Terms and conditions

The term "Ancillary Software" means any software agent or tool owned or licensed by HDCE that HDCE makes available to you for download as part of the Cloud Services for the purpose of facilitating your access to, operation of and/or use of the Services Environment. The term "Ancillary Software" does not include Separately Licensed Third Party Technology.

The term "Auto Renew" or the term "Auto Renewal" means the process by which the Services Period of the Cloud Services under an order is automatically extended for an additional Services period unless such Services are terminated in accordance with the terms of this agreement. The Service Specifications incorporated in your order define which Cloud Services are eligible for Auto Renewal and the conditions applicable to such renewal.

The term "Cloud Services" means, collectively, the HDCE cloud services (for example, backup software, HDCE Software as a Service (SaaS) offerings and related HDCE Software) listed in your order and defined in the Service Specifications. The term "Cloud Services" does not include Professional Services.

The term "Data Center Region" means the geographic region in which the Services Environment is physically located.

The term "HDCE Software" means the software products owned or licensed by HDCE to which HDCE grants you access as part of the Cloud Services, including the Software Documentation, and all updates provided as part of the Cloud Services. The term "HDCE Software" does not include Separately Licensed Third Party Technology.

The term "Professional Services" means, collectively, the consulting and other professional services that you have ordered. Professional Services include all deliverables described in your service and delivered to you by HDCE under the order. The term "Professional Services" does not include Cloud Services.

The term "Software Documentation" refers to the user manuals referenced in the Service Specifications for the Cloud Services, as well as any help windows and readme files for the HDCE Software that are accessible from within the Services. The Software Documentation describes the technical and functional aspects of the HDCE Software.

The term "Separate Terms" means the separate license terms entered into between you and the third party licensor that are set out in the Software Documentation, the Service Specifications, readme files or notices, and that apply to Separately Licensed Third Party Technology.

The term "Separately Licensed Third Party Technology" means third party technology that is licensed under separate terms and not under the terms of this Agreement.

The term "Services" means, collectively, both the Cloud Services and the Professional Services that you have ordered.

The term "Services Environment" refers to the combination of hardware and software components owned, licensed or managed by HDCE to which HDCE grants you and your Users access as part of the Cloud Services that you have ordered. Where applicable and subject to the provisions of this Agreement and your order, HDCE Software, Third Party Content, Your Content and Your Applications may be hosted in the Services Environment.

The term "Termination" means the cessation of the Services and of the contractual obligations between the parties, in accordance with the grounds and procedure set out in this Agreement.

The term "Services Period" refers to the period of time for which you have ordered Cloud Services as specified in your order.

The term "Third Party Content" means all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content and material, in any format, that are obtained or derived from third party sources outside of HDCE and made available to you through, within, or in conjunction with your use of the Cloud Services. Examples of Third Party Content include data feeds from social network services, RSS feeds from blog posts, and data libraries and dictionaries. Third Party Content does not include Separately Licensed Third Party Technology.

The term "Users" means the employees, contractors and end users, as applicable, authorized by you or on your behalf to use the Cloud Services in accordance with this Agreement and your order. For Cloud Services that are specifically designed to allow your clients, suppliers and other third parties to access the Cloud Services to interact with you, such third parties will be considered "Users" subject to the terms of this Agreement and your order.

The terms "You" and "Your" mean the individual or legal entity that has subscribed to a service.

The term "Your Applications" means all software, including the source code of such software, that you or your Users provide and upload to, or create using, any HDCE "Platform-as-a-Service" "Infrastructure-as-a-Service" Cloud Services. The Services under this Agreement, including HDCE software and services environments, HDCE intellectual property, and any product derived from them, do not fall within the definition of the term "Your Applications".

The term "Your Content" means all text, files, images, graphics, illustrations, information, data (including personal data as that term is defined in the Data Processing Agreement for HDCE Cloud Services described in section 11.2 below), audio, video, photographs and other content and material (other than Your Applications), in any format, provided by you or your Users that reside in, or run on or through, the Services Environment.

The contract takes effect on the date of subscription to a Cloud Service. The term of the contract varies according to the service you have chosen, from the date the account is opened, and is automatically renewable from period to period, provided you have complied with all the requirements of this contract.

For the entire duration of the Services Period and subject to your payment obligations, and except as otherwise set out in this Agreement or in your order, you have the non-exclusive, non-assignable, worldwide right to access and use the Services that you have ordered, including anything developed and delivered by HDCE specifically for you as part of the Services, solely for your internal business operations and subject to the provisions of this Agreement and your order, including the Service Specifications. You may allow your Users to use the Services for this purpose and you are responsible for your Users' compliance with the terms of this Agreement and the order.

Under this Agreement, you do not acquire any right or license to use the Services, including the HDCE Software and the Services Environment, beyond the scope and/or duration of the Services specified in your order. Upon the end of the ordered Services, your right to access and use the Services will terminate.

