First Orion Customer Portal Terms of Service
Last Updated: January 3, 2022
These Terms of Service incorporate the following, each of which is subject to change from time to time:
b. Acceptable Use Policy https://firstorion.com/acceptable-use-policy-dev/
c. Security Overview https://firstorion.com/first-orion-security-overview/
d. Service Specific Terms https://firstorion.com/branded-communications-inform-service-specific-terms-dev/
PLEASE REVIEW THESE TERMS CAREFULLY. ONCE ACCEPTED, THESE TERMS BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND FIRST ORION. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT ACCEPT THESE TERMS, CREATE AN ACCOUNT, OR USE THE SERVICES (AS DEFINED BELOW).
THE SERVICES ARE INTENDED FOR BUSINESS USE OR USE IN CONNECTION WITH AN INDIVIDUAL’S TRADE, CRAFT, OR PROFESSION ONLY, AND ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD USE.
If you have any questions, you can reach Customer Support here (LINK).
In these Term of Service (referred to as these “Terms” or this “Agreement”), the terms “you,” “your,” or “Customer” refer to you. If you are creating an account in order to use the Services on behalf of an organization, then you are agreeing to these Terms for that organization and promising to us that you have the authority to bind that organization to these Terms (and, in which case, the terms “you,” “your,” or “Customer”refer to that organization). The exception to this is if that organization has a separate written agreement with us covering the use of the Services, in which case that agreement will govern such use. The terms “we,” “us,“ “our” or “First Orion” refer to First Orion Corp., a Delaware corporation, with its principal place of business located at 520 Main Street, North Little Rock, Arkansas 72114. First Orion or Customer may also be referred to individually as “party” and together as “parties” in these Terms. To be eligible to use the Services, you must review and accept these Terms.
1. Overview of the Services
The First Orion Customer Portal (“Customer Portal”) allows you to access several services which provide greater transparency to called parties about who is calling them and why. By registering with the Customer Portal, you will receive our “Basic Service” for free. The Basic Service provides protection against fraud with respect to your communications using our proprietary analytics to identify suspicious calls as possible scams or nuisance calls. The Basic Service also identifies scam calls from numbers legitimately used only for inbound calls (“Do Not Originate” or “DNO” numbers) when these numbers are fraudulently used for outbound calls.
Additional services offered through the Customer Portal provide you with the opportunity to display additional information in the caller ID field about who is calling and why by allowing you to specify an alpha-numeric display of up to 32 characters to be displayed on called party devices. In most instances, the services which are in addition to the Basic Service are provided for a fee.
When we refer to the “Services” in these Terms, we mean all products and services (including the Basic Service) provided through the Customer Portal by us or our Affiliates, as applicable, including those products and services that are ordered by you under an Order Form (as defined below) and access to any application programming interface (“API”) made available by us as part of the Services. A more detailed description of the Services can be found in the Services Specific Terms, documentation and additional resources made available to you. The Services include technical support related to use of the Customer Portal, the Customer Portal itself, and the features, functionality, and connectivity provided through our proprietary platform.
When we refer to an “Affiliate” in these Terms, we mean 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. Each of your Affiliates that wants to use the Services must accept these Terms individually and create its own account. In the event our Affiliates provide any part of the Services, we will be responsible for the Services our Affiliates provide.
When we refer to “you,” “your,” or “Customer,” we recognize that we may have a direct relationship with the party utilizing the Services or that the party utilizing the Services is doing so through a partner, reseller, or other channel through which the Services are made available for use. These Terms shall apply to any of the foregoing and we may suspend or terminate all or any portion of the Services in the event a party has not to our satisfaction accepted these Terms.
2. Updates to These Terms
We may update these Terms from time to time. We will provide you with prior written notice of any material updates at least thirty (30) days in advance of the effective date of the updated Terms; provided, however, we may not be able to provide thirty (30) days prior written notice of material updates that result from changes in laws, regulations, or requirements from third parties we utilize to provide the Services. The updated version of these Terms will be available on the Customer Portal and will supersede all prior versions.
Notices for material updates to these Terms will be given in accordance with Section 12.5 (Notices). Except as otherwise specified by us, updates will be effective and binding upon the date indicated at the top of these Terms. Your continued use of the Services on or after the date the updated version of these Terms is effective constitutes your acceptance of such updated Terms. If you do not agree to the updated version of these Terms, you must stop using the Services immediately.
