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1. Term and Payment for Services
1.1. Term and Termination. This Agreement shall be for
successive one month terms, automatically renewed each month unless
cancelled by you by notice given and received at least two days
before the your renewal date. Any notice of termination will be
effective at the end of the current prepaid period.
1.2. Default and Cure. In the event that either party hereto
defaults in the performance of any of its material duties or obligations
under this Agreement, including failure to make any payments due
under this Agreement, and such default is not cured within 15 days
after written notice is given to the defaulting party specifying
the default, then the party not in default, after given written
notice (including by email) thereof to the defaulting party, may
terminate this Agreement. Notwithstanding any other provision herein,
Pacific Online may terminate this Agreement immediately if it determines,
in good faith, that the customer has violated Pacific Online's
Acceptable Usage Policy.
1.3. Charges. You agree to pay for all charges attributable
to your use of the Services at the then current Pacific Online
prices, which shall be exclusive of any applicable taxes. You are
responsible for the payment of all federal, provincial, state and
local sales, use, value added, goods and services, excise, duty
and any other taxes assessed with respect to the Services, other
than taxes based on Pacific Online's net income.
1.4. Payment. Upon entering this Agreement, you must choose
to pay either by cheque or direct charge to a credit card. If you
choose to pay by credit card upon registering for the Services,
you thereby authorize Pacific Online to charge your credit card
to pay for any charges that may apply to your account. You agree
that Pacific Online may accumulate any supplemental charges, incurred
by you in your use of the Services ("Supplemental Charges")
until your monthly bill date and then charge your account. You
must notify Pacific Online of any changes to your card account
(including, without limitation, applicable account number or cancellation
or expiration of the account), your billing address, or any information
that may prohibit Pacific Online from charging your account. If
you fail to pay any fees and taxes within five days from applicable
due date for credit card or invoice payments, late charges of the
lesser of 1.5% per month or the maximum allowable under applicable
law shall also become payable by you to Pacific Online. In addition,
your failure to fully pay any fees and taxes within seven days
after the applicable due date will be deemed a material breach
of this Agreement, justifying Pacific Online's suspension of its
performance of the Services and/or termination of this Agreement.
You are responsible for any fees associated with reinstatement
of Services. Any such suspension or termination would not relieve
you from paying past due fees plus interest. In the event of collection
enforcement, you will be liable for any costs associated with such
collection, including, without limitation, reasonable attorneys'
fees, court costs and collection agency fees. If any cheque is
returned for insufficient funds, Pacific Online may impose a processing
charge of $25.
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2. Use of Services
2.1. Applicable Use Policy. Pacific Online's Acceptable
Use Policy (the "Usage Policy") governs the general policies
and procedures for use of the Services. The Usage Policy is posted
on Pacific Online's Web site (or such other location as Pacific
Online may specify) and may be updated from time-to-time. YOU SHOULD
CAREFULLY READ THE USAGE POLICY. BY USING THE SERVICES, YOU AGREE
TO BE BOUND BY THE TERMS OF THE USAGE POLICY AND ANY MODIFICATIONS.
PACIFIC ONLINE RESERVES THE RIGHT TO TERMINATE YOUR ACCOUNT FOR
ANY VIOLATION OF THE ACCEPTABLE USAGE POLICY OR THIS AGREEMENT.
2.2. Material and Product Requirements. 2.2. Material and
Product Requirements. Use of the Services requires a certain level
of knowledge in the use of Internet languages, protocols and software.
This level of knowledge varies, depending on the anticipated use
and desired content of your Web site. You must have the necessary
knowledge to create and maintain a Web site, and it is not Pacific
Online’s responsibility to provide this knowledge or customer
support outside of the Services agreed to by you and Pacific Online.
