AGREEMENT TO PURCHASE SUBSCRIPTIONS AND SERVICES
Subject to the terms and conditions of this Gender Intelligence for Life Agreement to Purchase Subscriptions and Services (collectively, with all Product Orders (as defined below) and other terms referenced herein, the "Agreement"), Pearson Education, Inc. ("Pearson") agrees to provide to the entity identified as the Customer on the Product Order ("Customer") the Products and Services identified in the Product Order. "Product Order" means any order document, statement of work, purchase order, or similar document accepted by both parties and used to order Subscriptions or Services from Pearson and that references or incorporates these terms and conditions. Terms not defined herein have the meaning provided in the corresponding Product Order.
Please review the Agreement with care – it establishes important rights and obligations between Customer and Pearson. Additional fees, in excess of the fees set forth in the Product Order, may apply to additional Pearson subscriptions, products and services that are not expressly provided for in the Product Order.
1. SUBSCRIPTION AND RESTRICTIONS
Customer's rights to access the Gender Intelligence for Life Learning Experiences identified in any Product Order (each a "Learning Experience") is a time-limited online subscription to access each identified Learning Experience, in accordance with the following. Each Product Order contains a description of the scope of the Customer's rights to access the Learning Experiences and other restrictions applicable to Customer's use of the Learning Experiences ("Authorized Use").
Subscription. Customer is entitled to a limited-duration access period (a "Subscription"), subject to the terms of this Agreement, to access and use the Learning Experiences, solely during the term of the Subscription, solely in accordance with the Authorized Use.
Limitations and Restrictions. Customer shall use the Learning Experiences only for the Authorized Use, and only for the benefit of the Authorized Users specified in the Product Order. Customer shall not, and shall not allow any Authorized Users or third parties to, share or use the Learning Experiences for the benefit of any other third party.
To the extent the following are enforceable under applicable law, and in addition to any other restrictions stated in this Agreement, Customer shall not, and shall not permit any Authorized User or third party, to: (i) modify or create any derivative work of any part of the Learning Experiences, (ii) rent, lease, or loan the Learning Experiences; (iii) decompile or reverse engineer the Learning Experiences or otherwise attempt to gain access to the source code of the Learning Experiences; or (iv) sell, license, sublicense, publish, display, distribute, assign or otherwise transfer to a third party the Learning Experiences, any copy thereof, or any rights thereto, in whole or in part. To the extent any of the foregoing restrictions are prohibited by applicable law, Customer shall notify Pearson in writing in advance of any intention of Customer to undertake any of the foregoing.
Customer shall not, and shall not allow any others to: (a) use the Learning Experiences to transmit, display or store infringing, indecent, obscene, threatening, libelous, slanderous, defamatory or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (b) interfere with or disrupt the integrity or performance of the Learning Experiences; or (c) attempt to gain unauthorized access to the Learning Experiences or its related systems or networks.
Pearson reserves the right to suspend or terminate access to and use of the Learning Experiences if Pearson believes that Customer or any Authorized User has undertaken, or participated in, any of the activities prohibited in this Agreement or the EULA, violated the terms of this Agreement or the EULA, or whose actions have, or are likely to, otherwise cause any harm to or claim against Pearson, the Learning Experiences or any third party. Pearson reserves the right (but does not undertake an obligation) at its sole discretion to monitor the activities of Authorized Users of the Learning Experiences.
All rights not specifically granted herein are reserved by Pearson.
All services provided to Customer or Authorized Users pursuant to this Agreement and any Product Order, including, as applicable, Maintenance Services, Consulting Services and Hosting Services (collectively, "Services") are subject to the fees and other charges identified in the Product Order for the Services (the "Services Fees"). The Services Fees do not include Pearson's travel-related expenses related to the performance of any Services, for which Pearson shall invoice Customer separately. Customer agrees to reimburse Pearson for all travel and out-of-pocket expenses incurred by Pearson with respect to any on-site Services.
Pearson shall not be responsible for any delay in, or inability to perform, any Services that results from a delay or failure in performance by Customer, including any failure of Customer to make management and technical personnel reasonably available to Pearson. Customer and its Authorized Users shall, at all times, comply with all applicable local, state/provincial, federal/national, and international laws in using the Learning Experiences and Services.
