K–12 Standard Terms and Conditions

CONTRACT. The ordering or acceptance of any Products (defined in section 24 below) purchased from Houghton Mifflin Harcourt (HMH) or its applicable subsidiaries or affiliates (collectively, "HMH") by any purchaser (each a "Purchaser") shall constitute an agreement to these standard terms and conditions set forth herein (the "Terms"). These Terms, together with the terms and conditions published by HMH in the applicable HMH catalog, the HMH Cost Proposal, the HMH Quotation and order form (if applicable to Purchaser's purchase) collectively constitute the sole agreement between the parties relating to the subject matter hereof, except for any agreements, amendments, or waivers agreed to in writing by both HMH and Purchaser. Any contrary or inconsistent terms to these Terms appearing on purchase orders, acknowledgments, or other documents of Purchaser or oral stipulations shall not be binding on HMH.
BILLING AND PAYMENT. All amounts owing from Purchaser to HMH with respect to any Products purchased from HMH are due within thirty (30) days of the date set forth on HMH's invoice. Accounts must be current before subsequent shipments will be made. Purchaser credit limits may be established and modified by HMH in its sole discretion. Past due accounts are subject to a one percent (1%) monthly finance charge. Unless a set-off or deduction is specifically provided for by HMH in a valid credit memo, Purchaser may not charge back to HMH or make any set-offs or deductions, including, but not limited to, set-offs or deductions for violations of customer shipping or routing guidelines and/or other promotional programs. HMH shall process any credit to Purchaser's account in accordance with HMH's standard practices and procedures. For any payments made by credit card, Purchaser represents and warrants that it will not use any credit card or other form of payment unless Purchaser maintains all necessary legal authorization to do so. If HMH does not receive payment from Purchaser's credit card issuer or its agent, Purchaser agrees to pay all amounts due upon demand by HMH or its agents. Unless Purchaser notifies HMH of any discrepancies within sixty (60) days after they first appear on Purchaser's credit card statement or HMH invoice, Purchaser agrees that they will be deemed accepted by Purchaser for all purposes, unless otherwise required by applicable law.
SHIPPING; HANDLING; RISK OF LOSS. Unless otherwise expressly indicated on the face of an order, the shipping term for all deliveries is F.O.B. HMH's shipping point (whether to a HMH or third party facility). Risk of loss and title is passed to Purchaser upon transfer of the Products to the carrier. Shipping costs quoted are estimates and may vary from the actual costs. The cost of shipping is calculated by taking the Product price and adding 10.5%. Minimum charge $10.00. HMH will ship Physical Products (defined in section 24 below) using its established methods of packing and transportation, except as otherwise instructed by Purchaser and agreed to by HMH. If Purchaser requires other packing or preparation, Purchaser will pay the additional costs. In the event that Purchaser requests to pick up its own deliveries of Physical Products by its own carrier, Purchaser must pay 5% of the value of the order as a handling fee. In addition, the pickup must occur within 48 hours of confirming the date and time of pickup or HMH will ship and charge standard shipping and handling rates to a maximum of 10.5%. Customer assumes full liability for the materials upon freight leaving our distribution center dock.
ACCEPTANCE, PRICES, AND TERMS. Orders for Products are subject to acceptance and availability. HMH's list prices and other terms shown are subject to change without notice.
REJECTION. Purchaser may, immediately on receipt of any incorrect titles or damaged or defective Products, reject and return them to HMH, with authorization from HMH and at HMH's expense. Purchaser assumes, and shall bear and pay, all risks and expenses of returning any such Products without HMH's authorization. Shortages, damaged Products or incorrect titles must be reported within thirty (30) days of receipt of shipment. In the event of a shortage, HMH shall ship the items or credit Purchaser's account for the shortfall. For damaged Products, HMH shall pick up the Products and issue an appropriate credit or ship replacement Products. For Products showing visible damage on the shipping carton, the carrier must note damages on the freight bill before accepting delivery. Merchandise damaged in transit must be reported to the carrier immediately. All original shipping cartons, packing slips, packing materials and damaged Products must be saved until they have been inspected or Purchaser's claim has be resolved.
CUSTOMER RETURNS. Except for Products sold on a non-refundable basis, Purchaser may return, at Purchaser's risk and expense, purchased Products no later than six (6) months (or one month for home schools and individual purchasers) after the invoice date, in accordance with HMH's standard practices and procedures and return policy provided above (including limitations on the period during which Products may be returned) with pre-approval from HMH Customer Service. Purchaser assumes, and shall bear and pay, all risks and expenses of returning any such Products. If Purchaser returns any Product that is damaged by Purchaser, used or otherwise ineligible for credit for any reason specified in our policy, HMH has the right to dispose of it without any further obligation, including, without limitation, notice, credit obligation or obligation to return it to the account.
TAXES. Where appropriate, Purchaser shall provide HMH with a duly executed tax certificate indicating that such purchase is for exemption or resale and listing Purchaser's sales tax registration number for each state into which HMH's Products will be delivered. HMH shall have no liability for any tax required to be billed, collected, and/or remitted by Purchaser as a result of sales of Products made by Purchaser, and Purchaser shall defend, indemnify, and hold harmless HMH against all losses, penalties, interest, and expense (including reasonable attorneys' fees) arising out of any claims relating to such liability for taxes.
CHANGES CANCELLATION AND DEFAULT. HMH may make changes in quantities, casepacks, specifications, delivery schedules, method of shipment, and packaging, and may cancel or terminate work on any order for its own convenience, in whole or in part, by written or electronic notice at any time. Any changes to orders requested by Purchaser may be approved or rejected in HMH's sole and absolute discretion. If the Products purchased from HMH are not as described, Purchaser's sole remedy is to return it in unused condition, complete and undamaged, in the original packaging. In the event of any default or breach by Purchaser of these Terms, HMH will have available all remedies under applicable law.
NO RESPONSIBILITY TO SELL MISPRICED MERCHANDISE. HMH does its best to describe every product offered as accurately as possible. However, HMH does not warrant that the Products, specifications, pricing, or other content we provide in catalogs or elsewhere is complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications of any Products, HMH shall have the right to refuse or cancel any orders in its sole discretion. If HMH charged Purchaser's credit card prior to cancellation, HMH will issue a credit to Purchaser's credit card account in the amount of the charge.
RECALLS. In the event a Product is the subject of a recall by HMH, HMH shall be responsible only for, at HMH's election: (a) supplying Purchaser with corrected versions of the recalled Product(s) in a quantity equal to the quantity recalled; or (b) reimbursing Purchaser for the costs paid by Purchaser to HMH for such Products upon the return thereof.
COMPLIANCE WITH LAWS. Purchaser shall comply with all applicable laws and regulations applicable to the purchase and use of Products and/or the resale of Products.
HMH'S INTELLECTUAL PROPERTY RIGHTS. The intellectual property contained in the Products (and any derivative works based on the Products) is confidential and/or proprietary information of HMH or its licensors and is protected by copyright and other intellectual property rights.
TERMS APPLICABLE TO SOFTWARE AND OTHER DIGITAL PRODUCTS.
1. Any subscription to software under these Terms is for the time period or term listed in the applicable HMH Cost Proposal or HMH Quotation and order form. If Purchaser wishes to extend any subscription or license term(s), a purchase order, change order, or amendment is to be negotiated for additional fees.
