First Orion Terms of Service – ICIP

International CallerID Platform (ICIP)

These Terms of Service, along with the Order and any other terms and policies referenced herein, constitute a legally binding agreement as of the Effective Date between First Orion UK Ltd. (herein, “First Orion.” “we,” “us,” or “our”) and the business enterprise creating a Customer Account or otherwise identified as the end user customer in the Order (herein, “Customer,” “you,” or “your”).

The Terms (including the Service Specific Terms), the Data Processing Addendum, and the Acceptable Use Policy, and the Pass-Through Terms are available on the First Orion Global Privacy and Legal Dashboard found at https://firstorion.com/first-orion-global-privacy-and-compliance-dashboard/ (the “Legal Dashboard”). The Pass-Through Terms are applicable to our Branded Calling Services and can be found at firstorion.com/legal#icip-pass-through-terms. First Orion may update the Terms from time to time. Notice of any material updates will be provided to the Administrator at least thirty (30) days in advance of the effective date of the updated Terms; provided, however, it may not be possible to provide thirty (30) days prior written notice of material updates that result from changes in laws, regulations, or requirements from third parties utilized to provide the Services. Updated Terms will be available on the Legal Dashboard and will supersede all prior versions. Customer’s continued use of the Services after the effective date of the updated Terms constitutes acceptance of such updated Terms.

Capitalized terms will have the meaning assigned to such terms where defined throughout these Terms. Each of First Orion or Customer is sometimes described in these Terms as a “party” and together, “parties.”

1. Definitions

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

“Affiliate(s)” means any entity that directly or indirectly controls, 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 which Customer authorizes in writing to act on the Customer’s behalf in connection with these Terms, including, without limitation, any Order, the Customer Portal, or the Services.

“Branded Calling Data” means data related to your use of Branded Calling Services including, without limitation, Customer’s business name, branded calling volumes and fees, branding content, telephone numbers used for branding, and key performance indicators to measure and monitor branded calling activities.

“Branded Calling Services” means the First Orion solutions that allow businesses to deliver enhanced call information with outbound calls to certain devices as described in the Service Specific Terms.

“Customer Data” means content, data, and other information in any format, which is submitted, uploaded, transmitted, or otherwise made available by or for Customer to First Orion in connection with the use of the Services under these Terms. For Customers using Branded Calling Services, Customer Data includes Branded Calling Data.

“Customer Portal” means the First Orion portal through which Customer can enter information for First Orion’s Business Registration and through which Customer can consume other Services offered by First Orion. The Customer Portal can be accessed at https://portal-eu.firstorion.com.

“Data Protection Laws” means, with respect to a party, all data protection laws, rules, regulations and orders of governmental authority (including laws, rules, and orders of governmental authorities of the European Union (“EU”), the European Economic Area (“EEA”) and their Member States, Switzerland, the United Kingdom (“UK”), the United States of America, and the privacy and data protections laws and regulations of any other country) to the extent applicable to such party’s processing of Personal Data under these Terms.

“Distribution Partner” means any third party that provides functionality or capability which allows for the delivery of calls using the applicable Services.

“Documentation” means First Orion’s documentation, including any instructions, usage guides and policies related to the operation and use of the Services which may be made available on the Customer Portal.

“Effective Date” means the earlier of (i) your acceptance of these Terms through the Customer Portal or (ii) the effective date set forth in an Order.

“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.

“Order” means the ordering document or agreement specifying the Services to be provided by First Orion to Customer, the associated fees and such additional terms and conditions as specified in the Order and any addenda and supplements thereto.

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

“Pass-Through Terms” means the flow-down provisions required by a Distribution Partner for the delivery of Services utilizing the Distribution Partner’s functionality or capability.

“Personal Data” means any information relating to an identified or identifiable natural person where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. Personal Data shall be interpreted consistent with applicable Data Protection Laws and includes at a minimum “personal information” as defined in those laws.

“Services” means all products and services, including Branded Calling Services, provided by First Orion or its Affiliates, as applicable, that are set forth in these Terms or an Order, including access to any application, portal, tool, configuration, plug-in, or application programming interface (“API”) made available by First Orion as part of the Services. The Services include technical support related to the use of the Customer Portal or APIs, the Customer Portal itself, and the features, functionality, and connectivity provided through First Orion’s proprietary platform.

