Purchase Order General Terms and Conditions

Last Updated: July 1, 2016

1. DEFINITIONS. As used herein, "PO" shall mean the purchase order submitted by CE to Seller; "Agreement" shall mean the PO and all of its attachments and exhibits, including these General Terms and Conditions; "Goods " shall mean any products, materials, machinery, equipment, article, item, or other goods, and "Services" shall mean maintenance, deliverables, construction or other services or work provided for in this Agreement (collectively, "Goods and Services"); "CONNECTIONS EDUCATION" or "CE" shall mean Connections Education LLC, a Delaware limited liability company with its principal offices at 1001 Fleet Street, 5th Floor, Baltimore, Maryland 21202 or a division thereof; "Seller" shall mean the person, proprietor, partnership, limited liability company, firm, corporation or other entity to which this Agreement is issued; and "Affiliate(s)" shall mean any entity controlling, controlled by or under common control with another entity. For the purposes of this definition, "control" means the possession, directly or indirectly, of the power to direct the management and policies of an entity whether through the ownership of voting securities, contract or otherwise.

2. AGREEMENT. When accepted by Seller, subject to Paragraph 17 below, this Agreement shall constitute the entire agreement between Seller and CE with reference to the Goods and Services. None of the general terms and conditions contained in this Agreement may be added to, modified, superseded or otherwise altered except by written instrument signed by an authorized representative of the party against which such changes are sought to be enforced, and each shipment received by CE from Seller shall be deemed to be made only upon the general terms and conditions contained in this Agreement, and may not be modified or superseded by any terms and conditions that may be contained in any acknowledgment, invoice or other form of Seller. Acceptance of any shipment or payment of any invoice by CE shall not be deemed to be an implied or explicit acceptance of any additional terms and conditions. CE may from time to time make changes, issue additional instructions, require additional Goods and Services, or cancel Goods and Services ordered hereunder. If any such change causes an increase or decrease in the cost of or the time required for the performance of this Agreement, an equitable adjustment shall be made in the price and/or delivery schedule, as applicable, and this Agreement shall be modified accordingly.

3. PROPRIETARY INFORMATION. Seller shall consider all information furnished by CE to be confidential and shall not disclose any such information to any other person or entity, or use such confidential information for any purpose other than performing this Agreement. Confidential information includes Personal Data (as defined in Paragraph 5), student records and other personal information related to students and/or their parents, reports, studies, plans, models, drawings, brochures, specifications, pricing, cost and sales data, or any other material or data of any type prepared by Seller for CE, all of which shall be and/or remain the property of CE. Seller shall not advertise or publish the fact that CE has contracted to purchase Goods and Services from Seller, nor disclose any information relating to this Agreement. No commercial, financial, or technical information disclosed in any manner or at any time by Seller to CE shall be deemed secret or confidential and Seller shall have no rights against CE with respect thereto except such rights as may exist under patent laws. Seller agrees that CE would be irreparably injured by a breach of this Agreement and that the CE shall be entitled to equitable relief, including injunctive relief and specific performance, in the event of any breach of the provisions of this Agreement. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement, but shall be in addition to all other remedies available at law or in equity.

4. EDUCATIONAL RECORDS. Seller understands that, by virtue of its performance under this Agreement, Seller may possess access to educational records and student personally identifiable information protected under certain State and Federal law including the Family Educational Rights and Privacy Act of 1974, as amended from time to time ("FERPA") where Seller acts in the capacity of a "School Official" with a legitimate educational interest. Seller acknowledges that the unauthorized disclosure of any educational records and student personally identifiable information to any unauthorized person could subject Seller to criminal and civil penalties imposed by law. Seller further acknowledges that such willful or unauthorized disclosure also violates CE’s policy and could result in immediate termination of this Agreement.

(a) Seller agrees to comply with CE's Personal Data Protection Requirements, the most recent copy of which is located at http://www.connectionsacademy.com/purchase-order-terms/personal-data-protection.aspx.

