Indus Cloud Managed Solutions Terms & Conditions
An addendum of the Indus Cloud Managed Solutions Order and Agreement
This Indus Cloud Managed Solutions Terms & Conditions ("Agreement") is between ISN Global Enterprises, Inc. ("ISN") and the end user company ("End User") listed in the Indus Cloud Solutions Order and Agreement ("Indus Cloud"). Any Indus Cloud services or products ("Services") provided by ISN to End User shall be governed by the terms and conditions herein. By purchasing the Services, END USER AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. They affect the legal rights between End User and ISN by, among other things, requiring (1) MANDATORY ARBITRATION OF DISPUTES; (2) charging an EARLY DISCONNECTION FEE; and (3) LIMITING ISN's LIABILITY UNDER THE AGREEMENT. End User acknowledges that they are of legal age and authorized to enter into this Agreement.
1. TERMS AND CONDITIONS. The terms and conditions stated herein are in lieu of and replace any and all terms and conditions set forth in any documents issued by End User, including, without limitation, purchase orders and specifications. ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS AND CONDITIONS ON ANY SUCH DOCUMENT ISSUED BY END USER AT ANY TIME ARE HEREBY OBJECTED TO BY ISN, AND ANY SUCH DOCUMENTS SHALL BE WHOLLY INAPPLICABLE TO ANY SALE MADE OR SERVICE RENDERED HEREUNDER AND SHALL NOT BE BINDING IN ANY WAY ON ISN. No waiver or amendment to this contract or these terms and conditions shall be binding on ISN unless made in writing expressly stating that it is such a waiver or amendment and signed by an Officer of ISN.
2. TERM. The term of this Agreement ("Term") begins on the date that End User signs the Indus Cloud form for Services and continues for the duration of the service period as defined by the service plan that is selected by End User ("Plan"). At the end of the current Term, the Term is automatically renewed unless End User provides ISN, prior to the end of the current Term, notification of intention to cancel the service as set forth below. End User agrees to pay for Services for the duration of the Term. Expiration of the Term does not alleviate End User of responsibility for paying all unpaid, accrued charges due hereunder. If End User transfers or moves to another service provider other than ISN, End User must contact ISN to cancel the Services provided to End User by ISN. If End User chooses to cancel the service before the end of the current Term, Disconnection Fees may apply as set forth below.
3. OBLIGATIONS OF CLIENT.
3.1. End User will immediately notify ISN upon learning of any significant problem with the performance of the network.
3.2. End User will make knowledge employees available to ISN and will cooperate with ISN in the performance of its duties and obligations under this Agreement.
3.3. End User will, from time to time, purchase such software and hardware as may be reasonably necessary for the effective operation of its network.
3.4. End User will be solely responsible for performing the day-to-day tasks associated with creating archival or backup copies of data stored on the network servers and/or on the hard drives of individual workstations.
3.5. ELECTRICAL POWER. END USER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER.
3.6. INTERNET ACCESS. END USER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION IF THERE IS AN INTERRUPTION OF END USER'S BROADBAND OR HIGH-SPEED INTERNET ACCESS SERVICE.
4. EQUIPMENT. To provide the Services, ISN may provide Equipment to End User. All Equipment shipments are F.O.B. ISN's facility. ISN's liability for delivery shall cease, and title (if applicable) and all risk of loss or damage shall pass to End User upon delivery to carrier. End User will be provided a twelve (12) month manufacturer's warranty from the date of purchase of Equipment or Service. End User shall be required to obtain authorization from ISN to return any Equipment. ISN will provide replacement Equipment only if the Equipment is deemed to be defective and covered under the warranty. ISN will not cover replacement for lost, stolen or modified equipment. Equipment returned by End User that is not covered under warranty may be refused by ISN, and End User will be responsible to pay return shipping charges.
5. BILLING, CHARGES AND PAYMENT.
5.1. PAYMENT. Upon purchase of the Service, End User must provide ISN with a valid credit card number from an issuer that is accepted by ISN. End User authorizes ISN to charge the credit card number provided by End User ("Credit Card") for all charges arising from End User's use of the Services. End User agrees to notify ISN of any change to the credit card information including, but not limited to, changes in account number, expiration date or billing address. ISN shall not be responsible for any charges made by the Credit Card issuer to End User's Credit Card account for exceeding credit limit, insufficient funds or other reasons. End User's credit card will not be billed until product has shipped. Estimated ship dates are approximate and are not guaranteed. End User may cancel any order due to shipping delays without charge.