To enable HDCE to provide the Services to you and to your Users, you grant HDCE the right to use, process and transmit, in accordance with this Agreement and your order, Your Content and Your Applications for the duration of the Services Period and any additional post-termination period during which HDCE allows you to access and retrieve an export file of Your Content and Your Applications. If Your Applications include third party software, you acknowledge that HDCE may allow the providers of such third party software to access the Services Environment, including Your Content and Your Applications, as required for the interoperability of such third party software with the Services. HDCE will not be responsible for any use, disclosure, modification or deletion of Your Content or Your Applications resulting from access by the providers of such third party software or from the interoperability of such third party software with the Services.

Except as otherwise expressly stated in your order for certain Cloud Services offerings (for example, a hosted private cloud on your premises), you acknowledge that HDCE has no delivery obligation for HDCE Software and will not ship copies of such software to you as part of the Services.

The Services may contain or require the use of Separately Licensed Third Party Technology. You are responsible for complying with the Separate Terms specified by HDCE that govern your use of Separately Licensed Third Party Technology. HDCE may provide certain notices to you in the Service Specifications, the Software Documentation, readme files or notices relating to such Separately Licensed Third Party Technology. The third party owner, author or provider of such Separately Licensed Third Party Technology retains ownership and all intellectual property rights in and to such Separately Licensed Third Party Technology.

As part of certain Cloud Services offerings, HDCE may provide you with access to Third Party Content within the Services Environment. The type and scope of any Third Party Content are defined in the Service Specifications applicable to your order. The third party owner, author or provider of Third Party Content retains all ownership and intellectual property rights in and to that content, and your rights to use such Third Party Content are subject to and governed by the terms applicable to such content as specified by the third party owner, author or provider.

You retain all ownership and intellectual property rights in and to Your Content and Your Applications. HDCE or its licensors retain all ownership and intellectual property rights in and to the Services, including HDCE Software and Ancillary Software, and derivative works thereof, and in and to anything developed or delivered by or on behalf of HDCE under this agreement.

You may not, and may not cause or permit others to:

The Services are subject to and governed by the Service Specifications applicable to your order. Service Specifications may define provisioning and management processes applicable to the Services (such as capacity planning), types and quantities of system resources (such as storage allotments), functional and technical aspects of the HDCE Software, as well as any Services deliverables. You acknowledge that use of the Services in a manner not consistent with the Service Specifications may adversely affect Services performance and/or may result in additional fees. If the Services permit you to exceed the ordered quantity (for example, soft limits on counts for Users, sessions, storage, etc.), then you are responsible for promptly purchasing additional quantities to account for your excess usage. For any month in which you have not promptly purchased such additional quantity, HDCE may require you to pay, in addition to the fees for the additional quantity, an excess usage fee for the Services equivalent to 10% of the fees for the additional quantity in the month in which such excess usage occurred.

HDCE may make changes or updates to the Services (such as infrastructure, security, technical configurations, application features, etc.) during the Services Period, including to reflect changes in technology, industry practices, patterns of system use, and availability of Third Party Content. The Service Specifications are subject to change at HDCE's discretion; however, HDCE changes to the Service Specifications will not result in a material reduction in the level of performance or availability of the applicable Services provided to you for the duration of the Services Period.

Your order will specify the Data Center Region in which Your Services Environment will reside. As described in the Service Specifications and to the extent applicable to the Cloud Services you have ordered, HDCE will provide production, test and backup environments in the Data Center Region specified in your order. HDCE and its affiliates may perform certain aspects of the Cloud Services, such as service administration and support, as well as other Services (including Professional Services and disaster recovery), from locations and/or through the use of subcontractors worldwide.

HDCE provides the Client with technical support by email and telephone. This support covers Cloud Services, Services Environment.

HDCE provides the Client with technical assistance:

Technical support is intended solely to provide occasional assistance to the client. It is not intended to provide intervention on the client's machine. Any intervention on the machine, remotely, will be subject to specific services. Except in the case where HDCE's equipment is at fault.

HDCE undertakes to make every effort to ensure the permanence, continuity and quality of the services it offers, and in this respect assumes a best-efforts obligation; accordingly, HDCE will endeavour to provide Internet access and support 24 hours a day, 7 days a week.

HDCE ensures availability in the order of 99.9% (average calculated over one year) of its IAAS systems.

Excluded from this calculation are periods of server unavailability due to technical problems requiring, other than failures, regular maintenance by HDCE, or any other difficulties beyond HDCE's control, such as, in particular, force majeure (including: strikes, riots, wars, storms, earthquakes, failure of the public telecommunications network, requisition by public authorities, unavailability of the Internet network, etc.) or the liability of a third party or of the Client.