A. Maintenance Services
Maintenance Services. Unless otherwise set forth in the Product Order, maintenance and support services ("Maintenance Services") are included with a Subscription. Subject to the payment of the applicable fees and this Agreement, Pearson shall provide Maintenance Services for the Learning Experiences in accordance with Pearson's published specifications for such Services (the "Maintenance Terms"). Pearson reserves the right to modify the specific scope and means of delivering Maintenance Services by changing the Maintenance Terms at its sole discretion, and Customer agrees that the terms applicable to the Maintenance Services at any point in time shall be the terms set forth in the Maintenance Terms at the time of delivery of such Maintenance Services. Pearson shall not be obligated to provide Maintenance Services if (a) Customer's hardware and application systems do not meet Pearson's then-current specifications for such Learning Experiences, (b) Customer is delinquent in any of its payment obligations under the Agreement, or (c) Customer has violated the terms of this Agreement or otherwise exceeded the Authorized Use.
B. Consulting Services
Consulting Services. Customer may engage Pearson to perform implementation, configuration, customization, training, or similar services ("Consulting Services") pursuant to a Statement of Work. "Statement of Work" means any statement of work form that is signed by both parties and sets forth the services, deliverables and pricing for the additional work ordered by Customer. Each Statement of Work will be subject to the Agreement.
C. Hosting Services
Hosting Services. Unless otherwise set forth in the Product Order, Hosting Services are included with a Subscription. Subject to this Agreement, for the term specified in the Product Order, Pearson shall host the Learning Experiences via a third party hosting provider (the "Hosting Services"). Hosting Services include performing related systems, database, and administration functions within the hosted environment in accordance with Pearson's standard policies (the "Hosting Terms"). Pearson reserves the right to modify the specific scope and means of delivering Hosting Services by changing the Hosting Terms at its sole discretion, and Customer agrees that the terms applicable to the Hosting Services at any point in time shall be the terms set forth in the Hosting Terms at the time of delivery of such Hosting Services. Customer shall not have direct access to the environment or infrastructure used to provide the Hosting Services to Customer, at any time during or after the term of the Agreement.
Customer Information. Customer may provide Pearson, either directly or indirectly via Customer agents and Authorized Users, with information, materials and data that enable Pearson to enroll Authorized Users into the Learning Experiences (collectively "Customer Information"). Customer grants to Pearson a limited, nonexclusive license during the term of the Agreement to copy, transmit, use and prepare derivative works of the Customer Information to the extent necessary for Pearson and its third party partners to perform its and their obligations under the Agreement. This license shall not be construed to permit Pearson to use Customer Information for any other purpose, except as expressly permitted by the Agreement. Notwithstanding the foregoing, Pearson may use anonymous data related to student performance and the activity of Authorized Users for product improvement, efficacy reports and general research and analytical purposes (which Pearson may share with other third parties). Customer is responsible for securing all necessary prior consents (if any are required) for the collection, storage, and use of Customer Information within the Learning Experiences or Services; and the creation of, and compliance with, applicable policies regarding the access and use by Customer's Authorized Users of personally identifiable information stored on or processed by the Learning Experiences or Services.
3. FEES AND PAYMENTS
Due Date and Payment. Customer shall pay all invoices issued by Pearson within thirty days of the date of the invoice. Unless otherwise specified in a Product Order, all fees are quoted in U.S. Dollars and all payments shall be made in U.S. Dollars. Customer shall remit payment per the instructions on the invoice or as instructed by Pearson. Customer shall not make deductions of any kind from any payments due to Pearson. Pearson may accept any payment without prejudice to Pearson's right to recover any remaining balance or to pursue any other remedy provided in this Agreement, or by applicable law. If Customer fails to pay an invoice within sixty days after the date of the invoice, Pearson may, after providing seven days written notice to Customer, suspend access to or use of the Learning Experiences and Services. Pearson reserves the right at any time to condition access to the Learning Experiences or provision of the Services on reasonable assurance of payment. Customer shall reimburse Pearson for all reasonable collection expenses, including reasonable attorneys' fees and court costs, for delinquent amounts.