5.2. CREDIT TERMS. All Services provided to End User and covered by the Agreement shall at all times be subject to credit approval or review by ISN. End User will provide such credit information or assurance as is requested by ISN at any time. ISN, in its sole discretion and judgment, may discontinue credit at any time without notice or require a deposit.
5.3. BILLING. ISN will provide End User with a monthly billing statement for the Services and bill all charges invoiced to End User's account to the Credit Card. Such charges shall include activation fees, monthly service fees, shipping charges, disconnection fees, equipment charges, toll charges, taxes and any other applicable charges. Monthly service fees are paid in advance of each month's service; and any other applicable charges are billed subsequent to the end of each month's service. ISN reserves the right to charge the Credit Card for charges, due if at any time End User's cumulative charges for the current month exceed two hundred fifty dollars ($250.00). Billing for monthly service fees commences upon the date listed on the Indus Cloud form ("Effective Date"), and the first month's monthly service fee shall be prorated to take into account any partial month that may occur as the result of the date monthly service fees are initiated.
5.4. LATE/NON-PAYMENT. If any charges for the Services are due but unpaid for any reason including, but not limited to, non-payment or declined Credit Card charges, ISN may suspend or terminate the Services and all accrued charges shall be immediately due, plus a late fee of the lesser of 1.5% per month or the maximum allowed by law accrued from the date of invoice until payment in full is received by ISN. If charges cannot be processed to the Credit Card, End User will be charged a fee of ten dollars ($10.00). The fee will also be charged to activate a suspended account. No suspension or termination of the Services or of this Agreement shall relieve End User from paying any amounts due hereunder.
5.5. TAXES. Prices for the Services do not include any customs duties, sales, use, value added, excise, federal, state, local, public utility, universal service or other similar taxes. All such taxes shall be paid by End User and will be added to any amounts otherwise charged to End User unless End User provides ISN with an appropriate exemption certificate. If any amounts paid for the Services are refunded by ISN, applicable taxes may not be refundable.
5.6. TRIAL PERIOD. ISN offers a thirty (30) day trial period ("Trial Period") to new End Users for their first ISN account. The Trial Period commences Effective Date. If End User is not satisfied with the Services during the Trial Period, End User may obtain a refund of the equipment and activation fee but not the monthly service fee. Applicable taxes will be refunded to the extent allowed by law. Shipping charges will not be refunded. To obtain a refund, End User must: a) Notify ISN within thirty (30) days of the Effective Date of the Services and obtain a return material authorization number from ISN for the Equipment and b) Return the Equipment to ISN within seven (7) days of cancellation of the Services in its original, unaltered condition with all packaging intact. Disconnection fees shall not apply if End User cancels service during the Trial Period.
5.7. DISCONNECTION AND CONVERSION FEES. Subsequent to the expiration of the Trial Period, if an End User terminates a one (1) Year Plan, a two (2) Year Plan or a three (3) Year Plan prior to the end of the committed term, ISN will charge the End User the remaining service fees under the Plan agreement. All fees, including service fees, payable under this Plan shall be non-refundable and non-creditable.
5.8. RATE CHANGES. ISN may change the price of Services, charges, plans, taxes or fees without any advance notice. For End Users on 1, 2, or 3 year plans, rates will not be increased during the Term, with the exception of government mandated tax changes. In the event of a change in prices not covered by the Plan, ISN will post such changes to the web site currently located at http://www.isnglobal.com.
5.9. DISCOUNTS. From time to time in its sole discretion, ISN may offer promotions or discounts of activation or other fees. Any promotion or discount codes must be listed on the Indus Cloud form. End User shall not be entitled to a subsequent credit for such promotions or discounts if not requested by End User before the Effective Date.
