Branded Calling Services Terms and Conditions

These Branded Calling Services Terms and Conditions (the “Terms”), together with each applicable Order, the Data Processing Addendum, the Acceptable Use Policy, any applicable Pass-Through Terms, and any other terms expressly incorporated by reference, constitute the “Agreement” between First Orion UK Ltd. (“First Orion,” “we,” “us,” or “our”) and the business enterprise creating a Customer account or identified as the end-user customer in an Order (“Customer,” “you,” or “your”). The Agreement becomes effective on the Effective Date.

These Terms, the Data Processing Addendum, the Acceptable Use Policy, and the Pass-Through Terms are available on the First Orion Global Privacy and Legal Dashboard at https://firstorion.com/legal (the “Legal Dashboard”). First Orion may update these Terms, the Acceptable Use Policy, the Pass-Through Terms, and other policies posted on the Legal Dashboard from time to time. Notice of any material update will be provided to the Administrator at least thirty (30) days before the update takes effect; provided that advance notice may not be possible when an update is required by applicable law, regulation, or a Distribution Partner. Updated documents will be posted on the Legal Dashboard and will supersede prior versions as of their stated effective date. Orders and the Data Processing Addendum may be amended only in accordance with their terms or by written agreement of the parties. Customer’s continued use of the Services after the effective date of an update constitutes acceptance of the updated terms.

Capitalized terms have the meanings assigned to them in these Terms. First Orion and Customer may each be referred to as a “party” and together as the “parties.”

1. Definitions

“A Number” means an outbound calling telephone number used by or on behalf of Customer.

“Administrator” means the person(s) designated by Customer to be authorised and responsible for creating and maintaining User IDs, passwords, or other security credentials on Customer’s behalf.

“Affiliate” means any entity that directly or indirectly controls, 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.

“Agent” means an agent or representative who Customer authorises in writing to act on the Customer’s behalf in connection with the Agreement, including any Order, the Euro Portal, or the Services.

“Agreement” means, collectively, these Terms, each applicable Order, the Data Processing Addendum, the Acceptable Use Policy, any applicable Pass-Through Terms, and any other terms expressly incorporated by reference.

“Authenticated” means a call that has been verified using Call Authentication.

“B Number” means the called party telephone number of a subscriber of a Distribution Partner.

“Business Process Outsourcer” or “BPO” means a business that originates calls on behalf of an enterprise under a written agreement with that enterprise.

“Call Authentication” means First Orion’s end-to-end authentication method that pairs an A Number with a B Number at the time of a call using application programming interfaces (“APIs”), SIP configuration, or another supported protocol.

“Call Logo” means a logo image delivered with an INFORM call.

“Call Reason” means the stated reason for an INFORM call.

“Content” means, individually or collectively, an Inform Display, Call Logo, and Call Reason delivered for display on a Device. Delivery of Content may be referred to as branding a call or delivering a branded call.

“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. Customer Data may include, as applicable, Customer’s business name, Content, A Numbers submitted for branding, branded calling volumes, B numbers, call traffic information, and performance indicators used to provide, measure, support, monitor, and protect the Services. Customer Data does not include data that has been irreversibly de-identified in accordance with applicable law such that it cannot reasonably be used to identify Customer or any individual.

“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 the Agreement.

“Device” means a handset or similar device capable of displaying Content associated with an incoming call.

“Distribution Partner” means a third party that provides functionality or capability used to distribute Content or otherwise deliver the applicable Services.

“Distribution” means functionality or capability, whether provided by First Orion or a Distribution Partner, that enables delivery of Content to Devices.

“Documentation” means First Orion’s documentation, including instructions, usage guides, and policies relating to the operation and use of the Services that First Orion makes available through the Euro Portal or otherwise provides to Customer.

“Effective Date” means the earlier of (i) Customer’s acceptance of these Terms through the Euro Portal or (ii) the effective date stated in an Order.

“Euro Portal” means the First Orion portal through which Customer can utilize Services offered by First Orion. The Euro Portal can be accessed at https://portal-eu.firstorion.com.

“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.

“INFORM” means First Orion’s branded calling Service that enables Customer to set an Inform Display for registered A Numbers used for outbound calls to Devices.

“Inform Display” means the alphanumeric caller name delivered to a Device through the use of the Services. The number of characters, including spaces, depends on the applicable Distribution channel.

“INFORM with Logo” means First Orion’s branded calling Service that enables delivery of a Call Logo and Call Reason, in addition to the Inform Display, with an Authenticated INFORM call to a Device.

“Order” means an ordering document or online agreement that specifies the Services to be provided by First Orion to Customer, the associated Fees, and any additional terms and conditions.

“Partner” means a partner or distributor authorised by First Orion to refer, distribute, or sell the Services to Customers.

