Terms and Conditions

The terms and conditions in the “GENERAL TERMS AND CONDITIONS” section below are applicable to all Services. Additional terms and conditions may apply to the Internet and the Voice Services provided by ISN affiliated entity(ies) (“Affiliate”) and should be reviewed in either the “ADDITIONAL TERMS APPLICABLE TO INTERNET SERVICE” section, or the “ADDITIONAL TERMS APPLICABLE TO VOICE SERVICE” section, as applicable.

By purchasing the Services, CUSTOMER AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. They affect the legal rights between Customer and ISN by, among other things, requiring (1) mandatory ARBITRATION of disputes; (2) charging an EARLY TERMINATION FEE; and (3) LIMITING ISN’s LIABILITY under the Agreement. Customer acknowledges that they are of legal age and legally authorized to enter into this Agreement.

GENERAL TERMS AND CONDITIONS

ARTICLE 1. DEFINITIONS

1. Affiliate: Any entity that controls, is controlled by or is under common control with ISN.

2. Agreement: These terms and conditions and the Order executed by Customer.

3. ISN Equipment: Any and all facilities, equipment or devices provided by ISN or its authorized contractors at the Service Location(s) that are used to deliver any of the Services including, but not limited to, all terminals, wires, modems, lines, circuits, ports, routers, gateways, switches, channel service units, data service units, cabinets, and racks. Notwithstanding the above, inside telephone wiring, whether or not installed by ISN, shall not be considered ISN Equipment.

4. Confidential Information: All information regarding either party’s business which has been marked or is otherwise communicated as being “proprietary” or “confidential.” or which reasonably should be known by the receiving party to be proprietary or confidential information. Without limiting the generality of the foregoing, Confidential Information shall include, even if not marked, the Agreement, all Licensed Software, promotional materials, proposals, quotes, rate information, discount information, subscriber information, network upgrade information and schedules, network operation information (including without limitation information about outages and planned maintenance) and invoices, as well as the parties’ communications regarding such items.

5. Customer-Provided Equipment: Any and all facilities, equipment or devices supplied by Customer for use in connection with the Services.

6. Licensed Software: Computer software or code provided by ISN or required to use the Services, including without limitation, associated documentation, and all updates thereto.

7. Order: A request for ISN to provide the Services to Service Location(s) submitted by Customer to ISN (a) on a then current ISN form designated for that purpose or (b) if available, through a ISN electronic order processing system designated for that purpose.

8. Party: A reference to ISN or the Customer; and in the plural, a reference to both companies.

9. Service(s): The technical expertise, labor, materials, and third-party services such as Internet, Toll Free Trunk and Voice services provided by ISN to Customer described in one or more Order(s). All Services are for commercial use only, except as otherwise expressly permitted herein.

10. Service Commencement Date: The date(s) on which ISN first renders Service to a Customer or makes Service available for use by Customer. A single Order containing multiple Services or Service Locations may have multiple Service Commencement Dates.

11. Service Location(s): The Customer location(s) where ISN provides the Services.

12. Service Term: The duration of time (commencing on the Service Commencement Date) for which Services are ordered, as specified in an Order.

13. Tariff: A federal or state ISN tariff and the successor documents of general applicability that replace such tariff in the event of detariffing.

14. Termination Charges: Charges that may be imposed by ISN if, prior to the end of the applicable Service Term (a) ISN terminates Services for cause or (b) Customer terminates Services without cause. Termination Charges with respect to each terminated Managed Services Agreement shall equal, in addition to all amounts payable by Customer in accordance with Section 3, one hundred percent (100%) of the remaining fees that would have been payable by Customer under the Order if the Services described in the Order had been provided by ISN completely and/or until the end of the applicable Service Term. In the event the Agreement is terminated as herein described during the initial Service Term, Termination Charges shall also include one hundred percent (100%) of any amount paid by ISN in connection with Custom Installation, as that term is defined in Section 2.7, for the Services provided by ISN under the Order.

ARTICLE 2. DELIVERY OF SERVICES
2.1 Orders. Customer shall submit to ISN a properly completed Order to initiate Services to a Service Location(s). An Order shall become binding on the parties when (i) it is specifically accepted by ISN either electronically or in writing, (ii) ISN begins providing the Services described in the Order or (iii) ISN begins Custom Installation (as defined in Section 2.7) for delivery of the Services described in the Order, whichever is earlier. When an Order becomes effective it shall be deemed part of, and shall be subject to, the Agreement.

2.2 Speed. ISN makes no representation regarding the speed of Internet Service. Actual speeds may vary and are not guaranteed. Many factors affect speed including, without limitation, the number of workstations using a single connection.

2.3 Access. Customer, at no cost to ISN, shall secure and maintain all necessary rights of access to Service Location(s) for ISN to provide the Services, unless ISN has secured such access prior to this Agreement. In addition, Customer shall provide an adequate environmentally controlled space and such electricity as may be required for installation, operation, and maintenance of equipment used to provide the Services within the Service Location(s). ISN and its employees and authorized contractors will require free ingress and egress into and out of the Service Location(s) in connection with the provision of Services. Upon reasonable notice from ISN, Customer shall provide all required access to ISN and its authorized personnel.

2.4 Service Completion Date. Upon final installation and connection of the necessary facilities and equipment to provide the Services, ISN shall notify Customer that the Services are completed and available for use, and the date of such notice shall be called the “Service Completion Date.” Any failure or refusal on the part of Customer to be ready to receive the Services on the Service Completion Date shall not relieve Customer of its obligation to pay ISN for Services rendered.

