First Orion Customer Portal Terms of Service
Last Updated: July 12, 2023
These Terms of Service, along with the Order Form and any other terms and policies referenced herein, (the “Terms”) constitute a legally binding agreement as of the Effective Date between First Orion Corp. (herein, “First Orion.” “we,” “us,” or “our”) and the business enterprise set forth or otherwise identified as the end user customer in the Order Form (herein, “Customer,” “you,” or “your”) for the Services.
First Orion may update these Terms from time to time. Notice of any material updates will be provided to the Administrator at least thirty (30) days in advance of the effective date of the updated Terms; provided, however, it may not be possible to provide thirty (30) days prior written notice of material updates that result from changes in laws, regulations, or requirements from third parties utilized to provide the Services. The updated version of these Terms will be available on the Customer Portal or the First Orion Global Privacy and Legal Dashboard found at https://firstorion.com/first-orion-global-privacy-and-compliance-dashboard/ (the “Legal Dashboard”) and will supersede all prior versions. Customer’s continued use of the Services after the effective date of the updated Terms constitutes acceptance of such updated Terms.
Capitalized terms will have the meaning assigned to such terms where defined throughout these Terms. Each of First Orion or Customer is sometimes described in these Terms as a “party” and together, “parties.”
“Administrator(s)” or “Admin(s)” means the person(s) designated by Customer to be authorized and responsible for creating and maintaining User IDs, passwords or other security credentials on Customer’s behalf.
“Affiliate(s)” means any entity that directly or indirectly controls or is controlled by, or is under common control with, the party specified. For purposes of this definition, “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.
“Customer Data” means content, data, and other information in any format, which is submitted, uploaded, transmitted or otherwise made available by or for Customer to First Orion in connection with the use of the Services under these Terms.
“Customer Portal” means the First Orion portal through which Customer can register for First Orion’s Basic Service and through which Customer can consume other Services offered by First Orion. The Customer Portal can be accessed at portal.firstorion.com.
“Data Protection Laws” means, with respect to a party, all data protection laws, rules, regulations and orders of governmental authority (including laws, rules, and orders of governmental authorities of the European Union (“EU”), the European Economic Area (“EEA”) and their Member States, Switzerland, the United Kingdom (“UK”), the United States of America, and the privacy and data protections laws and regulations of any other country) to the extent applicable to such party’s processing of Personal Data under these Terms.
“Documentation” means First Orion’s documentation, including any instructions, usage guides and policies related to the operation and use of the Services which may be made available on the Customer Portal.
“Effective Date” means the earlier of (i) your acceptance of these Terms through the Customer Portal or (ii) the effective date set forth in an Order Form.
“Fees” means all amounts payable by Customer to First Orion for the use of the Services, including ongoing fees and any other fees or charges set out in the applicable Order Form.
“Order” or “Order Form” means the ordering document, agreement, or online order specifying the Services to be provided by First Orion to Customer, the associated fees and such additional terms and conditions as specified in the Order and any addenda and supplements thereto. An Order Form may be completed using an online form or in-product screens or any other mutually agreed upon offline form.
“Partner” means a partner or distributor authorized by First Orion to refer, distribute or sell the Services to Customers.
“Personal Data” means any information relating to an identified or identifiable natural person where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. Personal Data shall be interpreted consistent with applicable Data Protection Laws and includes at a minimum “personal information” as defined in those laws.
“Services” means all products and services provided by First Orion or its Affiliates, as applicable, that are set forth in an Order Form, including access to any portal, tool, plug-in or application programming interface (“API”) made available by First Orion as part of the Services. The Services include technical support related to the use of the Customer Portal or APIs, the Customer Portal itself, and the features, functionality, and connectivity provided through First Orion’s proprietary platform.
“Service Specific Terms” means the terms and conditions specific to the Services purchased by Customer as set forth in the applicable Order Form. Service Specific Terms are accessible through the Legal Dashboard. To the extent that the Order Form includes any Services for which Service Specific Terms are listed, the relevant Service Specific Terms form part of these Terms and apply to your use and our provision of the Services.
