This Software as a Service Subscription Agreement (Subscription Agreement) for the right, amongst other matters, to access and use the SCW Platform between the SCW and the Customer, as those entities are defined below, is dated as of the date that the last Party signs the Subscription Agreement or accepts a Subscription Order Form referencing it (Start Date).
The Subscription Agreement (including the SLAs and Subscription Order Form and, if applicable, the Data Protection Agreement) sets out the terms and conditions between SCW and the Customer and when executed by both parties forms a legally binding and enforceable agreement between them.
SCW and the Customer may hereinafter be referred to individually as “Party” and collectively as the “Parties”.
The following words shall have the meaning stipulated herein below:
Affiliates means a company in which either Party either wholly owns or has a controlling interest and includes subsidiaries as that term is commonly applied and Related Body Corporate as defined in the Corporations Act 2001 (Cth).
Applicable Data Protection Law means all data protection and privacy laws/regulations which apply to SCW and Customer’s processing of Personal Data in relation to SCW Offerings and this Subscription Agreement.
Customer means the entity listed in the signature block of this Subscription Agreement which acquires a Subscription on execution of this Subscription Agreement or in a Subscription Order Form referencing this Subscription Agreement.
Customer Data means 1) all information provided by the Customer to allow SCW to provide the Customer and its End Users with access to and use of the SCW Platform, and 2) Personal Data processed by SCW as a Processor acting on behalf of the Customer (the Controller). Where SCW processes Personal Data as an independent Controller, it does so in accordance with SCW’s privacy policy, the most current version of which can be found at https://www.securecodewarrior.com/trust/privacy-policy.
De-Identified Data means any Customer Data, including derivatives thereof, that have been aggregated, scrubbed, hashed, obscured, or otherwise processed so that such data or information is not capable of being re-associated with or identifying Customer or any individual, account, device, or organization.
Defect means a defect, error, or bug having a materially adverse effect on the appearance, operation, or functionality of the SCW Platform, but excluding any defect, error, or bug caused by or arising as a result of an act or omission of the Customer, any failures of the internet or part of the internet, or any mechanism designed or used to disable, erase, alter, or harm the SCW Platform.
Device means a single personal computer, workstation, mobile phone, tablet, or other electronic device.
End User means a person or persons employed and/or otherwise authorized by the Customer, and who is provided with a Subscription by the Customer to access and use the SCW Platform.
Insolvency Event means a situation where in respect to either Party (1) a Party is unable to pay its debt as and when they fall due; (2) a receiver or administrator is appointed over the Party or any part of their respective undertakings or assets; (3) a resolution for winding up the Party is proposed (or ordered), with the expectation of such an order being proposed for the purpose of a bona fide reconstruction; (4) a court of competent jurisdiction makes an order to that effect; (5) becomes subject to an order of administration; (6) enters into any scheme of arrangement with creditors or any similar process to any of the above is begun in any jurisdiction, or if it ceases or threatens to cease to carry on business.
Intellectual Property means all intellectual property rights wherever in the world, whether registered or unregistered, including patents, rights to any invention, copyrights, and related rights, moral rights, rights in computer software, trademarks, service marks, trade names, domain names, rights in any goodwill, and the right to sue for passing off or unfair competition, registered designs, other rights in designs, any application or right of application of such rights, including codes, sequences, derivative works, copyrights, data-base rights, trade secrets, know-how, business names, trade names, trademarks, service marks, patents, petty patents, utility models, rights in design, organisation, structure, interfaces, any documentation (including the SCW Materials), data and other related rights.
Malicious Code means any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” “worm,” “spyware” (as such terms are commonly understood in the software industry) or any other code designed to have any of the following functions: (a) disrupting, disabling or harming the operation of, or providing unauthorized access to, a computer system or network or other device on which such code is stored or installed or (b) compromising the privacy or data security of the SCW Platform, Customer Data or damaging or destroying any data or file, in each case, without authorization and without SCW's consent.
