Terms of Sale: Products and Services

THESE TERMS OF SALE ARE BETWEEN YOU (“CLIENT” OR “YOU”) AND THE INSIGHT ENTITY IDENTIFIED IN OUR OFFER TO SELL (“QUOTE” or “Quotation”), AN ORDER, INVOICE OR STATEMENT OF WORK (COLLECTIVELY, THE "AGREEMENT" OR “TERMS OF SALE”), AND WILL APPLY TO YOUR ORDER AND PURCHASE OF THIRD PARTY HARDWARE, SOFTWARE AND RELATED THIRD PARTY SERVICES (COLLECTIVELY, "PRODUCT"), AND ANY SERVICES PERFORMED BY INSIGHT AS DESCRIBED IN A QUOTE, ORDER OR STATEMENT OF WORK (“SERVICES”).

UPON PLACING AN ORDER FOR PRODUCTS AND SERVICES, YOU AGREE TO BE BOUND BY AND ACCEPT THE TERMS OF THIS AGREEMENT UNLESS AND TO THE EXTENT THERE IS A SEPARATE WRITTEN AGREEMENT EXECUTED BETWEEN THE PARTIES THAT GOVERNS. ANY ADDITIONAL OR DIFFERING TERMS OR CONDITIONS PROPOSED OR INCLUDED IN YOUR PURCHASE ORDER DOCUMENT OR ORDER ACCEPTANCE WILL BE FOR YOUR INTERNAL ADMINISTRATIVE PURPOSES ONLY AND NOT BECOME PART OF THE AGREEMENT AND ARE HEREBY EXPRESSLY REJECTED. NO COURSE OF PRIOR DEALINGS BETWEEN THE PARTIES AND NO USAGE OF TRADE WILL BE RELEVANT TO DETERMINE THE MEANING OF THIS AGREEMENT, INSIGHT’S QUOTE OR ANY ORDER OR INVOICE, REGARDLESS OF FORM.

1. Acceptance; Cancellation
   Client agrees that Insight’s quotation is an offer to sell and Client’s order is acceptance of such offer with respect to any Products or, with respect to Services, listed in Client’s order or as set forth in a written Statement of Work (“SOW”).  SOWs may not be terminated without cause except to the extent stated in any SOW. Orders and SOWs may be cancelled or terminated under the following conditions:
   1. Product: Cancellation of orders prior to or following shipment must be made in accordance with the cancellation or return policies of the manufacturer, publisher or supplier of the Product.
   2. Services: Either party may terminate the performance of a Service, SOW or order for Services for cause if the other party fails to remedy a material breach within thirty (30) days after receipt of written notice of such breach, except that it will only have ten (10) days to remedy any payment default. After Insight performs a Service or delivers a Deliverable to Client, if the Service or Deliverable does not meet the material requirements described in the SOW, then Client will provide Insight with a written explanation describing how the requirements were not met within 5 days following the date the Service or Deliverable was delivered to Client. If Client fails to provide the written explanation within this 5-day period, the Service and Deliverable will be deemed accepted by Client. For the purpose of this Agreement, “Deliverables” means the items created by Insight in connection with the Services, as specifically described in the relevant SOW.
   3. Effect: Cancellation or termination shall not relieve Client of Client’s duty to pay for Products shipped, Services performed, or fees and expenses incurred by Insight prior to receiving required written notice.
2. Automatic Renewal of Software Products
   Unless otherwise stated on an order, software products will automatically renew after their initial subscription period and Client shall be responsible for the costs associated with such renewal. If Client does not want a software product to automatically renew, Client is responsible for notifying Insight in advance of the automatic renewal date in accordance with the manufacturer's, publisher’s or supplier’s end user terms and conditions.
3. Accuracy of Data/Corrections
   Insight obtains certain data directly from the manufacturer, publisher or supplier of Products and is not responsible for pricing, typographical or other errors in any such data. Insight reserves the right to cancel orders related to such errors or Product discontinuation or unavailability, and to correct at any time, including pricing errors not detected until after Insight's confirmation or e-mail response.
