ORION RISK INTELLIGENCE
ACKNOWLEDGEMENT AND AGREEMENT
THIS ORION RISK INTELLIGENCE ACKNOWLEDGEMENT AND AGREEMENT (this “Agreement”) is made effective as of the date of you (the “Customer”) click “I Acknowledge and Accept” below (the “Effective Date”). By clicking “I Acknowledge and Accept,” Customer agrees to be bound by the terms and conditions of this Agreement by and between Customer and Orion Advisor Technology, LLC, a Nebraska limited liability company (“Orion”).
WHEREAS, Orion offers a risk analytics and business intelligence platform, known as Orion Risk Intelligence (“Orion Risk Intelligence”), powered by GxWorks, LLC (d/b/a Orion Risk Intelligence); and
WHEREAS, Customer is in the business of providing investment advice (either directly or through its affiliate(s)) and desires to utilize Orion Risk Intelligence, and Orion has agreed to make Orion Risk Intelligence available to Customer pursuant to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the agreements contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Description. The Orion Risk Intelligence platform provides web-based services that use statistical analysis and multivariate regression to model the relationships between different securities and levers (economic factors) for scenarios modeling, risk profiling, and portfolio stress testing (the “Services”).
2. Free Trial Period, Fees, and Charges. For the period of time beginning on the Effective Date and ending thirty (30) days thereafter, or for other such period of time as communicated to Customer by Orion, (such period of time, the “Free Trial Period”), Customer shall not incur any fees under this Agreement, provided that Customer acknowledges and agrees that at the expiration of the Free Trial Period, Customer will need to execute an order form (“Order Form”), governed by the terms and conditions of this Agreement, with Orion for continued access to Orion Risk Intelligence and the Services. Customer will pay Orion the fees (the “Service Fees”) as set forth on the Order Form based on the total number of Users (as defined below) utilizing Orion Risk Intelligence under the Order Form. Customer agrees that the Service Fees for the Services shall be charged monthly or annually (as selected by Customer on the Order Form; the “Billing Period”) in advance and shall be due and payable within 15 days of receipt of the invoice provided by Orion and shall be paid in accordance with Section 3 below. Orion will bill Customer for the maximum number of active Users for the applicable Billing Period and any new Users added during the applicable Billing Period shall be billed pro-rata based on the number of days remaining in the applicable billing Period. Orion encourages Customer to review its invoice within 10 days and notify Orion within that timeframe of any discrepancies concerning Customer’s invoice. If Customer does not notify Orion of discrepancies in such timeframe, the Parties agree that the rates charged for the invoice are accurate. ORION RESERVES THE RIGHT TO ADJUST PRICING FOR THE SERVICES AT ANY TIME. UNLESS ORION EXPRESSLY COMMUNICATES OTHERWISE, ANY PRICING CHANGES WILL TAKE EFFECT ON CUSTOMER’S NEXT RENEWAL TERM (LATER DEFINED) UPON NOTICE COMMUNICATED THROUGH AN EMAIL TO CUSTOMER AT LEAST THIRTY (30) DAYS PRIOR TO THE COMMENCEMENT OF CUSTOMER’S NEXT RENEWAL TERM. CUSTOMER WILL HAVE THE RIGHT TO CANCEL ITS SUBSCRIPTION TO THE SERVICES PRIOR TO ITS NEXT RENEWAL TERM. IF CUSTOMER DOES NOT CANCEL ITS SUBSCRIPTION FOR THE SERVICES PRIOR TO THE START OF SUCH RENEWAL TERM, CUSTOMER WILL BE DEEMED TO HAVE ACCEPTED THE NEW SERVICE FEES.
