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Purchase Order Terms And Conditions

Last Modified: November 2023

1. Applicability.

(a) This purchase order is an offer by 2U, Inc., a Delaware company, and its affiliates, contracts, agents and assigns (the “Buyer”) for the purchase of the goods and services specified on the face of this purchase order (the “Goods” and “Services,” respectively) from the party to whom the purchase order is addressed (the “Seller”) in accordance with and subject to these terms and conditions (the “Terms”; together with the terms and conditions on the face of the purchase order, the “Order”). For purposes of these Terms, each of the Buyer and the Seller is a “Party” and together, the “Parties” with the exception of a master services agreement executed by both the Buyer and the Seller in writing, this Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order. Each Order is governed by these Terms appearing on the website at the date of Seller’s receipt of the purchase order. These Terms may be updated from time to time by the Buyer and it is the Seller’s responsibility to check the website for updated versions. Seller understands and agrees that Buyer may be purchasing Goods and/or Services for itself, its affiliates, and/or its partners (collectively, the “Client”) who are beneficiaries to the Order. The Order expressly limits Seller’s acceptance to the terms of the Order. Unless as otherwise indicated herein, these Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with this Order.

(b) These Terms apply to any repaired or replacement Goods and/or Services provided by Seller hereunder.

(c) Buyer is not obligated to any minimum purchase or future purchase obligations under this Order.

2. Acceptance. This Order is not binding on Buyer until Seller accepts the Order by commencing performance in accordance with the Order. Buyer may withdraw the Order at any time before it is accepted by Seller.

3. Delivery Date. Seller shall furnish the Goods and/or Services, both including without limitation all deliverables called for by this Order in accordance with the prices and delivery instructions stated on the face of the Order or as otherwise agreed in writing by the Parties (the “Delivery Date”). TIME IS OF THE ESSENCE FOR THIS ORDER. WHEN THE SELLER HAS REASON TO BELIEVE THAT DELIVERIES WILL NOT BE MADE AS SCHEDULED OR A DELAY IN SERVICES WILL OCCUR, WRITTEN NOTICE SETTING FORTH THE CAUSE AND EXPECTED DURATION OF THE ANTICIPATED DELAY MUST BE GIVEN IMMEDIATELY TO THE BUYER. If Seller fails to deliver the Goods and/or Services in full on the Delivery Date, Buyer may terminate the Order immediately by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller's failure to deliver the Goods and/or Services on the Delivery Date. Buyer has the right to return any Goods delivered prior to the Delivery Date at Seller’s expense and Seller shall redeliver such Goods on the Delivery Date.

4. Quantity. If Seller delivers more or less than the quantity of Goods ordered, Buyer may reject all or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller's risk and expense. If Buyer does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.

5. Delivery Location. All Goods and/or Services shall be delivered to the address specified in this Order (the “Delivery Location”) during Buyer’s normal business hours or as otherwise instructed by Buyer.

6. Shipping. Seller shall give written notice of shipment to Buyer when the Goods are delivered to a carrier for transportation. Seller shall provide Buyer all shipping documents, including the commercial invoice, packing list, and any other documents necessary to release the Goods to Buyer within five (5) business days after Seller delivers the Goods to the transportation carrier. The Order number must appear on all shipping documents, shipping labels, invoices, correspondence and any other documents pertaining to the Order.

7. Title and Risk of Loss. Title passes to Buyer upon delivery of the Goods to the Delivery Location. Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.

8. Packaging. All Goods shall be packed for shipment according to Buyer's instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material shall be made at Seller’s expense.

9. Documentation. Upon Buyer’s request, Buyer shall be given copies of all written materials related to the Goods and/or Services and made available to the public, including, without limitation, all user, operating, maintenance and other technical manuals (collectively, “Documentation”), as well as all brochures, specifications, and marketing materials. Documentation shall be made available to Buyer at a price no greater than that charged to the general public.

10. Amendment and Modification. No change to this Order is binding upon Buyer unless it is in writing, specifically states that it amends this Order and is signed by an authorized representative of Buyer.

11. Inspection and Rejection of Nonconforming Goods and/or Services. The Buyer has the right to inspect the Goods and/or Services on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods and/or Services, and may reject all or any portion of the Goods and/or Services if it determines the Goods and/or Services are nonconforming or defective. If Buyer rejects any portion of the Goods and/or Services, Buyer has the right, effective upon written notice to Seller, to: (a) rescind the Order in its entirety; (b) accept the Goods and/or Services at a reasonably reduced price; or (c) reject the Goods and/or Services and require replacement of the rejected Goods and/or Services. If Buyer requires replacement of the Goods and/or Services, Seller shall, at its expense, within five (5) business days replace the nonconforming Goods and/or Services and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods and/or Services, as applicable. If Seller fails to timely deliver replacement Goods and/or Services, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Order for cause pursuant to Section 14. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller’s obligations under the Order, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.