Personal Data, Processing, Processor and Controller have the same meaning as the General Data Protection Regulation (EU) 2016/679 (GDPR) and may be interpreted to include similar terms/concepts used in other Applicable Data Protection Law.
SCW means Secure Code Warrior entity listed in the signature block of this Subscription Agreement, or in a Subscription Order Form referencing this Subscription Agreement, and its Affiliates.
SCW Platform means computer software developed and owned by Secure Code Warrior Limited made available to the Customer as a service via the internet, including SCW Materials, updates, supplements, modification, addition and/or adaptation of the SCW Platform to enable or include certain features and/or functionality, under the terms and conditions of this Subscription Agreement.
SCW Materials means any electronic or written aids, manuals, user instructions, technical literature, training material, demo material, specifications and all other related materials provided by SCW to Customer and which may also be accessible by the Customer in the SCW Platform.
SLAs means SCW’s Service Level Agreement, the most current version of which can be found at https://www.securecodewarrior.com/trust/service-level-agreement.
Subscription means the duration for which the Customer has the right to access and use the SCW Platform according to this Subscription Agreement and the applicable Subscription Order Form.
Subscription Fee means the fee payable by the Customer for access to and use of the SCW Platform, the amount of which is set out in the Subscription Order Form.
Subscription Order Form means the document identifying the applicable Subscriptions to be provided by SCW to Customer, the Subscription Fee, the Subscription Term, and other details for each transaction between the Customer and a SCW approved reseller.
Subscription Term means the period Customer has access to the SCW Offerings as specified in the Subscription Order Form.
2.1. The SCW Platform provides an integrated suite of secure code training and tools to Customer, including hands-on training, team tournaments, real time coaching plug-in, self-paced learning for multiple skill levels and online assessments.
2.2. The SCW Platform is made available through an account set up for the Customer. The Customer’s right to access and use the Subscription for the SCW Platform is web based and only pursuant to the terms of this Subscription Agreement and applicable Subscription Order Form.
3.1. This Subscription Agreement will begin on the Start Date and will remain in effect for so long as any Subscription Order Form referencing this Subscription Agreement remains in effect, unless terminated earlier in accordance with the terms of this Subscription Agreement.
3.2. On termination or expiration of the Subscription Agreement, or the applicable Subscription Order Form, the Customer´s, and its End User’s, access to and use of the SCW Platform will no longer be available, neither the Customer nor the End User(s), will have access to or use of the SCW Platform and applicable data therein.
4.1. Subject to Customer’s compliance with the terms of this Subscription Agreement and the timely payment all Subscription Fees, Customer (including its End Users) is granted a limited, non-transferable, non-sublicensable, non-exclusive Subscription to access and use the SCW Platform on Devices via any standard web browser during the Subscription Term.
4.2. The Customer agrees, and will procure that its End Users, will only access and use the SCW Platform for its internal business use.
4.3. The Customer must not, and will procure that it’s End Users do not:
(a) frame, reproduce, or otherwise re-publish, re-sell, or re-distribute the SCW Platform, or any part thereof
(b) access or use the SCW Platform in any way that causes or may cause damage to the SCW Platform or impairment of the availability or accessibility of the SCW Platform or any of the areas of or services on the SCW Platform;
(c) access or use the SCW Platform in any way that is unlawful, illegal, fraudulent or harmful or in connection with any unlawful, illegal, fraudulent unethical, immoral, inappropriate or harmful activity, including but not limited to, to exploiting or acquiring skills for illegal or malicious attacks;
(d) allow its End Users or any third party to attempt, to copy, modify, duplicate, create derivative works, mirror, republish, reverse compile, disassemble, reverse engineer, download, transmit, or distribute all or any portion of the SCW Platform, including but not limited to the object code and the source code, in any form or media or by any means;
(e) rent, lease, distribute, sell, sublicense, transfer or provide access to or use of the SCW Platform to any third party; or
(f) access or use the SCW Platform for any commercial purpose or for any public display, whether commercial or non-commercial, without the prior written approval of SCW.