Unless we have agreed otherwise in a separate agreement, you must
ensure that all material including text, graphics, photographs,
drawings, sound, video, names, logos, hypertext links to other
websites, data and other material placed by you (“Customer
Material”) on Pacific Online’s equipment is in a condition
that is “server-ready,” which is in a form requiring
no additional manipulation by Pacific Online and which will permit
stable, continuous operation of the servers on which it is hosted
without interruption or interference. Pacific Online will make
no effort to validate any Customer Material for operability, stability,
content, correctness or usability. If any Customer Material is
not “server-ready”, Pacific Online has the option at
any time to reject this material. Pacific Online will notify you
of its refusal of the material and afford you the opportunity to
amend or modify the material to satisfy the needs and requirements
of Pacific Online. If any Customer Material interrupts or interferes
in any way with the servers on which it is hosted, Pacific Online
has the option of taking down the site without prior notice to
you.
2.3. Bandwidth and Storage Usage. You agree that use of
the Services under this Agreement will not exceed the bandwidth
and storage usage limits set out. If you use any bandwidth or storage
space in excess of the agreed upon number of megabytes per month,
you agree to pay the associated additional charges.
2.3.1 Bandwidth Availability. Your account will have a
specified maximum capacity per month, which will depend upon the
plan you have chosen. If in any month the actual traffic exceeds
this maximum capacity, you will be charged for the excess at the
then-current rate, which will be posted on Pacific Online's website.
2.3.2 Disk Space Overages. Disk space overages shall be
determined and charged for daily on the basis of the excess amount
of disk space used by you as of the time of determination, at the
same cost per megabyte as provided for in the plan you have chosen.
2.4. No Modification to Customer Material. Pacific Online
will not make any modifications to any Customer Material made available
online by you before it is transmitted to subsequent users.
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3. Enforcement
3.1. Investigation of Violations. Pacific Online may investigate
any reported or suspected violation of this Agreement, its policies
or any complaints and take any action that it deems appropriate
and reasonable under the circumstance to protect its systems, facilities,
customers and/or third parties. Pacific Online will not access
or review the contents of any e-mail or similar stored electronic
communications except as required or permitted by applicable law
or legal process.
3.2. Actions. Pacific Online reserves the right and has
absolute discretion to restrict or remove from its servers any
Customer Material that violates this Agreement or related policies
or guidelines, or is otherwise objectionable or potentially infringing
on any third party's rights or potentially in violation of any
laws. If we become aware of any possible violation by you of this
Agreement, any related policies or guidelines, third party rights
or laws, Pacific Online may immediately take corrective action,
including, but not limited to, (a) issuing warnings, (b) suspending
or terminating the Service, (c) restricting or prohibiting any
and all uses of content hosted on Pacific Online's systems and
(d) disabling or removing any Customer Material including hypertext
links to third-party Web sites, any of your content distributed
or made available for distribution via the Services, or other content
not supplied by Pacific Online which, in Pacific Online's sole
discretion, may violate or infringe any law or third-party rights
or which otherwise exposes or potentially exposes Pacific Online
to civil or criminal liability or public ridicule. It is Pacific
Online's policy to terminate repeat infringers. Pacific Online's
right to take corrective action, however, does not obligate us
to monitor or exert editorial control over the information made
available for distribution via the Services. If Pacific Online
takes corrective action due to such possible violation, Pacific
Online shall not be obligated to refund to you any fees paid in
advance of such corrective action.
3.3. Disclosure Rights. To comply with applicable laws
and lawful governmental requests, to protect Pacific Online's systems
and customers, or to ensure the integrity and operation of Pacific
Online's business and systems, Pacific Online may access and disclose
any information it considers necessary or appropriate, including,
without limitation, user profile information (such as name, e-mail
address), IP addressing and traffic information, usage history,
and content residing on Pacific Online's servers and systems. Pacific
Online also reserves the right to report any activity that it suspects
violates any law or regulation to appropriate law enforcement officials,
regulators, or other appropriate third parties.
