Last Updated: November 25, 2014
This Terms of Service (the "Agreement") sets forth the terms and conditions that apply to your access and use of the services offered by Pacific Servers Inc. ("Pacific Servers", "we", "our" or "us"), including without limitation the dedicated server, co-location and managed services products offered (the "Services").
BY ACCEPTING THIS AGREEMENT, EITHER BY COMPLETING THE ONLINE SERVICE ORDER PROCESS (EITHER WITH US DIRECTLY OR THROUGH ONE OF OUR COMMERCIAL PARTNERS) OR BY EXECUTING A PAPER-BASED SERVICE ORDER THAT REFERENCES THIS AGREEMENT (IN EACH CASE, THE "SERVICE ORDER"), YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
By accepting this Agreement, you agree to be bound by the terms and conditions of this Agreement, Pacific Servers' Privacy Policy located at https://www.pacificservers.com/privacy.html (the "Privacy Policy"), and Pacific Servers' Acceptable Use Policy located at https://www.pacificservers.com/aup.html (the "Acceptable Use Policy"), in each case as it may be amended from time to time in the future.
Subject to the terms of this Agreement, Pacific Servers may update this Agreement, the Privacy Policy or the Acceptable Use Policy at any time, without notification to you, and you should review this Agreement, the Privacy Policy and the Acceptable Use Policy from time to time by accessing Pacific Servers' website located at https://www.pacificservers.com/ (the "Site"). Your continued use of the Services shall be deemed irrevocable acceptance of any such revisions.
In order to enter into this Agreement, you must have reached the legal age of majority in your jurisdiction of residence, and you hereby represent and warrant that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement, and to abide by and comply with this Agreement. It is your responsibility to ensure that you are legally eligible to enter into this Agreement under any laws applicable to you in your jurisdiction of residence or otherwise. If you accept this Agreement, you represent that you have the capacity to be bound by it.
You must be registered with Pacific Servers in order to access and use the Services that are subject to a valid Service Order. Upon registration, you will choose a password for your user account ("Account"). You agree and understand that you are responsible for maintaining the confidentiality of your password which, together with your email address, allows you to access the Services. That email address and password, together with any or other user information you provide, such as your address, contact information and other business information, form your "Profile Information" and allow you to access your Account. You agree to provide true, accurate, current and complete Profile Information about yourself and your business, and represent, warrant and covenant that (i) such information and material, whether provided during the registration process or thereafter during your use of the Services, is true, accurate, current and complete and (ii) you will maintain and promptly update all such information to keep it true, accurate, current and complete. Your right to access and use the Services is personal to you and is not transferable by you to any other person or entity. You agree not to disclose your password to any third party. You are solely responsible for all activities that occur under your Account or under your Profile Information. If you become aware of any unauthorized use of your Account or Profile Information, you are responsible for notifying Pacific Servers immediately. By providing us with your e-mail address, you agree to receive all required notices electronically, to that e-mail address. It is your responsibility to update or change that address, as appropriate.
Pacific Servers agrees to provide you with the Services described in valid Service Order(s) agreed upon between you and Pacific Servers, subject to the terms of this Agreement. You use of the Services constitutes acceptance of the terms of this Agreement and all documents referenced herein.
The following specific terms shall apply to the Services:
Bandwidth Services
Pacific Servers Inc. will provide you with the internet connectivity, IP address and internet traffic services as specified in a valid Service Order. You agree to use bandwidth as described in the Acceptable Usage Policy and agree that bandwidth shall not exceed the maximum number of gigabytes per month for the Services ordered by you pursuant to valid Service Order(s), and that number of gigabytes is the aggregate sum of the incoming and outgoing data transfer for each calendar month period. Pacific Servers will monitor your bandwidth usage and shall have the right to take corrective action if your bandwidth usage exceeds the maximum usage level set forth in the applicable Service Order(s). Such corrective action may include the assessment of additional charges based on the per gigabyte price stated on the applicable Service Order(s) (or if no price is stated therein, then based on Pacific Servers’ standard pricing), and in such case you agree to pay all such additional charges on your next scheduled payment date.