12. Price. The price of the Goods and/or Services is the price stated in the Order (the “Price”). Unless otherwise specified in the Order, the Price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer.

13. Payment and Invoices. Seller shall send to Buyer complete and accurate invoices covering all sums payable for Goods delivered and/or Services rendered in accordance with this Order and any applicable statement of work(s) (each a “SOW”).

(a) Invoices shall be detailed with a description of the pre-approved costs incurred and “Reimbursable Expenses” meaning those reasonable expenses, including travel, lodging, meals, etc., incurred by Seller on Buyer's behalf when such expenses are necessary for performance of the Services and/or provision of the Goods and are either preapproved in writing or explicitly provided for in the SOW. Reimbursable Expenses must be accompanied by (i) receipts, (ii) the name and employer of beneficiaries of expenses if not clear from the receipt, and (iii) a brief description of the business purpose of the expense. Reimbursable Expenses shall only be valid if comparable in accordance with Buyer’s travel and expense reimbursement policies. Payment will be made for undisputed charges and Reimbursable Expenses within forty-five (45) days from receipt by Buyer of an invoice that is in accordance with this Order. Payment of invoices shall be subject to withholding by Buyer for failure of Seller to meet the requirements of this Order, as determined in Buyer’s sole discretion. Buyer will pay, and Seller will accept, payments via the ACH payment Process.

(b) In the event of a payment dispute, Buyer shall deliver a written statement to Seller prior to the date payment is due on the disputed invoice listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth in this Section. The Parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under the Order notwithstanding any such dispute.

(c) All invoices shall be computed on the basis of costs incurred during the period for which the invoice is prepared will be made at a minimum (i) monthly or as otherwise set forth in the applicable SOW or (ii) after each delivery is made or as per the SOW. Seller will submit invoices electronically to: invoices@2u.com or any other email address specified in the applicable SOW/ Order or other electronic invoicing method acceptable to Buyer. Paper invoices will only be accepted at Buyer’s sole discretion and as permitted in writing (with email to suffice). All invoices shall specify, at a minimum, the following information: The purchase order number (if applicable), purchase order line item number (if applicable) with one (1) PO per invoice, a unique invoice number, a detailed description of the product or service, dates of service, the total amount due, taxes (if applicable), Seller name and remit to address, Seller contact information (e.g., telephone number, email address, etc.), the Buyer billing address is as noted on the applicable Order.

(d) Sales and Use Taxes. Unless Buyer provides Seller evidence of exemption or notifies Seller that Buyer will pay such taxes directly to the applicable tax authority, Buyer shall pay Seller, where Buyer is liable under applicable tax statute, amounts equal to taxes which are imposed upon Buyer’s acquisition of Goods and/or Services. This includes, but is not limited to, federal excise taxes, sales, consumption, value added or use taxes; provided, however, that Buyer shall not be obligated to pay or reimburse Seller for any taxes attributable to the sale of any Goods and/or Services which are imposed on or measured by net income. Buyer shall use the reverse charge mechanism to the extent available under local law. To the extent possible, invoices shall separately list taxable and nontaxable charges where applicable. To the extent Seller fails to bill Buyer pursuant to this Section, then Seller shall be responsible for all penalties and interest payments associated with such failure. At the request of Buyer, Seller shall prepare, execute, and deliver to the Buyer a Federal Form W-9 or the equivalent thereof. Notwithstanding anything to the contrary, if Buyer is required to withhold taxes on any payments due to Seller hereunder, Buyer shall be entitled to deduct such taxes from such payments unless Seller provides evidence of exemption and, upon receiving a written request, shall provide Seller with an official or notarized receipt issued by the appropriate tax authority or other documentation, evidencing such payment to such authorities. Seller shall provide Buyer with, and Buyer shall accept in good faith exemption documentation, as applicable. Seller shall not be obligated to pay or reimburse Buyer for additions to withholding taxes, penalties, interest, fees, or other expenses or costs, if any, as a result of, or attributable to Buyer's failure to correctly calculate or remit taxes in a timely manner.

14. Termination. Buyer may terminate this Order, in whole or in part, at any time with or without cause for undelivered Goods and/or Services. In addition to any remedies that may be provided under these Terms, Buyer may terminate this Order with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods, if Seller has not performed or complied with any of these Terms, in whole or in part. If the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the Buyer may terminate this Order upon written notice to Seller. If Buyer terminates the Order for any reason, Seller’s sole and exclusive remedy is payment for the Goods and/or Services received and accepted by Buyer prior to the termination.

