SCC Logo

  • 1. Preamble

    1. -

      "SCC”, “we” or “us” means Supply Chain Cube AG (registered at Pfäffikonerstrasse 16, 8834 Schindellegi, Switzerland) and its Affiliates.

    2. -

      Affiliate is any entity that, directly or indirectly, is controlled by one of the parties at the time of signing this agreement. The term “control” means possession, directly or indirectly, of the power to direct management or policies (whether through ownership of securities, partnership or other ownership interests, by contract or otherwise). Upon request, each party agrees to confirm to the other the Affiliate status of a particular entity.

    3. -

      “Services” or “SCC Services” means any service that SCC provides to our customers and their business partners, including but not restricted to modelling advisory, customer support, website & social media pages, consultancy, in-person meetings, SCC events and our sales and marketing activities.

    4. -

      Software is the Supply Chain Cube software product identified in the applicable Order Form, including updates.

    5. -

      Agreement is this agreement, its terms and conditions and all Order Forms entered into by the parties.

    6. -

      Order Form means the ordering document for Customer’s purchases from Supply Chain Cube AG that are executed hereunder. An Order Form will be valid when signed by both parties or otherwise formalized via digital means by the parties. A valid Order Form will be considered active after the starting date and before the end date.

    7. -

      Customer is the party that uses SCC Software or Services. In the case of Software or Services offered for a fee, the customer entity is as specified in the Order Form. In the case of Software or Services offered for free (e.g. free account), Customer is the individual who uses that Software or Service.

    8. -

      “Personal Data” includes the data defined as personal data in the privacy policy.

    9. -

      “Customer Personal Data” includes the data defined as customer personal data in the privacy policy.

    By accessing or using any of the SCC Software or Services, Customer agrees with the terms in this Agreement.

  • 2. Access to the Software and Services

    1. 2.1

      Customer has a non-exclusive, non-transferable, subscription-based license to access and use the Software for analyzing, processing, and optimizing Customer’s own assets and data as long as the respective Order Form is active.

    2. 2.2

      Customer may permit its Affiliates, to access and use the Software in accordance with the terms of this Agreement, provided that Customer shall be responsible for compliance by such Affiliate with this Agreement. Customer must inform SCC about any Affiliates using the software and SCC has the right to deny Software access to an Affiliate that could be viewed as a competitor to SCC.

    3. 2.3

      Limitations of use and access with respect to users, accounts, scope, and other matters regarding Customer’s use of the Software and/or Services shall be set forth in the applicable Order Form.

    4. 2.4

      The Software may contain open-source software with a permissive, non-GPL, licensing scheme, which the Customer may use under the terms and conditions of the specific license under which the open-source software is distributed.

    5. 2.5

      If Customer has no active Order Form (e.g. demo account), Customer will have a time limited restricted access to the Software for the purpose of allowing Customer to test new features. After this trial period, Customer will lose its access to the software.

    6. 2.6

      If SCC determines, in its sole discretion, that Customer does not comply with this Agreement, SCC will suspend Customer’s right to use or access the Software and Service, until Customer proves compliance with this Agreement.

    7. 2.7

      If Customer has ordered hosting services from SCC on an Order Form, as part of the Service, SCC shall host the Software at locations as may be designated by SCC from time to time and allow Customer and its authorized users to access and use the Software according to the terms of the Agreement.

    8. 2.8

      If Customer has ordered on-premise hosting on an Order Form, Customer will be responsible for access to the software. If Customer has ordered access to new updated releases on an Order Form, Customer needs to give access to its IT infrastructure for SCC to update the Software.

    9. 2.9

      If the Customer provides consulting/ advisory services to third parties, Customer may access and use the Software for analyzing and optimizing data for the business purposes agreed in the Order Form. Customer must not make the Software or Service available to third parties.

  • 3. Use of the Software and Services

    1. 3.1

      Customer is responsible for purchasing, maintaining and operating the necessary IT infrastructure to use and access Supply Chain Cube Software and Services.

      1. 3.1.1

        If Customer has ordered hosting services from SCC on an Order Form, Customer should ensure secure and reliable internet access as well as access to the cloud-based application. Supply Chain Cube will not be responsible for any limitation, loss of data or damage resulting of that problem.

