SUPERSYNC TERMS & CONDITIONS & PROFESSIONAL SERVICES AGREEMENT

 

Section 1. Access to and Use of the SUPERSYNC System Subject to the terms and conditions of this Agreement, SUPERSYNC, a DBA of SCS Software, Inc, grants to Client a personal, revocable, non- exclusive, non-transferable, limited right and license to access the SUPERSYNC System via Client’s NetSuite Account during the Term of this Agreement (the “License”). The License is limited to the right to access and to use the SUPERSYNC System for Client’s own internal business purposes as expressly authorized under this Agreement, including those Feature Sets that Client may select and license pursuant to section 4 below. No right to sub-license is granted under this Agreement. Client shall not (a) reproduce, duplicate, disseminate, copy, sell, rent, lease or loan or otherwise disclose the SUPERSYNC System to any third party or use the same for the purpose of commercial timesharing, service bureau or other rental or sharing agreements with any third party, client or affiliate of Client; (b) use the SUPERSYNC System for any use other than the intended use set forth in the License and within the scope of the License; (c) reverse engineer or circumvent the security and restrictions of the SUPERSYNC System; or (d) otherwise use the SUPERSYNC System in any way not expressly provided for by this Agreement.

 

Section 2. Manner of Access to SUPERSYNC System. Client will access the SUPERSYNC System via the Client’s NetSuite Account. All use of the SUPERSYNC System must comply with the user policies established by SUPERSYNC. Client’s users of the SUPERSYNC System may be required to accept and agree to on-line terms of use, which terms shall be in addition to this Agreement and shall not supersede or amend this Agreement.

 

Client shall take all steps necessary to protect all User Logins and passwords, to safeguard the security and integrity of the SUPERSYNC System, and to protect against the unauthorized access of the SUPERSYNC System. Client shall immediately notify SUPERSYNC of any violation of the foregoing. Any access to the SUPERSYNC System using Client’s User Logins and passwords shall be deemed access by Client, except where access is the result of unauthorized disclosure of such User Logins and passwords by the negligent or willful act of SUPERSYNC. Client will be responsible, at its expense, for establishing, purchasing and maintaining its NetSuite Account and all necessary third party software and applications, hosted applications, Internet access, hardware, storage space and services, sufficient bandwidth and network connectivity, and other requirements necessary to access and use the SUPERSYNC System in a secure environment along with all necessary third party software and services (collectively, the “Third Party Resources ”). Client acknowledges and agrees that: (a) accessing the SUPERSYNC System may require the installation and use of third party software, including a fully licensed copy of NetSuite® and other Third Party Resources, all of which must be maintained and kept up to date by Client, at Client’s expense; (b) access to and use of the SUPERSYNC System requires the payment of third party fees and Client is responsible for paying such fees.

 

Section 3. Additional Feature Sets & Training Material. From time to time, SUPERSYNC may make available via the SUPERSYNC System other Feature Sets or training materials which may be accessed and used by Client following: (a) Client’s written assent to the terms and conditions of access and usage specific to such additional Feature Sets; and (b) Client’s payment of all Access Fees for the use of such additional Feature Sets or training materials. Such additional Feature Sets selected and paid for by Client shall be included within the License grant. While SUPERSYNC may, during the Term of this Agreement, provide additional Feature Sets, it is under no obligation to do so and the nature, substance, content, timing, manner and release of additional Feature Sets, if any, shall be in the sole and absolute discretion of SUPERSYNC.

 

Section 4. Updates. During the Term of this Agreement, SUPERSYNC will maintain, correct and modify, and may upgrade and update the SUPERSYNC System (collectively, “System Updates”); provided, however, that the nature, substance, content, timing, manner and release of System Updates, if any, shall be in the sole and absolute discretion of SUPERSYNC. System Updates shall be included within SUPERSYNC System and the License grant.