15. Setoff. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller.

16. Warranties. Seller warrants to Buyer that all Goods and/or Services will: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; (f) not infringe on, violate or misappropriate any third party’s intellectual property rights; (g) comply with all applicable laws in its performance of the Services and/or provision of the Goods, including, without limitation all applicable export laws; (vi) it will obtain all applicable export licenses and will not export or re-export any Goods (including Software) and/or Services to any country in violation of any export laws or any country that may be subject to an embargo by the United States; (vii) performance of the Services and/or provision of the Goods do not and will not conflict with or result in any breach or violation of any other contracts, agreements, understandings or other obligations that Seller has or will have with any third parties; (viii) it will pass on to Buyer all manufacturers’ warranties, if any; and (ix) all Goods and/or Services including, without limitation, software provided hereunder shall be free of any computer virus or any other similar harmful, malicious, or hidden programs or data. For the purposes of this Section, the term “Software” shall include, without limitation, firmware, computer operating systems, application programs, databases, and interface systems and devices. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods and/or Services by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Goods and/or Services with the foregoing warranties. If Buyer gives Seller notice of noncompliance with this Section, Seller shall, at its own cost and expense, promptly replace or repair the defective or nonconforming Goods and/or Services and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming Goods to Seller and the delivery of repaired or replacement Goods and/or Services to Buyer.

17. Software License Rights. Seller hereby grants to Buyer and Buyer hereby accepts the grant of a fully paid, worldwide, nonexclusive, perpetual, royalty-free license to use the software and the object code and to make archival copies of the software as identified on the face of this Order or in the statement of the work that does not otherwise constitute Buyer Materials. If required by the statement of work, Seller shall grant and Buyer hereby accepts the grant of a license to use, modify, reproduce and sublicense to Client, under the terms of Buyer’s contract with Client, the software and the object code of said software. Seller hereby grants, and Buyer hereby accepts such other rights in said software as are set forth on the face of the Order or in the statement of work. Seller shall assume all responsibility for including appropriate proprietary rights legends on Seller’s software and any accompanying documentation. Buyer shall not remove or alter any such legends. In the event the software purchased under this Order is required to support one of Buyer’s Client, Buyer shall have the right to transfer any and all licenses to the respective end Client in accordance with Buyer’s contract. Should any of the software and/or object code become, or be likely to become in Seller’s opinion, the subject of any such claim of infringement, Seller may, at Buyer’s option, (i) procure for Buyer the right to continue using the software; (ii) replace or modify the software to make it non-infringing; or (iii) terminate the Order with respect to such software and refund to Buyer any fees paid by Buyer for such software. Seller shall furnish, upon Buyer’s request, waivers by Seller and all other persons entitled to assert any lien rights in connection with the performance of this Order. Notwithstanding the foregoing, to the extent such software constitutes Buyer Materials (as defined below), Buyer’s rights with respect to such software shall be as set forth in Section 18.

18. Ownership of Work Product: All property or other materials furnished by Buyer to Seller hereunder will remain the property of Buyer, and Seller shall identify, maintain, preserve, and/or dispose of such material in accordance with Buyer’s direction. All materials, software, tools, data, inventions, reports, models, formulas, macros, works of authorship, products, deliverables, documentation, innovations, or any other materials provided to Buyer or conceived, created, reduced to practice, or otherwise developed, delivered, or prepared by Seller, or any of its employees, agents, or permitted subcontractors, in connection with Seller’s performance under this Order (“Buyer Materials”), shall be owned by Buyer. Buyer shall have the exclusive right, title, and interest, including all intellectual property and ownership rights, in the Buyer Materials, including, without limitation, the right to obtain and to hold in its own name copyrights, patents, and trademarks, including any related registrations or such other protection as may be appropriate to the subject matter, and any extensions and renewals thereto. To the extent that exclusive right, title, and interest in the Buyer Materials may not originally vest in Buyer as contemplated in this Order, Seller hereby irrevocably assigns all right, title, and interest, including any intellectual property and ownership rights, in the foregoing to Buyer and will cause its employees, agents, and permitted subcontractors to irrevocably assign to Buyer all such rights and will cause its employees, agents, and permitted subcontractors to, give Buyer all reasonable assistance and execute all documents necessary to assist with enabling Buyer to prosecute, perfect, register, or record its rights in and to the Buyer Materials. With respect to copyrightable works, Buyer and Seller agree that any such works which qualify as commissioned works under the United States Copyright Laws are considered “works made for hire” with copyright ownership in Buyer; otherwise, Seller agrees to assign, and does hereby assign copyright ownership of the works to Buyer.