“Register” means the process through which Customer provides First Orion with information about the Customer that allows First Orion to vet the Customer and its phone numbers so that First Orion can, at a minimum, provide the Basic Service to the Customer.
“User” means a person authorized to access the Customer Portal and use the Services on behalf of Customer who has created a “User Account” on the Customer Portal.
2. Account Creation
- Administrators. Customer agrees to appoint one or more Administrators who will be authorized and responsible for assigning and revoking access privileges for Users. The initial creator of the Customer Account in the Customer Portal will automatically be assigned as an Administrator. The Administrator will have the capability of providing administrative privileges identical to that of the Administrator to any User, including the ability to create and maintain subsequent User Accounts and assigning and revoking access privileges. If these privileges are granted by the Administrator to a User, that User will be considered an Administrator. Customer acknowledges that any Administrator shall have the ability to create, monitor, or modify User’s actions and permissions and control the use of the Services as permitted by the Customer Portal. Customer also agrees that the Administrator shall have the authority on the Customer’s behalf to electronically accept and approve any and all agreements and amendments to agreements by and between First Orion and Customer, including these Terms. The Administrator(s) appointed for a Customer are, severally and jointly, deemed as the authorized representatives of the Customer, and any decision or action made by any Admin is deemed as a decision or action of Customer.
- Users. Any User creating a User Account in the Customer Portal will establish a User ID and password (“User Credentials”). By creating a User Account, each User consents to receiving communications via email to their registered email address, such as (a) notices about Customer’s use of the Services; (b) updates to the Services and new features or products; (c) administrative messages and other information; and (d) advertising, marketing, and other materials regarding products and services offered by First Orion. Customer is responsible for limiting access to the Customer Portal to its authorized users and for maintaining the confidentiality of all User Credentials. Customer will require all Users to keep their password strictly confidential and to not share such information with any unauthorized person and will notify First Orion immediately of any unauthorized use. First Orion will not be liable for any loss or damage arising from unauthorized use of Customer Account. Customer is responsible for the activities of all of its Users, including Order Forms they may place and how Users use the Customer Data, even if those Users are not from Customer’s organization or domain. Further, Customer acknowledges that any action taken by a User of a Customer Account is deemed an authorized action by Customer.
- Single Sign-On. Should Customer utilize Single Sign-On (SSO), Customer must ensure that User Credentials are protected in accordance with all reasonable security standards and safeguards. First Orion will take reasonable steps to permit only authorized access to the Customer Portal using the User Credentials. Should unauthorized access to the Customer Portal occur through the negligent, willful or otherwise unlawful disclosure or use of the User Credentials, Customer shall indemnify First Orion against any losses, damage or hacking to First Orion systems caused by such disclosure or use.
3. Business Registration
- Registration Information. To use any of the Services offered by First Orion, Customers must Register. Only businesses (which includes sole proprietors and other entities such as valid charitable organizations and governmental entities) are eligible to Register. As part of the registration process, you must provide us with information regarding Customer’s business (business name, physical address, phone number, URL, DUNS number, EIN, and industry code), contact information (name, email address and phone number), the business phone numbers being used, the call purpose, the call category applicable to the calls you are making and such other information as we may reasonably require. You must provide true, accurate, current, and complete information about the Customer(s) as requested during Registration, and you must keep the information true, accurate, current, and complete after Registration for as long as you utilize the Services. Until all required information has been reviewed and approved, Customer’s use of the Services will be on a preliminary basis only. If Customer breaches these Terms, including, without limitation, all payment obligations, Customer will be strictly prohibited from Registering new businesses until the breach has been remedied in full. We may accept or reject your Registration in our sole discretion.
- Continued Right to Use Phone Numbers. You acknowledge the need for accuracy with respect to the business registration information provided in the Customer Portal including your ownership or right to use the calling party number(s) submitted for use with the Services, and you represent and warrant that you are the owner or otherwise have the right to use the numbers that you are calling from (also referenced as the calling party or A number(s)) submitted for registration with First Orion and use with the Services. Further, you will promptly advise First Orion in writing (which may include removal of the A number(s) from Registration with First Orion) when you no longer own or have the right to use any such A number.