(a) Seller certifies that the prices specified in this Agreement are as low as or lower than prices quoted by Seller to any other customer purchasing the same type and/or quantity of specified Goods and Services as CE. In the event that Seller's published prices for the Goods and Services covered by this Agreement are reduced below the prices specified in this Agreement, or if Seller provides or agrees to provide the type and/or quantity of Goods and Services covered by this Agreement to any other customer for a price lower than that specified in this Agreement, CE shall receive the benefits of such reduction and shall pay the price or prices specified decreased by the amount of such reduction.
(b) Unless otherwise specified in the applicable PO, Seller must deliver or complete to CE's satisfaction, the full quantity of Goods and Services specified herein before any payment will become due from CE. Unless otherwise specified in the applicable PO, CE shall, within forty-five (45) days after receipt of an uncontested invoice, pay for accepted Goods or Services.
(c) Seller shall not substitute Goods and Services or ship or deliver more than the quantity of Goods and Services ordered (together, "Unauthorized Shipment") without express written authority from CE. In case of any Unauthorized Shipment, CE may, in its sole discretion, reject such shipment or delivery, in whole or in part. Seller shall be solely responsible for all costs associated with shipping, return shipping, storage, or otherwise disposing of any Unauthorized Shipments. Seller specifically disclaims and waives any and all rights afforded it under the Maryland Uniform Commercial Code, as amended from time to time, related to Unauthorized Shipments.
(d) Seller shall show federal excise, state and or local taxes, if any, separately on invoice.

(a) Shipment of Goods shall be accompanied by a shipping notice or a packing slip describing the contents of each package or container showing weight, quantity and the PO number.
(b) Unless otherwise specified in the PO, any goods furnished shall be shipped F.O.B. CE's site. Risk of loss shall pass to CE upon acceptance as set out in Paragraph 8 of this Agreement.
(c) The method of shipment shall conform to CE's instructions in the PO. If, to comply with CE's required delivery date, it becomes necessary for Seller to ship by a more expensive means than specified herein, any increased transportation costs resulting therefrom shall be paid for by Seller unless the necessity for such rerouting or expedited handling has been caused solely by CE.
(d) Seller shall maintain all necessary insurance coverage, including comprehensive public liability and workmen's compensation insurance, acceptable to CE in its sole discretion. In addition, if CE shall have advanced funds hereunder, all goods in process shall be fully insured against loss, and CE and a school receiving products and services (if applicable) shall be named as an insured on any insurance policy.

8. QUALITY AND INSPECTION. The Goods supplied hereunder shall be of good quality, free from any faults and defects, in conformance with this Agreement, and shall at all times be subject to CE's inspection before acceptance by CE. Neither CE's inspection nor failure to inspect shall relieve Seller of any obligations, representations or warranties hereunder. If the Goods fail to conform to CE's specifications or are otherwise defective, CE shall promptly notify Seller of such nonconformity or defect after receipt of shipment or discovery of defect, whichever is later, and Seller shall promptly replace the defective Goods at Seller's sole expense. Any Services shall be performed in a professional manner utilizing reasonable care and skill in accordance with customary industry standards and any specified requirements of CE, in full compliance with all applicable laws and the terms and conditions of this Agreement. All Services not conforming to these requirements shall be considered defective and Seller shall promptly correct such defective Services at Seller's sole expense. No payment for or acceptance of Goods or Services by CE hereunder shall constitute a waiver of any of the foregoing nor shall anything herein contained be construed to exclude or limit any of Seller's warranties implied by law.

9. CONSUMER PRODUCT SAFETY. In manufacturing or sourcing Goods pursuant to this Agreement and delivering them to CE, Seller certifies that (a) Seller complies with and will continue to comply with the strictest applicable federal, state, local or other jurisdictions' mandatory and consensus safety standards (including the Consumer Product Safety Act, as amended, and the Consumer Product Safety Improvement Act of 2008), applicable to such goods, (b) the goods will be tested based on a reasonable testing program or by an accredited third-party safety testing laboratories as required by applicable law, (c) Seller has received verification and will certify, to the extent applicable that such goods have met such regulations and standards, before delivery to CE, and (d) Seller will maintain all records of safety testing for such goods and make such records available for CE's review on reasonable notice for as long as Seller supplies the goods to CE and four (4) years thereafter. Seller further certifies that the use of the goods delivered hereunder will not result in injury or damage to person or property, and the appropriate warnings, precautions or disclaimers, concerning any potentially hazardous or dangerous information or uses has been included in or on the goods in accordance with all applicable regulations and standards. Seller acknowledges that it has reviewed CE's corporate safety requirements and complies with each of them. To access CE's safety requirements, go to http://www.pearsonschool.com/productsafetyrequirements.

