Please read these terms of service (these “Terms”) carefully as they form a contract between you and DigiVie (We or Our) that governs your access and use of: (i) the hosted storage solution provided by DigiVie for online storage, sharing and processing of files, data, text, audio, video, images or other content (collectively, “Content”); (ii) software provided or made available by DigiVie (the “Software”); and, (iii) any written or electronic documentation provided or made available by DigiVie (the “Documentation”) (collectively the “Service(s)”).
By using any of the Services you agree to be bound by these Terms. If you are using the Services on behalf of an organization, you are agreeing to these Terms for that organization and promising to DigiVie that you have the authority to bind that organization to these Terms. In that case, “you” and “your” will refer to that organization. You may use the Services only in compliance with these Terms and only if you have the power to form a contract with DigiVie and are not barred under any applicable laws from doing so. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT USE THE SERVICE.
1. CHANGES TO THESE TERMS
DigiVie reserves the right to change these Terms at any time in DigiVie’s sole discretion. Any changes will be effective upon posting the revised version of these Terms on the Service. Therefore, we encourage you to check the date of these Terms whenever you visit www.digivie.com/p/terms.htm (the “Site”) to see if these Terms have been updated. Your continued access or use of any portion of the Service constitutes your acceptance of such changes. If you don’t agree to any of the changes, we’re not obligated to keep providing the Service, and you must cancel and stop using the Service. The Services may continue to change over time as we refine and add more features. We may stop, suspend, or modify the Services at any time without prior notice to you.
2. YOUR ACCOUNT
To obtain access to certain Services, you may be required to obtain an account with DigiVie, by completing a registration form and designating a user ID and password. When registering with DigiVie you must: (a) provide true, accurate and current information about yourself as requested by the Service’s registration form. If your contact information or other information related to your account, changes, you must notify DigiVie promptly and keep your information current.
Only you may use your Service account. You must keep your account and passwords confidential and not authorize any third party to access or use the Service on your behalf, unless DigiVie provides an approved mechanism for such use. You must contact us right away if you suspect misuse of your account or any security breach in the Service. You are responsible for all activities that take place with your account, whether or not you authorized those activities. DigiVie will not be liable for any loss or damage arising from any unauthorized use of your accounts.
If a third party such as an employer gave you your account, that party has rights to your account and may: manage your account, reset your password, or suspend or cancel your account.
3. SUSPENSION AND TERMINATION
You may stop using the Services at any time. DigiVie reserve the right, to temporarily suspend or terminate your access to the Service at any time in DigiVie’s sole discretion, with or without cause, and with or without notice, without incurring liability of any kind. For example, DigiVie may suspend or terminate your access to or use of the Service for: (a) the actual or suspected violation of these Terms; (b) the use of the Services in a manner that may cause DigiVie to have legal liability or disrupt others’ use of the Services; (c) the suspicion or detection of any malicious code, virus or other harmful code by you or in your account; (d) scheduled downtime and recurring downtime; (e) use of excessive storage capacity or bandwidth; or (f) unplanned technical problems and outages. If we suspend or terminate your use, we will try to let you know in advance and help you retrieve data, though there may be some cases (for example, repeatedly or flagrantly violating these Terms, a court order, or danger to other users) where we may suspend immediately. You acknowledge that if your access to the Service is suspended or terminated, you may no longer have access to the Content that is stored with the Service. You acknowledge that your data will be deleted 15 days after termination of your access to the Service. Once your data has been deleted, neither DigiVie nor its employees will be able to access or retrieve it.
4. CONSENT TO ELECTRONIC COMMUNICATIONS AND SOLICITATION.
Except for material that DigiVie licenses to you, DigiVie doesn’t claim ownership of any Content that is transmitted, stored, or processed in your account(s). DigiVie doesn’t control, verify, or endorse the Content that you and others make available on the Service.
DigiVie provides functions that allow you to control who may access your Content. If you enable the features that allow you to share the Content with others, anyone you’ve shared content with (including the general public, in certain circumstances) may have access to your Content.
You hereby grant DigiVie and its contractors the right, (i) to use, copy, transmit, distribute, store and cache your Content; and (ii) to copy, transmit, publish, and distribute to others the Content as you designate, whether through the sharing or public linking features of the Service, in each case solely to provide the Service to you, or as otherwise permitted by these Terms.
