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 HMH Company or its applicable subsidiaries or affiliates (collectively, "HMH") by any reseller (a “Reseller”) shall constitute an agreement to these Terms and Conditions set forth herein (the "Terms and Conditions") as well as the Principal Terms and Conditions. These Terms and Conditions together with the Principal Terms and Conditions shall be collectively referred to as the “Agreement”.

Any contrary or inconsistent terms to the Agreement 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 shall have the same meaning as defined in the Principal Terms and Conditions. Terms not defined where they initially appear in the Principal Terms and Conditions and/or these Terms and Conditions are defined in Section 14 hereunder.

1. Product Distribution

1. This Agreement is limited to the marketing, sale, and distribution of the Approved Product during the Term 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.
3. Reseller is hereby appointed, subject to the Limitations set forth in Section 7 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.
4. Reseller may not: (i) Appoint sub-distributors or sub-resellers of Approved Product; (ii) bid, offer or sell Approved Product into State Adoptions; (iii) modify any Approved Product in any way; (iv) copy any Approved Product except as otherwise explicitly permitted by HMH; or (v) advertise, offer, distribute, sell, deliver or otherwise market any Approved Product otherwise outside the Approved Market.

2. Term. The term of this Agreement commences as of Reseller’s acceptance as provided above and will expire on December 31 of the current year, 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 12.

3. Discounts. HMH may change catalog prices from time to time, and HMH will honor prior pricing during a grace period of 30 days after such change. 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).

4. Product Availability. HMH may at any time change, discontinue or cease taking or filling orders for any products, including without limitation, Approved Products, at its sole discretion provided Reseller is given thirty (30) days’ notice prior to the effective date of such change in availability.

5. 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 thirty (30) 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 may 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: (i) for every twenty-five (25) print elementary student editions of an Approved Product purchased by Reseller, HMH may 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; (ii) 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; (iii) for every twenty-five (25) digital elementary student edition licenses of an Approved Product purchased by Reseller, HMH will provide Reseller at no charge with one (1) corresponding digital teacher’s edition license to be distributed solely as a gratis product in connection with the corresponding digital student edition licenses in the Institutional market; and (iv) for every fifty (50) digital secondary student edition licenses of an Approved Product purchased by Reseller, HMH will provide Reseller at no charge with one (1) corresponding digital teacher’s edition license to be distributed solely as a gratis product in connection with the corresponding digital student edition licenses.
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.

6. 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.

7. 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.

8. 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.

9. 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 9 will continue perpetually and remain in force even after a termination of this Agreement in accordance with Section 12 hereof.

10. 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.

11. 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 9 hereof). Reseller acknowledges that all right, title and interest in and to the Approved Product are and remain the exclusive property of HMH.

12. 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, 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 5(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 6, 8, 9, 10, 11, 12 and 13, as well as any other provisions that survive by their nature.

13. 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.

14. Definitions. Please note that certain definitions below do not appear in all reseller terms and therefore may not be applicable to your specific terms.

1. “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.
2. “Connected Teaching Solutions” means products designated for sale under the HMH Connected Teaching Solutions label. Connected Teaching Solutions Products have iterative copyright release.
3. “Consumer” means end user of the products, such as teachers, in the Territory.
4. “Consumer Retail Bundles” means Consumer-specific product bundles.
5. “Core Subscription” – means the HMH program products and classroom materials offered by HMH, designated by HMH as “Core Subscriptions” from time to time. Core Subscription products may be updated or substituted on an ongoing basis in the discretion of HMH.
6. “Excluded Products” means any product in the Heinemann 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 now or from time to time in the future not to make available to Reseller under this Agreement.
7. “Front List” means a list of HMH product in which HMH has deemed the most current version of a product other than New Releases.
8. “Handwriting” means HMH product designed to instruct handwriting for communication and print awareness through a variety of letter formation and letter recognition methods.
9. “Hero Individual Titles” means individual leveled reader products under the title “Hero Academy”.
10. “Homeschool” means parents who are teaching children at home in the Territory.
11. “ICLE Publications” means specific programs and professional development publications under the ICLE imprint.
12. “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.
13. “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.
14. “New Releases” means HMH product with a new copyright year and which has been available for purchase for less than one year.
15. “Pre-K-12” means pre-kindergarten through 12th grade.
16. “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.
17. “Professional Development On-site and Webinar” means professional development services for HMH programs, including Getting started, On-site and webinar offerings.
18. “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.
19. “Supplemental” means products as determined by HMH designed to supplement core curriculum for specific purposes such as intervention and remediation.
20. “Territory” means the United States of America, its territories and possessions but excluding Puerto Rico.
21. “Wiley products” means products produced by Wiley Publishing and distributed by HMH in the K-12 market only. Resellers that sell this product are required to submit monthly sell through data.