      2. 3.1.2

        If Customer has ordered on-premise hosting from SCC on an Order Form, Customer will maintain the hosting infrastructure and security. Customer will be required to meet the basic IT infrastructure requirements for the installation listed in the Order Form. Supply Chain Cube will not be responsible for any limitation, loss of data or damage resulting from this.

    2. 3.2

      Customer is responsible for controlling any authorized and unauthorized access and use of the Software or Services with its access rights. Especially, Customer must implement internal security measures to prevent any unauthorized use or non-compliance with this Agreement by its employees. If Customer has been informed about any unauthorized access to the Software, Customer must inform SCC immediately

    3. 3.3

      Customer is responsible to be compliant with local laws, in particular, with any regulation from the European Union and the United States of America in the use of the Software. This includes but is not limited to complying with regulations on embargoed countries.

    4. 3.4

      Customer shall use the Software only for the scope expressly permitted in the Order Form. In any case, Customer shall not use the Software to reverse engineer partially or completely the solution, to willingly cause damages to SCC infrastructure, to decompile any process, to build a competitive product, to collect information/ ideas/ processes/ communication records for a potential competitor of SCC, to create a derivative work based on the Software or the Service of SCC.

    5. 3.5

      Customer shall not sell or resell the Software or any access granted by the Order Form and shall not attempt to use the Software for a scope that is not expressly permitted in the Order form. Any attempt to use the Software or Services for one of the reasons mentioned in 3.4 will be considered an unauthorized use and thus a violation of this agreement.

    6. 3.6

      It is the responsibility of Customer to stay informed about the features of the Software that can generate additional costs beyond the Order Form. Upon request, SCC will give an overview to Customer of all the features that can cause such additional costs. SCC will not be responsible for any cost related to the use of such features.

    7. 3.7

      If Customer has access to SCC Software, which is not based on an active Order Form (e.g. demo account), Customer must only use the Software for demonstration purposes or to evaluate its capabilities. SCC reserves the right to terminate such account access at any time and delete the data related to this account.

    8. 3.8

      Customer must ensure that it has the needed rights for storing and processing data in the SCC Software. In particular, if Customer has ordered hosting services from SCC on an Order Form, this may include storing and processing data in another country.

  • 4. Technical Support

    1. 4.1

      SCC will provide standard technical support

      1. 4.1.1

        for SCC Software hosted by SCC, to any Customer with an active Order Form for the respective Software.

      2. 4.1.2

        for SCC Software hosted by Customer (on premise installation) with an active Order Form for maintenance of the respective Software.

    2. 4.2

      Technical support includes first and second level support but does not cover any request involving a third-party provider.

      1. 4.2.1

        First Level support involves any modeling and debugging requests that can be addressed with limited IT support.

      2. 4.2.2

        Second Level support involves requests that require an in-depth IT support.

    3. 4.3

      Customer with an access to SCC Software but no respective active Order Form (e.g. Free Account) will not be eligible for technical support.

    4. 4.4

      SCC will do reasonable efforts to maintain documentation available to Customers regardless to the validity of Customer’s Order Form. The Customer understands that the documentation will only be provided in English language. Support in other languages can be available based on availability at SCC.

    5. 4.5

      Customer agrees to share with SCC any data that is needed to address the technical support request. SCC will use that data only in the context of answering the request from Customer for technical support. Before sharing technical support related information, Customer agrees to inform SCC of any personal data as defined by the EU regulation that Customer intends to share.

  • 5. Service Level

    1. 5.1

      If Customer has ordered hosting services from SCC on an Order Form, SCC shall use reasonable efforts to maintain the Software availability, and provide updates to Customer.

    2. 5.2

      Updates might be implemented in the Software from time to time. We will inform all customers with an active Order Form for the applicable Software of update releases. Updates should support the resilience of the Software, its implementation capabilities, its innovation and may add or remove features.

    3. 5.3

      SCC may use data derived from Customer’s use of the Software to run further analysis and improve the Software and Services. Such analysis shall only be performed internally by SCC and data will be anonymized prior to the analysis.

  • 6. Limitation of Liability & Warranties

    1. 6.1

      Each party represents and warrants that it has the legal power to enter into this Agreement. SCC represents and warrants that it:

      1. 6.1.1

        will provide the Software or Service(s) as specified in an Order Form in a manner consistent with general industry standards reasonably applicable to the provision thereof; and

      2. 6.1.2

        owns or otherwise has sufficient rights in the Software to grant to Customer the rights to use the Software granted herein.