 

Section 5. Support. SUPERSYNC will provide email support (the “ Support Line Services ”) on the days and hours set forth on the Cover Document. Client may request additional Support Line Services at the rates set forth on the Cover Document. Support Line Services provided hereunder do not include Training, Setup or Consulting Services. Client will designate at least one employee who will qualify all Client support requests and serve as the primary points of contact for Client with the Support Line Services. The points of contact shall successfully complete PO SUPERSYNC’s training program.

 

Section 6. Consulting Services. Client may request and SUPERSYNC may provide consulting services (“Consulting Services”) in connection with the SUPERSYNC System and the Feature Sets or to develop custom training guides or training videos. All Consulting Services shall be set forth on a separate statement of work (“Statement of Work”) signed by the parties, setting forth the Consulting Services to be rendered, performance schedules, pricing and any other applicable terms and conditions. All Statements of Work shall be subject to the terms and conditions of this Agreement.

 

Section 7. Training Deliverables. Client is solely responsible for any printing, shipping and copying charges for any training Deliverables. All electronic and hard copy versions of the training Deliverables are provided for Client’s internal training purposes only. Client is prohibited from reselling or sublicensing any training Deliverables. Client may not record, film, stream or otherwise capture any performance or aspect of the training done by SUPERSYNC without prior consent. Training Deliverables are not subject to any maintenance, support or updates.

 

Section 8. On-Site Delivery. Client is responsible for providing appropriate training facilities for the training delivery, including without limitation Internet connectivity, student access to a Demo Account to which Client may be granted access, projector, student computers and other reasonable classroom amenities.

 

Section 9. Deliverables & Contract Property. SUPERSYNC shall own all rights, title and interest in and to the Deliverables (excluding any Client Property), and related intellectual property rights. SUPERSYNC hereby grants Client a worldwide, perpetual, irrevocable, non-exclusive, non-transferable (except to a successor by way of merger, reorganization or sale of assets), royalty-free license to use and modify such work product solely for its internal business purposes.

 

Section 10. Client Property. Client shall own all rights, title and interest in and to any Client Property. “Client Property” means any Client technology, or Client-specific business processes, specifically as designated as Client-owned property in a Statement of Work. SUPERSYNC shall have the right to use any such Client Property solely for the purpose of providing the Professional Services to Client hereunder.

 

Section 11. Confidentiality, Non-Use and Non-Disclosure. Each party will treat and hold all confidential information (“Confidential Information”) received from the other party in strict confidence and will not use or disclose to anyone any of the information except in connection with each party’s performance under this Agreement. The term “Confidential Information” shall include, without limitation, the terms and conditions of this Agreement, all User Logins and passwords, SUPERSYNC Intellectual Property, the SUPERSYNC System and the Feature Sets and their features, functionality, work-flow, algorithms, screen displays and methods, IP addresses for the SUPERSYNC System, System Updates and all documentation relating thereto. Upon termination, cancellation or expiration of this Agreement for any reason whatsoever, each party shall return to the other all Confidential Information. Client shall not promote or publicly disclose or link the Internet address or location of the SUPERSYNC System in any manner, including on any web sites without the prior written consent of SUPERSYNC. This section shall survive the termination, expiration, or cancellation of this Agreement.

 

Section 12. Ownership of Intellectual Property . Client shall not contest or otherwise challenge: (a) SUPERSYNC’s designation of its Confidential Information as trade secrets and commercially sensitive and confidential and proprietary information; or (b) SUPERSYNC’s ownership of the Confidential Information and of all copyrights, patents, trade secrets, service marks, trademarks, proprietary rights, domain name registrations, and other intellectual property rights in and to the Confidential Information and arising therefrom (collectively, the “ SUPERSYNC Intellectual Property ”). No title or ownership of the Confidential Information or SUPERSYNC Intellectual Property is transferred to Client by way of this Agreement. All rights not expressly granted to Client in the License are expressly reserved and retained by SUPERSYNC.