3. Payment Method. Customer agrees that all fees to be paid in connection with the Services shall be paid in the invoicing application within the Orion Risk Intelligence platform. Customer shall provide and maintain at least two (2) “Authorized Invoice Contacts” with Orion. Such Authorized Invoice Contacts will have the ability to (i) view Orion’s invoices, (ii) update Customer’s payment information, (iii) submit a request to Orion’s accounting team, and (iv) view accounting query results. Customer agrees to select, add, and complete its preferred payment method within the invoicing application and to keep such payment method information, as well as its Authorized Invoice Contact information, accurate and up to date at all times. Customer represents that pursuant to its selected payment method it will have authorized Orion to either: (i) charge the credit card provided; or (ii) initiate debit entries from the bank account specified therein to account for payment obligations owed to Orion hereunder. Customer represents that it has verified with its bank that such payment via ACH will be permitted if so selected. Customer acknowledges that the origination of ACH transactions or credit card transactions to Customer’s account must comply with the relevant provisions U.S. law. In the event any of Customer’s payment method information provided to Orion changes, Customer agrees to promptly provide to Orion its updated payment method information and until such information is provided, Customer agrees that it will not dispute the validity of its existing payment method information. Customer consents to the payment of all fees set forth herein and understands that Orion will initiate payment of the fees on their due date. Any payment due hereunder not received by its due date may be assessed interest at the maximum amount permitted by law. In the event that Orion incurs fees, costs, or expenses due to rejected payments, chargebacks, or disputed payment, Customer agrees will reimburse Orion for any such fees, costs, or expenses.
4. Intellectual Property, Restrictions, and Access. Customer acknowledges and agrees that, through the Services provided hereunder, Customer will have access to content which is the property of Orion, its affiliates, third parties, or their respective licensors, and is protected by intellectual property laws. Customer agrees not to further license, copy, sell, rent, lease, distribute, or create derivative works based on such content or to remove any ownership, copyright, or trademark designation on such content, except as expressly authorized in writing. Orion hereby grants to Customer a non-exclusive and non-transferable license (the “License”) to access and utilize Orion Risk Intelligence for so long as this Agreement is active and in effect, pursuant to the terms contained herein. Customer hereby agrees that neither Orion nor any third-party licensor providing information to Orion shall have any liability for the accuracy or completeness of the information or technology furnished through the License or for delays, interruptions, or omissions therein. Customer further agrees (i) not to use or permit anyone to use the information or technology provided through the License for any unlawful or unauthorized purpose; (ii) not to furnish such information or technology to any person or firm for reuse or retransmission without prior written approval from Orion; and (iii) that access to some of the Services is subject to termination in the event that Orion is unable to obtain necessary information from its third-party providers. Customer agrees that it shall limit its authorized "Users” of the License granted hereunder to the employees of Customer, its registered representatives, and its affiliated entities. Customer further acknowledges and agrees that it shall not “share” the log-in(s) associated with its purchased User seats and, if such sharing in violation of the License granted hereunder occurs, Orion reserves the right to disable Customer’s access to the Services without any prior notice, or charge Customer additional fees hereunder.
5. Covenants, Representations, and Warranties of Customer. Customer represents, warrants, and covenants the following:
a. Customer is duly organized and validly existing under the laws of the state of its organization and has the necessary authority to enter into this Agreement and perform its duties and obligations hereunder.
b. The acknowledgement of this Agreement by Customer and the performance of its duties and obligations hereunder has been duly authorized by all necessary corporate or other action on behalf of Customer and does not conflict with or constitute a breach or default under its organization documents or the terms and conditions of any other agreement or other document to which it is a party or any order, decree, law, or government regulation to which it is subject.
c. Customer shall comply with all federal and state securities laws and rules that are applicable to Customer and/or its affiliates throughout the term of this Agreement. Customer and/or any of its affiliates accessing Orion Risk Intelligence is duly licensed as an investment adviser pursuant to the Investment Customers Act of 1940, as amended, or under applicable state law in each state in which it is providing investment advisory services or is otherwise required to be licensed and each of its representatives are properly registered, licensed, and/or qualified to act as such under all applicable federal and state securities statutes and regulations.
d. Customer shall: (i) comply with all applicable laws and regulations, including, but not limited to, data privacy and security throughout the term of this Agreement; (ii) maintain appropriate technical and organizational measures to protect personal data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, data; (iii) notify Orion in accordance with applicable law upon becoming aware of any accidental, unlawful, or unauthorized destruction, loss, alteration, theft, disclosure, exfiltration, or access involving personal data; (iv) make reasonable efforts to identify the cause of any such data breach; and (v) take steps reasonably necessary to remediate the cause of such data breach.
e. Customer shall immediately notify Orion if any of the foregoing representations or warranties is no longer true or correct.