5.10. BILLING DISPUTES. End User must dispute any charges for the Services in writing within thirty (30) days of the date of the charge by ISN or End User waives any objection and further recourse. Written statements disputing charges must be sent to: Assistant Vice-President, Business Operations ISN Global Enterprises, Inc. PO Box 1391 Claremont, CA 91711
6. LOST, STOLEN, ALTERED OR BROKEN EQUIPMENT. End User shall not modify the Equipment in any way without the express written permission of ISN. End User shall not use the Equipment except with the Services provided hereunder. Except as otherwise provided for hereunder, End User is responsible for all lost, stolen or broken Equipment and may be required to purchase a replacement to continue service. Replacement charges will be based on the fair retail price of equipment, plus applicable shipping costs and taxes. End User shall immediately notify ISN of any lost or stolen Equipment and shall cooperate with ISN in all reasonable aspects to eliminate actual or potential unauthorized use of the Equipment. At ISN's sole option, failure to report lost or stolen equipment in a timely manner will cause End User to be responsible for all service fees accrued until the time that ISN is informed of the loss or theft and can effect a termination of the Services.
7. PROHIBITED USES. Any use of the Services or any other action that causes a disruption in the network integrity of ISN or its vendors, whether directly or indirectly, is strictly prohibited and could result in termination of the Services at the sole discretion of ISN. End User understands that neither ISN nor its vendors are responsible for the content of the transmissions that may pass through the Internet and/or the Services. End User agrees that it will NOT use the Services in ways that violate laws, infringe the rights of others, or interfere with the users, services, or equipment of the network. End User agrees and represents that it is purchasing the Services and/or the Equipment for its own internal use only, and shall not resell, transfer or make a charge for the Services or the Equipment without the advance express written permission of ISN. ISN's Service Plans for business End Users that offer unlimited minutes or a package of minutes of calls ("Free Minute Plans") are for reasonable business use of End User only. End Users further agree not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. Any use found to be inconsistent with this restriction will result in termination of the Service. ISN reserves the right to immediately terminate or modify the Services of any End User using Free Minute Plans if ISN determines, in its sole discretion, that End User is not using the Free Minute Plans for End User's reasonable business use.
8. RESPONSIBILITY FOR REGISTRATION INFORMATION AND CONTENT OF END USER COMMUNICATIONS. End Users are solely responsible for maintaining the confidentiality of End User password and account, and agree not to transfer email address or password, or lend or otherwise transfer use of or access to the ISN Service, to any third party. End Users are also solely responsible for any and all activities that occur under End User account. End User agree to immediately notify ISN of any unauthorized use of End User account or any other breach of security related to End User account or the ISN Service, and to ensure that End User "log off"https://d2oc0ihd6a5bt.cloudfront.net/exit from End User account (if applicable) at the end of each session. ISN is not liable for any loss or damage arising from End User failure to comply with any of the foregoing obligations. In consideration for using the ISN Service, End User agrees to: (1) provide certain current, complete, and accurate information about End User when prompted to do so by the ISN Service, and (2) maintain and update this information as required to keep it current, complete and accurate. End User agrees that any such information shall be accurate. End User agrees that End User are solely responsible for the content of all visual, written or audible communications ("Content") sent by End User or displayed or uploaded by End User in using the Services. End User agrees that End User will not use the Services to send unsolicited commercial e-mail outside End User company or organization in violation of applicable law. End User further agrees not to use the Services to communicate any message or material that is harassing, libelous, threatening, obscene, and indecent, would violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation. Recognizing the global nature of the Internet, End User also agree to comply with applicable local rules or codes of conduct (including codes imposed by End User employer) regarding online behavior and acceptable content and the transmission of technical data exported from the United States or the country in which End User reside. ISN reserves the right to investigate and take appropriate action against anyone who, in ISN's sole discretion, is suspected of violating this provision, including without limitation, reporting End User to law enforcement authorities. Use of the Services is void where prohibited. Although ISN is not responsible for any such communications, ISN may delete any such communications of which ISN becomes aware, at any time without notice to End User. End User retains copyright and any other rights already held in Content which End User submits, posts or displays on or through, the Services. End User understands and agrees that by displaying, exchanging or uploading Content to a ISN website, transmitting Content using the Services or otherwise providing Content to ISN, End User automatically grant (and warrant and represent End User have a right to grant) to ISN a world-wide, royalty-free, sub-licensable (so ISN affiliates, contractors, resellers and partners can deliver the Services) perpetual, irrevocable license to use, modify, publicly perform, publicly display, reproduce and distribute the Content in the course of offering the Site and/or the Services.