2.5 ISN Equipment. ISN Equipment is and shall remain the property of ISN regardless of where installed within the Service Location(s), and shall not be considered a fixture or an addition to the land or the Service Location(s). At any time ISN may remove or change ISN Equipment in its sole discretion in connection with providing the Services. Customer shall not move, rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any ISN Equipment or permit others to do so, and shall not use the ISN Equipment for any purpose other than that authorized by the Agreement. ISN shall maintain ISN Equipment in good operating condition during the term of this Agreement; provided, however, that such maintenance shall be at ISN’s expense only to the extent that it is related to and/or resulting from the ordinary and proper use of the ISN Equipment. Customer is responsible for damage to, or loss of, ISN Equipment caused by its acts or omissions, and its noncompliance with this Section, or by fire, theft or other casualty at the Service Location(s), unless caused by the negligence or willful misconduct of ISN. Customer agrees not to take any action that would directly or indirectly impair ISN’s title to the ISN Equipment, or expose ISN to any claim, lien, encumbrance, or legal process, except as otherwise agreed in writing by the Parties. Following ISN’s discontinuance of the Services to the Service Location(s), ISN retains the right to remove the ISN Equipment including, but not limited to, that portion of the ISN Equipment located within the Service Location(s). To the extent ISN removes such ISN Equipment, it shall be responsible for returning the Service Location(s) to its prior condition, wear and tear excepted.

2.6 Customer-Provided Equipment. All Customer-Provided Equipment that Customer provides to ISN in connection with the Services must be fully compatible with the Services. Customer shall be responsible for the payment of all charges for troubleshooting, maintenance or repairs attempted or performed by ISN’s employees or authorized contractors when the difficulty or trouble report results from Customer-Provided Equipment.

2.7 Engineering Review. Order submitted by Customer may be subject to an engineering review by ISN. The engineering review will determine whether ISN can meet the Customer’s requested Service Completion Date (”Custom Installation”) for the ordered Services at the requested Service Location(s). ISN will provide Customer written notification in the event Service installation at any Service Location will require an additional one-time installation fee (“Custom Installation Fee”). Customer will have five (5) days from receipt of such notice to reject the Custom Installation Fee and terminate, without further liability, the Order with respect to the affected Service Location(s).

2.8 Administrative Web Site. ISN may, at its sole option, make one or more administrative web sites available to Customer in connection with Customer’s use of the Services (each an “Administrative Web Site”). ISN may furnish Customer with one or more user identifications and/or passwords for use on the Administrative Web Site. Customer shall be responsible for the confidentiality and use of such user identifications and/or passwords and shall immediately notify ISN if there has been an unauthorized release, use or other compromise of any user identification or password. In addition, Customer agrees that its authorized users shall keep confidential and not distribute any information or other materials made available by the Administrative Web Site. Customer shall be solely responsible for all use of the Administrative Web Site, and ISN shall be entitled to rely on all Customer uses of and submissions to the Administrative Web Site as authorized by Customer. ISN shall not be liable for any loss, cost, expense or other liability arising out of any Customer use of the Administrative Web Site or any information on the Administrative Web Site. ISN may change or discontinue the Administrative Web Site, or Customer’s right to use the Administrative Web Site, at any time. Additional terms and policies may apply to Customer’s use of the Administrative Web Site. These terms and policies will be posted on the site.

ARTICLE 3. CHARGES, BILLING AND PAYMENT
3.1 Charges. Customer shall pay ISN one hundred percent (100%) of the Custom Installation Fee prior to the installation of Service. Customer further agrees to pay all charges associated with the Services, as set forth or referenced in the applicable Order(s), Estimate(s), or invoiced by ISN. These charges may include, but are not limited to installation charges, monthly recurring service charges, usage charges including without limitation charges for the use of ISN Equipment, per-call charges, charges for service calls, maintenance and repair charges, and applicable federal, state, and local taxes, fees, surcharges and recoupments (however designated). Some Services such as measured and per-call charges, (as explained below in the Voice Additional Terms) may be invoiced after the Service has been provided to Customer. Except as otherwise indicated herein or on the applicable Order(s), monthly recurring charges for Internet Services shall not increase during the initial Service Term.

ISN may change the price of Services, toll charges, plans, taxes or fees without any advance notice. For Customers on a Service Term, rates will not be increased during the initial Term, with the exception of government mandated tax changes and international toll calling rates. In the event of a change in prices or toll charges not covered by the Plan, ISN will post such changes to the website currently located at http://www.ISNGlobal.com (or any successor URL). International toll calling rates are updated monthly on the first of each month and no other notice shall be provided for changes to international toll calling rates.

3.2 Third-Party Charges. Customer may incur charges from third party service providers that are separate and apart from the amounts charged by ISN. These may include, without limitation, charges resulting from accessing on-line services, calls to parties who charge for their telephone-based services, purchasing or subscribing to other offerings via the Internet or interactive options on Public View Video, Video, or otherwise. Customer agrees that all such charges, including all applicable taxes, are Customer’s sole responsibility. In addition, Customer is solely responsible for protecting the security of credit card information provided to others in connection with such transactions.