- Basic Service. Registered Customers will receive our “Basic Service” for free. The Basic Service allows Registered Customers to submit the numbers that it owns or has the right to use so that the legitimate use of those numbers is not tagged by us as scam. Other Services offered through our Customer Portal in addition to the Basic Service are generally provided for a fee.
- Use of Registration Data. Once you have been Registered, we may offer you the opportunity in the Customer Portal to opt-in to provide your Registration data to other analytics engines. If you opt-in, we will provide your Registration data to them to utilize that data for their call analytics and call protection services.
5. First Orion Responsibilities
- Provision of Services. We will (a) make the Services available to you in accordance with these Terms, our Documentation, and any applicable Order Form; (b) comply with our Security Overview for the Services; (c) provide the Services in accordance with laws applicable to our provision of the Services to our customers generally (i.e. without regard for your particular use of the Services), subject to your use of the Services in accordance with these Terms, the applicable Documentation, and any applicable Order Form(s); (d) process Customer Data in accordance with these Terms and any applicable Service Specific Terms; and (e) use trained, qualified personnel in connection with the provision of the Services.
- Suspension of Services. We may suspend all or any part of the Services if we, in good faith, determine: (a) that you breach any provision of these Terms or our Acceptable Use Policy; (b) that our provision of the Services is prohibited by applicable law or regulation; (c) that there is any use of the Services by you that in our judgment threatens the security, integrity or availability of the Services; or (d) that information in your account is or becomes untrue, inaccurate, incomplete or fraudulent. We will notify you immediately in the event suspension is necessary. You will remain responsible for the Fees (as defined below).
- Changes. First Orion may, in its sole discretion, make changes to the Customer Portal, any Services, APIs, system or platform that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of the Services; (b) the competitive strength of, or market for, the Services or APIs; (c) the Customer Portal, a platform or a system’s cost efficiency or performance, or (ii) to comply with applicable law. We will use reasonable efforts to let you know at least thirty (30) days prior to the implementation of any material changes to the existing Customer Portal, Services, APIs, system or platform.
6. Customer Responsibilities
Customer will: (a) be solely responsible for all use of the Services and Documentation under your account, including the quality and integrity of any Customer Data and other information made available to us by or for you in order for us to provide the Services under these Terms; (b) use the Services only in accordance with these Terms, our Acceptable Use Policy (located on the Legal Dashboard), the applicable Documentation, any applicable Order Form(s), and applicable law or regulation; (c) do your best to prevent unauthorized access to or use of the Services and notify us promptly of any such unauthorized access or use; (d) provide reasonable cooperation regarding information requests from law enforcement, regulators, or third parties we utilize to provide the Services; and (e) comply with the representations and warranties you make in Section 12 (Representations, Warranties, and Disclaimer). Unless you are otherwise authorized in writing by First Orion, you may not allow, and may not allow others to (i) transfer, resell, lease, license, or otherwise make available the Services to third parties or offer them on a standalone basis; (ii) copy, reproduce, republish, upload, post, transmit, resell, or distribute in any way, any data, content, or any part of the Services, Documentation, or the Customer Portal except as expressly permitted by applicable law; (iii) work around any of the technical limitations of the Services or enable functionality that is disabled or prohibited; (iv) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any code or underlying ideas or algorithms of any part of the Services; or (v) perform or attempt to perform any actions that would interfere with the normal operation of the Services or affect use of the Services by our other users.
7. Ownership and Reservation of Rights
As between the parties, First Orion owns and reserves all right, title, and interest in and to the Customer Portal, the Services, the Documentation, First Orion’s Confidential Information, any data that is derived from the use of the Services that does not directly or indirectly identify Customers, and any feedback or suggestions provided by or on behalf of Customer regarding the Services. As between the parties, Customer owns and reserves all right, title, and interest in and to Customer’s Confidential Information, and the Customer Data, subject to First Orion’s rights to process Customer Data in accordance with these Terms.