4.4. The Customer acknowledges and agrees that the Subscriptions are for designated End Users and cannot be shared or used by more than one End User and shall not be transferred between End Users with the intention of circumventing the quantity of End Users stated in the applicable Subscription Order Form. Subscriptions may only be transferred to new End Users from End Users who no longer have access to the SCW Platform, or otherwise with the express consent of SCW.
4.5. The Customer is entitled to add additional End Users to the license quantity stated in the Subscription Order Form during the Subscription Term, following which the Customer will be invoiced for the additional End Users at the per End User price specified in the applicable Subscription Order Form, prorated to the end of the relevant Subscription Term (or renewal term as may be appropriate) by the SCW authorized reseller.
4.6. If the Customer exceeds the license quantity of End Users stated in the Subscription Order Form (and has not gone through the process outlined in Section 4.5 above), SCW reserves the right, through its authorized reseller, to charge the Customer for each of the additional End Users. The Customer will be invoiced by the SCW authorized reseller for the number of additional End Users at the per End User price specified in the applicable Subscription Order Form, prorated to the end of the relevant Subscription Term (or renewal term as may be appropriate).
4.7. Third-Party Software. SCW uses certain third-party and open-source software in its SCW Platform. The third-party and open-source software will not (a) diminish the license rights provided herein or limit Customer’s ability to use the SCW Platform in accordance with the applicable SCW Materials or (b) create any obligation on the part of Customer to license Customer’s software or products under any open source or similar license.
4.8. Use by Affiliates. Customer may permit any of its Affiliates located in the same region as Customer is incorporated to exercise all or any portion of the rights granted in this Section 4 solely on Customer’s or its Affiliates’ behalf, provided that (a) Customer furnishes a copy of this Subscription Agreement to such Affiliate, (b) the Affiliate may only exercise such rights for the benefit of the Customer or itself subject to terms and conditions that are no less protective of SCW, in all material respects, than are set forth in this Subscription Agreement, (c) Customer remains solely liable to SCW for the acts and omissions of the Affiliate and will indemnify SCW for any breach of this Subscription Agreement resulting from such acts or omissions, and (d) usage of SCW Platform by Affiliates will count towards Customer’s usage for the purpose of calculating licensed End Users. Notwithstanding the foregoing, if an Affiliate of Customer executes a Subscription Order Form directly with SCW which references this Subscription Agreement, that Subscription Order Form is a separate obligation of the Affiliate and only such Affiliate shall have rights and obligations in relation to such Subscription Order Form. In the event an Affiliate in a different region than Customer wishes to access or use the SCW Platform, the Parties will work in good faith to execute a joinder or local adoption agreement for such purpose.
5.1. SCW does not make any representation, endorsement, guarantee, or assurance of the suitability of the SCW Platform for the Customer.
5.2. SCW will maintain the SCW Platform and provide all support services on terms set out in the SLAs.
6.1. The Customer agrees to pay a Subscription Fee for the right to access and use the SCW Platform. The amount of the Subscription Fee and payment terms are set out in the Subscription Order Form. Except as expressly set forth herein, all Subscription Fees are non-cancelable and all amounts paid are non-refundable.
6.2. The Subscription Fee does not include any applicable taxes including but not limited to goods and services tax (GST), value added tax (VAT) which will be added on top of the fee as applicable, and as otherwise set out in the Subscription Order Form.
6.3. The Customer is responsible for payment of any applicable taxes as may be owed by the Customer due to entering into this Subscription Agreement or a Subscription Order Form.
6.4. If the Customer wishes to dispute any part of an invoice, the Customer must notify the SCW approved reseller in accordance with Customer’s agreement with such reseller..