“Pass-Through Terms” means the flow-down provisions imposed by a Distribution Partner for use of its functionality or capability. The Pass-Through Terms form part of the Agreement when Customer uses the applicable Distribution Partner’s functionality or capability.

“Personal Data” has the meaning given to that term, or to an equivalent term such as “personal information,” under applicable Data Protection Laws.

“Program” means the instructions established for a particular calling purpose, including the applicable A Number, Content, and period during which the Content should be delivered.

“Services” means the products and services identified in an Order or otherwise made available to Customer under the Agreement, together with related access to the Euro Portal, applications, tools, configurations, plug-ins, APIs, technical support, features, functionality, and connectivity provided through First Orion’s proprietary platform.

“Subscription Period” means the period for which Customer purchases a prepaid subscription to INFORM as set forth in the Order or plan description.

“Usage Data” means data and other information relating to the access, use, operation, security, support, performance, configuration, functionality, and availability of the Services, the Euro Portal, APIs, and related systems. Usage Data may include technical logs, metadata, telemetry, diagnostic information, authentication records, audit records, system performance information, error reports, and aggregated or statistical information regarding use of the Services. For clarity, Usage Data does not include Customer Data or Personal Data in identifiable form, except to the extent such information has been aggregated or de-identified in accordance with applicable law such that it no longer identifies Customer or any individual.

“User” means a person who has created a User account on the Euro Portal and is authorised to access the Euro Portal and use the Services on behalf of Customer.

2. Account Creation

1. Administrators. Customer will appoint one or more Administrators responsible for assigning and revoking User access. The individual who initially creates the Customer account will be an Administrator and may grant equivalent administrative privileges to other Users. Each Administrator may create and maintain User accounts, assign and revoke access privileges, and manage Users’ actions and permissions as permitted by the Euro Portal. An Administrator may electronically accept agreements and amendments relating to the Customer account and Services on Customer’s behalf. Customer represents that each Administrator has authority to act for Customer, and Customer is responsible for each Administrator’s decisions and actions.
2. Users. Each User will establish a user ID and password (“User Credentials”). Customer is responsible for limiting access to authorised Users and maintaining the confidentiality of User Credentials. Customer will require Users not to share User Credentials with unauthorised persons and will notify First Orion promptly of unauthorised use. First Orion will not be liable for loss or damage arising from unauthorised use except to the extent caused by First Orion’s breach of the Agreement. Customer is responsible for its Users’ activities, including Orders placed and use of Customer Data, and actions taken through a Customer account will be treated as authorised by Customer.
3. Communications with Administrators and Users. By creating a Customer account or User account, each Administrator and User consents to receive operational communications at the registered email address, including (i) notices concerning Customer’s use of the Services, (ii) updates to the Services, and (iii) administrative and legally required messages. Advertising and marketing communications will be sent only as permitted by applicable law and in accordance with the recipient’s communication preferences. Subject to applicable law and, where required, the recipient’s prior consent, First Orion may also send Administrators and Users promotional communications regarding First Orion’s products, services, features, and offers. Recipients may withdraw their consent to or opt out of promotional communications at any time by using the unsubscribe or opt-out instructions included in the applicable communication or by contacting First Orion at support@firstorion.com. Opting out of promotional communications will not affect service-related communications that are necessary to administer the Customer Account, provide the Services, or comply with applicable law. Text-message recipients may also reply STOP to opt out or HELP for assistance where those commands are supported. Message frequency varies, and standard message and data rates or other carrier charges may apply.
4. Developer Portal. In order to access or use certain Services, it may be necessary to connect your applications, websites, products, services, or platforms to the Euro Portal. You may access First Orion Preview Materials, Credentials, or First Orion Developer Tools (as defined in the Developer Terms located on the Legal Dashboard) to do so. In addition to the Agreement, provisions applicable to your access and use of First Orion Preview Materials, Credentials, and Developer Tools can be found in the Developer Terms.

3. Business Vetting

1. Registration. To use the Services, Customer must satisfy First Orion’s vetting process by registering through the Euro Portal. Customer will provide true, accurate, current, and complete business information, including its business name, physical address, telephone number, website, company registration number, industry code, DUNS number if applicable, contact information, A Numbers, call purposes, call categories, and other reasonably requested information. First Orion may review information submitted by Customer together with supplemental sources used for business verification. Customer will keep its registration information current for as long as it uses the Services. Following approval, First Orion may share relevant registration information with applicable Distribution Partners so they may approve or reject Customer’s use of their Distribution capabilities. First Orion may accept or reject a registration in its discretion. If Customer breaches the Agreement, including its payment obligations, First Orion may prohibit Customer from registering additional businesses until the breach is remedied.
2. Continued Right to Use A Numbers. Customer represents and warrants that it owns or otherwise has the right to use each A Number submitted for registration or use with the Services. Customer will promptly notify First Orion and remove an A Number from registration when Customer no longer owns or has the right to use that A Number.