(a) If, upon Seller's receipt of this Agreement or at any time thereafter, Seller finds that it cannot ship the Goods or perform the Services, as applicable, within the time specified in this Agreement, Seller shall so notify CE immediately by the fastest means possible and shall inform CE of Seller's earliest possible shipping or performance date (the "Revised Shipping/Performance Date"). CE shall have the option upon ten (10) days' notice to Seller either (i) to cancel all or any part of this Agreement, or (ii) to accept this Agreement and Seller's Revised Shipping Date. Seller's failure to ship the Goods by the Revised Shipping Date shall entitle CE, at CE's sole option, to cancel all or any part of this Agreement upon notice to Seller without prejudice to any other rights CE may have in this Agreement or as a result of Seller's failure, or which may survive the termination of this Agreement.
(b) CE may delay delivery or acceptance of the Goods or Services occasioned by causes beyond its control. Seller shall hold such Goods at the direction of CE and shall deliver them when the cause affecting the delay has been removed. CE shall be responsible only for Seller's direct, actual, and verifiable additional costs in holding the Goods or delaying performance of the Services at CE's request. Causes beyond CE's control shall include, but are not limited to, government action or failure of the government to act where such action is required, strike or other labor trouble, fire, or severe weather.

11. COMPLIANCE WITH AUTHORITY. Seller agrees to comply with all state and federal laws, orders, rules, ordinances, codes and regulations of any governmental body applicable to it, including, but not limited to, FERPA and other applicable privacy laws, (together, "Applicable Laws"), and shall furnish CE such evidence of compliance as CE may require at any time. If Seller fails to comply with Applicable Laws, and as a result CE is held liable for such Seller's failure by the applicable regulatory body or a court of law, then at CE's sole discretion, Seller shall either (a) pay fines, damages and/or other costs incident thereto, or (b) reimburse CE for the payment of same.

12. INDEMNIFICATION. Seller shall indemnify and hold harmless CE and its Affiliates and their respective employees, officers, directors, authorized representatives and stockholders from all claims, costs, liabilities, judgments, expenses, damages or losses resulting from (a) any alleged infringement of any copyright, trademark, patent, trade secret or other intellectual property resulting from or arising in connection with the manufacture, sale, normal use or other normal disposition of any Goods or Services furnished hereunder, and/or (b) any injury to property or persons due to any act, omission or negligence of Seller, its agents, employees or contractors or arising out of Seller's performance of this Agreement, or arising out of any breach or alleged breach of this Agreement or any representation or warranty made by Seller, its agents, employees or contractors ((a) and (b) together, the "Claims"). Seller shall defend any such claims and pay all costs and expenses incidental thereto; but CE, at its option, shall have the right to participate in the defense of any such Claims without relieving Seller of any obligations hereunder. Attorneys' fees and costs incurred by CE prior to Seller assuming responsibility for defense of any such Claims shall be the sole responsibility of Seller.

13. LIMITATION ON CONNECTIONS EDUCATION'S LIABILITY. In no event shall CE be liable for anticipated profits or for incidental or consequential damages. CE's liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from this Agreement or from the performance or breach thereof shall in no case exceed the price allocable to the Goods or Services or unit thereof, which gives rise to the claim. Notwithstanding any obligation of CE to Seller, no present or future agent, officer, director, employee, stockholder, or partner of CE or anyone claiming under CE has or shall have any personal liability to Seller or to anyone claiming through or under Seller by reason of the execution or performance of this Agreement. Any action resulting from any breach on the part of CE as to the Goods or Services delivered must be commenced within one (1) year after the cause of action has accrued.

14. ASSIGNMENT. Neither this Agreement, in whole or in part, nor any claim against CE arising directly or indirectly out of, or in connection with, this Agreement, shall be assignable by Seller or by operation of law, nor shall Seller subcontract any obligations hereunder without the prior written consent of CE.

