Reseller and Supplier (as defined below) agree to apply these terms and conditions to work together.
All Purchase Orders are issued on the basis of these terms and conditions (further "Terms and Conditions") to the exclusion of any other terms and conditions on the same subject matter. Supplier agrees that its own terms and conditions of supply shall not apply.
Defined Terms. Unless stated otherwise, all capitalized terms in these Terms and Conditions shall have the following meaning:
"Customer" shall mean the party/end user to which the Reseller provides a product;
"EDI" shall mean electronic data interchange;
"ETA" shall mean estimated time of arrival;
"EULA" shall mean the terms and conditions of the end user's use of the relevant
software provided by the publisher/rightsholder of such software;
"IPR" shall mean all intellectual and industrial property rights anywhere in the world, including, without limitation, any invention, patent, design or utility model rights, any copyright and trade marks, service marks, database rights, moral rights, topography rights, commercial or confidential information, know how or trade secrets, and any other rights of a similar nature whether or not any of the same are registered, and the right to apply for any of them;
"MDS" shall mean manual drop ship;
"Products and Services" shall mean IT hardware or software or services, purchased by the Reseller from the Supplier for the purpose of supplying it to the Customer;
"POD" shall mean "proof of delivery", a document from the relevant courier confirming delivery of a Product to a Customer;
"Purchase Order" shall mean the document issued by the Reseller to the Supplier which contains the details of the order;
"Reseller" shall mean the Insight Group company issuing the Purchase Order;
"RMA" shall mean the Reseller's standard returns form;
"Supplier" shall mean the company to which the Reseller issues a Purchase Order.
1. Term / binding contracts: These Terms and Conditions will remain in effect for any Purchase Orders unless otherwise agreed in writing between the parties. These Terms and Conditions are subject to change without prior notice at any time, in the Reseller's sole discretion. These Terms and Conditions may NOT be altered, supplemented, or amended by the use of any other document(s) from the Supplier.
2. Order Process: The Reseller shall place all orders by sending a Purchase Order to the Supplier. The Purchase Order will be considered as accepted on the day of sending of the Purchase Order by the Reseller to the Supplier. The Supplier shall provide written acknowledgement of all Purchase Orders within one working day of receipt of the Purchase Order. If the Reseller does not receive an acknowledgement of the Purchase Order by the Supplier, the Reseller will have the right to cancel the Purchase Order at any time without incurring any fees and without liability. All orders placed by the Reseller for delivery shall be fully shipped. In case of part-shipment, for example when full stock is not available, the Reseller will only pay the delivery fees for the first shipment. All EDI and MDS orders shall be shipped in full to the Customer and the Supplier hereby acknowledges that part-shipment is not acceptable. Extra charges will have to be undertaken by the Supplier and Supplier will be liable in case of complaint from the Customer due to the delay of the delivery. The Supplier hereby acknowledges that only the Reseller is authorized to amend, delay or cancel any Purchase Orders.
3. EULA. Customers' use of a software Product shall be governed by the EULA packaged by the Supplier or software publisher (as applicable) with all software Products and Reseller shall have no responsibility for adding any terms or conditions of Product use with such software Products to Customers.
4. Warranty: Reseller shall not make any warranties or representations regarding the Products, but shall pass through to the Customers those representations and warranties offered to Customers by Supplier.
5. Demonstration Copies: Supplier shall provide to Reseller, at no cost or expense to Reseller (unless otherwise mutually agreed in writing by the parties) fully functional evaluation units and demonstration units of the Products and will provide updates to such Products as they become available. Reseller may use these Products in its test and evaluation laboratory and for Customer demonstration purposes, in such number and on such terms as Supplier may allow from time to time. In such event, Reseller shall comply with and be bound by the EULA for any software Product so used. Unless otherwise agreed to in writing by the Supplier, Reseller shall not resell, lease, rent or sub-license any Product used for evaluation or demonstration purposes. Reseller acknowledges and agrees that, unless otherwise agreed to in writing with the Supplier; it will not modify or adapt the Products in order to use them for the limited evaluation or demonstration purposes contemplated herein.
6. Confidentiality: Each party shall preserve the secrecy of all confidential information of the other which it receives, keep such information secure and protected against theft, damage, loss or unauthorized access, and not use such information for any purpose except as contemplated by the Purchase Order. Moreover, each party shall ensure that such obligations are observed by its employees, officers, agents and contractors. These obligations shall survive a period of three years after the performance of the Purchase Order but shall not apply to information which is already in or subsequently comes into the public domain through no fault of the recipient.