 

Section 13. Payment Terms. Client shall pay to SUPERSYNC the fees set forth in this Agreement on or before the due dates including, without limitation, the Access Fees, Setup Fees, Support Line Services Fees, Training Fees and fees for Consulting Services, if any. Client shall be solely responsible for and reimburse SUPERSYNC for any taxes, including without limitation, sales, use, property, excise, value added and gross receipts levied on this Agreement and the use of the SUPERSYNC System, except taxes based on the net income of SUPERSYNC.

 

Section 14. Interruption of Use. Client acknowledges and agrees that SUPERSYNC shall not be liable for System Downtime (as defined below) or downtime caused by reasons beyond SUPERSYNC’s reasonable control that include, without limitation, actual or threatened security concerns, Internet and connectivity failures, failure or downtime of third party software, hardware, networks and services, delays, failures or downtime of NetSuite® or Client’s NetSuite Account and a Force Majeure and such instances shall not constitute a breach of this Agreement. The SUPERSYNC System and services may be inaccessible or unavailable, in whole or in part, for various reasons including, without limitation: (a) equipment, network, software and hardware malfunctions; and (b) maintenance and repairs, and servicing, upgrading, and testing of the SUPERSYNC System, Feature Sets and its components (collectively, “System Downtime”).

 

Whenever reasonably possible, SUPERSYNC will schedule System Downtime during off-peak hours and provide Client with at least forty eight (48) hours notice thereof, which notice may be provided electronically or displayed via the SUPERSYNC System.

 

Section 15. Term of Agreement Unless earlier terminated in accordance with section 12 below, the term of this Agreement shall be for the Initial Term and will automatically renew for successive additional renewal terms of twelve (12) months unless either party provides the other with written notice of non-renewal no less than sixty (60) days prior to expiration of the then in­effect Term. The term “Term” shall mean the Initial Term and any renewal terms thereafter. All fees including the Access Fees and Support Services fees for all renewal Terms shall be at SUPERSYNC’s then prevailing rates. SUPERSYNC shall have the right to terminate this Agreement in accordance with Section 16 below.

 

Section 16. Termination. Either party may terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of a failure to pay any fees or amounts due, which failure must be cured within five (5) business days after receipt of written notice from SUPERSYNC. Either party may terminate this Agreement immediately and without notice if the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors.

 

Section 17. Effect of Termination. Upon termination, cancellation or expiration of this Agreement for any reason whatsoever: (a) the License shall automatically, and without notice, be revoked; (b) Client shall immediately cease all access to and use of the SUPERSYNC System and all Confidential Information and shall return the same to P SUPERSYNC in accordance with section 7 above; and (c) SUPERSYNC shall have the right to terminate and deny Client access to the SUPERSYNC System immediately and without notice.

 

Section 18. Representations and Warranties of Client. Client represents and warrants that: (a) Client will not use the SUPERSYNC System for any illegal purpose or in violation of any law or regulation; and (b) Client shall only use the SUPERSYNC System for business purposes and shall not use the SUPERSYNC System to transmit, receive, download, upload or solicit: (a) materials which may violate the intellectual property rights or rights of privacy or publicity of any person; (b) any material containing any destructive or interfering programs, applications, or instructions, or (c) any other materials which may subject either party to civil or criminal liability. Client shall defend, indemnify and hold harmless SUPERSYNC from and against any actual or threatened claims arising out of or relating to any breach of the representations and warranties set forth in this section.