3.3 Payment of Bills. Except as otherwise indicated herein or on the Order(s), ISN will invoice Customer in advance on a monthly basis for all monthly recurring Service charges and fees arising under the Agreement. All other charges will be billed monthly in arrears. Customer shall make payment to ISN for all invoiced amounts within thirty (30) days after the date of the invoice. Any amounts not paid to ISN within such period will be considered past due. If a Service Commencement Date is not the first day of a billing period, Customer’s next monthly invoice shall include a pro-rated charge for the Services, from the date of installation to the first day of the new billing. In certain cases, ISN may agree to provide billing services on behalf of third parties, as the agent of the third party. Any such third-party charges shall be payable pursuant to any contract or other arrangement between Customer and the third party. ISN shall not be responsible for any dispute regarding these charges between Customer and such third party. Customer must address all such disputes directly with the third party.

3.4 Partial Payment. Partial payment of any bill will be applied to the Customer’s outstanding charges in the amounts and proportions as solely determined by ISN. No acceptance of partial payment(s) by ISN shall constitute a waiver of any rights to collect the full balance owed under the Agreement.

3.5 Payment by Credit Card. Upon Customer’s written request and ISN’s acceptance of such request, ISN will accept certain credit card payments for charges generated under the Agreement. By providing ISN with a credit card number, Customer authorizes ISN to charge the card for all charges generated under this Agreement, until (i) this Agreement is terminated or (ii) Customer provides sixty (60) days prior notice that ISN stop charging the credit card. Customer agrees to provide ISN with updated credit card or alternate payment information on a timely basis prior to the expiration or termination of the credit card on file or in the event that Customer’s credit card limit is or will be insufficient to cover payment. If ISN is unable to charge Customer’s credit card for any reason, Customer agrees to pay all amounts due, including any late payment charges or bank charges, upon demand by ISN. ISN may limit the option to pay by credit card to specific Services or may discontinue acceptance of credit card payments in whole or in part upon thirty (30) days prior notice to Customer.

3.6 Credit Approval and Deposits. Initial and ongoing delivery of Services may be subject to credit approval. Customer shall provide ISN with credit information requested by ISN. Customer authorizes ISN to make inquiries and to receive information about Customer’s credit history from others and to enter this information in Customer’s records. Customer represents and warrants that all credit information that it provides to ISN will be true and correct. ISN, in its sole discretion, may deny the Services based upon an unsatisfactory credit history. Additionally, subject to applicable regulations, ISN may require Customer to make a deposit (in an amount not to exceed an estimated two-month’s charge for the Services) as a condition to ISN’s provision of the Services, or as a condition to ISN’s continuation of the Services. The deposit will not, unless explicitly required by law, bear interest and shall be held by ISN as security for payment of Customer’s charges. If the provision of Service to Customer is terminated, or if ISN determines in its sole discretion that such deposit is no longer necessary, then the amount of the deposit will be credited to Customer’s account or will be refunded to Customer, as determined by ISN.

3.7 Taxes and Fees. Customer shall be responsible for the payment of any and all applicable local, state, and federal taxes or fees (however designated). Customer will be responsible to pay any Service fees, payment obligations and taxes that become applicable retroactively.

3.8 Other Government-Related Costs and Fees. ISN reserves the right to invoice Customer for any fees or payment obligations in connection with the Services imposed by governmental or quasi-governmental bodies in connection with the sale, installation, use, or provision of the Services, including, without limitation, applicable franchise fees (if any), regardless of whether ISN or its Affiliates pay the taxes directly or are required by an order, rule, or regulation of a taxing jurisdiction to collect them from Customer.. These obligations may include those imposed on ISN or its affiliates by an order, rule, or regulation of a regulatory body or a court of competent jurisdiction, as well as those that ISN or its affiliates are required to collect from the Customer or to pay to others in support of statutory or regulatory programs. For example, Voice customers are charged a monthly regulatory recovery fee to help defray ISN’s contributions to municipal, state, and federal programs including, without limitation, universal service, telecom relay services for the visually/hearing impaired, and 911/E911 programs and infrastructure. This regulatory recovery fee is not a tax, and it is not government mandated. Taxes and other government-related fees and surcharges may be changed with or without notice.

3.9 Disputed Invoice. If Customer disputes any portion of an invoice, Customer must pay the undisputed portion of the invoice and submit a written claim, including all documentation substantiating Customer’s claim, to ISN for the disputed amount of the invoice by the invoice due date. The Parties shall negotiate in good faith to resolve the dispute. However, should the parties fail to mutually resolve the dispute within ninety (90) days, all disputed amounts shall be resolved by mediation or arbitration as provided in Section 12.10 and 12.11 below.

3.10 Past-Due Amounts. Any undisputed payment not made when due will be subject to a reasonable late charge not to exceed the highest rate allowed by law on the unpaid invoice. If Customer’s account is delinquent, ISN may refer the account to a collection agency or attorney that may pursue collection of the past due amount and/or any ISN Equipment that Customer fails to return in accordance with the Agreement. If ISN is required to use a collection agency or attorney to collect any amount owed by Customer or any unreturned ISN Equipment, Customer agrees to pay all reasonable costs of collection or other action. The remedies set forth herein are in addition to and not in limitation of any other rights and remedies available to ISN under the Agreement or at law or in equity.

3.11 Rejected Payments. Except to the extent otherwise prohibited by law, Customer will be assessed a service charge up to the full amount permitted under applicable law for any check or other instrument used to pay for the Services that has been rejected by the bank or other financial institution.

3.12 Fraudulent Use of Services. Customer is responsible for all charges attributable to Customer with respect to the Services, even if incurred as the result of fraudulent or unauthorized use of the Services. ISN may, but is not obligated to, detect or report unauthorized or fraudulent use of Services to Customer. ISN reserves the right to restrict, suspend or discontinue providing any Service in the event of fraudulent use by Customer.