    2. 6.2

      For on-premise Software with perpetual license, SCC warrants to Customer that, for a period of three (3) months from the date Customer first downloads the Software from the applicable website (the “Warranty Period”), the Software will perform substantially in accordance with the documentation accompanying the Software. If the Software fails to perform substantially in accordance with the documentation, Customer shall notify SCC in writing within the Warranty Period. If SCC receives such notice within the Warranty Period, SCC shall use reasonable efforts to make the Software perform in accordance with the documentation. If, after using reasonable efforts, SCC is not able to repair or replace the Software so that it performs substantially in accordance with the documentation, Customer may terminate the applicable Order Form upon written notice to SCC and SCC shall refund to Customer the fees paid by Customer for the non- conforming Software. The foregoing are Customer’s sole and exclusive remedies for breach of this warranty. The warranty set forth in this Section 6.2 shall not apply if the Software has not been properly installed and used at all times in accordance with the documentation. SCC makes no warranties that the Software will function when used in conjunction with third party products, including without limitation workstations.

    3. 6.3

      EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, SCC MAKES NO WARRANTIES OR REPRESENTATIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE SOFTWARE, SERVICE OR OTHER SERVICES PROVIDED UNDER AN ORDER FORM, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OR REPRESENTATION THAT THE SOFTWARE, SERVICE OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF OR ACCESS THERETO WILL BE SECURE, UNINTERRUPTED OR ERROR FREE. TO THE GREATEST EXTENT ALLOWED BY APPLICABLE LAW, SCC SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND REPRESENTATIONS OF QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, EXCEPT TO THE EXTENT THAT ANY WARRANTIES OR REPRESENTATIONS IMPLIED BY APPLICABLE LAW CANNOT BE VALIDLY WAIVED.

    4. 6.4

      SCC disclaims all warranties and liabilities arising from or related to any third-party products or services, or open-source products (regardless of whether obtained from SCC or another source).

    5. 6.5

      Indemnification: Customer shall indemnify, defend and hold SCC and SCC’s subcontractors harmless from and against any and all losses, damages, costs and expenses (including reasonable attorneys' fees) incurred by it in connection with claims made or brought against SCC involving a breach of this Agreement or use or misuse of the Software or Service by Customer or its employees, agents or contractors or any violation of applicable law by Customer. SCC shall

      1. 6.5.1

        promptly give written notice of the claim to Customer;

      2. 6.5.2

        give Customer sole control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim unless it unconditionally releases SCC of all liability); and

      3. 6.5.3

        provide to Customer, at Customer's cost, all reasonable assistance.

      4. 6.5.4

        SCC reserves the right to take sole responsibility, at its own expense, for conducting the defense of any claim for which Customer agreed to indemnify SCC.

    6. 6.6

      Limitation of liability: SCC and its officers, directors and employees, SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THE SOFTWARE OR SERVICE OR ANY SERVICES PROVIDED UNDER THIS AGREEMENT, EVEN IF SCC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SCC’S MAXIMUM CUMULATIVE LIABILITY FOR ANY AND ALL DAMAGES, COSTS, LOSSES, LIABILITIES AND EXPENSES OF ANY KIND AND NATURE ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. THE EXCLUSIONS IN THIS CLAUSE SHALL APPLY TO THE FULLEST EXTENT PERMISSIBLE AT LAW, BUT SCC DOES NOT EXCLUDE LIABILITY CAUSED BY ITS WILFUL INTENT OR GROSS NEGLIGENCE OR FOR ANY OTHER LIABILITY WHICH MAY NOT BE EXCLUDED BY LAW.

  • 7. Confidentiality

    1. 7.1

      The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to

      1. 7.1.1

        not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and

      2. 7.1.2

        limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein, except as otherwise authorized by the Disclosing Party in writing,

    2. 7.2

      Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent. Notwithstanding the foregoing, SCC may disclose the terms of this Agreement and any applicable Order Form to a subcontractor to the extent necessary to perform its obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.