 

Section 19. Warranties. SUPERSYNC grants solely to Client starting on the Access Date and lasting for the Term the following limited warranties (the “ Limited SUPERSYNC Warranties ”): (a) the SUPERSYNC System and the Feature Sets selected and paid for by Client will substantially perform the material functions described in the user documentation SUPERSYNC provides for the SUPERSYNC System (whether in on-line, electronic or printed form); and (b) all services performed under this Agreement including, without limitation, all Support Line Services, Setup, Training and Consulting Services, shall be performed in a professional workmanlike manner. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS IS AN AGREEMENT FOR SERVICES AND NOT FOR THE SALE OF GOODS. EXCEPT FOR THE LIMITED SUPERSYNC WARRANTIES EXPRESSLY SET FORTH ABOVE IN THIS SECTION 16, SUPERSYNC MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND OR NATURE AND ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” SUPERSYNC DISCLAIMS ANY AND ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES AS TO NON-INFRINGEMENT, MERCHANTABILITY, ACCURACY AND FITNESS FOR ANY PARTICULAR PURPOSE, AS WELL AS ANY AND ALL WARRANTIES ARISING BY LAW, STATUTE, USAGE OF TRADE OR COURSE OF DEALING. CLIENT ACKNOWLEDGES THAT THE SUPERSYNC SYSTEM AND FEATURE SETS MAY NOT BE ERROR FREE.

 

Section 20. Training Material Warranties. Client acknowledges that SUPERSYNC may contain training materials related to the NetSuite system which describe certain actions or activities that can be performed by the user within NetSuite. SUPERSYNC makes no warranties of any kind that this training material is accurate or correct. Client holds SUPERSYNC harmless for any impact on Client’s NetSuite system based on Client users taking actions described in SUPERSYNC training material or any training material accessed through SUPERSYNC.

 

Section 21. SOLE REMEDY FOR BREACH OF THE LIMITED WARRANTY. If at any time during the Term there is any breach of any of the Limited SUPERSYNC Warranties, Client’s sole and exclusive remedy shall be as follows: Client shall deliver written notice to SUPERSYNC of the breach, and SUPERSYNC shall use reasonable efforts to correct such breach within forty- five (45) days or provide a mutually acceptable plan for correction by forty-five (45) days following the receipt of the Client’s notice by SUPERSYNC ; however, if such breach is not corrected within such forty-five (45) day period, Client may, upon delivering to SUPERSYNC written notice of termination within seven (7) days after the expiration of the forty-five (45) day cure period, terminate this Agreement and receive a refund of any pre-paid portion of the Access Fees actually paid by Client to SUPERSYNC for the unused portion of the then in-effect Term remaining after the date of termination. THE FOREGOING REMEDY SET FORTH IN THE PRECEDING SENTENCE SHALL CONSTITUTE CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE LIMITED SUPERSYNC WARRANTIES, AND SUCH REMEDY SHALL APPLY EXCLUSIVELY EVEN IF IT FAILS OF ITS ESSENTIAL PURPOSE.

Section 22. LIMITATION OF REMEDIES AND LIABILITY. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, NEITHER SUPERSYNC NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, DELIVERY OR PERFORMANCE OF THE SUPERSYNC SYSTEM OR ITS FEATURE SETS, DOCUMENTATION OR ANY OF THE SERVICES PROVIDED UNDER THIS AGREEMENT SHALL BE LIABLE TO CLIENT OR ANY OF CLIENT’S EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, CONTRACTORS, SUCCESSORS OR ASSIGNS FOR ANY LOST PROFITS, LOST SAVINGS, DATA LOSS, INJURY TO GOODWILL OR REPUTATION, LOSS OF ANTICIPATED BENEFITS, DISRUPTION OR INTERRUPTION TO ITS BUSINESS, LOST CUSTOMERS, OR ANY TYPE OF INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY BREACH OF THIS AGREEMENT OR ANY OF THE LIMITED SUPERSYNC WARRANTIES, THE SUPERSYNC SYSTEM OR ANY OF ITS FEATURE SETS OR DOCUMENTATION OR ANY SERVICES PROVIDED UNDER THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, SETUP, TRAINING, CONSULTING SERVICES AND SUPPORT LINE SERVICES, WHETHER ARISING OUT OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, CLIENT AGREES THAT SUPERSYNC’S TOTAL, AGGREGRATE AND COMPLETE LIABILITY FOR ANY CLAIMS OR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY BREACH OF THIS AGREEMENT IN NO EVENT SHALL EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CLIENT TO SUPERSYNC DURING THE TWO (2) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY AND A REFUND OF ANY PRE-PAID PORTION OF THE ACCESS FEES FOR THE REMAINING AND UNUSED PORTION OF THE THEN IN-EFFECT TERM. ALL OF THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND EVEN IF SUPERSYNC HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES OR LIABILITIES.