“Service Specific Terms” means the terms and conditions specific to the Services purchased by Customer as set forth in the applicable Order. Service Specific Terms are accessible through the Legal Dashboard or will be part of an Order. To the extent that the Order includes any Services for which Service Specific Terms are listed, the relevant Service Specific Terms form part of these Terms and apply to your use and our provision of the Services.

“Terms” means, collectively, these Terms of Service, the Data Processing Addendum if applicable, any Order(s) entered into by Customer with First Orion including any additional terms referenced in the Order(s), and any applicable Service Specific Terms for the Services being acquired by Customer from First Orion.

“Usage Data” means data and other information relating to the access, use, and performance of the Customer Portal.

“User” means a person authorized to access the Customer Portal and use the Services on behalf of Customer who has created a “User Account” on the Customer Portal.

2. Account Creation

Administrators. Customer agrees to appoint one or more Administrators who will be authorized and responsible for assigning and revoking access privileges for Users. The initial creator of the account of the Customer in the Customer Portal (the “Customer Account”) will automatically be assigned as an Administrator. The Administrator will have the capability of providing administrative privileges identical to that of the Administrator to any User, including the ability to create and maintain subsequent User Accounts and assign and revoke access privileges. If these privileges are granted by the Administrator to a User, that User will be considered an Administrator. Customer acknowledges that any Administrator shall have the ability to create, monitor, or modify User’s actions and permissions and control the use of the Services as permitted by the Customer Portal. Customer also agrees that the Administrator will have the authority on the Customer’s behalf to electronically accept and approve any and all agreements and amendments to agreements by and between First Orion and Customer, including these Terms. The Administrator(s) appointed for a Customer are, severally and jointly, deemed as the authorized representatives of the Customer, and any decision or action made by any Administrator is deemed a decision or action by Customer.
Users. Any User creating a User Account in the Customer Portal will establish a User ID and password (“User Credentials”). Customer is responsible for limiting access to the Customer Portal to its authorized users and for maintaining the confidentiality of all User Credentials. Customer will require all Users to keep their password strictly confidential and to not share such information with any unauthorized person and will notify First Orion immediately of any unauthorized use. First Orion will not be liable for any loss or damage arising from unauthorized use of any User Account. Customer is responsible for the activities of all of its Users, including Orders they may place and how Users use the Customer Data, even if those Users are not from Customer’s organization or domain. Further, Customer acknowledges that any action taken by a User of a Customer Account is deemed an authorized action by Customer.
Communications with Administrators and Users. By creating the Customer Account and each User Account, each Administrator and User consents to receiving communications via email to their registered email address, such as (a) notices about Customer’s use of the Services; (b) updates to the Services and new features or products; (c) administrative messages and other information; and (d) advertising, marketing, and other materials regarding products and services offered by First Orion.
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 Customer 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 these Terms, 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

Registration. To use any of the Services offered by First Orion, Customers must satisfy our vetting process by registering in the Customer Portal. The vetting process is designed to ensure that you are operating, and will continue to operate, ethically when utilizing our Services. As part of the registration process, you must provide us with information regarding Customer’s business (business name, physical address, phone number, URL, DUNS number, company registration number, and industry code), contact information (name, email address, and phone number), the business phone numbers being used, the call purpose, the call category applicable to the calls you are making, and such other information as we may reasonably require. We may also review supplemental data sources in addition to the information submitted. You must provide true, accurate, current, and complete information about the Customer(s) as requested during registration, and you must keep the information true, accurate, current, and complete after registration for as long as you utilize the Services. Once you have been approved, we will share the data collected by us on you with our Distribution Partners so that they are able to accept or reject a request for you to access their Distribution according to their requirements. If Customer breaches these Terms, including, without limitation, all payment obligations, Customer will be strictly prohibited from registering new businesses until the breach has been remedied in full. We may accept or reject your registration in our sole discretion.
Continued Right to Use Phone Numbers. You acknowledge the need for initial and ongoing accuracy with respect to the business registration information provided, including your ownership or right to use the calling party number(s) submitted for use with the Services, and you represent and warrant that you are the owner or otherwise have the right to use the numbers that you are calling from (also referenced as the calling party or A number(s)) as submitted for registration with First Orion and use with the Services. Further, you will promptly advise First Orion in writing when you no longer own or have the right to use any such A number (which may include removal of the A number(s) from registration with First Orion).