9. RESPONSIBILITY FOR CONTENT OF OTHERS. Be advised that other users of the Services ("Users") may violate one or more of the above prohibitions, but ISN assumes no responsibility or liability for such violation. If End User becomes aware of misuse of the Services by any person, please contact ISN Client Services at 1-877-376-4476. ISN may investigate any complaints and violations that come to its' attention and may take any action that it believes is appropriate, including, but not limited to issuing warnings, removing the content or terminating accounts and/or User profiles. However, because situations and interpretations vary, ISN also reserves the right not to take any action. Under no circumstances will ISN be liable in any way for any data or other content available on a Site or viewed while using the Services, including, but not limited to, any errors or omissions in any such data or content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data or content on the Site. If at any time End User are not happy with a Site or the Services or object to any material on a Site, End User sole remedy is to cease using the Site or the Services. ISN does not endorse and has no control over what Users post or submit to a Site. End User acknowledges that ISN cannot guarantee the accuracy of any information submitted by any User of a Site, nor any identity information about any User. ISN reserves the right, in its sole discretion, to reject, posting or other data, or to restrict, suspend, or terminate any User's access to all or any part of a Site or Services at any time, for any or no reason, with or without prior notice, and without liability. ISN reserves the right to investigate and take appropriate action against anyone who, in ISN's sole discretion, is suspected of violating this provision, including without limitation, reporting End User or any User to law enforcement authorities.
10. CHANGES TO THE AGREEMENT, SERVICES OR PLAN. 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. End User may request a Plan change at anytime, 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.
11. NOTICE. Notice will be considered received by End Users and such changes will become binding to End Users, on the date the changes are posted to the Web Site ("Change Date"), and no additional notice will be required. If End User does not send ISN notification of their desire to terminate this agreement or uses the Service after the Change Date, End User is deemed to have accepted and consented to the change of terms and conditions of the Service. If End User does not consent to the change of service and terminates this Agreement, End User will be responsible for any sums due hereunder in addition to any applicable Disconnection Fee. End User may request a Plan change at anytime, subject to any applicable change of service fee and additional terms and conditions. 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.
12. TERMINATION. End User agrees to provide ISN with thirty (30) days notice of termination. End User shall be responsible for the full monthly service fee for the month during which the notice of termination of service is provided to ISN. In accordance with section 5, Disconnection Fees may apply. ISN reserves the right, at its sole discretion, to suspend, terminate or change the Services without advanced notice for any reason, including without limitation, misuse of the Services in any way, End User's breach of this Agreement, End User's failure to pay any sum due hereunder, suspected fraud or other activity by End User that adversely affects the Services, ISN, ISN's network or other End User's use of the Services. ISN reserves the right to determine, at its sole discretion, what constitutes misuse of the Services and End User agrees that ISN's determination is final and binding on End User. ISN may require an activation fee to change or resume a terminated or suspended account.
13. PRIVACY AND CONFIDENTIAL INFORMATION. ISN utilizes the public Internet and third party networks to provide fax, voice and video communication services. Accordingly, ISN cannot guarantee the security of fax, voice and video communications of End User. ISN is committed to respecting an End User's privacy. Once End User chooses to provide personally identifiable information, it will only be used in the context of the End User's relationship with ISN. ISN will not sell, rent, or lease End Users' personally identifiable information to others. Unless required by law or subpoena or if End User's prior permission is obtained, ISN will only share the personal data End User provides with other ISN entities and/or business partners that are acting on ISN's behalf to complete the activities described herein. Such ISN entities and/or national or international business partners are governed by ISN's privacy policies with respect to the use of this data. ISN is required to file numerous reports with different administrative bodies. As such, ISN may provide aggregate statistics about customers, sales and traffic patterns. None of these reports or statistics will include personally identifiable information. However, ISN reserves the right to use personally identifiable information to investigate and help prevent potentially unlawful activity that threatens either ISN or any company affiliated with ISN. Moreover, upon the appropriate request of a government agency, law enforcement agency, court or as otherwise required by law, ISN may disclose personally identifiable information.