HDCE offers 5% of the total amount of the next invoice for each 1-hour period of unavailability, up to a maximum of 100% of the total amount of the invoice.

Upon completion of an order request by email, the contract governing the relationship between the Client and HDCE is formed, subject to HDCE sending an account opening confirmation email informing the Client of the codes allowing it to access the space reserved for its website on HDCE's servers. The date on which the Client's site hosting codes are sent determines the initial date on which billing takes effect.

In the absence of this acknowledgement of receipt being sent, the contract cannot be deemed concluded. The actual bringing online of the virtual dedicated server determines the initial date on which billing takes effect. The contract is concluded for a term of one year.

For any exchange of information by email, the date and time of the HDCE server shall be authoritative between the parties. This information will be retained by HDCE for the entire duration of the contractual relationship, plus the limitation period applicable to any legal action.

Sending payment to HDCE shall suffice for the contract to be considered formed. This contract may also be concluded with HDCE's assistance if the client so requests by email or by telephone, subject to HDCE sending an account opening confirmation email informing the Client of the codes allowing it to access its Cloud Service. The date on which the Client's site hosting codes are sent determines the initial date on which billing takes effect.

The contract is deemed final on the day HDCE sends the account opening confirmation.

The parties agree that this confirmation issued by HDCE shall serve as evidence between the parties in the event of a dispute.

This acknowledgement of receipt will be archived by HDCE on its own servers and kept in a secure place.

The date and time of receipt shall be those recorded by the server of HDCE, which shall be authoritative between the parties unless proven otherwise.

In the absence of this acknowledgement of receipt being sent, the contract cannot be deemed concluded. It is then the Client's responsibility to contact HDCE to inform it thereof.

The client does not have physical access to the server. It therefore cannot request to modify the hardware itself and/or to go on site to intervene on the machine.

Likewise, should HDCE detect that the client's machine has been hacked, an email will be sent to the client indicating that a reinstallation procedure is required to maintain the integrity of the server and of the entire HDCE network. The Client may then order such a procedure from HDCE, after having backed up all of its data. HDCE reserves the right to interrupt the server's connection to the Internet pending a clean reinstallation of the machine. HDCE is not required to transfer data from the hacked system to the new system. This operation must be performed by the client. HDCE undertakes, and limits its intervention solely, to the installation of the new system.

The Client is entirely and exclusively responsible for the passwords required to use its virtual dedicated server. HDCE disclaims all liability for any unlawful or fraudulent use of the passwords made available to the Client. The passwords provided are confidential.

Any suspected disclosure, whether intentional or not, of the passwords provided engages the sole liability of the Client, to the exclusion of that of HDCE.

The Client undertakes not to host racist or illegal sites, and sites containing hyperlinks to such sites are prohibited on HDCE's servers.

Likewise, the Client shall refrain from hosting any site on pages relating to any proselytism concerning sectarian movements, or movements considered to represent a sectarian risk by government authorities, or recognized as such by a court decision having the force of res judicata.

The Client also undertakes not to redirect its domain to such sites.

The Client undertakes not to make available to the public, from its site hosted on HDCE's servers, sound files encoded in MP3 or any other format. The Client also undertakes not to include on its site hyperlinks to, and not to redirect its domain to, sites distributing this type of service.

HDCE can only warn the Client of the legal consequences that could result from unlawful activities on the site, and disclaims any joint and several liability for the use of the data made available to Internet users by the Client.

The Client is responsible for complying with the traffic volume and storage space authorized by the hosting plan and options to which it has subscribed.

The Client acts as an independent entity and consequently bears alone the risks and perils of its activity. The Client is solely responsible for the services and its website, for the content of the information transmitted, distributed or collected, for their use and updating, as well as for all files, including address files. The Client guarantees to hold HDCE harmless from any third-party claim relating to the content of the information transmitted, distributed or reproduced, including claims resulting from an infringement of personality rights, of a property right relating to a patent, trademark, industrial designs or copyright, or claims resulting from an act of unfair or parasitic competition or from a breach of public order, of the ethical rules governing the Internet, of public morals, of privacy (image rights, secrecy of correspondence...) or of the provisions of the Criminal Code: in this respect, the Client shall indemnify HDCE for all costs, charges and expenses that HDCE may incur as a result, including the reasonable fees and expenses of HDCE's counsel, even by virtue of a non-final court decision.

The Client accordingly declares that it fully accepts all legal obligations arising from the ownership of its services, HDCE not being liable to be sued or troubled in this regard for any reason whatsoever, in particular in the event of a breach of laws or regulations applicable to the Client's services.

The Client declares that it has obtained all necessary copyright authorizations, in particular from any copyright collective societies whose authorization may be required. The Client undertakes to display on the web pages of its website the identity and address of the owner or author of the web pages, and to make all requests necessary for the creation of its website, in accordance with the French law in force.