ARTICLE 4. TERMINATION OF AGREEMENT AND/OR A SALES ORDER
4.1 Termination for Convenience. Notwithstanding any other term or provision in this Agreement, Customer shall have the right to terminate an Order, or this Agreement in whole or part, at any time during the Service Term upon sixty (60) days prior notice to ISN, and subject to payment to ISN of all outstanding amounts due for the Services or equipment and material purchases already provided by ISN at the time of notice, any and all applicable Termination Charges, and the return of any and all ISN Equipment.

4.2 Termination for Cause.
(a) If Customer is in breach of a payment obligation (including failure to pay a required deposit), and fails to make payment in full within ten (10) days after receipt of notice of default, or has failed to make payments of all undisputed charges on or before the due date on three (3) or more occasions during any twelve (12) month period, ISN may, at its option, terminate this Agreement, terminate the affected Orders, suspend Service under the affected Orders, and/or require a deposit, advance payment, or other satisfactory assurances in connection with any or all Orders as a condition of continuing to provide the Services. However, ISN will not take any such action as a result of Customer’s non-payment of a charge that is the subject of a timely billing dispute, unless the parties have reviewed the dispute and determined in good faith that the charge is correct.

(b) If either party breaches any material term of this Agreement and the breach continues without remedy for thirty (30) days after notice of default, the non-defaulting party may terminate for cause any Order materially affected by the breach.

(c) An Order may be terminated by either party immediately upon notice if the other party has become insolvent or involved in liquidation or termination of its business, or adjudicated bankrupt, or been involved in an assignment for the benefit of its creditors.

(d) Termination by either party of an Order does not waive any other rights or remedies that it may have under this Agreement.

4.3 Effect of Expiration or Termination of the Agreement or an Order. Upon the termination of an Order for any reason: (i) ISN may disconnect the applicable Service; (ii) ISN may delete all applicable data, files, electronic messages, voicemail or other information stored on ISN’s servers or systems; (iii) if Customer has terminated the Order prior to the expiration of the Service Term for convenience, or if ISN has terminated the Order prior to the expiration of the Service Term as a result of material breach by Customer, ISN may assess and collect from Customer applicable Termination Charges; (iv) Customer shall, permit ISN access to retrieve from the applicable Service Locations any and all ISN Equipment (however, if Customer fails to permit access, or if the retrieved ISN Equipment has been damaged and/or destroyed other than by ISN or its agents, normal wear and tear excepted, ISN may invoice Customer for the full replacement cost of the relevant ISN Equipment, or in the event of minor damage to the retrieved ISN Equipment, the cost of repair, which amounts shall be immediately due and payable); and (v) if used in conjunction with the terminated Service, Customer’s right to use applicable Licensed Software shall automatically terminate, and Customer shall be obligated to return the Licensed Software to ISN.

4.4 Regulatory and Legal Changes. The parties acknowledge that the respective rights and obligations of each party as set forth in this Agreement upon its execution are based on law and the regulatory environment as it exists on the date of execution of this Agreement. ISN may, in its sole discretion, immediately terminate this Agreement, in whole or in part, in the event there is a material change in any law, rule, regulation, Force Majeure event, or judgment of any court or government agency, and that change affects ISN’s ability to provide the Services herein.
ISN reserves the right to make changes to the terms and conditions of this Agreement, the Services and/or the Plan (“Change of Service”). In the event of a Change of Service, ISN will post to the Web Site currently located at http://www.ISNGlobal.com/legal (or any successor URL). Customer may request a Plan change at any time, subject to any applicable change of service fee and additional terms and conditions. The Plan change will take effect in the first month after the Plan is changed. In no case will an activation fee be credited after thirty (30) days from the initial purchase of the Services for a Plan change or cancellation. For a Plan change to a plan that requires a purchase of the Equipment, an equipment charge will apply.

ARTICLE 5. LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES; WARNINGS

5.1 NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, OF ANY KIND INCLUDING BUT NOT LIMITED TO ANY LOST REVENUE, LOSS OF USE, LOSS OF BUSINESS OR LOSS OF PROFIT, WHETHER SUCH ALLEGED LIABILITY ARISES IN CONTRACT OR TORT, PROVIDED, HOWEVER, THAT NOTHING HEREIN IS INTENDED TO LIMIT CUSTOMER’S LIABILITY FOR AMOUNTS OWED FOR THE SERVICES, FOR ANY EQUIPMENT OR SOFTWARE PROVIDED BY ISN, OR FOR EARLY TERMINATION CHARGES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE ENTIRE LIABILITY OF ISN AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS OR CONTRACTORS (“ASSOCIATED PARTIES”) FOR LOSS, DAMAGES AND CLAIMS ARISING OUT OF THE DELIVERY OF THE SERVICES INCLUDING, BUT NOT LIMITED TO, DELAY IN THE INSTALLATION OF SERVICES OR THE PERFORMANCE OR NONPERFORMANCE OF THE SERVICES OR THE ISN EQUIPMENT SHALL BE LIMITED TO A SUM EQUIVALENT TO THE APPLICABLE OUT-OF-SERVICE CREDIT. REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY DESCRIBED IN THIS AGREEMENT.

