Last Updated: November 21, 2016
Welcome to the HMH Marketplace, an online destination for educators to discover, share and sell resources that enhance the teaching and learning experience, featuring applications created by edtech developers and start-ups, from digital learning tools to games and classroom resources, as well as original content made by teachers for teachers, such as lesson plans and instructional materials.
The following describes the terms on which Houghton Mifflin Harcourt (referred to as “HMH,” “we,” or “us”) offers you access to the HMH Marketplace. Your permission to use the HMH Marketplace is expressly conditioned upon your acceptance of this Agreement. This Agreement governs your access to and use of the HMH Marketplace, whether as a Seller, Buyer, participant or visitor, including the marketing, selling and buying of Products, and participation in online reviews and communications.
1. Opening an Account.
To participate in the HMH Marketplace, you must first open an account with HMH (the “Account”) by providing us with a name and email address and selecting a password. In order to establish an Account, you must:
- be 18 years of age or older and
- provide complete and accurate registration information.
2. Participant Representations and Warranties.
By registering for an Account, you represent, warrant and agree that:
- You are at least eighteen (18) years old and you are able to form a legally binding contract.
- If you are registering in the name of a business or other legal entity (i.e., not an individual), then you, as the individual entering into this Agreement on the entity’s behalf, have all necessary legal authority to bind that entity to this Agreement including, without limitation, to commit funds on behalf of that entity; and
- You have the full right, power, and authority to enter into and fully perform this Agreement.
We age-gate our “Create an Account” page, and include instructions on such page designed to notify users that an Account should only be established by an adult.
If we learn that an ineligible user has created an Account, we will either require confirmation of the above criteria, or deactivate the Account.
3. Code of Conduct.
As a condition of using the HMH Marketplace, you agree that you will not: (a) upload or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “affiliate links,” or any other form of solicitation; (b) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; (c) transmit any material that includes personal or identifying information about a person, such as first and last name together, password, phone number, address, credit card number, medical information, email address, social security number, medical information, contact information, financial information or any other information that may be used to identify, track, contact, or impersonate such (collectively, “Personal Information”), without that person’s explicit consent; (d) submit any of your own Personal Information via the Community feature of the HMH Marketplace; (e) advertise or promote any illegal products or services or the sale of any items the sale of which is prohibited or restricted by applicable law (including, without limitation, gambling, weapons, tobacco or alcohol), or promote any infringing, illegal, or other similarly inappropriate activity; (f) advertise or promote a third party product or service, or a politician, public servant, or law; (g) decompile, disassemble or otherwise reverse engineer, or obtain access to any materials or information through “hacking,” “data harvesting,” or through other means we have not intentionally made available to you through the HMH Marketplace or any HMH Materials; (h) state or suggest that HMH endorses you or your Product, your Participant Submission, or any other user generated content; (i) license, sell, transfer, distribute or otherwise commercially exploit or make available to any third party the HMH Marketplace or any HMH Materials; (j) modify or make derivative works based upon the HMH Marketplace, any products or services made available through access to the HMH Marketplace, any HMH Materials or otherwise violate HMH’s intellectual property rights in the HMH Marketplace or any HMH Materials; (k) create “links” to the HMH Marketplace or any HMH Materials; (l) send or store false, deceptive, misleading, illicit, illegal, infringing, violent, indecent, obscene, vulgar, profane, offensive, sexually–oriented, pornographic, threatening, harassing, abusive, defamatory, discriminatory, or otherwise unlawful or tortious material or Product to the HMH Marketplace; (m) send or store material containing viruses, worms, Trojan horses, spam or other harmful computer code, files, scripts, agents or programs to or from the HMH Marketplace; (n) interfere with or disrupt the integrity or performance of the HMH Marketplace, including engaging in denial of service attacks; (o) attempt to gain unauthorized access to the HMH Marketplace or its systems or networks; (p) use the HMH Marketplace or any of the HMH Materials for any purpose that is unlawful or prohibited by this Agreement; or (q) knowingly permit any third party to do any of the foregoing.
