THESE TERMS AND CONDITIONS (“CLOUD TERMS OF SALE” OR “AGREEMENT”) ENTERED INTO BETWEEN YOU (“CLIENT”) AND INSIGHT ENTERPRISES AUSTRALIA PTY LTD. (“INSIGHT”) GOVERN THE PURCHASE OF THE CLOUD SERVICES (DEFINED BELOW) FROM INSIGHT. THESE CLOUD TERMS OF SALE ARE EFFECTIVE UPON YOUR (A) PLACEMENT OF AN ONLINE OR OFFLINE ORDER FOR CLOUD SERVICES THAT IS ACCEPTED BY INSIGHT; (B) ACCESSING OR USING THE CLOUD SERVICES PURCHASED THROUGH INSIGHT; OR (C) ACCESS AND USE OF INSIGHT’S ONLINE ORDERING TOOLS, WEBSITE AND CLOUD SERVICES PORTAL (COLLECTIVELY, “ORDER”).
SECTION 1. DEFINITIONS
“Cloud Service(s)” means (i) the third party services and any software or other materials described in the Service Provider Terms, and (ii) any ancillary services provided by Service Provider in connection with such services, as described in the Service Provider Terms and offered for sale by Insight under an Order.
“Fees” means the amounts due for use of the Cloud Services purchased by Client under the Order.
“Insight Services” means any Insight performed managed, technical or consulting services performed delivered by Insight in connection with the third party provided Cloud Services as may be set forth in in Client’s Order or mutually agreed upon Statement of Work (“Statement of Work” or “SOW”). Insight Services are delivered pursuant to Insight’s Terms of Sale for Services located at http://au.insight.com/en_AU/help/terms-of-sale-services.html, and incorporated by reference specifically for Insight Services only.
“Service Level Agreement” or “SLA” means the service levels or service level agreements, if any, set forth in the Service Provider Terms.
“Service Provider” means the entity that provides the subscription based Cloud Services described in the Service Provider Terms and offered by Insight under the Order.
“Service Provider Facilities” means any infrastructure of Service Provider or its licensors in connection with the provision of the Cloud Services or technical support, including, without limitation, software programs, hardware, data centers, networks, systems, websites, technology, or other facilities or resources provided or operated by, or on behalf of, Service Provider or its licensors in connection with the provision of the Cloud Services.
“Special Terms Addendum” or “Special Terms and Conditions” means any terms and conditions that are specific to the particular Insight Services or Service Provider and added as an addendum to the Cloud Terms of Sale or provided to Client at the time of purchase. To the extent such terms differ or conflict with these Cloud Terms of Sale, the Special Terms and Conditions shall govern.
“Subscription Period” means the monthly, yearly or other period as identified in the Order that begins the date Cloud Services commence for such Subscription Period.
“Term” means collectively, the “Initial Term” and any “Renewal Term,” as those terms are defined in Section 4.1 (Order Term) that begins as of the Effective Date of the Order.
SECTION 2. SCOPE OF CLOUD SERVICES.
INSIGHT IS RE-SELLING AND/OR SOLICITING ORDERS ON BEHALF OF SERVICE PROVIDER FOR CLOUD SERVICES PERFORMED OR OTHERWISE PROVIDED BY SERVICE PROVIDER OR ITS AFFILIATES, SUBCONTRACTORS, SUCCESSORS, OR ASSIGNS. Unless Insight Services are specifically being purchased by Client either individually or bundled with a Cloud Service as set forth in Client’s Order, Insight is not responsible for any third party services related to the implementation or configuration of Cloud Services.
2.1 Cloud Services Restrictions, Rights and Use.
(a) Service Provider Terms. Cloud Services sold by Insight under the Order will be performed or otherwise provided by Service Provider in accordance with the Service Provider Terms. Client shall comply with the Service Provider Terms and look to Service Provider for compliance of the Service Provider’s responsibilities under those terms. Client acknowledges that Service Provider may, at any time, amend Cloud Services descriptions or otherwise update them and any documentation relating thereto, including, without limitation, any specifications for the Cloud Services for any reason including, without limitation, legal, safety, business, or technical considerations.