You represent and warrant that: (a) you have all the rights in the Content necessary for you to use the Service and to grant the rights in this Section; and, (b) the storage, use or transmission of the Content doesn’t violate any law or these Terms. You will: (a) be solely responsible for the nature, quality and accuracy of the Content; (b) ensure that the Content (including the storage or transmission thereof) complies with these Terms and any and all applicable laws, and regulations; (c) promptly handle and resolve any notices and claims relating to the Content, including any notices sent to you by any person claiming that any Content violates any person’s rights, such as take-down notices pursuant to the Digital Millennium Copyright Act and any other notices; and (d) maintain appropriate security, protection and backup copies of the Content, which may include, your use of additional encryption technology to protect the Content from unauthorized access. DigiVie will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any Content.
You must immediately notify DigiVie in writing of any unauthorized use of any (a) Content (b) any Account or (c) the Service that comes to your attention. In the event of any such unauthorized use by any third party that obtained access through you, you will take all steps necessary to terminate such unauthorized use. You will provide DigiVie with such cooperation and assistance related to any such unauthorized use as DigiVie may reasonably request.
6. ACCEPTABLE USE
You will not, and will not attempt to, misuse the Services, and will use the Services only in a manner consistent with the DigiVie Acceptable Use Policy (www.digivie.com/p/aup.htm).
7. UPDATES TO THE SERVICE
DigiVie reserves the right, in its sole discretion, to make necessary unscheduled deployments of changes, updates or enhancements to the Service at any time. DigiVie may add or remove functionalities or features, and DigiVie may suspend or stop a Service altogether.
If you receive Software from DigiVie, its use is governed in one of two ways: If you’re presented with license terms that you must accept in order to use the Software, those terms apply; if no license is presented to you, these Terms apply. DigiVie reserves all other rights to the Software.
Any Software is licensed, not sold. Unless DigiVie notify you otherwise, the Software license ends when your Service ends. You must then promptly uninstall the Software. You must not work around any technical limitations in the Software.
9. PROPRIETARY RIGHTS
“DigiVie” and the DigiVie logo are trademarks of DigiVie, Inc. and are protected by law. All other names of companies and products mentioned may be trademarks of their respective owners. You may not copy, display or use any of these marks without prior written permission of the mark owner.
All intellectual property rights in the Software, Documentation and Services are owned by DIGIVIE or its licensors and are protected by law, including applicable copyright, trade secret, patent, and trademark laws. You will not remove any product identification, copyright notice, or proprietary restriction from the Software, Documentation and Services.
As between DigiVie and you, DigiVie or its licensors own and reserve all right, title and interest in and to the Service and all hardware, software and other items used to provide the Service, other than the rights explicitly granted to you to use the Service in accordance with this Terms. No title to or ownership of any proprietary rights related to the Service is transferred to you pursuant to these Terms. All rights not explicitly granted to you are reserved by DigiVie. In the event that you provide comments, suggestions and recommendations to DigiVie with respect to the Service (including, without limitation, with respect to modifications, enhancements, improvements and other changes to the Service) (collectively, “Feedback”), You hereby grant to DigiVie a world-wide, royalty free, irrevocable, perpetual license to use and otherwise incorporate any Feedback in connection with the Service.
We retain the right to block or otherwise prevent delivery of any type of file, email or other communication to or from the Service as part of our efforts to protect the Service, protect our customers, or stop you from breaching these Terms. The technology or other means we use may hinder or break your use of the Service.
11. DISCLAMER OF WARRANTY
DIGIVIE PROVIDES THE SERVICE “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DIGIVIE MAKES NO (AND SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSIONS. IN SUCH AN EVENT SUCH EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL DIGIVIE, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR (A): ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF DIGIVIE HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF DIGIVIE AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS, RELATING TO THE SERVICES WILL BE LIMITED TO THE GREATER OF AN AMOUNT EQUAL THREE MONTHS OF YOUR SERVICE FEE FOR THE SERVICE OR FIVE DOLLARS ($5.00). THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT THIS LIMITATION WILL NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY LAW.
You agree to indemnify, defend and hold DigiVie and its officers, directors, employees, agents, licensors, and suppliers harmless from and against all claims, liabilities, losses, expenses, damages, and costs, including but not limited to reasonable attorneys’ fees, resulting from (i) an violation or breach of these Terms by you, (ii) any activity related to access or use of your account (including but not limited to negligent or wrongful conduct) by you or any other person accessing or using your account and/or Content, or (iii) DigiVie’s authorized use of data, files or other Content provided by you or obtained by DigiVie as authorized by you under these Terms.