6. Disclaimer.
a. Customer acknowledges and agrees that none of the data, services, content, or technology made available to Customer under this Agreement shall constitute: (i) an offer, purchase, or sale of any security, investment product, or service; (ii) legal, investment, tax, or fiduciary advice; or (iii) any guarantee of compliance with laws, statutes, rules, or regulations of the U.S. Securities and Exchange Commission, Financial Industry Regulatory Authority, U.S. Department of Labor, or any other applicable local, state, federal, or international regulator. Any financial or investment information made available to Customer, as well as reference materials or links to other web sites, are for general informational purposes only. Past performance of any security, financial plan, or strategy is not an indication of future performance.
b. Customer expressly agrees that neither Orion Risk Intelligence nor Orion provides or will provide Customer with any financial or investment advice, and that any action Customer takes in reliance on Orion Risk Intelligence is at Customer’s own discretion. Customer further agrees that it retains sole responsibility for all services provided to its clients and that only it will exercise “investment discretion” with respect to its client accounts and the securities held therein. Customer hereby agrees that Orion Risk Intelligence is being provided “as-is”, without any warranty or representation regarding its availability, functionality, or results. Customer further agrees that neither Orion nor any of its affiliates shall be held responsible or liable for any result, or lack thereof, derived from Orion Risk Intelligence and Orion and its affiliates assume no responsibility or liability for any action, investment decisions, advice, treatment, or services rendered by Customer whatsoever.
c. Customer acknowledges and agrees that Orion and its employees, agents, managers, directors, affiliates, independent contractors, service providers, and third parties shall not have any liability for investment recommendations or decisions made by Customer, its clients, or prospects based upon, or the results obtained from, Customer’s use of Orion Risk Intelligence. Customer further acknowledges that Orion shall not bear any responsibility for the accuracy or reliability of any data or information provided by third-party data sources to Orion or provided by Customer to Orion and Orion shall be entitled to conclusively rely upon the accuracy of any information provided to it by Customer or other service providers retained by Customer or otherwise.
d. Neither Orion nor any of its employees, agents, directors, managers, independent contractors, service providers, or third parties make any representation or warranty that Orion Risk Intelligence or any data, content, or technology made available to Customer comply with state, federal, or international rules or regulations, and has no direct obligation with respect to regulatory compliance and disclaims all representations, warranties, and liability associated therewith.
7. Term and Termination.
a. Upon the conclusion of the Free Trial Period, Customer shall select either: (i) a month-to-month subscription option; or (ii) an annual term subscription option (the “Initial Term”) on the Order Form Customer executes with Orion for continued access to the Services and Orion Risk Intelligence. At the expiration of the Initial Term, the Order Form and this Agreement shall automatically renew for successive terms of the same length as the Initial Term thereafter (each a “Renewal Term”). Customer or Orion may terminate the Order Form and this Agreement, and Customer’s use of the Services, at any time, provided that such termination by Customer is effective upon thirty (30) days’ prior written notice to Orion. If such termination occurs, Customer must pay any fees applicable for the balance due for the remainder of the then-current term. This Agreement may be terminated by either party in the event of a material breach by the other. In the event of a material breach, the non-breaching party shall give the other party notice describing the breach and thirty (30) days to cure the breach. In the event that the breach is not cured within such time period, this Agreement shall be deemed terminated without further notice. In the event a material breach is due to Customer’s failure to pay outstanding amounts due under this Agreement by their due date, Customer acknowledges and agrees that its access to Orion Risk Intelligence and the Services may be disabled without any prior notice and may remain disabled until all outstanding amounts due hereunder are fully paid.