Taxes. The fees identified in an Product Order do not include any applicable sales, use, excise, VAT, or other taxes or duties levied or based on this Agreement or the Learning Experiences or Services provided by Pearson, and Customer shall pay (or reimburse Pearson for) all such taxes, exclusive of income taxes or taxes based on Pearson's income. If Customer is a tax-exempt entity and provides Pearson with a valid certificate evidencing such tax-exempt status, then Pearson shall not assess Customer for taxes not payable by tax-exempt entities.
Fees. Fees for the Learning Experiences and Services are as specified in the applicable Product Order, and apply for the duration specified in the Product Order. Thereafter, unless otherwise specified, pricing for all Learning Experiences and Services for any renewal Subscription or Service shall be subject to Pearson's then-current pricing, and Pearson shall provide Customer with updated pricing at least sixty days' prior to the beginning of the affected renewal term.
Authorized Use; Additional Fees. If at any time Customer's use of the Learning Experiences is in excess of the Authorized Use, then Customer shall immediately notify Pearson and promptly purchase additional rights from Pearson for the expanded use at Pearson's then-standard pricing.
Pearson Ownership. Except for the express limited rights granted by this Agreement, Pearson and its licensors retain all right, title and interest in the Learning Experiences and Services (including all work product and any other work of authorship or invention conceived of, developed, or created by Pearson, and including all updates, versions and enhancements, reproductions and corrections of the Learning Experiences, and all related patent rights, copyrights, trade secrets, trademarks, service marks, related goodwill and other intellectual property. The rights granted under the Agreement does not provide Customer or Authorized Users with title to or ownership of the Learning Experiences or any Services, but only a right of limited use under the terms and conditions of the Agreement. There are no implied licenses granted by this Agreement.
Customer Ownership. As between Pearson and Customer, all Customer Information provided to Pearson directly or indirectly is the exclusive and proprietary property of Customer. Pearson acquires no rights to use, sell, lease, assign or sublicense such Customer Information except as provided herein or as needed to support Customer's use of the Learning Experiences and Services.
5. TERM AND TERMINATION
Term. The term of the Agreement is as set forth in the Product Order, or if not otherwise addressed, for a period of one year ("Term"). If the Product Order establishes a fixed term for the Agreement (or a limited number of Renewal Terms), then the parties must mutually agree in writing to renew the Agreement beyond the fixed term (or maximum number of Renewal Terms) established by the Product Order.
Termination for Breach. Either party may terminate this Agreement if the other is in material breach of any provision of the Agreement, but only after written notice of default and opportunity to cure has been given to the breaching party. Except with respect to a violation of the intellectual property, privacy, or other rights of a party (in which case termination may be immediate), the notice of default must provide for an opportunity to cure of at least thirty days following receipt of notice. If the party receiving the notice has not cured the breach before the cure date stated in the notice, then the party giving notice may terminate the Agreement by giving the breaching party written notice of termination, which shall be effective upon delivery.
Effect of Termination or Expiration. Upon termination or expiration of the Agreement: (a) all Services and rights to the Learning Experiences granted hereunder shall immediately terminate, (b) any and all fees set forth herein shall become immediately due and payable, and (c) Customer shall remove all copies of the Learning Experiences from Customer's systems (and, upon Pearson's request, provide certification thereof). Notwithstanding the termination of the Agreement for any reason, the rights and duties of the parties under sections and 3, 4, 5, 6, 7, 8 (with respect to "Limitations"), and 9-11 and all provisions pertaining to ownership of intellectual property shall survive such termination and remain in full force and effect.
6. PEARSON WARRANTIES AND REPRESENTATIONS
Services. Pearson warrants that the Services shall be performed with reasonable care and skill. Customer's exclusive remedy and Pearson's sole obligation for any breach by Pearson of this warranty shall be for Pearson, at Pearson's option, to either (a) re-perform any non-conforming Services at no additional charge, or (b) provide a full refund of the fee for such non-conforming Services. Any claim for a breach of this warranty must be brought within 30 days of performance of the applicable Services.
