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1.0 DEFINITIONS
1.1 "Error Correction(s)" means a modification, addition or procedure intended to correct the practical adverse effect of a reproducible failure of a Supported Product to perform its intended functions or of any significant inaccuracies in associated end user documentation.
1.2 "Incident" means a one-time request for technical assistance and support via phone, fax, email and or Internet communications for a single, discrete problem, i.e. a single technical issue that cannot be subdivided into different issue for the Supported Products. A request that raises multiple technical issues will generate multiple Incidents.
1.3 "Sun (sm) Developer Expert Assistance" means the support service feature whereby an Incident initiated by Customer under the Sun (sm) Developer Expert Assistance Program as per the terms of this Agreement. A request that raises multiple technical issues will generate multiple Incidents.
1.4 "Expert Assistance" means the Sun technical development support for Error Corrections described in this Agreement and on Sun's website for the Sun (sm) Developer Expert Assistance Program .
1.5 "Supported Product(s)" means the Sun software for which Customer has an end user binary code license, that is listed as " Supported Products" on Sun's website for the Sun (sm) Developer Expert Assistance Program.
2.0 CUSTOMER RIGHTS AND OBLIGATIONS
2.1 Unmodified Supported Product. Sun will provide Per-Incident Expert Assistance only if: (i) Customer initiates an Incident for an unmodified portion of the Supported Product; (ii) Customer demonstrates the problem with an unmodified copy of the Supported Product to Sun's satisfaction; and (iii) Customer submits only one Incident.
2.2 License of Error Corrections. Error Corrections will be subject to the terms and conditions of the binary code license for the Supported Product. Customer may download and copy Error Corrections for internal use by the number of users and class of computer hardware authorized in the Supported Product binary code license.
2.3 Aircraft Products and Nuclear Applications. Per-Incident Sun (sm) Developer Expert Assistance is not designed or intended for use in on-line control of aircraft, air traffic, aircraft navigation or aircraft communications, or in the design, construction, operation or maintenance of any nuclear facility. Customer represents and warrants that it will not use or resell Per-Incident Sun (sm) Developer Expert Assistance for such purposes.
2.4 Any and all test results, error data, reports or other information (including survey information), feedback or materials made or provided by Customer relating to the Supported Products (collectively, "Feedback") are the exclusive property of Sun and Company hereby assigns all Feedback to Sun at no cost to Sun. Sun may use such Feedback in any manner and for any purpose, without limitation, liability or obligation to Customer.
3.0 SUN OBLIGATIONS
3.1 Support Features. Sun, its authorized agents, suppliers or subcontractors, will provide technical development Support via phone, fax, email and Internet communications, Monday through Friday, 8:00 AM through 5:00 PM, excluding Sun holidays. As part of Per-Incident Sun (sm) Developer Expert Assistance, Customer will be able to submit Incidents and obtain Error Corrections via email and Internet communications. Requests or inquiries that: (i) are unrelated to the Supported Products; (ii) require the provision of consulting services; or (iii) raise multiple issues, will not receive Support under this Agreement. Sun will exercise reasonable commercial efforts to respond to Incidents. Upon resolution of an Incident, Sun will notify Customer that the Incident record has been closed.
3.2 Exclusions. Sun will have no obligation to provide Per-Incident Sun (sm) Developer Expert Assistance under this Agreement should such support be required because of: (i) failure of the Supported Product due to improper use; (ii) alterations or modifications not authorized by Sun; or (iii) causes external to the Supported Product, including, but not limited to, degrading effects caused by other software, hardware or environmental factors which prevent the Supported Product from functioning properly.
4.0 PAYMENT TERMS
Customer will pay sun through its e commerce website. Payment forms are major credit cards, PO, wire transfers and personal checks. Not all payments forms are available for all countries, so check with local laws. Nominal handling fees may be added to for checks, PO's, wire transfers
5.0 TERMINATION, EFFECT OF TERMINATION, AND SURVIVAL
This Agreement is effective when Customer has paid Sun the Per-Incident Expert Assistance fee and shall remain in effect for one year from date of purchase or until Sun has delivered the support services paid for by Customer, whichever occurs first.
