These Terms and Conditions for Provision of Services ("Terms") are incorporated into and form an integral part of the Master Services Agreement (“Agreement”) by and between Oryon and “Customer”. Capitalized terms used but not defined in these Terms shall have the meanings set forth on the Cover Page or in the other Attachments. The Agreement may not be modified except by a written instrument signed by Oryon’s authorized representative. In the event of any conflict or inconsistency between this Agreement and an Order or this Agreement and an SLA, the terms of the Order or SLA, as the case may be, shall control. Customer may not vary this Agreement in any manner without written approval of Oryon, even if Customer purports to condition its acceptance subject to any different or additional terms.
I. ORYON SERVICES.
1.1 Services. Oryon will provide Customer the services described in the applicable Attachments and set forth in each Oryon sales order (written or online), application program interface or desktop applications (collectively, an “Order”) (the “Services”). Customer shall comply with all applicable laws, rules and regulations relating to Customer’s receipt or use of the Services. Unless otherwise set forth in these Terms or in an Order, Customer is solely responsible for all costs and expenses to provide all equipment, hardware, cabling and software required to access or receive the Services.
2. FEES AND PAYMENT.
2.1 Fees.
(a) Customer shall pay all fees, charges, taxes, duties, surcharges and expenses owing pursuant to an Order (collectively, “Fees”) in Singapore dollars to the address designated on the invoice within thirty (30) days following Oryon’s invoice date. If an Order has a term of one (1) month or less, Customer shall pay all Fees upon receipt of invoice.
(b) All payment obligations are non-cancellable, non-refundable and non-contingent, and without rights of setoff. Payments not received when due bear interest at the lesser of the maximum amount allowable by law or one percent (1%) per month commencing with the payment due date. If Customer does not timely pay any Fees, all Service Level Credits (defined in Section 7.1) shall be forfeited and Oryon may, in its sole discretion, suspend or terminate any Services pursuant to Section 5.4. Oryon will continue to charge Customer for Services during any period of suspension. Customer is liable for all costs of collection, including, without limitation, lawyers’ fees. In the event of a billing dispute, Customer will provide a summary of the dispute together with supporting documentation. Following receipt of such notice and documentation, Oryon will investigate and make a final determination on the alleged dispute using its sole but reasonable discretion. For any sums found to be owed to Customer, Oryon will issue Customer a credit on the next succeeding invoice. For the avoidance of doubt, Fees are due in full as and when stated; in the event Customer disputes an invoice, it shall pay the Fees in full and file a separatedispute with Oryon as contemplated above. Customer waives any billing dispute not made in writing with all supporting documentation within thirty (30) days from the date of receipt of the applicable Oryon invoice. If requested, Customer will complete the Oryon Business Information Form.
2.2 Services Commencement Date. Billing for Services commences on the date Oryon delivers the Services (“Service Commencement Date”). All Services are deemed accepted upon delivery.
2.3 Expedited Service Delivery. Oryon may, in its sole discretion, agree in an Order to a firm Service Commencement Date for an additional fee (“Expedite Fee”). In such event, and provided (a) there are no changes to the accepted Order, Customer credit approval issues or Customer initiated delays, and (b) Customer timely provides all required documentation, Oryon will deploy and activate the Services by the mutually agreed date. Customer’s sole remedy for any failure by Oryon to meet the Service Commencement Date will be a credit equal to the Expedite Fee to appear on the next month’s invoice following Oryon’s receipt of a notice from Customer for failure to meet the Service Commencement Date.
2.4 Taxes and Duties. Excluding taxes based on Oryon’s net income, Customer is liable for paying all local sales, foreign withholding, value added, use, property, excise, service and other taxes, and all duties and customs fees relating to Customer’s receipt or use of the Services, whether or not Oryon invoices Customer for such amounts. Oryon will pass through charges for third party services, regulatory and governmental taxes and charges and products, including power, local loop charges and cross connects. Customer will reimburse Oryon if Oryon makes any payments contemplated by the preceding sentence. Customer shall indemnify, defend and hold harmless Oryon for any such taxes, duties and
customs fees and any related costs, interest and penalties paid or payable by Oryon with respect to such amounts.