4. Pricing/Availability
   Prices are subject to change at any time prior to Insight's acceptance of Client’s order. Pricing for backordered Products may be subject to change. If there is a price increase, the price will be quoted prior to shipment. The Client has the option to cancel or issue a revised PO at the new price. Prices are exclusive of all taxes, duties, shipping and handling charges. Availability of third-party Product is subject to change without notice.
5. Payment
   Payment terms are at Insight's sole discretion and all orders are subject to Insight's credit approval. Client agrees to pay the total purchase price for Products, plus tax and shipping (to the extent shipping is not prepaid by Client, including shipping charges billed to Insight as a result of using Client’s carrier account number or a carrier selected by Client).
   1. Invoicing/Payment: Product will be invoiced on the date of shipment. Services will be invoiced on the date performance is completed or as otherwise specified in any mutually agreed upon SOW. Client must pay all undisputed invoices in full within 30 days of the invoice date. All payments must reference the invoice number. Unless otherwise specified, all invoices shall be paid in the currency of the invoice.
   2. Credit/Late Payment: Client must provide appropriate credit references upon request and authorize us to obtain credit history from such references. Insight retains the right to decline to extend credit and to require that the applicable purchase price be paid prior to provision of Product or performance of Services based on changes in Insight's credit policies or Client’s financial condition and/or payment record. Insight reserves the right to charge interest of 1.5% per month or the maximum allowable by applicable law, whichever is less, for any undisputed past due invoices. Client is responsible for all costs of collection, including reasonable attorneys' fees, for any payment default on undisputed invoices. Insight may terminate or suspend deliveries or all further work if payment is not received in a timely manner.
   3. Taxes: Federal, state and local sales, use and excise taxes and all similar taxes and duties (excluding taxes based on Insight's income, assets or net worth) are solely Client’s responsibility. Client may provide Insight a tax exemption certificate, which will be subject to review and acceptance by Insight.
6. Delivery/Title/Risk of Loss
   Insight will use commercially reasonable efforts to meet requested delivery times but does not guarantee delivery by a stated time and is not responsible for any damages due to delays or the failure to meet a stated delivery schedule. Insight reserves the right to make deliveries in installments. Delay in delivery of one installment will not entitle Client to cancel other installments. Product will be delivered to you FOB Destination (Client’s designated facility), freight prepaid and added. Title and risk of loss shall pass to you when Product is delivered to your designated facility. Notwithstanding anything to the contrary in this paragraph, title to software Product remains with the applicable licensor(s), and software delivery occurs when it is first made available by the licensor or Insight for your use. Client grants a security interest in all Products purchased under this Agreement to secure payment in full. Additionally, Client authorizes Insight to execute and file a financing statement or other documents that are necessary to perfect Insight's security interest. Insight's security interest shall terminate when Insight has received all amounts due for the Product(s).
7. Product Purchase Authorization
   Certain software and cloud product offerings Client requests from Insight from time-to-time may only be acquired through the online e-commerce portal of an independent software or cloud product vendor that is not set up in Insight’s system or network of suppliers. Purchasing directly from such supplier’s e-commerce portal may require Insight to electronically accept the supplier’s end user terms on Client’s behalf. Therefore, for any such product offerings, Client (i) authorizes Insight to accept the applicable end user terms on Client’s behalf, which will govern Client’s purchase and use of such products, and (ii) accepts and agrees to (a) fully comply with the applicable end user terms on the supplier’s online e-commerce portal and (b) hold Insight harmless.
8. Warranty Disclaimer
   TO THE EXTENT PERMITTED BY LAW, THE EXPRESS WARRANTIES IN SECTION 9 (LIMITED WARRANTIES) ARE IN LIEU OF, AND INSIGHT EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES IN RELATION TO THE PRODUCTS AND SERVICES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE WARRANTY PERIOD. You also waive any claims that you may have against Insight based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights ("Claims") with respect to any Product and also waive any right to indemnification from Insight against any such Claims made against you by a third party. You acknowledge that no employee of Insight is authorized to make any representation or warranty on behalf of Insight that is not in this Agreement.