7. Limited Warranties: Supplier represents and warrants to Reseller that (i) software Products conform in all material respects to the EULA and all applicable Product documentation, (ii) hardware Products conform in all material respects to the warranty included with the shipment of each piece of hardware, (iii) Products shall be free from defects, of satisfactory quality, and suitable for Reseller's intended purpose to the extent such purposes are known or should reasonably be known to Supplier and (iv) Services performed conform in all material respects to the relevant services agreement detailing such Services. Supplier makes no representations or warranties concerning the Products except as expressly set forth herein.
8. Limitation of Liability: IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFIT, DATA AND PROGRAMS, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY.
9. Ownership of IPR , Indemnity: Supplier hereby represents and warrants to Reseller that Supplier owns all patent, copyright, trade secret and other proprietary rights in and to the Products. If any action is brought against Reseller claiming that a Product infringes any patent, copyright, trade secret or other proprietary right of a thirdparty, Supplier agrees to indemnify, defend and hold harmless Reseller against such claim at Supplier's expense, and Supplier shall pay any and all damages, awards, fees, costs, and expenses associated therewith, including without limitation, any amounts paid in settlement thereof and reasonable attorneys fees. If Reseller's ability to resell any of the Products is impeded or should any of the Products become, or in Supplier's opinion be likely to become the subject of a claim of IPR infringement, Supplier shall at its option: (i) procure for Reseller at no cost to Reseller the right to continue to resell the Products; (ii) replace or modify the Products, at no cost to Reseller, to make such Products non-infringing, provided that the same function is performed by the replacement or modified Products; or (iii) terminate the right to resell such Products, remove the Products and grant Reseller credit of Reseller's purchase price for any such Products in Reseller's inventory.
10. Exports: Supplier warrants that all Products are in compliance with all applicable export and import laws. Supplier shall indemnify the Reseller for any costs or losses incurred as a result of Supplier's breach of warranty in this clause 10.
11. Assistance: Supplier hereby agrees to make available to Reseller, at no cost to Reseller, such reasonable information and assistance as may be required from time to time for the sale of the Products, including but not limited to: (i) providing Reseller with logos, together with all relevant permissions and licences from the from the IPR owner to use such logos, for use in web and print marketing collateral, (ii) providing sales assistance to Reseller as needed from time to time and on a reasonable basis, (iii) making available electronic copies of sales and marketing materials, and (iv) providing technical training and support services to Reseller. Within 60 days from the date of the Reseller's first Purchase Order, Supplier agrees that it will place a link on its web page directing Customers to Reseller's web page. Reseller shall have no obligation to provide post-sale technical support or maintenance to any Customer. Supplier and Reseller may enter into a separate technical support agreement under which Reseller may resell Supplier's technical support services.
12. Pricing: Unless otherwise expressly agreed in writing, the price for the Products and Services stated in the quotation and the corresponding Purchase Order shall be fixed and shall include all tax costs, expenses and charges (including delivery and insurance) chargeable in respect of the Products and/or Services. Both parties hereby agree that the Purchase Order is binding and the price within the Purchase Order shall be fixed unless otherwise agreed in writing. Any price changes following the Supplier's receipt of the Purchase Order must be agreed by both parties in writing. Where the details provided by the Reseller within the Purchase Order do not match the Supplier sale price: (i) the order shall not be shipped; or (ii) the parties shall use all reasonable efforts to resolve any discrepancies within 24 hours; or (iii) the order shall not be shipped until such time as the pricing discrepancy has been resolved and written confirmation has been provided to the Supplier by the Reseller, authorizing shipment. All email records of any such agreements shall be retained by the Supplier until such time as the invoice has been paid by the Reseller. Products shall be invoiced after delivery. Services shall be invoiced after acceptance or (if no acceptance procedure applies) monthly in arrears in respect of Services provided in that month. Where the Supplier offers a discount to the Reseller, such discount shall be defined in the specific conditions between the parties or in the quotation. Discounts shall remain fixed until changed by mutual agreement of the parties, and shall be applied to Supplier's prevailing list prices (including promotions and incentives). In the event Supplier provides to another reseller or resellers a more favourable discount to Product list prices, Supplier shall automatically increase the discount to the more favourable discount, effective as of the date it was provided to such other reseller(s) and continuing for so long as such more favourable discount is offered. In the event Supplier sells Products directly to a prospect generated by Reseller, the Supplier shall compensate Reseller by paying Reseller, within thirty (30) days of such sale, an amount equal to the discount multiplied by the sale price of the Products sold. In the event of a decrease in the Supplier's list prices (or an increase in the discount) between Reseller's submission of a purchase order and Supplier's invoice to Reseller, Supplier shall provide Reseller the benefit of such price decreases (or discount increases) for that Purchase Order and for all orders subsequently delivered after the price decrease (or discount increase, as the case may be) goes into effect. On a case-by-case basis, as mutually agreed in writing by Supplier and Reseller, Reseller may defer all or any portion of Reseller's discount on Products. In such event, Supplier shall pay a rebate to Reseller, within 30 days of receipt of Reseller's payment of the applicable invoice, an amount equal to the deferred portion of the discount. Reseller is solely responsible for setting the prices it charges to Customers. Suggested resale prices by Supplier shall not be binding in any way on the Reseller.