LIMITATIONS. SUBJECT TO THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW: (A) PEARSON MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY LEARNING EXPERIENCES OR SERVICES PROVIDED BY PEARSON; (B) PEARSON DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS, WHETHER STATUTORY, ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR OTHERWISE, INCLUDING WITHOUT LIMITATION TERMS AS TO QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT; (C) PEARSON MAKES NO WARRANTY THAT THE LEARNING EXPERIENCES, SERVICES, OR ANY USE THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE; AND (D) PEARSON DISCLAIMS ANY REPRESENTATION OR WARRANTY CONCERNING ANY PRESENT OR FUTURE USE, INTEGRATION OR COMPATIBILITY WITH ANY OTHER PRODUCTS OR SERVICES.
By Pearson. Pearson shall, at its own expense, defend any action brought by an unaffiliated third party against Customer, and Pearson shall pay any final judgment awarded, or settlements entered into by Pearson, in such actions, solely to the extent that such action is based upon a claim that the Learning Experiences (excluding any third party Learning Experiences or systems) infringes a third party's copyrights or misappropriates a third party's trade secrets. If the Learning Experiences becomes, or in Pearson's opinion is likely to become, the subject of a claim subject to the foregoing, Pearson may, at its option and expense, either: (a) procure the right to continue using the Learning Experiences; (b) replace or modify the Learning Experiences so that it becomes non-infringing; or (c) terminate the Agreement upon written notice to Customer (subject to a prorated refund of any unused Subscription-based fees). Notwithstanding the foregoing, Pearson shall have no obligation under this section or otherwise with respect to any infringement claim based upon: (i) any use of the Learning Experiences not in accordance with the Agreement; (ii) any use of the Learning Experiences in combination with products, equipment, Learning Experiences, content or data not supplied by Pearson; or (iii) any use of any release of Learning Experiences other than the most current release made available to Customer. THIS SECTION STATES PEARSON'S ENTIRE LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS OR ACTIONS.
By Customer. Except to the extent otherwise limited or prohibited by applicable law, and excluding any claims subject to the preceding paragraph, Customer shall, at its own expense, defend any action brought by a third party against Pearson, and shall indemnify and hold Pearson harmless from and against any final judgment awarded, or settlement entered into, in any such action, to the extent of (a) any action or inaction of Customer or any Authorized User related to the Learning Experiences, Services, Customer Information, or this Agreement, (b) claims made against Pearson or any of its affiliates by Authorized Users related to use of the Learning Experiences or Services, (c) Customer's (or any Authorized User's) failure to comply with any applicable laws or regulations, or (d) Customer Information that is alleged to infringe, misappropriate, or otherwise violate any third party's intellectual property or privacy rights, or violate any laws.
Conditions. The obligations in this section are expressly conditioned upon the party seeking defense: (a) giving the party offering such defense (the "Defending Party") prompt notice of any such action; (b) giving the Defending Party sole control of the defense and any related settlement negotiations; and (c) providing reasonable cooperation and assistance to the Defending Party in the defense of such action.
8. LIMITATIONS ON LIABILITY
EXCEPT FOR EACH PARTY'S INDEMNITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, SUFFERED BY THE OTHER PARTY, INCLUDING WITHOUT LIMITATION LOST PROFITS OR GOODWILL, BUSINESS INTERRUPTIONS OR OTHER ECONOMIC LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY USE OF OR FAILURE TO BE ABLE TO USE THE LEARNING EXPERIENCES OR SERVICES. DURING THE FIRST TWELVE MONTHS FOLLOWING THE EFFECTIVE DATE OF THIS AGREEMENT, PEARSON'S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL IN NO EVENT EXCEED THE TOTAL FEES PAID TO PEARSON BY CUSTOMER DURING THAT FIRST TWELVE MONTHS. THEREAFTER, PEARSON'S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT DURING EACH SUBSEQUENT TWELVE MONTH PERIOD (MEASURED FROM ANNIVERSARY OF THE EFFECTIVE DATE) WILL IN NO EVENT EXCEED THE TOTAL FEES PAID BY CUSTOMER TO PEARSON PURSUANT TO THIS AGREEMENT DURING THE IMMEDIATELY PRECEDING TWELVE MONTH PERIOD (MEASURED FROM THE ANNIVERSARY OF THE EFFECTIVE DATE). THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHERWISE, EVEN IF THE PARTY HAS BEEN WARNED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE, AND EVEN IF ANY OF THE LIMITED REMEDIES IN THIS AGREEMENT FAILS OF THEIR ESSENTIAL PURPOSE.
NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY THAT MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS THAT ARE LAWFUL IN CUSTOMER'S JURISDICTION APPLY TO CUSTOMER AND IN SUCH INSTANCES PEARSON'S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED.
No action, regardless of form, arising under the Agreement may be brought by either party more than one year after the facts supporting the cause of action become known, or reasonably should have become known, to the claimant, except that an action for non-payment may be brought without any limitation on time.
Confidential Information. "Confidential Information" means all information obtained by a party ("Recipient") from or on behalf of the other party ("Discloser"), including information about existing or contemplated products, services, operations, customers, prospects, marketing plans, technology, ideas, know-how, computer Learning Experiences, databases and data, pricing, financial information, sales processes, techniques, improvements, inventions, new developments, research and development, methods and procedures, business and product development plans, studies and reports, markets, and information concerning Discloser's actual or anticipated business. Confidential Information also includes: (a) information regardless of the form or medium in which such information is disclosed, whether written, oral, observed, recorded, or contained on electronic or mechanical media, or otherwise; and (b) information of Discloser's Affiliates (as defined below). Information is not Confidential Information to the extent Recipient can establish by legally sufficient evidence that such information: (i) is or becomes generally publicly known without violation of any obligation of confidentiality by Recipient; (ii) was, prior to receipt from Discloser, rightfully known by Recipient without any obligation to maintain the confidentiality of such information; (iii) is rightfully obtained by Recipient in good faith from a third party having a right to disclose such information without violating or imposing an obligation of confidentiality; or (iv) is independently developed by Recipient without any use of or reference to the Confidential Information of Discloser.
Confidentiality. Recipient shall not, directly or indirectly, disseminate or disclose, and shall prevent the dissemination and disclosure of, the Confidential Information to any person or entity for any purpose or at any time, provided that Recipient may disclose the Confidential Information to the employees, agents, contractors, and representatives of Recipient who (a) have a need to know such Confidential Information for purposes of the business or contemplated business between the parties; and (b) are bound by obligations of confidentiality at least as protective of Discloser's Confidential Information as the terms of this Agreement. Recipient shall use the same standard of care to avoid disclosure of any Confidential Information as Recipient uses with respect to Recipient's own confidential or proprietary information of a similar nature, provided that Recipient shall at all times employ at least reasonable efforts to protect Discloser's Confidential Information. Notwithstanding the foregoing, Pearson shall not be in violation of any obligation of confidentiality with respect to any Customer Information that is disclosed to Authorized Users or otherwise in connection with Customer's use of the Learning Experiences or any Services.
Return of Confidential Information. Upon the earlier of the termination of this Agreement or the request of Discloser, Recipient shall (a) at Discloser's direction, either delete, destroy, or return to Discloser all Confidential Information and any copies and extracts of such Confidential Information; and (b) promptly following Discloser's request, provide written certification to Discloser of such actions. Recipient shall not retain any copies of such Confidential Information or extracts thereof, except that Recipient may (but is not required to) keep copies of the Confidential Information solely for archival purposes in accordance with Recipient's reasonable record-keeping procedures, provided that Recipient (i) shall at all times treat such retained copies as Confidential Information pursuant to this Agreement, subject only to the exceptions and exclusions stated in this Section; and (ii) shall not use or access such Confidential Information for any reason other than for such archival purposes, in connection with any claims or defenses of claims arising in connection with this Agreement, or as required by law.
10. DISPUTE RESOLUTION AND GOVERNING LAW
The parties shall address any controversy or claim arising out of or relating to this Agreement (a "Controversy") as set forth in this section:
If the Pearson entity identified in a Product Order is a U.S.-based company, exclusive jurisdiction and venue for any action, suit or proceeding concerning this Agreement shall be in the federal or state courts located in the city and county of New York, New York. Each party submits to exclusive personal jurisdiction in the state of New York for any such action, suit, or proceeding; and notwithstanding the place of execution or performance, this Agreement shall be governed by and construed under and in accordance with the laws of the state of New York, U.S., irrespective of any laws regarding choice or conflict of laws that direct the Learning Experience of the laws of another jurisdiction.