Failure by the Client to comply with the points referred to above - whether for the site hosted on HDCE's server platform or concerning a redirection of its domain to such sites – and in particular any activity specifically prohibited from HDCE's servers and/or any content distributed that is specifically prohibited on HDCE's servers and/or likely to give rise to civil and/or criminal liability and/or likely to infringe the rights of a third party shall entitle HDCE to disconnect and/or interrupt the Client's services without delay and without prior formal notice, and to terminate the contract immediately and automatically, without prejudice to any damages to which HDCE may be entitled. In such cases, the Client shall not be entitled to a refund by HDCE of any sums already paid.

The Client undertakes to pay directly to the author of the claim any sum that the latter may demand from HDCE. In addition, the Client undertakes to intervene, at HDCE's request, in any proceedings brought against HDCE and to indemnify HDCE against any judgments that may be rendered against HDCE in this regard. Consequently, the Client undertakes to take personal charge of any claim and/or proceeding, whatever its form, purpose or nature, that may be brought against HDCE and that relates to the obligations incumbent upon the Client under this contract.

The Client, being solely responsible for the content of the site, undertakes to defend HDCE at its own expense in the event that HDCE is the subject of a claim relating to the data, information, messages, etc. that it distributes, and to bear the compensation due for any damage suffered, provided that it has full freedom to settle and conduct the proceedings.

You are responsible for identifying and authenticating all Users, for approving access by such Users to the Services, for controlling against unauthorized access by Users, and for maintaining the confidentiality of usernames, passwords and account information. By federating or otherwise associating your and Your Users' usernames, passwords and accounts with HDCE, you undertake to maintain confidentiality and to promptly and properly deactivate user records in your local (intranet) identity management infrastructure or on your local computers. HDCE is not responsible for any harm caused by Your Users, including individuals who were not authorized to have access to the Services but who were able to gain access because usernames, passwords or accounts were not promptly deactivated in your local identity management infrastructure or on your local computers. You are responsible for all activities that occur under your and Your Users' usernames, passwords and accounts or as a result of your or Your Users' access to the Services, and agree to notify HDCE immediately of any unauthorized use. You will make every effort to prevent unauthorized third parties from accessing the Services.

You agree not to use or permit the use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, including Your Content, Your Applications and Third Party Content, for any purpose that may (a) threaten or harass any person or cause injury or damage to persons or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or violence, (d) constitute unsolicited bulk email, "junk mail", "spam" or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to HDCE under this Agreement, HDCE reserves the right, but has no obligation, to take remedial action if any material violates the restrictions in the preceding sentence (the "Acceptable Use Policy"), including the removal or disabling of access to such material. HDCE shall have no liability to you in the event that HDCE takes such action. You are solely responsible for the accuracy, quality, integrity, legality, reliability, relevance and appropriateness of all of Your Content and Your Applications. You agree to defend and indemnify HDCE against any claim arising out of a violation of your obligations under this section.

You are required to accept all patches, bug fixes, updates, maintenance and service packs (collectively, "patches") necessary for the proper operation and security of the Services, including for HDCE Software. HDCE is not responsible for performance and security issues encountered with the Cloud Services that result from your failure to accept the application of patches that are necessary for the proper operation and security of the Services. Except for emergency or security-related maintenance activities, HDCE will coordinate with you the scheduling of the application of patches, where possible, based on HDCE's next available standard maintenance window.

HDCE may make "production pilots" available for certain Cloud Services under this Agreement. The production pilots you order are described in the Service Specifications applicable to your order, and are provided solely to allow you to evaluate and test the Cloud Services for your internal business purposes. It may be necessary to order certain Professional Services as a prerequisite to ordering a production pilot.

Invoices owed to HDCE are payable within 30 days of the invoice date. Once placed, your order is non-cancellable and the sums paid are non-refundable, except as otherwise provided in this Agreement. Any invoice not paid when due shall automatically give rise to late payment penalties at the maximum legal interest rate. You will pay any value-added taxes or other duties and taxes applicable under law that HDCE must pay for the Services you have ordered, excluding taxes on HDCE's income. In addition, you will reimburse HDCE for reasonable expenses related to the performance of the Professional Services. The fees for the Services listed in the order are exclusive of taxes and expenses.

You acknowledge that you may receive multiple invoices for the Services ordered.

You agree and acknowledge that you have not relied on the future availability of any Services, software or updates in entering into the payment obligations of your order; however, the foregoing does not relieve HDCE of its obligation during the Services Period to deliver the Services you have ordered in accordance with the terms of this Agreement.

