PURCHASE ORDER

 

STANDARD TERMS AND CONDITIONS

 

All orders by McGraw-Hill Education (“Buyer”) are subject to the terms set forth in this purchase order (“Order”) and any attachments hereto.

If as of the date of this Order, a master or other agreement between Seller and Buyer is in effect (“Master Agreement”), this Order and shall be governed by and is subject to the terms of that Master Agreement, and in the event of any inconsistency between this Order and the Master Agreement, the terms of the Master Agreement shall supersede any inconsistent terms in this Order.  No modifications or changes to these terms and conditions will be binding upon Buyer unless made in writing, and signed by Buyer’s authorized representative. Notice is hereby given that any additional or different term proposed by Seller is objected to and hereby rejected.

APPLICABLE LAW

The agreement arising pursuant to this Order shall be governed by the laws of the State of New York without reference to its choice of law provisions.

GENERAL TERMS OF ORDER

This Order is subject to the following conditions: (1) Based upon the approval of the required samples, if applicable; and (2) the work ordered must be in final and acceptable form and that all corrections and improvements are satisfactorily made and delivered on time.

INFRINGEMENT

Seller will indemnify and hold harmless Buyer from and against any and all claims, demands and actions against Buyer, its subsidiaries and affiliates and their respective customers, for infringement or alleged infringement of any intellectual property, personal or other right of any third party by the Materials or services furnished under this order, or any part or use thereof. If Seller includes in the materials covered by this Order any content owned by third parties, for which permission is required for use in, and/or publication of, the materials, Seller will obtain all such permissions at Seller’s expense.

PRICE

If the price is not stated on this Order or included in the Master Agreement or corresponding Statement of Work, Seller agrees to invoice at lowest prevailing market price.

QUALITY

If applicable, Seller shall obtain from Buyer written approval of all off-specifications work. Materials are subject to Buyer’s inspection and approval within a reasonable time after delivery. If specifications are not met, or Seller is otherwise unable to produce the deliverables and/or perform the services outlined in this Order, according to specifications and to Buyer’s satisfaction, in addition to other remedies available to Buyer, and at Buyer’s option, material may be returned at Seller’s expense and risk for all damages incidental to the rejection, or Buyer may accept the work and reduce the entire payment due under this Order subject to negotiation. Payment shall not constitute an acceptance of the material nor impair Buyer’s right to inspect or any of its remedies.

QUANTITIES

The specific quantity ordered must be delivered in full and not be changed without Buyer’s written consent.

TERMINATION

In addition to any other rights available to Buyer, Buyer may terminate the Order, in whole or in part, for its convenience by notice to Seller at any time prior to shipment by Seller.

SHIPMENT AND IMPORTATION

Shipment or delivery of goods or items in acceptable form must be made within the time stated on this Order, failing which Buyer reserves the right to cancel all or any part of this Order, without obligation to Seller. If the products covered by this Order are imported from other countries, Seller will be responsible for all legal, administrative and regulatory requirements associated therewith and the payment of any applicable dues, taxes and fees.

TAXES

Seller agrees to pay any taxes imposed by law upon or on account of the material ordered or services provided hereunder unless otherwise agreed.

TRANSPORTATION

Routing – As indicated on the face of this Order, F.O.B.- Unless otherwise specified, ship collect, F.O.B. origin; Prepaid Transportation (when specified) – Charges must be supported by a paid freight bill or equivalent; Cartage, Premium Transportation, Insurance- No charge allowed unless authorized by Buyer; Consolidation-Unless otherwise instructed, consolidate all daily shipments to one destination on one bill of lading.

COMPLIANCE WITH LAWS AND REGULATIONS

Seller agrees at all times to comply with all applicable Federal, State and local laws, rules and regulations. To the extent required by law, the terms of all applicable laws and regulations are incorporated into this Order, including the following, all of which have the same force and effect as if they were stated in their full text:

Equal Employment Opportunity – The provisions of Executive Order 11246 (as amended) on Equal Employment Opportunity and the Rules and Regulations thereto and incorporated by reference and Seller represents that he will comply, unless exempted.