IP Addresses
Any IPv4 addresses allocated to you by Pacific Servers must be maintained by you in an efficient manner as deemed by ARIN and utilized at 80% within thirty (30) days of assignment by Pacific Servers to you. Failure to comply with this section may result in the revocation of IPv4 addresses by Pacific Servers after five (5) days' notice to you. Pacific Servers shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to you by Pacific Servers, and Pacific Servers reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion. Pacific Servers will provide you with one (1) IPv4 addresses and one (1) /64 IPv6 address allocation at no further cost, and all additional IP addresses shall be subject to additional cost in accordance with Pacific Servers' standard rates. All IPv4 requests must be fully justified.
Co-Location Services
If you purchase co-location services from Pacific Servers, we will provide you with the right to operate and maintain at the Premises specific Customer Equipment (as defined below) as described in a valid Service Order. You will be responsible for the delivery of the Customer Equipment, and you hereby represent and warrant that you either own all Customer Equipment or have all necessary rights to locate the Customer Equipment in the Premises. You will immediately notify Pacific Servers of any space, power or other requirements associated with the installation or operation of the Customer Equipment. Pacific Servers will have no duty to monitor, maintain or care for the Customer Equipment. Upon termination or expiration of the term of this Agreement, you hereby authorize Pacific Servers to remove the Customer Equipment from the Premises for pick-up by you within five (5) days. Unless otherwise agreed in writing between you and Pacific Servers, in the event the Customer Equipment has not been picked up by you within such five (5) day period, Pacific Servers will have the right to remove, relocate, or otherwise store the Customer Equipment at your expense without liability to you and you will be required to re-pay all such expenses prior to picking up your Customer Equipment. If you do not pick-up your Customer Equipment within one month of the end of such five (5) day period, Pacific Servers reserves the right to dispose of such Customer Equipment without liability to you.
Managed Services
A description of the managed services offered by Pacific Servers can be found at the following website page: https://www.pacificservers.com/services/ (the "Managed Services List"). If you purchase any such managed services as part of the Services hereunder, Pacific Servers will provide you with the managed services ordered in accordance with the descriptions for such managed services set forth on the Managed Services List.
Other Services
Upon your request, Pacific Servers may, at its option, provide you with technical and non-technical support, such as equipment reboots, troubleshooting, DNS and other support, in connection with your use of the Services. If you request such technical and/or non-technical support, you agree to pay the standard hourly rate (minimum CAD$125 per hour) of Pacific Servers for such services.
Dedicated Servers
Except for equipment owned or leased by customer and installed or located at the data centre of Pacific Servers (the "Premises") as part of co-location Services purchased by you pursuant to a valid Service Order(s) ("Customer Equipment"), Pacific Servers is the owner of all equipment provided by Pacific Servers in connection with the Services or otherwise located within the Premises ("PSI Equipment"), and Pacific Servers grants you a revocable, limited license to access the PSI Equipment in connection with your use of the Services, subject to the terms of this Agreement and the standard policies of Pacific Servers. You otherwise have no rights in or to the PSI Equipment. Unless otherwise permitted by Pacific Servers in writing, physical access to PSI Equipment or the Premises by you or on your behalf is strictly prohibited.
Co-Location Services
You will be responsible for the delivery to the Premises of all Customer Equipment which is entitled to be stored in the Premises as part of co-location services purchased under a valid Service Order. Pacific Servers will be responsible for the initial installation of the Customer Equipment in the applicable server space at the Premises, provided that Pacific Servers reserves the right to charge professional services fees for such installation at its standard hourly rates if such installation requires services that are in excess of those provided under Pacific Servers' standard installation polices.
If, in the determination of Pacific Servers, acting reasonably, the Customer Equipment, or any software or hosted applications used by you, or any of your activities pose an immediate threat to the physical integrity of the Premises, the physical integrity or performance of the PSI Equipment or the network of Pacific Servers, any other user of the Premises or the Services of Pacific Servers, or poses an immediate threat to the safety of any person, then Pacific Servers may perform such work and take such other actions that it may consider necessary without prior notice to you and without liability for damage to the Customer Equipment or any of your content or data for any interruption of your (or your customers') businesses. As soon as practical after performing such work, Pacific Servers will advise you, by email, of the work performed or the action taken.