2. Any software subscribed to under these Terms is to be hosted by or through HMH. Any HMH software product Purchaser wishes to self-host would be considered a new transaction, and separate agreements and fees are to be negotiated. Self-hosted versions of many of HMH's software products are not available for license. In the case of Digital Products (e.g., digital content cartridges) that are self-hosted in whole or in part, upon expiration or termination of the applicable subscription term, Purchaser must immediately cease using the Digital Product, delete or destroy any copies of the Digital Product and, if requested, confirm to HMH that the Purchaser has complied with these requirements.
3. Purchaser acknowledges that Digital Products may include security technology to ensure that they may only be used in accordance with the applicable license rights.
4. Purchaser may not: (1) re-sell, rent or lease a Digital Product or any part of it; (2) copy any part of a Digital Product, except where specifically indicated otherwise or for back-up purposes; (3) reverse engineer, decompile or disassemble a Digital Product or the software through which it is delivered, or convert it into any other format or medium; (4) use more copies of a Digital Product, or deploy a Digital Product on more devices or at more sites, than are authorized by these Terms and the applicable the HMH Cost Proposal or HMH Quotation and order form, or (5) sub-license the Digital Products except as permitted by HMH.
5. Purchaser will own any tangible media (e.g., CD, DVD, tape, etc.) on which Digital Product(s) are supplied.
6. In connection with Purchaser's use of Digital Products, HMH's K–12 Privacy Policy is located at (http://www.hmhco.com/common/privacy-policy-for-k-12-learning-platforms). Please note that in some instances there are other specific privacy policies that may apply to certain HMH Digital Products. In such cases, you should refer to the applicable privacy policy for that Digital Product(s).
PURCHASE AUTHORIZATION. By ordering Products, Purchaser represents and warrants that it has complied with any and all of its own requirements necessary to authorize the purchase. Purchaser is solely responsible for all purchase decisions, including ensuring the compatibility and suitability of all Products.
EQUAL OPPORTUNITY CLAUSE. Pursuant to Presidential Executive Order 11246, as amended by Presidential Executive Order 11375, the Vietnam Era Veterans' Readjustment Act of 1974 and the Rehabilitation Act of 1973 as amended, HMH does not and Purchaser shall not engage in any discriminatory practices based on race, color, religion, national origin, or physical or mental handicap. To the degree they are applicable, the following provisions are incorporated herein by reference and are binding upon HMH and Purchaser as if set forth fully at length herein: 41 CFR 60-1.4; 41 CFR 60-250.4 and 41 CFR 60-741.4.
FORCE MAJEURE. HMH shall not be deemed in default of its obligations to Purchaser to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials and supplies, or any other cause beyond its reasonable control.
SOLVENCY. By ordering and accepting delivery of Products, Purchaser represents to HMH that Purchaser is solvent and will make payment in full when due for such Products in accordance with the applicable invoice. In the event that the Purchaser orders and/or accepts delivery of any Products while insolvent, Purchaser shall immediately return all such Products to HMH, and any and all Products en route to Purchaser at such time shall be returned immediately upon Purchaser's receipt thereof. Events which shall be deemed to establish Purchaser's insolvency include, but are not limited to, the filing of a bankruptcy petition by or against Purchaser and/or Purchaser's admission of its inability to pay its debts when due.
CLAIMS. All claims relating to any shipment and/or applicable invoice and/or Products must be made in writing within 30 days of the date of the invoice. Any request for proof of delivery must be made within 30 days of the date of the invoice.
INDEMNIFICATION. To the extent allowed by law and subject to the right of Purchaser to raise the defense(s) of sovereign governmental or qualified immunity against third party claims, Purchaser will indemnify, defend and hold harmless HMH, its parent companies, subsidiaries, affiliates, directors, officers and employees from any third party claims, causes of action, damages, costs, liabilities or expenses that arise from a breach of these Terms or from improper, illegal or unauthorized use, distribution or operation of the Products.
DISCLAIMER OF WARRANTIES AND INDEMNITIES; LIMITATION OF LIABILITY. ALL PRODUCTS ARE PROVIDED ON AN "AS IS" BASIS, AND HMH EXPRESSLY EXCLUDES THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. PURCHASER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS HMH AND ITS PARENT, AFFILIATES, SUCCESSORS AND ASSIGNS AND THEIR RESPECTIVE OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY AND ALL LOSSES, COSTS AND EXPENSES (INCLUDING REASONABLE OUTSIDE ATTORNEYS' FEES AND EXPENSES) INCURRED IN DEFENDING ANY CLAIM, JUDGMENT OR PROCEEDING RELATING TO OR ARISING OUT OF: (I) PURCHASER'S BREACH OR ALLEGED BREACH OF ITS REPRESENTATIONS, WARRANTIES, OBLIGATIONS AND AGREEMENTS CONTAINED IN THESE TERMS; AND/OR (II) THE DISTRIBUTION, RESALE AND PROMOTION OF PRODUCTS BY PURCHASER. HMH WILL HAVE THE RIGHT TO CONTROL THE DEFENSE AND SETTLEMENT OF ANY CLAIMS SUBJECT TO INDEMNIFICATION HEREIN. HMH SHALL HAVE NEITHER LIABILITY NOR RESPONSIBILITY TO ANY PERSON OR ENTITY WITH RESPECT TO ANY LOSS OR DAMAGE ARISING FROM THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, HMH'S FAILURE OR ALLEGED FAILURE TO FILL ORDERS BY PURCHASER IN WHOLE OR IN PART. HMH DOES NOT GUARANTEE THAT ANY DIGITAL PRODUCTS WILL BE DELIVERED ERROR-FREE OR UNINTERRUPTED. HMH DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND DIGITAL PRODUCTS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. HMH SHALL NOT BE LIABLE FOR ANY DAMAGES TO COMPUTERS, COMMUNICATION SYSTEMS, DATA OR SERVICES THAT MAY ARISE AS A RESULT OF THE USE OF DIGITAL PRODUCTS. IN NO EVENT SHALL HMH BE LIABLE TO PURCHASER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER IN TORT, CONTRACT, STRICT LIABILITY, WARRANTY OR OTHERWISE, AND REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL HMH'S TOTAL AGGREGATE LIABILITY IN CONTRACT, TORT OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THESE TERMS EXCEED THE FEES PAID OR PAYABLE BY PURCHASER DURING THE MOST RECENT TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM.
SEVERABILITY If any provision of these Terms is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of the Terms shall remain in force and in effect and be construed so as to best effectuate the intention of the parties. The waiver of one default shall not waive subsequent defaults of the same or different kind.
JURISDICTION; VENUE; CHOICE OF LAW. THE STATE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS SITTING IN SUFFOLK COUNTY AND, IF THE JURISDICTIONAL PREREQUISITES EXIST AT THE TIME, THE UNITED STATES DISTRICT COURT FOR MASSACHUSETTS SHALL HAVE THE SOLE AND EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY DISPUTE OR CONTROVERSY ARISING UNDER OR CONCERNING THIS CONTRACT. THIS CONTRACT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, WITHOUT REFERENCE TO ITS PRINCIPLES OF CONFLICTS OF LAWS, EXCEPT THAT FOR GOVERNMENTAL CUSTOMERS IN THE UNITED STATES THESE TERMS SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE GOVERNMENT AGENCY PURCHASER IS LOCATED.
EXPORT. Import duties, taxes and customs clearance fees relating to Products shipped outside the United States will be borne by Purchaser. Export laws and regulations of the United States apply to all Products. Purchaser agrees that export control laws govern its use of the Digital Products and related services (including technical data) and any Digital Products deliverables provided to Purchaser by HMH, and Purchaser agrees to comply with all such export laws and regulations (including "deemed export" and "deemed re-export" regulations). For Products exported outside the United States, Purchaser agrees that it will not import or allow a third party to import such Products into the United States.
CERTAIN DEFINITIONS. "Product(s)" means books, professional development products, CDs, DVDs, videos, other audio/ video/multimedia products, subscription services, software licenses and any other products that Purchaser may acquire from HMH. Products may include either Digital Products, Print Products, other Physical Products or both. "Digital Product(s)" means non-tangible, digital versions of Products. "Physical Product(s)" means any Product versions that are not Digital Products, including Print Products books, other printed materials, and the physical media (CDs, DVDs, videos, other audio/ video/multimedia products) that carry copies of any Digital Product(s) delivered to Purchaser, and any other physical copies of Products.

