First Orion's Terms of Use and End User License Agreement for First Orion’s PrivacyStar® App

This Terms of Use and End User License Agreement (“Agreement”) is a legal agreement between you (“you”, or “your”) and First Orion Corp. (“First Orion”, or “we”, or “our” or “us”) and applies to First Orion’s free or subscription-based PrivacyStar® App (the “App”).

Please read this Agreement carefully before clicking the “Accept” button or downloading or using the App.

YOU AGREE THAT YOUR USE OF THE APP ACKNOWLEDGES THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS AND THAT THIS AGREEMENT HAS THE SAME FORCE AND EFFECT AS A SIGNED AGREEMENT. BY CLICKING THE “ACCEPT” BUTTON OR DOWNLOADING, INSTALLING OR USING THE APPLICATION, YOU AFFIRM THAT YOU ARE EITHER OVER THE AGE OF MAJORITY IN YOUR JURISDICTION OF RESIDENCE, OR ARE AN EMANCIPATED MINOR, OR POSSESS LEGAL PARENTAL OR GUARDIAN CONSENT, AND THAT YOU ARE FULLY ABLE AND COMPETENT TO ENTER INTO THE TERMS, CONDITIONS, OBLIGATIONS, AFFIRMATIONS, REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, AND TO ABIDE BY AND COMPLY WITH THIS AGREEMENT.

Privacy

First Orion’s Privacy Policy describes the features and functionality of the App and the collection, use, disclosure, and sale of personal information by First Orion in the United States and Canada for the App. You acknowledge that your use of the App is subject to our privacy policy, as such policy may be amended by us from time to time. Our Privacy Policy can be found at https://firstorion.com/privacy-policy/.

License Grant

Subject to the restrictions set forth herein, First Orion grants you a personal, revocable, non-exclusive, non-transferable, limited right to install and use the App on a single device owned and controlled by you (“Device”), and to access and use the App on such Device strictly in accordance with the terms and conditions of this Agreement. Certain features and functions of the App are offered for free and some are part of a paid subscription. By utilizing the free version, certain features and functions may be inoperable.

Restrictions on Use

1. You agree that you will not use the App or the information obtained through the App:

2. You shall not:

3. You may not rent, lease, lend, sublicense or transfer the App, this Agreement or any of the rights granted hereunder. Any attempted transfer in contravention of this provision shall be null and void and of no force or effect. These obligations survive termination of this Agreement.

Intellectual Property Rights

1. Rights to the App. You acknowledge and agree that the App and any copies thereof (including without limitation any copy that you download, install, or use on your Device), and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are, and shall remain, the property of First Orion or its affiliates, licensors and suppliers. Furthermore, you acknowledge and agree that the source and object code of the App and the format, directories, queries, algorithms, structure and organization of the App are the intellectual property and proprietary and confidential information of First Orion and its affiliates, licensors and suppliers. Title to the App shall remain with First Orion. First Orion and its partners, licensors, and suppliers reserve the right to change, suspend, terminate, remove, impose limits on the use of or access to, disable access to, or require the return of the App (or any copy thereof) at any time without notice and will have no liability for doing so. Except as expressly stated in this Agreement, you are not granted any intellectual property rights in or to the App by implication, estoppel or other legal theory, and all rights in and to the App not expressly granted in this Agreement are hereby reserved and retained by First Orion. These obligations survive termination of this Agreement.

2. First Orion Marks. You acknowledge and agree that the following company names and their related logos and all related product and service names, design marks and slogans are trademarks and service marks owned by and used under license from First Orion including, but not limited to: “PrivacyStar®”, “PrivacyStar”, “Engage®”, “Engage”, “Inform®”, and Inform (the “First Orion Marks”). You are not authorized to use the First Orion Marks in any advertising, publicity or in any other commercial manner without the prior written consent of First Orion, which may be withheld for any or no reason. These obligations survive termination of this Agreement.

3. Third Party Software. The App may utilize or include third party software that is subject to open source and third party license terms (“Third Party Software”). You acknowledge and agree that your right to use such Third Party Software as part of the App is subject to and governed by the terms and conditions of the open source or third party license applicable to such Third Party Software, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein. In the event of a conflict between the terms of this Agreement and the terms of such open source or third party licenses, the terms of the open source or third party licenses shall control with regard to your use of the relevant Third Party Software.