4. First Orion Responsibilities

1. Right to Access and Use. Subject to the Agreement, First Orion grants Customer a limited, non-exclusive, non-transferable, and non-sublicensable right, during the term of the applicable Order, for authorised Users to access and use the Euro Portal and Services for Customer’s internal business purposes and other uses expressly permitted by the applicable Order.
2. Provision of Services. First Orion will (i) make the Services available in accordance with the Agreement and Documentation; (ii) maintain commercially reasonable administrative, technical, and physical safeguards for Customer Data; (iii) comply with laws applicable to First Orion’s provision of the Services generally; (iv) process Customer Data in accordance with the Agreement; and (v) use trained, qualified personnel to provide the Services.
3. Changes. First Orion may make changes to the Euro Portal, Services, APIs, applications, systems, or platforms that it reasonably considers necessary or useful to maintain or enhance quality, delivery, competitiveness, cost efficiency, performance, security, legal compliance, or compliance with Distribution Partner requirements. First Orion will use reasonable efforts to provide at least thirty (30) days’ prior notice of a material change. First Orion will not materially reduce the functionality, performance, or security of the Services during an applicable Order term unless required by applicable law or a Distribution Partner. If such a required change materially and adversely affects Customer’s use, Customer may terminate the affected Services and First Orion will refund prepaid Fees attributable to the unused portion of those Services.
4. Distribution. The applicable Distribution Partners will be identified in the Order or Euro Portal. Onboarding time may vary by Distribution Partner.
5. Education and Training. First Orion will make reasonable online instructions, tutorials, or other training materials available to facilitate Customer’s use of the Services.
6. Customer Support. Customer support is available Monday through Friday from 08:00 to 17:00 GMT through Zendesk in the Euro Portal or at eu.enterprisesupport@firstorion.com. Customer authorises First Orion to access the Customer account when reasonably necessary to provide support, subject to the Agreement.
7. Reporting. Standard reports will be made available through the Euro Portal at no additional charge.
8. Delivery Limitations. Delivery and display of Content depend on the applicable Distribution Partner, Device, network, and other technical limitations. A Device may not support all Content, and the appearance of a Call Logo or Call Reason may vary. If a Device does not support the specified Content, the call may be delivered with an Inform Display only.

5. Customer Responsibilities

1. Compliance and Use Restrictions. Customer is responsible for its use of the Services, Documentation, Customer Data, and information provided for the Services, except to the extent unauthorised use results from First Orion’s breach of the Agreement. Customer will (i) use the Services only in accordance with the Agreement, Documentation, and applicable law; (ii) use commercially reasonable efforts to prevent unauthorised access or use and notify First Orion promptly of any unauthorised access or use; (iii) reasonably cooperate with lawful requests from regulators, law enforcement, and third parties used to provide the Services; and (iv) comply with Section 12. Except as expressly permitted in an Order, Customer will not transfer, resell, lease, license, or make the Services available to third parties; copy or distribute the Services, Documentation, or Euro Portal except as permitted by law; circumvent technical limitations; reverse engineer the Services; or interfere with the normal operation of the Services.
2. Agents. Customer may appoint Agents to act on its behalf in connection with the Services. Customer will ensure that each Agent is authorised and complies with the Agreement, and Customer is responsible for each Agent’s acts and omissions as if they were Customer’s own. First Orion may rely on the authority of an Agent reasonably believed to act for Customer.
3. Business Process Outsourcing. Customer may use the Services as a BPO only if expressly authorised in an Order. Before establishing a Program for an enterprise customer, Customer will notify First Orion in writing of the enterprise customer’s identity. Each enterprise customer is subject to First Orion’s and the applicable Distribution Partner’s vetting and approval. Customer represents and warrants that it has authority under a valid written agreement to deliver branded calls for each enterprise customer and will require each enterprise customer to comply with applicable provisions of the Agreement.
4. Branded Calling Compliance. Customer will comply with the Acceptable Use Policy (https://firstorion.com/legal#euro-aup) and applicable Pass-Through Terms https://firstorion.com/legal#euro-pass-through-terms when using the Services.
5. Programs. Customer is responsible for establishing and maintaining Programs in accordance with the Documentation and information provided through the Euro Portal.
6. Customer Calls. Customer may use the Services for its own calls by designating Content in accordance with the Documentation.
7. Affiliate and Subsidiary Calls. Customer may use the Services for an Affiliate or subsidiary only if expressly authorised in an Order. Customer will notify First Orion before establishing a Program for a new Affiliate or subsidiary, and each entity is subject to applicable vetting and approval.
8. Permitted Third-Party Use. Use by an authorised Agent, Affiliate, subsidiary, BPO, enterprise customer, or Partner in accordance with the Agreement does not violate Section 5(a).