13. Price Variance: In case of price discrepancy or litigation, the order shall not be shipped until the price discrepancy has been resolved and confirmation authorizing shipment has been provided by the Reseller to the Supplier by email. All email records of any such agreement will be retained by the Supplier until the invoice has been paid.
14. Payment Terms: Supplier will invoice Reseller for each individual Purchase Order. All payments shall be made in the local currency of the Reseller. Invoices shall be paid within forty-five (45) days of the date the invoice is received by the Reseller.
15. Delivery Terms: Products are delivered Delivery and Duty Paid (DDP), incoterms 2000. Reseller shall furnish Supplier with a Purchase Order for any Products it wishes to purchase with sufficient information for Supplier to process the Purchase Order. Supplier will ship the Product to the Customer in accordance with the Purchase Order within the delivery time frame set forth in the Purchase Order, or if none is set forth, within a reasonable time from the Supplier's receipt of such Purchase Order. Reseller may cancel any Purchase Order prior to shipment by Supplier. The Reseller may postpone delivery and/or performance of any Products or Services by notice given to the Supplier at any time before delivery and/or performance. The Supplier shall ensure that, to the extent the Services are to be performed at Reseller's premises, the Supplier's employees and representatives observe all health and safety, security and other requirements which Reseller may reasonably impose. The cost of any necessary safety induction training will be borne by the Supplier. The Supplier hereby acknowledges that all Products are signed for as unchecked and a proof of delivery does not constitute acceptance of the Products. Where the Supplier has shipped to the wrong delivery address (except where the fault is with Reseller), the Supplier shall re-deliver, at its own expense, the Products within 24 hours to the correct delivery address or issue a full credit to Reseller. Where the delivery has failed, the Supplier shall attempt delivery a further two times andthen credit Reseller in full if this is unsuccessful. Where Reseller contacts the Supplier to register a lost parcel and the Supplier is unable to produce a signed POD within 48 hours, the Supplier shall provide Reseller with a credit for the full purchase price of the Product/s. Where the external packaging is damaged on arrival and the Customer has signed to confirm this, the Supplier shall authorize a return for credit. If the box is undamaged but the Products inside are damaged then the Supplier shall authorize a return for credit. Where the Supplier fails to deliver within the agreed delivery times (next day delivery) Reseller shall be entitled to a full reimbursement for any delivery charges. These reimbursements shall be claimed back by Reseller on a weekly basis. The Supplier shall provide weekly delivery reports (including details of the date of orders placed by Reseller and the date the Products were received by Customers) to the Reseller. The Supplier shall obtain a POD signed by the Customer for each delivery made. Where Reseller makes a request for a copy of the POD, the Supplier shall provide a hard copy of the POD within 24 hours of request (unless otherwise agreed). If the Supplier is unable to deliver a POD within this timeframe, it shall communicate this to Reseller prior to the due date. Title and risk in the Products shall pass to the Reseller or the Customer directly, as applicable, upon delivery of the Products to the Reseller/Customer.
16. Rejection: If the Supplier breaches any of these Terms and Conditions, Reseller may reject and return the Products at the Supplier's cost within 12 months after delivery notwithstanding prior payment and without prejudice to any other right of the Reseller. Risk in the Products shall revert to the Supplier upon such rejection.