8. Customer Data
Customer grants to First Orion and its Affiliates the right to process Customer Data in a manner consistent with these Terms in order to (a) provide the Services; (b) mitigate fraud or other harm to customers; (c) analyze, develop, support, monitor, and improve the Services and the Customer Portal; and (d) compile aggregated, anonymized data derived from Customer’s use of the Services and the Customer Portal to compile statistics, metrics, insights and general trend data about the Services and the Customer Portal for use in connection with First Orion’s marketing and promotion purposes at First Orion’s discretion. To the extent that First Orion processes any Personal Data on your behalf as a data processor when performing its obligations under these Terms, the Data Processing Addendum (located on the Legal Dashboard) shall apply.
9. Term and Termination
- Term. Unless earlier terminated as provided in these Terms, the term applicable to the Services will be as set forth in the applicable Order Form. In the event no term is specified, the term shall be month to month, and either Customer or First Orion may terminate at any time, effective as of the end of a month.
- Termination For Convenience. Unless otherwise set forth in an applicable Order Form, either party may terminate these Terms for any reason upon thirty (30) days written notice to the other party. Notwithstanding the preceding sentence, if there is an Order Form(s) in effect, Customer may not terminate these Terms until such Order Form(s) has expired or been terminated in accordance with its terms.
- Termination for Material Breach. First Orion may terminate these Terms (including all Order Form(s)) in the event Customer commits any material breach of these Terms and fails to remedy such material breach within thirty (30) days of the date written notice of such material breach is provided. For the avoidance of doubt, any breach of our Acceptable Use Policy will be considered a material breach of these Terms. Customer may also terminate these Terms (including all Order Form(s)) in the event First Orion commits a material breach of these Terms and fails to remedy such material breach within thirty (30) days of the date written notice of such material breach is provided.
10. Fees and Payments
- Fees. In consideration for the provision of the Services, Customer shall pay the Fees as set forth in each Order Form between Customer and First Orion. Unless indicated otherwise, Fees are (i) stated in US dollars and (ii) non-cancelable and non-refundable. Except as set forth in an Order Form, First Orion reserves the right to adjust the Fees by providing written notice to Customer at least sixty (60) days prior to the end of the then-current term (and such adjusted Fees will take effect upon the applicable renewal). In the event Customer fails to pay the Fees in accordance with the Order Form, First Orion reserves the right to try to collect payment at a later time and/or suspend or cancel the Services, without notice.
- Taxes. Customer will be responsible for, and agrees to pay, all sales, use, excise, and value-added taxes, or taxes of a similar nature (excluding personal property taxes and taxes based on First Orion’s income which shall be borne by First Orion) imposed by the United States, any state or local government or other taxing authority, on the use of the Services or Fees paid by Customer under the Order Form (“Taxes”). Customers exempt from paying certain Taxes must provide necessary exemption information or a valid exemption certificate issued by the appropriate authority via e-mail to email@example.com. Once the exemption request is approved, Customer will be exempt on a going-forward basis. If the appropriate authority determines, at any time, that Customer is not exempt from paying any Taxes, Customer will promptly pay such Taxes to First Orion, plus any applicable interest or penalties.
- Billing. As part of creating a Customer Account or submitting information in connection with the use of Services, Customer agrees to provide First Orion with updated, accurate and complete billing information, and Customer authorizes First Orion (either directly or through our Affiliates or other third parties) to charge, request, and collect payment (or otherwise refund or take any other billing actions) from Customer’s payment method or designated banking account and to make any inquiries that First Orion (or its Affiliates and/or third-parties acting on its behalf) may consider necessary to validate Customer’s designated payment account or financial information to ensure prompt payment, including for the purpose of receiving updated payment details from Customer’s credit card company or banking account (e.g., updated expiry date or card number as may be provided to us by Customer’s credit card company).
- Payment and Contracting Self-Service Payments. First Orion uses a third-party payment processor to process and collect payments for Services purchased through the Customer Portal. Customer agrees to provide all information required by the payment processor to facilitate payment and authorizes First Orion, either directly or through the payment provider, to charge Customer for the Fees when due during the term applicable to the Services. Monthly Fees will be billed in advance based on the Effective Date. Any overage Fees or Fees based on usage or consumption criteria (e.g., per treated call) due will be billed in arrears. The termination or cancellation of the Services does not end Customer’s obligation to pay Fees for services rendered, including overage Fees.