3. Account Creation and Information
3.1 Registration and Permitted Activities. To use the Services, you will be asked to register in the Customer Portal. Only businesses (which includes sole proprietors and other entities such as valid charitable organizations and governmental entities) are eligible to register for an account in the Customer Portal. As part of the registration process, you must provide us with information regarding your business (business name, physical address, phone number, URL, DUNS number and industry), contact information (name, email address and phone number), the business phone numbers being registered, and the call purpose. You must provide true, accurate, current, and complete information about the Customer(s) as requested during the registration process, and you must keep the information true, accurate, current, and complete after you register each Customer account. Until we have reviewed and approved all required information, any use of the Services by you will be on a preliminary basis only. If you breach these Terms, including, without limitation, your payment obligations in Section 7 (Fees and Payment Terms), you are strictly prohibited from registering new accounts until you remedy such breach in full.
3.2 Business Representative. If you are creating an account on behalf of, or as the representative of, a Customer, including as a partner, reseller, or other channel provider that has entered into an agreement with First Orion to make the Services available for use by Customers, you affirm that (i) you are authorized to provide the information described in Section 3.1 on behalf of such Customer and to bind such Customer to these Terms; and (ii) the Customer for whom you are registering has either accepted these Terms or has entered an agreement with you containing terms and conditions as protective of First Orion as these Terms. We may require you to provide additional information or documentation demonstrating your authority. Without our express written consent, you may not register or attempt to register on behalf of a Customer we previously terminated from use of the Services.
3.3 Persons Under Age 18. The following special requirements apply in relation to persons that are not at least 18 years old. If you are a sole proprietor, and you are not at least 18 years old, but you are 13 years old or older, your representative (which must be your parent or legal guardian) must register for you. If you are a legal entity that is owned, directly or indirectly, by an individual who is not at least 18 years old, but the individual is 13 year old or older, your representative must either obtain the consent of your board of an authorized officer. Any such approving board, authorized officer, parent, or legal guardian is responsible to us and is legally bound to these Terms as if it had agreed to these Terms itself. You may not use the Services if you are under 13 years of age.
3.4 Validation and Underwriting. At any time during the Term and your use of the Services, we may require additional information from you to verify your authority to act on behalf of the Customer or validate information you provided. This additional information may include business licenses or other information related to your business which we obtain from you or other service providers or third party sources. You authorize us to retrieve information about you from our service providers and other third parties, including information bureaus and you authorize and direct such third parties to compile and provide such information to us. You acknowledge that this may include your name, address(es), and other data about you. You acknowledge that we may use your information to verify any other information you provide to us, and that any information we collect may affect our assessment of your overall risk to our business. You acknowledge that in some cases, such information may lead to suspension or termination of the Services. We may periodically update this information as part of our underwriting criteria and risk analysis procedures.
4. Provision of the Services
4.1 Our Responsibilities. We will (a) make the Services available to you in accordance with these Terms, our documentation, including any usage guides and policies for the Services contained in such documentation (“Documentation”), and any applicable ordering document between the parties that specifies mutually agreed upon fees for certain Services and other commercial terms (“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) make commercially reasonable efforts to use industry standard measures designed to scan, detect, and delete code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; (e) process Customer Data in accordance with these Terms and the applicable Service Specific Terms; and (f) use trained, qualified personnel in connection with the provision of the Services.
4.2 Suspension of Services. We may suspend all or any part of the Services immediately upon notice to you 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 untrue, inaccurate, or incomplete. You remain responsible for the Fees (as defined below).
4.3 Changes. First Orion may, in its sole discretion, make any changes to any Services, 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, (c) such platform or 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 Services.
5. Your Responsibilities
You will: (a) be solely responsible for all use of the Services and Documentation under your account, including the quality and integrity of any data and other information made available to us by or for you in order for us to provide the Services under these Terms and data specific to you which is created in connection with the delivery of the Services (“Customer Data”); (b) use the Services only in accordance with these Terms, our Acceptable Use Policy, 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 9 (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; 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 imitations of the Services or enable functionality that is disabled or prohibited; (iv) decipher, decompile, disassemble, reverse engineer or otherwise attempt 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.
You are responsible for limiting access to the Customer Portal to your authorized users and for maintaining the confidentiality of your user IDs and passwords in connection with your use of the Customer Portal. You are responsible for any and all activity that occurs through your account on the Customer Portal. If you suspect any unauthorized use of your account, you must notify us immediately. We will not be liable for any loss or damage arising from unauthorized use of your account.