SERVICE PROVIDER TERMS IN EFFECT AT COMMENCEMENT OF EACH SUBSCRIPTION PERIOD ARE SUBJECT TO CHANGES BY SERVICE PROVIDER. CLIENT ACKNOWLEDGES AND AGREES THAT CLIENT SHALL BE SOLELY RESPONSIBLE FOR PERIODICALLY REVIEWING THE DESIGNATED URL(S) OR A SUCCESSOR URL OF SERVICE PROVIDER TO UNDERSTAND AND PERFORM IN ACCORDANCE WITH SUCH AMENDED OR OTHERWISE UPDATED VERSIONS.
(b) IP Rights. Service Provider or its licensors, subcontractors, or suppliers will retain all rights, title, and interests in and to the Cloud Services and Service Provider Facilities as well as any derivative works thereof, including, without limitation, any intellectual property rights in and to the Cloud Services and the Service Provider Facilities. Client shall not infringe, misappropriate, or otherwise violate such rights, title, or interests. Client’s access to Cloud Services shall be subject to the terms and conditions of the Order, as well as Service Provider Terms.
(c) Use of Cloud Services. Use of the Cloud Services is governed by the Service Provider’s Terms, as well as the following usage notices and limitations. Client assumes all risks, costs, and expenses in connection with the use of the Cloud Services.
1. Territory. Client is purchasing Cloud Services in the Territory for use within the Territory, unless otherwise specifically and mutually agreed upon in writing by authorized representatives of each party.
2. Service Provider Facilities. Client acknowledges that the Cloud Services may be provided by Service Provider from Service Provider Facilities anywhere in the world and Service Provider may, at any time, transfer the provision of the Cloud Services from one installation to another. There is no guarantee that any such installation, or part thereof, is dedicated to the sole use of Client. Transfer, transmission, distribution, posting, uploading, storage, downloading, and the retrieval of any information, software, technology, or other technical data via the Cloud Services may be subject to Australian or foreign export, import, privacy, or data security laws.
3. High Risk. Cloud Services sold by Insight are not designed for use in life support, life sustaining, nuclear or other applications in which failure could reasonably be expected to result in personal injury, loss of life or catastrophic property damage.
4. Business Purpose. Client will use the Cloud Services for its own use and for legitimate business purposes only, and Client shall not resell, sub-lease, sub-rent, or sub-license the Cloud Services to any third party.
5. Internet. Client shall comply with all relevant legislation applicable to the use of the internet and shall conform to the protocols and standards published on the internet from time to time and adopted by the majority of internet users. Insight reserves the right to edit or remove any post or transmission by Client that, in Insight’s judgment, is not appropriate, reasonably believes may violate applicable laws or regulations, or portrays Insight or Service Provider in a false, misleading, derogatory, or offensive manner.
2.2 Client’s Responsibilities. In addition to other duties of Client set forth in these Cloud Terms of Sale, Client is responsible for the following: (a) maintaining the security of its networks, servers, applications and access codes, including, without limitation, the backup and other protection of its system and data, against loss, damage or destruction by third parties; (b) providing information reasonably requested by Insight or Service Provider, including, without limitation, any technical and related information, and any consents that Insight or Service Provider may need from Client necessary for Service Provider to enable the Cloud Services and shall otherwise undertake the responsibilities applicable to Client set forth in the Service Provider Terms; (c) work with Insight and Service Provider to resolve performance issues as necessary. Insight may assume, without inquiry or liability, that any person in possession of Client’s account information or access codes has the authority to access Client’s account or the Cloud Services, or modify Client’s account. Client must immediately notify Insight in writing of any unauthorized use of such information or codes.
SECTION 3. FEES AND INVOICING
3.1 Fees. Client shall pay Insight the Fees identified in the Order. In addition, Insight reserves the right to make adjustments to pricing for reasons including, but not limited to, changing market conditions, discontinuation, unavailability, Service Provider price changes or changes to supplier/partner programs, and errors in advertisements.