- Payment through Partner. If Customer purchased a Service through a Partner, then to the extent there is any conflict between these Terms and the agreement entered between Customer and the respective Partner, including any purchase order (“Partner Agreement”), then, as between Customer and First Orion, these Terms shall prevail. Any rights granted to Customer and/or any of its Users in such Partner Agreement which are not contained in these Terms apply only in connection with the Partner. In that case, Customer must seek redress or enforcement of such rights solely with the Partner and not First Orion. For clarity, Customer’s and its Users’ access to the Services is subject to the receipt from Partner of the payment of the applicable Fees paid by Customer to Partner. Customer hereby acknowledges that at any time, at our discretion, the billing of the Fees may be assigned to us, such that Customer shall pay us directly the respective Fees. The amounts paid to First Orion by the Partner for Customer’s use of the Services will be deemed the amount paid or payable by Customer for purposes of Section 14, Limitation of Liability.
- Confidential Information. Either party (the “Disclosing Party”) may from time to time disclose Confidential Information to the other party (the “Recipient”). “Confidential Information” is all nonpublic information in any form that is disclosed to either party by or on behalf of the Disclosing Party concerning the business, technology, proprietary software, pricing, business plans, forecasts, marketing information, trade secrets and/or financial performance and strategies of the Disclosing Party which is conveyed to the Recipient orally or in tangible form and is either marked as “confidential” or which, due to the circumstances surrounding its disclosure or its nature or sensitivity, should have been understood by the Recipient as intended to be treated as confidential.
- Obligations. Recipient agrees to hold all Confidential Information in confidence and trust and will not disclose or disseminate, or permit any employee, agent or other party working under Recipient’s direction to disclose or disseminate the existence, source, content or substance of any Confidential Information to any other party. Recipient shall use Confidential Information of the Disclosing Party only as necessary for the performance of this Agreement. Recipient will employ at least the same methods and degree of care, but no less than a reasonable degree of care, to prevent disclosure of the Confidential Information as Recipient employs with respect to its own confidential trade secrets and proprietary information. Recipient’s employees, independent contractors, and agents will be given access to the Confidential Information only on a need-to-know basis and under a duty to maintain the confidentiality of the Confidential Information.
- Exceptions. Confidential Information will not include information that: (i) is now generally known or available or which hereafter, through no act or failure to act on the part of Recipient, becomes generally known or available; (ii) is rightfully known to Recipient at the time of receiving such information; (iii) is furnished to Recipient by a third party without restriction on disclosure and without a breach by such third party of any confidentiality undertaking with respect thereto; or (iv) is independently developed by Recipient without the use of the Disclosing Party’s Confidential Information. Recipient may also disclose Confidential Information if disclosure is required by operation of law or if required by a court, tribunal or administrative agency; provided that, unless prohibited by law, the Recipient shall give the Disclosing Party as much advance written notice as is reasonably practicable under the circumstances so as to permit the Disclosing Party to take commercially reasonable actions at its own expense to prevent disclosure.
- Remedies. Each party acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure or use of Confidential Information and that each party may seek, without waiving any other rights or remedies, such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. At Disclosing Party’s option, Recipient shall promptly either destroy all Confidential Information in tangible form in its possession or return all such copies to Disclosing Party, and in either event provide a written certification confirming the same, promptly upon Disclosing Party’s written request.
12. Representations, Warranties, and Disclaimers
- Mutual Representations. Each party represents and warrants that: (a) it is validly existing and in good standing under the laws of the place of its establishment or incorporation; and (b) it has full corporate power and authority to execute, deliver and perform its obligations under the Terms.
- Customer Representations. Customer represents and warrants that: (a) Customer is eligible to Register and use the Services; (b) any information provided to us in connection with the Customer Account and the Services is accurate and complete; (c) Customer will comply with all laws, rules and regulations applicable to Customer’s business and its use of the Services (including, without limitation, all applicable laws, rules and regulations in any way related to calls you are making (e.g., Telephone Communications Protection Act of 1991, Fair Debt Collection Practices Act, Do Not Call Registry, Telemarketing Sales Rule and Truth in CallerID); (d) Customer’s employees, contractors and agents will at all times act consistently with these Terms; (e) Customer will not use the Services, directly or indirectly, for any fraudulent or illegal undertaking, or in any manner that interferes with the normal operation of the Services.