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4. Intellectual Property Rights
4.1. Grant to Pacific Online. You hereby grant to Pacific
Online a non-exclusive, worldwide and royalty-free license for
the initial term and any renewal term to use the Customer Material
as necessary for the purposes of rendering and operating the Services
to you under this Agreement. You expressly (a) grant to Pacific
Online a license to cache and make archival or back-up copies of
Customer Material including content supplied by third parties,
and (b) agree that such caching and making of copies is not an
infringement of any of your intellectual property rights or any
third party's intellectual property rights. Except for the rights
expressly granted above, Pacific Online is not acquiring any right,
title or interest in or to your Customer Material.
4.2. Pacific Online Materials and Intellectual Property. All
materials including but not limited to any computer software (in
object code and source code form) data or information developed
or provided by Pacific Online or its suppliers or agents pursuant
to this Agreement, and any know-how, methodologies, equipment,
or processes used by Pacific Online to provide the Services to
you including without limitation all copyrights, trademarks, patents,
trade secrets and other proprietary rights are and will remain
the sole and exclusive property of Pacific Online or its suppliers,
including but not limited to any software programs, inventions,
products and technology innovations and methodologies utilized,
developed or disclosed by Pacific Online during the term of this
Agreement. Unauthorized copying, reverse engineering, decompiling
and creating derivative works based on the any such software is
expressly forbidden except as permitted in this Agreement. You
may be held legally responsible for violation of any patent rights,
copyright or trade secret rights that is caused or encouraged by
failure to abide by the terms of this Agreement.
4.3. Trademarks. You hereby grant to Pacific Online a limited
right to use your trademarks, if any, for the limited purpose of
permitting Pacific Online to fulfill its duties under this Agreement.
This is not a trademark license and no other rights relating to
the trademarks are granted by this Agreement. Specifically, but
without limitation, the rights granted by this Agreement do not
include the right to sublicense use of your trademarks or to use
your trademarks with any other products or services outside the
scope of the Services provided under this Agreement. The limited
trademark use rights granted under this section terminate upon
termination of this Agreement.
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5. Warranty; Warranty Disclaimer
5.1. Customer and Third Party Acts. Pacific Online is not
responsible in any manner for any nonconforming Services to the
extent caused by you or your customers. In addition, Pacific Online
is not responsible for loss or corruption of data in transmission
or for failure to send or receive data due to events beyond Pacific
Online's reasonable control.
5.2. No Express or Implied Warranty. ALL SERVICES, SYSTEMS
AND PRODUCTS PROVIDED BY PACIFIC ONLINE UNDER THIS AGREEMENT ARE
PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTY IN FACT OR IN
LAW, WHATSOEVER. YOU ACKNOWLEDGE AND AGREE THAT PACIFIC ONLINE
EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, THE
CONTENT OF THE INFORMATION PASSING THROUGH PACIFIC ONLINE'S COMPUTERS,
NETWORK HUBS AND POINTS OF PRESENCE, OR THE INTERNET. PACIFIC ONLINE
DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED
OR ERROR-FREE, OR THAT ANY OF YOUR DATA WILL NOT BE IRRETREIVABLY
LOST AND PERMANENTLY UNAVAILABLE TO YOU. ALL SERVICES PERFORMED
UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT
WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING WITHOUT LIMITATION
ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION SYSTEMS.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, PACIFIC ONLINE
DOES NOT MAKE AND HEREBY DISCLAIMS, AND YOU HEREBY WAIVE ALL RELIANCE
ON, ANY REPRESENTATIONS OR WARRANTIES ARISING BY LAW OR OTHERWISE
REGARDING THE SERVICES INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONDITIONS
OF QUALITY, AND ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT,
TRADESECRET OR TRADEMARK INFRINGEMENT.