9. Limited Warranties
   1. Product: Products manufactured, published or provided by third parties, including third-party performed services, are provided by Insight on an "as is" basis without warranty by Insight of any kind, either express or implied. Products coded as “IVC” (Insight Value Center), “-REF” (refurbished) or “-Open” (previously opened and/or the box has been damaged) in the Product description are offered “AS IS” and are not being sold as “new”. The manufacturer's or publisher's warranty, if any, will apply and provide the sole coverage for all Products. Insight shall pass through to Client, to the extent available, any manufacturer's/publisher's/supplier's written warranties associated with Products purchased from Insight.
   2. Services: Services performed by Insight will: (i) be performed in a professional and workmanlike manner; and (ii) substantially conform to the written specifications under the service description for thirty (30) days from completion, or for such other warranty period as may be indicated under the relevant SOW or order. The following are Client’s sole and exclusive remedies and entire liability with respect to this warranty: (i) upon written notice from Client, Insight will use commercially reasonable efforts to reperform Services not in substantial compliance with this warranty; or (ii) if Insight cannot repair the non-conforming Services within thirty (30) days of receiving written notice from Client, or such additional time as may be agreed upon by the parties, Insight will, at its option, provide a credit or refund of any fees paid by Client for the portion of the Services not in substantial compliance with this warranty. Re-performance will not extend the warranty period. All credits issued to Client by Insight must be used within two years from the date of issue. Unused credits will automatically expire.
   3. General: Each of Insight and Client have full power and authority to enter into this Agreement, and have all other rights necessary for the performance of their respective obligations hereunder.
10. Client Work Product
    Client retains all right, title and interest in Client’s proprietary information (“Client Proprietary Information”), including such Client Proprietary Information contained in the deliverables resulting from the Services described in and delivered pursuant to this Agreement or to the applicable SOW to this Agreement (“Work Product”).
    
    Insight retains all right, title and interest in, without limitation, any work of authorship (including computer software), schema, invention, process, device, apparatus, schematic or technical information, report, documentation, workflow, know-how, and best practice, that is invented, created, authored, or reduced to practice by Insight, and that is included in the Work Product or is used by Insight to carry out the Services described in and delivered pursuant to this Agreement or to the applicable SOW to this Agreement (“Insight IP”).
    
    Except as set forth herein, Insight hereby grants to Client a worldwide, non-exclusive, non-transferable, royalty-free, perpetual, without the right of sublicense, license to use Insight IP that is included in the Work Product in the course of Client’s internal, business operations, provided that no Insight IP may be unbundled or separated from the Work Product or used on a stand-alone basis. Insight reserves the right to revoke the foregoing license for non-payment of required fees under this Agreement or the applicable SOW to this Agreement.
11. Limitations on Use
    You agree and represent that you are buying Product for your own internal use and not for resale. If Product purchased under this Agreement is intended for export, it may be subject to export regulations. You accept full responsibility for and agree to comply fully with all export regulations, including obtaining export licenses. The export of Products may also alter or void the manufacturer's or publisher's warranty. PRODUCTS OFFERED BY INSIGHT ARE NOT DESIGNED FOR USE IN LIFE SUPPORT, LIFE SUSTAINING, NUCLEAR SYSTEMS OR OTHER APPLICATIONS IN WHICH FAILURE OF SUCH PRODUCTS COULD REASONABLY BE EXPECTED TO RESULT IN PERSONAL INJURY, LOSS OF LIFE OR CATASTROPHIC PROPERTY DAMAGE. USE IN ANY SUCH APPLICATIONS IS AT YOUR SOLE RISK.