17. Faulty Goods. For hardware Products, all hardware Products which are dead on arrival/ dead on bench shall be tested by Reseller's technical support team and a faulty description shall be provided to the Supplier. Upon receipt of the fault description, the Supplier shall have sole responsibility for complying with the Dead on Arrival/ dead on bench procedures laid down by the relevant manufacturer in order to secure a credit. (Supplier shall provide a complete list of the Manufacturer's policies upon request). Any Product returned by a Customer pursuant to a Supplier warranty, promotion or other offer, or any Product found to be defective can be returned within ninety (90) days of the invoice date or the shipment date, the latest to apply to determine the starting date of the warranty. Any return to occur after the period of 90 days will have to be agreed between the parties or authorized in the warranty of the Product. A "defective" Product, for purposes of this paragraph, means one which fails to conform to Supplier's warranty. Where the Reseller requests a resolution under the hardware Product manufacturer's warranty, the Supplier shall have 21 days from receipt of the faulty Product to obtain a repair,replacement or credit from the relevant manufacturer. Should any repair, replacement or credit attempt by the Supplier be unsuccessful, Reseller shall be entitled to receive a credit in respect of the faulty Product.
18. EDI Processes All return requests for EDI deliveries will be for credit only. The Supplier shall not ship replacement products. Reseller shall arrange the collection of the Products from a Customer and where necessary return the Products to the Supplier. Reseller will not accept restocking fees on any Products ordered via EDI as the nature of the process dictates that such Products are not specially held for the Reseller. Reseller agreed these rotations will not exceed 5% of Reseller's previous month's EDI purchases. In the event that a duplicate EDI Product is shipped to a Customer, the Supplier shall provide a full credit for the Products and reimbursement of all fulfilment charges. This clause shall apply even in the event that the Products have been damaged or opened. The Supplier shall provide Reseller with immediate written notification of any Products which are due to go 'End of Life'. The Reseller shall then return any End of Life stock to the Supplier within 5 working days in return for a full credit. The Reseller shall be given 60 days from the date of delivery to request stock rotation with the Supplier.
The Supplier shall complete all stock rotation requests within 72 hours of receipt of the request. The Supplier shall provide Reseller with written notification of any price decreases on the day the price decreases to enable Reseller to claim price protection on the Products within 30 days of receipt of such notification from the Supplier. Reseller shall be credited the difference for any price decreases made by the manufacturer on all Products held by Reseller on Reseller's premises. All such credits shall be made within 30 days of Reseller's request.
19. Product Returns. Supplier shall accept all returns of Products within 90 days of shipment to a Customer (unless otherwise agreed). The Reseller shall not be liable for any restocking fee. Reseller shall use the RMA and the Supplier will accept this as the only documentation required to process a return. The Supplier shall acknowledge receipt of an RMA within 24 hours of such receipt and shall authorize a return within 48 hours of receipt of an RMA from Reseller. Supplier shall be liable for any delay in the provision of the acknowledgment and acceptance of the return. Where a credit is agreed in respect of the return, Reseller shall receive this credit within 30 days of sending the RMA. The Supplier hereby agrees to pay all delivery charges for all returns from Reseller back to the Supplier's premises and shall prepay the freight charges on the return shipment to Reseller or the Customer. Upon receipt of a returned item, the Supplier shall notify Reseller of any discrepancy or rejection of the return and obtain a unique reference number by contacting Reseller via email. This unique reference number must be visible and attached to all external packaging when sending the returned item back to Reseller. Failure to comply with this policy shall result in the returned item being refused by Reseller. In all cases (including stock rotations) Reseller will be refunded the original purchase price for the returned good, unless agreed otherwise in writing in advance by the Reseller's Inventory Management Team. The Supplier shall retain a record of any such agreement. Before a return is refused by the Supplier, the decision to refuse must be reviewed by the Supplier's dedicated External Account Manager appointed to manage the Reseller's account and the Group Purchasing Manager. Written justification for the refusal shall be provided if requested by the Reseller. All refused processed stock rotations shall first be reviewed by the Supplier's dedicated External Account Manager appointed to manage Insight Standard Terms and Conditions for the Purchase of Products and Services the Reseller's account and the Group Purchasing Manager. Written or email justification for the refusal shall be provided if requested by the Reseller. Any refused deliveries that are deemed fit for re-sale (as agreed by both parties) shall be re-sent to the Supplier.