5.3. Your Warranties and Representations to Pacific Online. You
warrant, represent, and covenant to Pacific Online that (a) you
are at least 18 years of age or are a duly organized and validly
existing entity; (b) you possess the legal right and ability to
enter into this Agreement; (c) you will use the Services only for
lawful purposes and in accordance with this Agreement and all applicable
policies and guidelines; (d) you will be financially responsible
for the use of your account; (e) you have acquired or will acquire
all authorizations necessary for all Customer Material including
hypertext links to third-party Web sites; (f) you have verified
or will verify the accuracy of all Customer Material including
without limitation any descriptive claims, warranties, guarantees,
nature of business and address where business is conducted, and
(g) your Customer Material does not and will not infringe or violate
any right of any third party (including any copyright, trade secret
or other rights of any description whatsoever) or violate any applicable
law, regulation or ordinance.
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6. Limitation and Exclusion of Pacific Online's
Liability
6.1. Limitations. IN NO EVENT SHALL PACIFIC ONLINE HAVE
ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT,
LOSS OR DESTRUCTION OF INFORMATION OR DATA DISTRIBUTED OR MADE
AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT
MEANS OR DEVICES. PACIFIC ONLINE SHALL HAVE NO LIABILITY UNDER
THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL,
INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF PACIFIC ONLINE HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY
OF PACIFIC ONLINE TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION
SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO PACIFIC ONLINE
BY YOU UNDER THIS AGREEMENT DURING THE 90 DAYS IMMEDIATELY PRECEDING
THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO
ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION,
TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY,
MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES
SET BY PACIFIC ONLINE UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE
TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU HEREBY
RELEASE PACIFIC ONLINE FROM ANY AND ALL OBLIGATIONS, LIABILITIES,
AND CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS SECTION 6.1.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION
OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS,
OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
6.2. Interruption of Service. You hereby acknowledge and
agree that Pacific Online will not be liable for any delay, outages
or interruptions of the Services. Further, Pacific Online shall
not be liable for any delay or failure to perform its obligations
under this Agreement, where such delay or failure results from
any act of God or other cause beyond its reasonable control (including,
without limitation, any mechanical, electronic, communications
or third-party supplier failure).
6.3. Indemnification. You will defend, indemnify and hold
harmless Pacific Online and its officers, directors, shareholders,
employees, consultants, agents, affiliates and suppliers (each,
an "Indemnitee") from any and all threatened or actual
claims, demands, causes of action, suits, proceedings (formal or
informal), losses, damages, fines, penalties, liabilities, costs
and expenses of any nature, including reasonable attorneys' fees
and court costs, sustained or incurred by or asserted against any
Indemnitee by any person, firm, corporation, governmental authority,
partnership or other entity by reason of or arising out of or relating
to: (a) your violation or breach of any term, condition, representation
or warranty of this Agreement or any applicable policy or guideline;
(b) your conduct, including but not limited to your negligence,
gross negligence, or wilful misconduct; (c) your improper or illegal
use of the Services; (d) any claim by a former employee of yours
whose employment has been or may be terminated in connection with
or as a result of the execution of this Agreement and performance
of the Services by Pacific Online; or (e) any claim relating to
your Customer Material, services or products, including but not
limited to advertising, product liability claims or infringement
of any trademark, copyright, patent, trade secrets or non-proprietary
right of a third party (including, without limitation, defamation,
libel, or violation of privacy or publicity).
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7. Miscellaneous
7.1. Confidentiality. The parties each agree that all Confidential
Information (as defined below) communicated to it by the other
is done so in confidence and will be used only for the purposes
of this Agreement and will not be used to compete with the other
party or disclosed to any third party without the prior written
consent of the other party except as permitted under this Agreement. "Confidential
Information" means all information in any form, including,
without limitation, printed or verbal communications and information
stored in printed, optical or electromagnetic format, which relates
to the Services; or computer, data processing or electronic commerce
programs and software; electronic data processing applications,
routines, subroutines, techniques or systems; information which
incorporates or is based upon proprietary information of either
party; or information concerning business or financial affairs,
product pricing, financial conditions or strategies, marketing,
technical systems of either party; or any information concerning
customers or vendors of either party; or any data exchange between
a party and any customers or vendors. Exceptions to Confidential
Information include (a) information in the public domain; (b) information
developed independently by a party without reference to information
disclosed under this Agreement; or (c) information received from
a third party without restriction and/or breach of this or a similar
Agreement. It is not a violation of this provision to disclose
Confidential Information in compliance with any legal, accounting
or regulatory requirement beyond the control of either Party or,
but in such case, prior to disclosure, the disclosing Party shall
give written notice to the other Party to permit that Party an
opportunity to challenge such disclosure. If either Party is subpoenaed,
such Party shall give written notice to the other Party to permit
that Party an opportunity to challenge the disclosure of Confidential
Information. Upon the termination of this Agreement and upon written
request of the disclosing Party, each Party shall promptly return
all Confidential Information of the other Party. This provision
shall survive the termination of this Agreement for two years.
