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1. ORDERING TERMS AND PRECEDENCE. All orders are subject
to acceptance by Sun. Sun will not be bound by any terms or
conditions of Customers order that are inconsistent with or in
addition to these Terms. In the case of any conflict, these Terms will
prevail. If Customer has signed a separate purchase agreement with
Sun, then the provisions of such separate agreement take precedence
over these Terms.
2. DELIVERY. Customers orders will be deemed accepted upon Suns
order acknowledgment or invoice or upon Suns delivering the
ordered Products or Services to Customer. Products and Services will
be deemed accepted upon receipt by Customer. Sun will not be liable
for any loss resulting from delay in delivery.
3. PRICING AND TAXES. Pricing shall be as listed in the Course
Catalog or the SES Website in effect on the date of delivery of the
product or service ("List Price"). List Prices may be adjusted by Sun
at any time without notice. Customer is responsible for all duties and
taxes, imposed upon the sale, license, purchase, delivery, possession
or use of Products and Services. Sun may change or withdraw any
Product or Service at any time without notice.
4. PAYMENT TERMS. Classroom programs are available only to employer-sponsored trainees. Payment may be made by valid credit card, purchase order, or bank draft. For Products and Services that are not prepaid, payment terms are net thirty (30) days from
the date of invoice or shipment, whichever is later. Sun reserves the
right to place Customer on credit hold which may delay or reschedule
Customer orders. Interest will accrue from the date payment is due at
the lesser of fifteen percent (15%) per year or the maximum rate
permitted by law.
5. LICENSING OF SOFTWARE. All software acquired by Customer
under thes Terms is licensed to Customer pursuant to the license
agreement accompanying such software.
6. NO RESALE. Products and Services purchased by Customer under
these Terms are for Customers internal use only and may not be
resold.
7. CANCELLATION POLICY. Customer agrees to comply with
Suns Cancellation policy as set forth in the Course Catalog or the
SES Website.
8. LIMITED WARRANTY AND DISCLAIMER. Sun will provide
Service in a good and workmanlike manner. SUN DISCLAIMS
ALL OTHER EXPRESS OR IMPLIED WARRANTIES.
9. NUCLEAR APPLICATIONS. Customer acknowledges that
Products and Services are not designed or intended for use in the
design, construction, operation or maintenance of any nuclear facility.
10. NO EXPORT. Customer agrees to comply strictly with all applicable
export control laws and regulations.
11. INTELLECTUAL PROPERTY CLAIMS.
11.1.Sun will defend or settle at its option and expense any l
egal
proceeding brought against Customer, to the extent that it is based
on a claim that a Product or Service directly infringes a copyright
or U.S. Patent, and will pay all damages and costs awarded by a
court of final appeal attributable to such claim, provided that
Customer: (i) gives written notice of the claim promptly to Sun;
(ii) gives Sun sole control of the defense and settlement of the
claim; (iii) provides to Sun all available information and
assistance; and (iv) has not compromised or settled such claim.
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11.2.If any Product or Service is found to infringe, or in Suns
opinion
is likely to be found to infringe, Sun may elect to: (i) obtain for
Customer the right to use such Product or Service so that it
becomes non infringing; or (ii) remove the Product or Service
and refund Customers net book value for the Product or Service.
11.3.Sun has no obligation under this Section 11 for any claim which
results from: (i) Customers improper use of Products or Services;
(ii) Suns compliance with designs or specifications of Customer;
(iii) modification of Products or Services or other products; or (iv)
use of an allegedly infringing version of any Products or Services,
if the alleged infringement could be avoided by the use of a
different version made available to Customer.
11.4.THIS SECTION STATES THE ENTIRE LIABILITY OF SUN
AND EXCLUSIVE REMEDIES OF CUSTOMER FOR CLAIMS
OF INFRINGEMENT.
12. LIMITATION OF LIABILITY. Except for breach of the
obligations under Section 11 (Intellectual Property Claims) and any
applicable software license, and to the extent not prohibited by
applicable law: (i) each partys aggregate liability to the other
hereunder will be limited to the amount paid by Customer for the
Product or Service which is the subject matter of the claims; and (ii)
neither party will be liable hereunder for any indirect, punitive,
special, incidental or consequential damages even if that party has
been previously advised of the possibility of such damage and even if
any exclusive remedy provided for in these Terms fails of its essential
purpose.
13. INDEMNIFICATION. Customer agrees to indemnify, defend and
hold Sun harmless from and against any and all loss, damage, liability
and expense (including reasonable attorneys fees and costs) arising
out of any claim based on the delivery of any Education Consulting
Services or Customers use of data or reports generated from such
Services.
14. ASSIGNMENT/SUBCONTRACT. Neither party shall assign or
otherwise transfer any of its rights or obligations under these Terms
except that Sun may assign its right to payment and may assign
Customers order to an affiliated company. Sun may subcontract its
obligations under these Terms.
15. SEVERABILITY. If any provision of these Terms is held to be
unenforceable, these Terms will remain in full force and effect with
the provision omitted.
16. FORCE MAJEURE. A party is not liable under these Terms for
non performance caused by events or conditions beyond that partys
control if the party makes reasonable efforts to perform. This
provision does not relieve Customer of its obligation to make
payments then owing.
17. NOTICES. All written notice required by these Terms must be
delivered in person or by other means evidenced by a delivery receipt
or acknowledgment and will be effective upon receipt.
18. WAIVER OR DELAY. Any express waiver or failure to exercise
promptly any right under thes Terms will not create a continuing
waiver or any expectation of non enforcement.
19. ENTIRE AGREEMENT. These Terms, together with any
applicable license terms, constitutes the parties entire agreement
relating to subject matter. It supersedes all prior communications
between the parties. No modification to these Terms will be binding,
unless in writing and signed by an authorized representative of each
party.
20. DISPUTE RESOLUTION. Any dispute related to these Terms will
be governed by California law and controlling U.S. federal law. No
choice of law rules of any jurisdiction will apply.
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