you agree that by posting, uploading, inputting, providing, submitting or otherwise transmitting the Customer Provided Content to 4Cloud or any third party, using the Services, you have thereby granted 4Cloud a royalty-free, non-exclusive license to use, copy, distribute, transmit, display, edit, delete, publish and translate such content to the extent reasonably required by 4Cloud to provide the Services to its customers or to ensure adherence to or enforce the terms of this Agreement.

23.  Who owns Identifiers used in connection with the Services?

Except where otherwise specified by 4Cloud, Identifiers remain the property of 4Cloud at all times.

PRIVACY AND CONFIDENTIALITY OF YOUR INFORMATION

24.  How does 4Cloud protect my personal information?

4Cloud protects your personal information in a manner consistent with its Policies and applicable laws.
 

25.  Does 4Cloud perform credit checks or report credit history?

Yes, by entering into the Agreement you agree that 4Cloud Parties may perform credit checks on you and obtain information about your credit history from a credit reporting agency or credit grantor to activate Services you ordered, or to assist in collection efforts. 4Cloud Parties may also disclose your 4Cloud credit history to credit reporting agencies, credit grantors and/or collections agencies.

 

26.  Will 4Cloud send me commercial electronic messages?

Yes. By entering into the Agreement, you are providing your consent to receive commercial electronic messages from 4Cloud. However, at any time, you may unsubscribe from commercial electronic messages by using the unsubscribe mechanism contained in such messages.

 

 

LIABILITY AND INDEMNIFICATION

27.  How do 4Cloud Parties limit their liability?

You agree that, unless otherwise specifically set out in a Service Agreement, to the maximum extent permitted by applicable law, 4Cloud Parties’ liability for negligence, breach of contract, tort, or other causes of action, including fundamental breach, is limited to a maximum amount equal to the greater of twenty ($20) or an amount equal to the Fees payable during any service outage.

Other than the foregoing payment and to the maximum extent permitted by applicable law, 4Cloud Parties are not responsible to anyone for:

Not applicable to Residents of Québec:

i.               any direct, indirect, special, consequential, incidental, economic or punitive damages (including loss of profit or revenue, financial loss, loss of business opportunities, loss, destruction or alteration of data, files or software, breach of privacy or security property damage, personal injury, death or any other foreseeable or unforeseeable loss, however caused) resulting or relating directly or indirectly to Services or any advertisements, promotions or statements relating to any of the foregoing, even if we were negligent or were advised of the possibility of such damages;

ii.             The performance, availability, reliability, timeliness, quality, coverage, uninterrupted use, security, pricing or operation of Services;

iii.           Any error, inclusion or omission with respect Services;

iv.           The denial, restriction, blocking, disruption or inaccessibility of any Services, public alerts or special needs services or Identifiers;

v.             Any lost, stolen, damaged or expired Identifiers, passwords, codes, benefits, discounts, rebates or credits; or

vi.           Any claims or damages resulting directly or indirectly from any claim that the use, intended use or combination of the service or any material transmitted through the Services infringes the intellectual property, industrial, contractual, privacy or other rights of a third party.

Applicable only to Residents of Québec:

i.               Any damages (including loss of profit or revenue; financial loss; loss of business opportunities; loss, destruction or alteration of data, files or software; breach of privacy or security; or property damage) relating to Services;

ii.             The performance, availability, reliability, timeliness, quality, coverage, uninterrupted use, security, pricing or operation of Services;

iii.           Any error, inclusion or omission with respect Services;

iv.           The denial, restriction, blocking, disruption or inaccessibility of any Services, public alerts or special needs services or Identifiers;

v.             Any lost, stolen, damaged or expired Identifiers, passwords, codes, benefits, discounts, rebates or credits; or

vi.           Any claims or damages resulting directly or indirectly from any claim that the use, intended use or combination of the service or any material transmitted through the Services infringes the intellectual property, industrial, contractual, privacy or other rights of a third party.

Not applicable to Residents of Québec:

These limits are in addition to any other limits on 4Cloud Parties’ liability set out elsewhere in the Agreement and apply to any act or omission of the 4Cloud Parties, whether or not the act or omission would otherwise be a cause of action in contract, tort or pursuant to any statute or other doctrine of law.

 

 

 

28.  Must I indemnify 4Cloud Parties with regards to the Agreement?

Yes. You agree to indemnify and hold harmless 4Cloud Parties from all demands, claims, proceedings, losses, damages, costs and expenses (including, without limitation, reasonable legal fees and other litigation expenses) incurred by or made against 4Cloud Parties, which result from or relate to the Services, your use of the Services or other matters related to this Agreement.

 

 

CANCELLING AND SUSPENDING 4CLOUD SERVICES

29.  When and how can I cancel Services?

You may cancel any or all of your Services and any corresponding Service Agreement at any time by contacting 4Cloud at the points of contact specified in these Service Terms.

 

30.  When can 4Cloud cancel my Services, with notice?

Not applicable to Residents of Newfoundland or Residents of Québec:

4Cloud may cancel any or all of your month-to-month Services and corresponding Service Agreements upon no less than thirty (30) days’ notice to you.

Applicable only to Residents of Québec and Residents of Newfoundland:

4Cloud may cancel any or all of your month-to-month Services and corresponding Service Agreements upon no less than sixty (60) days’ notice to you at your billing address.