Sun may terminate this Agreement immediately at any time or immediately without notice if Customer fails to comply with any provision. Upon termination of this Agreement:
(i) each party must stop using the other party's Confidential Information; and,
(ii) neither party will have any further obligation to the other, except that rights and obligations that by their nature extend beyond the term of this Agreement will survive any termination or expiration of this Agreement.
6.0 DISCLAIMER OF WARRANTIES
Sun Developer Expert Assistance IS PROVIDED "AS IS" AND ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT THESE DISCLAIMERS ARE HELD TO BE LEGALLY INVALID.
7.0 TREATMENT OF CONFIDENTIAL INFORMATION
For purposes of this Agreement, "Confidential Information" means all information identified as proprietary and confidential. Neither party will disclose or use Confidential Information of the other party except to perform under this Agreement. Each party will protect the confidentiality of Confidential Information to the same degree of care, but no less than reasonable care, as such party uses to protect its own Confidential Information. Each party's obligations regarding Confidential Information will expire two (2) years from the date of its receipt. These obligations will not apply to Confidential Information which the receiving party can demonstrate: (i) becomes generally known in the software industry through no act or failure to act on the part of the receiving party; (ii) is rightfully furnished to the receiving party by a third party without restriction on disclosure; or, (iii) is independently developed by the receiving party without use of the Confidential Information.
8.0 LIMITATION OF LIABILITY
To the extent not prohibited by law, in no event will either party be liable for any indirect, punitive, special, incidental or consequential damage in connection with or arising out of this Agreement (including loss of profits, use, data, or other economic advantage), however it arises, whether for breach of this Agreement, including breach of warranty, or in tort, even if that party has been previously advised of the possibility of such damage. In no event will Sun's liability to customer, whether under contract, tort (including negligence), or otherwise, exceed the amount paid by customer hereunder. the foregoing limitations will apply even if the above warranty fails of its essential purpose.
9.0 PROMOTIONS
Sun may offer discounts and or no charge promotions to customers. Promotions have time limit expirations identified on promotion cards. Promotions will be consumed by using Sun's e commerce site by putting in promotion code in box requesting promo number upon user check out. All rules in this document apply to promotions.
10.0 GENERAL
10.1 Force Majeure. A party is not liable under this Agreement for non-performance caused by events or conditions beyond that party's control, if the party makes reasonable efforts to perform. This provision does not relieve Customer of its obligation to make payments then owing.
10.2 Import and Export Laws. All Sun (sm) Developer Expert Assistance, and direct products therefrom, delivered under this Agreement are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with all such laws and regulations. Customer shall obtain all licenses to export, re-export or import as may be required.
10.3 Governing Law. Any action related to this Agreement will be governed by California law and controlling U.S. federal law. The U.N. Convention for the International Sale of Goods and the choice of law rules of any jurisdiction will apply.
10.4 It is understood and agreed that, notwithstanding any other provision of this Agreement, Customer's breach of provisions of Section 7 of this Agreement will cause Sun irreparable damage for which recovery of money damages would be inadequate, and that Sun will therefore be entitled to seek timely injunctive relief to protect Sun's rights under this Agreement in addition to any and all remedies available at law.
10.5 Neither party may assign or otherwise transfer any of its rights or obligations under this Agreement, without the prior written consent of the other party, except that Sun may assign this Agreement to an affiliated company. 10.6 Relationship of the Parties. This Agreement is not intended to create a relationship such as a partnership, franchise, joint venture, agency, or employment relationship.
10.7 Entire Agreement. This Agreement is the parties' entire agreement relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter during the term of this Agreement. No modification to this Agreement will be binding, unless in writing and signed by an authorized representative of each party.
For inquiries, please contact: Sun Microsystems, Inc., 4150 Network Circle, Santa Clara, CA 95054
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