Intervention Programs Standard Terms and Conditions

CONTRACT. The ordering or acceptance of any Intervention Products (defined in section 18 below) purchased from Houghton Mifflin Harcourt (HMH) or its applicable subsidiaries or affiliates (collectively, "HMH") by any purchaser (each a "Purchaser") shall constitute an agreement to these standard terms and conditions set forth herein (the "Terms"). These Terms, together with the end user license agreement, web-based (hosting) terms and conditions and product support terms and conditions accompanying the Intervention Products, the HMH Cost Proposal, the HMH Quotation and order form (if applicable to Purchaser's purchase) collectively constitute the sole agreement between the parties relating to the subject matter hereof, except for any agreements, amendments, or waivers agreed to in writing by both HMH and Purchaser. Any contrary or inconsistent terms to these Terms appearing on purchase orders, acknowledgments, or other documents of Purchaser or oral stipulations shall not be binding on HMH.
BILLING AND PAYMENT. All amounts owing from Purchaser to HMH with respect to any Products purchased from HMH are due within thirty (30) days of the date set forth on HMH's invoice. Accounts must be current before subsequent shipments will be made. Purchaser credit limits may be established and modified by HMH in its sole discretion. Past due accounts are subject to a one percent (1%) monthly finance charge. Unless a set-off or deduction is specifically provided for by HMH in a valid credit memo, Purchaser may not charge back to HMH or make any set-offs or deductions, including, but not limited to, set-offs or deductions for violations of customer shipping or routing guidelines and/or other promotional programs. HMH shall process any credit to Purchaser's account in accordance with HMH's standard practices and procedures.
SHIPPING; HANDLING; RISK OF LOSS. Unless otherwise expressly indicated on the face of an order, the shipping term for all deliveries is F.O.B. HMH's shipping point (whether to a HMH or third party facility). Risk of loss and title is passed to Purchaser upon transfer of the Intervention Products to the carrier. Shipping costs quoted are estimates and may vary from the actual costs. HMH will ship Physical Products (defined in section 18 below) using its established methods of packing and transportation, except as otherwise instructed by Purchaser and agreed to by HMH. If Purchaser requires other packing or preparation, Purchaser will pay the additional costs.
ACCEPTANCE, PRICES, AND TERMS. Orders for Intervention Products are subject to acceptance and availability. HMH's list prices and other terms shown are subject to change without notice.
REJECTION. Purchaser may, immediately on receipt of any incorrect titles or damaged or defective Intervention Products, reject and return them to HMH, with authorization from HMH and at HMH's expense. Purchaser assumes, and shall bear and pay, all risks and expenses of returning any such Intervention Products without HMH's authorization. Shortages, damaged Intervention Products or incorrect titles must be reported within thirty (30) days of receipt of shipment. In the event of a shortage, HMH shall ship the items or credit Purchaser's account for the shortfall. For damaged Intervention Products, HMH shall pick up the Intervention Products and issue an appropriate credit or ship replacement Intervention Products. For Intervention Products showing visible damage on the shipping carton, the carrier must note damages on the freight bill before accepting delivery. Merchandise damaged in transit must be reported to the carrier immediately. All original shipping cartons, packing slips, packing materials and damaged Intervention Products must be saved until they have been inspected or Purchaser's claim has be resolved.
CUSTOMER RETURNS. (a) Except for Intervention Products sold on a non-refundable basis, Purchaser may return, at Purchaser's risk and expense, purchased Intervention Products that are Physical Products no later than six (6) months (or one month for home schools and individual purchasers) after the invoice date, in accordance with HMH's standard practices and procedures and return policy provided above (including limitations on the period during which Intervention Products may be returned) with pre-approval from HMH Customer Service. Purchaser assumes, and shall bear and pay, all risks and expenses of returning any such Intervention Products. If Purchaser returns any Intervention Product that is damaged by Purchaser, used or otherwise ineligible for credit for any reason specified in our policy, HMH has the right to dispose of it without any further obligation, including, without limitation, notice, credit obligation or obligation to return it to the account.
- (b) For Intervention Products that are Digital Products, HMH shall refund the license fees paid by Licensee hereunder with respect to such Digital Products on a pro rata basis depending on either (i) with respect to Digital Products licensed on a subscription basis, the portion of the subscription license term that has passed as of the date of termination of the license, or (ii) with respect to Digital Products licensed on a perpetual basis, the unamortized portion of the perpetual license fee for such Digital Products of the date of termination of the license on a five (5)-year straight-line amortization schedule beginning on the date on which such license became effective.
- (c) For Intervention Services, by giving HMH no less than thirty (30) days prior written notice. If Purchaser elects to terminate early, Purchaser shall receive a prorated credit (or, at Purchaser's election, a refund) of the unused portion of any fees paid in advance for Intervention Services that were not provided.
TAXES. Where appropriate, Purchaser shall provide HMH with a duly executed tax certificate indicating that such purchase is for exemption or resale and listing Purchaser's sales tax registration number for each state into which Intervention Products will be delivered. HMH shall have no liability for any tax required to be billed, collected, and/or remitted by Purchaser as a result of sales of Intervention Products made by Purchaser, and Purchaser shall defend, indemnify, and hold harmless HMH against all losses, penalties, interest, and expense (including reasonable attorneys' fees) arising out of any claims relating to such liability for taxes.
CHANGES CANCELLATION AND DEFAULT. HMH may make changes in quantities, casepacks, specifications, delivery schedules, method of shipment, and packaging, and may cancel or terminate work on any order for its own convenience, in whole or in part, by written or electronic notice at any time. Any changes to orders requested by Purchaser may be approved or rejected in HMH's sole and absolute discretion. If Intervention Products purchased from HMH are not as described, Purchaser's sole remedy is to return it in unused condition, complete and undamaged, in the original packaging. In the event of any default or breach by Purchaser of these Terms, HMH will have available all remedies under applicable law.
NO RESPONSIBILITY TO SELL MISPRICED MERCHANDISE. HMH does its best to describe every product offered as accurately as possible. However, HMH does not warrant that the Intervention Products, specifications, pricing, or other content we provide in catalogs or elsewhere is complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications of any Intervention Products, HMH shall have the right to refuse or cancel any orders in its sole discretion. If HMH charged Purchaser's credit card prior to cancellation, HMH will issue a credit to Purchaser's credit card account in the amount of the charge.
RECALLS. In the event an Intervention Product is the subject of a recall by HMH, HMH shall be responsible only for, at HMH's election: (a) supplying Purchaser with corrected versions of the recalled Intervention Product(s) in a quantity equal to the quantity recalled; or (b) reimbursing Purchaser for the costs paid by Purchaser to HMH for such Intervention Products upon the return thereof.
COMPLIANCE WITH LAWS. Purchaser shall comply with all applicable laws and regulations applicable to the purchase and use of Intervention Products and/or the resale of Intervention Products.
HMH'S INTELLECTUAL PROPERTY RIGHTS. The intellectual property contained in the Intervention Products (and any derivative works based on the Intervention Products) is confidential and/or proprietary information of HMH or its licensors and is protected by copyright and other intellectual property rights.
PRIVACY POLICY. In connection with Purchaser's use of Intervention Products, HMH's Intervention Technology Products Privacy Policy is located at (http://www.hmhco.com/common/intervention-privacy-policy).
PURCHASE AUTHORIZATION. By ordering Intervention Products, Purchaser represents and warrants that it has complied with any and all of its own requirements necessary to authorize the purchase. Purchaser is solely responsible for all purchase decisions, including ensuring the compatibility and suitability of all Intervention Products.
EQUAL OPPORTUNITY CLAUSE. Pursuant to Presidential Executive Order 11246, as amended by Presidential Executive Order 11375, the Vietnam Era Veterans' Readjustment Act of 1974 and the Rehabilitation Act of 1973 as amended, HMH does not and Purchaser shall not engage in any discriminatory practices based on race, color, religion, national origin, or physical or mental handicap. To the degree they are applicable, the following provisions are incorporated herein by reference and are binding upon HMH and Purchaser as if set forth fully at length herein: 41 CFR 60-1.4; 41 CFR 60-250.4 and 41 CFR 60-741.4.
SOLVENCY. By ordering and accepting delivery of Intervention Products, Purchaser represents to HMH that Purchaser is solvent and will make payment in full when due for such Intervention Products in accordance with the applicable invoice. In the event that the Purchaser orders and/or accepts delivery of any Intervention Products while insolvent, Purchaser shall immediately return all such Intervention Products to HMH, and any and all Intervention Products en route to Purchaser at such time shall be returned immediately upon Purchaser's receipt thereof. Events which shall be deemed to establish Purchaser's insolvency include, but are not limited to, the filing of a bankruptcy petition by or against Purchaser and/or Purchaser's admission of its inability to pay its debts when due.
CLAIMS. All claims relating to any shipment and/or applicable invoice and/or Intervention Products must be made in writing within 30 days of the date of the invoice. Any request for proof of delivery must be made within 30 days of the date of the invoice.
CERTAIN DEFINITIONS. "Intervention Product(s)" means HMH intervention programs, including without limitation, READ 180 Universal, READ 180 Enterprise Edition, READ 180 Next Generation, System 44 Enterprise Edition, System 44 Next Generation, iRead, MATH 180, English 3D, Reading Counts!, Reading Inventory, Phonics Inventory, Math Inventory, rSkills, Big Day for Pre-K, FASTT Math Enterprise Edition, FASTT Math Next Generation, Fraction Nation, Do The Math, Common Core Code X, whether sold as a perpetual license or as a subscription. Hosting services and product support that may be purchased by Purchaser and provided by HMH in connection with the Intervention Products are referred to herein as the "Intervention Services" and are governed by the applicable terms and conditions for services. Intervention Products may include either Digital Products or Physical Products or a combination of the two. "Digital Product(s)" means software and other non-tangible, digital versions or components of Products. "Physical Product(s)" means any Intervention Product versions or components that are not Digital Products, including print products, books, teacher and student guides, other printed materials, and physical media (CDs, DVDs, videos, other audio/ video/multimedia products) that carry copies of any Digital Product(s) delivered to Purchaser, and any other physical copies of Intervention Products.

Houghton Mifflin Harcourt Services Terms and Conditions

The ordering or acceptance of any Services (defined below) purchased from Houghton Mifflin Harcourt (HMH) or its applicable subsidiaries or affiliates (collectively, "HMH") by any customer (each a "Customer") shall constitute an agreement to these standard terms and conditions set forth herein. These terms, together with any exhibits, attachments, purchase order, and other referenced or linked documentation, the “Agreement,” collectively constitute the sole agreement between the parties relating to the subject matter hereof, except for any agreements, amendments, or waivers agreed to in writing by both HMH and Customer. Any contrary or inconsistent terms to this Agreement appearing on purchase orders, acknowledgments, or other documents of Customer or oral stipulations shall not be binding on HMH.