    3. 7.3

      The restrictions on use or disclosure of Confidential Information will not apply to any Confidential Information that:

      1. 7.3.1

        Is independently developed by the Receiving Party without reference or access to the Disclosing Party’s Confidential Information,

      2. 7.3.2

        is generally available to the public without breach of the Agreement by the Receiving Party,

      3. 7.3.3

        at the time of disclosure, was known to the Receiving Party free of confidentiality restrictions,

      4. 7.3.4

        the Disclosing Party agrees in writing is free of confidential restrictions, or

      5. 7.3.5

        is required by order of a court of an administrative governmental agency to be disclosed, provided the Receiving Party makes reasonable effort to notify the Disclosing Party of the compelled disclosure, in time for the Disclosing Party, at the Disclosing Party's cost, to appear and oppose the disclosure.

    4. 7.4

      Customer acknowledges and agrees that SCC’s employees are a valuable asset to SCC and are difficult to replace. Accordingly, Customer agrees that, during the term of this Agreement and for a period of one (1) year thereafter, Customer shall not solicit, recruit or offer employment or engagement (whether as an employee, independent contractor or consultant) to or hire any of SCC’s employees. Customer agrees that if it violates the terms of this Section 7.4, it will immediately pay SCC, as liquidated damages and not as a penalty, a sum equal to the annual salary of the employee solicited or hired by Customer. An individual’s response to a broad and general advertisement or solicitation not specifically targeting or intending to target employees of SCC or of any Affiliates shall not be deemed a violation of this Section 7.4.

    5. 7.5

      Neither party shall make any disclosure to any other person or issue any press release or other public announcement regarding this Agreement or any relationship between SCC and Customer or use the name, trademarks or other proprietary identifying symbol of the other party, without the other party’s prior written consent, except that SCC may identify (by name and/or logo) Customer as a customer of SCC in a mere list of customers on its website and in related marketing materials, unless and until Customer revokes such consent.

  • 8. Intellectual property

    1. 8.1

      All right, title and interest in and to the Software and Service and any Confidential Information made available by SCC to the Customer pursuant to this Agreement, including without limitation, all intellectual property rights therein, shall remain exclusively with SCC and its licensors, as applicable. Except as set forth herein, SCC alone retains all rights, title and ownership interest in any suggestions, ideas, enhancement requests, feedback, recommendations, and other information provided by Customer to SCC related to the Services and/or Software. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Software or Service. As between the parties, SCC owns all APIs and Performance Data. “Performance Data” means any and all aggregate, de-identified data relating to the access or use of the Software by any User, including any performance, analytics or statistical data, that SCC may collect from time to time.

    2. 8.2

      Customer shall not

      1. 8.2.1

        Copy the Software;

      2. 8.2.2

        modify or create derivative works based on the Software;

      3. 8.2.3

        frame or mirror any content forming part of the Software or Service, other than on Customer's own intranets or otherwise for its own internal business purposes;

      4. 8.2.4

        decompile, disassemble, or reverse engineer or otherwise attempt to discover the source code of the Software except and only to the extent that applicable law expressly permits such activity;

      5. 8.2.5

        access the Software or Service in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Software;

      6. 8.2.6

        use the Software or Service for any purposes except as expressly provided in this Agreement;

      7. 8.2.7

        transmit any content or data that is unlawful or infringes any intellectual property rights;

      8. 8.2.8

        circumvent or endanger its operation or security;

      9. 8.2.9

        copy nor permit any person using the Software to copy any written materials accompanying the Software other than strictly for Customer’s internal use;

      10. 8.2.10

        remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on the Software, Documentation and any related materials; or

      11. 8.2.11

        except as expressly permitted under Section 2, allow any third party to access or use the Software or Service for any reason.

    3. 8.3

      Customer shall notify SCC immediately to the extent it becomes aware of any unauthorized use, or access to the Software or the Service or any other Confidential Information made available to Customer under this Agreement, by any person or entity not authorized by this Agreement to have such possession, use or access.

    4. 8.4

      IP infringement: SCC shall, at its sole cost and expense, defend and settle any claim brought by a third party against Customer alleging that the Software infringes any patent, trade secret, trademark or copyright of any third party (“Infringement Claim”). SCC shall have the sole and exclusive right to defend and settle any Infringement Claim. In the event of an Infringement Claim, SCC shall also have the right, at its sole cost and expense, to (i) repair or replace the Software so that it is non-infringing (providing the repaired or replacement software has the same or substantially similar functionality as the Software); or (ii) acquire a license for Customer to continue to use the Software. If neither (i) nor (ii) are reasonably possible to SCC, then SCC may terminate the applicable Order Form upon written notice and pay to Customer an amount equal to the total fees paid by Customer for the Software in the twelve (12) month period immediately preceding such termination. This Section states Customer’s sole and exclusive remedy, and SCC’s sole and exclusive obligation, with respect to an Infringement Claim. SCC shall have no obligations under this Section 8.4 to the extent that Customer modifies (or has modified on its behalf) the Software or combines the Software with other software, hardware or other technology not provided or authorized by SCC.