6. Term, Termination, and Survival
6.1 Term. These Terms, as may be updated from time to time, will commence on the date they are accepted by you and continue until terminated in accordance with Section 6.2 (Termination) (“Term”).
6.2.1 For Convenience. Unless otherwise set forth in an applicable Order Form, either party may terminate these Terms and close all of your accounts 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.
6.2.2 Material Breach. We may terminate these Terms (including all Order Form(s)) and close all of your accounts in the event you commit any material breach of these Terms and fail to remedy such material breach within thirty (30) days of the date we provide written notice of such material breach to you. For the avoidance of doubt, your breach of our Acceptable Use Policy will be considered a material breach of these Terms. You may also terminate these Terms (including all Order Form(s)) in the event we commit a material breach of these Terms and fail to remedy such material breach within thirty (30) days of the date you provide written notice of such material breach to us.
6.2.3 Insolvency. Subject to applicable law, either party may terminate these Terms immediately and close all of your accounts by providing written notice in the event of the other party’s liquidation, commencement of dissolution proceedings, or any other proceeding relating to a receivership, failure to continue business, assignment for the benefit of creditors, or becoming the subject of bankruptcy.
6.3 Survival. Upon termination of these Terms, the terms of this Section 6.3, and the terms of the following Sections will survive: Section 4.1(b) (regarding our Security Overview), Section 7 (Fees and Payment Terms), Section 8 (Ownership, Customer Data, and Confidentiality), Section 9.3 (Disclaimer), Section 10 (Mutual Indemnification), Section 11 (Limitation of Liability), and Section 12 (General).
7. Fees and Payment Terms
7.1 Fees. You agree to pay the fees set forth in the applicable Order Form(s).
7.2.1 Taxes. All fees are exclusive of any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, communications, or withholding taxes (collectively, “Taxes”). You will pay all Taxes associated with your use of the Services, excluding any taxes based on our net income, property, or employees. If you are required by applicable law to withhold any Taxes from payments owed to us, you will reduce or eliminate such withheld Taxes upon receipt of the appropriate tax certificate or document provided by us. You will provide us with proof of payment of any withheld Taxes to the appropriate authority. Taxes will be shown as a separate line item on an invoice.
7.2.2 Exemption. If you are exempt from paying certain Taxes, you will provide the necessary exemption information as requested by us or a valid exemption certificate issued by the appropriate authority via e-mail to firstname.lastname@example.org. You will be exempt on a going-forward basis once we approve your exemption request. If the appropriate authority determines, at any time, that you are not exempt from paying any Taxes, you will promptly pay such Taxes to us, plus any applicable interest or penalties.
7.3 Payment Terms. Payment obligations are non-cancelable and fees and Taxes (collectively, “Fees”) once paid, are non-refundable. Except as otherwise set forth in the applicable Order Form(s) and subject to Section 7.4 (Payment Disputes), you will pay the Fees due under these Terms in accordance with the following applicable payment method:
7.3.1 Invoicing Payment Terms. Invoices will be sent to you each month via email to the email address(es) you designate in your account. You will pay the Fees due within thirty (30) days of the date of the invoice. Except as otherwise set forth in the applicable Order Form(s), the Fees are payable in United States dollars. If you fail to pay the Fees and remedy such failure within fifteen (15) days of the date we provide you with written notice of the same, we may (a) assess, and you will pay, a late fee of the lesser of 1.5% per month or the maximum amount allowable by applicable law and (b) suspend the Services to all of your accounts until the Fees are paid in full.
7.4 Payment Disputes. You will notify us in writing within sixty (60) days of the date we bill you for the specific portion of any Fees that you wish to dispute in good faith. You may withhold the portion of the Fees which you dispute in good faith until the dispute is resolved. We will not charge you a late fee or suspend the provision of the Services for the portion of the unpaid Fees that are disputed in good faith, unless you fail to cooperate diligently with us or we determine your dispute is not reasonable or brought in good faith.
8. Ownership, Customer Data, and Confidentiality
8.1 Ownership. As between the parties, we exclusively own and reserve all right, title, and interest in and to the patents, copyrights (including rights in derivative works), moral rights, rights of publicity, trademarks or service marks, logos and designs, APIs, trade secrets and other intellectual property embodied by, or contained in the Services, the Documentation, our Confidential Information (as defined below), and any data that is derived from the use of the Services that does not directly or indirectly identify you or any natural person and includes (a) statistical and analytic data which is derived from Service performance data and (b) subject to any restrictions under applicable laws, data that is pseudonymized, de-identified, and/or aggregated such that it could no longer directly or indirectly identify you or any natural person, and any feedback or suggestions provided by you regarding the Services. As between the parties, you exclusively own and reserve all right, title, and interest in and to your Confidential Information and Customer Data, subject to our rights to process Customer Data in accordance with these Terms. First Orion’s intellectual property is protected by copyright, trade secret, patent, and other intellectual property laws and, all rights in First Orion intellectual property not expressly granted to you in these Terms are reserved.