20. MDS The Supplier shall provide invoice and tracer numbers for all MDS orders, whether physical or electronic which are made on behalf of the Reseller, within 24 hours after the delivery date.
21. Product Backlog Status Report The Supplier shall produce a report each morning by 11am notifying the Reseller of the status of all lines on all outstanding Purchase Orders with an ETA date or status of the Products This report shall include a Product tracer number and invoice number (where possible). The Supplier shall provide a report detailing any orders which have been outstanding in excess of 30 days. This report shall also detail an alternative offer which Reseller can propose to the Customer.
22. Errors Where Products are mis-shipped through the Supplier's error, the Supplier shall accept the return of all open-box Products and provide a full credit. In the event that the Supplier delivers a cancelled order or sends an order in duplicate, it shall notify the Reseller of the error within 14 days of shipping. The Supplier hereby acknowledges that failure to comply with this provision shall prevent the Reseller from processing payment of that order. Upon receipt of notification of a shipping error, the Reseller shall use its reasonable endeavours (which shall exclude the commencement of proceedings against Customers) to recover the Products from the Customer or conclude a sale of the Products where possible, failing which, the Reseller shall not be liable for the cost of the Products. In the event that the Reseller makes an error on an order, the Reseller shall accept responsibility for the mistake.
23. Termination: Either party may terminate these Terms and Conditions at any time upon written notice to the other party upon the occurrence of any of the following: (i) the other party is deemed to be bankrupt or insolvent or is under a material threat of bankruptcy or insolvency in accordance with applicable law ; (ii) such other party admits in writing its inability to meet its debts as they mature; (iii) such other party fails to substantially comply with any material term, condition or covenant contained herein and fails to correct such lack of compliance within thirty (30) days after receipt of written notice of such failure from the non defaulting party; or (iv) fail to promptly pay or dispute any amount due under these Terms and Conditions within fifteen (15) days following written notice by such other party. Notwithstanding the terms and conditions contained herein, either party may terminate these Terms and Conditions without cause upon sixty (60) days prior written notice to the other party. In the event of termination by a party in accordance with any provisions of these Terms and Conditions, neither party shall be liable to the other in any way because of such termination. Termination of these Conditions will not relieve either party from fulfilling its obligations which by their terms or nature survive termination.
24. Anti-Bribery The Supplier shall (i) comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the UK Bribery Act 2010 and the US Foreign and Corrupt Practice Act ("Relevant Requirements") (ii) have and shall maintain in place its own policies and procedures, including but not limited to adequate procedures under the UK Bribery Act 2010 (iii) promptly report to the Reseller any request or demand for any undue financial or other advantage of any kind received by Supplier in connection with these Terms and Conditions (iv) immediately notify the Reseller if a foreign public official becomes an officer or employee of the Supplier or acquires a direct or indirect interest in the Supplier (and the Supplier warrants that it has no foreign public officials as officers, employees or direct or indirect owners) and (v) not engage in any activity, practice or conduct which would constitute an offence under the Relevant Requirements.
The Supplier shall provide such supporting evidence of compliance and the Reseller may reasonably request. The Supplier shall ensure that any person associated with the Supplier who is performing Services or providing Products in connection with these Conditions does so only on the basis of a written contract which imposes on and secures from such persons terms equivalent to those imposed on the Supplier in this clause ("Relevant Terms").
The Supplier shall be responsible for the observance and performance by such persons of the Relevant Terms and shall be directly liable to the Reseller for any breach by such persons of any of the Relevant Terms. Breach of this clause shall be deemed a material breach.
25. Miscellaneous Each party is an independent contractor to the other party, without authority to bind the other by contract or otherwise, and neither Party nor its employees and agents shall be considered agents or employees of the other party. Each party undertakes to respect any applicable law, especially data protection law. The failure of either party to exercise any of its rights or to enforce any of the provisions of these Terms and Conditions on any occasion shall not be a waiver of such right or provision, nor affect the right of such party thereafter to enforce each and every provision of these Conditions. The Supplier shall not assign or transfer any of its rights or obligations without Reseller's prior written consent, such consent not to be unreasonably withheld. The Supplier shall comply with all applicable legislation, regulations, directives or other enactment relating to its business.
THESE TERMS AND CONDITIONS WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW WHERE RESELLER IS LOCATED, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW RULES THAT MAY REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. These Terms and Conditions shall not be governed by the United Nations Convention on contracts for the International Sale of Products.