CONTRACT.The ordering or acceptance of any Products (defined in section 24 below) purchased from New Readers Press (NRP) or its applicable subsidiaries or affiliates (collectively, “ProLiteracy”) 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 NRP in the applicable NRP catalog, NRP Price 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 NRP 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 NRP.
BILLING AND PAYMENT.All amounts owing from Purchaser to NRP with respect to any Products purchased from NRP are due within thirty (30) days of the date set forth on NRP’s invoice. Accounts must be current before subsequent shipments will be made. Unless a set-off or deduction is specifically provided for by NRP in a valid credit memo, Purchaser may not charge back to NRP 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. NRP shall process any credit to Purchaser’s account in accordance with NRP’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 NRP does not receive payment from Purchaser’s credit card issuer or its agent, Purchaser agrees to pay all amounts due upon demand by NRP or its agents. Unless Purchaser notifies NRP of any discrepancies within sixty (60) days after they first appear on Purchaser’s credit card statement or NRP 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. NRP’s shipping point (whether to a NRP 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 9.5%. Minimum charge $7.00. 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 NRP. 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. NRP’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 NRP, with authorization from NRP and at NRP’s expense. Purchaser assumes, and shall bear and pay, all risks and expenses of returning any such Products without NRP’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, NRP shall ship the items or credit Purchaser’s account for the shortfall. For damaged Products, NRP 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 twelve (12) months after the invoice date, in accordance with NRP’s standard practices and procedures and return policy provided above (refer to return policy under “how to order”) with pre-approval from NRP 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, NRP 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 NRP 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 NRP Products will be delivered. NRP 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 NRP against all losses, penalties, interest, and expense (including reasonable attorneys’ fees) arising out of any claims relating to such liability for taxes.
NO RESPONSIBILITY TO SELL MISPRICED MERCHANDISE.NRP does its best to describe every product offered as accurately as possible. However, NRP 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, NRP shall have the right to refuse or cancel any orders in its sole discretion. If NRP charged Purchaser’s credit card prior to cancellation, NRP will issue a credit to Purchaser’s credit card account in the amount of the charge.
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.
NRP’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 NRP or its licensors and is protected by copyright and other intellectual property rights.
TERMS APPLICABLE TO DIGITAL PRODUCTS.
Any subscription to software under these Terms is for the time period or term listed in the applicable NRP Cost Proposal or NRP 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 digital product subscribed to under these Terms is to be hosted by or through NRP. 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 NRP Cost Proposal or NRP Quotation and order form, or (5) sub-license the Digital Products except as permitted by NRP.
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 purchase order authorization and guarantee of payment.
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, NRP 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 NRP 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.NRP 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 NRP 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 NRP, 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 60 days of the date of the invoice. Any request for proof of delivery must be made within 60 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 NRP, 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 NRP EXPRESSLY EXCLUDES THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. PURCHASER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS NRP 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. NRP WILL HAVE THE RIGHT TO CONTROL THE DEFENSE AND SETTLEMENT OF ANY CLAIMS SUBJECT TO INDEMNIFICATION HEREIN. NRP 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, NRP’S FAILURE OR ALLEGED FAILURE TO FILL ORDERS BY PURCHASER IN WHOLE OR IN PART. NRP DOES NOT GUARANTEE THAT ANY DIGITAL PRODUCTS WILL BE DELIVERED ERROR-FREE OR UNINTERRUPTED. NRP 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. NRP 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 NRP 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 NRPS 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 STATE OF NEW YORK , IF THE JURISDICTIONAL PREREQUISITES EXIST AT THE TIME, THE UNITED STATES DISTRICT COURT FOR BEW YORK 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 STATE OF NEW YORK, WITHOUT REFERENCE TO ITS PRINCIPLES OF CONFLICTS OF LAWS, EXCEPT THAT FOR GOVERNMENTAL CUSTOMERS THESE TERMS SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE GOVERNMENT AGENCY PURCHASER IS LOCATED.
EXPORT. Export laws and regulations of the United States apply to the Digital Products. Purchaser agrees that such 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 NRP, and Purchaser agrees to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations).
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 NRP. 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.