5.2 THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON- INFRINGEMENT WITH RESPECT TO THE SERVICES, ISN EQUIPMENT, OR LICENSED SOFTWARE. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT ALLOWED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ISN DOES NOT WARRANT THAT THE SERVICES, ISN EQUIPMENT, OR LICENSED SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF LATENCY OR DELAY, OR THAT THE SERVICES, ISN EQUIPMENT, OR LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES, ISN EQUIPMENT, OR LICENSED SOFTWARE WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES.

5.3 ISN MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SERVICES, ISN EQUIPMENT, OR LICENSED SOFTWARE FOR USE BY THIRD PARTIES.

5.4 IN NO EVENT SHALL ISN, OR ITS ASSOCIATED PARTIES, SUPPLIERS, CONTRACTORS OR LICENSORS BE LIABLE FOR ANY LOSS, DAMAGE OR CLAIM ARISING OUT OF OR RELATED TO: (i) STORED, TRANSMITTED, OR RECORDED DATA, FILES, OR SOFTWARE; (ii) ANY ACT OR OMISSION OF CUSTOMER, ITS USERS OR THIRD PARTIES; (iii) INTEROPERABILITY, INTERACTION OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS, EQUIPMENT, SERVICES OR NETWORKS PROVIDED BY CUSTOMER OR THIRD PARTIES; OR (iv) LOSS OR DESTRUCTION OF ANY CUSTOMER HARDWARE, SOFTWARE, FILES OR DATA RESULTING FROM ANY VIRUS OR OTHER HARMFUL FEATURE OR FROM ANY ATTEMPT TO REMOVE IT.

5.5 Disruption of Service. ISN shall not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Services, directly or indirectly caused by, or proximately resulting from, any circumstances, including, but not limited to, causes attributable to Customer or Customer- Equipment; inability to obtain access to the Service Locations; loss of use of poles or other utility facilities; strike; labor dispute; riot or insurrection; war; explosion; malicious mischief; fire, flood, lightening, earthquake, wind, ice, extreme weather conditions, pandemic (whether by federal, state, or local declaration), or other acts of God; failure or reduction of power; or any court order, law, act or order of any federal, state, or local governmental agency restricting or prohibiting the operation or delivery of the Services.

5.6 Customer’s sole and exclusive remedies under this Agreement are as expressly set forth in this Agreement. Certain of the above exclusions may not apply if the state in which a Service is provided does not allow the exclusion or limitation of implied warranties or does not allow the limitation or exclusion of incidental or consequential damages. In those states, the liability of ISN and its affiliates and agents is limited to the maximum extent permitted by law.

ARTICLE 6. INDEMNIFICATION
6.1 Subject to Article 5, each Party (“Indemnifying Party”) will indemnify and hold harmless the other Party (“Indemnified Party”), its affiliates, officers, directors, employees, stockholders, partners, providers, independent contractors and agents from and against any and all joint or several costs, damages, losses, liabilities, expenses, judgments, fines, settlements and any other amount of any nature, including reasonable fees and disbursements of attorneys, accountants, and experts, arising from any and all claims, demands, actions, suits, or proceedings whether civil, criminal, administrative, or investigative (collectively, “Claims”) relating to: (i) any Claim of any third party resulting from the negligence or willful act or omission of Indemnifying Party arising out of or related to the Agreement, the obligations hereunder, and uses of Services, ISN Equipment, and Licensed Software; and (ii) any Claim of any third party alleging infringement of a U.S. patent or U.S. copyright arising out of or related to this Agreement, the obligations hereunder, and the use of Services, ISN Equipment, and Licensed Software.

6.2 The Indemnifying Party agrees to defend the Indemnified Party for any loss, injury, liability, claim or demand (“Actions”) that is the subject of Article 6 hereof. The Indemnified Party agrees to notify the Indemnifying Party promptly, in writing, of any Actions, threatened or actual, and to cooperate in every reasonable way to facilitate the defense or settlement of such Actions. The Indemnifying Party shall assume the defense of any Action with counsel of its own choosing, but which is reasonably satisfactory to the Indemnified Party. The Indemnified Party may employ its own counsel in any such case, and shall pay such counsel’s fees and expenses. The Indemnifying Party shall have the right to settle any claim for which indemnification is available; provided, however, that to the extent that such settlement requires the Indemnified Party to take or refrain from taking any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed.

ARTICLE 7. SOFTWARE & SERVICES
7.1 License. If and to the extent Customer requires the use of Licensed Software in order to use the Services supplied under any Order, Customer shall have a personal, nonexclusive, nontransferable, and limited license to use the Licensed Software in object code only and solely to the extent necessary to use the applicable Service during the corresponding Service Term. Customer may not claim title to, or an ownership interest in, any Licensed Software (or any derivations or improvements thereto) and Customer shall execute any documentation reasonably required by ISN, including, without limitation, end-user license agreements for the Licensed Software. ISN and its suppliers shall retain ownership of the Licensed Software, and no rights are granted to Customer other than a license to use the Licensed Software under the terms expressly set forth in this Agreement.

7.2 Restrictions. Customer agrees that it shall not: (i) copy the Licensed Software (or any upgrades thereto or related written materials) except for emergency back-up purposes or as permitted by the express written consent of ISN; (ii) reverse engineer, decompile, or disassemble the Licensed Software; (iii) sell, lease, license, or sublicense the Licensed Software; or (iv) create, write, or develop any derivative software or any other software program based on the Licensed Software.

7.3 Updates. Customer acknowledges that the use of the Services may periodically require updates and/or changes to certain Licensed Software resident in the ISN Equipment or Customer-Provided Equipment. If ISN has agreed to provide updates and changes, ISN may perform such updates and changes remotely or on-site, at ISN’s sole option. Customer hereby consents to, and shall provide free access for, such updates deemed reasonably necessary by ISN.