The Services provided under this Agreement shall be provided for the Services Period defined in your order, unless earlier suspended or terminated in accordance with this Agreement or the order. If so indicated in the Service Specifications, certain Cloud Services that are ordered will automatically renew for additional Services Periods unless you provide written notice to HDCE no later than thirty (30) days before the end of the applicable Services Period of your intention not to renew such Cloud Services, or HDCE provides you with written notice no later than ninety (90) days before the end of the applicable Services Period of its intention not to renew such Cloud Services.

Upon the end of the Services, you no longer have the right to access or use the Services, including the associated HDCE Software and Services Environments; however, at your request, and for a period of up to 60 days after the end of the applicable Services Period, HDCE will make Your Content and Your Applications then residing in the Services Environment available to you for retrieval. At the end of such 60-day period, and except as may be required by law, HDCE will delete or otherwise render inaccessible any of Your Content and Your Applications that remain in the Services Environment.

HDCE may temporarily suspend your password, account and access to or use of the Services if you or Your Users violate any provision of the "Rights Granted", "Ownership and Restrictions", "Fees and Taxes", "Use of the Services" or "Export" sections of this Agreement, or if, in HDCE's reasonable judgment, the Services or any component thereof are about to suffer a significant threat to security or functionality. HDCE will provide advance notice to you of any such suspension, at HDCE's discretion based on the nature of the circumstances giving rise to the suspension. HDCE will use reasonable efforts to promptly re-establish the affected Services once HDCE determines, in its sole discretion, that the situation giving rise to the suspension has been cured; however, during any suspension period, HDCE will make available to you Your Content and Your Applications as they existed in the Services Environment on the date of suspension. HDCE may terminate the Services under an order if any of the foregoing causes of suspension is not cured within 30 days after HDCE's initial notice thereof. Any suspension or termination by HDCE under this paragraph shall not relieve you of your obligation to pay under this Agreement.

If either of us breaches a material term of this Agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the order under which the breach occurred. If HDCE terminates the order as specified in the preceding sentence, you must pay within 30 days all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for the Services ordered under such order, plus related taxes and expenses. Except for non-payment of fees, the non-breaching party that complies with the Agreement may agree, in its sole discretion, to extend the 30-day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if you are in default under this Agreement, you may not use the Services ordered.

The provisions that survive termination or expiration of this Agreement are those relating to limitation of liability, infringement, payment and others which by their nature are intended to survive.

By virtue of this Agreement, each party may have access to information that the other party considers confidential. The parties agree to disclose only the information that is required for the performance of obligations under this Agreement. Confidential Information shall be limited to all contractual information relating to the pricing and terms of this Agreement, your content and your applications residing in the Services Environment, and all information clearly identified as "Confidential" at the time of disclosure.

Information that: (a) is or becomes part of the public domain without any fault or negligence of the party receiving the Confidential Information; (b) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction; or (d) is independently developed by the other party, is not considered Confidential Information.

Each party undertakes to keep confidential and not to disclose to third parties the other party's Confidential Information, except as indicated in the following sentence, for a period of 3 years from its disclosure to the party receiving the Confidential Information; however, HDCE will treat Your Confidential Information that resides within the Services Environment as confidential for as long as such information resides in the Services Environment. In addition, each party undertakes to disclose Confidential Information only to those employees, agents or subcontractors who are required to protect it against unauthorized disclosure in a manner no less protective than that agreed under this Agreement. HDCE will protect the confidentiality of Your Content or Your Applications residing in the Services Environment in accordance with HDCE's security practices. In addition, Your Personal Data will be processed in accordance with the terms of section 11 below. Nothing shall prevent the parties from disclosing the terms, including the pricing, of this Master Agreement or of the orders in order to assert their rights in any legal proceeding arising out of or relating to this Master Agreement, or from disclosing Confidential Information to any administrative authority if required by law.

Restrictions on Access to Sensitive Data You are not authorized to provide HDCE with access to health information, payment card information or sensitive personal information that imposes specific data security obligations for the processing of such data, unless otherwise specified in your order.

Data destruction schedule: The Client's data will be systematically destroyed according to the following schedule:

HDCE warrants that it will provide (i) Cloud Services in all material respects as described in the Service Specifications, and (ii) Professional Services in a professional manner consistent with the Service Specifications. If the Services provided to you were not performed as warranted, you must notify HDCE in writing, describing the deficiencies in the Services (including, as applicable, the service request number notifying of the deficiency in the Services).

HDCE DOES NOT WARRANT THAT (A) THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT HDCE WILL CORRECT ALL SERVICES ERRORS, (B) THE SERVICES WILL OPERATE IN COMBINATION WITH YOUR CONTENT OR YOUR APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS, SERVICES OR DATA NOT PROVIDED BY HDCE, AND (C) THE SERVICES WILL MEET YOUR REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS. YOU ACKNOWLEDGE THAT HDCE DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. HDCE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. HDCE IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM YOUR CONTENT, YOUR APPLICATIONS OR THIRD PARTY CONTENT. HDCE DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE RELIABILITY, ACCURACY, COMPLETENESS OR USEFULNESS OF THIRD PARTY CONTENT OR THE SERVICES, AND DISCLAIMS ALL LIABILITY ARISING FROM OR RELATED TO THIRD PARTY CONTENT OR THE SERVICES.

