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.
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.
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.
Purchaser acknowledges that Digital Products may include security technology to ensure that they may only be used in accordance with the applicable license rights.
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.
Purchaser will own any tangible media (e.g., CD, DVD, tape, etc.) on which Digital Product(s) are supplied.
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.