Insight Terms and Conditions for the Purchase of Products and Services
All Purchase Orders are issued on the basis of these terms and conditions (further “Terms and Conditions” or “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:
1. Term / Binding Contracts: These Terms and Conditions will remain in effect for any Purchase Orders relating to the Customer 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 in respect of new Purchase Orders. These Terms and Conditions may NOT be altered, supplemented, or amended by the use of any other document(s) from the Supplier. No automatic renewal: Unless otherwise agreed in writing by the Reseller and the Customer, no Products or Services Orders will be subject to an automatic renewal.
2. Order Process: Supplier shall respond to all requests for quotation promptly using commercial efforts to respond in 2 working days and shall deliver all Products within the shorter of: (i) the timescale stipulated in the request for quotation, or (ii) 8 business days where no delivery timescale is stipulated in the request for quotation. The quotation will remain valid for a period of at least 35 normal business days. After receipt of a quotation- the Reseller shall place all orders by sending a Purchase Order to the Supplier, based on the requested scope of work statement. 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. MDS orders shall be shipped in full to the Customer and the Supplier hereby acknowledges that part-shipment is not acceptable without prior written consent of Reseller. 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.
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. 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 not apply to information which is already in or subsequently comes into the public domain through no fault of the recipient.
6. Limited Warranties: Supplier represents and warrants to Reseller that (i) software Products shall conform in all material respects to the EULA and all applicable Product documentation, (ii) Products shall be free from defects and of satisfactory quality (iv) Supplier has obtained any required permit or licence required in the relevant country/state where the Services are to be provided in accordance with the Purchase Order, and (v) Services shall conform in all material respects to the relevant services description(s) applicable to such Services, shall be delivered with high quality standards, skill and care in accordance with recognised state of the art industry practice, and to the agreed timescales. In relation to Services rendered by Supplier, Supplier must ensure that its personnel are qualified to perform the Services and to work at the premises of Customer. If so required and at the reasonable request of Reseller and/or Customer, Supplier must promptly replace any member of personnel that does not have the expertise as mentioned in this clause 6 or has caused a disruption at the premises of the Customer.
7. Limitation of Liability: EXCEPT FOR SUPPLIER’S OBLIGATIONS AND LIABILITIES UNDER CLAUSE 22 DATA PROTECTION IN RESPECT OF SERVICES, 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. Excluding claims arising from gross negligence, IP infringement, breach of data protection clause 22, wilful misconduct and/or any liability that cannot legally be limited or excluded, both Parties liability in respect of a particular order shall be capped at an amount being three hundred percent (300%) of the Purchase Order value.
8. Ownership of IPR , Indemnity: Supplier hereby represents and warrants to Reseller that Supplier owns or licences all patent, copyright, trade secret and other proprietary rights in and to the Products. Supplier hereby agrees to assign by way of present assignation of future rights all intellectual property rights in any work product or bespoke deliverables arising from the services. If any action is brought against Reseller claiming that a Product and/or Service infringes any patent, copyright, trade secret or other proprietary right of a third party, 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 and/or Services is impeded or should any of the Products and/or Services 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 and/or Services; (ii) replace or modify the Products and/or Services , at no cost to Reseller, to make such Products and/or Services non-infringing, provided that the same function is performed by the replacement or modified Products and/or Services; or (iii) terminate the right to resell such Products and/or Services, remove the Products and/or Services grant Reseller credit of Reseller’s purchase price for any such Products and/or Services.
9. 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. 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 in respect of the Products and Services. Reseller shall have no obligation to provide post-sale technical support or maintenance to any Customer.
11. 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 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. 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.
12. Price Variance: In case of price discrepancy, 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.
13. 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 thirty (30) days of the date the invoice is received by the Reseller.
14. 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 7 Business Days 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 or Customer’s premises, the Supplier’s employees and representatives observe all health and safety, security and other requirements which Reseller and/or Customer as the case may be 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 and then 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 prompt full reimbursement for any delivery charges. If requested by Reseller, the Supplier shall provide delivery reports (including details of the date of orders placed by Reseller and the date the Products were received by Customers) to the Reseller. In respect of physical deliveries of Product, 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). Title and risk in the Products (except title to software which remains with the Supplier) shall pass to the Reseller or the Customer directly, as applicable, upon delivery of the Products to the Reseller/Customer.