3.2 Invoicing/Payment Terms. Charges for the Cloud Services will commence from the date the Cloud Services are made available by Service Provider to Client and are non-refundable once consumed, unless otherwise mutually agreed in writing. Fees include: (a) recurring charges for the applicable billing period; and (b) non-recurring set up and other one-off charges (including but not limited to domain set-up charges), if any, for the applicable billing period. Insight will invoice Client the Fees in accordance with the frequency indicated in the Order or at the time of purchase. Client must pay all invoices in full within thirty (30) days of the invoice date. To apply for credit in connection with such purchase, Client must establish an account with Insight. Client agrees to promptly: (i) provide certain accurate, current and complete information as reasonably required by Insight to process a credit application or Order, or by Service Provider to provision the Cloud Services or provide technical support; and (ii) maintain and update such information to keep it accurate, current and complete, including but not limited to, changes to Client’s billing address or e-mail address, the names of its authorized personnel, or changes in applicable credit-card information (including, without limitation, any expiration or cancellation of the credit card). If Client has selected to use a credit card as its method of payment, then Client authorizes Insight to charge that credit card for such Fees until Cloud Services are terminated in accordance with these Cloud Terms of Sale. Client is responsible for Insight's costs of collection for any payment default, including, but not limited to, court costs, filing fees and attorneys' fees. In addition, if payments are not received as described herein, Insight reserves the right to suspend further deliveries until payment is received.
3.3 Usage Based Billing. Upon execution of this Order, the parties agree that all future increases in quantities used, enabled or consumed for existing purchased Cloud Services will be invoiced on an actual use basis. If new Cloud Services or features are procured, Client will need to execute a Project Change Request Form for any such net-new Cloud Services.
3.4 Taxes. Fees or prices expressed in the Order exclude taxes of any kind. 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.
3.5 Cloud Service Credits. Unless otherwise provided by Service Provider and to the extent that a Cloud Service credit is due to Client in accordance with the Service Provider Terms, the Parties agree that any credit due will be credited by Insight to Client’s account within a reasonable time after Insight’s receipt the corresponding credit amount from Service Provider following Service Provider’s verification of Client's claim. Client expressly acknowledges and agrees that Insight is not obligated to provide any Cloud Service credit if Service Provider is unable to verify, or otherwise rejects, Client’s claim for any reason or if Service Provider fails to provide the Cloud Service credit for any reason even if it has verified Client’s claim. ANY CREDITS OR TERMINATION RIGHTS DESCRIBED UNDER THE SLA SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF CLIENT IN CONNECTION WITH ANY UNAVAILABILITY OF THE CLOUD SERVICES OR BREACH OF THE SLA.
SECTION 4. TERM; TERMINATION/SUSPENSION RIGHTS; EFFECT
4.1 Order Term. Unless earlier terminated in accordance with this Section, the initial term of Client’s subscription of Cloud Services shall commence on the later of (i) the Effective Date, or (ii) the date the Cloud Services are made available to Client by the Service Provider as notified by the Service Provider to Insight, (“Initial Term”, which is coterminous with the Initial Subscription Period identified on the Order). Upon expiration of the Initial Term, Client’s subscription of Cloud Services will automatically renew for additional, successive terms (each a “Renewal Term”) unless Client or Insight provides notice of non-renewal in accordance with Section 5.7(b) (Notices – Routine). Notice of non-renewal for a monthly Subscription Period must be given at least 30 days prior to the end of the then-current Subscription Period. Notice of non-renewal for a Subscription Period of greater than 1 month must be given at least 45 days prior to the end of the then-current Subscription Period.
4.2 Termination Rights
(a) For Cause.
1. Insight. Insight may terminate the Order, in whole or in part, with immediate effect, if Client materially breaches these Cloud Terms of Sale and fails to remedy that breach within 30 days of receipt of Insight’s written notice of such breach. A material breach, includes but is not limited to: (i) Client’s failure to pay Fees when due, (ii) rejection, for any reason, of any charges for Fees using a credit card provided by Client, or (iii) Client’s breach of Section 5.1 (Compliance With Laws). In addition, If Service Provider terminates any part or all of the Cloud Services in connection with any “Use Issues” as defined in this paragraph, Client shall be deemed to have been in material breach of the Order. “Use Issues” means Client’s misuse of Cloud Services in violation of the Order, the Service Provider Terms or Other Related Terms, or due to any other act or omission of Client. Notwithstanding anything to the contrary in this paragraph, if Service Provider terminates any part or all of the Cloud Services in connection with any Use Issues, Insight may terminate the Order, in whole or in part, upon written notice with immediate effect unless indicated otherwise in such notice.