Definitions. Capitalized terms shall be defined as set forth below or elsewhere in this Agreement.
1. “Customer” means the legal entity identified on the purchasing or registration materials. For purposes of this Agreement, Customer includes affiliates specifically listed in a purchase order or in other purchasing or registration materials. Such affiliates agree to be bound by the terms of this Agreement. Customer is responsible for compliance with the terms of this Agreement by all affiliates, subsidiaries and subdivisions purchasing Services hereunder.
2. “HMH Materials” means any and all materials provided by HMH in the course of delivering the Services, including without limitation, documentation, training materials, professional development materials, program and technical implementation materials, PowerPoints, handouts, books, and webinars.
3. “Participant(s)” means affiliates or employees of the Customer who will be engaging in the Services being provided by HMH.
4. “Purchase Order” means purchase order or other Customer ordering document.
5. “Services” means the services specified in the purchase order or other ordering documents or Statement of Work(s), which may include training, professional development, coaching, “Getting Started” and implementation training, software integration, software implementation, software development and other engineering work performed by HMH for Customer as agreed to by the parties, under this Agreement.
6. “Services Date” means a date on which Services are scheduled to be delivered.
7. “Term” means either
  (i) for Services invoiced upon delivery of the Service, the earlier to expire of (x) the Customer’s funding for such Services or (y) twenty-four months from the date of acceptance of this Agreement; or
  (ii) for Services billed in advance of delivery and paid within thirty (30) days after receipt of an invoice, the Term shall be twenty-four months from the date of the acceptance of this Agreement.
  Notwithstanding the above, if there is a separate written agreement in place between the parties, the term of such agreement shall be the Term of this Agreement. Under extraordinary circumstances and upon mutual written consent of HMH and Customer, the original term-month Term may be extended for an additional twelve-month period up to the expiration date of the Customer’s funding.
Purchase Order and Payment Terms.
1. Purchase Order. At least thirty (30) days prior to the first date of Services, Customer shall provide HMH with a Purchase Order. If Customer’s purchase practice is not to provide a Purchase Order, Customer agrees that it shall sign a Services Summary or contract and make prompt payment under the terms set forth herein for all Services delivered to Customer by HMH.
2. Services Logistics Detail. No less than thirty (30) days before a Services Date, Customer shall provide to HMH the following information: shipping address for materials, the address and other pertinent details (e.g., room number) of Services delivery sites, and the number of Participants for each day of Services to be delivered. HMH reserves the right to charge Customer expedited shipping charges if additional shipping or handling charges are incurred by HMH, or to reschedule the Services without penalty, as a result of Customer’s failure to provide the necessary information within this timeframe.
3. Payment Terms. Unless an alternative billing schedule has been agreed to by the parties, all fees are due and payable no later than thirty (30) days after each consulting day is delivered and invoiced or thirty (30) days after receipt of an invoice for Services billed in advance of delivery. Late payments shall be subject to a 1% monthly finance charge.
Services Delivery Dates: Scheduling, Rescheduling and Cancellation.
1. Dates To Be Determined. Dates “to be determined” (“TBD Dates”) must be delivered within the Term of this Agreement. Fees paid for any TBD Dates not consumed within the Term will be forfeited by the Customer. When scheduling TBD Dates, the Customer shall contact HMH at least six (6) weeks prior to the first day on which the Customer would like the Services to begin. HMH cannot guarantee availability of dates for specific consultants.
2. Date Changes/Rescheduling.
  (i) Services Dates, once scheduled, may be changed only upon the mutual agreement of HMH and the Customer. In addition to rescheduling fees, any change to the dates or the type of Services herein may change the fees that will be charged.
  (ii) Any date change requests must be received by HMH from the Customer no less than thirty (30) days prior to the scheduled Services Date. All rescheduled Services Dates must be delivered within the Term of this Agreement. All rescheduled Services Dates not consumed within the Term of this Agreement will be forfeited by the Customer and no refund of any prepaid fees shall be given.
  (iii) For any Services Date changes made at any time by Customer for any reason, Customer shall reimburse HMH 100% of any out-of-pocket travel or other ancillary costs spent by HMH in connection with preparation for providing the Services in accordance with this Agreement (e.g., travel already booked).
3. Cancellation.
  (i) Customer may terminate this Agreement and/or cancel Services without incurring any cancellation fee prior to the scheduling of a Services Date or assignment of the consultant delivering the Services by providing HMH no less than thirty (30) days’ written notice prior to the Services Date.
  (ii) Cancellations received from Customer less than thirty (30) days prior to the Services Date shall result in payment by Customer of a cancellation fee of 50% of the fees for the cancelled Services. Cancellations received from Customer less than seven (7) days in advance of the Services Date shall result in payment by Customer of a cancellation fee of 75% of the fees for the cancelled Services.
  (iii) Cancellations received from Customer less than 24 hours prior to the Services Date, or if Customer is absent from the scheduled Service (“no-show”), shall result in payment by Customer of a cancellation fee of 100% of the fees for the cancelled Services.
  (iv) If a cancellation involves more than one Service Date, any cancellation fees shall be prorated accordingly. In all cases, Customer shall pay for any Services actually delivered.
  (v) For any cancellation of Services Dates at any time for any reason, Customer shall reimburse HMH 100% of any out-of-pocket travel or other ancillary costs spent by HMH in connection with preparation for providing the Services in accordance with this Agreement (e.g., travel already booked).
4. Technical Support and Integration Work. The foregoing rescheduling and cancellation terms may not apply to technical support and integration work. Rescheduling and cancellation terms for such work shall be provided by HMH in conjunction with such work.
Force Majeure. Services may be cancelled or rescheduled without penalty by either Customer or HMH because of a natural disaster, terrorist attack, act of God, war, civil commotion, strikes, labor disputes, or other unforeseeable circumstance that is beyond the control of either HMH or Customer and makes it impossible to hold the scheduled Services.
Confidentiality. Customer acknowledges that in the course of performing the Services under this Agreement, representatives of HMH may disclose certain confidential information to Customer. All concepts, work, materials, and related information disclosed to Customer by any person acting on behalf of HMH are proprietary and confidential information of HMH. Customer acknowledges this and agrees not to disclose any such concepts, work, material or related information to any other parties, or to make any use of the HMH Materials other than the use that is intended by HMH through its provision of the Services.
Ownership and Use of Services.
1. HMH owns and retains all right, title and interest in and to HMH Materials, software, documentation, training and implementation materials, methodology, names of the Services, all parts of the presentations and other materials provided in connection with HMH Services (collectively, “HMH IP”). HMH grants to Customer a personal, nonexclusive license to use the HMH IP for its own non-commercial, incidental use as contemplated herein. Big Ideas Learning, LLC owns all right, title, and interest in all materials supplied by Big Ideas (“Big Ideas Materials”) to the Customer and to the Participants as part of the Services. Customer and the Participants are strictly prohibited from reproduction or distribution of the HMH Materials, HMH IP or Big Ideas Materials without prior written permission from HMH. Customer and Participants may not make use of the HMH Materials, HMH IP or Big Ideas Materials in any manner other than the use intended by HMH through its provision of the Services. All data of the Customer is the property of the Customer.
2. The trademarks MATH SOLUTIONS, INTERNATIONAL CENTER FOR LEADERSHIP IN EDUCATION, HOUGHTON MIFFLIN HARCOURT, THE LEADERSHIP AND LEARNING CENTER, the names of the courses, and all parts of the presentations and the materials for the courses are owned solely by Houghton Mifflin Harcourt Publishing Company with all rights, including reproduction rights and copyrights, reserved to Houghton Mifflin Harcourt Publishing Company.
3. No part of the Services or any related materials may be videotaped, audio taped, photographed or in any way copied, excerpted, reproduced or distributed without the prior written consent of HMH. Participants must also refrain from using their cell phones and other electronic devices during the presentation of the Services. To ensure the quality of the Services for other Participants, Participants may be asked to leave if they engage in this activity.
Independent Contractor. HMH and Customer are not partners or joint venturers and nothing contained herein shall be construed as creating an employment, partnership, joint venture, agency, or any other relationship whatsoever, except that of independent contractors, between HMH and Customer.
Disclaimer of Warranties and Indemnities; Limitation of Liability. ALL SERVICES ARE PROVIDED ON AN "AS IS" BASIS, AND HMH EXPRESSLY EXCLUDES THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS HMH AND ITS PARENT, AFFILIATES, SUCCESSORS AND ASSIGNS AND THEIR RESPECTIVE OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY AND ALL LOSSES, COSTS AND EXPENSES (INCLUDING REASONABLE OUTSIDE ATTORNEYS' FEES AND EXPENSES) INCURRED IN DEFENDING ANY CLAIM, JUDGMENT OR PROCEEDING RELATING TO OR ARISING OUT OF: (I) CUSTOMER'S BREACH OR ALLEGED BREACH OF ITS REPRESENTATIONS, WARRANTIES, OBLIGATIONS AND AGREEMENTS CONTAINED IN THESE TERMS; AND/OR (II) THE DISTRIBUTION, RESALE AND PROMOTION OF SERVICES BY CUSTOMER. HMH WILL HAVE THE RIGHT TO CONTROL THE DEFENSE AND SETTLEMENT OF ANY CLAIMS SUBJECT TO INDEMNIFICATION HEREIN. HMH SHALL HAVE NEITHER LIABILITY NOR RESPONSIBILITY TO ANY PERSON OR ENTITY WITH RESPECT TO ANY LOSS OR DAMAGE ARISING FROM THE SERVICES, INCLUDING, WITHOUT LIMITATION, HMH'S FAILURE OR ALLEGED FAILURE TO FILL ORDERS BY CUSTOMER IN WHOLE OR IN PART. HMH DOES NOT GUARANTEE THAT ANY SERVICES WILL BE DELIVERED ERROR-FREE OR UNINTERRUPTED. HMH DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. HMH SHALL NOT BE LIABLE FOR ANY DAMAGES TO COMPUTERS, COMMUNICATION SYSTEMS, DATA OR SERVICES THAT MAY ARISE AS A RESULT OF THE USE OF SERVICES. IN NO EVENT SHALL HMH BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER IN TORT, CONTRACT, STRICT LIABILITY, WARRANTY OR OTHERWISE, AND REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL HMH'S TOTAL AGGREGATE LIABILITY IN CONTRACT, TORT OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THESE TERMS EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER DURING THE MOST RECENT TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM.
Jurisdiction, Venue, Choice of Law. THE STATE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS SITTING IN SUFFOLK COUNTY AND, IF THE JURISDICTIONAL PREREQUISITES EXIST AT THE TIME, THE UNITED STATES DISTRICT COURT FOR MASSACHUSETTS SHALL HAVE THE SOLE AND EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY DISPUTE OR CONTROVERSY ARISING UNDER OR CONCERNING THIS CONTRACT. THIS CONTRACT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, WITHOUT REFERENCE TO ITS PRINCIPLES OF CONFLICTS OF LAWS, EXCEPT THAT FOR GOVERNMENTAL CUSTOMERS IN THE UNITED STATES THESE TERMS SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE GOVERNMENT AGENCY CUSTOMER IS LOCATED.
Entire Agreement and Amendment. This Agreement, including any attachments or exhibits, other than any terms and conditions applying to the provision of product support and hosting services, constitutes the entire agreement between the parties concerning the Services, and can only be amended by a writing signed by authorized representatives of HMH and Customer.