3. LICENSE GRANT.
3.1 License Grant. Subject to this Agreement, Oryon grants Customer a nonexclusive, revocable, non-transferable and non-sub-licensable right and license to use the Services set forth in an Order during the applicable Order Term (defined in Section 5.1). Customer shall adhere to Oryon’s current Acceptable Use Policy (“AUP”) and all subsequent versions, incorporated by this reference and set forth at http://www.oryon.net/policies-acceptable-use.html . If Customer, or a third party through Customer, violates any of the foregoing prohibitions, Oryon may immediately suspend the Services and/or terminate this Agreement and any Orders in accordance with Section 5.4 without liability or further obligation to Customer.
3.2 Limitations. Customer may only access and use the Services subject to any restrictions specified herein and in the applicable Order. Subject to the Agreement, Customer may resell the Services, provided that the purchasing party agrees in writing to be bound by the Agreement, the AUP and any third party license restrictions and terms of use. Without limiting the foregoing, Customer shall not: (a) circumvent, copy, modify, decompile, reverse engineer or disassemble Oryon’s proprietary technology used in connection with Services (“Oryon Technology”); (b) sublicense, rent, lease, timeshare or rebrand the Oryon Technology or Services; (c) copy any ideas, features, functions or graphics of the Services or modify or make derivative works based upon the Services; or (d) disclose or publish performance benchmark results or test results to non-affiliated third parties with respect to the Services without Oryon's prior written consent in each instance.
4. INTELLECTUAL PROPERTY RIGHTS.
4.1 Reservation of Rights. As between the parties, Oryon (or its licensors) retains title to the Services and the Oryon Technology and all modifications, alterations, derivative works and enhancements and all intellectual property rights contained within. Oryon grants no license, right or intellectual property right in any Oryon trademark, trade name or service mark pursuant to this Agreement.
4.2 Customer Content. As between the parties, Customer owns all data, imagery, information and other content (“Customer Content”) transmitted by or on behalf of Customer in connection with the Services and Customer has sole responsibility for Customer Content and its intellectual property ownership and right to use. Customer grants to Oryon the non-exclusive right and license to (a) receive, retrieve, process, use and transmit any Customer Content necessary or reasonably desirable to perform the Services; and (b) use, copy, manipulate and store any Customer Content that will be archived, stored or otherwise transmitted in connection with the Services.
5. TERM AND TERMINATION.
5.1 Term. The term of this Agreement (“Term”) shall commence on the earlier of the Effective Date or the effective date of any corresponding Order and shall continue until terminated in accordance with this Agreement. Each Order, together with the Agreement, constitutes a separate and independent contract. The term of each Order (“Order Term”) commences on the Service Commencement Date and continues for the stated term; provided that some Services may be provided on a monthly or hourly basis, as more fully described in the Order or Attachments. Orders whose initial term is for one (1) year or longer shall automatically renew for additional periods of one (1) year, andOrders whose initial term is for less than one (1) year shall automatically renew for the same period of time as the initial term stated in the Order. If an Order Term exceeds ninety (90) days, either party may cancel renewal by notifying the other party at least sixty (60) days prior to the expiration of the then current Order Term. If an Order Term is for a period of ninety (90) days or less, either party may cancel renewal by notifying the other party at least seven (7) days prior to the expiration of the then current Order Term. Except as otherwise provided in an Attachment, if Customer cancels renewal Services as described above, but fails to terminate Services pursuant to this Section 5.1 such Order shall continue on a month-to-month basis with an increase of thirty-five percent (35%) of the Fees. Hourly Services are considered usage-based Services and have no term commitment and may be cancelled at any time by either party.