6. Ownership and Reservation of Rights

As between the parties, First Orion owns and reserves all right, title, and interest in and to the Euro Portal, Services, Documentation, First Orion’s Confidential Information, Usage Data, and feedback or suggestions provided by or on behalf of Customer. As between the parties, Customer owns and reserves all right, title, and interest in and to Customer’s Confidential Information and Customer Data, subject to First Orion’s rights to process Customer Data under the Agreement.

7. Customer Data and Usage Data

1. Processing and Protection of Customer Data. Customer authorises First Orion and its Affiliates to process Customer Data during the period in which First Orion provides the Services and during any post-termination retention required by applicable law or the Data Processing Addendum, solely to (i) provide, support, secure, and improve the Services and Euro Portal; (ii) mitigate fraud or other harm; and (iii) comply with applicable law. Customer authorises First Orion to disclose Customer Data to applicable Distribution Partners to manage call traffic, manage branding activity, conduct Customer vetting, provide advanced support, provide the Services, and confirm compliance with applicable law. First Orion will maintain commercially reasonable administrative, technical, and physical safeguards designed to protect Customer Data against unauthorised access, use, alteration, or disclosure. The Data Processing Addendum applies when First Orion processes Personal Data on Customer’s behalf as a processor.
2. Usage Data. First Orion may collect and analyse Usage Data and may use de-identified and aggregated Usage Data during and after the applicable Order term to maintain, improve, and enhance First Orion’s products and services. First Orion will not use Usage Data in a manner that identifies Customer, an individual, or Customer’s Confidential Information.

8. Use and Suspension

1. Grounds for Suspension. First Orion may suspend all or part of the Services if it determines in good faith that (i) Customer has breached the Agreement; (ii) provision of the Services is prohibited by applicable law; (iii) Customer’s use threatens the security, integrity, or availability of the Services; (iv) information in the Customer account is untrue, inaccurate, incomplete, or fraudulent; or (v) Customer’s use may cause material harm to First Orion, the Services, or others using the Services, including Distribution Partners. Except where immediate suspension is reasonably necessary to prevent material harm or comply with law or a Distribution Partner directive, First Orion will provide prior notice.
2. Distribution Partner Suspensions. The Services may be suspended in whole or in part, including at an enterprise, business, or individual A Number level, in response to a request or directive from a Distribution Partner. First Orion will notify Customer promptly and identify required corrective actions, if applicable.
3. Cooperation and Fees During Suspension. Customer will reasonably cooperate in investigating events that resulted in suspension. Customer remains responsible for Fees during any suspension resulting from Customer's breach of the Agreement, violation of applicable law, fraudulent activity, or failure to comply with a corrective action reasonably requested by First Orion or a Distribution Partner.
4. Additional Restrictions. First Orion may impose additional restrictions or prohibitions on use of the Services when required by applicable law or a Distribution Partner. First Orion will notify Customer as soon as reasonably practicable, and Customer will comply with the restriction or prohibition.

9. Term and Termination

1. Term. Unless earlier terminated under the Agreement, the term for the Services will be stated in the applicable Order. If no term is stated, the Services will continue month-to-month, and either party may terminate effective at the end of a monthly period by providing at least thirty (30) days’ written notice.
2. Termination for Convenience. Either party may terminate these Terms for any reason upon thirty (30) days’ written notice. If an Order remains in effect, the Terms will continue to apply to that Order until the Order expires or is terminated in accordance with its terms.
3. Termination for Material Breach. Either party may terminate the affected Order or Services if the other party materially breaches the Agreement and fails to cure the breach within thirty (30) days after written notice. A party may terminate all Orders only if the breach materially affects the parties’ overall relationship or cannot reasonably be limited to the affected Order or Services. A breach of the Acceptable Use Policy constitutes a material breach.
4. Additional Termination Right. First Orion may terminate all or a portion of the Services provided under an Order to the extent a Distribution Partner precludes or materially modifies First Orion’s ability to provide such Services. First Orion will provide notice of a termination under this section promptly upon becoming aware of the circumstances giving rise to the termination right. In the event of a termination under this Section 9(d), First Orion will refund to Customer any prepaid Fees for unused Services.