DigiVie may send you, in electronic form, information about the Service, additional information, and information the law requires DigiVie to provide. DigiVie may provide required information to you by email at the address you specified when you signed up for the Service. Notices emailed to you will be deemed given and received when the email is sent. If you don’t consent to receive notices electronically, you must stop using the Service. You may provide legal notice to DigiVie via email to firstname.lastname@example.org, with a duplicate copy sent via registered mail, return receipt requested, to the following address: DigiVie Communications, B1-1002 Beaverbrook Road, Ottawa, Ontario, Canada, K2K 1L1. Any such notice, in either case, must specifically reference that it is a notice given under these Terms.
15. PAYMENTS AND REFUNDS
The fees applicable for Service (“Fees”) are available on request. The price stated for the Service excludes all taxes and charges, unless stated otherwise. You’re responsible for any taxes and for all other charges (for example, data charges and currency exchange settlements). You will pay the Fees in the currency DigiVie quoted for your account. DigiVie reserves the right to change the quoted currency at any time.
In addition to any Fees, you may still incur charges incidental to using the Service, for example, charges for Internet access, data roaming, and other data transmission charges.
You must be authorized to use the payment method that you enter when you create a billing account. You authorize DigiVie to charge you for the Service using your payment method and for any paid feature of the Service that you choose to sign up for or use while these Terms are in force. We may bill: (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for subscription Services. Once we have informed you that the Service will be provided indefinitely or automatically renewed, we may automatically renew your Service and charge you for any renewal term.
You must keep all information in your billing account current. You can access and modify your billing account information from your account web portal at www.digivie.com/portal. You may change your payment method at any time. If you tell us to stop using your payment method and we no longer receive payment from you for the paid Service, we may cancel that Service. Your notice to us will not affect charges we submit to your billing account before we reasonably could act on your request.
DigiVie reserves the right to change the price of the Service. If there’s a specific length and price for your Service offer, that price will remain in force for that time. After the offer period ends, your use of the Service will be charged at the new price. If you don’t agree to these changes, you must cancel and stop using the Service via notification to DigiVie through email at email@example.com no later than fourteen (14) days prior to the conclusion of your current payment term, whether monthly, yearly, or otherwise. If you cancel, your Service ends at the end of your current Service period or, if we bill your account on a period basis, at the end of the period in which you canceled. If you fail to cancel as required, we will automatically renew the Service for the same term and will charge you payment information on file with us commencing on the first day of the renewal term.
If payment is not received by DigiVie on the due date, user’s account will be frozen, inaccessible, and all shared links will be turned off until all outstanding payments have been processed by DigiVie. Users retain the responsibility for settling all outstanding balances in a timely manner and maintaining updated billing information. If not complied with, at the end of 90 days, user’s account will be deactivated and all files will no longer be retrievable.
Unless we notify you otherwise, if you’re participating in any trial period offer, you must cancel the Service by the end of the trial period to avoid incurring new charges. If you do not cancel your Service and we have told you the Service will convert to a paid subscription at the end of the trial period, you authorize us to charge your payment method for the Service.
Except as specifically set forth in this section, all Services are prepaid for the period selected (monthly, yearly or otherwise) and are non-refundable. This includes accounts that are renewed.
If you are currently on a free 14-day trial, you may cancel your account, free of charge, at any time until fourteen (14) days after your account was created. (The day of creation constitutes the first day of the 14-day trial.)
Except as prohibited by law, we may assess a late charge if you do not pay on time. You must pay these late charges when we bill you for them. The late charge will be the lesser of 1 percent of the unpaid amount each month or the maximum rate permitted by law. We may use a third party to collect past due amounts. You must pay for all reasonable costs we incur to collect any past due amounts, including reasonable attorneys’ fees and other legal fees and costs. We may suspend or cancel your Service if you fail to pay in full on time.
THESE TERMS AND THE USE OF THE SERVICES AND SOFTWARE WILL BE GOVERNED BY ONTARIO LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES. ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES OR SOFTWARE MUST BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR PROVINCIAL COURTS OF OTTAWA, ONTARI, AND BOTH PARTIES CONSENT TO VENUE AND PERSONAL JURISDICTION THERE. These Terms constitute the entire and exclusive agreement between you and DigiVie with respect to the Services, and supersede and replace any other agreements, terms and conditions applicable to the Services. These Terms create no third party beneficiary rights. DigiVie’s failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable the remaining provisions of the Agreement will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights in these Terms, and any such attempt is void, but DigiVie may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services. DigiVie and you are not legal partners or agents; instead, our relationship is that of independent contractors.