- DISCLAIMER. WITHOUT LIMITING A PARTY’S EXPRESS WARRANTIES AND OBLIGATIONS UNDER THESE TERMS, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 12, THE SERVICES ARE PROVIDED “AS IS,” AND WE MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. YOU ACKNOWLEDGE THE INTERNET AND TELECOMMUNICATIONS PROVIDERS’ NETWORKS ARE INHERENTLY INSECURE. ACCORDINGLY, YOU AGREE WE ARE NOT LIABLE FOR ANY CHANGES TO, INTERCEPTION OF, OR LOSS OF CUSTOMER DATA WHILE IN TRANSIT VIA THE INTERNET OR TELECOMMUNICATIONS PROVIDER’S NETWORK.
- Indemnification by Us
- Scope of Indemnification. We will defend you from and against any claim, demand, suit, or proceeding made or brought against you by a third party alleging that our provision of the Services infringes or misappropriates such third party’s intellectual property rights (“Infringement Claim”). We will indemnify you from any damages, fines or penalties imposed by a government or regulatory body, attorneys’ fees, and costs awarded against you or for settlement amounts approved by us for an Infringement Claim.
- Infringement Options. If our provision of the Services has become, or in our opinion is likely to become, the subject of any Infringement Claim, we may at our option and expense: (a) procure the right to continue providing the Services as set forth in these Terms; (b) modify the Services to make them non-infringing; or (c) if the foregoing options are not reasonably practicable, terminate these Terms, or, if applicable, terminate the Services that are the subject of any Infringement Claim, and refund you any unused pre-paid Fees.
- Limitations. We will have no liability or obligation under this Section 13(a) with respect to any Infringement Claim (a) arising out of your use of the Services in breach of these Terms; (b) arising out of the combination, operation, or use of the Services with other applications, portions of applications, products, or services where the Services would not by themselves be infringing; or (c) arising from Services for which there is no charge.
- Indemnification by You. You will defend us, our officers, directors, employees, and Affiliates (collectively, “First Orion Indemnified Parties”) from and against any claim, demand, suit, or proceeding made or brought against a First Orion Indemnified Party by a third party alleging or arising out of your breach of Section 6 (Customer Responsibilities) (“Customer Indemnifiable Claims”). You will indemnify us from any damages, fines or penalties imposed by a government or regulatory body, attorneys’ fees, and costs awarded against a First Orion Indemnified Party or for settlement amounts approved by you for a Customer Indemnifiable Claim.
- Conditions of Indemnification. As a condition of the foregoing indemnification obligations: (a) the indemnified party (“Indemnified Party”) will promptly notify the indemnifying party (“Indemnifying Party”) of any Infringement Claim or Customer Indemnifiable Claim (individually and collectively referred to as a “Claim”); provided, however, any failure to give such prompt notice will not relieve Indemnifying Party of its obligations under this Section 13 except to the extent that Indemnifying Party was actually prejudiced by such failure; (b) Indemnifying Party will have the sole and exclusive authority to defend or settle any Claim; and (c) Indemnified Party will reasonably cooperate with Indemnifying Party in connection with Indemnifying Party’s activities under this Section 13 at Indemnifying Party’s expense. Indemnified Party reserves the right, at its own expense, to participate in the defense of any Claim. Notwithstanding anything to the contrary in this Section 13, Indemnifying Party will not settle any Claims for which it has an obligation to indemnify pursuant to this Section 13 admitting liability or fault on behalf of Indemnified Party, nor create any obligation on behalf of Indemnified Party, without Indemnified Party’s prior written consent which will not be unreasonably withheld, conditioned, or delayed.
- Exclusive Remedy. This Section 13 states Indemnifying Party’s sole liability to, and Indemnified Party’s exclusive remedy against, the other party for any third-party claims.