7.1 In connection with this Subscription Agreement, each Party, or that Party’s Affiliates, may disclose or has already disclosed (“Disclosing Party”) to the other Party, or its Affiliates, (“Receiving Party”) certain Confidential Information (as defined herein) which the Disclosing Party desires the Receiving Party treat as confidential. Subject to the exceptions set forth below, “Confidential Information” means any information disclosed by either Party to the other Party, either directly or indirectly, in writing, orally or by inspection of tangible objects (i) which is designated as “Confidential,” “Proprietary” or some similar designation or (ii) that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential. Confidential Information may be in written or oral form including business, technical and other similar information which is being disclosed. Each of the Parties’ Confidentiality obligations shall survive until such time as all Confidential Information of the other Party disclosed hereunder becomes publicly known and made generally available through no action or inaction of the Receiving Party.
(a) Confidentiality Obligations. The Receiving Party may use the Disclosing Party’s Confidential Information only for the purpose of performing under this Subscription Agreement, or the relevant Subscription Order Form, and shall protect the confidentiality of such Confidential Information with at least the same degree of care as the Receiving Party uses to protect the confidentiality of its own proprietary information of like importance, but in no event less than reasonable care. The Receiving Party shall not disclose the Confidential Information, either orally or in writing, to any third party, provided that the Receiving Party may make any disclosure of such Confidential Information (i) to the extent required for the Receiving Party to comply with any applicable law or valid court order, provided that the Receiving Party provides prior written notice of such required disclosure to the Disclosing Party (to the extent such notice is legally permissible) to enable the Disclosing Party to seek a protective order and reasonably cooperates with the Disclosing Party in its efforts to seek such a protective order, at the Disclosing Party’s expense; or (ii) to the Receiving Party ‘s directors, employees, accountants, attorneys, financial advisors and independent contractors (“Representatives”) who need to know such information in connection with the purpose of performing under this Subscription Agreement, or the relevant Subscription Order Form, and who are similarly bound by written agreement with the Receiving Party to protect the confidentiality of such Confidential Information. The Receiving Party shall promptly notify the Disclosing Party upon becoming aware of any misuse or misappropriation of the Confidential Information and shall be fully responsible and liable for any breach of this Subscription Agreement by its Representatives.
(b) Exclusions. The confidentiality obligations described herein shall not apply to information which (i) is or becomes publicly known and made generally available in the public domain through no action or inaction of the Receiving Party; (ii) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s files and records immediately prior to the time of disclosure; (iii) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the Receiving Party’s possession; or (v) is deemed by the Disclosing Party, in writing, to no longer be confidential.
7.2 Data Protection and Privacy. Both Parties agree to comply with their obligations under Applicable Data Protection Law. The most current version of SCW’s Data Processing Addendum (DPA) shall govern the processing of Customer Data. The DPA can be found at: https://www.securecodewarrior.com/trust/data-processing-addendum.
7.3 Security and Compliance. SCW will use commercially reasonable industry standard security technologies in providing the SCW Platform. SCW has implemented and will maintain appropriate technical and organizational measures, including information security policies and safeguards aligned to comply with international standards such as ISO/IEC 27001, 27701 and SOC (Service Organisation Control) Type 2 designed to preserve the security, integrity, and confidentiality of Customer Data and to protect against unauthorized or unlawful disclosure or corruption of or access to such data. For further information about SCW’s Security and Privacy practices, refer to SCW's Trust Centre - https://www.securecodewarrior.com/trust.
8.1. SCW owns and retains all worldwide right, title, interest, and ownership to the SCW Platform including without any limitation all Intellectual Property rights in and to the SCW Platform. Accordingly, the Customer acknowledges and agrees that this Subscription Agreement and its access and use of the SCW Platform transfers no title or ownership of the SCW Platform either to it or any of its End Users.
8.2. The Customer acknowledges and agrees that SCW has a royalty-free, worldwide, transferable, irrevocable, perpetual license to use or incorporate into the SCW Platform any suggestions, enhancement requests, recommendations or other feedback which Customer chooses to provide, including End Users, relating to the operation of the SCW Platform.