15. DEFAULT/TERMINATION. If Seller or its agents, employees or contractors breaches any provision hereof, CE shall have the right to terminate this Agreement upon written notice to Seller. CE's right to terminate this Agreement pursuant to this paragraph shall not affect or be a waiver of any other rights and remedies CE may have in this Agreement or which may survive the termination of this Agreement. CE's right to require performance of any obligation hereunder shall not be affected by any previous waiver, forbearance or course of dealing by CE. Time is of the essence for this Agreement. If any proceeding under bankruptcy or insolvency laws is brought by or against Seller, or a receiver for Seller is appointed or applied for, or an assignment for the benefit of creditors is made by Seller, CE shall have the right, in addition to any and all legal or equitable rights and remedies which it may have, to terminate this Agreement without any obligation to accept deliveries of Goods or Service after the date of termination or to make further payments, other than payment for those Goods delivered or Services rendered prior to termination which are satisfactory to CE.

16. SETOFF; SECURITY INTEREST; LIENS. All claims for money due or to become due from CE shall be subject to deduction or set off by CE by reason of any counterclaim arising out of this or any other transaction with Seller. To the extent of any funds advanced by CE, Seller hereby grants to CE a security interest in the Goods identified in this Agreement. Before final settlement of Seller's obligations and payment by CE, Seller shall satisfy CE of the payment and release of all debts, taxes, liens, claims, charges and obligations of Seller arising by operation of law, or otherwise, out of Seller's performance of this Agreement. CE may withhold, without interest, funds due Seller hereunder or otherwise sufficient to assure itself of the discharge of all such obligations, or to satisfy any provisions of law relating to any claims it may have against Seller arising from this Agreement.

17. PRIOR CONTRACTS. This Agreement shall supersede prior contracts between Seller and CE ("prior contracts") and if there is a conflict between any term or condition of such prior contract and any term or condition of this Agreement, the affected term or condition of this Agreement shall prevail. Notwithstanding the foregoing, in the event that there is a written agreement by both parties now in effect with respect to such Goods or Services the signed agreement shall apply to such Goods and Services.

(a) All Goods and Services shall: (1) meet CE's requirements and are fit for CE's purposes, as described in the applicable RFP, Seller proposal or requirements specification provided by CE (collectively, "Requirements"); (2) be free from defects and meet the performance standards specified in the Requirements; and (3) be merchantable and fit for the particular purpose intended. Seller shall observe, comply with and afford CE all applicable Uniform Commercial Code warranties contained in the Maryland General Laws, and Seller hereby acknowledges that CE does not waive any of such warranties. Seller shall transfer to CE and CE shall receive good title to all Goods and Services, free of security interests, liens, and claims of others, conditional sales agreements, infringements, and other similar impairments of title.
(b) If any Goods provided under this Agreement include equipment and/or software, such Goods shall not: (1) contain any hidden files; (2) replicate or activate itself without control of the person operating the computer or system on which it resides or via any control program or configuration performed by or authorized by CE; (3) alter, damage or erase any data or programs without control of the person operating the computer on which it resides; or (4) contain any key, node lock, time-out or other function, whether implemented by electronic, mechanical or other means, which restricts or may restrict use or access to any program or data developed or delivered under this Agreement, which is based on residency on a specific hardware configuration, frequency or duration of use, or other limiting criteria.
(c) Any courses provided by Seller to CE shall be compliant with CE's Third Party Code Standards.

19. OWNERSHIP OF DELIVERABLES. Seller agrees that CE shall own all rights, including intellectual property rights to any work product delivered in connection with Services provided under this Agreement ("Deliverables") and that the development of such Deliverables shall be deemed a "work made for hire". In the event necessary to perfect CE's interest in the Deliverables, Seller hereby assigns to CE, without further consideration, its entire right, title, and interest, free and clear of all liens and encumbrances, in and to all Deliverables, which shall be the sole property of CE. To the extent that Seller incorporates into any Deliverables created or developed for CE any material to which Seller possesses preexisting copyright, trade secret, patent, trademark or other proprietary rights, and such rights are not otherwise owned by or assigned to the CE herein, Seller hereby grants to CE a royalty-free, irrevocable, worldwide, transferable, nonexclusive, perpetual license to make, have made, sell, lease, import, use and disclose, reproduce, modify, transmit, prepare derivative works based on, distribute, perform and display (publicly or otherwise), such Deliverables with full right to authorize others to do so.