14. Limitation of Liability
- LIMITATION ON INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES. IN NO EVENT WLL EITHER PARTY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, LOST DATA, BUSINESS INTERRUPTION, OR PUNITVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
- LIMITATION OF LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE AMOUNTS PAID OR PAYABLE BY YOU UNDER THESE TERMS FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
- EXCEPTIONS TO THE LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 14(a) (LIMITATION ON INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES) AND SECTION 14(b) (LIMITATION OF LIABILITY), THE LIMITATIONS IN SECTION 14(a) AND SECTION 14(b) DO NOT APPLY TO (a) YOUR BREACH OF SECTION 6 (CUSTOMER RESPONSIBILITIES); (b) YOUR BREACH OF SECTION 10 (FEES AND PAYMENTS; OR (c) AMOUNTS PAYABLE PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 13 (INDEMNIFICATION).
THE PROVISIONS OF THIS SECTION 14 ALLOCATE THE RISKS PURSUANT TO THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH IN THIS SECTION 14 IN DETERMINING WHETHER TO ENTER INTO OR OTHERWISE ACCEPT THESE TERMS.
- No Waiver and Order of Preference. No failure or delay by either party in exercising any right or enforcing any provision under these Terms will constitute a waiver of that right or any provision. Any waiver must be in writing and signed by the party against whom such waiver is asserted to be legally binding. Titles and headings of sections of these Terms are for convenience only and will not affect the construction of any provision of these Terms. In the event of any conflict or inconsistency among the following documents, the order of precedence will be (1) the applicable Order Form, (2) any applicable Service Specific Terms, (3) these Terms, (4) our Acceptable Use Policy, (5) any other terms incorporated by reference herein, and (6) the applicable Documentation.
- Assignment. You will not assign, delegate, or otherwise transfer these Terms or any applicable Order Form(s), in whole or in part, without our prior written consent. Any attempt by you to assign, delegate, or transfer these Terms or any applicable Order Form(s) without our consent will be null and void. We may assign, delegate, or otherwise transfer these Terms or any applicable Order Form(s) in whole or in part, without your consent. Subject to this Section, these Terms and any applicable Order Form(s) will be binding on each party and each party’s successors and assigns.
- Relationship. The relationship of the parties is that of independent contractors. Nothing in these Terms is intended to create or will be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Each party will be solely responsible for its respective employees and agents and all related costs and expenses. Each party will also be solely responsible for any and all claims, liabilities, damages, or defects of any type that may arise on account of each of its respective activities, or those of its respective employees and agents, in the performance of these Terms. Neither party has the authority to commit the other party in any way and will not attempt to do so or imply that it has the right to do so.
- Severability. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect.
- Notices and Consent to Electronic Delivery. Notices to us under these Terms will be provided via email to firstname.lastname@example.org. You agree that we can provide Notices regarding the Services to you through our website, through your Customer Account, or by mailing Notices to the email or physical addresses identified in your account. Notices may include notifications about your account, changes to the Services, or other information we are required to provide to you. You also agree that electronic delivery of a Notice has the same legal effect as if we provided you with a physical copy. We will consider a Notice to have been received by you within 24 hours of the time a Notice is either posted to the Customer Portal or our website or emailed to you.
- Force Majeure. No failure, delay, or default in performance of any obligation of a party will constitute an event of default or breach of these Terms to the extent that such failure to perform, delay, or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil, or military authority, fire, strike, lockout, or other labor dispute, flood, terrorist act, war, riot, theft, earthquake or other natural disaster. The party affected by such cause will take all reasonable actions to minimize the consequences of such cause.
- Dispute Resolution. In the event of a disputed claim or controversy arising out of or in connection with these Terms or the breach, termination, enforcement, interpretation, or validity thereof other than for disputes, claims, or controversies related to the intellectual property of a party (“Dispute”), each party’s senior representatives will engage in good faith negotiations with the other party’s senior representatives to amicably resolve a Dispute. If parties are unable to resolve a Dispute within thirty (30) days after the first request to engage in good faith negotiations or within such other time period as the parties may agree to in writing, then either party may commence binding arbitration under Section 15(h).