4. First Orion Responsibilities

Customer Portal License. Subject to these Terms, First Orion grants Customer a limited, revocable, non-exclusive, non-transferable (subject to Section 14(b)), non-sublicensable license, from the date on which Customer is provided access to the Customer Portal until the earlier of (i) the expiration of the Order or (ii) the date on which the Customer Account is terminated, for Users to access and use the First Orion Customer Portal in connection with Customer’s internal business purposes.
Provision of Services. We will (a) make the Services available to you in accordance with these Terms, our Documentation, and any applicable Order; (b) comply with our Security Policy overview in connection with the provision of 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(s); (d) process Customer Data in accordance with the Terms; and (e) use trained, qualified personnel in connection with the provision of the Services.
Changes. First Orion may, in its sole discretion, make changes to the Customer Portal, any Services, APIs, application, system, or platform that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of the Services; (b) the competitive strength of, or market for, the Services or APIs; (c) the Customer Portal, an application, a platform, or a system’s cost efficiency or performance, (ii) to comply with applicable law, or (iii) to comply with Distribution Partner requirements. We will use reasonable efforts to let you know at least thirty (30) days prior to the implementation of any material changes to the existing Customer Portal, Services, APIs, application, system, or platform.

5. Customer Responsibilities

Customer will: (a) be solely responsible for all use of the Services and Documentation under the Customer account, including the quality and integrity of any Customer Data and other information made available to us by or for you in order for us to provide the Services under these Terms; (b) use the Services only in accordance with these Terms, our Acceptable Use Policy, and the Pass-Through Terms (if listed in the Order), the applicable Documentation, any applicable Order(s), and applicable law or regulation; (c) use best efforts to prevent unauthorized access to or use of the Services and notify us promptly of any such unauthorized access or use; (d) provide reasonable cooperation regarding information requests from law enforcement, regulators, or third parties we utilize to provide the Services; and (e) comply with the representations and warranties you make in Section 12 (Representations, Warranties, and Disclaimers). Unless you are otherwise authorized in writing by First Orion in an Order, you may not, and may not allow others to (i) transfer, resell, lease, license, or otherwise make available the Services to third parties or offer them on a standalone basis; (ii) copy, reproduce, republish, upload, post, transmit, resell, or distribute in any way, any data, content, or any part of the Services, Documentation, or the Customer Portal except as expressly permitted by applicable law; (iii) work around any of the technical limitations of the Services or enable functionality that is disabled or prohibited; (iv) decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any code or underlying ideas or algorithms of any part of the Services; or (v) perform or attempt to perform any actions that would interfere with the normal operation of the Services or affect the use of the Services by our other users.
Agents. Customer may, from time to time, appoint one or more Agents. Any such appointment shall not relieve Customer of its obligations under these Terms. Customer represents and warrants that any Agent acting on its behalf is duly authorized to do so and shall act in accordance with the terms and conditions of these Terms. Customer shall be fully responsible and liable for all acts, omissions, representations, and conduct of its Agents as if such acts or omissions were those of Customer itself. Without limiting the foregoing, Customer remains solely responsible for compliance with these Terms and for any breach of these Terms caused by an Agent. First Orion shall have no obligation to monitor or supervise the activities of any Agent and may rely on the authority of any Agent reasonably believed to be acting on behalf of the Customer.
If an Order provides that Customer may use the Services as a business process outsourcer acting on behalf of its enterprise customers, then Customer represents and warrants that (i) it has obtained the right, title, and interest from each enterprise customer to act on its behalf in connection with the Services and (ii) Customer has a valid and binding written agreement in place with each enterprise customer that provides such right, title, and interest to Customer and requires that each enterprise customer comply with all applicable provisions of these Terms. Customer further understands and agrees that each enterprise customer is subject to any vetting and approval requirements for the provision of the Services.

6. Ownership and Reservation of Rights

As between the parties, First Orion owns and reserves all right, title, and interest in and to the Customer Portal, the Services, the Documentation, First Orion’s Confidential Information, any data that is derived from the use of the Services that does not directly or indirectly identify Customers, and any feedback or suggestions provided by or on behalf of Customer regarding the Services. As between the parties, Customer owns and reserves all right, title, and interest in and to Customer’s Confidential Information, and the Customer Data, subject to First Orion’s rights to process Customer Data in accordance with these Terms.