15. Rejection: If the Supplier materially 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.
16. Product Returns. Supplier shall accept returns of Products for fault or breach within 90 days of shipment to a Customer (unless otherwise agreed). The Reseller shall not be liable for any restocking fee. Reseller shall use a 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 acknowledgement 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 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.
17. 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.
18. Product Backlog Status Report. The Supplier shall produce a report promptly upon request 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 3 days.
19. 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.
20. 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.
21. 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.
(a) process that personal data only on the written instructions of Insight unless the Supplier is otherwise required by Data Protection Legislation to process personal data. Where the Supplier is relying on the Data Protection Legislation as the basis for processing personal data, the Supplier shall promptly notify Insight of this before performing the processing required by the Data Protection Legislation;
(b) ensure that it has in place all appropriate technical and organisational measures as required under Data Protection Legislation, reviewed and approved by Insight (where required by Insight), to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. Those measures will include pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by Supplier. The Supplier shall not make any changes to security requirements, location of servers and functionality without prior written consent of Insight;
(c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
(d) assist Insight, in responding to any request from a data subject or Customer and in ensuring compliance with its or Customer’s obligations under the Data Protection Legislation including but not limited to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify Insight promptly and without undue delay, and at the latest within twenty-four (24) hours, on becoming aware of a personal data breach;
(f) at Insight’s sole discretion, delete or return personal data and copies thereof to Insight on termination of the Conditions ; In any event, no personal data shall be retained by the Supplier longer than it is necessary for the purposes for which the personal data are processed;
(g) maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by Insight or Insight’s designated auditor or Insight’s Customers or Insight’s Customers designated auditors ; and
(h) at the request of Insight enter in to a data processing agreement with Insight and / or Insight’s Customer on such terms as may be required by Insight or Customer, which the Supplier acknowledges may include the incorporation of approved model contract clauses.
(i) not transfer any personal data outside of the European Economic Area unless the prior written consent of Insight has been obtained and the following conditions are fulfilled:
(A) the Supplier has provided appropriate safeguards in relation to the transfer such as (1) the terms of the EU Model Clauses incorporated into this article 25 by reference; or (2) other binding and appropriate transfer mechanisms that provide an adequate level of protection in compliance with Data Protection Legislation;
(B) the data subject has enforceable rights and effective legal remedies; and
(C) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred.
The Supplier shall not without the prior written consent of Insight appoint any third party processor of personal data. Any transfer of personal data by Supplier to a third party shall be subject to a written agreement incorporating terms which are substantially the same as those set out in this clause. The Supplier shall ensure the compliance by its processors and third party to obligations at least as protective as the Supplier’s obligations set forth in this clause. As between Insight and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by the Supplier.
Notwithstanding any other provision of these Conditions, the Supplier shall indemnify Insight against all claims, liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Insight and Insight’s Customers arising out of or in connection with the processing of the personal data under these Conditions by Supplier or any Supplier appointed third party processor. This includes without limitation any third party, claim demand or action, or any breach of statutory duty or non-compliance with any part of these data protection obligations by the Supplier, its employees, servants, agents or sub-suppliers (including, without limitation claims against Supplier or its subcontractor, sub-supplier or other third party processor and/or Insight or Insight’s Customers).
The provisions set forth in this clause shall survive any expiration or termination of these Conditions and any Purchase Order for an indefinite period of time.
23. The Supplier shall during and for 1 year post-delivery of the Products and Services the following policies of insurance, unless other specific minimum insurance policy levels have been agreed in respect of a Purchase Order: Employers’ Liability Insurance of at least €5,000,000; Public Liability Insurance, Product Liability Insurance, Professional Indemnity insurance, each of at least €1,000,000; in respect of all risks which may be incurred by the Supplier arising out of its performance of its obligations under these Conditions.
24. 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 Legislation. 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.