- Binding Arbitration. In the event that there is a dispute, claim or controversy arising out of or relating to statutory or common law claims, the breach, termination, enforcement, interpretation or validity of any provision of these Terms, and the determination of the scope or applicability of your agreement to arbitrate any dispute, claim or controversy originating from these Terms, but specifically excluding any dispute principally related to either party’s intellectual property (which such dispute will be resolved in litigation before the United States District Court for the Eastern District of Arkansas), will be determined by arbitration in Little Rock, Arkansas before a single arbitrator. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules. The arbitrator will apply the substantive law of the State of Arkansas, exclusive of its conflict or choice of law rules. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the provisions in this paragraph referencing applicable substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) will govern any arbitration conducted pursuant to these Terms. Either party may commence arbitration by providing to the American Arbitration Association and the other party to the dispute a written demand for arbitration setting forth the subject of the dispute and the relief requested.
- Service of Process. Each party hereby irrevocably and unconditionally consents to service of process through personal service at their corporate headquarters, registered address, or primary address (for individuals or sole proprietors). Nothing in these Terms will affect the right of any party to serve process in any other manner permitted by applicable law.
- Class Waiver. To the fullest extent permitted by law, each of the parties agrees that any dispute arising out of or in connection with these Terms, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim or dispute proceeds in court rather than through arbitration, each party knowingly and irrevocably waives any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to these Terms or any of the transactions contemplated between the parties.
- Provision of an Award. Subject to the limitations of liability identified in Section 14 of these Terms, the appointed arbitrators may award monetary damages and any other remedies allowed by the laws of the State of Arkansas. In making a determination, the arbitrator will not have the authority to modify any term or provision of these Terms. The arbitrator will deliver a reasoned written decision with respect to the dispute (the “Award”) to each party, who will promptly act in accordance with the Award. Any Award (including interim or final remedies) may be confirmed in or enforced by a state or federal court located in Little Rock, Arkansas. The decision of the arbitrator will be final and binding on the parties and will not be subject to appeal or review.
- Arbitration Fees. Each party will advance one-half of the fees and expenses of the arbitrator, the costs of the attendance of the arbitration reporter at the arbitration hearing, and the costs of the arbitration facility. In any arbitration arising out of or related to these Terms, the arbitrator will award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with those aspects of its claims or defenses on which it prevails, and any opposing awards of costs and legal fees awards will be offset.
- Confidentiality. The parties will maintain the confidential nature of the arbitration proceeding, the hearing and the Award, except (i) as may be necessary to prepare for or conduct the arbitration hearing on the merits, (ii) in connection with a court application as contemplated above for a preliminary remedy, or confirmation of an Award or its enforcement, (iii) our disclosure of the Award in confidential settlement negotiations, or (iv) as otherwise required by applicable laws. The parties, witnesses, and arbitrator will treat as confidential and will not disclose to any third person (other than witnesses or experts) any documentary or other evidence produced in any arbitration hereunder, except as required by applicable law or except if such evidence was obtained from the public domain or was otherwise obtained independently from the arbitration.
- Conflict of Rules. If any provision of this agreement to arbitrate is held invalid or unenforceable, it will be so held to the minimum extent required by law and all the other provisions will remain valid and enforceable.
- Governing Law and Venue. Unless unenforceable under applicable law, these Terms will be governed by and interpreted in accordance with the laws of Arkansas without regard to conflicts of laws and principles that would cause the laws of another jurisdiction to apply. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Any legal suit, action, or proceeding arising out of or related to these Terms or the Services will be instituted in the courts of Pulaski County, Arkansas, and each party consents to the personal jurisdiction of these courts.
- Entire Agreement. Except as provided in these Terms and any exhibits or attachments, applicable Order Form(s), or other terms incorporated by reference into these Terms, these Terms supersede all prior and contemporaneous proposals, statements, sales materials, presentations, or agreements, oral and written. No oral or written information or advice given by us, our agents, or our employees will create a warranty or in any way increase the scope of the warranties or obligations under these Terms. Any term or condition stated in your vendor registration form or registration portal or in any purchase order document or similar document provided by you will be construed solely as evidence of your internal business processes, and the terms and conditions contained thereon will be null and void and have no effect with regard to these Terms between the parties and be non-binding against us even if accepted or signed by us after the date your accept these Terms.