7. Customer Data and Usage Data

Customer grants to First Orion and its Affiliates, during the term of the applicable Order, the right to process Customer Data in accordance with all Data Protection Laws and in a manner consistent with these Terms in order to (a) provide the Services; (b) mitigate fraud or other harm to customers; and (c) analyze, develop, support, monitor, and improve the Services and the Customer Portal. Customers using Branded Calling Services authorize First Orion to disclose Branded Calling Data to any applicable Distribution Partner for the purposes of (i) managing call traffic flow, (ii) observing and managing branding activity, (iii) Customer vetting, (iv) providing third tier support for the Services as needed, (v) permitting First Orion to perform the Services to the Customer and (vi) confirming compliance with applicable laws. To the extent that First Orion processes any Personal Data on your behalf as a data processor when performing its obligations under these Terms, the Data Processing Addendum (located on the Legal Dashboard) shall apply.
First Orion will have the right to collect and analyze Usage Data and First Orion will be free (during and after the term of the Order) to use Usage Data in de-identified and aggregated form to maintain, improve, and enhance First Orion’s products or services. Examples of Usage Data include technical logs, metadata, telemetry data, and usage information about Customer Data, such as how many times it is accessed. For clarity, Usage Data excludes Customer Data itself.

8. Use and Suspension

We may suspend all or any part of the Services if we, in good faith, determine: (a) that you are in breach of any provision of these Terms; (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; (d) that information in your account is or becomes untrue, inaccurate, incomplete, or fraudulent; or (e) we reasonably believe that your use of the Services may cause material harm to First Orion, the Services, or other entities using the Services including Distribution Partners.
The Services may also be suspended in their entirety, at an enterprise level, on a business level, or on an individual telephone number basis in connection with any request or directive by a Distribution Partner. We will notify you immediately in the event suspension is necessary including any required corrective actions if applicable.
You agree to reasonably cooperate with First Orion in any investigation into any events that resulted in a suspension. You will remain responsible for the Fees (as defined below) during any period of suspension. However, in the event of a suspension that causes a change in the Services that materially affects the fees being charged, Customer and First Orion will meet to discuss any adjustments.

9. Term and Termination

Term. Unless earlier terminated as provided in these Terms, the term applicable to the Services will be as set forth in the applicable Order. In the event no term is specified, the term shall be month to month, and either Customer or First Orion may terminate at any time, effective as of the end of a month.
Termination For Convenience. Unless otherwise set forth in an applicable Order, either party may terminate these Terms for any reason upon thirty (30) days written notice to the other party. Notwithstanding the preceding sentence, if there is an Order(s) in effect, Customer may not terminate these Terms until such Order(s) has expired or been terminated in accordance with its terms.
Termination for Material Breach. First Orion may terminate these Terms (including all Order(s)) in the event Customer commits any material breach of these Terms and fails to remedy such material breach within thirty (30) days of the date written notice of such material breach is provided. For the avoidance of doubt, any breach of the Acceptable Use Policy will be considered a material breach of these Terms. Customer may also terminate these Terms (including all Order(s)) in the event First Orion commits a material breach of these Terms and fails to remedy such material breach within thirty (30) days of the date written notice of such material breach is provided.
Additional Termination Right. We may terminate all or a portion of the Services provided under an Order to the extent a Distribution Partner precludes or materially modifies our ability to provide such Services. We will provide notice of a termination under this section promptly upon becoming aware of the circumstances giving rise to the termination right.