7.4 Ownership of Telephone Numbers and Addresses. If applicable, Customer acknowledges that use of the Services does not give it any ownership or other rights in any telephone number or Internet/on-line addresses provided, including but not limited to Internet Protocol (“IP”) addresses, e-mail addresses and web addresses. Specific terms of ownership shall be detailed in the Order or managed services agreement.

7.5 Intellectual Property Rights in the Services. Title and intellectual property rights to the Services are owned by ISN, its agents, suppliers or affiliates or their licensors or otherwise by the owners of such material. The copying, redistribution, reselling, bundling or publication of the Services, in whole or in part, without express prior written consent from ISN or other owner of such material, is prohibited.

ARTICLE 8. CONFIDENTIAL INFORMATION AND PRIVACY
8.1 Disclosure and Use. All Confidential Information shall be kept by the receiving party in strict confidence and shall not be disclosed to any third party without the disclosing party’s express written consent. Notwithstanding the foregoing, such information may be disclosed (i) to the receiving party’s employees, affiliates, and agents who have a need to know for the purpose of performing this Agreement, using the Services, rendering the Services, and marketing related products and services (provided that in all cases the receiving party shall take appropriate measures prior to disclosure to its employees, affiliates, and agents to assure against unauthorized use or disclosure); or (ii) as otherwise authorized by this Agreement. Each party agrees to treat all Confidential Information of the other in the same manner as it treats its own proprietary information, but in no case using a degree of care less than a reasonable degree of care.

8.2 Exceptions. Notwithstanding the foregoing, each party’s confidentiality obligations hereunder shall not apply to information that: (i) is already known to the receiving party without a pre-existing restriction as to disclosure; (ii) is or becomes publicly available without fault of the receiving party; (iii) is rightfully obtained by the receiving party from a third party without restriction as to disclosure, or is approved for release by written authorization of the disclosing party; (iv) is developed independently by the receiving party without use of the disclosing party’s Confidential Information; or (v) is required to be disclosed by law or regulation.

8.3 Remedies. Notwithstanding any other Article of this Agreement, the non-breaching party shall be entitled to seek equitable relief to protect its interests pursuant to this Article 9, including, but not limited to, injunctive relief.

8.4 Monitoring. ISN shall have no obligation to monitor postings or transmissions made in connection with the Services, however, Customer acknowledges and agrees that ISN and its agents shall have the right to monitor any such postings and transmissions from time to time and to use and disclose them in accordance with this Agreement, and as otherwise required by law or government request. ISN reserves the right to refuse to upload, post, publish, transmit or store any information or materials, in whole or in part, that, in ISN’s sole discretion, is unacceptable, undesirable or in violation of this Agreement.

ARTICLE 8A: CUSTOMER PRIVACY POLICIES
In addition to the provisions of Article 8, the privacy policy below applies to ISN’s handling of Customer confidential information. In the event of a conflict between the provisions of Article 8 and any provision of the privacy policy below, the applicable provision of the privacy policy shall prevail in the resolution of the conflict. A copy of ISN’s privacy policy is available at www.ISNGlobal.com/Legal (or any successor URL).

8A.2 Privacy Note Regarding Information Provided to Third Parties: ISN is not responsible for any information provided by Customer to third parties, and this information is not subject to the privacy provisions of this Agreement or the privacy policies. Customer assumes all privacy and other risks associated with providing personally identifiable information to third parties via the Services.

ARTICLE 9. PROHIBITED USES
9.1 Resale. Except as otherwise provided in the General Terms and Conditions, Customer may not sell, resell, sublease, assign, license, sublicense, share, provide, or otherwise utilize in conjunction with a third party (including, without limitation, in any joint venture or as part of any outsourcing activity) the Services or any component thereof.

9.2 Use Policies. Customer agrees to ensure that all uses of the ISN Equipment and/or the Services installed at its premises (“use”) are legal and appropriate. Specifically, Customer agrees to ensure that all uses by Customer or by any other person (“user”), whether authorized by Customer or not, comply with all applicable laws, regulations, and written and electronic instructions for use. ISN reserves the right to act immediately and without notice to terminate or suspend the Services and/or to remove from the Services any information transmitted by or to Customer or users, if ISN (i) determines that such use or information does not conform with the requirements set forth in this Agreement, (ii) determines that such use or information interferes with ISN’s ability to provide the Services to Customer or others, (iii) reasonably believes that such use or information may violate any laws, regulations, or written and electronic instructions for use. Furthermore, the Services shall be subject to one or more Acceptable Use Policies (“AUP”) that may limit use, or (iv) reasonably believes that Customer’s use of the Service interferes with or endangers the health and/or safety of ISN personnel or third parties. The AUP and other policies concerning the Services are posted on ISN’s web site(s) at www.ISNGlobal.com (or any successor URL) or on another web site about which Customer has been notified, and are incorporated to this Agreement by reference. ISN may update the use policies from time to time, and such updates shall be deemed effective seven (7) days after the update is posted online, with or without actual notice to Customer. Accordingly, Customer should check the above web addresses (or the applicable successor URLs) on a regular basis to ensure that its activities conform to the most current version of the use policies. ISN’s action or inaction in enforcing acceptable use shall not constitute review or approval of Customer’s or any other users’ use or information.

