These ISP Services Terms and Conditions (these “Terms”) govern Customer’s use of the ISP Services pursuant to an ISP enrollment form executed by each of Customer and ISP (an “Enrollment Form”) or as otherwise ordered by Customer via online registration. BY CLICKING A BOX INDICATING YOUR AGREEMENT TO THESE TERMS OR BY EXECUTING AN ENROLLMENT FORM THAT REFERENCES THESE TERMS, CUSTOMER ACCEPTS THESE TERMS. ISP may amend these Terms by giving notice through the Services. Customer’s continued use of the Services following such notice shall constitute its agreement to the amended Terms.
1. DEFINITIONS
“Customer” means the candidate, campaign, or organization identified in the Enrollment Form or during online registration. “Services” means the ISP services selected by Customer in the Enrollment Form and any updates to such services as generally made available by ISP from time to time; and (b) any related user manuals and documentation provided or made available to Customer (“Documentation”). “Written notice” means notice given in writing by regular mail, email, or hand delivery, with the sender retaining sufficient proof of having given such notice.
2. LICENSE
FOR LIMITED USE. Subject to these Terms and Customer’s payment of all applicable fees, ISP hereby grants Customer a limited, nonexclusive, nontransferable, non-assignable, non-sublicensable right and license during the Term to access and use the Services.
3. RESTRICTIONS
The Services may only be used by Customer for political campaign, PAC, or political party management, unless otherwise agreed by ISP in writing. Customer may not assign, sell, rent, lease, sublicense, lend, transfer, resell or distribute the Services to any third party or use the Services on behalf of any third-party. Customer agrees not to modify, obscure, or delete any proprietary rights notices included in or on the Services. Customer may not modify the Services, make derivative works or merge the Services into any other computer programs. Customer may not copy, reverse engineer, disassemble or decompile the Services, in whole or in part.
4. COMPLIANCE
Customer is responsible for (a) its compliance with this Agreement and any unauthorized use of the Services, (b) the accuracy, quality, and legality of any data provided by Customer to ISP, including all billing and contact information, (c) preventing unauthorized access to or use of Services, and notifying ISP promptly of any such unauthorized access or use, (d) complying with all laws and government regulations applicable to Customer and its use and exploitation of the Services (including all applicable local, state, and federal laws, rules and regulations relating to elections and campaign finance, and all applicable privacy and data security laws, rules and regulations), (e) its use of any data that may be monitored, collected, downloaded, and/or exported via the services (“Collected Data”), and (e) complying with the terms of service and policies of all third party applications and social media platforms that may be used or accessed in connection with the Services.
5. TITLE
Customer acknowledges that, as between Customer and ISP, title and full ownership in and to the Services and all trade secret, copyright and patent rights and all other intellectual property and proprietary rights in and to the Services remain with ISP, whether or not any portion of the Services is or may be validly copyrighted or patented.
6. PAYMENT
Customer agrees to pay to ISP the fees set forth in each applicable Enrollment Form or as otherwise agreed to by Customer during registration. ISP may adjust the applicable fees by giving notice through the Services. Customer’s continued use of the Services following such notice shall constitute Customer’s agreement to pay the adjusted fees. All fees are non-refundable. Unless otherwise agreed to in writing by ISP, monthly fees are payable in advance and shall be paid by ACH transfer on the first day of each calendar month, or on such other dates or at such other frequency (e.g., weekly, biweekly, or otherwise) as ISP may specify from time to time. ISP reserves the right to suspend Services in the event of late payment. Customer shall be responsible for any fees and costs of collection, including attorneys’ fees and costs, incurred by ISP in respect of any unpaid amounts. Any undisputed amounts remaining unpaid 30 days following the payment due date and all disputed payments that are paid following the resolution of such dispute shall bear interest accruing from the original payment due date through the date that such amounts are paid at the lower interest rate of (a) 1.0% per month and (b) the highest interest rate allowed by law. Customer is solely responsible for all taxes, fees, duties and governmental assessments (except for taxes based on ISP’s net income) that are imposed or become due in connection with the subject matter of the Agreement.
7. TERM AND TERMINATION.
A.Term. The Agreement begins on the Effective Date, and shall continue (a) until terminated as provided herein or (b) if not so terminated, for the Term specified in the Enrollment Form.
B.Termination for Breach. ISP may immediately terminate the Agreement if Customer breaches any material term or condition of this Agreement; provided, however, that if any such breach is curable, ISP may terminate the Agreement if Customer fails to cure such breach within ten days of written notice to Customer describing such breach
C.Termination for Convenience.
Client may terminate this agreement, for any reason or no reason, by utilizing the cancel billing feature
within the ISP application. Such termination will be effective at the end of the current billing period.
Client may also terminate by providing written notification before the end of the current billing period.
Company may terminate agreement for any reason or no reason but must provide a minimum of 90 days written notice.