Under no circumstances will Pacific Servers be obligated to provide insurance coverage for any Customer Equipment or any data or content hosted by you in the Premises. You are responsible for obtaining your own insurance in this regard, and also for acquiring any backup and disaster recovery services you deem necessary or prudent to protect your data, content and business.
If you are in default of any of your obligations under this Agreement or any other document referenced herein, then Pacific Servers may in its sole discretion do any or all of the following: (i) without notice, suspend your access to the Services, (ii) if you default with respect to non-payment of any sums due to Pacific Servers, exercise all the rights and remedies of a secured party under applicable law including, without limitation, with the minimum notice (if any) required by law, Pacific Servers may seize the Customer Equipment and sell the Customer Equipment to third parties in satisfaction of any indebtedness owing by you to Pacific Servers as well as any costs (including reasonable legal fees) incurred by Pacific Servers in exercising any remedy under this Agreement.
Pacific Services will send you invoices by e-mail, unless you are located in Canada or USA and request to have invoices provided by regular mail. You will pay Pacific Servers the one-time install fees ("One-Time Install Fees") and recurring monthly fees ("Recurring Monthly Fees") specified in applicable Service Order(s), as amended from time to time in accordance with the terms hereof, as well as any charges for other services you may order or that we may provide from time to time. You shall be responsible for all sales tax, use tax, value added taxes, withholding taxes and any other similar taxes and charge of any kind imposed by federal, state or local governmental entity on the transactions contemplated by this Agreement or your use of the Services. When we have the legal obligation to pay or collect taxes for which you are responsible, the appropriate amount shall be invoiced to and paid by you unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. All One-Time Install Fees will be payable in advance of the provision of any Services to which such One-Time Install Fees are related. Recurring Monthly Fees will be payable monthly in advance commencing upon your designated payment period. All other fees and costs (including fees for over-usage of Services, including bandwidth) will be payable monthly and will be invoiced on the next monthly payment date after the applicable fees and charges are incurred. All fees will be payable in Canadian dollars, unless otherwise agreed upon in an applicable Service Order. In the event that Pacific Services is required to interrupt your Services for non-payment, you hereby agree that the re-commencement of Services shall be subject to a CAD$100 re-connect charge. Fees and charges that are not paid forty-five (45) days after an applicable due date may be turned over to an outside collection agency for collection. If you desire to cancel your account, please follow the proper procedure to do this as outlined in this Agreement. Any payment not made when due will be subject to interest at a rate of two percent (2%) per month compounded monthly (equivalent to a yearly interest rate of 26.86%). Bounced checks are subject to a penalty fee of CAD$20.
Unless otherwise agreed upon between you and Pacific Servers, you will pay all fees and charges for the Services by pre-authorized payment to your credit card. If you provide your credit card information to us for payments by credit card, Pacific Servers will use the information in its possession to make payments at each applicable invoice date. You will not receive any previous notification but will receive a notice after every debit on the credit card. If ever you want to disable or enable such automatic debit feature, you must contact Pacific Servers in the manner set forth below. By submitting your credit card information and selecting to pay by automatic debit, you confirm that you have read and accept the conditions related to automatic debit and you consent to Pacific Servers charging fees and charges for the Services to the credit card information provided by you. The foregoing authorization will be valid for all periods during which you have selected to pay by automatic debit.
Upon a minimum of thirty (30) days prior written notice, Pacific Servers may change any fees payable under this Agreement.
The term of this Agreement shall begin upon the date of commencement of the Services and continue until terminated in accordance with the terms hereof. After initial commencement of the Services, either party may terminate this Agreement: (i) for convenience on thirty (30) days written notice to the other party, or (ii) if the other party (1) commits a material default (which, in your case, will include any failure to make any payment when due) and fails to rectify such default within ten (10) days after being given notice of such default by the other party, or (2) becomes the subject of any voluntary proceedings under any bankruptcy or insolvency laws, or becomes the subject of any involuntary proceedings under any bankruptcy or insolvency laws which are not dismissed or withdrawn within sixty (60) days after filing.
Cancellation requests from you must be made using the "Customer Portal" control panel or in writing with your signature or a signature of an authorized representative and sent to Pacific Servers at the contact information listed below.