9.3 Violation. Any breach of this Article 9 shall be deemed a material breach of this Agreement. In the event of such material breach, ISN shall have the right to restrict, suspend, or terminate immediately any or all Orders, without liability on the part of ISN, and then to notify Customer of the action that ISN has taken and the reason for such action, in addition to any and all other rights and remedies under this Agreement.

ARTICLE 10. SERVICE LEVELS
10.1 ISN is committed to providing the highest level of Service to its Customers. The Order defines the minimum Service expectations a Customer may expect from ISN. The remedies set forth in Terms & Conditions, which can be found on the ISN website at www.isnglobal.com/termsandconditions (or any successor URL, “Website”), shall be the Customer’s sole and exclusive remedy for any Service Interruption in the Services, outage, unavailability, delay or other degradation in the Services or any ISN failure to meet the objectives of the Services.

ARTICLE 11. INSURANCE
11.1 ISN shall maintain commercial general liability insurance that covers its liability and obligations hereunder including property damage and personal injury.

11.2 The liability limits under these policies shall be, at a minimum, one million ($1,000,000) dollars per occurrence, with a combined single limit for bodily injury and property damage liability.

ARTICLE 12. MISCELLANEOUS TERMS
12.1 Force Majeure. Neither party shall be liable to the other party for any delay, failure in performance, loss, or damage to the extent caused by force majeure conditions such as acts of God, pandemic, quarantine, fire, explosion, power blackout, cable cut, acts of regulatory or governmental agencies, unavailability of right-of- way, unavailability of services or materials upon which the Services rely, or other causes beyond the party’s reasonable control, except that Customer’s obligation to pay for Services provided shall not be excused. Changes in economic, business or competitive condition shall not be considered force majeure events.

12.2 Assignment and Transfer. Neither Party shall assign any right, obligation or duty, in whole or in part, nor of any other interest hereunder, without the prior written consent of the other Party, which shall not be unreasonably withheld. The foregoing notwithstanding, ISN may assign this Agreement to any affiliate, related entity, or successor in interest without Customer’s consent so long as ISN provides advance written notice to Customer. In addition, ISN may partially assign its rights and obligations hereunder to any party that acquires from ISN all or substantially all of the assets of a network(s) in which the Services is deployed to Customer so long as ISN provides advance written notice to Customer. All obligations and duties of either Party under this Agreement shall be binding on all successors in interest and assigns of such Party.

12.3 Export Law and Regulation. Customer acknowledges that any products, software, and technical information (including, but not limited to, services and training) provided pursuant to the Agreement may be subject to U.S. export laws and regulations, and any foreign use or transfer of such products, software, and technical information must be authorized under those regulations. Customer agrees that it will not use distribute, transfer, or transmit the products, software, or technical information (even if incorporated into other products) except in compliance with U.S. export regulations. If requested by ISN, Customer also agrees to sign written assurances and other export related documents as may be required for ISN to comply with U.S. export regulations.

12.4 Notices. Except as otherwise provided in this Agreement, any notices or other communications contemplated or required under this Agreement, in order to be valid, shall be in writing and shall be given via personal delivery, overnight courier, or via U.S. Certified Mail, Return Receipt Requested. Notices to Customer shall be sent to the Customer billing address; notices to ISN shall be sent to P.O. Box 1391, Claremont, California 91711, Attn: Office of General Counsel, with an email copy to: accounting@ISNGlobal.com Attn.: General Counsel. All such notices shall be deemed given and effective on the day when delivered by overnight delivery service or certified mail.

12.5 Entire Understanding. These Terms and Conditions, and the Customer’s customized proposal or Order, if any, constitutes the entire understanding and Agreement of the parties related to the subject matter hereof. Any prior representations, promises, inducements, or statements of intent regarding the Services that are not expressly provided for in this Agreement are of no effect. Terms or conditions contained in any Order, or restrictive endorsements, or other statements on any form of payment, shall be void and of no force or effect. Only specifically authorized representatives of ISN may make modifications to this Agreement or this Agreement’s form. No modification to the form or this Agreement made by a representative of ISN who has not been specifically authorized to make such modifications shall be binding upon ISN.

12.6 Tariffs and Sales Tax. Notwithstanding anything to the contrary in the Agreement, ISN may elect or be required to file tariffs with regulatory agencies or collect sales tax on behalf of revenue agencies for certain Services. In such event, the terms set forth in the Agreement may, under applicable law, be superseded by the terms and conditions of the Tariffs or sales tax regulations. Without limiting the generality of the foregoing, in the event of any inconsistency with respect to rates, the rates and other terms set forth in the applicable Sales Order shall be treated as individual case-based arrangements to the maximum extent permitted by law, and ISN shall take such steps as are required by law to make the rates and other terms enforceable. If ISN voluntarily or involuntarily cancels or withdraws a Tariff under which a Service is provided to Customer, the Service will thereafter be provided pursuant to the Agreement and the terms and conditions contained in the Tariff immediately prior to its cancellation or withdrawal. In the event that ISN is required by a governmental authority to modify a Tariff under which Service is provided to Customer in a manner that is material and adverse to either party, the affected party may terminate the applicable Sales Order upon a minimum thirty (30) days’ prior written notice to the other party, without further liability.

12.7 Construction. In the event that any portion of this Agreement is held to be invalid or unenforceable, the parties shall replace the invalid or unenforceable portion with another provision that, as nearly as possible, reflects the original intention of the parties, and the remainder of this Agreement shall remain in full force and effect.

12.8 Survival. The rights and obligations of either party that by their nature would continue beyond the expiration or termination of this Agreement or any Order, including without limitation representations and warranties, indemnifications, and limitations of liability, shall survive termination or expiration of this Agreement or any Order.