D.Effect of Termination. Any payment obligations as of the termination or expiration of this Agreement shall remain in effect. Those provisions of these Terms that by their nature should survive any termination of the Agreement shall be deemed to survive and remain in full force and effect, including, but not limited to Sections 1, 3, 4, 5, 6 (until all payments are made), 9-12, 14, 16-21, and this Section 7(D).
8. SUPPORT
During the Term, ISP will provide such support services, if any, as may be specified in an Enrollment Form or that are made generally available to ISP’s other customers receiving such services for accounts in good standing with billing rates over Two Hundred and Twenty Five Dollars ($225) per month.
9. DATA IMPORTS
Unless otherwise specified in an Enrollment Form, during the first thirty (30) days of service, at no additional charge, ISP will import up to three (3) data files provided by Customer, provided the account is in good standing with a billing rate over Two Hundred Twenty-Five Dollars ($225.00) per month. Files must be provided in a standard, uniform electronic format. ISP will determine, in its sole and reasonable discretion, whether a submitted file is suitable for import.
10. DISCLAIMERS.
A. THE SERVICES ARE OFFERED “AS IS,” AND CUSTOMER RECEIVES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED OR OTHERWISE. ISP MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE PERFORMANCE OF THE SERVICES, INCLUDING ANY RESULTS THAT MAY BE EXPECTED OR ACHIEVED THROUGH THE SERVICES.
B. ISP SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ISP DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE ACCURATE, UNINTERRUPTED OR ERROR FREE OR THAT THEY WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT, SOFTWARE OR HARDWARE, OR THAT THEY WILL NOT CAUSE ANY LOSS OR CORRUPTION OF DATA. ISP ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY, LOSS OF LIFE, OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, RESULTING FROM CUSTOMER’S ACCESS TO OR USE OF THE SERVICES, (III) UNAUTHORIZED ACCESS TO OR USE OF ISP’S SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (IV) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES THROUGH THE ACTIONS OF ANY THIRD PARTY, AND/OR (V) ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT MADE AVAILABLE VIA THE SERVICES.
11. LIMITATION OF LIABILITY
A. NO CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ISP WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR THE INDIRECT LOSS OF PROFIT, REVENUE OR CONTENT) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF ISP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B. LIMITATION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ISP’S CUMULATIVE, AGGREGATE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR ANY DAMAGES SHALL NOT EXCEED THE MANAGEMENT FEES PAID BY CUSTOMER TO ISP DURING THE SIX MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.
12. INDEMNIFICATION.
A. Indemnity.
(a) By ISP. ISP agrees to defend and hold Customer harmless from and against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) (collectively, “Losses”) incurred by or imposed upon Customer in connection with any third-party claim, action or proceeding (a “Claim”) that the Services as made available to Customer by ISP infringe any patent, copyright, or trademark, or misappropriates any trade secret.
(b) By Customer. Customer agrees to defend and hold ISP, its affiliates and its and their directors, officers, employees, and agents, and its and their respective successors, heirs, and assigns (the “ISP Parties”) harmless from and against any Losses incurred by or imposed upon the ISP Parties or any of them in connection with any Claim arising from or in connection with (a) any breach of the Agreement or these Terms; (b) use of the Services by Customer or any one accessing Customer’s account; or (c) Customer’s use or disclosure of any Collected Data.
(c) Process. Customer or the ISP Party requesting indemnification hereunder (the “Indemnified Party”) will (i) provide the party providing indemnification hereunder (the “Indemnifying Party”) with prompt notice of any such Claim (provided, however, that failure to do so shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent of any material prejudice to the Indemnifying Party as a direct result of such failure); (ii) permit the Indemnifying Party to assume and control the defense of such action upon the Indemnifying Party’s written notice to the Indemnified Party of its intention to indemnify; and (iii) upon the Indemnifying Party’s written request, provide to the Indemnifying Party all available information and assistance reasonably necessary for the Indemnifying Party to defend such Claim. The Indemnified Party shall have the right, at its sole cost and expense, to participate in the defense and settlement of any such Claim with counsel of its choice. Notwithstanding the foregoing, ISP shall have no obligation to indemnify Customer to the extent that any Claim arises from (a) Its use of the Services in contravention of these Terms or the Documentation; (b) the combination or use of the Services with any other services, technology, content or material that were not provided by ISP; (c) modification of the Services; or (d) Its use of the Services after Customer reasonably could have implemented a non-infringing alternative pursuant to Section 11(B)(ii) or (iii).
B. Right to Ameliorate Damages. In the event that a court of competent jurisdiction determines or in the event that ISP, in its sole discretion, reasonably determines, that the Services, or any portion thereof, infringes or misappropriates, or may infringe or misappropriate, any third-party intellectual property right, ISP shall, as Customer’s sole and exclusive remedy (but without limitation of ISP’s obligations under Section 11(A)), and at ISP’s sole discretion, either: (i) obtain a license, at reasonable cost, for Customer to continue using the Services, or portion thereof; (ii) modify the Services while retaining substantively equivalent functionality; (iii) replace the affected Services with functionally equivalent software or services; or (iv) terminate this license in whole or in part (in which event, Customer shall immediately terminate use of such Services and the provisions of Section 7 will apply).