 

Section 23. Disablement. Notwithstanding any provision of this Agreement to the contrary, SUPERSYNC shall have, among its other rights and remedies, the right to immediately temporarily or permanently disable, suspend or terminate Client’s access to and/or use of the SUPERSYNC System and its Feature Sets, in whole or in part, with or without notice in the event that: (a) Client’s access or use of the SUPERSYNC System interrupts or interferes with the operation of the SUPERSYNC System in any manner or creates an actual or threatened security risk; or (b) Client defaults on any obligation under this Agreement, including the obligation to pay fees or any amounts due hereunder, if such default remains uncured for ten (10) business days after notice, which notice may be provided in writing or displayed or delivered electronically via the SUPERSYNC System.

 

Section 24. Indemnity. SUPERSYNC shall indemnify, defend, and hold Client harmless from and against any and all losses, damages, awards, judgments, liabilities, costs, and expenses (including reasonable legal fees) arising from any actual or threatened third party claim that the SUPERSYNC System infringes any United States patent, copyright, trade secret or other third party intellectual property right. These obligations shall be contingent upon Client: (a) giving prompt written notice to SUPERSYNC of any claim, demand, or action for which indemnity is sought; and (b) fully cooperating, at SUPERSYNC’s expense, in the defense or settlement of any such claim, demand, or action. SUPERSYNC shall have no liability for any claims of infringement that are based on use of the SUPERSYNC System in any manner not authorized by this Agreement. SUPERSYNC shall have the right to satisfy its obligations under this section by, at SUPERSYNC’s option in its sole discretion: (a) procuring for Client, at SUPERSYNC’s expense, the right to continue to use the SUPERSYNC System; (b) replacing or modifying the SUPERSYNC System, at SUPERSYNC’s expense, so that the SUPERSYNC System is no longer subject to the claim of infringement; or (c) terminating this Agreement and refunding to Client all amounts pre-paid under this Agreement for the remaining and unused portion of the then in-effect Term. THE FOREGOING OBLIGATIONS OF INDEMNITY SET FORTH IN THIS SECTION CONSTITUTE SUPERSYNC’S ENTIRE LIABILITY, AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY ACTUAL OR THREATENED CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS.

 

Section 25. Entire Agreement and Amendments. This Agreement (the Cover Document and the Terms and Conditions) embodies the entire understanding of the parties hereto on the subject matter hereof and supersedes any previous agreements or understandings, written or oral, in effect between the parties relating to the subject matter hereof. The parties expressly declare and understand that no promises, inducements, consideration or agreements not herein expressed have been made to them.

 

Section 26. Interpretation. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation and construction of this Agreement and this Agreement shall be construed as having been jointly drafted by the parties. The parties acknowledge and agree that titles and headings for particular paragraphs, sections and subsections of this Agreement have been inserted solely for reference purposes. As a result, section and paragraph headings, titles or captions should not be used to interpret or construe the terms of this Agreement.