FOR ANY BREACH OF THE SERVICES WARRANTY, YOUR EXCLUSIVE REMEDY AND HDCE'S ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF HDCE CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, YOU MAY TERMINATE THE DEFICIENT SERVICES AND HDCE WILL REFUND TO YOU THE FEES PAID IN ADVANCE TO HDCE FOR THE TERMINATED SERVICES FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.

TO THE EXTENT PERMITTED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS, OR FOR FITNESS FOR A PARTICULAR PURPOSE.

NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF PROFITS OR REVENUE (EXCLUDING FEES UNDER THIS AGREEMENT), DATA OR DATA USE. HDCE'S TOTAL LIABILITY FOR ALL DAMAGES ARISING OUT OF THIS AGREEMENT OR YOUR ORDER SHALL BE LIMITED TO THE TOTAL AMOUNTS ACTUALLY PAID TO HDCE FOR THE SERVICES UNDER THE ORDER GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, LESS ANY REFUNDS OR CREDITS RECEIVED BY YOU FROM HDCE UNDER SUCH ORDER. THIS AGREEMENT ALLOCATES RISK BETWEEN THE PARTIES. THE AGREED PRICES REFLECT THIS ALLOCATION OF RISK AND THE RESULTING LIMITATION OF LIABILITY.

Subject to the provisions of this section 14 (Infringement Indemnity), if a third party brings an infringement action against either you or HDCE (the "Recipient", which hereinafter may refer to either you or HDCE, depending on which party received the component), alleging that any information, design, specification, instruction, software, data, hardware or component (collectively, the "Material") provided by either you or HDCE (the "Provider", which hereinafter may refer to either you or HDCE, depending on which party provided the Component) and used by the Recipient infringes the intellectual property rights of a third party, the Provider will defend the Recipient at the Provider's sole expense and will indemnify the Recipient against all damages, losses, costs and expenses of any kind awarded to the third party by an enforceable court judgment or agreed to by the Provider in an out-of-court settlement, provided that the Recipient does the following:

If it is established, or if the Provider believes, that the Component may have infringed the intellectual property rights of a third party, the Provider may, at its option, modify the Component to make it non-infringing (while substantially preserving its utility and functionality) or obtain a licence allowing continued use of the Component. If neither of these options is commercially reasonable, the Provider may terminate the licence for the Component concerned, require its return, and refund to the Recipient the corresponding fees paid to the other party as well as any unused technical support fees paid in advance to HDCE, if HDCE is the Provider of the infringing Software. If such return prevents the Recipient from meeting its obligations under a given order, HDCE may, at its option and upon 30 days' written notice, terminate that order.

The Recipient shall not be entitled to any indemnification from the Provider (a) if it modifies the Component or uses it other than as described in the Provider's user documentation or the Service Specifications, or (b) if it uses a version prior to the latest version, where the infringement could have been avoided by using a current unmodified version of the Component provided to the Recipient, or (c) if the Recipient continues to use the Component after the expiry of the licence to use the Component. The Recipient shall not be entitled to any indemnity if the claim is based on information, designs, specifications, instructions, software, data or components not provided by the Provider. HDCE will not indemnify you if the claim arises from the use of the Component in combination with Components, with any products or with Services not provided by HDCE. HDCE will not indemnify you to the extent that an infringement action is based on Third Party Content or on any Component from a third-party portal or other external source that is accessible to you within or from the Services (for example, a social media post from a third-party blog or forum, a third-party web page accessed through a hyperlink, etc.) HDCE will not indemnify you if the infringement is based on your actions against a third party, where the HDCE Services as delivered to you and used in accordance with the terms of this Agreement would not otherwise have infringed a third party's proprietary rights. HDCE will not indemnify you if you were aware of the intellectual property infringement claim(s) at the time you obtained the Services.

The term "Component" defined above does not include Separately Licensed Third Party Technology. Solely with respect to Separately Licensed Third Party Technology that is part of or required to use the Cloud Service and that is used: (a) in unmodified form; (b) as part of or as required to use the Cloud Service; and (c) in accordance with the usage rights granted for the relevant Cloud Services and all other terms of this Agreement, HDCE will indemnify you for any claim regarding the Separately Licensed Third Party Technology to the same extent that HDCE is required to provide indemnification for breach of the infringement warranty for Components under the terms of the Agreement.

The provisions of this Article 18 constitute the parties' exclusive remedy with respect to infringement.