Reseller Terms and Conditions

The ordering or acceptance of any Approved Product (defined in and subject to the Principal Terms and Conditions as provided by your Reseller Account Manager, the “Principal Terms and Conditions”) purchased from Houghton Mifflin Harcourt (HMH) or its applicable subsidiaries or affiliates (collectively, "HMH") by any reseller (a “Reseller”) shall constitute an agreement to these Additional Terms and Conditions set forth herein (the "Additional Terms and Conditions"). The Principal Terms and Conditions and Additional Terms and Conditions shall be collectively referred to as the “Terms and Conditions”.

Any contrary or inconsistent terms to the Terms and Conditions appearing on purchase orders, acknowledgments, or other documents of Reseller or oral stipulations shall not be binding on HMH.

HMH and Reseller are each referred herein individually as a “Party” and collectively as the “Parties”. Capitalized terms not defined where they initially appear in the Principal Terms and Conditions and/or the Additional Terms and Conditions are defined in Section 13 hereunder.

Product Distribution.

These Terms and Conditions form a binding agreement (hereinafter the “Agreement”). The Agreement is limited to the marketing, sale, and distribution of the Approved Product during the Term in the Approved Market.
Reseller’s appointment, and any right or license to market, sell, and distribute Approved Product under this Agreement will be subject to any and all applicable restrictions, limits, conditions, and requirements imposed on HMH by third parties or under applicable laws, as determined by HMH.
Reseller is hereby appointed, subject to the Limitations set forth in Section 6 below, as a non-exclusive marketer, reseller and distributor of the Approved Product during the Term. All materials that reference HMH products must be branded with and display a HMH logo in accordance with HMH’s trademark guidelines. HMH may appoint other distributors for Approved Products and may directly market, offer and/or sell Approved Product.
Reseller may not:
- Appoint sub-distributors or sub-resellers of Approved Product;
- bid, offer or sell Approved Product into State Adoptions;
- modify any Approved Product in any way;
- copy any Approved Product except as otherwise explicitly permitted by HMH; or
- advertise, offer, distribute, sell, deliver or otherwise market any Approved Product otherwise outside the Approved Market.