 

Section 27. Governing Law, Arbitration and Attorneys’ Fees. This Agreement shall be construed and the legal relations between the parties determined in accordance with the laws of the State of Florida. Any dispute, controversy or claim arising out of or relating to the SUPERSYNC System, any services, the Consulting Services, or this Agreement, or its negotiation, performance, execution or breach, shall be settled exclusively by arbitration in accordance with the Commercial Rules of the American Arbitration Association (“AAA”). The arbitration and all proceedings shall take place in Tampa, Pinellas County, Florida. There shall be a single arbitrator selected by the parties in accordance with the Commercial Rules of the American Arbitration Association; however, the arbitrator shall be a member of the State of Florida bar and shall have no less than ten (10) years’ experience in computer law and commercial matters. The decision of the arbitrator shall be final and binding and judgment upon the award rendered by the arbitrator shall be entered in any court having jurisdiction thereof. All proceedings, the decision and submissions made in connection with the arbitration shall be confidential. In any dispute arising out of or relating to this

 

Agreement, the prevailing party shall receive an award of its reasonable attorneys’ fees

 

and costs in any proceeding, including on appeal and enforcement.

 

Section 28. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law.

 

However, if any provision of this Agreement or the application of any provision to any party or circumstance shall be prohibited by or invalid under applicable law, such provision shall be reduced to such scope as is reasonable and enforceable if possible. Otherwise, such provision shall be severed from this Agreement and ineffective to the extent of such prohibition or invalidity without it invalidating the remainder of the provisions of this Agreement or the application of the provision to the other parties or other circumstances.

 

Section 29. Waiver. The failure or delay of any party in exercising any of its rights hereunder, including any rights with respect to a breach or default by the other party, shall in no way operate as a waiver of such rights or prevent the assertion of such rights with respect to any later breach or default by the other party. No party shall be deemed to have waived any rights under this Agreement by any action or inaction unless an express waiver is set forth in writing. The waiver of one breach hereunder shall not constitute the waiver of any other or subsequent breach.

 

Section 30. Assignment and Binding Effect. This Agreement shall be binding upon the parties and each of their respective successors and assigns. This Agreement is personal to Client and may not be assigned or transferred by Client, in whole or in part, whether by agreement, merger, sale, change of ownership, equity or control, by operation of law or otherwise. There are no third party beneficiaries to this Agreement, whether express or intended.

 

Section 31. NetSuite. Client acknowledges and agrees that: (a) the SUPERSYNC System operates on the third party NetSuite® platform; (b) the NetSuite® platform is owned and operated by NetSuite Inc.; (c) SUPERSYNC’s ability to develop, provide, support, service and maintain the SUPERSYNC System and its Feature Sets is dependent upon consent and authorization from NetSuite Inc. pursuant to a written agreement between SUPERSYNC and NetSuite Inc. (the “Developer Agreement”); (d) NetSuite and its representatives may have the ability to access Client’s data and information; (e) SUPERSYNC shall have the right to terminate this Agreement upon the termination, cancellation or expiration of the NetSuite Developer Agreement for any reason; (f) In the event of a termination of the NetSuite Developer Agreement, Client acknowledges and agrees that in addition to or in lieu of SUPERSYNC’s termination of this Agreement, SUPERSYNC or NetSuite Inc. may, in their sole discretion, provide for the continued use of the SUPERSYNC System, in whole or in part, for the remainder of the term of this Agreement on the condition that all services, support and other obligations of SUPERSYNC shall be responsibility of NetSuite Inc. or the Client and that SUPERSYNC shall have no liability for any such continued use or services.

 

Section 32. Notice. All notices, requests, demands, or other hereunder shall be in writing and shall be deemed given if delivered personally or if sent via overnight delivery to the parties’ mailing address. Additionally, SUPERSYNC may deliver notice using electronic means available as a function or feature of the SUPERSYNC System, and delivery of any notices by SUPERSYNC to Client under the System shall be deemed received upon Client’s login to the SUPERSYNC System.

 

Section 33. Force Majeure. Neither party shall be liable in damages, in breach or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by any act of God, flood, fire, storm, strike, lockout, war, riot, insurrection or any other cause beyond the reasonable control of the party whose performance is affected (a “ Force Majeure ”) to the extent the same directly prevents or delays the performance of such party’s obligations hereunder; provided that, no such condition shall excuse or justify any delay in a party’s performance of its payment obligations hereunder.

 

 

 

 

 

 

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