12. Limitation of Liability
    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, IN NO EVENT WILL INSIGHT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF INCOME, PROFITS, DATA, OPERATIONAL EFFICIENCY, USE OR INFORMATION) ARISING UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION OR THEORY OF RELIEF, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    
    THE TOTAL AMOUNT OF DIRECT DAMAGES RECOVERABLE FROM A PARTY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THEORY OF RELIEF, IS LIMITED TO THE TOTAL AMOUNT PAID OR TO BE PAID BY CLIENT FOR THE PRODUCT PURCHASED UNDER THIS AGREEMENT GIVING RISE TO THE CLAIM, OR THE TOTAL AMOUNT PAID OR TO BE PAID BY CLIENT FOR SERVICES PERFORMED UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, WHICHEVER THE CASE MAY BE.
    
13. Confidential Information.
    “Confidential Information” means any information that is marked or otherwise identified as confidential or proprietary at the time of disclosure and includes, but is not limited to, trade secrets, know-how, inventions, techniques, data, customer lists, personal information, financial information, sales and marketing plans of the other Party, its affiliates, or its customers. Both Parties recognize and acknowledge the confidential and proprietary nature of any Confidential Information and acknowledge the irreparable harm that could result if such Confidential Information is disclosed to a third party or used for unauthorized purposes. Each Party will safeguard and maintain the Confidential Information of the other Party to the same degree it uses to protect its own similar Confidential Information, using not less than a reasonable standard of care. Each Party agrees to use any Confidential Information only for the purpose of conducting business with each other and their clients in the manner contemplated by this Agreement. Both Parties will restrict disclosures of any Confidential Information to only those personnel who have a need to know and will bind such personnel to obligations of confidentiality to the same extent that each Party is bound by this Agreement. Upon request of the owner of Confidential Information, the other Party will promptly return or destroy all materials incorporating any Confidential Information and any copies, except as otherwise required by law. The obligations under this paragraph do not apply to information that: (i) is or becomes generally known or in the public domain through no act or omission of the recipient; (ii) was lawfully in a Party’s possession without restriction as to use or disclosure before its receipt from the disclosing Party; (iii) is received from, or was made available to, a third party without any obligation of confidentiality; (iv) was independently developed; (v) is otherwise permitted to be disclosed under this Agreement; (vi) is disclosed with the prior written consent of the disclosing Party; or (vii) is required to be disclosed in any civil or criminal legal proceeding, regulatory proceeding or any similar process, however, the Party required to make the disclosure under the law shall give prompt notice of this to the other Party prior to such disclosure so that Party may seek an appropriate protective order or give its written consent to such disclosure.
14. Notices
    Any notice provided under this Agreement must be in writing and is considered received: (a) when personally delivered; (b) 1 business day after having been sent by overnight courier; or (c) after 5 business days if mailed first class postage prepaid. All business communication will be sent to the addresses indicated on Client’s order or as either party designates in writing to the other. Legal notices must be sent with a copy for Insight addressed to: Insight, 2701 E. Insight Way, Chandler, AZ 85286, Attn: Legal Department.
15. Governing Law
    THIS AGREEMENT AND ALL ORDERS SHALL BE GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF ARIZONA WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN MARICOPA COUNTY, ARIZONA, AND CLIENT CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CLIENT FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the order. Both parties are solely obligated to address and resolve all disputes associated with this Agreement or any order, including any damages or injuries to Client’s affiliates, and all claims related to this Agreement or any order will be brought by Client in Maricopa County, Arizona as provided in this Agreement.
