Training Location and Equipment
Unless other arrangements have been made in writing between StoneAge and Buyer, StoneAge shall provide all training services at its facilities or designated location and shall provide all equipment necessary to perform the training services.
Payment for the training services shall be made upon receipt of invoice or pre-arranged terms. The prices shown on the face of the invoice are those currently in effect. Prices do not include sales, use, excise, customs, value-added or similar taxes. Buyer will pay or reimburse StoneAge for all such taxes as may be applicable. StoneAge may unilaterally establish discounts or promotional incentives related to its training services from time to time. Buyer is responsible for its own travel, lodging, and entertainment expenses. StoneAge reserves the right to suspend any further performance hereunder or otherwise in the event payment is not made when due. No payment by offset is permitted. Interest charges will be added to overdue invoices at the rate of eighteen percent (18%) per month (subject to any limit imposed by applicable law).
Buyer shall not without StoneAge’s prior written consent: (A) copy StoneAge’s copyrighted material; (B) use StoneAge’s trademarks, trade names, or other designations in any promotion or publication; or (C) use recording equipment in any training session.
- StoneAge warrants that the training services will be performed by appropriately skilled personnel employed or retained by StoneAge. STONEAGE MAKES NO WARRANTY AS TO RESULTS TO BE ATTAINED BY ATTENDING STONEAGE CLASSES OR USING STONEAGE TRAINING MATERIALS.
- EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 4.1, STONEAGE MAKES NO WARRANTY WHATSOEVER REGARDING THE TRAINING SERVICES, INCLUDING ANY: (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY STONEAGE, OR ANY OTHER PERSON ON STONEAGE’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS TRAINING CONTRACT.
- STONEAGE MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE PERFORMANCE OF ANY PRODUCT USED DURING ITS TRAININGS EXCEPT AS SET FORTH IN THE STONEAGE LIMITED WARRANTY PROVIDED WITH THE PRODUCT.
Limitation of Liability
- IN NO EVENT SHALL STONEAGE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THIS CONTRACT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT STONEAGE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
- IN NO EVENT SHALL STONEAGE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS CONTRACT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT (INCLUDING BREACH OF WARRANTY), TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO STONEAGE FOR THE TRAINING SERVICES SOLD HEREUNDER.
Intellectual Property Indemnity
StoneAge will pay costs and damages finally awarded in any suit against Buyer to the extent such suit is based on a finding that the design or construction of any training service or any StoneAge Product provided under this Contract, infringe any patent, copyright, or trademark granted or registered in the country the training services are provided, provided that, Buyer: (A) promptly informs StoneAge of the alleged infringement in writing; (B) provides StoneAge the exclusive right to defend and settle the suit, at StoneAge’s expense; and (C) provides all reasonable information and assistance requested for the defense. StoneAge shall have no liability for any infringement that is based upon or arises out of: (A) compliance with Buyer’s instructions, specifications, or designs; (B) use of work or products in a Buyer or third-party process; or (C) combinations with other equipment or materials not supplied by StoneAge. The foregoing states the sole and exclusive obligations of StoneAge for intellectual property infringement.
- Buyer cancellation must be submitted to StoneAge in writing.
- Buyer will pay or reimburse StoneAge for any training expenses, including, but not limited to, travel and lodging expenses associated with conducting the training that StoneAge incurs prior to its receipt of any cancellation regardless of when such cancellation is received.
- StoneAge will not invoice Buyer for attending the training if Buyer’s cancellation is received by StoneAge up to thirty (30) calendar days prior to the scheduled training.
- StoneAge will invoice Buyer twenty-five percent (25%) of the course rate for attending the training if Buyer’s cancellation is received by StoneAge thirty (30) to fourteen (14) calendar days prior to the scheduled training.
- StoneAge will invoice Buyer fifty percent (50%) of the course rate for attending the training if Buyer’s cancellation is received by StoneAge fourteen (14) to seven (7) calendar days prior to the scheduled training.
- StoneAge will invoice Buyer seventy-five percent (75%) of the course rate for attending the training if Buyer’s cancellation is received by StoneAge less than seven (7) calendar days prior to the scheduled training.