Chinese-Based. If either party is a Chinese entity, then the laws of China govern this Agreement, irrespective of any laws regarding choice or conflict of laws that direct the Learning Experience of the laws of another jurisdiction. The Controversy shall be submitted to the China International Economic and Trade Arbitration Commission in Shanghai ("CIETAC") for final resolution by arbitration in accordance with the rules and procedures of CIETAC. The CIETAC tribunal shall consist of three arbitrators. Submission of evidential documents may be in copies without the need of notarization unless specifically ordered by the CIETAC tribunal. Any interim decisions or orders by the CIETAC tribunal shall be binding and sanctions may be given on failures of any party in implementing such interim decision or order.
European-Based. If the Pearson entity listed in the Product Order is a European entity, then the laws of England and Wales govern this Agreement, irrespective of any laws regarding choice or conflict of laws that direct the Learning Experience of the laws of another jurisdiction. Other than as necessary to enforce any final judgment award or determination, any Controversy shall be brought only in the courts of England and Wales. In any such action, both parties submit to the exclusive jurisdiction of the courts of England and Wales and waive any objections to the venue of such courts.
Each party hereby irrevocably waives any objection that such party may have to the exclusive venue and jurisdiction of the authorities identified in this section and waives any claim that any legal proceeding brought in accordance with this section has been brought in an inconvenient forum or that the venue of that proceeding is improper.
Any notice, demand, request or delivery required or permitted to be given by a party pursuant to this Agreement shall be in writing and in each case addressed to the recipient at such party's address and contact name as set forth in the Product Order (unless subsequently modified by the recipient pursuant to written notice to the other party). Notices shall be effective upon receipt and shall be deemed to be received as follows: (a) when delivered personally, (b) if delivered by nationally recognized overnight courier, effective the business day following the date of shipment, (c) upon actual receipt.
In addition to the above, any notice to Pearson shall include a copy sent to:
Pearson Education, Inc.
200 Old Tappan Road
Old Tappan, NJ 07675
Attn: Associate General Counsel, North America
The parties are considered independent contractors to each other for purposes of this Agreement, and nothing in this Agreement (i) creates or implies a general partnership, limited partnership, or joint venture between Customer and Pearson, or (ii) creates any duties or obligations between Customer and Pearson except as expressly set forth herein. This Agreement sets forth the entire understanding of the parties with respect to the subject matter covered by this Agreement and supersedes any and all prior understandings, representations, proposals, communications and agreements, whether written or oral, between the parties with respect to such subject matter. Pearson shall not be considered to be in default as a result of its delay or failure to perform its obligations under this Agreement when such delay or failure arises out of causes beyond its reasonable control. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. The parties intend that this Agreement and all its related documents be drafted in English.
Customer shall not assign or otherwise transfer this Agreement, or any rights or obligations under this Agreement, without the prior written consent of Pearson, and any such attempted assignment or transfer without such consent shall be null and void. If any provision of this Agreement shall be invalid or unenforceable in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of this Agreement shall not be in any way impaired. No waiver of any provision, satisfaction of a condition or nonperformance of an obligation under this Agreement shall be effective unless it is in writing and signed by the party granting the waiver. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. The captions and headings in this Agreement are inserted only as a matter of convenience and for reference, and in no way define the scope or content of this Agreement or the construction of any provision hereof or of any document or instrument referred to herein. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Product Orders may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Execution and delivery of any Product Order may be evidenced by facsimile or PDF transmission.
As a matter of convenience, Customer may use its standard purchase order form for any orders for Learning Experiences or Services; however, all purchase orders must reference this Agreement and are deemed subject to the terms of the Agreement. Except with respect to any specific order details (e.g., price, quantity, etc.), the terms and conditions of this Agreement prevail over any terms and conditions of any such purchase orders, acknowledgment forms, or other form instruments exchanged by the parties, and no additional, contradictory, modified, or deleted terms established by such instruments are intended to have any effect on the terms of the Agreement, even if such instrument is accepted by the other party. Any conflict or inconsistency between an Product Order that specifically references the provisions of the terms and Conditions or any other documents referenced in the terms and conditions of this Agreement is controlled by the terms of the Product Order with respect to the specific subject matter of the Product Order; any conflict between the terms and conditions of this Agreement and any documents or terms referenced herein is controlled by such referenced documents or terms with respect to the specific subject matter of such document or terms.