5.2 Termination for Cause. Either party may terminate this Agreement or any Order if the other party materially breaches this Agreement or such Order, as applicable, and fails to correct the breach within thirty (30) days following receipt of written notice from the non-breaching party (excluding any breaches by Customer relating to the payment of Fees, which shall not require further notice as to due date); provided that in the event any material breach by Oryon reasonably requires more than thirty (30) days to cure, Customer will not be entitled to terminate this Agreement or the applicable Order if Oryon promptly commences to cure such breach and proceeds diligently until cured. In addition, Oryon may terminate this Agreement for cause immediately if Customer files for bankruptcy, becomes insolvent or makes an assignment for the benefit of creditors, or if a trustee is set up to
administer a substantial portion of Customer’s assets or business. Oryon will be considered to have materially breached an Order (but not this Agreement) if Customer experiences “chronic trouble” under an applicable SLA (defined in Section 7.1) which is not cured in thirty (30) days. “Chronic trouble” means Customer has experienced more than three (3) events with the same Service, as determined by Oryon in its reasonable discretion, within a sixty (60) day period (measured from the date of the first event. An “event” means a breach of the corresponding Service Level stated in a SLA giving rise to Service Level Credits. For any Orders terminated due to “chronic trouble,” Customer shall pay all third party costs and expenses that Oryon incurs in terminating the Service.
5.3 Termination for Convenience. Either party may terminate this Agreement upon written notice to the other party in the event no Order is outstanding. Oryon may terminate this Agreement or any Order by written notice to Customer at least sixty (60) days before the requested termination date. Customer may terminate the Agreement or any Order by written notice to Oryon at least sixty (60) days before the requested termination date and pay Oryon a Termination Fee and any other amounts payable by Customer pursuant to Section 5.5. The “Termination Fee” shall be equal to one hundred percent (100%) of the Fees Customer would have had to pay for the remaining Order Term (based on a monthly rate equal to the minimum monthly billing tier amount prior to the termination date) for all terminated Orders. Customer acknowledges and agrees that: (a) Oryon is only agreeing to provide Customer a right to terminate for convenience conditioned upon Customer’s payment of the Termination Fee, and that absent payment of the Termination Fee, Customer shall have no right to terminate the Agreement or any Order under this Section 5.3; (b) Oryon willincur considerable consequences and losses in the event Customer terminates this Agreement for convenience prior to the Order Term; (c) such consequences and losses would be difficult, if not impossible to estimate; and (d) the Termination Fee is a reasonable pre-estimate of the consequences and losses that Oryon would actually incur in the event Customer terminates this Agreement. Notwithstanding the above, the Termination Fee shall be reduced to three months (3) months in the event the Order is cancelled prior to the Service Commencement Date.
5.4 Suspension of Services. In the event (a) Customer fails to timely pay any Fees when due; (b) Customer, or a third party through Customer, violates the AUP; or (c) Oryon believes that any element of the Services, or Customer’s receipt or use the Services, violates any applicable law, rule or regulation, Oryon may, in its sole discretion, suspend any Services immediately without notice and Customer will remain liable for Fees for Service during any period of suspension.
5.5 Consequences of Termination. Upon termination of this Agreement or any Order for any reason (other than termination by Customer under Section 5.2), Customer shall immediately pay to Oryon: (a) all third party charges incurred by Oryon arising from such termination; (b) all unpaid Fees (including Expedite Fee if unpaid); and (c) the Termination Fee. Customer agrees to pay all amounts owing pursuant to this Section 5.5 on or before the termination date. In the event of any termination under this Section 5, Customer will be entitled to any refund of any payments made in advance by Customer. If requested by Customer within thirty (30) days from termination date, Oryon will make available to Customer a file of the Customer Content in its possession, if any. Rights and obligations which by their nature continue after the termination or expiration of this Agreement, including, but not limited to, Sections 2.1, 2.3, 2.4, 4, 5.3, 5.5, 6, 7.4, 7.5, 8 and 9, shall survive and continue after the termination or expiration of this Agreement, and shall bind the parties, their successors, heirs and permitted assigns.