13.1 All information relating to ISN that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by End User and will not be disclosed or used by End User except to the extent that such disclosure or use is reasonably necessary to the performance of the End User's duties and obligations under this Agreement.
13.2 These obligations and confidentiality will extend for a period of two (2) years after the termination of this Agreement, but will not apply with respect to information that is independently developed by the parties, lawfully become a part of the public domain, or of which the parties gained knowledge or possession free of any confidentiality obligation.
14. RETURNS AND ADJUSTMENTS. No Equipment may be returned by End User for any reason without prior approval of ISN. All returns shall be in original packaging or equivalent. End User shall be responsible for all costs related to shipping to ISN any Equipment that is being returned. Any Equipment returned to ISN without prior authorization for its return or proper packaging may be refused. In order to obtain an appropriate refund, upon cancellation End User must immediately obtain a return material authorization number from ISN, return to ISN any Equipment provided hereunder, undamaged and in good working condition, in its original packaging and with its original content or otherwise will be immediately responsible for paying to ISN an amount equal to the fair retail price of the equipment minus any payments End User had previously paid specifically for said Equipment.
15. TECHNICAL SUPPORT. ISN provides technical support to End Users via telephone, e-mail, and on-site for the Services and the Equipment provided hereunder. Support for other applications and uses is not provided or implied.
16. EMPLOYEE SOLICITATION/HIRING. During the period of this Agreement and for two (2) years thereafter, End User will not directly or indirectly solicit or offer employment to or hire any employee, former employee, subcontractor, or former subcontractor of ISN. The terms "former employee" and "former contractor" will include only those employees or subcontractors of either party who were employed or utilized by that party after the Effective Date of this Agreement.
17. RELATION OF PARTIES. The performance by ISN of its duties and obligations under this Agreement will be that of an independent contractor, and nothing herein will create or imply an agency relationship between ISN and End User, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
18. BREACH. In the event of End User's breach of the terms of the Agreement, including without limitation, failure to pay any sum due hereunder, End User shall reimburse ISN for all attorney, court, collection and other costs incurred by ISN in the enforcement of ISN's rights hereunder and ISN may keep any deposits or other payments made by End User.
19. INDEMNIFICATION. End User agrees to defend, indemnify and hold ISN, its affiliates and its vendors harmless from any claims or damages relating to this Agreement.
20. DISCLAIMER OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL ISN OR ITS VENDORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE SERVICES OR PRODUCTS PROVIDED HEREUNDER WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, THE NEGLIGENCE OF ISN OR ITS VENDORS OR OTHERWISE.
21. WARRANTY AND LIABILITY LIMITATIONS. ISN MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER ISN NOR ITS VENDORS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO ISN'S OR END USER'S TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF END USER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF ISN'S OR ITS VENDORS' NEGLIGENCE. ANY CLAIM AGAINST ISN MUST BE MADE WITHIN 90 DAYS OF THE EVENT OF THE CLAIM OR 90 DAYS FROM THE TERMINATION OF SERVICE, WHICHEVER IS EARLIER AND ISN HAS NO LIABILITY THEREAFTER. ISN'S LIABILITY IS LIMITED TO REPAIR, REPLACEMENT, CREDIT OR REFUND. ISN MAY ELECT TO PROVIDE A REFUND IN LIEU OF CREDIT, REPLACEMENT OR REPAIR. ALL WARRANTIES COVER ONLY DEFECTS ARISING UNDER NORMAL USE AND DO NOT INCLUDE MALFUNCTIONS OR FAILURES RESULTING FROM MISUSE, ABUSE, NEGLECT, ALTERATION, MODIFICATION, IMPROPER INSTALLATION, OR REPAIRS BY ANYONE OTHER THAN ISN. IN NO EVENT SHALL ISN'S TOTAL LIABILITY HEREUNDER EXCEED THE AMOUNTS PAID BY END USER TO ISN IN THE PRIOR THIRTY (30) DAYS FROM DATE OF CLAIM.