Term. The term of this Agreement commences as of the execution of this Agreement and will expire on December 31 of the year of execution, even if such term is less than one (1) year. This Agreement may be terminated before the end of the Term in accordance with Section 11.
Discounts. HMH may change catalog prices effective October 1 of each year, and HMH will honor prior pricing during a grace period of 31 days (through October 31.) Reseller Price Discounts and Material Pricing Group (the “MPG”) product classifications may change or be added and/or deleted at any time at HMH’s sole discretion provided Reseller is given thirty (30) days’ notice prior to the effective date of such change(s), and/or deletion(s).
Orders, Payment, Shipping, Returns and Allowances.
1. All orders of Approved Product will be effected by written or electronic purchase orders, which shall automatically incorporate by reference the terms of this Agreement, whether or not explicitly stating so. All orders under this Agreement are subject to HMH’s acceptance, in its sole discretion, and availability of the requested Approved Product. No conflicting terms of any purchase order may modify the terms hereof unless HMH consents to such modifications in a writing that refers to this Agreement.
2. All invoices must be paid within the Payment Term. All Approved Product will be delivered to Reseller F.O.B. HMH’s shipping point. Any payment not either disputed in good faith or received within ninety (90) days will accrue interest at one percent (1.0%) per month.
3. Unless as otherwise stated in the Principal Terms and Conditions, Reseller shall pay to HMH the applicable shipping costs for each order calculated as the discounted purchase price multiplied by the Shipping Fee. Reseller’s Shipping Fee will be waived on any order over $500.00 conditioned upon Reseller securing its own freight via its own carrier and provided that Reseller contact their Account Executive in advance to arrange coordination of freight via the warehouse designated by HMH at a mutually convenient time to be determined by the Parties.
4. Reseller will be allowed a Digital Return Allowance and a Non-Digital Return Allowance (collectively, the “Return”), returnable up to twelve (12) months from date of purchase, limited to the product of (i) then-current year’s purchases (based on the total dollar value of all orders submitted by Reseller under this Agreement during the then-current calendar year) multiplied by (ii) the applicable Return Allowance. All returns are subject to inspection by HMH and must be preceded with no less than fourteen (14) days’ notice, and must be pre-approved in writing by HMH. If returned product is deemed non-sellable or is returned without HMH’s pre-approved authorization, HMH may retain or destroy the returned product without credit to the Reseller.
5. HMH will set aside a limited pool of marketing funds to share with its resellers for jointly promoting the Approved Product. Upon Reseller’s request, HMH may, at its sole discretion, allocate a portion of this pool to Reseller for mutually acceptable purposes up to a maximum amount equal to the product of (i) then-current year’s purchases (based on the total dollar value of all orders submitted by Reseller under this Agreement during the then-current calendar) or the previous year’s purchases (based on the total dollar value of all orders submitted by the Reseller for the previous calendar year offset by any Returns), whichever is larger, multiplied by (ii) the Co-op Allowance.
6. Upon HMH’s reasonable request, Reseller shall provide HMH with monthly sell-through sales reports using the spreadsheet format made available by HMH, no later than fifteen (15) days after the end of the applicable month.
7. Certain school districts and other institutional purchasers may require that Reseller provide gratis (free with order) products. If this occurs, Reseller is solely responsible for providing any gratis student and teacher editions in the Approved Market. Notwithstanding the foregoing, if Reseller is authorized for distribution in the Institutional market, then upon including such requests with the corresponding purchase order:
  - for every twenty-five (25) print elementary student editions of an Approved Product purchased by Reseller, HMH will provide Reseller at no charge with one (1) corresponding print teacher’s edition to be distributed solely as a gratis product in connection with the corresponding print student editions in the Institutional market; and
  - for every fifty (50) print secondary student editions of an Approved Product purchased by Reseller, HMH will provide Reseller at no charge with one (1) corresponding print teacher’s edition to be distributed solely as a gratis product in connection with the corresponding print student editions.
8. Reseller may purchase product samples of Non-Digital Products, to be used solely for marketing and demonstration purposes, from HMH at HMH’s then-current catalog prices less a 90% discount. Reseller is entitled to purchase such product samples in an amount equal to the product of (i) then-current year’s purchases (based on the total dollar value of all orders submitted by Reseller under this Agreement during the then-current calendar year) or the previous year’s purchases (based on the total dollar value of all orders submitted by the Reseller for the previous calendar year offset by any Returns), whichever is larger multiplied by (ii) the Samples Allowance.
  (i) Any change to Payment Term, Shipping Fee, Non-Digital Return Allowance, Co-op Allowance, Digital Return Allowance or Samples Allowance may be made at HMH’s sole discretion provided Reseller is given thirty (30) days’ notice prior to the effective date of such change.
Pricing. Reseller remains free to set the resale prices of the Products and to set its general conditions for sale towards its customers in its sole discretion.
Limitations.
1. This Agreement is limited to the marketing, sale, and distribution of the Approved Product in the Approved Market.
2. Reseller’s appointment, and any right or license to market, sell, and distribute Approved Product under this Agreement will be subject to any and all applicable restrictions, limits, conditions, and requirements imposed on HMH by third parties or under applicable laws, as determined by HMH.
Forecasting. Reseller is requested to appoint adequate and competent staff resources to develop quarterly demand forecasts. Reseller is requested to provide to HMH with a rolling twelve (12) month forecast for the purchase of Approved Product during each calendar quarter beginning on the next full calendar quarter following execution of the Agreement.