16. Arbitration
    Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including, but not limited to, statutory, common law, intentional tort and equitable claims capable in law of being submitted to binding arbitration) arising from or relating to the Products or Services, the interpretation or application of this Agreement or any order or the breach, termination or validity thereof, the relationships which result from this Agreement or any order (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories hereto), or Insight’s or any of its affiliates' advertising or marketing WILL BE RESOLVED BY FINAL CONFIDENTIAL AND BINDING ARBITRATION IN MARICOPA COUNTY, ARIZONA, INSTEAD OF IN COURT, except that (a) Client may take claims to small claims court, if Client qualifies for hearing by such court, and (b) if Client fails to timely pay amounts due, Insight may assign Client’s account for collection and the collection agency may pursue such claims in court limited strictly to the collection of the past due debt and any interest or cost of collection permissible under applicable law or this Agreement. Arbitration under this Agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. THE RULES GOVERNING ARBITRATION ARE DIFFERENT THAN THOSE IN COURT. ARBITRATION DOES NOT INVOLVE A JUDGE OR JURY AND REVIEW IS LIMITED, BUT AN ARBITRATOR CAN AWARD THE SAME DAMAGES AS A COURT. EXCEPT AS MAY OTHERWISE BE PROVIDED IN THE AMERICAN ARBITRATION ASSOCIATION RULES OR AS OTHERWISE REQUIRED UNDER APPLICABLE LAW, CLIENT UNDERSTANDS THAT BY INITIATING THIS ARBITRATION PARAGRAPH CLIENT IS GIVING UP CLIENT’S RIGHT TO A TRIAL IN COURT OR ADMINISTRATIVE PROCEEDING, EITHER WITH OR WITHOUT A JURY, AS A MEANS BY WHICH TO SETTLE CLIENT’S DISPUTE. Notwithstanding any choice of law provision included in this Agreement, this arbitration agreement is subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16).
17. Assignment
    Client may not assign any of Client’s rights or delegate any of Client’s obligations under the Agreement without our prior written consent. Insight may assign or subcontract any or all of its rights or obligations and/or assign the right to receive payments hereunder to one or more qualified parties without Client’s prior consent, unless otherwise agreed to by the parties in writing. Subject to the restrictions in assignment contained in this provision, the Agreement, including any SOW, will be binding on and inure to the benefit of the parties and their successors and assigns.
18. Force Majeure
    Insight shall not be liable to Client for any delay or failure by Insight to fulfill its obligations under this Agreement or otherwise if such delay or failure arises from any cause or causes beyond the reasonable control of Insight, including, but not limited to labor disputes, strikes or other labor disturbances, acts of nature, floods, lightning, shortages of materials, rationing, utility or communication failures, earthquakes, terrorism, casualty war, embargoes, blockages, actions, restrictions, or regulations or orders of any government agency or subdivision thereof.
19. Non-Solicitation & Non-Hire
    Both parties agree, that during the term of this Agreement and for a one-year period after the termination or expiration of this Agreement, neither party will, directly or indirectly, solicit, offer employment or hire any current or former employee, contractor or consultant of the other party who has directly involved in the performance of this Agreement or any related SOW. This provision does not restrict the right of either party to solicit or recruit generally in the media and does not prohibit either party from hiring an employee of the other who answers any advertisement or who voluntarily applies for hire without having been initially personally solicited or recruited by the hiring party.
20. Compliance with All Applicable Laws
    Each Party shall comply with all laws, rules, and regulations applicable to the performance of its obligations hereunder.
21. General
    If any provision of this Agreement is invalid, illegal or unenforceable, it will be regarded as severed from this Agreement and not affect the validity or enforceability of the remaining provisions of this Agreement. A delay or failure to exercise or partially exercise any right under the Agreement does not operate as a waiver, nor will it preclude future exercise of that right or permit, or sanction any subsequent breach of any term or condition. The provisions of this Agreement, which by sense and content are intended to survive, will survive the expiration or termination of the Agreement. The relationship between the parties is that of independent contractors and not that of employer/employee, partnership or joint venture. Electronic signatures (or copies of signatures sent via electronic means) are the equivalent of written and signed documents.
22. Entire Agreement
    This Agreement supersedes any prior representations or agreements, oral or written, and all other communications between the parties relating to Client’s order. Any conflicting additional or different Agreement contained in any other agreement, invoice or SOW, as the case may be, are expressly rejected. In the event of a conflict between this Agreement and a SOW, the SOW will govern with respect to such conflicting, additional or different terms.