4. Transactions are Solely Between Buyers and Sellers
Your interactions with other participants in the HMH Marketplace, whether online or offline, including the purchase and sale of Products, are solely between you and that participant. HMH is not a party to any agreement between any Buyer and any Seller. You acknowledge and agree that each Seller is solely responsible, and HMH has no responsibility or liability of any kind, for: (a) the content, development, operation, maintenance or support of Seller’s Products; (b) ensuring that Seller’s Products comply with all applicable laws, rules, regulations, orders, and other requirements of governmental agencies (“Laws”); (c) processing payments, collecting payments, addressing requests for refunds, and providing customer service related to Seller’s Products, or (d) application, calculation, collection or remittance of any taxes imposed on sales of Seller's Products, including but not limited to VAT. You acknowledge and agree that HMH is not involved in any transactions made through the HMH Marketplace, and that we are not the agent or representative of any Seller or Buyer (or any other participant) for any purpose whatsoever, nor are we responsible for any actions or inactions of HMH Marketplace participants. IF THERE IS A DISPUTE BETWEEN YOU AND ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY HMH MARKETPLACE PARTICIPANT), HMH IS UNDER NO OBLIGATION TO BECOME INVOLVED, AND YOU HEREBY RELEASE HMH FROM ANY CLAIMS, DEMANDS, OR DAMAGES OF ANY KIND AND OF ANY NATURE ARISING OUT OF OR RELATING TO ANY SUCH DISPUTE.
5. Links to Other Sites and Resources; Payment Processing Service.
The HMH Marketplace may contain links to third party websites or services over which HMH has no control. You acknowledge and agree that (i) HMH is not responsible for the availability or accuracy of such websites or services, and (ii) HMH does not endorse nor is it responsible or liable for any content, advertising, products, services or materials on or available from such websites. Any reliance on such a website or resource (including without limitation the Payment Processing Service), is done at your own risk and you assume all responsibilities and consequences resulting from such reliance. For the convenience of Sellers, the HMH Marketplace makes available a service or services (collectively, the “Payment Processing Service”) provided by a third party or third parties (collectively, the “Payment Processor”) that enables Sellers to accept, and Buyers to make, online payments. You acknowledge and agree that Payment Processor, and not HMH, is solely responsible for the performance of the Payment Processing Service and you shall be subject to the legal terms and conditions of the Payment Processor that are applicable to the Payment Processing Service.
6. Certain Definitions.
“Application” means a Product that is a software application. “HMH Materials” means, collectively, HMH application programming interfaces; security keys, secrets, tokens, and other credentials to access the HMH Marketplace or other HMH Materials; and content, documentation, code, and related materials made available to Seller on or through the HMH Marketplace. “Participant Submission” means any and all messages, suggestions, feedback comments, responses, information, ratings, reviews, questions, suggestions, or other information and ideas that a participant submits to the HMH Marketplace via the Community feature or otherwise; provided, however, that Participant Submission does not include Products, Product Information or Account Information. “Product” means the item that a Seller submits to us for promotion and sale through the HMH Marketplace or with which Seller uses any HMH Materials, all content, services, technology, data and other materials included in or made available through your Product, and all Product Information (defined in Section 7.c), together with all of their enhancements, upgrades, updates, bug fixes, new versions and other modifications and enhancements. For the avoidance of doubt, the term “Product” includes Application.
7. Selling Your Product in the HMH Marketplace.
- HMH’s Discretion Regarding Product Listings. When you register for an Account or when you choose to update your Account, you may submit your Product for sale in the HMH Marketplace. We may accept or reject your Product for listing in our sole discretion.
- Your Product Must Be Your Original Work. All of your Product either must be created solely by you or you must have all necessary rights in it from third parties in order to permit you to comply with this Agreement. Your Product and Product Information should not contain any logos, phrases, trademarks, or content that belongs to third parties. This includes any content that you might have found on the Internet. If anyone contributes to your Product or has any rights to your Product, or if anyone appears or is referred to in the Product or your Product Information, then you must also have their permission to submit the Product and Product Information to HMH.
- Submit Your Product and Product Information to HMH.
- Self-Certification. By submitting your Product to us, you hereby certify that:
- your Product meets the requirements of this Agreement;
- your Product contains no software or other materials that are subject to licenses or restrictions (e.g., open source software licenses) that, when combined with additional software or other materials, would require HMH to disclose, license, distribute or otherwise make all or any part of such additional items available to anyone.
- Product Information. You must submit the following information with your Product. This information will appear in your HMH Marketplace listing to promote your Product, so try to make it engaging for the reader:
- Name of your Product—Choose a name that will help the reader understand what the Product does and who the target user is.
- Description of how your Product would help the user. You may include screen shots and videos.
- List Price (or List Prices if different prices would apply to different classes of end users)
- Customer Service/Support Information
- Your return policy for Product
- Your Contact Information
- Countries in which you authorize Product to be sold (as amended from time to time, the “Territory”).
“Product Information” includes the above information and any other information and content related to your Product and/or to you, such as all metadata, graphics, artwork, images, trademarks, trade names, logos, brand features and other descriptive or identifying information and materials associated with you or your Product. You are responsible for providing accurate Product Information, and will not make any false, inaccurate, or misleading claims or statements regarding any Product. By submitting the Product Information, you certify that the Product Information is accurate.
- Before providing us or any Buyer your Product, you will have obtained the rights necessary for the exercise of all rights granted under this Agreement, and you will be solely responsible for and will pay any licensors or co-owners any royalties or other monies due to them related to the Product;
- Your Product and the performance of your obligations under this Agreement will not violate any Law; require us or any Buyer to obtain any license, authorization, or other permission from any governmental agency or other third party; or violate or infringe any intellectual property, proprietary, or other rights of any person or entity (including contractual rights, copyrights, trademarks, patents, trade dress, trade secret, common law rights, rights of publicity, or privacy, or moral rights); or violate any other agreement to which you are a party;
- Your Product may be imported to, exported from, and lawfully used in the United States and all countries in the Territory (without the need for HMH or any Buyer to obtain any license or clearance or take any other action) and your Product is in full compliance with all applicable Laws governing imports, exports, and use, including those applicable to software that incorporates or makes use of information security technology, including but not limited to encryption technology;
- You are solely responsible for ensuring your Product functions properly with any HMH Materials you use, including any future updated or modified versions of those HMH Materials;
- Your Product does not and will not contain any viruses, spyware, “Trojan horses,” or other “malware” or harmful code, and will not cause injury to any person or damage to any property;
- Your Product includes and will include any attributions, copyright information and other notices, terms and conditions that may be required to be provided to end users based on your use of third party “open source” software or other third party intellectual property in your Product.
- Your Product includes and will include any attributions, copyright information and other notices, terms and conditions that may be required to be provided to end users based on your use of third party “open source” software or other third party intellectual property in your Product.
- Technical and Security Requirements. By submitting your Application to us, you hereby certify that your Application meets the requirements of HMH’s Technical and Security Requirements checklist located here;
- Optional Submission of a EULA. You may submit an end user license agreement (“Your EULA”) with your Application if Your EULA complies with the requirements of, and does not conflict with, this Agreement. Your EULA will become part of your Product Information.
- Applicability of Developers TOU. If your Application uses HMH APIs, this Agreement constitutes a License Agreement under, and as defined in, the Developers TOU.
- HMH’s Release of Production Keys. If your Application was developed using HMH APIs, and we accept your Application for listing in the HMH Marketplace, we will release to you production keys.
- authorize us to promote and sell your Product in the Territory as provided in this Agreement;
- grant us the royalty-free rights in the Territory to use, reproduce, distribute, reformat, modify, create excerpts from, promote, advertise, transmit, and publicly display and perform in any and all digital and other formats (A) the Product Information for promotional purposes in connection with the HMH Marketplace (except that we will not use any trademarks you provide for purposes of us selling a Product after your withdrawal of that Product as described in subsection j or after the Term).
- grant us the royalty-free rights in the Territory to (A) use, evaluate and test your Product for the purpose of promoting and selling your Product in the HMH Marketplace; and (B) modify and add to your Product only so that HMH can collect analytics relating to the Product, evaluate and enforce HMH Marketplace policies, and share aggregated information with you and others regarding the HMH Marketplace.
- grant us the authority to exercise any other rights relating to your Product that are reasonably necessary to effect the intent of the grants of rights contained in this Agreement.
- List Price(s). You are responsible for providing us a List Price (or List Prices targeted to different end users) for your Product in all currencies in the Territory. We may update any List Prices from time to time as currency conversion rates change. List Prices are inclusive of any VAT or similar taxes included in the purchase price displayed to end users, but those taxes are excluded from the List Price for Revenue Share calculation purposes. You will update the List Price(s) for each Product as necessary to ensure that it meets the requirements of this section.
- Taxes. You are solely responsible for all application, calculation and remittance of any and all foreign taxes including but not limited to VAT. You are solely responsible for any income or other taxes due and payable resulting from any payments to you. You will provide HMH with any forms, documents or other certifications as HMH may request to satisfy any information reporting or tax obligations with respect to this Agreement.
- Revenue Share. The Payment Processing Service permits HMH to extract the Revenue Share at the time of sale of a Product.
- Payment Processing Service Conclusive. Reports generated by the Payment Processing Service shall be deemed conclusive as to sales of your Products and corresponding Revenue Share payments. Neither HMH nor you may maintain any claim, action or proceeding against the other with respect to any payment unless the claim, action or proceeding is commenced within 180 days after the date the payment was due. If you are a Seller that requires the ability to process payments outside of the Payment Processing Service, you must notify HMH at the time of submitting your Product Information, and HMH may require additional terms and conditions regarding sales reports and payment of HMH’s Revenue Share.
8. Proprietary Rights; Brand Features.
9. Participation in the HMH Marketplace Community.
- Public Nature of the Community. We hope that you will use the Community to exchange information and have venue-appropriate discussions with other participants. However, please remember that the Community is public or semi-public and your Participant Submissions may be accessible and viewable by other users, and take care when disclosing information to others. You agree that: (i) your Participant Submission will be treated as non-confidential and non-proprietary to you – regardless of whether you mark Participant Submission as "confidential," "proprietary," or the like – and will not be returned, and (ii) to the maximum extent permitted by applicable law, HMH does not assume any obligation of any kind to you or any third party with respect to Participant Submission. Upon HMH's request, you will furnish us with any documentation necessary to substantiate the rights to such content and to verify your compliance with this Agreement.
- Representations and Warranties Related to Your Participant Submission. Each time you submit any Participant Submission, you represent and warrant that: (i) you are the sole author and owner of the intellectual property and other rights to the Participant Submission, or you have a lawful right to submit the Participant Submission and grant HMH the rights to it that you are granting by this Agreement, all without any HMH obligation to obtain consent of any third party and without creating any obligation or liability of HMH; (ii) the Participant Submission does not and, as to HMH's permitted uses and exploitation set forth in this Agreement, will not infringe any intellectual property or other right of any third party or violate any other agreement to which you are a party; and (iii) the Participant Submission will not violate this Agreement (including the Code of Conduct set forth in Section 3).
- Grant of Rights to HMH. Subject to the rights and license you grant in this Agreement, you retain whatever legally cognizable right, title, and interest that you have in your Participant Submission. You hereby grant to HMH, and you agree to grant to HMH, the non-exclusive, unrestricted, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, sell, re-sell, sublicense (through multiple levels), display, publish, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your Participant Submission, for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to use any ideas, concepts, know-how, or techniques contained in any Participant Submission for any purposes whatsoever, including developing, producing, and marketing products and/or services. In order to further effect the rights and license that you grant to HMH to your Participant Submission, you also hereby grant to HMH, and agree to grant to HMH, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any Participant Submission, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any Participant Submission, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 9c. HMH has no obligation to monitor or enforce your intellectual property rights, if any, to your Participant Submission, but you grant us the right to protect and enforce our rights to your Participant Submission, including by bringing and controlling actions in your name and on your behalf (at HMH's cost and expense, to which you hereby consent and irrevocably appoint HMH as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
10. Term and Termination; Suspension.
The term of this Agreement (the “Term”) will begin on the date you click to accept it and will continue until you or we terminate it. We are entitled to terminate this Agreement and access to your Account at our discretion with or without advance notice to you. You are entitled to terminate this Agreement at any time by giving us at least 10 business days’ advance written notice. We may also suspend your participation in our HMH Marketplace at our discretion with or without notice to you. We are not obligated to return copies of any Product or other materials that you provide. If the Agreement is terminated, we will stop selling your Products as of the date the termination takes effect. All rights to Products acquired by end users will survive termination.
11. Changes to HMH Marketplace.
HMH has sole discretion to determine all features, services and operations of the HMH Marketplace, to change the HMH Marketplace from time to time, and to terminate the HMH Marketplace without advance notice or liability. We may stop any transaction, or take other actions as needed to restrict access to or availability of any Product or Participant Submission that does not comply with this Agreement or that we otherwise determine in our sole discretion might adversely affect participants, without notice or any liability to you. We may sublicense certain services required for the HMH Marketplace, such as hosting. By registering for an Account, you consent to our sharing with such third parties all data you submit in connection with your Account solely to the extent required to provide the HMH Marketplace. We may sublicense any of our rights under this Agreement to third parties. Nothing in this Agreement restricts us from exercising any right available to us under applicable law or any separate license.
12. Changes to this Agreement.
We reserve the right to change this Agreement at any time in our discretion. We will give you notice of the changes by posting an updated version of this Agreement online or by emailing you. Changes to Commercial Terms for Sellers or the Agreement to Arbitrate (Section 19.b) will be effective 30 days after we post them or otherwise notify you of them. Any other changes to the Agreement will be effective as of the date we post them or otherwise notify you of them, unless we otherwise specify a later effective date. Your continued participation in the HMH Marketplace after changes to this Agreement take effect will constitute your acceptance of the changes. If you do not agree to a change, you must stop participating in the HMH Marketplace and terminate this Agreement.
You will indemnify, defend and hold HMH and its affiliates (including any respective officers, directors, employees, contractors and assigns) harmless from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys’ fees) made by any third party or any governmental or regulatory body, arising out of or relating to (i) your Product or any materials that you submit sell, purchase, post, transmit, or otherwise make available through the HMH Marketplace, (ii) your use of the HMH Marketplace, (iii) any breach of your representations, warranties or obligations set forth in this Agreement, (iv) your actual or alleged infringement of any third party intellectual property or proprietary rights, or (v) your actual or alleged violation of any Laws (individually, a “Claim,” and collectively, the “Claims”). You will not consent to the entry of a judgment or settle a Claim without our prior written consent, which may not be unreasonably withheld. You will use counsel reasonably satisfactory to us to defend each Claim. If we reasonably determine that a Claim might adversely affect us, we may take control of the defense at our expense (and without limiting your indemnification obligations). Your obligations under this Section 13 are independent of your other obligations under the Agreement.
HMH PROVIDES THE HMH MARKETPLACE AND THE HMH MATERIALS AND ALL OTHER INFORMATION AND SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO WARRANTIES, EITHER EXPRESS OR IMPLIED, OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, HMH, OUR AFFILIATES AND SUPPLIERS DISCLAIM (i) ANY AND ALL WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, AND NONINFRINGEMENT, AND ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE; (ii) ANY RESPONSIBILITY OR LIABILITY FOR THE ACCURACY, CONTENT, COMPLETENESS, OR LEGALITY OF INFORMATION ACCESSIBLE VIA OR AVAILABLE ON THE HMH MARKETPLACE OR IN ANY HMH MATERIALS OR SERVICE ACCESSIBLE THEREBY; AND (iii) ANY RESPONSIBILITY OR LIABILITY FOR HARM RESULTING FROM DOWNLOADING OR ACCESSING INFORMATION VIA THE HMH MARKETPLACE OR ANY HMH MATERIALS OR SERVICE ACCESSIBLE THEREBY, INCLUDING HARM CAUSED BY VIRUSES OR SIMILAR DESTRUCTIVE FEATURES. YOU EXPRESSLY AGREE THAT USE OF THE HMH MARKETPLACE AND ANY HMH MATERIALS OR SERVICE ACCESSIBLE THEREBY IS AT YOUR SOLE RISK.
FURTHERMORE, HMH DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE HMH MARKETPLACE OR THE HMH MATERIALS DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET, AND FOR ANY OTHER REASON.
15. Limitation of Liability.
NEITHER HMH NOR ANY OF OUR SUBSIDIARIES, AFFILIATED COMPANIES, OR SUPPLIERS, AND OUR AND THEIR RESPECTIVE EMPLOYEES, SHAREHOLDERS, OR DIRECTORS (EACH AN “HMH PARTY”) WILL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS, REVENUE, PROFITS, GOODWILL OR OTHER INTANGIBLE LOSSES) THAT ARISE OUT OF OR ARE RELATED TO YOUR USE OF THE HMH MARKETPLACE OR THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT YOU, HMH OR ANY HMH PARTY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
16. Applicability of Disclaimer and Limitation of Liability.
THE FOREGOING DISCLAIMER AND LIMITATION OF LIABILITY SHALL NOT APPLY TO CLAIMS BASED ON GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR CLAIMS PURSUANT TO SECTION 13. SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN IMPLIED TERMS OR EXCLUSIONS OF LIABILITY AND, AS A RESULT, SECTIONS 14 AND/OR 15 MAY NOT APPLY TO YOU.
17. Export Controls.
Software related to or made available by the HMH Marketplace and/or any Product may be subject to export controls of the U.S.A. To the extent permissible under applicable domestic laws, no software from the HMH Marketplace or Seller’s Product may be downloaded, exported, or re-exported: (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoes, or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce's Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses). Seller is responsible for complying with all applicable trade regulations and laws. Except as authorized by law, Seller agrees and warrants not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions, including, without limitation, as set forth in subsections (i) – (iii) above.
18. Allegations of Copyright Infringement.
HMH respects the intellectual property rights of others and requires that its users do the same. If you believe that content accessed via the HMH Marketplace constitutes infringement of a work protected by copyright, please notify our agent, designated under the Digital Millennium Copyright Act (17 U.S.C. §512) (the “DMCA”) to respond to such concerns, as follows:
Houghton Mifflin Harcourt Publishing Company
Attention: Trevor Crippin, Legal Department
125 High Street
Boston, MA 02110
Your notice must comply with the DMCA. Upon receipt of a compliant notice, we will respond and proceed in accordance with the DMCA, including its notice and takedown provisions.
19. Legal Disputes
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND HMH HAVE AGAINST EACH OTHER ARE RESOLVED.
- Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts as such laws apply to contracts between Massachusetts residents performed entirely within Massachusetts. Any action or proceeding arising out of or relating to this Agreement or your use of the HMH Marketplace or HMH Materials must be brought in a federal court in Massachusetts and each party irrevocably submits to the jurisdiction and venue of any such court. You acknowledge that your breach of this Agreement may cause irreparable harm to HMH, the extent of which would be difficult to ascertain. Accordingly, you agree that, in addition to any other remedies to which HMH may be legally entitled, HMH will have the right to seek immediate injunctive relief in the event of a breach of this Agreement by you or any of your officers, employees, consultants, or other agents. In no event will you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the HMH Marketplace or any HMH Materials or other material used or displayed through the HMH Marketplace.
- Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND HMH AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND HMH AGREE OTHERWISE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS.
- Costs of Arbitration. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules, unless otherwise stated in this Section 19.b.
- Severability. With the exception of any of the provisions in Section i of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply. If an arbitrator or court decides that any of the provisions in Section i of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”) is invalid or unenforceable, then the entirety of this Agreement to Arbitrate shall be null and void. The remainder of the Agreement and its Legal Disputes Section will continue to apply.
- Judicial Forum for Legal Disputes. Unless you and we agree otherwise, in the event that Section 19.b is found not to apply to you or to a particular claim or dispute, you agree that any claim or dispute that has arisen or may arise between you and HMH must be resolved exclusively by a state or federal court located in Boston, Massachusetts. You and HMH agree to submit to the personal jurisdiction of the courts located within Boston, Massachusetts for the purpose of litigating all such claims or disputes.
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA's Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA's rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The use of the word “arbitrator” in this provision shall not be construed to prohibit more than one arbitrator from presiding over an arbitration: rather, the AAA's rules will govern the number of arbitrators that may preside over an arbitration conducted under this Agreement to Arbitrate.
A party who intends to seek arbitration must first send to the other, by certified mail, a completed Notice of Dispute (“Dispute Notice”) containing a brief description of the nature of the party’s dispute (including any supporting documents) and the relief the notifying party would like from the other party. The Dispute Notice to HMH should be sent to Houghton Mifflin Harcourt, Attn: HMH Labs, Re: Notice of Dispute, 125 High Street, Boston, MA 02110. HMH will send any Dispute Notice to you to the physical address we have on file associated with your Account; it is your responsibility to keep your physical address up to date. All information called for in the Dispute Notice must be provided, including a description of the nature and basis of the claims the party is asserting and the relief sought.
If you and HMH are unable to resolve the claims described in the Dispute Notice within 30 days after the Dispute Notice is sent, you or HMH may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA's site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to HMH at the following address: Houghton Mifflin Harcourt, c/o Registered Agent CT Corporation System, 155 Federal Street, Suite 700, Boston, MA, 02110. In the event HMH initiates an arbitration against you, we will send a copy of the completed form to the physical address we have on file associated with your Account. Any settlement offer made by you or HMH shall not be disclosed to the arbitrator.
The arbitration hearing shall be held at a location that is reasonably convenient to you and HMH, or at a location to be determined according to the AAA’s rules. If the value of the relief sought is $10,000 or less, you or HMH may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and HMH subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or HMH may attend by telephone, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same HMH user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
(a) Notices. Unless otherwise expressly stated in this Agreement, all notices shall be in writing and given by personal delivery, certified mail, return receipt requested, or by commercial overnight courier for next business day delivery, to your address set forth in the Account registration; provided, that HMH may notify you via postings on the HMH Marketplace or via the email address associated with your Account. Notice shall be deemed given the date of personal delivery, the fifth business day after mailing, the next business day after delivery to such courier (unless the return receipt or the courier's records evidence a later delivery), or as indicated in HMH’s electronic records, as applicable. (b) Section Headings. The section headings in this Agreement are for convenience only and have no legal or contractual effect. (c) Independent Parties. Nothing in this Agreement will be construed as creating a partnership or joint venture of any kind between the parties and neither party will have the authority or power to bind the other party or to contract in the name of or create a liability against the other party in any way or for any purpose. (d) Assignment. You may not assign any of the rights or obligations granted hereunder, voluntarily or by operation of law (including without limitation in connection with a merger, acquisition, or sale of assets) except with the express written consent of HMH, and any attempted assignment in violation of this paragraph is void. This Agreement will be binding upon and inure to the benefit of the parties, their successors and assigns. (e) Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter; except as provided herein, all other prior agreements, representations, statements, negotiations and undertakings with respect to such subject matter are terminated and superseded hereby. (f) Survival. After expiration or termination of this Agreement, all provisions relating to payment will survive until completion of required payments. In addition to those provisions which specifically provide for survival beyond expiration or termination, all provisions contained in this Section 20 and all provisions, if any, regarding indemnification, warranty, disclaimers, liability and limits thereon, and confidentiality and/or protection of proprietary rights and trade secrets will survive indefinitely or until the expiration of any time period specified elsewhere in this Agreement with respect to the provision in question. (g) Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. (h) No Waiver. No term or provision hereof will be deemed waived and no breach excused, unless such waiver or consent will be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, will not constitute a consent to, waiver of, or excuse for any other different or subsequent breach. (i) Severability. In the event any provision of this Agreement is held illegal, void or unenforceable, to any extent, in whole or in part, as to any situation or person, the balance will remain in effect and the provision in question will remain in effect as to all other persons or situations, as the case may be.
21. How to Contact Us.
If you have questions or comments about this Agreement, please contact us at email@example.com or by physical mail at:
Houghton Mifflin Harcourt Publishing Company
125 High Street
Boston, MA 02110
ATTN: HMH Labs
Digital Product Technical and Security Requirements Checklist
Last updated: October 29, 2015
- The Seller has a named individual responsible for information security, including that of the Digital Product.
- Development of the Digital Product adheres to secure coding principles set forth in the OWASP Top Ten.
- The Seller performs monthly security testing and remediation of applications and infrastructure, including the Digital Product.
- The Seller limits access to systems and data using least privilege principles and role based access controls.
- The Seller has a written incident management process and the execution of that process includes disclosure to customers.
HMH MARKETPLACE AGREEMENT TO ARBITRATE OPT-OUT NOTICE
This document can be downloaded here