Confidentiality. Neither Party shall disclose or use the Confidential Information (defined below) of the other Party, except in direct connection with this Agreement. The receiving Party shall limit disclosure of the disclosing Party's Confidential Information to the receiving Party's employees or agents who have a need to know such Confidential Information for purposes of this Agreement, and who are bound in writing by confidentiality terms no less restrictive than those contained herein. Notwithstanding the foregoing, Confidential Information may be disclosed if required by law, provided, however, that the receiving Party shall notify the disclosing Party of such requirement immediately in writing and shall cooperate reasonably with the disclosing Party in obtaining a protective or similar order. "Confidential Information" means any confidential information of a disclosing Party, such as product plans, sales prospects names, non-published financial information, and discounts/prices, whether disclosed in tangible form or orally if such information is marked or identified as confidential at the time of disclosure or the receiving Party reasonably should know is confidential. Confidential Information will not include information that: (i) is in or enters the public domain through no act or fault of the receiving Party; (ii) is known to and has been reduced to tangible form by the receiving Party at the time of disclosure; (iii) is independently developed by the receiving Party without use of or reference to the disclosing Party's Confidential Information; or (iv) is lawfully obtained from a third party who has the right to make such disclosure. Upon the earlier of the disclosing Party's written request or the expiration or termination of this Agreement, the receiving Party shall return or destroy the disclosing Party's Confidential Information and certify promptly in writing that it has done so. The foregoing obligations arising out of this Section 8 will continue perpetually and remain in force even after a termination of this Agreement in accordance with Section 11 hereof.
Limitation of Liability; Disclaimer of Warranties. EXCEPT FOR (i) A BREACH OF CONFIDENTIALITY OBLIGATIONS OR (ii) MISAPPROPRIATION OR INFRINGEMENT OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, ARISING FROM ANY PROVISION OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER TORT. NO WARRANTIES EXPRESS OR IMPLIED ARE PROVIDED TO RESELLER, AND HMH NEITHER ASSUMES NOR AUTHORIZES RESELLER OR ANY OTHER PERSON TO ASSUME FOR IT ANY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE.
Intellectual Property. HMH is the sole owner of and will retain ownership of all right, title and interest in and to (i) the Approved Product, (ii) HMH’s pre-existing intellectual property and proprietary materials, (iii) all intellectual property related thereto (including without limitation patent rights; rights associated with works of authorship including moral rights, copyrights and mask work rights; rights relating to the protection of trade secrets and confidential information; trademarks, service marks, trade dress and trade names; and any right analogous to those set forth in this Agreement and any other proprietary rights relating to intangible property), (iv) any improvements, revisions and derivative works relating to HMH’s intellectual property, regardless of who makes or contributes to the making of such improvement, revision or derivative works (provided such improvement, revision and derivative do not include any confidential information of Reseller), and (v) HMH’s Confidential Information (as defined in Section 5 hereof). Reseller acknowledges that all right, title and interest in and to the Approved Product are and remain the exclusive property of HMH.
Termination and Effect.
1. This Agreement shall terminate, immediately and without notice, if Reseller: (i) files in any court pursuant to any statute of the United States or any individual state, a petition in insolvency or for the appointment of a receiver or trustee of Reseller or of its assets; (ii) proposes a written agreement for the composition or extension of its debts; (iii) is served with an involuntary petition against it, filed in any insolvency proceeding, and such petition shall not be dismissed within sixty (60) days after the filing thereof; (iv) proposes or becomes a party to any dissolution or liquidation; or (v) makes an assignment for the benefit of creditors.
2. Any failure by Reseller to pay such invoices in a timely manner shall constitute a default hereunder and shall entitle HMH to terminate the Agreement.
3. In addition, HMH may terminate this Agreement at any time after the initial term, for any reason or no reason, upon ninety (90) days’ prior written notice to Reseller.
4. Upon termination or expiration of this Agreement, except as set forth below, all rights, licenses, and obligations of each Party hereunder will terminate.
5. Reseller may dispose of any existing inventory of Non-Digital Product for a period of One Hundred Twenty (120) days from the effective date of termination. HMH is not obligated to accept returns due to termination of this Agreement outside the scope of the provisions of 4(c).
6. The rights and obligations of the Parties under this agreement, and any owed but unpaid payment obligations, will remain in effect after any expiration or termination of this Agreement. In addition, the following provisions of this Agreement shall survive any termination or expiration: Sections 5, 7, 8, 9, 10, 11 and 12.
Miscellaneous.
1. This Agreement represents the complete understanding of the Parties with respect to the subject matter hereof, and supersedes any and all prior agreements, understandings or statements of the Parties on the subject.
2. All matters arising out of or relating to this Agreement will be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision or rule, and any dispute arising in connection herewith will be brought exclusively in the Commonwealth of Massachusetts and federal courts located therein. The parties hereby irrevocably waive any defense to such jurisdiction based on lack of personal jurisdiction or forum non conveniens or any similar defense.
3. Neither party will be liable for failure to fulfill its obligations hereunder, or for delays in performance, due to acts of God, and acts or omissions of civil or military authority (each, a “Force Majeure Event”), if the affected party notifies the other party and makes reasonable efforts to perform. Either party may terminate this Agreement on written notice to the other party if the Force Majeure Event continues more than thirty days.
4. Reseller hereby specifically represents and warrants that it will comply with all laws and regulations applicable to its performance under this Agreement, including, without limitation, those relating to data security and privacy (including without limitation the Children’s Online Privacy Protection Act and the Family Educational Rights and Privacy Act). Reseller will indemnify, defend and hold harmless HMH and its directors, officers, employees and agents against any claim, demand, cause of action, debt or liability, including reasonable legal fees based on or arising out of a claim alleging facts that would constitute a breach of the representations and warranties in this section.
5. The rights and interests of the Reseller under this Agreement shall not be assignable without the prior written consent of HMH. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
6. Reseller and HMH are independent contractors. Nothing contained in this Agreement will be construed to create an employment, agency, joint venture, or partnership between the parties. Reseller will determine the time, place, methods, details, and means of performing its obligations under this Agreement. Reseller shall ensure that its personnel are licensed as required under all applicable laws and regulations.
Definitions.