10. Fees and Payments

Fees. In consideration for the provision of the Services, Customer shall pay the Fees as set forth in each Order between Customer and First Orion. Unless indicated otherwise, Fees are (i) stated in US dollars and (ii) non-cancelable and non-refundable. Except as set forth in an Order, First Orion reserves the right to adjust the Fees by providing written notice to Customer at least sixty (60) days prior to the end of the then-current term (and such adjusted Fees will take effect upon the applicable renewal).
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 e-mail 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 all inclusive of taxes and in such event the invoice provided to the Customer will state that the invoiced Fees are all 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 all inclusive of taxes, there will be no adjustment to the Fees.
Billing. As part of creating a Customer Account or submitting information in connection with the use of Services, Customer agrees to provide First Orion with updated, accurate, and complete billing information, and Customer authorizes First Orion (either directly or through its Affiliates or other third-parties acting on its behalf) to charge, request, and collect payment (or otherwise refund or take any other billing actions) from Customer’s payment method or designated banking account and to make any inquiries that First Orion (or its Affiliates and/or third parties acting on its behalf) may consider necessary to validate Customer’s designated payment account or financial information to ensure prompt payment.
Payment. First Orion will invoice Customer on a monthly basis in arrears. Invoices will be sent on the first of each calendar month. Fees for the first and last month may be pro-rated based on the Effective Date. Pro-rated fees for the first month may be included on the invoice for the following calendar month. All payments are due and payable within thirty (30) days of the invoice date (the “Due Date”). In the event an invoice is not paid by its Due Date, such invoice shall bear simple interest at the lower of the highest rate allowable by applicable law or 1.5% per month. If an invoice is unpaid more than thirty (30) days after the Due Date, First Orion may suspend performance under these Terms by providing Customer with at least five (5) days’ prior notice. Payments shall be made by check, ACH, or other electronic means reasonably required by First Orion. Customer may request that First Orion participate in an alternative payment or invoicing method; however, the Due Date will not be suspended during any time period during which the alternative method is being implemented. As mutually agreed by First Orion and Customer, First Orion may delegate or assign invoicing, billing, and collections for the Services to a third party selected by First Orion, including a third party providing other services for Customer.
Payment through Partner. If Customer purchases Services through a Partner, then to the extent there is any conflict between these Terms and the agreement entered between Customer and the respective Partner, including any purchase order (“Partner Agreement”), then, as between Customer and First Orion, these Terms shall prevail. Any rights granted to Customer and/or any of its Users in such Partner Agreement which are not contained in these Terms apply only in connection with the Partner. In that case, Customer must seek redress or enforcement of such rights solely with the Partner and not First Orion. For clarity, Customer’s and its Users’ access to the Services is subject to the receipt from Partner of the payment of the applicable Fees paid by Customer to Partner. Customer hereby acknowledges that at any time, at our discretion, the billing of the Fees may be assigned to us, such that Customer will pay us directly the respective Fees. The amounts paid to First Orion by the Partner for Customer’s use of the Services will be deemed the amount paid or payable by Customer for purposes of Section 14, Limitation of Liability.

11. Confidentiality

Confidential Information. Either party (the “Disclosing Party”) may from time to time disclose Confidential Information to the other party (the “Recipient”). “Confidential Information” is all nonpublic information in any form that is disclosed to either party by or on behalf of the Disclosing Party concerning the business, technology, proprietary software, pricing, business plans, forecasts, marketing information, trade secrets and/or financial performance and strategies of the Disclosing Party which is conveyed to the Recipient orally or in tangible form and is either marked as “confidential” or which, due to the circumstances surrounding its disclosure or its nature or sensitivity, should have been understood by the Recipient as intended to be treated as confidential.
Obligations. Recipient agrees to hold all Confidential Information in confidence and trust and will not disclose or disseminate, or permit any employee, agent or other party working under Recipient's direction to disclose or disseminate the existence, source, content, or substance of any Confidential Information to any other party. Recipient shall use Confidential Information of the Disclosing Party only as necessary for the performance of these Terms. Recipient will employ at least the same methods and degree of care, but no less than a reasonable degree of care, to prevent disclosure of the Confidential Information as Recipient employs with respect to its own confidential trade secrets and proprietary information. Recipient's employees, independent contractors, and agents will be given access to the Confidential Information only on a need-to-know basis and under a duty to maintain the confidentiality of the Confidential Information.
Exceptions. Confidential Information will not include information that: (i) is now generally known or available or which hereafter, through no act or failure to act on the part of Recipient, becomes generally known or available; (ii) is rightfully known to Recipient at the time of receiving such information; (iii) is furnished to Recipient by a third party without restriction on disclosure and without a breach by such third party of any confidentiality undertaking with respect thereto; or (iv) is independently developed by Recipient without the use of the Disclosing Party’s Confidential Information. Recipient may also disclose Confidential Information if disclosure is required by operation of law or if required by a court, tribunal or administrative agency; provided that, unless prohibited by law, the Recipient shall give the Disclosing Party as much advance written notice as is reasonably practicable under the circumstances so as to permit the Disclosing Party to take commercially reasonable actions at its own expense to prevent disclosure.
Remedies. Each party acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure or use of Confidential Information and that each party may seek, without waiving any other rights or remedies, such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. At Disclosing Party's option, Recipient shall promptly either destroy all Confidential Information in tangible form in its possession or return all such copies to Disclosing Party, and in either event provide a written certification confirming the same, promptly upon Disclosing Party's written request.