8.3 Customer Data Usage. SCW may use and process Customer Data during the term of a Subscription Order Form to provide the SCW Platform, including: (a) to prevent or resolve technical problems, (b) to observe Customer’s usage of any SCW Platform, (c) to improve the SCW Platform, and/or (d) otherwise at Customer’s request. SCW shall not disclose the Customer Data except as compelled by law or legal proceedings, or as expressly permitted in writing by Customer.
8.4 Ownership of Customer Data. Except for the rights expressly granted herein, Customer retains all worldwide right, title, and interest to Customer Data.
8.5 De-Identified Data. SCW may collect, use and process De-Identified Data in connection with the operation of its business, which includes: (a) benchmarking and creation of similar operational aggregate statistics regarding the SCW Platform, and/or (b) offering, developing, and improving current and future products and services; provided, however, that any such De-Identified Data is not capable of being used by SCW to identify Customer or any individual, account, device, or organization. De-Identified Data will not be deemed “Confidential Information” hereunder.
Each Party agrees during the Subscription Term to maintain appropriate insurances as required by applicable law and regulations and which include employers’ liability insurance, Public/Products Liability, Professional Indemnity and cyber insurance.
10.1. Each Party represents and warrants that they:
(a) are duly authorized to enter into the Subscription Agreement;
(b) will each execute their respective obligations under the Subscription Agreement with due care, skill and professionalism;
(c) will not hold themselves out as being an employee or any other association with the other Party other than as provided in the Subscription Agreement
10.2. The Customer acknowledges and agrees that:
(a) it has relied on its own skill and judgment or that of its advisers in entering to enter into this Subscription Agreement; and
(b) the SCW Learning including all SCW Materials comprise a standard service and materials provided to SCW’s customers generally and they have not been developed to meet the Customer’s or any Affiliates’ requirements; and it is the Customer’s and the Affiliates responsibility to check that the features, facilities and functions of the Service meet its requirements.
10.3 WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, THE SCW PLATFORM IS PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND, TO THE FULLEST EXTENT PERMITTED BY LAW, SCW AND ITS LICENSORS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS INCLUDING ANY WARRANTIES OF TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, MERCHANTABILITY, OR NON-INFRINGEMENT, WHETHER EXPRESS OR IMPLIED. SCW MAKES NO WARRANTY THAT THE SCW PLATFORM WILL OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, MEET CUSTOMER’S REQUIREMENTS, OR BE SECURE OR ERROR FREE. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE STATUTORILY REQUIRED WARRANTY PERIOD.
11. SUSPENSION. SCW may suspend Customer’s access to the SCW Platform on the following grounds: (i) late payment/non-payment of Subscription Fees not subject to good faith dispute, (ii) non-renewal of the SCW Platform by Customer; (iii) Customer’s or its End Users’ breach of Section 4 (Customer Rights and Restrictions); or (iv) in the event suspension is reasonably deemed necessary by SCW to prevent or address the introduction of Malicious Software, a security incident, or other harm to Customer, SCW, or SCW’s other customers. SCW will notify Customer of any such suspension. SCW will use diligent efforts to attempt to limit, where commercially feasible, the suspension to affected End Users or SCW Platform, and will immediately restore the availability of the same as soon as the issues leading to the suspension are resolved. Such suspension will in no way affect Customer’s other obligations under this Subscription Agreement. If the conditions underlying the suspension are not cured within thirty (30) days from notice to Customer from SCW of the suspension, SCW may immediately terminate this Subscription Agreement for cause.
12.1. Either Party may terminate the Subscription Agreement and any applicable Subscription Order Form by notice in writing to the other and with immediate effect if: (a) the other party commits a breach of a material term of this Subscription Agreement, or the applicable Subscription Order, which is incapable of remedy; (b) the other party fails to remedy a breach within 10 business days of receiving written notice by the other party, provided that, in each instance of a claimed breach: (i) the non-breaching Party notifies the breaching Party in writing of such breach; and (ii) the breaching Party fails to either cure such breach within ten (10) business days (or such other period as mutually agreed by the Parties) from receipt of such notice; (c) An Insolvency Event occurs in relation to either party; or (d) any law enforcement agency or court requires or requests a Party to do so.