No Responsibility for Third Party Content and Services

1. 1. General. You acknowledge that the App may permit access to products, services, websites, advertisements, promotions, recommendations, advice, information, and materials created and provided by advertisers, publishers, content partners, marketing agents, vendors and other third parties (“Third Party Content and Services”).

2. Disclaimer. You acknowledge that First Orion does not investigate, monitor, represent or endorse the Third Party Content and Services (including any third party websites accessed through the App). Furthermore, your access to and use of the Third Party Content and Services is at your sole discretion and risk, and First Orion and its affiliates, partners, suppliers and licensors shall have no liability to you arising out of or in connection with your access to and use of the Third Party Content and Services. First Orion hereby disclaims any representation, warranty or guaranty regarding the Third Party Content and Services, whether express, implied or statutory, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose, and any representation, warranty or guaranty regarding the availability, quality, reliability, features, appropriateness, accuracy, completeness, copyright compliance, decency, legality, or any other aspect of the Third Party Content and Services.

3. Third Party Terms of Service. You acknowledge and agree that your access to and use of the Third Party Content and Services and any correspondence or business dealings between you and any third party using the App are governed by and require your acceptance of the terms of service of such third party, including, without limitation, any terms, privacy policies, conditions, representations, warranties or disclaimers contained therein. You assume all risks arising out of or resulting from your transaction of business over the Internet or your use of Third Party Content and Services, and you agree that First Orion and its affiliates, partners, suppliers and licensors are not responsible or liable for any loss or result of the presence of information about or links to such advertisers or service providers. Furthermore, you acknowledge and agree that this Agreement does not grant you any license to (i) the Third Party Content and Services; (ii) any products, services, processes or technology described in or offered by the Third Party Content and Services; or (iii) any copyright, trademark, patent or other intellectual property right in the Third Party Content or Services or any products, services, processes or technology described or offered therein.

4. Endorsements. You acknowledge and agree that the provision of access to any Third Party Content and Service shall not constitute or imply any endorsement by First Orion or its affiliates of such Third Party Content and Services.

Term and Termination

This Agreement shall be effective until terminated. First Orion may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate this Agreement and the rights afforded to you hereunder with or without prior notice. Furthermore, if you fail to comply with any terms and conditions of this Agreement, then this Agreement and any rights afforded to you hereunder shall terminate automatically, without any notice or other action by First Orion. Upon the termination of this Agreement, you shall cease all use of the App and uninstall the App. These obligations survive termination of this Agreement.

Disclaimer of Warranties

YOU ACKNOWLEDGE AND AGREE THAT THE APP IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THAT YOUR USE OF OR RELIANCE UPON THE APP AND ANY THIRD PARTY CONTENT AND SERVICES ACCESSED THEREBY IS AT YOUR SOLE RISK AND DISCRETION. FIRST ORION AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRSENTATIONS, WARRANTIES AND GUARANTIES REGARDING THE APP AND THIRD PARTY CONTENT AND SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHERMORE, FIRST ORION AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE APP OR THIRD PARTY CONTENT AND SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE APP OR THIRD PARTY CONTENT AND SERVICES WILL BE UNINTERRUPED, ACCURATE, RELIABLE, TIMELY, SECURE OR ERROR-FREE;(III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE APP WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS IN THE APP OR THIRD PARTY CONTENT AND SERVICES WILL BE CORRECTED. FURTHERMORE, YOU ACKNOWLEDGE THAT FIRST ORION HAS NO OBLIGATION TO CORRECT ANY ERRORS OR OTHERWISE SUPPORT OR MAINTAIN THE APP. YOU ACKNOWLEDGE THAT THE APP IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE MISUSE OF, FAILURE OF, OR ERRORS OR INACCURACIES IN THE CONTENT, DATA OR INFORMATION PROVIDED BY, THE APP COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY, OR ENVIRONMENTAL DAMAGE. FIRST ORION DOES NOT WARRANT THAT THE APP WILL BE COMPATIBLE OR INTEROPERABLE WITH YOUR DEVICE OR ANY OTHER PIECE OF HARDWARE, SOFTWARE, EQUIPMENT OR DEVICE INSTALLED ON OR USED IN CONNECTION WITH YOUR DEVICE. FURTHERMORE, YOU ACKNOWLEDGE THAT COMPATIBILITY AND INTEROPERABILITY PROBLEMS CAN CAUSE THE PERFORMANCE OF YOUR DEVICE TO DIMINISH OR FAIL COMPLETELY, AND MAY RESULT IN PERMANENT DAMAGE TO YOUR DEVICE, LOSS OF THE DATA LOCATED ON YOUR DEVICE, AND CORRUPTION OF THE SOFTWARE AND FILES LOCATED ON YOUR DEVICE. YOU ACKNOWLEDGE AND AGREE THAT FIRST ORION AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS SHALL HAVE NO LIABILITY TO YOU FOR ANY LOSSES SUFFERED RESULTING FROM OR ARISING IN CONNECTION WITH COMPATIBILITY OR INTEROPERABILITY PROBLEMS. SHOULD THE APP PROVE DEFECTIVE, YOU ASSUME THE ENTIRE BURDEN OR ALL NECESSARY EXPENSES, SERVICING, REPAIR, OR CORRECTION. THESE OBLIGATIONS SURVIVE TERMINATION OF THIS AGREEMENT.