2. Client. Client may terminate the Order if Insight materially breaches these Cloud Terms of Sale and fails to remedy that breach within 30 days after receipt of Client’s written notice of such breach. Insight shall not deemed in default if Service Provider withholds provision of Cloud Services or suspends or terminates Client’s access to, or use of, Cloud Services, or any part thereof, as allowed under this Section 4.2. Any such action by Service Provider does not give Client the right to terminate the Order.
(b) For Convenience. Once Cloud Services are provisioned (made available for use by Client), an Order may not be terminated or suspended by Client for convenience. The Order will automatically terminate with immediate effect, without any liability for such termination, upon written notice to Client if Service Provider terminates its agreement with Insight to resell Cloud Services. In addition, if the Order is entered into by Insight and Client before Service Provider agrees to provide the applicable Cloud Services to Client, and if Service Provider then refuses to provision such Cloud Services for any reason, Insight may immediately terminate the Order, without any liability for such termination, upon written notice to Client.
4.3 Service Provider Suspension/Termination Rights. The provision of the Cloud Services may be withheld or the Cloud Services may be suspended or terminated, in whole or in part, by Service Provider, (a) should Client use the Cloud Services in violation of the Service Provider Terms, or any Other Cloud Service-Related Terms, if applicable; or (b) under circumstances described in the Service Provider Terms. Any such action by Service Provider does not give Client the right to terminate the Order. Fees will continue to accrue for the duration of any withholding or suspension of the Cloud Services, or any part thereof based upon the Subscription Period. Client shall be responsible to pay for such Fees in accordance with the Order. If Service Provider charges Insight for any remedial work that becomes necessary as a direct result of any Use Issues, Insight shall charge Client and Client will pay Insight such charges within 30 days of Insight’s invoice date. In addition, if any Cloud Services disconnection or suspension pursuant to this subsection results in the requirement of a reasonable reinstatement fee or if Service Provider suspends any Cloud Services due to Client’s acts or omissions and requires an increase in the fees payable by Insight to Service Providers as a prerequisite for Service Provider to resume making the Cloud Services available for Client, Client agrees to pay such additional fees as invoiced by Insight.
Client may have certain rights to terminate Cloud Services but only as expressly provided under the Service Provider Terms; provided, however, that Client must first be in compliance with all applicable termination-related processes and other requirements set forth in the Service Provider Terms. Client must provide Insight prior written notice of Client’s election to exercise such termination rights, and any such election shall be exercised in accordance with the applicable Service Provider Terms and subject to Service Provider’s approval.
4.4 Effect of Termination. Termination or expiration of the Order shall not relieve either party of its rights or obligations incurred prior to termination or expiration that by their nature or term survive, including any and all payment due under the Order.
(a) Payment upon Breach. If all or part of the Order is terminated by Insight for cause, Client shall pay Insight the Fees that would be due for the remainder of the unexpired Subscription Period and any Fees for Cloud Services performed prior to termination. All such fees shall become immediately due and payable upon any such termination.
(b) Provision of Cloud Services after Client’s Termination. Notwithstanding anything to the contrary in this Section, if despite Client’s election of termination, or any notice to terminate Cloud Services or any part thereof, Client: (i) requests the continued delivery of the Cloud Services (or part thereof) after the intended termination effective date indicated in Client’s written notice, or (ii) otherwise continues to have access to and use such Cloud Services after the intended termination date, then, even if such request or access and use is temporary, to the extent Service Provider invoices Insight for the provision of such Cloud Services to Client, Client shall pay Insight the Fees. These Cloud Terms of Sale and the Service Provider Terms will survive and govern Client’s purchase and use of Cloud Services, respectively, until the Cloud Services are terminated by Service Provider.