  • 9. Fees and Payment

    1. 9.1

      Customer shall pay SCC all fees payable for the use of the Service, the Software and any other services purchased from SCC as specified in the applicable Order Form. Payment obligations are non-cancellable, and fees paid are non-refundable, unless explicitly set out in this Agreement. All fees are due and payable within the time as specified in the applicable Order Form. Fees will be invoiced by SCC as specified in the applicable Order Form.

    2. 9.2

      For some Services or Software, SCC and Customer may agree an Autorenewal option in the order form as defined in Section 10.3.

      1. 9.2.1

        For Services or Software without Autorenewal option, SCC will give access to the Software or Service only after receiving the invoiced amount in full on SCC’s accounts and will terminate access at the end of the time period stated in the Order Form.

      2. 9.2.2

        For Services or Software with an agreed Autorenewal option and for which the Customer's account is fourteen (14) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, SCC reserves the right to suspend the right to use or access the Software and the Service provided to Customer, without liability to Customer, until such amounts are paid in full.

    3. 9.3

      All prices are exclusive of taxes, if any, on the Software and the Service. All VAT, sales and use taxes required to be remitted by SCC shall be payable by Customer upon invoice by SCC.

    4. 9.4

      For multi-year orders, the fee will be yearly adjusted for inflation based on the Consumer Price Index published for Switzerland.

  • 10. Termination

    1. 10.1

      This Terms of Service agreement commences on the earlier of the date You purchase, download or use the Service or the Software. It will remain in force unless earlier terminated in accordance with Section 10.4 hereunder, or unless a party indicates that it wishes to terminate the Terms of Service agreement by giving at least sixty (60) days written notice to the other party. Termination of this Terms of Service agreement will not affect any Order Forms that were already signed before such termination. These Order Forms will be executed in accordance with, and will remain subject to, the terms of the Terms of Service agreement.

    2. 10.2

      An Order Form shall commence on the “Start Date” and automatically terminate without any notice being due at the “End Date” of the Subscription Term, unless the Autorenewal option has been set. Customer cannot cancel or terminate a Subscription Term except as expressly permitted by Section 10.4. At any time prior to the expiration of the Subscription Term, the parties may agree to a new Subscription Term pursuant a new Order Form.

    3. 10.3

      Autorenewal option for an Order Form: Customer may request an Autorenewal option for an Order Form. When confirmed by SCC, then the Order Form will not automatically terminate at the “End Date”, but will automatically be renewed for a new Subscription Term of the same length and conditions. Either party can terminate an Order Form with the Autorenewal option set, by sending the other party a written notice, no later than thirty (30) days before the End Date of the Subscription Term.

    4. 10.4

      SCC may terminate this Terms of Service agreement or an Order Form immediately upon written notice if Customer directly or indirectly discloses or provides the Software or the Service to any third party not authorized under the terms of this Agreement. Either party may terminate the Terms of Service agreement or an Order Form in any of the following cases:

      1. 10.4.1

        upon thirty (30) days prior written notice if the other party materially breaches this Terms of Service agreement or an Order Form and fails to cure such breach within the thirty (30) day notice period, including without limitation Customer’s failure to pay the then-current fees when due;

      2. 10.4.2

        immediately if the other party permanently ceases to operate its business; or

      3. 10.4.3

        immediately upon an assignment for the benefit of the other party’s creditors; a petition of bankruptcy filed by or against the other party; a receiver, trustee in bankruptcy, or similar officer is appointed to take control of all or part of the other party’s business; or the other party is adjudicated bankrupt.