19. General Indemnification. Seller shall defend, indemnify and hold harmless Buyer and Buyer’s Clients, subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders and employees (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the Goods and/or Services purchased from Seller or Seller’s negligence, willful misconduct or breach of the Terms. Seller shall not enter into any settlement without Buyer’s or Indemnitee's prior written consent.

20. Intellectual Property Indemnification. Seller shall, at its expense, defend, indemnify and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer’s or Indemnitee’s use or possession of the Goods and/or Services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Seller enter into any settlement without Buyer’s or Indemnitee’s prior written consent.

21. Limitation of Liability. Nothing in this Order shall exclude or limit (a) Seller’s liability under Sections 16 – 20, 23 and 24 hereof, or (b) Seller’s liability for fraud, personal injury or death caused by its negligence or willful misconduct. Buyer shall not be liable to Seller for any special, consequential, indirect, exemplary, incidental, or punitive damages, including any damages on account of lost profits, lost data, loss of use of data, or lost opportunity, whether or not placed on notice of any such alleged damages and regardless of the form of action in which such damages may be sought. In no event shall Buyer be liable to Seller hereunder for any damages in excess of the fees actually paid by Buyer to Seller during the immediately preceding twelve (12) month period under an applicable Order under which the damages arose.

22. Insurance. During the term of the Order and for a period of on (1) year thereafter, Seller shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, Commercial General Liability (including product liability) with no reduction/limitation of the standard contractual liability provided by the Commercial General Liability policy with said coverage not being less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) general aggregate. If Seller will be operating an automobile in connection with the Services to be performed under this Order, Seller shall carry Commercial Automobile Liability in the amount of One Million Dollars ($1,000,000) or equivalent, combined single limit for bodily injury and property damage for each accident (no aggregate) including Owned, Non-owned and Hired vehicles used in the performance of the Services. If required by statute in the state in which the Seller lives or works, Seller shall maintain statutory Workers’ Compensation insurance and Employers Liability in the amount of One Million Dollars ($1,000,000). If Seller is preforming professional services under the Order, Seller shall have and maintain Professional Liability coverage with limits not being less than One Million Dollars ($1,000,000) per claim. This Professional Liability coverage shall be maintained for a period of three (3) years after the final payment to the Seller under this Order or include an extended reporting period for that same period. The insurance coverage described above shall be placed with an admitted insurance company with a rating of A – (minus) VII or better by A.M. Best.

(a) The insurance policies required above shall be evidenced by a Certificate of Insurance, which shall be provided to Buyer and such insurances shall; (i) name 2U, Inc., and any of its subsidiaries as additional insured with respect to Employers Liability, General Liability, Automobile Liability (when vehicles are operated within the scope of Services); (ii) include a waiver of subrogation rights in favor of the Buyer and any of its subsidiaries; and (iii) be primary and non-contributory.

23. Confidential Information. All non-public, confidential or proprietary information of the Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Order is confidential information, solely for the use of performing the Order and may not be disclosed or copied unless authorized by Buyer in writing (collectively, “Confidential Information”). This Section shall not apply to information that is: (a) in the public domain; (b) known to the Seller at the time of disclosure; or (c) rightfully obtained by the Seller on a non-confidential basis from a third party.

(a) Non-Use and Non-Disclosure. Seller agrees not to use any Confidential Information of Buyer for any purpose other than in furtherance of the obligations of the Order and these Terms. Seller agrees to refrain from disclosing the Confidential Information to any third parties, other than the Seller’s affiliates, employees and contractors, provided that Seller shall inform such personnel of the confidential nature of the Confidential Information and the obligations set forth in these Terms. Seller shall be liable for its personnel’s failure to comply with the restrictions set forth herein concerning the unauthorized disclosure of Buyer’s Confidential Information. Seller shall maintain the Confidential Information in strict confidence and shall take all commercially reasonable measures to protect the Confidential Information from misappropriation, loss, theft, misuse or disclosure. In no event shall such commercially reasonable measures be less than those used by Seller to protect its own confidential and proprietary information. Seller agrees that it shall not reverse engineer or disassemble any software or other tangible items that contain Buyer’s Confidential Information, and which are provided to Seller hereunder.

(b) Compulsory Disclosure. If Seller becomes legally compelled to disclose any part(s) of the Confidential Information, Seller shall promptly notify Buyer to enable Buyer to seek a protective order or take other action(s) Buyer believes is necessary to protect its Confidential Information. Seller shall limit any disclosure of Buyer’s Confidential Information solely to the portion(s) which it is legally compelled to disclose.