SECTION 5. ADDITIONAL TERMS AND CONDITIONS:
5.1 Compliance with Laws. Client shall comply with, and agrees that it is its responsibility to adhere to, all applicable law in connection with Client’s use of the Cloud Services. Cloud Services may also be subject to export regulations. Client acknowledges this possibility and accepts full responsibility for and agrees to comply fully with applicable law and all export regulations, including obtaining export licenses. Client represents and warrants that no technical data will be exported under the Order except in compliance with all requirements of the International Traffic in Arms Regulations (ITAR) and Export Administration Regulations (EAR). Client shall be solely responsible for any claims, losses, costs, liability and charges, including reasonable legal fees, incurred by Insight as a result of Client’s breach of this provision.
5.2 Warranty Disclaimer. INSIGHT PROVIDES NO WARRANTY IN CONNECTION WITH THE CLOUD SERVICES, ANY TECHNICAL SUPPORT PROVIDED BY SERVICE PROVIDER IN CONNECTION WITH THE CLOUD SERVICES, OR ANY SERVICE PROVIDER FACILITIES. THE CLOUD SERVICES AND ANY TECHNICAL SUPPORT PROVIDED BY SERVICE PROVIDER ARE SOLD OR OTHERWISE PROVIDED BY INSIGHT TO CLIENT "AS IS" AND SERVICE PROVIDER FACILITIES UTILIZED ARE WITHOUT WARRANTY OF ANY KIND FROM INSIGHT, 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.NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CLIENT FROM INSIGHT (INCLUDING, WITHOUT LIMITATION, ITS SALES REPRESENTATIVES), OR FROM INSIGHT’S OR SERVICE PROVIDER’S WEBSITE, WILL CREATE ANY WARRANTY BY INSIGHT NOT EXPRESSLY STATED IN THESE TERMS OF SALE .
5.3 Confidentiality. “Both parties will maintain in confidence and safeguard all Confidential Information, as defined in this paragraph, of the other party, its affiliates, and its customers. "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 Data (as defined herein), financial information, sales and marketing plans of the other party, its affiliates, or its customers. “Personal Data” means any nonpublic information relating to an identified or identifiable individual that may be subject to further obligations of confidentiality under applicable privacy laws. 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 agrees to use any Confidential Information only for the purpose of conducting business with each other and their clients in the manner contemplated by the 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 the Agreement. Upon request of the owner of Confidential Information, the other party will promptly return all materials incorporating any Confidential Information and any copies. 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 other party; (ii) was lawfully in Insight's or your possession without restriction as to use or disclosure before its receipt from the other 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 the 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 the other party may seek an appropriate protective order or give its written consent to such disclosure.
5.4 Indemnification. Client shall defend and indemnify Insight for, from, and against any losses, damages, penalties, costs, and expenses, including, without limitation, reasonable attorney fees incurred by Insight in connection with any claims or actions by Service Provider or other third parties arising out of or resulting from (i) any Client provided data, information or content passing through the Cloud Services and/or Service Provider’s network, (ii) unauthorized or misuse of Cloud Services by Client, its employees or agents (excluding any claims that the Cloud Services, as provided by Service Provider, infringe third-party intellectual property rights), (iii) Client’s failure to comply with applicable law, (iv) Client’s failure to pay Insight for the full Term, regardless of Service Provider performance issues, and/or (v) Client’s failure to comply with these Cloud Terms of Sale.