Service downgrades (for instance, when changing to a service package that offers fewer options) will take effect at the account's anniversary date only (an account anniversary date corresponds to the day of the month at which an account was opened). For instance, if an account was opened on September 8th, this account may be downgraded on the 8th of each month. Service upgrades, however, may take effect at any time, but will be subject to Pacific Servers' standard provisioning times.
Fees incurred for Services are non-refundable. Upon your order of Services, Pacific Servers reserves space, equipment and resources for your needs. You must pay all charges and fees for Services ordered, even if you are not making any or limited use of such Services.
You hereby authorize Pacific Servers and give consent to Pacific Servers under applicable privacy laws for Pacific Servers to obtain credit information and bank and other financial references regarding you for the purposes of assessing your credit worthiness, and you will promptly execute and deliver to Pacific Servers such further documents and assurances and take such further actions as Pacific Servers may from time to time reasonably request in order to carry out the intent and purpose of this section.
Pacific Servers will provide 100% transit to the Internet to all the customers who have purchased said service from Pacific Servers. If a complete network outage in connection with the Services should occur in a given month, Pacific Servers will compensate you with a credit equivalent to one day of service for each full hour during which the complete network outage subsists. The credit can be claimed only up to the monthly amount paid for the applicable Services, and may be applied against future fees owing from you to Pacific Servers. Outage is defined by failed PING commands to the IP address of the server hosting your website, provided that in no event will it be considered an outage if you have disabled ICMP responses or otherwise limited the ability of such server to respond to PING commands. This outage must be directly caused by problems in the connection linking Pacific Servers to the Internet and must be verifiable from multiple external Internet hosts. The foregoing guarantee is limited to network unavailability on the network operated by Pacific Services and the hardware owned by Pacific Servers, and excludes unavailability caused by, in whole or in part, to Customer Equipment. The foregoing guarantee is in no case applicable to external network problems that might cause local perturbations for some internet service providers. The foregoing guarantee is in no case applicable to unavailability caused by hardware or software malfunctions, unavailability caused by a breach of the Acceptable Use Policy, unavailability caused by a network slowdown, unavailability caused by planned maintenance activities or by any event that is not directly under Pacific Servers' direct control. Any request for credit concerning a problem other than network uptime will be analyzed and treated individually as an independent request which is not subject to the network uptime guarantee. The applicability of the foregoing guarantee shall be determined by Pacific Servers, acting reasonably.
Pacific Servers guarantees to its dedicated server clients that defective PSI Equipment will be replaced within four (4) hours of Pacific Servers being notified by you of the problem in writing. In case of hardware unavailability, a temporary server of similar specifications (if available) will be offered to you. If the hardware replacement of PSI Equipment has not be completed within four (4) hours and a temporary server has not been made available within such period, Pacific Servers will compensate you with a credit equivalent to one day for each full hour of unavailability after the first four (4) hours. The credit can be claimed only up to the monthly amount paid for the applicable Services which are affected by the defective PSI Equipment, and may be applied against future fees owing from you to Pacific Servers. The foregoing guarantee is limited to PSI Equipment, and does not apply to Customer Equipment. The foregoing guarantee provides for the replacement of the defective PSI Equipment and the basic re-installation of the relevant operating system (if applicable and if necessary). Once back online, the server will be substantially identical to when it was first delivered. The foregoing guarantee does not include data backup nor data restoring. The foregoing guarantee only applies to critical hardware failures that affect the availability of the server, and applicability of the guarantee shall be determined by Pacific Servers, acting reasonably.