(c) Return or Destruction of Confidential Information. Upon receiving a demand in writing from Buyer, Seller agrees to return or destroy any or all of the Confidential Information, and all copies thereof, furnished hereunder to Seller. To the extent that Seller possesses Confidential Information that cannot be returned, Seller agrees to destroy, and not retain any copies of, such Confidential Information. Upon Buyer’s request, Seller shall certify in writing that Seller has complied with its obligations hereunder. Notwithstanding the foregoing, Seller may retain copies of the Confidential Information that are stored on Seller’s standard electronic backup and disaster recovery systems until ordinary course deletion thereof. Seller shall continue to be bound by the conditions of these Terms with respect to any such retained Confidential Information.

(d) Data Processing Addendum. If Seller shall process any personal data as part of the provision of Goods and/or the performance of Services, Seller represents and warrants that it shall comply with the 2U Data Processing Addendum, which is incorporated into this Section 23 by reference. Further, Company shall consider all Personal Information (as such term is defined in the 2U Data Processing Addendum) as 2U’s Confidential Information.

24. Compliance with Law. Seller is in compliance with and shall comply with all applicable laws, regulations and ordinances. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Order. Seller shall comply with all export and import laws of all countries involved in the sale of Goods and/or Services under this Order. Seller assumes all responsibility for shipments of Goods and/or Services requiring any government import clearance. Buyer may terminate this Order if any government authority imposes antidumping duties, countervailing duties or any retaliatory duties on the Goods and/or Services.

25. Waiver. No waiver by any Party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in the Order, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

26. No Publicity. Seller may not use Buyer’s name, or any trademark, service mark, trade name, logo or other commercial or product designations of Buyer for any purpose without the prior written consent of Buyer in each instance. Seller will not, without the prior written approval of the Buyer, make any public statement, press release, presentation, or other announcement relating to the existence or terms of this Order.

27. Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached these, for any failure or delay in fulfilling or performing any term of this Order, when and to the extent such Party’s (the “Impacted Party”) failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, other potential disaster(s) or catastrophe(s), such as epidemics or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Order; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within ten (10) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party is the Seller and the Impacted Party’s failure or delay remains uncured for a period of thirty (30) days, Buyer may terminate the Agreement without liability and shall be entitled to a pro rata refund for pre-paid Goods and/or Services which will not be delivered and/or performed.

28. Assignment. Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Order without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Buyer may at any time assign, transfer or subcontract any or all of its rights or obligations under the Order without Seller’s prior written consent.

29. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in the Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. No relationship of exclusivity shall be construed from this Order.

30. No Third-Party Beneficiaries. This Order is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

31. Governing Law/Choice of Venue/Disputes. For Orders by 2U Inc., or any of its United States based affiliates or subsidiaries, the validity, applicability and interpretation of this Agreement shall be governed and construed pursuant to the laws of the State of Maryland, without giving effect to its conflict of laws principles that require the application of the law of a different state. Both Parties shall attempt to mutually dispose of good faith disputes concerning questions of fact and/or law arising hereunder. In the event of any dispute arising under this Agreement that is not settled by the Parties in good faith, the Parties consent to the jurisdiction of the courts (state or federal) located within Maryland. For Orders by 2U’s United Kingdom based subsidiaries, the validity, applicability and interpretation of this Agreement shall be governed and construed pursuant to the laws of England and Wales, and in such event, any dispute arising under this Agreement will be subject to the jurisdiction of the courts located within the England and Wales. For Orders by 2U’s South African based subsidiary, the validity, applicability and interpretation of this Agreement shall be governed and construed pursuant to the laws of South Africa, and in such event, any dispute arising under this Agreement will be subject to the jurisdiction of the courts located within the Western Cape of South Africa.

32. Cumulative Remedies. The rights and remedies under this Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.

33. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth on the face of this Order or to such other address that may be designated by the receiving Party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Order, a Notice is effective only (a) upon receipt of the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section. Any Notice provided hereunder shall be deemed to have been given and received as shown below:

Type of Delivery = Given and Received

  • Personally delivered = Immediately upon delivery
  • Emailed = Immediately upon delivery confirmation or 24 hours after transmission
  • Mailed by Overnight Delivery = 24 hours after mailed
  • First Class Mail (Return Receipt) = 72 hours after mailing

34. Severability. If any term or provision of this Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Order or invalidate or render unenforceable such term or provision in any other jurisdiction.

35. Survival. Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following Sections: 16 – 26; 29 – 32; and 34 and 35.