I. These Training Terms and Conditions ("Terms") set forth the basis upon which Creative Resources, Inc. ("Creative Resources") will provide training classes ("Training") using Apple course materials ("Apple Course Materials") at specified locations and times agreed with customer ("Customer") for delivery to Customer's designated attendees ("Attendees").
A. Ordering. Customer shall provide Creative Resources with firm requests for Training via electronic transmission or as otherwise required in accordance with Creative Resources' guidelines. Requests shall include at a minimum the name of the Attendees, scheduled date, location and name of the requested training course. All requests placed by Customer shall be governed by these Terms, and any terms set forth in Customer's ordering document in addition to or inconsistent with these Terms shall be of no force or effect. These Terms supersede all prior statements, representations, discussions, negotiations and agreements by the parties, both oral and written. All requests are subject to Creative Resources' acceptance. Training shall commence on the dates specified by Creative Resources in its acceptance.
B. Payment. Customer agrees to pay for Training according to Creative Resources' published prices current as of the date of Creative Resources' acceptance of Training request, unless otherwise agreed. All payments, whether by cash, check, credit card (Visa, MasterCard, American Express), valid Training Unit or other form acceptable by Creative Resources must be received at least seven (7) days prior to the commencement of Training. For reservations made within seven (7) days of Training, payment must be received prior to the commencement of Training. At Creative Resources' discretion, Customer may qualify for Creative Resources' credit terms, in which case payment will be due thirty (30) days from date of Creative Resources' invoice. Any overdue amounts shall be subject to a finance charge at the rate of 1.5% per month commencing on the date such amount becomes overdue, or the highest rate permitted by applicable law, whichever is lower. All applicable local sales or use taxes, duties and other imposts, if any, due on account of purchases hereunder shall be paid by Customer.
C. Responsibility of Customer.
1. Prerequisite requirements. Creative Resources reserves the right to refuse or limit any services for Training if a Customer or Attendee fails to satisfy the requirements for a Training course as published or provided to Customer by Creative Resources prior to the start of such course. In such cases no refund or cancellation fee will be paid.
2. Good conduct. Creative Resources reserves the right to refuse, limit or cancel any Training if a Customer or Attendee in the opinion of Creative Resources has displayed unreasonable behavior or is deemed to be violent, abusive or disruptive. In such cases no refund or cancellation fee will be paid.
3. Same condition. Customer and Attendees agree that all facilities and equipment licensed for use during the Training shall at the end of the Training be in the same condition as initially provided, wear and tear excepted.
D. Ownership of Materials. Ownership of all copyright and other intellectual property rights in the Apple Course Material, including any documentation, data, technical information and know-how provided to Customer and/or Attendees as part of the Training remains vested in Apple. All such information shall be held in confidence and may not be disclosed or copied to third parties, without the express written permission of Apple. Upon payment of all sums due, Apple grants Customer a non-exclusive, non-transferable license to use internally a single copy of the Apple Course Material for the sole benefit of each Attendee registered for Training.
E. Warranty. Creative Resources warrants that its personnel are suitably qualified and experienced to perform Training. Except as expressly represented otherwise, and to the extent not prohibited by law, all Training, including any documentation, publications, software programs or code, and other information provided by or on behalf of Creative Resources to Customer or Attendee are furnished on an "AS-IS" basis, without warranty of any kind, whether express, implied, statutory or otherwise especially as to quality, reliability, timeliness, usefulness, sufficiency and accuracy. ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF CONDITION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED BY CREATIVE RESOURCES. NO ORAL OR WRITTEN INFORMATION PROVIDED BY CREATIVE RESOURCES SHALL CREATE A WARRANTY UNLESS INCORPORATED INTO THESE TERMS.
F. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, CREATIVE RESOURCES WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR OTHER INDIRECT DAMAGES, SUCH AS LOST PROFITS, ARISING FROM THESE TERMS EVEN IF CREATIVE RESOURCES HAS KNOWLEDGE OF THE LIKELIHOOD OF SUCH DAMAGES. IN THE EVENT THAT CREATIVE RESOURCES SHALL FAIL TO PROVIDE TRAINING IN ACCORDANCE WITH THESE TERMS, CREATIVE RESOURCES' ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY FOR BREACH OF THESE TERMS SHALL BE FOR CREATIVE RESOURCES TO USE ITS REASONABLE EFFORTS TO REPERFORM THE TRAINING WITHIN A REASONABLE PERIOD OF TIME; PROVIDED, THAT IN THE EVENT CREATIVE RESOURCES IS UNABLE TO REPERFORM, CREATIVE RESOURCES MAY ELECT TO REFUND ALL PAYMENTS ACTUALLY RECEIVED BY CREATIVE RESOURCES FROM CUSTOMER FOR THE TRAINING IN QUESTION, IN FULL SATISFACTION OF CREATIVE RESOURCES' OBLIGATIONS. SUCH REFUND SHALL CONSTITUTE CREATIVE RESOURCES' ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY FOR SUCH BREACH. IN NO EVENT SHALL THE AGGREGATE LIABILITY FOR DAMAGES OF CREATIVE RESOURCES, ITS EMPLOYEES OR AGENTS, ARISING FROM THESE TERMS WHETHER BY CONTRACT OR TORT EXCEED THE AMOUNTS CUSTOMER ACTUALLY PAID CREATIVE RESOURCES. TO THE EXTENT NOT PROHIBITED BY LAW, THE LIMITATIONS IN THIS SECTION SHALL APPLY TO PERSONAL INJURY AND DEATH.
G. General. The laws of the State of California shall govern these Terms and shall be applied as if these Terms were entered into and performed entirely within California between California residents. The venue for settling any disputes shall be the courts for the jurisdiction of Santa Clara County, California. Neither party shall be liable for any delay or failure to meet its obligations under these Terms due to circumstances beyond its reasonable control, including but not limited to war, riot, insurrection, civil commotion, labor strikes or lockouts, shortages, factory or other labor conditions, fire, flood, earthquake or storm. If any provision of these Terms should be held to be unenforceable or invalid for any reason, such unenforceability or invalidity shall not affect the enforceability or validity of the remaining provisions, and the parties will substitute for such provision an enforceable and valid provision that most closely approximates the intent and economic effect of the unenforceable or invalid provision. No modification to these Terms will be binding unless it is in writing and signed by an authorized representative of each party. Creative Resources may use subcontractors to perform Training. No assignment is permitted by Customer under these Terms and any attempt to assign shall be null and void.
II. ADDITIONAL TERMS AND CONDITIONS FOR ONSITE TRAINING
A. Additional Terms. In addition to the Terms above, the following additional terms and conditions apply to Training performed by Creative Resources at Customer's location ("Onsite Training").
B. Ordering. Requests for Onsite Training shall include at a minimum the location and date of the proposed training course, details of Customer's facility and equipment to be used, and maximum number of Attendees.
C. Payment. Creative Resources must receive all payment at least thirty (30) days from commencement of Onsite Training, unless otherwise agreed.
D. Responsibility of Customer.
1. Attendees. Customer warrants that all Attendees of Onsite Training are closely associated with Customer by being in a dependent or subordinate relationship, not formed for the sole purpose of attendance at the Training course.
2. Maximum Size. All Onsite Training is subject to a maximum number of Attendees per course as confirmed by Creative Resources in its acceptance
3. Onsite Facilities, Equipment and Software. For Onsite Training, Customer shall provide all facilities, equipment and software in accordance with Creative Resources' requirements to perform the Training. Customer shall be notified of Creative Resources' requirements. At a minimum, the facilities shall be clean, safe and free of excessive noise, the equipment shall comprise one computer system per Attendee, as well as a separate system and printer for the instructor, and the software shall be licensed for use to all attending the Training for its duration. Creative Resources shall perform Onsite Training only within a test system environment, and not within a production system environment. Customer shall have at a minimum general liability insurance coverage for all damage and injury that may be caused during Training in amounts of not less than $1,000,000 per incident and Creative Resources shall be a named insured under the coverage policy.
4. In the event that the Customer does not provide Creative Resources with a stand-alone test environment and instead provides a production environment (which, for the purposes of these Terms, means an environment that contains software applications and transaction data currently accessible and in use by Customer's employees) to conduct Training, Customer acknowledges that Creative Resources shall have no liability for any adverse or unintentional effects that Customer experiences in its production environment as a result of the Training.
5. Rental Equipment. Customer is responsible for the management and maintenance of any rental equipment it requires for Creative Resources to conduct Training. Customer is responsible for ensuring that any rental equipment used by Creative Resources is returned to its respective supplier and acknowledges that Creative Resources shall have no liability associated with Customer's management and maintenance of such rental equipment.