- If Buyer does not cancel or attend the scheduled training then Buyer is responsible for one-hundred percent (100%) of the course rate for attending the training.
- StoneAge reserves the right to cancel or change a class at any time by written notice.
- If StoneAge cancels a course then Buyer will not be charged for course attendance.
- StoneAge is not liable for any direct, or indirect, consequential or special damages that may be incurred due to its cancellation of a scheduled class, including, but not limited to, cancellation penalties for Buyer’s transportation or accommodations. The Buyer’s sole remedy shall be the refund of prepaid course attendance fee.
StoneAge shall not be liable or responsible to Buyer, nor be deemed to have defaulted under or breached this Training Contract, for any failure or delay in fulfilling or performing any term of this Training Contract, when and to the extent such failure or delay is caused by or results from acts beyond StoneAge’s reasonable control, including, without limitation: (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) laws and regulations; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) shortage of transportation services or adequate power (each a “Force Majeure Event”).
This Training Contract is intended by StoneAge and Buyer to constitute a final, complete and exclusive expression of agreement relating to the subject matter hereof and cannot be supplemented or amended without StoneAge’s prior written approval
StoneAge’s waiver of any breach or StoneAge’s failure to enforce any of its rights under this Training Contract at any time, shall not in any way affect, limit or waive StoneAge’s right thereafter to enforce and compel strict compliance with every term and condition hereof.
If any provision of this Training Contract is held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the other portions hereof.
Any notice or other communication to be given hereunder shall be in writing and shall be (as elected by the party giving such notice): (A) personally delivered; (B) transmitted by postage prepaid registered or certified mail, return receipt requested; (C) deposited prepaid with a nationally recognized overnight courier service; or (D) transmitted by electronic mail via the Internet (with a copy of such transmission delivered promptly thereafter by registered or certified mail or courier). Unless otherwise provided herein, all notices shall be deemed to be effective on: (A) the date of receipt (or if delivery is refused, the date of such refusal); or (B) if by electronic mail, the date transmitted to the appropriate electronic mail address and an appropriate return receipt or telephone confirmation is received. Notice hereunder shall be directed to a Party at the address for such Party set forth on the invoice.
StoneAge and Buyer shall attempt in good faith to promptly resolve any dispute arising under this Training Contract by negotiations between representatives who have authority to settle the controversy. If unsuccessful, StoneAge and Buyer shall further attempt in good faith to settle the dispute by nonbinding third-party mediation, with fees and expenses of such mediation apportioned equally to each side. Any dispute not so resolved by negotiation or mediation may then be submitted to a court of competent jurisdiction in accordance with the terms hereof. These procedures are the exclusive procedures for the resolution of all such disputes between StoneAge and Buyer.
This Training Contract and all disputes arising hereunder will be governed by and interpreted in accordance with the laws of the State of Colorado and the rights and duties of all persons, and the construction and effect of all provisions hereof shall be governed by and construed according to the laws of such state.
Jurisdiction and Venue
StoneAge and Buyer agree that the state or federal courts located within the City and County of Denver, Colorado shall have sole and exclusive jurisdiction over any litigation concerning any dispute arising from or relating to this Training Contract not otherwise resolved pursuant to Section 13 as well as any alleged defects of any equipment or damages sustained as a result of any training services provided hereunder. StoneAge and Buyer further agree that should any litigation be commenced in connection with such a dispute, it shall only be commenced in such courts. StoneAge and Buyer agree to the exclusive jurisdiction of such courts and neither will raise any objection to the jurisdiction and venue of such courts, including as a result of inconvenience.
If any litigation is commenced between StoneAge and Buyer, or their personal representatives, concerning any provision hereof, the party prevailing in the litigation shall be entitled, in addition to such other relief that is granted, to a reasonable sum as and for their attorneys’ fees and costs in such litigation or mediation.
Buyer may not assign or transfer this Training Contract or its participation in a training class without the advance, written consent of StoneAge.
This Training Contract, together with the Exhibits and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter stated herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the subject matter. In the event of any inconsistency between the statements in the body of this Training Contract, and the related Exhibits (other than with respect to an exception expressly set forth as such in the Exhibit), the statements in the body of this Training Contract shall control.