    5. 10.5

      Upon termination or expiration of the applicable Order Form, Customer shall immediately cease using the Software and the Service, return all of the copies of SCC’s Confidential Information to SCC and acknowledge that it may no longer use the Software or the Service. In the event that the Software is installed on Customer´s computers, Customer shall immediately delete all copies of the Software residing on the computers, networks and/or systems of Customer and certify to SCC that it has not retained any copies thereof. In the event of termination of an Order Form, all fees due and to become due over the remaining period of the Subscription Term shall immediately become due and payable. Notwithstanding the preceding sentence, in the event of termination of an Order Form by Customer in accordance with Section 10.4, Customer has the right to request a refund of any prepaid fees covering the remainder of the Subscription Term after the effective date of termination. Upon termination of this Terms of Service agreement or an Order Form, SCC’s obligations thereunder shall cease. The provisions of Sections 1, 6, 7, 8, 9, 10.5, 12 shall survive any termination or expiration of this Agreement.

    6. 10.6

      SCC will hold the data it has the responsibility to host as long as the Order Form is active. Approximately 6 months after termination or expiration of the applicable Order Form or after a time limited account (e.g. demo account) has expired, the related data will get deleted from the active database. For 3 more months, SCC can recover data from backups. After that time all data will have been deleted and no recovery will be possible.

  • 11. Applicable Law and Forum

    1. 11.1

      Governing law - This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with substantive Swiss law.

    2. 11.2

      Jurisdiction –For any dispute arising out of or in connection with this Agreement that cannot be amicably resolved between the parties, the parties submit to the exclusive jurisdiction of the courts competent in 8834 Schindellegi (municipality of Feusisberg, SZ), Switzerland.

    3. 11.3

      The United Nations International Convention on Contracts for the International Sale of Goods is expressly excluded from applicability to this Agreement.

  • 12. Miscellaneous

    1. 12.1

      This Agreement, including the applicable Order Form(s), constitutes the entire agreement between the parties, superseding all prior oral or written representations, agreements or understandings with respect to the subject matter hereof and thereof. There are no representations, warranties, conditions, guarantees or agreements relating to such subject matter except those expressly stated in this Agreement. To the extent there is any conflict between the terms of this Agreement and the applicable Order Form(s), the terms of the Order Form shall prevail.

    2. 12.2

      Customer shall not sell, transfer, assign or otherwise convey this Agreement, or any of Customer’s rights or obligations hereunder, including without limitation by operation of law to a successor in interest in connection with a merger, consolidation, sale of shares or assets or other change of control transaction involving the Customer, without the prior written consent of SCC, which consent shall not be unreasonably delayed or withheld. SCC may, after prior notification to Customer, sell, transfer, assign or otherwise convey this Agreement, or any of its rights or obligations hereunder, to any of its Affiliates or in connection with a merger, consolidation, sale of shares or assets or other change of control transaction involving SCC. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

    3. 12.3

      SCC reserves the right to assign, transfer, subcontract or delegate all or any part of its rights or obligations under this Agreement to any of its Affiliates at any time with or without notice to Customer. SCC agrees to be responsible for the acts and omissions of its Affiliates to the extent SCC assigns, transfers, subcontracts or delegates any of its obligations hereunder to them.

    4. 12.4

      Nothing in this Agreement is intended to or shall be construed as creating an agency, partnership, joint venture, franchise, or employment relationship between Customer and SCC or any person or entity affiliated with or employed by SCC.

    5. 12.5

      Customer agrees that certain breaches of this Agreement by it may result in irreparable harm to SCC, the extent of which would be difficult and/or impracticable to assess, and where money damages would not be an adequate remedy for such breach. Accordingly, SCC shall be entitled to seek any and all remedies available at law or in equity, including without limitation injunctive relief or specific performance.

    6. 12.6

      This Agreement may not be amended except in a writing signed by authorized representatives of both parties.

    7. 12.7

      The failure of either party to enforce any provision or condition contained herein at any time will not be construed as a waiver of that provision or condition nor will it operate as a forfeiture of any right or future enforcement of the provision or condition.

    8. 12.8

      If any provision of this Agreement, or the application of any provision to any party or circumstance, is held invalid, the remainder of this Agreement, and the application of the provision other than to the extent it is held invalid, will not be invalidated or affected.

    9. 12.9

      SCC will not be in breach of this Agreement if its performance is prevented or delayed for circumstances beyond its control, including but not limited to acts of God, inclement weather, flood, lightning or fire, strikes or other labor disputes or industrial action, act or omission of government or other competent authority, pandemic, terrorism, war, riot, or civil commotion, unavailability of supply or power outage, hackers, viruses, disruption in transmission, or disruption in telecommunications services.

    10. 12.10

      No one other than a party to this Agreement shall have any right to enforce any of its terms.