IF YOU HAVE PAID ANY FEE FOR USE OF THE APP, IN THE EVENT OF ANY FAILURE OF THE APP TO CONFORM TO ANY APPLICABLE WARRANTY, YOU MAY NOTIFY FIRST ORION, AND FIRST ORION MAY, AS YOUR SOLE AND EXCLUSIVE REMEDY, REFUND TO YOU THE PURCHASE PRICE PAID, IF ANY, FOR THE APP. FIRST ORION WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE APP.

Limitation of Liability

EXCEPT TO THE EXTENT PROHIBITED BY LAW, UNDER NO CIRCUMSTANCES SHALL FIRST ORION OR ITS AFFILIATES, PARTNERS, CHANNEL PARTNERS OR ASSOCIATED SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE FOR ACCIDENTS, PROPERTY DAMAGE, PERSONAL INJURY, DEATH, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES OR LOSS OF OR LOST PROFITS OR REVENUE ARISING OUT OF OR IN CONNECTION WITH THE SALE OR DISTRIBUTION OF, THE PERFORMANCE OR NON-PERFROMANCE, OR YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE APP AND ANY THIRD PARTY CONTENT AND SERVICES, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, FIRST ORION SHALL HAVE NO RESPONSIBILITY FOR ANY CLAIMS MADE BY YOU OR ANY THIRD PARTY RELATED TO THE APP OR YOUR USE OF POSSESSION OF THE APP, INCLUDING, BUT NOT LIMITED TO (I) PRODUCT LIABILITY CLAIMS, (II) ANY CLAIM THAT THE APP FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT, (III) CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION, OR (IV) ANY CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE OF THE APP TO CONFORM TO ANY WARRANTY, EXPRESS OR IMPLIED. THESE OBLIGATIONS SURVIVE TERMINATION OF THIS AGREEMENT.

Indemnification

You shall indemnify, defend and hold harmless First Orion and its affiliates, partners, suppliers and licensors, and each of their respective officers, directors, agents and employees (the “Indemnified Parties”) from and against any claim, proceeding, loss, damage, fine, penalty, interest and expense (including, without limitation, fees for attorneys and other professional advisors) arising out of or in connection with the following: (i) your access to or use of the App or Third Party Content and Services; (ii) your breach of this Agreement; (iii) your violation of law or the rights of any third party; or (iv) your negligence or willful misconduct; These obligations survive termination of this Agreement.

Changes

First Orion reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify this Agreement and to impose new or additional rules, policies, terms, or conditions on your use of the App. Such updates, revisions, supplements, modifications, and additional rules, policies, terms, and conditions (collectively referred to in this Agreement as “Additional Terms”) will be effective immediately and incorporated into this Agreement. Your continued use of the App following will be deemed to constitute your acceptance of any and all such Additional Terms. All Additional Terms are hereby incorporated into this Agreement by this reference.

Support Services

First Orion shall have no obligation under this Agreement to provide you with any maintenance or technical support services. First Orion reserves the right to change, enhance and/or release new versions of the App at any time and without notice. Among other things, such enhancements and new releases may result in additional storage space required to load or maintain the App on a mobile device. In the event First Orion changes any part of the App or discontinues the App, which First Orion may do at its election, you acknowledge that you may no longer be able to use the App to the same extent as prior to such change or discontinuation, and that First Orion shall have no liability to you in such case.

User Account & Security

As a registered end user of the App, you may receive or establish an account (“Account”). You are solely responsible for maintaining the confidentiality and security of your Account. You should not reveal your Account information to anyone else or use anyone else’s Account. You are entirely responsible for all activities that occur on or through your Account, and you agree to immediately notify First Orion of any unauthorized use of your Account or any other breach of security. First Orion shall not be responsible for any losses arising out of the unauthorized use of your Account.