b. Upon termination of this Agreement, Orion shall have no further obligation to provide services to Customer and all outstanding payments due from Customer shall become immediately due and payable to Orion, including any unpaid fees earned through the date of termination and the balance of all future payments due under the remaining term of this Agreement. Notwithstanding the foregoing, Orion shall maintain Customer’s data and Customer’s client data housed on the Orion Risk Intelligence platform for a limited period of time not to exceed one (1) year following termination of this Agreement. In some cases, such Customer’s data and Customer’s client data may be stored by Orion during such period in archive format. Within such one (1) year time period, Orion will permanently delete Customer’s data and Customer’s client data housed on the Orion Risk Intelligence platform. Any requests with respect to the data maintained on the Orion Risk Intelligence platform must be made by Customer within thirty (30) days following termination of the Agreement. The provisions of Sections 8, 9 and 10 hereof shall survive the termination or expiration of this Agreement.
8. Confidentiality and Data Security.
a. Subject to the duty of Orion and Customer to comply with applicable laws, including the demand of any regulatory or taxing authority having jurisdiction, Orion hereby agrees to keep confidential all information concerning the financial affairs and matters of Customer and its agents and shall not reproduce or distribute the same to any party any time, except for the purposes of this Agreement, without Customer’s prior written consent. Customer hereby acknowledges receipt of Orion’s Privacy Policy, located at www.orionadvisortech.com, as may be updated by Orion from time to time or as required by applicable law.
b. Customer hereby agrees to keep confidential all information concerning the financial affairs and matters of Orion, including the systems, research, development, products, technology, source codes, trade secrets, forms, procedures or business affairs and shall not disclose, reproduce or distribute the same to any party any time, without the prior written consent of Orion.
c. Customer agrees to communicate sensitive information via secured communication channels (i.e. encrypted format). Customer shall be fully responsible and liable for issues or causes of action resulting from Customer’s failure to utilize secure methods of communication when transmitting sensitive information under this Agreement.
d. Customer understands that in performing the Services Orion generally does so without the need for any of Customer’s client’s confidential or personal information. Such information may include a client’s name, address and other contact information, bank account or custodial account information, date of birth, or social security number (or other identification number). Customer agrees that it shall not provide, transmit, display, or make available or accessible to Orion any such personal or confidential client data whatsoever unless previously approved in writing by Orion, and Customer shall be solely responsible for any liability arising out of any unapproved disclosure of client data to Orion or any third party. With respect to any approved disclosure of personal data to Orion, such data may be subject to various domestic and international data protection laws. To that end, Orion offers a data protection addendum (“DPA”) available at https://orionadvisortech.com/download/data-protection-addendum/ as may be updated by Orion from time to time. The DPA sets forth important information about our processing activities with respect to personal data, is specifically incorporated into the Agreement, and is therefore legally binding and effective once this Agreement is acknowledged. Please note that because Orion has so many customers, Orion is not able to change the DPA for any particular customer. However, if Customer has any questions about the DPA, please contact Orion at privacy@orion.com. Customer hereby acknowledges receipt of Orion’s privacy policy, located at www.orionadvisortech.com, as may be updated by Orion from time to time or as required by applicable law.
e. Both parties agree to conduct themselves in a professional and positive manner in all dealings and communications concerning the other party and this Agreement, and each of their employees will not directly or indirectly publicly disparage, criticize or make or publish (in writing, verbally, on an electronic website, internet site, social media site, web log, message board or otherwise) any critical or derogatory statement about or concerning the other party, this Agreement, or any of their present or former officers, directors, affiliates, managers, employees, customers, or suppliers.
f. Upon termination of this Agreement, both parties agree to maintain the confidentiality of all confidential information received from the other party under this Agreement.