6. CONFIDENTIALITY.
6.1 Confidentiality. Each party (the “Receiving Party”) acknowledges that it will have access to Confidential Information of the other party (the “Disclosing Party”). “Confidential Information” means this Agreement and other information that is of value to Disclosing Party, including information, without regard to form, which: (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy and is treated as confidential. Oryon’s Confidential Information includes, without limitation, information received from others that Oryon has agreed to keep confidential. The Receiving Party agrees to use the Confidential Information of the Disclosing Party solely for purposes of performing its obligations and exercising its rights under this Agreement. The Receiving Party agrees to discuss the Confidential Information of the Disclosing Party only with, and to transmit the Confidential Information only to, those officers, employees and consultants of the Receiving Party who have a need to know the Confidential Information for the purposes set forth herein.
6.2 Security Precautions. The Receiving Party shall take commercially reasonable security precautions to prevent unauthorized use and disclosure of the Confidential Information of the Disclosing Party and shall use at least the same degree of care the Receiving Party employs with respect to its own Confidential Information, but in no event less than a reasonable standard of care.
6.3 Duration and Exceptions. The obligations in this Section 6 shall continue for the Term and for three years thereafter, except that obligations with respect to Confidential Information that consists of trade secrets shall continue for so long as such information constitutes a trade secret under applicable law, but in no event less than the Term and for a period of three (3) years thereafter. The Receiving Party’s obligations with respect to Confidential Information of the Disclosing Party shall not apply to the extent such Confidential Information: (a) is previously known to the Receiving Party without restriction on disclosure; (b) ceases to be secret or confidential except by reason of a breach of this Agreement by the Receiving Party; (c) is independently developed by the Receiving Party without reference to Confidential Information of the Disclosing Party; or (d) was received from a third party without obligations of confidence and without breach of this Agreement. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent such disclosure is required by applicable law or by any governmental authority, provided the Receiving Party notifies the Disclosing Party, if permitted by law, of the applicable legal requirements before such disclosure so as to enable the Disclosing Party to obtain such protection as may be available to preserve the confidentiality of such information. If Customer has entered into a separate nondisclosure agreement with Oryon, the terms and conditions of the separate nondisclosure agreement will govern and control all matters relating to confidentiality.
7. REPRESENTATIONS AND WARRANTIES; SERVICE LEVEL MATTERS.
7.1. Service Levels and Service Level Credits. Oryon warrants that it will use commercially reasonable efforts to perform the Services substantially in accordance with the service levels (“Service Levels”) set forth in the service level agreement (“SLA”) in the respective Attachments. Subject to any limitations set forth herein and in the SLA, Oryon may change Service Levels in its sole discretion. In the event Oryon does not meet a Service Level during the period specified in the SLA, as Customer’s sole and exclusive remedy, and Oryon’s sole liability for not meeting a Service Level, Oryon shall provide the service level credits in the manner specified in the SLA (“Service Level Credits”). Customer will forfeit any unused Service Level Credits which may exist as of termination or expiration of this Agreement or any Order.
7.2 Service Level Policies. Oryon will process Service Level Credits for Service events as set forth in the SLA. If an event has occurred which qualifies for a Service Level Credit and such event is not covered by a pro-active Service Level Credit, Customer must open a ticket with Oryon’s network operations center (“NOC”) providing the details pertaining to the event within thirty (30) days of the occurrence. Otherwise, Customer forfeits any right to claim that a Service Level Credit is due. For the purpose of calculating whether a Service Level Credit may be due, and the duration of an event, and unless otherwise set forth in an Attachment, Oryon will calculate time periods beginning from the earlier of (a) the time stamp of the alert in Oryon’s monitoring systems; or (b) the time stamp of the Customer-submitted ticket and continuing until Oryon has resolved the event. Unless otherwise noted, the performance objective (“Performance Objective”) will be based on the full calendar month of Service since the last renewal period in which the SLA event occurs. The maximum Service Level Credits that may be earned for any calendar month shall not exceed one-hundred percent (100%) of the portion of the
monthly recurring Fees of the affected Services stated in the Order. Any excess Service Level Credits are forfeited and shall not be carried over to future months. Customer must bring any disputes relating to Oryon’s determination of Service Levels or Service Level Credits within thirty (30) days from the date of Oryon’s notice to Customer of an event relating to Service Levels or Service Level Credits.