12. Representations, Warranties, and Disclaimers

Mutual Representations. Each party represents and warrants that: (a) it is validly existing and in good standing under the laws of the place of its establishment or incorporation; and (b) it has full corporate power and authority to execute, deliver, and perform its obligations under the Terms.
Customer Representations. Customer represents and warrants that: (a) Customer is eligible to register and use the Services; (b) any information provided to First Orion in connection with the Customer Account and the Services is accurate and complete; (c) Customer will comply with all laws, rules, and regulations applicable to Customer’s business and its use of the Services (including, without limitation, all applicable laws, rules, and regulations in any way related to calls made by Customer; (d) Customer’s employees, contractors, and agents will at all times act consistently with these Terms; and (e) Customer will not use the Services, directly or indirectly, for any fraudulent or illegal undertaking, or in any manner that interferes with the normal operation of the Services.
DISCLAIMER. WITHOUT LIMITING A PARTY’S EXPRESS WARRANTIES AND OBLIGATIONS UNDER THESE TERMS, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 12, THE SERVICES ARE PROVIDED “AS IS,” AND WE MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. YOU ACKNOWLEDGE THAT 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.

13. Indemnification

Indemnification by Us
1. Scope of Indemnification. We will defend you, your officers, directors, employees, and Affiliates (collectively, “Customer Indemnified Parties”) from and against any claim, demand, suit, or proceeding made or brought against a Customer Indemnified Party 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 a Customer Indemnified Party or for settlement amounts approved by us for an Infringement Claim.
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.
3. Limitations. We will have no liability or obligation under this Section 13(a) with respect to any Infringement Claim (a) arising out of your use of the Services in breach of these Terms; (b) arising out of the combination, operation, or use of the Services with other applications, portions of applications, products, or services where the Services would not by themselves be infringing; or (c) arising from Services for which there is no charge.
Indemnification by You. You will defend us, our officers, directors, employees, and Affiliates (collectively, “First Orion Indemnified Parties”) from and against any claim, demand, suit, or proceeding made or brought against a First Orion Indemnified Party by a third party alleging or arising out of your breach of Section 5 (Customer Responsibilities) (“Customer Indemnifiable Claims”). You will indemnify us from any damages, fines or penalties imposed by a government or regulatory body, attorneys’ fees, and costs awarded against a First Orion Indemnified Party or for settlement amounts approved by you for a Customer Indemnifiable Claim.
Conditions of Indemnification. As a condition of the foregoing indemnification obligations: (a) the indemnified party (“Indemnified Party”) will promptly notify the indemnifying party (“Indemnifying Party”) of any Infringement Claim or Customer Indemnifiable Claim (individually and collectively referred to as a “Claim”); provided, however, any failure to give such prompt notice will not relieve Indemnifying Party of its obligations under this Section 13 except to the extent that Indemnifying Party was actually prejudiced by such failure; (b) Indemnifying Party will have the sole and exclusive authority to defend or settle any Claim; and (c) Indemnified Party will reasonably cooperate with Indemnifying Party in connection with Indemnifying Party’s activities under this Section 13 at Indemnifying Party’s expense. Indemnified Party reserves the right, at its own expense, to participate in the defense of any Claim. Notwithstanding anything to the contrary in this Section 13, Indemnifying Party will not settle any Claims for which it has an obligation to indemnify pursuant to this Section 13 admitting liability or fault on behalf of Indemnified Party, nor create any obligation on behalf of Indemnified Party, without Indemnified Party’s prior written consent which will not be unreasonably withheld, conditioned, or delayed.
Exclusive Remedy. This Section 13 states Indemnifying Party’s sole liability to, and Indemnified Party’s exclusive remedy against, the other party for any third-party claims.