10. Fees and Payments

1. Fees. Customer will pay the Fees stated in each Order. Fees will be payable in the currency stated in the Order and, unless the Order provides otherwise, are non-cancellable and non-refundable. Except as stated in an Order, First Orion may adjust Fees for a renewal term by providing at least sixty (60) days’ written notice before the end of the then-current term.
2. Taxes. All amounts payable by Customer are exclusive of VAT and any other applicable taxes, duties, or levies, which will be payable by Customer in addition to the Fees due. First Orion will include any applicable VAT on its invoices and will provide valid VAT invoices where required by law. Customer will not be responsible for any taxes based on First Orion’s income, profits, or payroll. Customers exempt from paying certain taxes must provide necessary exemption information or a valid exemption certificate issued by the appropriate authority via email to accounting@firstorion.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. Notwithstanding the foregoing, First Orion may specify Fees for Services that are inclusive of taxes and in such event the invoice provided to the Customer will state that the invoiced Fees are inclusive of taxes. If the Customer is not subject to, or exempt from, all or any portion of the taxes, for those Fees which are inclusive of taxes, there will be no adjustment to the Fees.
3. Billing. Customer will provide accurate and complete billing information and keep it current. Customer authorises First Orion, its Affiliates, payment processors, and other third parties acting on its behalf to charge or refund Customer’s designated payment method or bank account and to make inquiries reasonably necessary to validate the account or payment information and process payment.
4. Payment – Prepaid Services.
   1. If Customer purchases a prepaid plan, Fees are payable in advance for the Subscription Period. First Orion may use a third-party payment processor, and Customer will provide information reasonably required to process payment and authorises First Orion or the processor to charge Fees when due.
   2. Customer may cancel a prepaid plan at any time, effective at the end of the current Subscription Period. If Customer reactivates before the end of that period, billing will continue without interruption. Prepaid plans will automatically renew for successive Subscription Periods unless Customer cancels before the renewal date.
   3. Each prepaid plan includes a monthly limit on branded calls. When Customer reaches the limit, branding will stop without overage charges unless Customer purchases additional branded calls. An additional-call purchase is a one-time charge and does not change or renew the underlying plan.
   4. Customer may upgrade a prepaid plan at any time. A downgrade becomes effective at the end of the current Subscription Period. Call Authentication and INFORM with Logo are not included with prepaid plans.
5. Payment – Postpaid Services.
   1. For postpaid Services, Fees, including usage-based Fees such as per-branded-call charges, will be billed in arrears and invoiced monthly unless the Order states otherwise. Monthly or minimum Fees may be prorated for a partial first or last month.
   2. Payments are due within thirty (30) days after the invoice date (the “Due Date”). If Customer fails to pay any undisputed amount by the Due Date, First Orion may charge interest on the overdue amount at the rate and in the manner permitted under the Late Payment of Commercial Debts (Interest) Act 1998, as amended from time to time. For the avoidance of doubt, First Orion reserves all rights and remedies available under that Act, including statutory compensation and recovery of costs to the extent permitted by law. If any undisputed invoice remains unpaid more than thirty (30) days after the Due Date, First Orion may suspend the affected Services upon at least five (5) days’ prior written notice. Payments will be made by bank transfer or other electronic method reasonably required by First Orion. First Orion may, with Customer’s agreement where required, delegate invoicing, billing, or collection to a third party.
6. Payment through Partner. If Customer purchases Services through a Partner, Customer will pay the applicable fees to the Partner in accordance with Customer’s agreement with the Partner (the “Partner Agreement”). First Orion may suspend or terminate the Services for the Partner’s failure to remit payment only if First Orion provides Customer with prior written notice and a reasonable opportunity to arrange continued service directly with First Orion or another authorised Partner. The Agreement governs Customer’s access to and use of the Services. The Partner Agreement governs the commercial relationship between Customer and the Partner, including any rights or obligations that apply solely between them. To the extent of a conflict concerning Customer’s access to or use of the Services, the Agreement will control. Customer will seek enforcement of rights granted solely under the Partner Agreement against the Partner and not First Orion. First Orion may assume direct billing for the Services upon prior written notice to Customer. The notice will specify the effective date of the change and the Fees payable directly to First Orion. Customer will not be required to pay First Orion any amount previously paid to the Partner for the same Services. For purposes of Section 14, the Fees paid or payable by Customer to the Partner for the affected Services will be treated as Fees paid or payable by Customer under the Agreement.