13. CONFIDENTIALITY
In connection with the Agreement or Customer’s use of the Services, ISP may disclose to Customer information of a confidential nature including, without limitation, the Services, product information, data, pricing, financial information, end user information, software, specifications, research and development and proprietary algorithms or other materials, that is (a) clearly and conspicuously marked as “confidential” or with a similar designation or (b) is disclosed in a manner in which ISP reasonably communicated, or Customer should reasonably have understood under the circumstances, that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used (“Confidential Information”). The Agreement and these Terms also constitute Confidential Information. Customer will not publish, disclose or otherwise divulge or use for its own purposes (other than as expressly permitted under these Terms) any Confidential Information of ISP furnished to Customer without the prior written approval of ISP in each instance. Customer will use at least the same level of care to maintain the Confidential Information as Customer uses to maintain the confidentiality of its own non-public information, and in no event less than a reasonable degree of care. The foregoing obligations shall not extend to any information to the extent that Customer can demonstrate that such information (i) was at the time of disclosure or, to the extent that such information thereafter becomes through no fault of Customer’s, a part of the public domain by publication or otherwise; (ii) was already properly and lawfully in Customer’s possession at the time it was received by Customer free from any obligation of confidentiality, (iii) was lawfully received by Customer from a third party who was under no obligation of confidentiality to ISP with respect thereto, or (iv) was independently developed by Customer or Its independent contractors who did not have access to any Confidential Information. In the event that Customer is required to disclose Confidential Information in accordance with judicial or governmental order or requirement, Customer shall promptly notify ISP to allow it to contest the order or requirement or seek confidential treatment for such information.
14. PROMOTION
During the Term, ISP may use Customer’s name and logo in ISP’s promotional collateral and as a reference account.
15. GOVERNING LAW
VENUE AND JURISDICTION. The Agreement and these Terms are to be governed by and interpreted in accordance with the laws of the State of California, U.S.A., without giving effect to its principles of conflict of laws. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Transactions Act shall not apply to these Terms. Any action or proceeding arising out of or relating to the Agreement or these Terms shall be resolved by arbitration in San Diego, California in accordance with the Commercial Dispute Resolution Procedures of the American Arbitration Association and, in the event either party seeks injunctive or provisional relief, the Optional Rules for Emergency Measures of Protection. The arbitration will be heard and determined by a single arbitrator experienced in the software industry. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The prevailing party will be entitled to recover its attorneys’ fees and arbitration costs from the other party. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, but not limited to, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration panel, except as may lawfully be required in judicial proceedings relating to the arbitration or by disclosure rules and regulations of securities regulatory authorities or other governmental agencies. Notwithstanding the foregoing, Customer acknowledges and agrees that in the event that Customer breaches Sections 2, 3, or 12 of these Terms, ISP, without limitation of its other rights and remedies, shall be entitled to seek immediate injunctive relief in any court of competent jurisdiction.
16. ASSIGNMENT
The Agreement may not be assigned, transferred, delegated, sold or otherwise disposed of, including, without limitation, by operation of law, without the prior written consent of the non-assigning party; provided that ISP may assign the Agreement without consent to an affiliated entity or in connection with the sale of all or substantially all its assets.
17. SEVERABILITY
Each provision of these Terms shall be viewed as separate and distinct, and in the event that any provision is deemed to be illegal, invalid or unenforceable, such provision shall be modified to give as much effect as possible to such provision. Any provision which cannot be so modified or reformed shall be deleted and the remaining provisions of these Terms shall continue in full force and effect.
18. NOTICES
All notices provided under these Terms shall be in writing, delivered personally or sent by overnight courier, registered or certified mail to the addresses set forth in the Enrollment Form or such other address as may be specified in writing by notice given in accordance with this Section. All such notices shall be deemed to have been given: (i) upon receipt when delivered personally or (ii) upon verification of receipt via overnight courier, registered or certified mail.
19. WAIVER
Performance of any obligations required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
20. INDEPENDENT CONTRACTORS.
It is the intention of ISP and Customer that ISP and Customer are, and will be deemed to be, independent contractors with respect to the subject matter of the Agreement, and nothing contained in these Terms will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between ISP and Customer.
21. ENTIRE AGREEMENT
The Agreement, including these Terms and the Enrollment Form, is intended by the parties as the final expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous agreement unless such agreement is signed by both parties. These Terms may only be modified or amended pursuant to a written agreement or instrument signed by each party.
22. HEADINGS
Headings are for convenience only and are not deemed to be part of these Terms.
Updated: 05/14/2021.