31.  When can 4Cloud cancel or suspend my Services, without notice?

Applicable to all 4Cloud customers:

In addition to our rights to terminate your Services pursuant to Section 29, 4Cloud may also restrict, block, suspend, disconnect or terminate for cause any or all of your Services without notice, if:

●              You are in breach of a Service Agreement, including non-payment of your charges or non-compliance with any Policies;

●              You exceed reasonable usage limits, as determined by us;

●              You have given us false, misleading or outdated information;

●              We reasonably suspect or determine that any of your Services and / or Identifiers are the subject of fraudulent, unlawful or improper usage or usage that adversely affects our operations or the use of our services, facilities or networks by others;

●              You harass, threaten or abuse us or our employees or agents;

●              You fraudulently or improperly seek to avoid payment to us;

●              We need to install, maintain, inspect, test, repair, remove, replace, investigate, protect, modify, upgrade or improve the operation of the Services or our facilities or networks; or

●              We reasonably believe that there is an emergency or extreme circumstance that would warrant such action.

32.  What amounts must I pay if my Service(s) are cancelled?

If you or 4Cloud cancels one or more of your Services you must pay all outstanding fees (including any installation fees for Services that have been installed but not activated), taxes, and Late Payment Charges on your final invoice for those cancelled Services. However, 4Cloud will provide a refund for the cancelled portion of service Fees that you have paid in advance for Services. This refund will be pro-rated based on the number of days left in the last billing cycle after cancellation.

To the maximum extent permitted by law, one-time activation and installation fees are non-refundable. One-time activation and installation fees are intended to recover costs and constitute a genuine pre-estimate of liquidated damages in the event that a Service is cancelled.

Notwithstanding the foregoing, 4Cloud does not issue any credits or refunds for cancellations for cause by 4Cloud, pursuant to Section 31. Services may also be subject to different cancellation and refund terms, as set out in the applicable Service Agreement(s).

 

33.  How can I restore my Service(s) if they have been restricted, blocked, suspended, disconnected or terminated by 4Cloud?

4Cloud may, at its sole discretion, restore your Services, with or without conditions that may include:

a)      Full repayment of outstanding amounts owing to 4Cloud;

b)      Compensation for costs incurred by 4Cloud in connection with your breach of the Service Terms, including costs incurred to enforce your compliance; or

c)      Changes to your Fees on an ongoing basis.

 

34.  What happens to credit balances on my final bill?

Generally, 4Cloud customers do not have credit balances on final bills. However, if circumstances cause you to have a credit balance on your final bill, we will refund this balance within sixty (60) days of receiving a request for a credit balance refund.

 

 

ADDITIONAL TERMS

35.  Do I have to meet certain criteria to enter into this Agreement?

Yes. By entering into this Agreement, you represent and warrant that you have reached the age of majority in the province or territory of Canada applicable to the Agreement and that you possess the legal right and ability to enter into this Agreement and use the Services in accordance with this Agreement.

 

36.  What is the process that applies to unresolved disputes with 4Cloud?

The process for billing disputes is described in Section 11 of the Service Terms. More generally, if you have a dispute about Services, Software, about this Agreement, or about what we say outside this Agreement, then we want to resolve the dispute quickly and fairly, and will work with you in good faith to do so. If you have tried to work with us but remain unsatisfied, then you have a right to escalate the dispute. Any unresolved dispute may be referred to voluntary single arbitrator arbitration. In such event, the fees for the arbitrator shall be shared equally by the parties.

 

37.  Which Court has jurisdiction over claims related to the Agreement?

By entering into the Agreement, except where an arbitrator has jurisdiction, you consent to the exclusive jurisdiction of courts located in the province in which your billing address is located. However, if your billing address is outside of Canada, you submit to the jurisdiction of the province of Alberta.

 

38.  What laws apply to this Agreement?

The Agreement is governed exclusively by and construed in accordance with the laws of the province or territory in which your billing address is located, but if your billing address is outside of Canada, the Agreement is governed exclusively by the laws of the province Alberta and the applicable federal laws of Canada.

 

39.  What if parts of this Agreement become unenforceable?

If any part of this Agreement becomes outdated, prohibited or unenforceable, the remaining terms will continue to apply to you and 4Cloud. Even if 4Cloud decides not to enforce any part of this Agreement for any period of time, the term still remains valid and 4Cloud can enforce it in the future.

 

40.  Can this Agreement be transferred?

4Cloud may transfer or assign all or part of this Contract (including any rights in accounts receivable) at any time without prior notice or your consent. You may not transfer or assign this Agreement, your account(s) or the Service without 4Cloud’s prior written consent which may be withheld.

 

41.  Do any terms or obligations of this Agreement apply after the cancellation or expiry
of the Agreement?

Yes. The cancellation, transfer or expiry of a Service Agreement or the Agreement shall not release you or us from any obligation which has accrued prior to that event, including but not limited to the obligation to pay any outstanding amounts owed for Services.

 

 

HOW TO CONTACT 4CLOUD

42.  How do I contact 4Cloud?

To contact 4Cloud for any reason, including providing notices to 4Cloud pursuant to this Agreement, you may reach us:

·           By Phone: 403-910-4656

·           By email: sales@4cloud.ca

·           By Mail: PO Box 1480 Hanna, Alberta, Canada, T0J 1P0

 

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