11. Confidentiality

1. Confidential Information. Either party (the “Disclosing Party”) may disclose Confidential Information to the other party (the “Recipient”). “Confidential Information” means non-public information disclosed by or on behalf of the Disclosing Party concerning its business, technology, proprietary software, pricing, business plans, forecasts, marketing information, trade secrets, financial performance, or strategies that is marked confidential or that reasonably should be understood to be confidential based on its nature or the circumstances of disclosure.
2. Obligations. The Recipient will protect the Disclosing Party’s Confidential Information using at least reasonable care and no less than the care it uses for its own confidential information of similar sensitivity. The Recipient will use Confidential Information only as necessary to perform or exercise rights under the Agreement and will disclose it only to employees, contractors, and agents who have a need to know and are bound by confidentiality obligations.
3. 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.
4. Remedies. Each party acknowledges that monetary damages may be inadequate for unauthorised use or disclosure of Confidential Information and that the affected party may seek appropriate injunctive or equitable relief without waiving other rights or remedies.
5. Return, Destruction, and Retention. Upon the Disclosing Party's written request or upon expiration or termination of the Agreement, the Recipient will promptly return or destroy the Disclosing Party's Confidential Information in its possession or control, in any form or medium, including paper records, electronic records, databases, and other stored information, and upon request provide written certification of such return or destruction. Notwithstanding the foregoing, the Recipient may retain copies of Confidential Information (i) as required by applicable law, regulation, legal process, or governmental authority, (ii) pursuant to bona fide records-retention policies, or (iii) in routine backup, disaster-recovery, security, or archival systems, provided that any retained Confidential Information remains subject to the confidentiality obligations set forth herein and is not accessed, used, or disclosed except as permitted by the Agreement. To the extent Confidential Information cannot reasonably be removed from backup or archival systems, the Recipient will not be required to delete such information until such systems are overwritten or retired in the ordinary course of business.
6. Survival. The obligations set forth in this Section 11 will survive expiration or termination of the Agreement for a period of five (5) years; provided, however, that obligations relating to Confidential Information that constitutes a trade secret under applicable law will survive for so long as such information remains a trade secret. Any Confidential Information retained pursuant to Section 11(e) will remain subject to the confidentiality obligations set forth in this Section 11 for so long as it is retained.

12. Representations, Warranties, and Disclaimers

1. Mutual Representations. Each party represents and warrants that (i) it is validly existing and in good standing under the laws of its place of establishment or incorporation and (ii) it has full power and authority to enter into and perform its obligations under the Agreement.
2. Customer Representations. Customer represents and warrants that (i) it is eligible to register for and use the Services; (ii) information provided in connection with the Customer account and Services is accurate and complete; (iii) it has all rights necessary to use each A Number and Content submitted for the Services; (iv) it will comply with laws applicable to its business, calls, Content, and use of the Services; (v) its employees, contractors, Agents, Affiliates, subsidiaries, and enterprise customers will comply with applicable provisions of the Agreement; and (vi) it will not use the Services for fraudulent or illegal activity or in a way that interferes with the normal operation of the Services.
3. DISCLAIMER. WITHOUT LIMITING EITHER PARTY’S EXPRESS WARRANTIES AND OBLIGATIONS UNDER THE AGREEMENT, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 12, THE SERVICES ARE PROVIDED “AS IS.” FIRST ORION MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND, TO THE FULLEST EXTENT PERMITTED BY LAW, SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT THE INTERNET AND TELECOMMUNICATIONS PROVIDERS’ NETWORKS ARE INHERENTLY INSECURE. ACCORDINGLY, FIRST ORION WILL NOT BE LIABLE FOR ANY ALTERATION, INTERCEPTION, OR LOSS OF CUSTOMER DATA WHILE IN TRANSIT OVER THE INTERNET OR A TELECOMMUNICATIONS PROVIDER’S NETWORK, EXCEPT TO THE EXTENT CAUSED BY FIRST ORION’S BREACH OF ITS EXPRESS OBLIGATIONS UNDER THE AGREEMENT, INCLUDING THE DATA PROCESSING ADDENDUM. NOTHING IN THIS SECTION 12(c) EXCLUDES, LIMITS, OR MODIFIES FIRST ORION’S OBLIGATIONS OR LIABILITY UNDER THE DATA PROCESSING ADDENDUM.