9. Indemnification, Limitation of Liability, and Access.
a. To the fullest extent permitted by law, Customer agrees to indemnify, defend, and hold harmless Orion and each of its officers, directors, managers, shareholders, agents, employees, affiliates, and third-parties from and against any and all claims, liabilities, losses, damages, and expenses (including, without limitation, all legal and expert witness fees and expenses and all costs of investigation, as they are incurred) relating to or arising out of or based upon: (i) Customer’s willful misconduct, criminal activity, or gross negligence or material breach of this Agreement; (ii) any instructions, data, or information provided by Customer and relied upon by Orion; (iii) decisions or actions made or carried out by Customer or its affiliates; (iv) any claim made by a client or prospect of Customer or its affiliates; (v) any data, services, content, materials, or technology made available to Customer hereunder; and (vi) any data, content, materials, or information supplied by Customer hereunder.
b. Subject to the limitation of liability set forth in Section 9(c) herein, Orion agrees to indemnify, defend, and hold harmless Customer from and against any and all claims, liabilities, losses, damages, and expenses relating to or arising out of or based upon Orion’s willful misconduct, criminal activity, or gross negligence or material breach of this Agreement.
c. Notwithstanding any other provisions of this Agreement, to the fullest extent permitted by law, Orion’s maximum liability to Customer arising out of the transactions contemplated hereby, whether arising in contract, tort (including, without limitation, negligence) or otherwise, shall not exceed the lesser of the direct loss to Customer or an amount equal to total fees paid to Orion by Customer hereunder for the immediately preceding six (6) month period. IN NO EVENT SHALL ORION BE LIABLE FOR ANY LOST DATA, INACCURACIES, SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR LOST PROFITS, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE OR ORION WAS ADVISED OF THE POSSIBILITY THEREOF. CUSTOMER ACKNOWLEDGES THAT OTHER PARTS OF THIS AGREEMENT ARE PREMISED UPON THIS LIMITATION.
d. Customer understands that access to the services, content, and technology offered under this Agreement may require the use of a password or other unique access code. Customer agrees that it will only allow access to those of its employees or agents who need access to such information to perform their duties. Customer agrees to indemnify and hold Orion harmless from actions initiated by Customer, its agents or employees or through Customer’s own neglect, carelessness, or failure to maintain adequate safeguards to protect the access code. Customer shall immediately notify Orion if the security of any password or access code is compromised.
10. Arbitration. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY PROVIDE THAT CUSTOMER AND ORION AGREE TO RESOLVE ALL DISPUTES HEREUNDER THROUGH BINDING INDIVIDUAL ARBITRATION.
a. Applicability of Arbitration Agreement. In this Section (the “Arbitration Agreement”), if Customer is in the United States (including its possessions and territories), Customer and Orion agree that all claims and disputes (whether contract, tort, or otherwise), including all statutory claims and disputes, arising out of or relating to this Agreement or the use of or access to the Services that cannot be resolved in small claims court will be fully and finally resolved by binding arbitration on an individual basis. The phrase “all claims and disputes” also includes claims and disputes that arose between the parties hereto before the Effective Date of this Agreement. In addition, all disputes concerning the arbitrability of a claim (including disputes about the scope, applicability, enforceability, revocability, or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
b. Arbitration Rules. Customer agrees that, by entering into this Agreement, the U.S. Federal Arbitration Act, including its procedural provisions, governs the interpretation and enforcement of this dispute-resolution provision, and not state law. Arbitration will be conducted by JAMS, Inc. (“JAMS”) (https://www.jamsadr.com/) If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum, and if they cannot agree, will ask the court to appoint an arbitrator pursuant to 9 U.S.C. § 5. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with this Agreement. The arbitration will be conducted by a single neutral arbitrator. Any claims or disputes where the total amount sought is less than $10,000 USD may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount sought is $10,000 USD or more, the right to a hearing will be determined by the arbitral forum’s rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
c. Further Arbitration Rules and Process. If Customer elects to seek arbitration, Customer must first send to Orion, by certified mail, a written Notice of Customer’s claim (“Notice”). The Notice must be addressed to: Orion Risk Intelligence, 17605 Wright Street, Omaha, NE 68130 (“Notice Address”). If Orion initiates arbitration, Orion will send a written Notice to the email address that is associated with Customer’s account. A Notice, whether sent by Customer or Orion, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If Orion and Customer do not reach an agreement to resolve the claim within 30 days after the Notice is received, Orion or Customer may commence an arbitration proceeding. The arbitration will take place exclusively through JAMS and any arbitration hearings will take place in Omaha, Douglas County, Nebraska, before and in accordance with the arbitration rules of JAMS in existence at that time; provided, however, that the foregoing shall in no way limit or restrict a party’s right to enforce an arbitration award in any court of competent jurisdiction.