12.9 Choice of Law. The domestic law of the state of California shall govern the construction, interpretation, and performance of this Agreement, except to the extent superseded by federal law.

12.10. Dispute Resolution. PLEASE READ THIS PROVISION CAREFULLY. IT MEANS THAT, EXCEPT AS NOTED BELOW, CUSTOMER AND ISN AGREE TO MEDIATE AND ARBITRATE ANY DISPUTES OR CLAIMS IN ANY WAY RELATED TO OR CONCERNING THE AGREEMENT, OR THE PROVISION OF SERVICES OR PRODUCTS TO CUSTOMER, INCLUDING ANY BILLING DISPUTES (“CLAIM”). CLAIMS SHALL BE SUBMITTED TO FINAL, BINDING ARBITRATION. This agreement to resolve disputes through mediation and arbitration also requires Customer to resolve disputes or claims against other parties relating to Services or Products provided or billed to Customer if Claims are asserted against ISN in the same proceeding. Any controversy between the parties to this Agreement involving the construction or application of any of the terms, covenants, or conditions of this Agreement shall, on the written request of one party served on the other, be submitted to mediation, which shall be conducted in compliance with, and be governed by the provisions of sections 1775 through 1775.15 of the California Code of Civil Procedure. The parties shall use their best efforts to agree upon a person to mediate the dispute, but if they are unable to agree on one such person, each shall appoint one person, and then those two persons will select a third impartial mediator to form a panel to conduct the mediation. The cost of mediation will be borne by the parties equally. If the matter cannot be resolved by mediation within a reasonable period of time not to exceed ninety (90) day, the matter shall be submitted to binding arbitration, which shall be conducted in compliance with, and be governed by the provisions of sections 1280 through 1294.2 of the California Code of Civil Procedure. The parties shall use their best efforts to agree upon a person to arbitrate the dispute, but if they are unable to agree on one such person, each shall appoint one person, and then those two persons will select a third person to form a panel to conduct the arbitration. Unless a hearing is requested, disputes will be resolved based on written submissions and no personal appearance is required. If End User requests an arbitration hearing, that hearing will take place either telephonically or in-person in Claremont, California. As a limited exception to the agreement to arbitrate, Customer and ISN agree that: (a) Customer may file Claims in small claims court in Los Angeles County (Pomona), California, if the Claims qualify for hearing by such court; (b) if Customer fails to timely pay amounts due, ISN may assign the account for collection, and the collection agency may pursue in court claims limited strictly to the collection of the past due debt and any interest or cost of collection permitted by law or the Agreement; and (c) any Claim filed as a class action is not subject to arbitration but instead must be filed in the California Superior Court, County of Los Angeles (Pomona) or in the United States District Court for the Central District of California.

12.11. Prefiling Notice of Claim. BEFORE INSTITUTING DISPUTE RESOLUTION VIA MEDIATION OR ARBITRATION OR SUIT, CUSTOMER AGREES TO PROVIDE ISN WITH AN OPPORTUNITY TO RESOLVE THE CLAIM BY SENDING A WRITTEN DESCRIPTION OF THE CLAIM TO ISN. IF ISN IS NOT ABLE TO RESOLVE THE CLAIM WITHIN NINETY (90) DAYS OF RECEIPT OF NOTICE, THEN CUSTOMER OR ISN MAY INITIATE MEDIATION OR ARBITRATION OR SUIT AS DESCRIBED IN SECTION 12.10.

All claim notices should be sent to:
Office of General Counsel
ISN Global Enterprises, Inc.
PO Box 1391
Claremont, CA 91711

12.12. Governing Law. The Agreement and the relationship between Customer and ISN shall be governed by the laws of the State of California without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 13.10, Customer and ISN agree to submit to the personal and exclusive jurisdiction of the courts within the state of California, to the extent possible in Los Angeles County (Pomona), and waive any objection as to venue or inconvenient forum. The failure of ISN to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.

12.13 No Third-Party Beneficiaries. This Agreement does not expressly or implicitly provide any third party (including users) with any remedy, claim, liability, reimbursement, cause of action, or other right or privilege.

12.14 No Waiver. No failure by either party to enforce any rights hereunder shall constitute a waiver of such right(s).

12.15 Independent Contractors and Non-Solicitation. The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, or partner of the other Party. Neither Party shall have any right, power, or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party. During the period commencing on the Effective Date and ending one year following the Termination Date, Customer shall not, without ISN’s prior written consent, directly or indirectly; (i) solicit or encourage any person to leave the employment or other service of ISN or its Affiliates; or (ii) hire, on behalf of Customer or any other person or entity, any person who has left the employment within the one year period following the termination of that person’s employment with ISN or its Affiliates. During the period commencing on the date hereof through and ending one year following the Termination Date, Customer will not, whether for its own account or for the account of any other Person, intentionally interfere with the relationship of ISN or its Affiliates with, or endeavor to entice away from ISN or its Affiliates, any person who during the term of the Agreement is, or during the preceding one-year period, was a consultant, co-investor, co-developer, joint venturer or other customer of ISN or its Affiliates.

12.16 Article Headings. The article headings used herein are for reference only and shall not limit or control any term or provision of this Agreement or the interpretation or construction thereof.

12.17 Compliance with Laws. Each of the Parties agrees to comply with all applicable local, state and federal laws and regulations and ordinances in the performance of its respective obligations under this Agreement.
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