7.2. Notices. All notices, reports, requests, or other
communications given pursuant to this Agreement shall be made in
writing, shall be delivered by hand delivery, overnight courier
service, fax, or electronic mail, shall be deemed to have been
duly given when delivered.
7.3. Choice of Law and Forum. THIS AGREEMENT, WILL BE GOVERNED
BY THE LAWS OF THE PROVINCE OF BRITISH COLUMBIA AND THE FEDERAL
LAWS OF CANADA APPLICABLE THEREIN, WITHOUT REFERENCE TO RULES GOVERNING
CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT
IN THE COURTS OF THE PROVINCE OF BRITISH COLUMBIA LOCATED IN VANCOUVER,
BRITISH COLUMBIA, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION
OF SUCH COURTS. THIS AGREEMENT WILL NOT BE GOVERNED BY THE UNITED
NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS,
THE APPLICATION OF WHICH IS EXPRESSLY EXCLUDED.
7.4. Entire Agreement. This Agreement and all policies
and guidelines incorporated in this Agreement by reference constitutes
the entire Agreement of the parties and may not be modified or
altered orally but only by an agreement in writing signed by both
parties.
7.5. No Fiduciary Relationship; No Third-Party Beneficiaries. Pacific
Online is not the agent, fiduciary, trustee or other representative
of you. Nothing expressed or mentioned in or implied from this
Agreement is intended or shall be construed to give to any person
other than the parties hereto any legal or equitable right, remedy
or claim under or in respect to this Agreement. This Agreement
and all of the representations, warranties, covenants, conditions
and provisions hereof are intended to be and are for the sole and
exclusive benefit of the parties hereto.
7.6. Assignments. You may not transfer or assign your rights,
duties, or obligations under this Agreement without Pacific Online's
prior written consent. Pacific Online may assign its rights and
obligations under this Agreement and may utilize affiliate or agents
in performing its duties and exercising its rights under this Agreement,
without your consent. Subject to that restriction, this Agreement
will be binding on, inure to the benefit of and be enforceable
against the parties and their respective personal representatives,
successors and assignees.
7.7. No Waiver. Pacific Online's failure to enforce the
strict performance of any provision of this Agreement will not
constitute a waiver of Pacific Online's right to subsequently enforce
such provision or any other provisions under this Agreement.
7.8. Severability. If any provision of this Agreement is
deemed illegal, invalid, void or otherwise unenforceable in whole
or in part, that provision shall be severed or shall be enforced
only to the extent legally permitted, and the remainder of the
provision and the Agreement shall remain in full force and effect.
If any provision of this Agreement is deemed to be invalid, void
or unenforceable only with respect to a particular application,
such term or provision shall remain in full force and effect with
respect to all other applications.
7.9. Survival. All provisions of this Agreement relating
to your warranties, intellectual property rights, limitation and
exclusion of liability, your indemnification obligations and payment
obligations shall survive the termination or expiration of this
Agreement.
7.10. Electronic Acceptance. You agree that by clicking
on the "I Accept" button during signup and registering
for and using the Services, you have read this Agreement and agree
to be bound by the terms and conditions contained herein as well
as the Pacific Online AUP.
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