13. Indemnification

1. Indemnification by First Orion
   1. Scope of Indemnification. First Orion will defend Customer and its officers, directors, employees, and Affiliates (collectively, the “Customer Indemnified Parties”) against any third-party claim, demand, suit, or proceeding alleging that Customer’s authorised use of the Services in accordance with the Agreement infringes or misappropriates a third party’s intellectual property rights (an “Infringement Claim”). First Orion will indemnify the Customer Indemnified Parties against reasonable legal fees and costs incurred by First Orion in defending the Infringement Claim and any damages, judgments, settlements, or other amounts finally awarded against, or paid in a settlement entered into in accordance with Section 13(c) on behalf of, a Customer Indemnified Party as a result of the Infringement Claim.
   2. Infringement Remedies. If the Services become, or in First Orion’s reasonable opinion are likely to become, the subject of an Infringement Claim, First Orion may, at its option and expense: (A) procure the right for Customer to continue using the affected Services; (B) modify or replace the affected Services so that they are no longer infringing without materially reducing their functionality; or (C) if neither of the foregoing options is reasonably practicable, terminate the affected Services or applicable Order and refund any prepaid Fees attributable to the unused portion of the terminated Services.
   3. Exclusions. First Orion will have no obligation under this Section 13(a) to the extent an Infringement Claim arises from: (A) Customer’s use of the Services in breach of the Agreement or Documentation; (B) any modification of the Services not made or authorised by First Orion; (C) the combination, operation, or use of the Services with any product, service, software, data, content, process, or material not provided or authorised by First Orion, where the Services would not otherwise be infringing; (D) Customer Data, Content, or other materials provided by or on behalf of Customer; or (E) Customer’s continued use of the affected Services after First Orion has provided a non-infringing replacement or modification or instructed Customer to discontinue that use.
2. Indemnification by Customer. Customer will defend First Orion, its officers, directors, employees, and Affiliates (collectively, the “First Orion Indemnified Parties”) against any third-party claim, demand, suit, proceeding, investigation, or enforcement action arising out of or relating to: (i) Customer’s breach of Section 5; (ii) Customer Data, Content, or other materials provided by or on behalf of Customer, including any allegation that such items infringe, misappropriate, or otherwise violate a third party’s rights; (iii) Customer’s violation of applicable law; or (iv) Customer’s fraudulent, unlawful, or wilful misconduct (each, a “Customer Indemnifiable Claim”). Customer will indemnify the First Orion Indemnified Parties against reasonable legal fees and costs incurred by Customer in defending the Customer Indemnifiable Claim; any damages, judgments, settlements, or other amounts finally awarded against, or paid in a settlement entered into in accordance with Section 13(c) on behalf of, a First Orion Indemnified Party; and, to the extent legally permissible, any governmental fines or penalties finally imposed on a First Orion Indemnified Party, in each case as a result of the Customer Indemnifiable Claim.
3. Conditions of Indemnification. A party seeking defence or indemnification under this Section 13 (the “Indemnified Party”) will: (i) promptly provide the party from whom defence or indemnification is sought (the “Indemnifying Party”) with written notice of the applicable Infringement Claim or Customer Indemnifiable Claim (each, an “Indemnifiable Claim”), provided that any delay in providing notice will relieve the Indemnifying Party of its obligations only to the extent the delay materially prejudices the defence of the Indemnifiable Claim; (ii) give the Indemnifying Party sole control of the defence and settlement of the Indemnifiable Claim, to the extent permitted by applicable law and the relevant governmental authority; and (iii) provide reasonable cooperation and assistance, at the Indemnifying Party’s expense. The Indemnified Party may participate in the defence through counsel of its choice at its own expense. The Indemnifying Party will not settle an Indemnifiable Claim without the Indemnified Party’s prior written consent, which may not be unreasonably withheld, conditioned, or delayed, unless the settlement: (A) provides the Indemnified Party with a full and unconditional release from the Indemnifiable Claim; (B) does not include an admission of fault, wrongdoing, or liability by the Indemnified Party; (C) does not impose any monetary or non-monetary obligation on the Indemnified Party; and (D) does not require the Indemnified Party to take or refrain from taking any action or otherwise restrict its business, products, services, or customers.
4. Exclusive Remedy. This Section 13 states the Indemnifying Party’s sole liability to, and the Indemnified Party’s exclusive remedy for, the third-party claims expressly covered by Sections 13(a) and 13(b). This Section 13 does not limit either party’s remedies for a direct breach of the Agreement.

14. Limitation of Liability

1. General Liability Cap. To the extent permitted by law, each party’s total cumulative liability arising out of or related to the Agreement or Services, whether in contract, tort (including negligence), or otherwise, will not exceed the Fees paid or payable by Customer under the applicable Order during the twelve (12) months preceding the first event giving rise to the applicable claim.
2. Exclusion of Certain Damages. To the extent permitted by law, neither party will be liable to the other for any indirect, incidental, consequential, punitive, special, or exemplary damages, or for any loss of profits, revenue, business, reputation, goodwill, in each case to the extent such loss or damage is indirect or consequential, regardless of the legal theory on which liability is based and even if the party has been advised of the possibility of such loss or damage. Except as provided in Section 14(c), neither party will be liable to the other for loss of data or the cost of cover or substitute goods or services.
3. Enhanced Cap. Notwithstanding Section 14(a), each party’s total cumulative liability arising from its breach of Section 11 (Confidentiality), its obligations under Section 13 (Indemnification), or its obligations under the Data Processing Addendum will not exceed three (3) times the Fees paid or payable by Customer under the applicable Order during the twelve (12) months preceding the first event giving rise to the applicable claim. The exclusions in Section 14(b) will not apply to amounts payable to a third party under Section 13 or to loss of Customer Data to the extent caused by First Orion’s breach of the Data Processing Addendum.
4. Liabilities Not Limited. Nothing in the Agreement excludes or limits either party’s liability for: (i) fraud or fraudulent misrepresentation; (ii) death or personal injury caused by its negligence; (iii) wilful misconduct; (iv) misappropriation of the other party’s trade secrets; or (v) any other liability that cannot lawfully be excluded or limited.
5. Allocation of Risk. The provisions of this Section 14 allocate the risks between the parties, and the parties have relied on these limitations in determining whether to enter into the Agreement.