7.3 SLA Exclusions. Service Levels and Service Level Credits apply only to Customer and not to any customers of Customer or to any other party. Customer is not entitled to any Service Level Credit if Customer (a) has not paid all Fees due, (b) is in breach of the Agreement or the AUP, or (c) has failed to provide Oryon appropriate access to enable Oryon to provide Services. In addition, Oryon shall have no liability to provide the Services in accordance with any applicable Service Level or to provide any Service Level Credits if the failure to so provide the Services in accordance with the Service Level is due, in whole or in part, to any of the following:
(a) Maintenance.
(i) Oryon Internal Maintenance. Repairs, upgrades and modifications to shared core infrastructure scheduled for off-peak hours in the applicable region if Oryon provides notice at least twenty-four (24) hours in advance;
(ii) Customer Maintenance. Repairs, upgrades, scheduled or Customer-requested service interruptions or modifications to a Customer Service, scheduled in advance or in connection with a previously-agreed upon routine schedule.
(b) Extraordinary Events. Service interruption resulting from denial of service attack (“DOS”), virus attacks, hacking attempts or any other circumstances.
(c) Activation Date. Events occurring before the Service Commencement
Date.
(d) Other Exclusions.
(i) False Failures. Erroneously reported outage or issue, failures reported as a result of outages or errors of an Oryon measurement system or failures resulting from Service monitoring or testing performed to simulate a failure.
(ii) Customer Provided Equipment. Matters caused by or related to Customer provided equipment (“CPE”) failure, malfunction or configuration changes.
(iii) Non-Standard Configuration. Matters caused by a Customer-requested non-standard or unsupported (as determined by Oryon in its sole but reasonable discretion) configuration.
(iv) External Network Conditions. Matters caused by general network conditions outside the reasonable control of Oryon, including but not limited to DNS issues outside the direct control of Oryon or buffering associated with general conditions outside of Oryon's network.
(v) Non-Impacting Failure. Matters caused by a failure of a Service or feature that does not result in downtime of a guaranteed Service (by way of example only: reporting, dashboard, FTP upload or statistics generation). This includes outages or downtime associated with Customer’s designated non-production (staging, testing or development) Service that is unrelated to hardware or network failures).
(vi) Expected Performance. Matters caused by usage patterns or traffic that exceeds the reasonable performance parameters of Customer’s Service.
(vii) Customer Acts. Matters caused by Customer acts (or acts of others engaged or authorized by Customer), including without limitation, any negligence or willful misconduct.
7.4 Third Party Products and Services. Notwithstanding anything to the contrary herein, Customer acknowledges and agrees that Oryon makes no representation or warranty, express or implied, as to any third party hardware, software, products or services included with the Services. Oryon assigns to Customer during the Term all assignable warranties and indemnities granted to Oryon by such third parties to the extent applicable to Customer’s receipt or use of the Services during the Term. To the extent Oryon is not permitted to assign any such third party warranties and indemnities, Oryon will use commercially reasonable efforts to enforce such protections on Customer’s behalf to the extent it is permitted to do so under the third party agreements and applicable law.
7.5 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS
SECTION 7, ORYON MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), WITH RESPECT TO THE SERVICES. ORYON EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL WARRANTIES ARISING FROM CONDUCT, COURSE OF DEALING OR CUSTOM OF TRADE AND ALL WARRANTIES OF TITLE AND NON-INFRINGEMENT. ORYON DOES NOT WARRANT THAT THE SERVICES ARE OR WILL BE ERROR-FREE OR THAT THE USE OR OPERATION OF THE SERVICES WILL BE UNINTERRUPTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO PORTIONS OF THE ABOVE EXCLUSIONS MAY NOT APPLY, BUT ONLY TO THE EXTENT NECESSARY TO BRING THE EXCLUSION INTO COMPLIANCE.
8. LIMITATION OF LIABILITY.
8.1 Disclaimer. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, LOSS OF DATA OR INTERRUPTION OR LOSS OF USE OF SERVICES OR EQUIPMENT), REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, AND EVEN IF ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES. Oryon shall not be liable, in contract, tort or any other theory for: (a) unauthorized access, alteration, theft, corruption or destruction of or to Customer’s or its customers’, end users’ or other parties’ computer files, databases, network, transmission facilities or equipment; or (b) the content, accuracy or completeness of any Customer Content transmitted through the Services.