8.2 Customer Data. You grant us and our Affiliates the right to process Customer Data in a manner consistent with these Terms and our Privacy Notice as necessary to (a) provide the Services to you and other Customers, (b) mitigate fraud or other harm to you and other Customers, and (c) analyze, develop, support, monitor, and improve our products, systems, and tools.
8.3.1 Definition. “Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed by either party (“Disclosing Party”) to the other party (“Receiving Party”) that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure, including, without limitation, Order Form(s), Customer Data, security reports and attestations, audit reports, customer lists, pricing, concepts, processes, plans, designs and other strategies, “know how,” financial, and other business and/or technical information and materials of Disclosing Party and its Affiliates. Confidential Information does not include any information which: (a) is publicly available through no breach of these Terms or fault of Receiving Party; (b) was properly known by Receiving Party, and to its knowledge, without any restriction, prior to disclosure by Disclosing Party; (c) was properly disclosed to Receiving Party, and to its knowledge, without any restriction, by another person without breach of Disclosing Party’s rights; or (d) is independently developed by Receiving Party without use of or reference to the Confidential Information of Disclosing Party.
8.3.2 Use and Disclosure. Except as otherwise authorized by Disclosing Party in writing, Receiving Party will not (a) use any Confidential Information of Disclosing Party for any purpose outside of exercising Receiving Party’s rights or fulfilling its obligations under these Terms and (b) disclose or make Confidential Information of Disclosing Party available to any party, except to its, its Affiliates’ and their respective employees, legal counsel, accountants, contractors, and in our case, subcontractors (collectively, “Representatives”) who have a “need to know” as necessary for Receiving Party to exercise its rights or fulfill its obligations under these Terms. Receiving Party is responsible for its Representatives’ compliance with this Section 8.3. Representative will be legally bound to protect Confidential Information of Disclosing Party under terms of confidentiality that are at least as protective as the terms of this Section 8.3. Receiving Party will protect the confidentiality of Confidential Information of Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information but in no event less than reasonable care.
8.3.3 Compelled Disclosure. Receiving Party may disclose Confidential Information of Disclosing Party if so required pursuant to a regulation, law, subpoena, or court order (“Compelled Disclosure”), provided Receiving Party gives Disclosing Party notice of a Compelled Disclosure (to the extent legally permitted). Receiving Party will provide reasonable cooperation to Disclosing Party in connection with a Compelled Disclosure at Disclosing Party’s sole expense.
8.3.4 Injunctive Relief. The parties expressly acknowledge and agree that no adequate remedy may exist at law for an actual or threatened breach of this Section 8.3 and that, in the event of an actual or threatened breach of the provisions of this Section 8.3, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
8.4 Use of Marks. You grant us the right to use your name, logo, and a description of your use case to refer to you on our website or marketing or promotional materials, subject to your standard trademark usage guidelines that your expressly provide to us.
9. Representations, Warranties, and Disclaimer
9.1 You represent and warrant that: (a) you are eligible to register and use the Services and have the authority to execute and perform the obligations required by these Terms; (b) any information you provide us in connection with your account and the Services is accurate and complete; (c) you will comply with all laws applicable to your business and your use of the Services; (d) your employees, contractors and agents will at all times act consistently with these Terms; and (e) you 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.