14. Limitation of Liability

TO THE EXTENT PERMITTED BY LAW, THE TOTAL, CUMULATIVE LIABILITY OF EACH PARTY ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICES PROVIDED HEREUNDER WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL BE LIMITED TO THE GREATER OF (i) $100,000 USD AND (ii) THE FEES PAID BY CUSTOMER TO FIRST ORION UNDER THESE TERMS IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT OR EVENTS THAT GAVE RISE TO SUCH LIABILITY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS HEREIN.
TO THE EXTENT PERMITTED BY LAW, NEITHER CUSTOMER NOR FIRST ORION SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR LOST PROFITS (WHETHER DIRECT OR INDIRECT) OR LOSS OF USE OR DATA, COVER, SUBSTITUTE GOODS OR SERVICES, OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES (INCLUDING DAMAGE TO BUSINESS, REPUTATION, OR GOODWILL), OR INDIRECT DAMAGES OF ANY TYPE HOWEVER CAUSED, WHETHER BY BREACH OF WARRANTY, BREACH OF CONTRACT, IN TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE CAUSE OF ACTION EVEN IF SUCH PARTY HAS BEEN ADVISED OF SUCH DAMAGES IN ADVANCE OR IF SUCH DAMAGES WERE FORESEEABLE. THE FOREGOING EXCLUSIONS SHALL NOT APPLY TO PAYMENTS TO A THIRD PARTY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS HEREIN.
NOTHING HEREIN SHALL BE INTENDED TO LIMIT A PARTY’S LIABILITY IN AN ACTION IN TORT (SEPARATE AND DISTINCT FROM A CAUSE OF ACTION FOR BREACH OF THESE TERMS) FOR THE PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

THE PROVISIONS OF THIS SECTION 14 ALLOCATE THE RISKS PURSUANT TO THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH IN THIS SECTION 14 IN DETERMINING WHETHER TO ENTER INTO OR OTHERWISE ACCEPT THESE TERMS.

15. General

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, (2) any applicable Service Specific Terms, (3) these Terms, (4) our Acceptable Use Policy, (5) any other terms incorporated by reference herein, and (6) the applicable Documentation.
Assignment. You will not assign, delegate, or otherwise transfer these Terms or any applicable Order(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(s) without our consent will be null and void. We may assign, delegate, or otherwise transfer these Terms or any applicable Order(s) in whole or in part, without your consent. Subject to this Section, these Terms and any applicable Order(s) will be binding on each party and each party’s successors and assigns.
Relationship. The relationship of the parties is that of independent contractors. Nothing in these Terms is intended to create or will be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Each party will be solely responsible for its respective employees and agents and all related costs and expenses. Each party will also be solely responsible for any and all claims, liabilities, damages, or defects of any type that may arise on account of each of its respective activities, or those of its respective employees and agents, in the performance of these Terms. Neither party has the authority to commit the other party in any way and will not attempt to do so or imply that it has the right to do so.
Severability. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect.
Notices and Consent to Electronic Delivery. Notices to us under these Terms will be provided via email to legal@firstorion.com. You agree that we can provide notices regarding the Services to you through our website, through your Customer Account, or by mailing notices to the email or physical addresses identified in your account. Notices may include notifications about your account, changes to the Services, or other information we are required to provide to you. You also agree that electronic delivery of a notice has the same legal effect as if we provided you with a physical copy. We will consider a notice to have been received by you within 24 hours of the time a notice is either posted to the Customer Portal or our website or emailed to you.
Force Majeure. No failure, delay, or default in performance of any obligation of a party will constitute an event of default or breach of these Terms to the extent that such failure to perform, delay, or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil, or military authority, fire, strike, lockout, or other labor dispute, flood, terrorist act, war, riot, theft, earthquake, or other natural disaster. The party affected by such cause will take all reasonable actions to minimize the consequences of such cause.
Governing Law Unless unenforceable under applicable law, these Terms will be governed by and interpreted in accordance with the laws of England and Wales. The Parties agree that the courts of London, England will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms or their subject matter or formation (including non-contractual disputes or claims).
Entire Agreement. Except as provided in these Terms and any exhibits or attachments, applicable Order(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.