8.2 Cap on Liability. ORYON’S TOTAL AGGREGATE LIABILITY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY AND ALL CLAIMS AND DAMAGES ARISING FROM OR OUT OF THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO ORYON DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO CUSTOMER’S FIRST CLAIM UNDER ANY ORDER.
9. MISCELLANEOUS PROVISIONS.
9.1 Governing Law; Venue. This Agreement shall be governed by the laws Singapore, without regard to its conflict of laws principles. Any and all claims arising out of or relating to this Agreement shall be brought in a court of competent jurisdiction in Singapore. Customer consents to the personal and subject matter jurisdiction of courts located in Singapore and waives (a) any objection to jurisdiction or venue, or (b) any defense claiming lack of jurisdiction or improper venue, in any action brought in such courts.
9.2 Force Majeure. Except for Customer’s obligations to pay the Fees, neither party will be liable for any loss, damage or delay resulting from any event beyond such party’s reasonable control or other events of force majeure, and delivery and performance dates will be extended to the extent of any such delays. “Force majeure” includes, without limitation, acts of God, strike, lockout or other industrial disturbance, acts of public enemy, war, blockade, public riot, civil disturbance or unrest, lightning, fire, storm, flood, hurricane, earthquake, tsunami, tornado, matters arising from global warming, explosion, governmental restraint, unavailability of equipment and any other cause, whether of the kind specifically enumerated above or otherwise. Each party will promptly notify the other upon becoming aware that such event has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. If such event continues for more than 60 days, either party may terminate this Agreement.
9.3 Assignment. Either party may assign its rights, duties and obligations hereunder, without approval of the other party, to a party that succeeds to all or substantially all of its assets or business (whether by sale, merger, operation of law or otherwise), so long as the assignee agrees in writing to be bound by this Agreement. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their successors and permitted assigns. No other assignments are permitted without the prior written consent of the other party, which consent shall not be unreasonably withheld.
9.4 No Waiver. The failure on the part of either party to exercise any right or remedy hereunder will not operate as further waiver of such right or remedy in the future.
9.5 Severability. The provisions of this Agreement are severable. If any provision is determined invalid, illegal or unenforceable, in whole or in part, then such provision shall be modified so as to be enforceable to the maximum extent permitted by law. If such provision cannot be modified to be enforceable, the provision shall be severed from this Agreement to the extent unenforceable. The remaining provisions and any partially enforceable provisions shall remain in full force and effect.
9.6 Counterparts. This Agreement may be executed in duplicate and either copy or both copies are considered originals.
9.7 Injunctive Relief. The parties acknowledge that a threatened or actual breach of Section 6, or a party’s intellectual property rights, will result in immediate, irreparable harm, and equitable relief may be obtained by the non-breaching party from a court of competent jurisdiction subject to the provisions of Section 9.1.
9.8 Notices. Any notice or other communication shall be in writing and (a) with respect to termination or non-renewal notices, sent via electronic communication pursuant to Section 5.3, or (b) with respect to other correspondence, sent first class, postage prepaid, via the postal service or commercial overnight courier. Notices shall be sent to the individual and location specified on the Cover Page or to such other address or individual as a party may specify in writing.
9.9 Insurance. Customer shall maintain commercial general liability, property and casualty and business interruption insurance. Customer’s insurance shall be primary over Oryon’s. Customer waives and shall require its insurers to waive any rights of subrogation against Oryon, its agents, directors and employees.
9.10 No Third Party Beneficiaries. No person or entity, other than the parties shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with, this Agreement.
9.11 Marketing. Customer agrees that Oryon may reference Customer’s entering into this Agreement and its status as a Customer in its marketing materials and in sales presentations.
9.12 Interpretation. Neither party shall be considered the drafter of this Agreement so as to give rise to any presumption or convention regarding construction of this Agreement.