12.2 Upon expiration or termination of this Subscription Agreement, all licenses (and Customer’s right to access and use the SCW Learning Platform) shall immediately cease.
13.1. SCW will, at its cost and expense, (a) defend or settle any claim brought against Customer by an unaffiliated third party alleging that the authorized use of the SCW Platform by Customer infringes such third party’s copyright, trademark or patent rights (“Claim”), and (b) pay any settlement agreed to by SCW of such Claim or any damages finally awarded to such third party by a court of competent jurisdiction as a result of such Claim. If the normal operation, possession, or use of the SCW Platform is found to infringe on any third party Intellectual Property right, or SCW believes that this is likely, SCW will, at its option and expense,: (i) procure for Customer the right to continue to access and use the SCW Platform; (ii) repair, modify or replace the SCW Platform so that it is no longer infringing; and in circumstances where neither (i) or (ii) are possible (iii) provide a prorated refund of the Subscription Fees paid for the SCW Platform which gave rise to the indemnity, calculated against the remainder of Term for the applicable SCW Platform from the date it is established that SCW was notified of the third party claim.
13.2. This indemnity is subject to: (i) the Customer providing prompt notice of any Claim of infringement and reasonable assistance in the defense thereof, (ii) SCW’s sole right to control the defense or settlement of any such claim, provided that the settlement does not require a payment or admission of liability on the part of the Customer, and (iii) the Customer not taking any actions that hinder the defense or settlement process or are failing to take actions as reasonably directed by SCW.
13.3 SCW shall have no indemnification obligations for any claim arising out of: (a) a combination of the SCW Platform with any products not supplied, or approved in writing, by SCW, (b) any repair, adjustment, modification or alteration to the SCW Platform by Customer or any third party, unless approved in writing by SCW, (c) any refusal by Customer to install and use a non-infringing version of the SCW Platform, or (d) any use of the SCW Platform in breach of this Subscription Agreement. This Section 13 (Indemnities) states the entire liability of SCW with respect to any claims subject to indemnification.
14.1. With the exception of SCW’s obligations under Section 13 (Indemnities), the maximum liability of either Party to the other Party for any and all claims arising out of or related to this Subscription Agreement, or the applicable Subscription Order Form, will in no circumstances exceed an amount equal to the Subscription Fee paid or payable by Customer for access to and use of the SCW Platform in the 12-month period preceding the event giving rise to the claim. This limitation of liability was and is an express part of the bargain between SCW and Customer and was a controlling factor in setting the Subscription Fees payable by Customer.
14.2. NOTWITHSTANDING THE ABOVE, NEITHER PARTY WILL BE LIABLE TO THE OTHER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR UNFORESEEABLE LOSS, DAMAGE OR EXPENSE, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS, LOSS OF OPPORTUNITY, LOSS OR CORRUPTION OF DATA, HOWEVER ARISING, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES BEING INCURRED.
15.1. This Subscription Agreement, and any disputes arising out of or in connection with access to and use of the SCW Platform under the terms of the Subscription Agreement, will be governed and interpreted by the exclusive jurisdiction of the laws as follows without regard to the provisions of the conflict of laws thereof:
(a) where the SCW entity is Secure Code Warrior Pty Limited: the laws of New South Wales in a court of competent jurisdiction located in Sydney, New South Wales;
(b) where the SCW entity is Secure Code Warrior, Inc: the laws of the state of New York in a court of competent jurisdiction located in New York City, New York; and
(c) where the SCW entity is Secure Code Warrior Ltd: the laws of England and Wales in a court of competent jurisdiction located in London, England.
15.2. Informal Dispute Resolution. The Parties agree that controversies between them with respect to this Subscription Agreement, or the rights and/or obligations of either Party, or with respect to any transaction contemplated by this Subscription Agreement, shall be in the first instance resolved, to the extent possible, by informal meetings and discussions among appropriate representatives of the Parties with authority to resolve such dispute.