15. General

1. No Waiver. No failure or delay by either party in exercising a right or enforcing a provision of the Agreement constitutes a waiver. A waiver must be in writing and signed by the party against whom it is asserted. Titles and headings are for convenience only and do not affect interpretation.
2. Order of Precedence. If the documents comprising the Agreement conflict, the following order controls: (i) the Data Processing Addendum, but solely with respect to the processing, protection, transfer, retention, deletion, and security of Personal Data, and not with respect to Fees, payment obligations, indemnification, limitation of liability, termination rights, audit rights, governing law, dispute resolution, or other commercial terms unless expressly stated otherwise in the Data Processing Addendum; (ii) the applicable Order; (iii) these Terms; (iv) the Acceptable Use Policy; (v) any applicable Pass-Through Terms; (vi) other terms expressly incorporated by reference; and (vii) the Documentation. For clarity, no update posted to the Legal Dashboard will amend an Order or override any conflicting term expressly negotiated in an Order unless the parties agree otherwise in writing. If documents at the same level conflict, the provision that is more specific to the applicable Service or subject matter will control.
3. Assignment. Neither party may assign, delegate, or otherwise transfer the Agreement, in whole or in part, without the other party’s prior written consent, which is not to be unreasonably withheld, conditioned, or delayed; provided that either party may assign the Agreement without consent to an Affiliate or in connection with a merger, reorganisation, sale of all or substantially all of its assets, or change of control. Subject to this Section, the Agreement will be binding on each party and each party’s successors and assigns.
4. Relationship. The parties are independent contractors. Nothing in the Agreement creates an employer-employee relationship, partnership, joint venture, franchise, or agency relationship between First Orion and Customer. Customer’s appointment of an Agent under the Agreement does not make Customer an agent of First Orion or First Orion an agent of Customer. Each party is responsible for its own personnel, agents, activities, costs, claims, and liabilities. Neither party may bind the other or represent that it has authority to do so.
5. Severability. If any provision of the Agreement 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 the Agreement will continue in full force and effect.
6. Notices and Consent to Electronic Delivery. Notices to First Orion under the Agreement must be sent to legal@firstorion.com. Formal contractual notices to Customer will be sent to the email address stated in the applicable Order or, if there is no Order, the primary email address associated with the Customer account. Operational notices may be delivered through the Euro Portal or the contact information in the Customer account. Electronic notice has the same legal effect as a physical copy. Operational notices are deemed received within twenty-four (24) hours after posting or sending; formal contractual notices are effective when received, unless the applicable Order states otherwise.
7. Force Majeure. No failure, delay, or default in performance of any obligation of a party will constitute an event of default or breach of the Agreement 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 labour dispute, flood, terrorist act, war, riot, theft, earthquake, or other natural disaster. The party affected by such cause will take all reasonable actions to minimise the consequences of such cause.
8. Governing Law. Unless prohibited by applicable law, the Agreement is governed by the laws of England and Wales. The parties submit to the exclusive jurisdiction of the courts of England and Wales for disputes arising out of or relating to the Agreement, including non-contractual disputes or claims.
9. Entire Agreement. The Agreement constitutes the entire agreement between the parties concerning its subject matter and supersedes prior or contemporaneous proposals, statements, sales materials, presentations, and agreements concerning that subject matter. Information or advice provided by First Orion does not create a warranty or expand First Orion’s obligations unless expressly included in the Agreement. A term in Customer’s vendor-registration materials, portal, purchase order, or similar document is evidence only of Customer’s internal process. Such terms have no force or effect and are not binding on First Orion, even if First Orion accepts or signs the document after Customer enters into the Agreement.
10. Survival. Expiration or termination of the Agreement will not affect any rights, obligations, or liabilities that accrued prior to such expiration or termination. The provisions of Sections 6 (Ownership and Reservation of Rights), 7 (Customer Data and Usage Data), 10 (Fees and Payments) to the extent of any unpaid Fees or other accrued payment obligations, 11 (Confidentiality), 13 (Indemnification), 14 (Limitation of Liability), and 15 (General), together with any other provisions that by their nature are intended to survive, will survive expiration or termination of the Agreement. Notwithstanding the foregoing, obligations relating to Confidential Information that constitutes a trade secret under applicable law will survive for so long as such information remains a trade secret, and any Confidential Information retained pursuant to Section 11(e) will remain subject to the confidentiality obligations of Section 11 for so long as it is retained.