The Services may enable you to link to, transmit Your Content to, or otherwise access other third-party websites, content, products, services and information. HDCE does not control and is not responsible for such websites or content, products, services and information accessible from or provided through the Services, and you bear all risks associated with access to and use of such third-party websites and content, products, services and information.

Any Third Party Content made accessible by HDCE in or through the Services Environment is provided on an "as-is" and "as available" basis without warranty of any kind. Third Party Content may be indecent, offensive, inaccurate, infringing or otherwise objectionable or unlawful, and you acknowledge that HDCE is not responsible for and has no obligation to control, monitor or correct Third Party Content; however, HDCE reserves the right to take remedial action if such content violates the applicable restrictions under section 4.2 of this Agreement, including the removal of, or disabling of access to, such content.

You acknowledge that: (i) the nature, type, quality and availability of Third Party Content may change at any time during the Services Period, and (ii) Service Specifications that interoperate with third parties such as Facebook™, YouTube™ and Twitter™, etc. (each, a "Third Party Service") depend on the continuing availability of such third parties' respective application programming interfaces (APIs) for use with the Services. HDCE may update, change or modify the Services under this Agreement as a result of a change in, or unavailability of, such Third Party Content, Third Party Services or APIs. If any third party ceases to make its Third Party Content or APIs available on reasonable terms for the Services, as determined by HDCE in its sole discretion, HDCE may cease providing access to the affected Third Party Content or Third Party Services without any liability to you. Any changes to Third Party Content, Third Party Services or APIs, including their availability or unavailability, during the Services Period do not affect your obligations under this Agreement or the applicable order, and you will not be entitled to any refund, credit or other compensation due to any such changes.

Any Third Party Content that you store in Your Services Environment will count towards any storage or other allotments applicable to the Cloud Services that you ordered.

HDCE may use tools, scripts, software and utilities (collectively, the "Tools") to monitor and administer the Services and to help resolve your HDCE service requests. The Tools will not collect or store any of Your Content or Your Applications residing in the Services Environment, except as necessary to provide the Services or to troubleshoot service requests or other problems in the Services. Information collected by the Tools (excluding Your Content and Your Applications) may also be used to assist in managing HDCE's product and service portfolio, to help HDCE address deficiencies in its product and service offerings, and for licence and Services management.

As part of the Cloud Services, HDCE may provide you with online access to download certain Ancillary Software for use with the Services. If HDCE does not specify Separate Terms for such Ancillary Software, then, subject to your payment obligations, you shall have a limited, non-transferable, non-exclusive, non-assignable, royalty-free, worldwide right to use such Ancillary Software solely to facilitate your access to, operation of, and/or use of the Services Environment, in accordance with the terms of this Agreement and your order, including the Service Specifications. Your right to use such Ancillary Software will terminate upon the earliest of HDCE's notice, the end of the Cloud Services associated with the Ancillary Software, or the date on which the licence to use the Ancillary Software ends under the Separate Terms specified for such software.

HDCE may (i) compile statistical and other information related to the performance, operation and use of the Services, and (ii) use data from the Services Environment in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (clauses i and ii are collectively referred to as "Service Analyses"). HDCE may make Service Analyses publicly available; however, Service Analyses will not incorporate Your Content or Your Confidential Information in a form that could serve to identify you or any individual, and Service Analyses do not constitute Personal Data. HDCE retains all intellectual property rights in Service Analyses.

The export and import control laws and regulations of the United States of America, as well as any applicable French and European Union export laws and regulations, apply to the Services. You agree that such export laws govern your use of the Services (including technical data) and of any deliverables resulting from the Services provided under this Agreement. You agree to comply with all such export laws and regulations (including "deemed export" and "deemed re-export" regulations). You agree that no data, information, software and/or material resulting from the Services (or direct product thereof) will be exported, directly or indirectly, in violation of such laws or used for any purpose prohibited by such laws, including the proliferation of nuclear, chemical or biological weapons or the development of missile technology.

You acknowledge that the Cloud Services are designed with capabilities that allow you and your users to access the Services Environment regardless of geographic location, and to transfer or otherwise move Your Content and Your Applications between the Services Environment and other locations such as User workstations. You are solely responsible for the authorization and management of User accounts, as well as for controlling the export and geographic transfer of Your Content and Your Applications.

Neither party shall be liable for any failure or delay in performance resulting from war, hostilities or sabotage; acts of God; general electrical, Internet or telecommunications outages not attributable to the other party; restrictions imposed by public authorities (including the refusal or revocation of any export, import or other licence); or any other event beyond the control of the obligated party. The parties will use reasonable efforts to mitigate the effects of the force majeure event. If such event continues for more than 30 days, the other party may cancel the unperformed Services and affected orders, in writing. These provisions do not relieve the other party of its obligation to implement its normal safeguard measures nor of its obligation to pay for the Services.