Notice

You may contact us by paper mail at First Orion Corp., 520 Main Street, Suite 400, North Little Rock, AR 72114.

Electronic Signatures & Contracts

Your use of the App includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO RELATING TO THE APPS, INCLUDING WITHOUT LIMITATION NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.

Mandatory Arbitration/Waiver of Jury Trial

1. The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof) the App shall be binding arbitration administered by the American Arbitration Association. An exception to the exclusivity of arbitration is that you have the right to bring an individual claim against First Orion in a small-claims court of competent jurisdiction. But whether you choose arbitration or small-claims court, you may not under any circumstances commence or maintain against First Orion or its agents, employees, officers, directors, successors, licensors, assigns or affiliates any class action, class arbitration, or other representative action or proceeding. By using the App in any manner, you agree to the above arbitration agreement. In doing so, you give up your right to go to court to assert or defend any claims between you and First Orion or its affiliates (except for matters that may be taken to small claims court). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a neutral arbitrator, not a judge or jury. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. In the event that this arbitration agreement is for any reason held to be unenforceable, any litigation against First Orion (except for small-claims court actions) may be commenced only in the federal or state courts located in Pulaski County, Arkansas. You hereby irrevocably consent to the jurisdiction of those courts for such purposes and you irrevocably waive any right to a trial by jury. This Agreement, and any dispute between you and First Orion, shall be governed by the laws of the state of Arkansas without regard to principles of conflicts of law, provided that this arbitration agreement shall be governed by the Federal Arbitration Act.

2. Nothing within this section shall restrict the right of First Orion to seek injunctive or any other legal or equitable relief from a court of competent jurisdiction for a violation of this Agreement by you or any third party.

We May Contact You

You agree that First Orion may contact you regarding use of the App, quality of the App or additional features and functions which may be available to you. This contact may be by push notifications, text messages, emails, facsimile or telephone to your phone number (including your mobile device) and may include the use of automated telephone dialing (or similar) equipment.

System Requirements

Use of the App requires one or more compatible devices and may require obtaining updates or upgrades from time to time. Your ability to use the App may be affected by the performance of these factors. You acknowledge and agree that such system requirements, which may be changed from time to time, are your responsibility.

Miscellaneous

1. Governing Law. This Agreement shall be deemed to take place in the State of Arkansas and shall be governed by and construed in accordance with the laws of the State of Arkansas, excluding its conflicts of law principles. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. You and First Orion agree that any dispute or claim arising out of or relating to the App or your use of the App must commence within one (1) year after the dispute or claim accrues. Otherwise, such dispute or claim is permanently barred. This Section is not intended to and does not alter any provisions of your applicable wireless service agreement.

2. Severability. If any provision of this Agreement is held to be invalid or unenforceable with respect to a party, the remainder of this Agreement, or the application of such provision to persons other than those to whom it is held invalid or unenforceable shall not be affected and each remaining provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

3. Waiver. Except as provided herein, the failure to exercise a right or require performance of an obligation under this Agreement shall not affect a party’s ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute waiver of any subsequent breach.

4. Export Control. You may not use or otherwise export or re-export the App except as authorized by United States law and the laws of the jurisdiction(s) in which the App was obtained. You represent and warrant that you are not (a) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. You also agree that you will not use the App for any purposes prohibited by United States law.

5. Modification or Amendment. First Orion may modify or amend the terms of this Agreement at any time by posting a copy of the modified or amended Agreement available through https://www.firstorion.com/terms-use/ and/or https://www.privacystar.com/terms-use/. You will be deemed to have agreed to any such modification or amendment by your decision to continue using the App following the date in which the modified or amended Agreement is made available through the App.

6. Survival. Any provisions of this Agreement which by their express language or by their context are intended to survive the termination of this Agreement shall survive such termination.

7. Third Party Beneficiaries. Except as provided in this Section, nothing contained in this Agreement is intended or shall be construed to confer upon any person (other than the parties hereto) any rights, benefits or remedies of any kind or character, or to create any obligations or liabilities of a party to any such person.

8. Assignment. You shall not assign this Agreement or any rights or obligations herein without the prior written consent of First Orion and any attempted assignment in contravention of this provision shall be null and void and of no force or effect.

9. Entire Agreement. This Agreement including the documents incorporated herein by reference constitute the entire agreement with respect to the use of the App licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter.

Last Updated November 9, 2020.

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