You are solely responsible for your content or data stored on PSI Equipment or Customer Equipment or any other content submitted or stored by you or on your behalf on PSI Equipment or Customer Equipment in connection with your use of the Services (collectively, "Content"). You acknowledge and agree that you are solely responsible for all Content you submit, provide or upload and the consequences for submitting, providing or uploading it. You represent and warrant that you own such Content or have the necessary licenses, rights, consents and permissions to use such Content in connection with the Services and otherwise. Pacific Servers will use your Content solely in connection with providing the Services to you and for no other reason. You agree that by uploading, or otherwise providing any Content in connection with the Services and storing such Content on PSI Equipment or Customer Equipment, you grant to Pacific Servers a worldwide, non-exclusive, royalty-free license to use, reproduce, process and display, all or any portion of such Content, solely in connection with providing the Services to you. You represent and warrant that you own your Content or have the necessary licenses, rights, consents and permissions to grant the license set forth herein and that its provision to Pacific Servers and Pacific Servers’ use thereof will not violate the copyrights, privacy rights, publicity rights, trademark rights, contract rights or any other intellectual property rights or other rights of any person or entity. You agree that Pacific Servers is not responsible for any violations of any third party intellectual property rights in any Content that you submit or store through the Services. You agree to pay all royalties, fees and any other monies owing to any person by reason of Content submitted or stored through the Services.
All right, title, interest and ownership and intellectual property rights in and to the Pacific Servers trademarks and the Services, including but not limited to their "look and feel" (e.g., text, graphics, images, logos, buttons, icons and the placement and layout thereof), images, video, audio, data, content, software (including html-based computer programs) and other media, material or information, other than your Content, are and will remain the property of Pacific Servers or its software or content suppliers. The Services are protected under Canada, United States and international copyright, trademark and other laws and treaties.
You acknowledge that any ideas, suggestions, concepts, processes or techniques which you provide to Pacific Servers related to the Services or Pacific Servers or its business ("Feedback") shall become Pacific Servers' property without any compensation or other consideration payable to you by Pacific Servers, and you do so of your own free will and volition. Pacific Servers may or may not, in its sole discretion, use or incorporate the Feedback in whatever form or derivative Pacific Servers may decide into the Site, its Services, documentation, business or other products, or any future versions or derivatives of the foregoing. You hereby assign all rights on a worldwide basis in perpetuity to Pacific Servers in any Feedback and, as applicable, waive any moral rights therein.
Pacific Servers retains the right to use, sell or distribute any Aggregated Data generated by our customers or users. "Aggregated Data" means records which have been stripped of information potentially identifying users, and which have been manipulated and/or combined to provide generalized, anonymous information.
You agree to safeguard, keep secret and not to disclose to any third party, any Confidential Information acquired, learned or provided from Pacific Servers during the term of this Agreement or following the expiration or termination of this Agreement. "Confidential Information" means any information marked confidential or that ought reasonably to be considered confidential under the circumstances and includes, without limitation, any business plans, customer lists, operation procedures, trade secrets, design formulas and programming code, know-how and processes, computer programs and inventions, discoveries, and improvements of any kinds.
YOUR USE OF THE SERVICES AND ALL EQUIPMENT, APPLICATIONS AND CONTENT FORMING PART OF OR RELATED TO SERVICES, INCLUDING ANY CONTENT YOU UPLOAD OR SUBMIT AND ANY THIRD PARTY SOFTWARE AND CONTENT, ARE AT YOUR SOLE RESPONSIBILITY AND RISK. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, PACIFIC SERVERS EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, SYSTEM INTEGRATION, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PACIFIC SERVERS OR THROUGH OR FROM THE SITE OR THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, PACIFIC SERVERS IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY THIRD-PARTY PROVIDER OF ANY CONTENT, SERVICE, NETWORK, SOFTWARE OR HARDWARE, INCLUDING BUT NOT LIMITED TO, INTERNET SERVICE PROVIDERS, POWER PROVIDERS, CONTENT PROVIDED BY OTHER CUSTOMERS, OR ANY SOFTWARE OR HARDWARE NOT PROVIDED BY PACIFIC SERVERS.