“Adult Education” means educational materials designed for use by adults striving to achieve high school equivalency, workforce, or college/career ready skills.

“Back List” means a list of HMH product in which HMH has deemed to be older versions of an HMH product or product no longer considered Front List.

“Consumables” means those miscellaneous Approved Products, authorized by HMH for sale by Reseller, which otherwise do not fall into another Approved Products category.

“Consumer” means end user of the products, such as teachers, in the Territory.

“Excluded Products” means any product in the Riverside, Heinemann, and Trade and Reference product catalogs; any services referenced in any HMH catalog; custom publishing and development services; private label products developed by HMH; and any other products which HMH, in its sole discretion, decides not to make available to Reseller under this Agreement.

“Front List” means a list of HMH product in which HMH has deemed the most current version of a product other than New Releases.

“Handwriting” means HMH product designed to instruct handwriting for communication and print awareness through a variety of letter formation and letter recognition methods.

“Homeschool” means parents who are teaching children at home in the Territory.

“Institutional” means public institutions operating in the Territory, such as schools and school systems, that will allocate products to teachers and students who will use them.

“Material Pricing Group” or “MPG” is HMH’s internal referenced code for defining our product categories that drives pricing structure and strategy for the reseller market.

“New Releases” means HMH product with a new copyright year and which has been available for purchase for less than one year.

“Pre-K-12” means pre-kindergarten through 12th grade.

“Private, Parochial and Charter Schools” means Pre-K-12 private, parochial and charter institutions of education operating in the Territory, such as schools and school systems that will allocate products to teachers and students who will use them.

“State Adoption” means a centralized process administered and implemented by state boards of education or state departments of education whereby a state or local government evaluates, selects and approves for purchase by its school districts instructional materials in accord with state academic standards.

“Supplemental” means products as determined by HMH designed to supplement core curriculum for specific purposes such as intervention and remediation.

“Territory” means the United States of America, its territories and possessions but excluding Puerto Rico.