16.1. No Agency. This Subscription Agreement and the Customer’s right to access and use the SCW Platform does not establish any relationship of partnership, joint venture, employment, franchise or agency between the Customer and SCW.
16.2. Assignment. Neither Party may assign the Subscription Agreement or its rights and obligations under the Subscription Agreement without the prior written consent of the other Party, whose consent will not be unreasonably withheld, conditioned, or delayed. Any attempt to assign the Subscription Agreement or the rights and obligations under the Subscription Agreement without such consent shall be null and void. Notwithstanding the foregoing, neither Party is entitled to withhold, condition, or delay its consent for any complete or partial assignment made by, or between their respective corporate structures due to a merger, consolidation, or sale.
16.3. Survival. Sections of this Subscription Agreement that, by their terms, require performance after the termination or expiration of this Subscription Agreement will survive as permitted by local law. These Sections include Section 1 (Definition), Section 7 (Confidentiality), Section 8 (Intellectual property), Section 10 (Warranties), Section 13 (Indemnities) and Section 16 (Miscellaneous).
16.4. Entire agreement. This Subscription Agreement, the Subscription Order Form and, where relevant, any Data Processing Agreement constitute the entire agreement between SCW and the Customer. It supersedes any prior or contemporaneous communications, and any prior agreement between the Parties regarding its subject matter and cannot be amended or updated other than by a written agreement signed by both Parties. In the event of a conflict between the terms of this Subscription Agreement and the Subscription Order Form, this Subscription Order Form shall prevail. For the avoidance of doubt, there will be no force or effect to any different terms or additional terms of any Customer provided purchase order, or similar form, even if signed or accepted by the Parties after the date hereof.
16.5. Waiver. No waiver of any breach of this Subscription Agreement shall be a waiver of any other breach, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving Party.
16.6. Severability. If a court of competent jurisdiction holds any provision of this Subscription Agreement to be illegal, invalid, or unenforceable, the remaining provisions will remain in full force and effect and the Parties will amend this Subscription Agreement to give effect to the stricken section to the maximum extent possible.
16.7. Counterparts. This Subscription Agreement may be executed in counterparts, including electronic counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
16.8 No Third-Party Beneficiaries. Nothing in this Subscription Agreement, express or implied, is intended to, or will, confer upon any person other than the Parties and the respective successors or permitted assigns of the Parties, any rights, remedies, obligations or liabilities.
16.9 Notices. Any notice, request, demand, or other communication required or permitted in this Subscription Agreement will be in writing, will reference this Subscription Agreement, and will be effective: (a) when delivered personally, (b) four (4) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid, (c) two (2) business days after deposit with an express courier, with written confirmation of receipt, or (d) when sent by electronic mail. All notices will be sent to the address set forth below or other address for a party as specified in writing by that Party. If to SCW: Attn: CEO , 265 Franklin Street, Suite 1702, Boston, MA 02110 United States of America; via email: legal@securecodewarrior.com with a copy to Legal Department: email: contracts@securecodewarrior.com.
16.10 Force Majeure. No Party will be liable hereunder (and their performance shall be excused under this Subscription Agreement) by reason of any failure or delay in the performance of its obligations (except for Customer’s payment obligations if SCW is performing its obligations) on account of strikes, shortages, riots, insurrection, terrorism, advanced persistent threats, fires, flood, storm, explosions, earthquakes, Internet outages, acts of God, war, governmental action, or any other cause that is beyond the reasonable control of such party. SCW will take all reasonable steps to resume provision of any affected obligations as soon as practicable following such events.
The SIGNATURES below confirm the agreement of both Parties to the terms and conditions of this Subscription Agreement.
When signed, or accepted, by authorized signatories, each Party agrees that the terms of this Subscription Agreement constitute a legally binding and enforceable agreement between them:
