Last Updated: April 24, 2024
Please note: This MSA was updated April 24, 2024. If you are an existing Newsela Customer, please contact your Newsela representative for the prior version.
THIS MASTER SERVICES AGREEMENT (collectively, with any Order Form(s) and the Data Processing Addendum, this “Agreement”) is entered into and effective as of the Effective Date by and between Newsela, Inc. and its parents, subsidiaries, affiliates, and assigns (collectively, “Newsela”) and the Customer identified on the applicable Order Form. Newsela and Customer may be referred to individually as a “Party” and collectively as the “Parties”. For good and valuable consideration, the sufficiency and adequacy of which is hereby acknowledged, the Parties hereby agree as follows:
1.1 “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.
1.2 “Authorized Users” means the Customer’s employees, personnel, students, and other individuals to whom the Customer provides or makes available the Products. To the extent this Agreement is entered into by a District on behalf of one or more Schools, “Authorized Users” shall also include the applicable School’s employees, personnel, students, and other individuals to whom such School provides or makes available the Products.
1.3 “Confidential Information” means all confidential and proprietary information, materials, know how, data, trade secrets, business plans, processes, financial information, marketing plans, customer, supplier, or investor lists, research, and technical or commercial information, in tangible or intangible form, relating to a Party (the “Disclosing Party”) and that is provided to the other Party (the “Receiving Party”). Newsela’s Confidential Information shall include, but is not limited to, the Newsela Intellectual Property, as defined in Section 6.
1.4 “Content” means the informational material and learning content licensed for use by Newsela on the Newsela Platform and in the Products.
1.5 “Data Processing Addendum” or “DPA” means the document agreed to by both Parties that governs the processing of data, including but not limited to User Data, in connection with this Agreement.
1.6 “District” means a unit of administration of one or more Schools.
1.7 “Documentation” means any and all user guides or other documentation describing the features, functionality or operation of the Products supplied or made available by Newsela on the Newsela Platform for use with or in support of the Products, including without limitation any and all revisions, modifications, and updates to such Documentation made by Newsela from time to time.
1.8 “Newsela Platform” means Newsela’s proprietary web-based learning and analytics platforms, including its websites and mobile applications, Newsela Lite, and any other platforms Newsela owns, controls, and/or on which its Products are delivered.
1.9 “Newsela Intellectual Property” means Newsela Platform, Products, Documentation, Newsela’s name, logos, services marks, and trade names used on or in connection with the Products, including all derivatives, updates and modifications thereof and thereto.
1.10 “Products” means the products and services licensed by Customer pursuant to an Order Form, including any professional development, support, implementation, and training services offered by Newsela as provided on the Newsela Platform.
1.11 “Order Form” means the document by which Customer purchases Products from Newsela. Each Order Form shall reference this Agreement and forms part of this Agreement.
1.12 “School” means a single educational institution.
1.13 “Students” means students who are Authorized Users enrolled in School classes on Newsela Platform.
1.14 “TOU” are the most current Terms of Use applicable to the Newsela Platform.
1.15 “Third Party Application” means a software application with functionality that interoperates with the Products, that is provided by Customer or a third party (other than the Products).
1.16 “User Data” means the data and information submitted or provided to the Products by Customer or its Authorized Users.
2.1 Newsela shall provide the Products that are set forth on an Order Form. To the extent Customer requests additional Products, Newsela shall have no obligation to provide additional Products not set forth on a current Order Form, unless and until the Parties execute an additional Order Form that includes such Products. In the event of any conflict between the terms of this Master Services Agreement and an Order Form, the Order Form shall control.
2.2 Access to certain features of the Products by an Authorized User will be determined by the type of license the Authorized User is using to access the Products.
2.3 An Authorized User’s use of the Newsela Platform shall be subject to the terms and conditions of the then-current TOU. The TOU may be updated from time to time as set forth in the TOU. Customer understands and acknowledges that each Authorized User shall agree to the terms and conditions of the TOU prior to use of the Products.
2.3 Newsela may regularly, without notice, update the Products and reserves the right to add, remove, and/or substitute functionally equivalent features for any reason, including without limitation in the event of product unavailability, or changes to software requirements.
2.4 No Obligation to Monitor Content. Customer acknowledges that Newsela has no obligation to review, monitor or pre-screen Content on the Products, although Newsela reserves the right in its sole discretion to review, monitor, pre-screen, refuse, modify, or remove any Content (a) that violates any law or regulation; (b) that violates these Terms; (c) that otherwise creates or may create liability for Newsela; or (d) for any other reason Newsela determines in its sole discretion. Except as expressly set forth in these Terms, Newsela does not approve, endorse or make any representations or warranties with respect to User Content or Student Data.
2.5 Newsela does not warrant or support Third Party Applications unless expressly provided otherwise in an Order Form. The Products may contain features designed to interoperate with Third Party Applications. Newsela cannot guarantee the continued availability of such Product features, and may cease providing them without entitling Customer to any refund or credit, if for example and without limitation, the provider of the Third Party Application ceases to make the Third Party Application available for interoperation with the Products in a manner acceptable to Newsela. Customer is responsible for complying with the applicable terms of service for any Third Party Applications with which Customer uses the Products.
3.1 Subject to the terms and conditions of this Agreement, during the Term, Newsela grants Customer a limited, personal, non-exclusive, non-transferable, non-sublicensable, and non-assignable license to: (a) access and use the Products solely for Customer’s educational and internal business purposes; and (b) permit Authorized Users to access and use the Products solely for Customer’s educational and internal business purposes.
3.2 Customer shall (a) be responsible for Authorized Users’ use of the Products and compliance with this Agreement and the TOU, (b) be responsible and liable for all User Data submitted through a Customer or Authorized User account, including without limitation, the accuracy, content, quality and legality of User Data provided or made available to Newsela in connection with this Agreement and the means by which Customer acquired User Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Products, and notify Newsela promptly of any such unauthorized access or use, (d) use the Products only in accordance with the Documentation and applicable laws, rules and government regulations, and (e) be solely responsible for the Customer systems through which the Products are accessed. The Products do not replace the need for Customer to maintain regular back-up procedures and business continuity policies with respect to User Data.
3.3 Customer represents and warrants that (a) Customer has obtained all necessary rights, consents, permissions, and approvals in connection with all data provided or made available to Newsela in connection with the Products and/or this Agreement, including without limitation obtaining all consents and providing all notices required under applicable data privacy and information security laws, (b) such data does not infringe or otherwise violate the rights of any third party, and (c) any personally identifiable information of persons under the age of eighteen (18) collected or processed by Customer has been and shall be collected and processed only in strict compliance with applicable laws, including all applicable data privacy and information security laws. Customer further represents and warrants that it shall, at all times during the Term of this Agreement, adhere to all applicable privacy and data protection laws.
3.4 Without limiting Newsela’s other rights or remedies, Newsela may suspend access to the Products in the event of a threat to the security or technical integrity of the Products and will provide written notice to Customer of such suspension to Customer.
3.5 Customer shall not: (a) make the Products or the Documentation available to, or use any Products or the Documentation for the benefit of, anyone other than Customer or its Authorized Users (and, with respect to Authorized Users, only in conjunction with their performance of services under Customer’s control and involving the review of information pertaining to their performance of such services); (b) sell, resell, sublicense, distribute, rent or lease any Products or any portion thereof, including the Documentation or include any Products in a service bureau, time sharing or outsourcing offering; (c) interfere with or disrupt the integrity or performance of the Products or third-party data contained therein; (d) attempt to gain unauthorized access to the Products or its related systems or networks; (e) copy the Products or any part, feature, function or user interface thereof; (f) access the Products in order to build a competitive product or service; (g) reverse engineer the Products, in whole or in part, nor use any methods to gain access to the source code or infrastructure of the Products, in whole or in part; (h) access or use the Products in order to benchmark the Products, or any portion thereof, or Newsela’s performance of the Products, or (i) use framing techniques to enclose any trademark or logo on the Newsela Platform. Customer shall use commercially reasonable measures to ensure Customer’s use of the Products do not store or transmit code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses. Customer shall not provide any competitor of Newsela (including any employee or contractor of such competitor) with access to or use of the Products, including by read-only access, direct access through an Authorized User identification and password information, or otherwise.
3.6 The rights granted to Customer and its Authorized Users in this Agreement are subject to the following restrictions: (a) Customer shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit or make available for commercial exploitation the Content; (b) Customer shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any Content unless for personal, educational use; (c) Customer shall not use any manual or automated software, devices, or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools, or the like) to “scrape” or download data from any web pages contained in the Content; and (d) Customer shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Content, Newsela Platform, Product, or Documentation.
4.1 Customer grants Newsela a non-exclusive, royalty-free, worldwide license to use, transmit, distribute, modify, reproduce, display, access, and store User Data for the purposes of (a) providing the Products contracted for in the Order Form; (b) monitoring and improving the performance of the Products and other internal business purposes; and (c) creating de-identified, aggregated, and/or anonymized versions of User Data for Newsela’s internal and/or external use. Customer represents and warrants that it owns or has the legal right and authority, and will continue to own or maintain the legal right and authority, to grant to Newsela the license set forth in this paragraph.
4.2 Newsela shall have the right to collect technical and usage data from Customer’s and its Authorized Users’ use of the Newsela Platform and Products (“Technical Data”). Newsela shall own all Technical Data, and all de-identified or aggregated versions of User Data created by Newsela. Newsela may use such Technical Data and de-identified or aggregated User Data to improve, provide and update the Newsela Platform and Products; provided, that such data cannot reasonably be used to identify Customer or an Authorized User.
4.3 Newsela shall process User Data in accordance with the Privacy Policy posted on the Newsela Platform and in compliance with all applicable privacy laws including but not limited to the Family Educational Rights and Privacy Act (“FERPA”) or Children’s Online Privacy Protection Act (“COPPA”). The Parties shall enter into a Data Processing Addendum (“DPA”) to govern the processing of data in connection with this Agreement. Newsela will process User Data in compliance with the DPA found here unless a separate data agreement has been mutually agreed to by both Parties.
5.1 The Parties shall pay the fees set forth in and in accordance with each Order Form. Products are considered delivered and accepted when access to the Newsela Platform is turned on for the Customer. For any subscription-based Product, the quantity of licenses sold shall represent Newsela's obligation to provide access for up to that quantity of licenses, as applicable. Except as otherwise set forth in the applicable Order Form, payment of all fees is due by Customer within thirty (30) days after Customer’s receipt of invoice. Customer shall be responsible for payment of all taxes (excluding those on Newsela’s net income) relating to the provision of the Products, unless prohibited by applicable law.
5.2 If any amount owed to Newsela under this Agreement is overdue, Newsela may, without limiting its other rights and remedies, (a) charge interest on the past due balances at the rate of one and a half percent (1.5%) per month, and/or (b) suspend the Products to Customer until such amounts are paid in full.
5.3 Newsela may change the pricing for the Products (from time to time in its sole discretion) by updating the Newsela Platform, as applicable, and without any additional notice to Customer, provided that any changes will not take effect until the Customer’s subscription renews or Customer adds new/additional features or Products to Customer’s existing Agreement.
5.4 Except as otherwise stated herein, all payments are non-refundable. Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer are responsible for payment of all such taxes, levies or duties when applicable. If any fee cannot be charged to the Customer payment method for any reason, Newsela may provide Customer, via email, notice of such non-payment and a link for Customer to update Customer’s payment information. If such non-payment is not remedied within seven (7) days after receiving such notice of non-payment, then Newsela may suspend the applicable Products.
6.1 Customer agrees that Newsela and its third-party licensors, as applicable, own all rights, title and interests in and to the Newsela Platform, Products, Documentation, Newsela’s name, logos, services marks, and trade names used on or in connection with the Products, including all derivatives, updates and modifications thereof and thereto (collectively, the “Newsela Intellectual Property”). Customer agrees that Newsela Intellectual Property may not be used without Newsela’s written permission from an authorized representative. Other than the limited license and use rights expressly set forth in this Agreement to the Newsela Intellectual Property, Newsela does not grant Customer any rights to the Newsela Intellectual Property and reserves all rights therein.
6.2 If Customer proposes or provides any ideas, suggestions, recommendations, enhancements, improvements, or other feedback (“Improvements”) to Newsela, then Customer hereby assigns all rights, title, and interests, including all copyright, patent and trade dress rights, in and to such Improvements to Newsela.
6.3 The Receiving Party shall use commercially reasonable efforts to avoid the loss, unauthorized disclosure and/or unauthorized use of any Confidential Information of the Disclosing Party. The Receiving Party agrees to protect the confidentiality of the Confidential Information of the Disclosing Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care). If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
6.4 Confidential Information shall not include information that: (1) is in the public domain at the time of disclosure to the Receiving Party; (2) becomes part of the public domain after disclosure by the Disclosing Party without obligation of confidentiality and without direct or indirect fault of the Receiving Party or person(s) acting on the Receiving Party's behalf; (3) was in the Receiving Party’s possession before receipt from the Disclosing Party without an obligation of confidentiality; (4) is lawfully obtained from a third party who has the right to make such disclosure on a non-confidential basis; or (5) has been independently developed by the Receiving Party without reference to or use of the Confidential Information of the Disclosing Party.
6.5 The Parties agree that any breach of this Section, including improper use or disclosure of the Confidential Information by the Receiving Party, would cause irreparable harm to the Disclosing Party, for which remedies at law would be inadequate, and the Disclosing Party shall be entitled to seek injunctive relief against any such breach or threatened breach, without posting any bond or showing of irreparable harm, in addition to any other remedy available to it.
7.1 This Agreement shall continue for the Term set forth on the applicable Order Form, until: (i) this Agreement is terminated as provided herein, or (ii) the expiration or termination of all Order Forms.
7.2 Either Party may terminate this Agreement for cause: (i) upon written notice to the other Party in the event of a material breach of this Agreement by the other Party which remains uncured thirty (30) days after receipt of written notice thereof; or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors and such petition or other proceeding is not dismissed within ninety (90) days of the filing thereof. Without limiting the foregoing, and in addition to any of its other termination rights set forth herein, Newsela may terminate this Agreement in whole or in part, effective on written notice to Customer, if Customer: (a) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Newsela’s delivery of written notice thereof; or (b) breaches any of its obligations under Sections 3.5 and 3.6 or Section 6.
7.3 If Customer has materially breached any provision of the Agreement, or if Newsela is required to do so by law (e.g., where the provision of the Newsela Platform is, or becomes, unlawful), Newsela has the right, at its sole discretion, to immediately suspend any services and licenses provided to Customer under this Agreement (“Suspension”). Following Suspension, Newsela and Customer will work together in good faith to determine whether to reinstate the suspended access to (and any associated licenses to) the Newsela Platform or permanently terminate the Agreement.
7.4 Upon any termination or expiration of this Agreement: (i) all rights and licenses granted to Customer and Authorized Users shall cease, and Customer and its Authorized Users shall immediately discontinue use of the Products; (ii) each Party shall immediately discontinue use of the other Party’s Confidential Information and return to the other Party or, at the other Party’s option, destroy, all copies of such Party’s Confidential Information; provided, however, Newsela shall be permitted to retain copies of Customer’s Confidential Information solely for archival, audit, disaster recovery, and/or regulatory purposes in accordance with applicable law; and (iii) Customer shall promptly pay all amounts due to Newsela under the Agreement. Termination of the Agreement includes removal of access to the Newsela Platform and bars further use of the Newsela Platform. Termination of this Agreement also may include deletion of Customer’s User Data. Upon termination of any service, Customer’s right to use such services will automatically terminate immediately. Newsela will not have any liability whatsoever to Customer for any Suspension or termination, including for deletion of Customer’s User Data. The rights and obligations of the Parties set forth in Sections 4, 5, 6, 7.4, 8, 9, and 12 of this Agreement shall survive the termination of this Agreement.
8.1 Newsela shall indemnify and defend Customer from any third-party claim alleging that the use of the Products by Customer as contemplated by this Agreement infringes a third party’s U.S. patent issued as of the Effective Date, or any copyright, trademark, or trade secret rights of a third party. Newsela shall pay any damages awarded in any final judgment entered by a court of competent jurisdiction with respect to any such claim or agreed to by Newsela in any settlements arising out of such claim; provided, that (i) Customer promptly gives written notice of the claim to Newsela; (ii) Customer gives Newsela sole control of the defense and settlement of the claim (provided, that Newsela shall not settle any claim unless it unconditionally releases Customer of all liability); (iii) Customer provides to Newsela, at Newsela’s cost, all reasonable assistance; and (iv) the alleged infringement does not arise as a result of: (a) the combination, operation, or use of the Products with third party software, services, or other products or materials not furnished or authorized by Newsela, (b) failure by Customer to timely implement any updates made available to Customer by or on behalf of Newsela, or (c) Customer’s or an Authorized User’s violation of any laws, rules, and/or regulations applicable to its business. In the event of such a claim or threat thereof, Newsela may, in its sole discretion, (1) obtain a license for the infringing part of the Products, (2) remove or alter the infringing part of the Products, so long as such removal or alteration does not materially affect the functionality of the Products, or (3) terminate this Agreement and Customer’s license to the applicable Products. THIS SECTION STATES THE ENTIRE OBLIGATION AND LIABILITY OF NEWSELA, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
8.2 Unless you are a government entity and applicable law requires otherwise, Customer shall indemnify, defend and hold harmless Newsela, and their respective owners, managers, directors, employees, and contractors from and against all losses, damages, liabilities and costs (including reasonable attorneys’ fees) incurred in connection with any third party claim arising out of or relating to (i) the User Data, (ii) Customer’s use of the Products or the results obtained therefrom, (iii) any of the exclusions set forth in Section 8.1(a)-(c) above, and/or (iv) Customer’s breaches of Section 3.
9.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT OR THE PRODUCTS, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF DATA, LOSS OF REVENUE OR LOSS OF USE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
9.2 IN NO EVENT SHALL NEWSELA’S MAXIMUM, AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED AN AMOUNT EQUAL TO THE FEES RECEIVED BY NEWSELA FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE FIRST CLAIM BROUGHT UNDER THIS AGREEMENT.
9.3 NOTWITHSTANDING THE FOREGOING, THE ABOVE LIMITATIONS SHALL NOT APPLY TO CLAIMS ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS OR CUSTOMER’S BREACHES OF SECTION 3 OF THIS AGREEMENT, WHICH INDEMNIFICATION OBLIGATIONS AND CUSTOMER BREACHES OF SECTION 3 ARE ALL CAPPED IN THE AGGREGATE AT THREE (3) TIMES THE FEES AMOUNT RECEIVED BY NEWSELA FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE FIRST CLAIM BROUGHT UNDER THIS AGREEMENT.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PRODUCTS ARE PROVIDED BY NEWSELA “AS IS,” AND “WITH ALL FAULTS”. NEWSELA EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT, THE PRODUCTS AND/OR THE RESULTS THAT MAY (OR MAY NOT) BE ACHIEVED BY AN AUTHORIZED USER OR CUSTOMER’S USE OF THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE. NEWSELA DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE AND WHILE NEWSELA HAS USED REASONABLE MEASURES TO MAINTAIN THE CONFIDENTIALITY OF USERS’ INFORMATION, CUSTOMER ACKNOWLEDGES AND AGREES THAT NEWSELA CANNOT GUARANTEE THE SECURITY OR ACCESSIBILITY OF SUCH INFORMATION. CUSTOMER ACKNOWLEDGES THAT NEWSELA USES A THIRD PARTY TO HOST THE PRODUCTS AND TO STORE USERS’ INFORMATION AND NEWSELA MAKES NO REPRESENTATION OR WARRANTY AND SHALL HAVE NO LIABILITY FOR SUCH THIRD PARTY SERVICES. NEWSELA MAKES NO WARRANTIES REGARDING THE ACCURACY OR COMPLETENESS OF ANY INFORMATION PROVIDED IN CONNECTION WITH OR RESULTS OBTAINED THROUGH USE OF THE PRODUCTS, AND NEWSELA SHALL HAVE NO LIABILITY FOR ANY CLAIM ARISING FROM ANY USE OF SUCH INFORMATION OR RESULTS.
Any notice, approval, or other communication under this Agreement must be given in writing and is be deemed to have been delivered (i) on the delivery date if delivered personally to the Party to whom the same is directed; (ii) on the delivery date if delivered by email address to the email address provided below, for Newsela, and in the Order Form, for the Customer; or (iii) upon receipt as evidenced by a return receipt, after deposit with a commercial overnight carrier, or by U.S. mail, return receipt requested, postage and charges prepaid, to the following addresses, or to such other address as changed by a Party providing written notice in accordance with this Section:
If to Newsela:
169 Madison Avenue, STE 2770
New York, New York 10016
commerciallegal@newsela.com
If to Customer:
To the Customer’s postal and email address as set forth on the Order Form.
12.1 No Waiver. Entire Agreement. Modification of Agreement. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. This Agreement, including the TOU, constitutes the entire agreement with respect to the transactions set forth herein and supersede any and all prior agreements, written or oral, of the Parties with respect to the transactions set forth herein. Unless specifically agreed to otherwise in writing and signed by both parties, this Agreement and the TOU may be supplemented, amended, or modified by Newsela.
12.2 Dispute Resolution. The Parties shall attempt to resolve any disputes that may arise between the Parties under this Agreement. If the Parties are unable to resolve the dispute within fifteen (15) business days, then the dispute shall be escalated to an executive-level officer for each Party for review and resolution. If the dispute is not resolved by the Parties’ officers within fifteen (15) business days from escalation to the officers, either Party shall have the right to pursue any remedies permitted under this Agreement or at law or in equity. The Parties agree to continue performing their respective obligations under this Agreement while the dispute is being resolved unless and until such obligations are terminated in accordance with the provisions of this Agreement. All attempts to resolve any dispute shall be conducted in good faith by the Parties.
12.3 Governing Law. This Agreement and all claims relating to this Agreement shall be interpreted, construed, enforced, and litigated in accordance with the laws of the State of New York and in the courts of the State of New York without giving effect to its conflicts of laws rules, unless the State within which Customer is incorporated requires that the laws of that jurisdiction apply and Customer provides notice of the same. THE PARTIES HEREBY EXPRESSLY WAIVE ANY AND ALL RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY EQUITABLE RELIEF BEING SOUGHT.
12.4 Assignment. Neither Party is permitted to assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of the other Party; provided, that either Party may assign this Agreement in its entirety in connection with a merger, consolidation, change of control, acquisition, or sale of all or substantially all of the assets of such Party. Any assignment or transfer of this Agreement in violation of this Section is null and void. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
12.5 Severability. If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of this Agreement will be amended to achieve as nearly as possible the intent of the Parties, and the remainder of this Agreement will remain in full force and effect.
12.6 Publicity. Except as expressly permitted herein, neither Party shall, without the other Party’s prior written consent in each instance, use or distribute in advertising, publicity or other promotional endeavor, the name of the other Party or such other Party’s trademarks, or issue a press release concerning the relationship of the Parties. Notwithstanding the foregoing, Customer agrees that Newsela may identify Customer as a recipient of the Products and use Customer’s trademarks, service marks, or logos in sales presentations and marketing materials in order to reference Customer as a customer of Newsela.
12.7 Force Majeure. Neither Party shall be responsible for any failure of its obligations under this Agreement to the extent that such failure is due to causes beyond such Party’s reasonable control, including without limitation acts of God, war, terrorism or threat thereof, acts of any government or agency thereof, fire, flood, earthquake, explosions, epidemics, quarantine restrictions, strikes or labor disputes, lockouts, embargoes, civil unrest, severe weather conditions, delay in transportation, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Newsela’s possession or reasonable control, denial of service attacks, or acts or omissions of vendors or suppliers (each, a “Force Majeure Event”); provided, however, that Customer’s obligation to timely make payment of all fees for the Products may be temporarily delayed during the event, but shall not be excused or further delayed by this clause. In the event a Force Majeure Event extends for a period greater than thirty (30) days, Newsela may terminate this Agreement upon notice to Customer. Newsela shall not be in breach of its obligations under this Agreement during a Force Majeure Event if Newsela offers a reasonable accommodation or substitute for the disrupted services, which Newsela may offer in its sole discretion. For the avoidance of doubt, COVID-19 and its foreseeable consequences and effects shall not constitute a Force Majeure Event.
12.8 Independent Contractor. The Parties to this Agreement are independent contractors, and under no circumstances shall this Agreement be interpreted to create an agency, joint venture or partnership between the Parties. Neither Party is an agent, representative, or partner of the other Party. Neither Party shall have any right or authority to incur any obligation or liability of, or to otherwise bind, the other Party.
12.9 No Third-Party Beneficiaries. There are no third party beneficiaries to this Agreement.
12.10 Electronic Signature and Counterparts. If either Party signs this Agreement through electronic signature, such electronic signature will have the same effect as a physical signature. This Agreement may be executed in any number of electronic, PDF or facsimile counterparts, each of which is deemed an original and all of which together constitute one and the same agreement.
12.11 Construction. The Parties have had an opportunity to confer with counsel in the negotiation of this Agreement. Accordingly, the normal rules of construction, by which an ambiguity would be construed against the drafting Party, will not apply to the interpretation or enforcement of this Agreement.