9.2 Anti-Corruption and International Trade Laws. Each party (a) warrants that it will conduct business in accordance with all applicable anti-corruption, anti-money laundering, economic and trade sanctions, export controls, and other international trade laws, regulations, and governmental orders (collectively, “Anti-Corruption and Trade Laws”) in the jurisdictions that apply directly or indirectly to the Services, including, without limitation, the United States and (b) represents that it has not made, offered, promised to make, or authorized any payment or anything of value in violation of Anti-Corruption and Trade Laws. You will promptly notify us in writing of any actual or potential violation of Anti-Corruption and Trade Laws in connection with the use of the Services and take all appropriate steps to remedy or resolve such violations, including any steps requested by us. You represent that you have obtained and warrant that you will continue to obtain all licenses or other authorizations required to export, re-export or transfer the Services. Each party represents that it is not on any government prohibited, denied, unverified-party, sanctions, debarment, or exclusion list or export-controlled related restricted party list (collectedly, “Sanctions Lists”). You will immediately discontinue your use of the Services if you are placed on any Sanctions List. You represent that you have not and warrant that you will not export, re-export, or transfer the Services to an entity on any Sanctions List without prior authorization from the applicable governmental authority. Notwithstanding anything to the contrary in these Terms, either party may terminate these Terms immediately upon written notice to the other party if the other party is in breach of its obligations in this Section 9.2. If your account is blocked because it is operating in a country or region prohibited under this Section 9.2, you will receive notice of your account being inoperable when you attempt to log into the Customer Portal in such prohibited country or regions.
9.3 DISCLAIMER. WITHOUT LIMITING A PARTY’S EXPRESS WARRANTIES AND OBLIGATIONS UNDER THESE TERMS, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9, 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.
10. Mutual Indemnification
10.1 Indemnification by Us.
10.1.1 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.
10.1.2 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.
10.1.3 Limitations. We will have no liability or obligation under this Section 10.1 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.
10.2 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 5 (Your 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.
10.3 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 10 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 10 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 10, Indemnifying Party will not settle any Claims for which it has an obligation to indemnify pursuant to this Section 10 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.
10.4 Exclusive Remedy. This Section 10 states Indemnifying Party’s sole liability to, and Indemnified Party’s exclusive remedy against, the other party for any third-party claims.
11. Limitation of Liability
11.1 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.
11.2 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.
11.3 EXCEPTIONS TO THE LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 11.1 (LIMITATION ON INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES) AND SECTION 11.2 (LIMITATION OF LIABILITY), THE LIMITATIONS IN SECTION 11.1 AND SECTION 11.2 DO NOT APPLY TO (a) YOUR BREACH OF SECTION 5 (YOUR RESPONSIBILITIES); (b) YOUR BREACH OF SECTION 7 (FEES AND PAYMENT TERMS); OR (c) AMOUNTS PAYABLE PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 (MUTUAL INDEMNIFICATION).
THE PROVISIONS OF THIS SECTION 11 ALLOCATE THE RISKS PURSUANT TO THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH IN THIS SECTION 11 IN DEETERMINING WHETHER TO ENTER INTO OR OTHERWISE ACCEPT THESE TERMS.
12.1 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) these Terms, (3) our Acceptable Use Policy, (4) any other terms incorporated by reference herein, and (5) the applicable Documentation.
12.2 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 12.2, these Terms and any applicable Order Form(s) will be binding on each party and each party’s successors and assigns.
12.3 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.
12.4 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.
12.5 Notices and Consent to Electronic Delivery. Notices to us under these Terms will be provided via email to email@example.com. You agree that we can provide Notices regarding the Services to you through our website or through your account portal, 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 our website or emailed to you.
12.6 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.
12.7 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 (collectively, “Disputes”), 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 12.8.
12.8 Dispute Resolution; Agreement to Arbitrate
12.8.1 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 Expedited Procedures of the American Arbitration Association’s Commercial Arbitration Rules will apply for cases in which no disclosed claim or counterclaim exceeds $75,000 (exclusive of interest, attorneys’ fees and arbitration fees and costs). Where no party’s claim exceeds $25,000 (exclusive of interest, attorneys’ fees and arbitration fees and costs), and in other cases in which the parties agree, Section E-6 of the Expedited Procedures of the American Arbitration Association’s Commercial Arbitration Rules will apply. The arbitrator will apply the substantive law of the State of Arkansas, exclusive of its conflict or choice of law rules. If the American Arbitration Association is no longer in business, or refuses or declines to administer any dispute between the parties brought before it, either party may petition the United States District Court for the Eastern District of Arkansas to appoint the arbitrator. Nothing in this paragraph will preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The parties acknowledge that these Terms evidences 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.
12.8.2 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.
12.8.3 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.
12.8.4 Provision of an Award. Subject to the limitations of liability identified in Section 11 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.
12.8.5 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.
12.8.6 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.
12.8.7 Conflict of Rules: In the case of a conflict between the provisions of this Section 12.8.7 and the rules governing arbitration identified in Section 12.8.1, the provisions of this Section 12.8.7 will prevail. 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.
12.9 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.
12.10 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.