20. NOTICE. All notices given hereunder shall, unless otherwise specifically provided, be given in writing, by personal delivery, mail, electronic mail, or facsimile transmission at the respective addresses of Seller and CE set forth in this Agreement, unless either party at any time or times designates another address for itself by notifying the other party thereof by certified mail, in which case all notices to such party shall thereafter by given at its most recently so designated address. Notice given by mail shall be deemed given on the date of mailing thereof with postage prepaid. Notice given by electronic mail or facsimile transmission shall be deemed given upon receipt thereof by the recipient.

21. RESOLUTION OF DISPUTES. Any dispute arising out of or relating to this Agreement shall be resolved in accordance with the procedures specified in this subsection 21.
(a) Negotiation. The parties agree to negotiate in good faith all disputes arising out of or relating to the rights and obligations of the Parties, as set forth in this Agreement and/or established by applicable law. Any dispute not resolved within the normal course of business shall be referred to an executive of each Party, for discussions related to the nature of the dispute and an agreed course of action as to how to resolve the dispute or to other such persons within the parties as the Parties mutually deem appropriate.
(b) Mediation. In the event the parties are unable to fully resolve a dispute through negotiation, each Party agrees to submit all unresolved disputes to nonbinding mediation pursuant to processes and procedures mutually agreed upon by the Parties. In the event the Parties are unable to agree to such processes and procedures, the Parties agree to submit the matter to a third party agreed upon by the Parties, who will establish the processes and procedures by which such unresolved disputes will be mediated.
(c) Confidentiality. The Parties agree to treat all discussions and sharing of documents related to this section as confidential and not subject to disclosure to any third party to the extent permissible by law, except as consented to by the disclosing Party.
(d) Pursuit of Claims; Venue. In the event the Parties are unable to resolve such dispute through nonbinding mediation, to the extent such dispute remains unresolved, each Party, upon providing the other party ten (10) calendar days' notice of its intent to do so, may pursue their respective contractual, administrative, legal and/or equitable remedies available to them in order to fully resolve such dispute. Any action to enforce, arising out of, or relating in any way to, any of the provisions of this Agreement maybe brought and prosecuted in such court or courts located in the State of Maryland as is provided by law; and the parties consent to the jurisdiction of said courts located in the State of Maryland and to service of process by registered mail, return receipt requested, or by other manner provided by law.

22. SEVERABILITY; WAIVER. In case one or more of the provisions contained in this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. No delay or omission by either of the parties in exercising any right or power accruing upon the noncompliance or failure of performance by the other party of any of the provisions of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either party shall be in writing.

23. HEADINGS. Headings in this Agreement are for purposes of reference only and shall not limit or affect the meaning hereof.

24. SURVIVAL. The provisions of Paragraphs 1, 3, 4, 5, 6, 9, 12, 13, 15, 16, 18, 19, 20, 21, 22, 23 and 24 shall survive any termination of this Agreement.

25. ELECTRONIC SIGNATURES. This Agreement and related documents may be accepted in electronic form (e.g., by scanned copy of the signed document, an electronic or digital signature or other means of demonstrating assent) and each party's acceptance will be deemed binding on the parties. Each party acknowledges and agrees it will not contest the validity or enforceability of this Agreement and related documents, including under any applicable statute of frauds, because they were accepted and/or signed in electronic form. Computer maintained records of the Agreement and related documents when produced in hard copy form shall constitute business records and shall have the same validity as any other generally recognized business records.

26. INDEPENDENT CONTRACTOR. In performing their respective responsibilities under this Agreement, each party will be deemed to have the status of an independent contractor, and nothing in this Agreement will be deemed to place the parties in the relationship of employer-employee, principal-agent, partners or joint venturers. Unless otherwise indicated herein, each party will bear its own costs, expenses and liabilities arising under this Agreement. Each party will be responsible for paying its own payroll taxes, disability insurance payments, unemployment taxes and other similar taxes or charges hereunder. Except as otherwise provided in this Agreement, neither party shall have any authority to make or accept any offers or representations on behalf of the other party.