The Services are offered and controlled by Pacific Servers from its facilities in Canada. Pacific Servers makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
YOU AGREE THAT, UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT OR TORT, SHALL PACIFIC SERVERS OR ITS SUBSIDIARIES AND AFFILIATES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, SHAREHOLDERS, EMPLOYEES AND REPRESENTATIVES, BE LIABLE TO YOU OR ANY THIRD PARTY ACTING ON YOUR BEHALF FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES OR THE COST OF ANY SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES (EVEN IF PACIFIC SERVERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF OR YOUR INABILITY TO USE THE SERVICES, OR FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR ANY SERVICE ORDER.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, PACIFIC SERVERS' AGGREGATE LIABILITY UNDER THIS AGREEMENT OR OTHERWISE ARISING FROM YOUR USE OF THE SERVICES IS LIMITED TO THE TOTAL AMOUNTS YOU ACTUALLY PAID TO PACIFIC SERVERS IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF LOSS OR DAMAGE. TO THE EXTENT ANY PROVINCE, STATE OR JURISDICTION DOES NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, PACIFIC SERVERS' AGGREGATE LIABILITY IN SUCH PROVINCE, STATE OR JURISDICTION SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
You agree to indemnify, defend, and hold harmless Pacific Servers, and its subsidiaries and affiliates, and each of their respective officers, directors, agents, shareholders, employees and representatives, from and against any claim, demand, loss, damage, cost, or liability (including, reasonable attorneys' fees) arising out of or relating to: (a) your breach or alleged breach of this Agreement; (b) claims asserted by third parties relating to your Content or data stored on PSI Equipment or Customer Equipment or any other content submitted or stored by you or on your behalf on PSI Equipment or Customer Equipment in connection with your use of the Services; and (c) your violation of any rights, including intellectual property rights, of a third party. Pacific Servers reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Pacific Servers and you agree to cooperate with Pacific Servers' defense of these claims. You agree not to settle any matter without the prior written consent of Pacific Servers. Pacific Servers will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
You, in the normal course of your business, may resell to your customers use (subject to all the terms of this Agreement) of the storage space provided as part of the Services pursuant to this Agreement, except that you will not allow such customers to interconnect with other users in the Premises. Any act or omission of any such customer that would be a breach of this Agreement if committed by you will be deemed a breach of this Agreement by you. You agree to, in accordance with the terms and process set forth in the "Indemnity" section above, indemnify, defend, and hold harmless Pacific Servers, and its subsidiaries and affiliates, and each of their respective officers, directors, agents, shareholders, employees and representatives, from and against any claim, demand, loss, damage, cost, or liability (including, reasonable attorneys' fees) arising out of or relating to: (a) any act or omission of any such customer that would be a breach of this Agreement if committed by you, and (b) any claim by any such customer arising from use of the Premises or the Services or otherwise from performance or non-performance by a party in any manner related to this Agreement.
If there is any dispute between you and Pacific Servers about or involving this Agreement, the Site or the Services, you hereby agree that the dispute shall be governed by and construed in accordance with the laws of the Province of British Columbia, Canada, without regard to its conflict of law provisions. You hereby agree to submit to the exclusive jurisdiction of the courts in Vancouver, British Columbia with respect to any claim, proceeding or action relating to or otherwise arising out of this Agreement, the Site or the Services, howsoever arising, provided always that Pacific Servers may seek and obtain injunctive relief in any jurisdiction.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.
You agree that this Agreement is specifically enforceable by injunctive relief and other equitable remedies without proof of monetary damages.
You agree that if Pacific Servers does not exercise or enforce any legal right or remedy which is contained in the Agreement (or which Pacific Servers has the benefit of under any applicable law), this will not be taken to be a formal waiver of Pacific Servers' rights and that those rights or remedies will still be available to Pacific Servers.
Pacific Servers will be not be liable for any delay, interruption or failure in the performance of its obligations if caused by acts of God, war, declared or undeclared, fire, flood, storm, slide, earthquake, or other similar event beyond the reasonable control of Pacific Servers ("Force Majeure"). If any Force Majeure occurs, Pacific Servers will promptly notify you, and will use commercially reasonable efforts to eliminate or remedy the Force Majeure.
The sections of "Default by Customer", "Payments", "Refund Policy; Payment Obligation", "Responsibility for Content", "Intellectual Property Rights", "Confidential Information", "Disclaimer of Warranties", "Limitation of Liability", "Indemnity", "Miscellaneous" and any other sections or terms that ought reasonably to survive termination or expiration will survive any actual or purported termination or expiry of this Agreement and continue in full force and effect.
You may contact Pacific Servers by email at support@pacificservers.com or by mail at Pacific Servers Inc., 718-333 Brooksbank Ave, Suite 254, North Vancouver, BC, V7J 3V8, Canada.