Employment and Procurement programs – the following provisions are incorporated as they apply to performing work under government procurement contracts or otherwise apply to work or services performed under this Order: Utilization of Labor Surplus Area concerns (if in excess of $10,000) (FPR 1-1.806-3(a)); Labor Surplus Area Subcontracting Program (if in excess of $500,000)(FPR 1-1-805-3(b)); Affirmative Action for Handicapped Workers (if $2,500 or more) (41 CFR60-941.4); Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era (if $10,000 or more) (41.CFR 60-250.4); Utilization of Small Business Concerns Owned and Controlled by Socially and Economically Disadvantaged Individuals (if in excess of $10,000) (46 Fred. Reg. 31028; Utilization of Women-Owned Business Concerns (if in excess of $10,000) (46 Fed. Reg. 31033; Women-Owned Business Concerns Subcontracting Program (if in excess of $500,000) (46 Fed. Reg. 31033).

Notice of Employee Rights - McGraw-Hill Education is in compliance with Title 29 CFR 471, Appendix A, Subpart A.

 

WAGES AND HOURS

Seller warrants that in the performance of this Order Seller has complied with all of the provisions of the Federal Fair Labor Standards Act as amended and any other applicable comparable state or local laws and any applicable requirements under any laws relating to Workman’s Compensation and Disability Benefits Programs. If Seller does not have required Workmen’s Compensation or Employer’s Disability Insurance, Seller agrees to indemnify Buyer against all damages sustained by Buyer resulting from Seller’s failure to maintain such insurance.

SELLER LABOR ON PREMISES

If this Order requires the performance of labor on Buyer’s premises the Seller agrees to indemnify and protect Buyer against all liabilities, claims or demands for injuries or damages to person or property arising from the performance of this Order.

WARRANTY FOR MATERIALS

In addition to compliance with all specifications concerning this Order, Seller expressly warrants that the materials and articles covered by this Order shall be free from defects in material and/or workmanship, and shall be MERCHANTABLE. Such warranty shall survive delivery and acceptance.

INTELLECTUAL PROPERTY RIGHTS/WARRANTY

If this Order is for the creation of content for Buyer or any provision of services, Seller grants and assigns to Buyer all intellectual property rights to the work performed or content developed hereunder, unless otherwise specified. If applicable, any materials created hereunder by the Seller for the Buyer are work made for hire, unless otherwise specified, provided that if any of such work created for Buyer may not, by operation of law, be a work made for hire, Seller hereby assigns to Buyer all ownership rights, including, without limitation, copyright to such work unless otherwise expressly agreed in writing between Buyer and Seller.

If this Order is for the creation of content for Buyer, the Seller warrants that the materials delivered hereunder will contain no material from other copyrighted works without the written permission of the owner of such copyrighted material.  The Seller will obtain at Seller’s sole expense and bear all cost for such permission and deliver them in writing to Buyer on or before delivery of the materials.  The Seller warrants that the work does not and will not infringe upon any copyright, violate any proprietary rights, or contain any libelous, injurious or unlawful matter.  In the event of claim, demand or suit against the Buyer by reason of any violation of proprietary right or copyright, or by reason of any libelous, unlawful or otherwise injurious material, contained in the materials delivered under this Order, the Buyer may take any action it deems appropriate for the resolution of such dispute, and unless and until such claim, demand, or suit has been favorably settled or withdrawn, the Buyer may withhold any sums due the Seller under this Order.  

PAYMENT

Unless otherwise agreed in writing, the payment terms of this Order are net 60 days after the later of receipt of Seller’s valid invoice or receipt by Buyer of acceptable products, materials or services. All invoices against this Order need to be received by Buyer no later than thirty (30) days after the products, materials and/or services covered by this Order have been finalized or delivered. Failure to submit billing during this time period or failure to notify Buyer, in writing, about any overages, may reduce the amount paid by Buyer towards the materials and/or services covered by this Order. Buyer will be released from any obligation to pay Seller any amounts set forth in any invoices under this Order received by Buyer later than ninety (90) days after the materials and/or services covered by this Order have been finalized or delivered.

LIMITATION OF LIABILITY

To the extent permitted by local law, in no event will Buyer be liable for any lost revenues, lost profits, incidental, indirect, consequential, special or punitive damages.