This Agreement is governed by the laws of Quebec.

Any notice required under this Agreement shall be provided to the other party in writing. In the event of a dispute, or if you wish to give notice under the Infringement Indemnity section of this Agreement, or in the event of insolvency proceedings or any other similar legal proceedings, you shall notify HDCE promptly and in writing at the following address: HDCE 360 Rue Saint-Jacques Suite G101, Montréal, QC H2Y 1P5.

To request the termination of the Services in accordance with this agreement, you must submit a service request to HDCE at the address specified in your order or in the Service Specifications.

HDCE may give notices applicable to HDCE's Cloud Services customer base by means of a general notice on the HDCE portal for the Cloud Services, and notices specific to you by electronic mail to your email address on record in HDCE's account information or by written communication sent by priority mail or prepaid mail to your address on record in HDCE's account information.

You may not assign this Agreement or give or transfer the Services (including the HDCE Software) or any interest in them to another individual or legal entity. If you grant a security interest in any portion of the Services, the secured party has no right to use or transfer the Services or any of the deliverables. The foregoing shall not be construed to limit any rights you may have, where applicable, with respect to Separately Licensed Third Party Technology licensed under open source or similar licence terms.

HDCE is an independent contractor and we agree that no partnership, joint venture or agency relationship exists between us. We are each responsible for paying our own employees, including employment-related taxes and insurance. You shall defend and hold HDCE harmless from any liability arising under any applicable laws, ordinances or regulations relating to your termination or modification of the employment of any of your employees in connection with the Services under this Agreement. You understand that HDCE's partners and third parties, including any third-party firms retained by you to provide consulting or implementation services or applications that interact with the Cloud Services, are independent of HDCE and are not HDCE's agents. HDCE is not liable for, bound by or responsible for any problems with the Services arising from any act of such partners or third parties, unless the partner or third party is providing services as an HDCE subcontractor under an order placed under this Agreement and, if so, only to the same extent that HDCE would be responsible for HDCE resources under this Agreement.

If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain in effect and such term will be replaced with a term consistent with the purpose and intent of this Agreement.

Except for actions for non-payment or for breach of HDCE’s intellectual property rights, no action, regardless of form, may be brought under this Agreement by either party more than two years after the facts giving rise to the action.

The HDCE Software and the Services are not designed for, nor intended for use in, nuclear facilities or other dangerous applications. You agree that it is your responsibility to ensure the safe use of the HDCE Software and the Services in such applications.

You will obtain, strictly at your own expense, all rights and consents from any third-party company that are necessary for Your Content, Your Applications and Third Party Content, as well as for the products of other vendors that you have provided and use with the Services, including the rights and consents necessary for HDCE to provide the Services under this Agreement.

You agree to provide HDCE with all information, access and full good-faith cooperation reasonably necessary to enable HDCE to provide the Services, and you undertake to perform the actions identified in your order as your responsibilities.

You are solely responsible for your regulatory compliance with respect to your use of the Services. It is your responsibility to inform HDCE of any technical requirements arising from your regulatory obligations before entering into an order governed by this Agreement. HDCE will cooperate with your efforts to determine whether the use of the standard HDCE Services offerings meets those requirements. Additional fees may apply to any additional work performed by HDCE or to changes to the Services.

HDCE may audit your use of the Services (for example, through the use of software tools) to determine whether your use of the Services complies with your order and the terms of this Agreement. You agree to cooperate with HDCE’s audit and to provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with your normal operations. You agree to pay, within 30 days of written notification, any fees applicable to your use of the Services in excess of your rights. If you fail to pay, HDCE may terminate your Services and/or your order. You agree that HDCE shall not be responsible for any of your costs incurred in cooperating with the audit.

You agree that this Agreement, together with any information incorporated into it by written reference (including the content of URLs and referenced terms and conditions), and the applicable order, constitute the entire agreement relating to the Services you have ordered and supersede any prior or contemporaneous agreement or representation, whether written or oral, relating to those Services.

It is expressly agreed that the terms of this Agreement and of any HDCE order form shall prevail over the terms of any client purchase order, online procurement portal or other non-HDCE document, and that none of the terms contained in such client purchase order, portal or non-HDCE document shall apply to the Services ordered. In the event of any inconsistency between the terms of an order and the Agreement, the order shall prevail; however, unless otherwise stated in the order, the terms of the Data Processing Agreement shall prevail over any inconsistent provision of an order. Except as otherwise provided in section 5 (Service Specifications), section 11 (Data Protection) and section 15 (Third Party Web Sites) with respect to the Services, this Agreement and the orders referencing it may not be modified, and the rights and restrictions may not be altered or waived, except in a writing signed by your duly authorized representatives and HDCE. No third-party beneficiary rights are created by this Agreement.