21.1 WARRANTY AND DISCLAIMER. End User acknowledges that no computer system, software, or network can be made completely stable or secure, and that ISN cannot guarantee the stability, safety or security of End User's network or data. ISN warrants that the Services will be provided in a workmanlike manner, and in conformity with generally prevailing industry standards and the time frame, if any, set forth in the description of Services herein. End User is solely responsible for implementing and monitoring appropriate operational and security procedures, and for making appropriate backup copies of all data.
22. EXPORT COMPLIANCE. End User agrees to comply with U. S. export laws concerning the transmission of technical data and other regulated materials via the Services. End User agrees to comply with applicable local, state and federal regulations governing the locality in which the Equipment and Services are used.
23. PHONE NUMBERS AND WEB PORTAL DISCONTINUANCE. Upon expiration, cancellation or termination of the Services, End User shall relinquish and discontinue use of any Numbers, voice mail access numbers and/or web portals assigned to End User by ISN or its vendors.
24. SOFTWARE COPYRIGHT. Any software used by ISN to provide the Services and any software provided to End User in conjunction with providing the Services are protected by copyright law and international treaty provisions. End User may not copy the software or any portion of it.
25. SURVIVAL. The provisions of section 3, 5, 17, 18, 19, 20, 21, 23, 25, 26 and 28 shall survive any termination of the Agreement.
26. NOTICES. ISN communicates with End Users primarily via email. Notices to End User shall be sent to the email address specified by End User on the Indus Cloud from for the Services or as subsequently specified by End User ("Email Address"). End User is responsible for notifying ISN of any Email Address changes. End User agrees that sending a message to the Email Address is the agreed upon means of providing notification. Email is used to communicate important information about the Services, billing, changes to the Services and other information. The information is time-sensitive in nature. It is required that End User read any email sent to the Email Address in a timely manner in order to avoid any potential interruption in the Services provided hereunder.
27. FORCE MAJEURE (EVENTS BEYOND OUR CONTROL). ISN shall not be liable for any delay in performance directly or indirectly caused by or resulting from acts of God, fire, flood, accident, riot, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties of ISN as may occur in spite of ISN's best efforts.
28. GOVERNING LAW / RESOLUTION OF DISPUTES.
28.1. Mandatory Arbitration. PLEASE READ THIS PROVISION CAREFULLY. IT MEANS THAT, EXCEPT AS NOTED BELOW, END USER AND ISN WILL ARBITRATE ANY DISPUTES OR CLAIMS IN ANY WAY RELATED TO OR CONCERNING THE AGREEMENT, OR THE PROVISION OF SERVICES OR PRODUCTS TO END USER, INCLUDING ANY BILLING DISPUTES ("CLAIM"). CLAIMS SHALL BE SUBMITTED TO FINAL, BINDING ARBITRATION. This agreement to arbitrate also requires End User to arbitrate claims against other parties relating to Services or Products provided or billed to End User 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, it 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 Claremont, California. As a limited exception to the agreement to arbitrate, End User and ISN agree that: (a) End User may file Claims in small claims court in Los Angeles County (Pomona), California, if the Claims qualify for hearing by such court; (b) if End User 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.
28.2. Prefiling Notice of Claim. BEFORE INSTITUTING ARBITRATION OR SUIT, END USER 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 30 DAYS OF RECEIPT OF NOTICE, THEN END USER OR ISN MAY INITIATE ARBITRATION OR SUIT AS DESCRIBED IN SECTION
28.3. All claim notices should be sent to: Executive Office ISN Global Enterprises, Inc. PO Box 1391 Claremont, CA 91711
28.4. Governing Law. The Agreement and the relationship between End User 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 28.1, End User 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. End User 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.
29. ENTIRE AGREEMENT. The terms and conditions of this Agreement, along with the rates posted to the web site currently located at http://www.isnglobal.com, and the Indus Cloud Managed Solutions Order and Agreement, constitute the entire agreement with regard to this sale and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to the Services. This agreement shall be binding upon the heirs, successors, and assigns of ISN and End User.
Updated: November 29, 2012