1. Services. Sencha will provide the Services for which Customer has paid a Fee. Customer understands the proprietary nature of the materials presented in connection with the Services and agrees to take every reasonable precaution to protect such information from disclosure to third parties. Customer will not copy or reproduce any written material provided in connection with the Services. Customer understands that any materials provided to Customer are for the benefit of the specific attendees of the course(s) given as a part of the Services. Customer agrees that attendees will not copy, forward, or otherwise share the materials with other employees of Customer or third parties. Customer will not record the Services.
2. Fees. For Open Training, the Fee is due on booking. For On-site Training, unless otherwise agreed or paid in advance, 50% of the Fee may (the “Deposit”) be invoiced on booking and the balance may be invoiced on the date the Services start. Any Fee paid or obligated to be paid to Sencha is subject to the cancellation a and change terms below. For on-site training, Customer shall also pay, or reimburse Sencha for, reasonable out-of-pocket expenses, including, but not limited to, travel, meals and lodging expenses incurred by Sencha in connection with the delivery of the Course. All payments to be made from Customer to Sencha, unless due immediately, shall be due within thirty (30) days of the invoice date. All accounts in arrears more than ninety (90) days will be subject to collection by a third party and/or litigation. Customer agrees to pay all legal costs including collection agency fees, costs, legal costs, and reasonable attorney’s fees if it becomes necessary to enforce collection or file suit. Customer shall be responsible for all taxes or charges of any kind in connection with this Agreement (including but not limited to, customs duties, government permit, tariffs, excise, gross receipts, sales and use and value added tax), except income tax or corporation tax (or similar taxes) imposed on Sencha.
3. Cancellations and Changes.
a. Open Training. Customer may cancel up to one month in advance with no penalties and get a full refund, or participants may rebook the next available class. Cancellations within 1 month and up to two weeks before the training date will receive credit for a future Sencha training event but not a refund. In such cases, Sencha can grant a credit for a future open enrollment course or towards an onsite training class for your organization that occurs within 60 days. Fees for no-shows or cancellations within two weeks of the course date are not refundable. Sencha reserves the right to cancel an event up to two weeks in advance of the posted training date. In such cases, Sencha will either issue a full refund or book participants in the next available class. Sencha shall bear no responsibility for any non-refundable travel expenses. Should unforeseen events cause cancellation of a course within two weeks of the scheduled training date, Sencha will either issue a full refund or, at the participant(s) option, enroll the participant(s) in the next available class. Sencha will undertake commercially reasonable efforts to make sure the courses happen on time and at the appointed location, and to inform the customer whenever it determines that the timing or location might be subject to change.. Should natural events or other forces outside our control cause a change, Sencha will generally post a rescheduled course date within two weeks.
b. On-Site Training. Due to the advance planning involved in presenting on-site Services, Deposits are non-refundable, regardless if paid in advance or on terms. Schedule changes can be made up to one month in advance of the training date (subject to Sencha’s agreement and availability), with the Deposit applied to the Fee for a course that occurs within 60 days of the originally scheduled date. Should natural events or other forces outside our control cause a change, Sencha and Customer will agree on an acceptable rescheduled course date.
4. Confidentiality. “Confidential Information” means any information of Customer disclosed to Sencha which is marked confidential or is of a nature which should reasonably be expected to be held confidential. Sencha will not use Confidential Information for any purpose other than performing Services under this Agreement. Sencha will not publish or reveal any Confidential Information to anyone except those persons authorized by Customer. This requirement shall not apply to such data that is either (i) previously known to the party, (ii) in the public domain, (iii) received from a third party with a legal or contractual right to disclose such data, or (iv) independently developed by the party. The terms of this Section shall survive termination of this Agreement. Sencha may disclose the Customer’s Confidential Information to the extent such disclosure is required by order or requirement of a court, administrative agency, or other governmental body, but only if Sencha provides prompt notice thereof to the Customer to enable the Customer to seek a protective order or otherwise prevent or restrict such disclosure.
5. Warranties. Each party warrants it has the right and power to enter into this Agreement, that an authorized representative has executed this Agreement, and that each will comply with any applicable laws and regulations pertaining to this Agreement.
EACH PARTY DISCLAIMS ALL WARRANTIES (EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY) WITH REGARD TO ANY SERVICES OR TECHNOLOGIES PROVIDED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY PERFORMANCE OF THIS AGREEMENT, OR IN FURTHERANCE OF THE PROVISIONS AND OBJECTIVES OF THIS AGREEMENT. SENCHA’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE PRICE PAID TO SENCHA FOR THE SERVICES THAT ARE THE SUBJECT OF THE CLAIM.
6. Trainers. Sencha is an independent contractor. Nothing in this Agreement is intended to construe the existence of a partnership, joint venture, employment or agency relationship between Customer and Sencha. Sencha shall be responsible for providing any salary or other benefits to its personnel. Customer agrees that, during the term of this Agreement and for one (1) year thereafter, neither it nor any of its subsidiaries or affiliates shall knowingly, except with the prior written consent of Sencha, offer employment to or employ any person employed then or within the preceding twelve (12) months by the other or any subsidiary or affiliate of Sencha if such person was involved directly or indirectly in the performance of this Agreement, unless such employment is in response to a bona fide general and non-targeted newspaper or other public media advertisement in the ordinary course of business and not as a direct result of this engagement.
7. Applicable Law. This Agreement shall be construed according to, and the rights of the parties shall be governed by, the law of the State of California without regard to choice of law rules. Venue for any court action arising under this Agreement shall lie exclusively in San Mateo County, California. The parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement shall be submitted to JAMS, or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration pursuant to the terms below. Either party may commence mediation by providing to JAMS and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested. The parties will cooperate with JAMS and with one another in selecting a mediator from the JAMS panel of neutrals and in scheduling the mediation proceedings. The parties agree that they will participate in the mediation in good faith and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Either party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or at any time following 45 days from the date of filing the written request for mediation, whichever occurs first (“Earliest Initiation Date”). The mediation may continue after the commencement of arbitration if the parties so desire. At no time prior to the Earliest Initiation Date shall either side initiate an arbitration or litigation related to this Agreement, except that either party may institute an action in court for injunctive or other equitable relief at any time. The arbitration shall be administered by JAMS in Santa Clara County, California pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction.
8. Miscellaneous. This Agreement and the submission form completed by the Customer constitute the entire Agreement between Sencha and Customer on this subject matter. This Agreement shall not be modified except by a subsequently dated written amendment signed on behalf the parties by their duly authorized representatives and any provision of a purchase order purporting to supplement or vary the provisions hereof shall be void. The waiver by either party of a breach of any provisions contained herein shall be in writing and shall in no way be construed as a waiver of any succeeding breach of such provision or the waiver of the provision itself. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section. All remedies available to either party for breach of this Agreement are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies. If any of the provisions of the Agreement are ultimately deemed by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be deleted and the remaining terms and provisions under the Agreement shall continue in full force and effect. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party. Either party is excused from performance and shall not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond the control of the parties including, but not limited to, work stoppages, fires, hurricanes, civil disobedience, riots, rebellions, accident, explosion, flood, storm, Acts of God and similar occurrences.