d. Non-appearance Arbitration. If non-appearance arbitration is elected, the arbitration will be conducted by telephone, online, written submissions, or any combination of the three; the specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless the parties mutually agree otherwise.
e. Fees. JAMS sets forth fees for its services, which are available at https://www.jamsadr.com/arbitration-fees. If Orion is the party initiating an arbitration against Customer, Orion will pay all costs associated with the arbitration, including the entire filing fee. If Customer is the party initiating an arbitration against Orion, Customer will be responsible for the first $100 toward the nonrefundable Initial Filing Fee, and Orion will pay the remainder of Customer’s Initial Filing fee and both parties’ Administrative Fee.
f. Authority of the Arbitrator. The arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of Customer and Orion. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under law, the arbitral forum’s rules, and the Agreement. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon Customer and Orion.
g. Waiver of Jury Trial. CUSTOMER AND ORION WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. Customer and Orion are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between Customer and Orion over whether to vacate or enforce an arbitration award, CUSTOMER AND ORION WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
h. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Notwithstanding any other provision of this Agreement, the Arbitration Agreement or JAMS’ Rules, disputes regarding the interpretation, applicability, or enforceability of this waiver may be resolved only by a court and not by an arbitrator. If this waiver of class or consolidated actions is deemed invalid or unenforceable, neither Customer nor Orion are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in in the “Miscellaneous” section below. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim.
i. Right to Waive. Any rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this Arbitration Agreement.
j. Small Claims Court. Notwithstanding the foregoing, either Customer or Orion may bring an individual action in small claims court.
k. Arbitration Agreement Survival. This Arbitration Agreement will survive the termination of this Agreement between the parties.
11. Notices. All notices, requests, demands and other communications hereunder shall be facilitated to Customer via electronic mail at the Customer email address provided to Orion by Customer. For purposes of this Agreement, Orion’s notice information is as listed below:
Orion Advisor Technology, LLC
17605 Wright Street
Omaha, NE 68130
Attn: Legal Department
12. Waiver. No delay by either party in requiring performance by the other shall affect the right of such party to require performance; no waiver by either party of any breach shall be construed as a waiver of any subsequent breach or as a waiver of the provision itself or any other provision.
13. Beneficiaries and Assignment.
a. This Agreement shall inure only to the benefit of the parties hereto and their respective successors and assigns and shall not inure to the benefit of, or create any rights on behalf of, any person or entity that is not a party hereto.
b. Neither party may assign its rights and obligations under this Agreement to any other party without the prior written consent of the other party hereto, except that the rights and obligations of a party hereto may be assumed by a successor in interest to the entire business of such party without the consent of the other party.
14. Taxes. In addition to the fees payable to Orion in connection with the services furnished under this Agreement, Customer shall pay any taxes, however designated or levied, based upon such fees and its receipt of the services, including, without limitation, state and local sales, use, privilege or excise taxes. Customer may, at its expense and by prompt written notice to Orion, file objection with the appropriate governmental authorities to the payment of any taxes that Customer is obligated to pay pursuant to this section and shall notify Orion regarding such governmental authority’s response.
15. Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflict of laws provisions thereof. Should any provision of this Agreement be held invalid or unenforceable by any court, arbitrator, statute, rule or otherwise, the remaining provisions of this Agreement will not be affected thereby and will continue in full force and effect to the fullest extent practicable. The relationship of the parties hereunder shall be that of independent contractors, and neither party shall be deemed an employee, agent, joint venture, or partner of the other and neither party shall have the power or authority to bind or obligate the other. This Agreement constitutes the entire agreement between the parties hereto with respect to the obligations arising hereunder and supersedes and cancels any prior agreements, representations, warranties or communications, whether oral or written, among the parties hereto relating to the subject matter hereof. Orion may, from time to time, update or revise this Agreement. Such modifications shall be effective immediately upon notice provided to Customer.