5.5 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SUBJECT ALWAYS TO THE CCA CLAUSE:
(a) Direct Damages Limitation. SUBJECT TO THE SUBSECTION PARAGRAPH BELOW TITLED “INDIRECT/SPECIAL DAMAGES,” INSIGHT’S MAXIMUM LIABILITY TO CLIENT FOR DAMAGES ARISING IN ANY WAY OUT OF THE ORDER IS LIMITED TO PROVEN DIRECT DAMAGES, NOT TO EXCEED THE AMOUNT PAID BY CLIENT TO INSIGHT FOR THE CLOUD SERVICES PROVIDED TO CLIENT DURING THE SUBSCRIPTION PERIOD IN WHICH THE EVENT CAUSING SUCH LIABILITY OCCURRED. UNDER NO CIRCUMSTANCES WILL INSIGHT’S AGGREGATE MAXIMUM LIABILITY TO CLIENT FOR DAMAGES IN RELATION TO OR ARISING FROM THE ORDER OR THE SUPPLY OF CLOUD SERVICES EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO INSIGHT FOR THE CLOUD SERVICES UNDER THE ORDER DURING THE PRECEDING TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
(b) Indirect/Special Damages. EXCEPT FOR FRAUD AND CLIENT’S OBLIGATIONS UNDER THE SUBSECTION TITLED “INDEMNIFICATION,” NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, NOR DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE, ARISING IN ANY WAY OUT OF THE ORDER, ANY OF THE DOCUMENTS REFERENCED IN THE ORDER (OR ANY ADDENDA OR AMENDMENT THERETO), OR THE USE OF OR INABILITY TO USE ANY CLOUD SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) Limitations - Applicability. BOTH PARTIES UNDERSTAND AND AGREE THAT THE LIMITATIONS OF LIABILITIES FOR EACH PARTY SET FORTH IN THESE TERMS OF SALE ARE REASONABLE AND THEY WOULD NOT HAVE ENTERED INTO THE ORDER WITHOUT SUCH LIMITATIONS. FURTHER, EACH PARTY AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE ORDER MUST BE FILED WITHIN 1 YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE.
5.6 Force Majeure. Except for the obligation to make timely payments, neither party will be liable for any failure or delay in the performance of the obligations under these Cloud Terms of Sale due to circumstances beyond its reasonable control, including but not limited to acts of nature, acts of government in either its sovereign or contractual capacity, national emergencies, acts of terrorism, transportation delays, labor disturbances, work stoppages or loss of electrical power; loss of telecommunications or similar infrastructure. If Service Provider has been hindered or prevented by any cause beyond its reasonable control including, without limitation, the events described in this paragraph, then Insight shall not be liable for Service Provider’s delay or failure in providing the Cloud Services to Client.
(a) Required. Except as otherwise provided herein, any notice required to be given under these Cloud Terms of Sale must be in writing, in English, and addressed to the Parties at the addresses listed later in this subsection paragraph. Such notice is considered received: (i) when personally delivered; (ii) one business day after having been sent by overnight mail via a professional carrier; (iii) when sent by fax or electronic mail, receipt confirmed by the applicable method of transmittal; or (iv) if sent by certified or registered mail, within 5 business days of deposit in the mail.
Notices to Insight shall be addressed to: 114-120 Pittwater Road, Brookvale, NSW 2100 Australia, and Attention: Legal Department. Notices to Client shall be addressed to the mailing address on file with Insight or as shown on public records.
(b) Routine. Routine communications, including subscription non-renewal notifications and other notices by either party to the other in the normal course of ordering or provisioning Cloud Services, are properly given when: (i) provided in accordance with paragraph (a) of this subsection; or (ii) sent by e-mail, receipt confirmed and addressed to the receiving party at the addresses described in this subsection paragraph, as evidenced by the computer records or any archival copy thereof kept in the ordinary course of business by the sender. Routine communications provided by e-mail shall be submitted as follows:
If to Insight, then to:
Insight Enterprises Australia Pty Ltd
Level 1, Unit 3
114-120 Old Pittwater Road
Brookvale NSW 2100
+61 2 8978 2000
If to Client, then to Client’s e-mail address on file with Insight.
Routine communications will be deemed received if sender sends it before 5:00 p.m. Australian Eastern Time on the receiving party’s business day, it is effective on the date sent by sender; otherwise it will be effective on the receiving party’s next business day.
5.8 Miscellaneous. If any part of these Cloud Terms of Sale is, for any reason, found to be invalid, illegal, or unenforceable, all other parts of the Order will remain in effect. Insight may, at its sole option, revise the Cloud Terms of Sale from time to time and post the revised terms on its website. Neither party may assign its duties or rights under the Order, whether by operation of law or otherwise, except with the other party's prior written consent; provided that Insight will have the right to assign the Order to an affiliate or corporate successor. A delay or failure to exercise or partially exercise any right under these Cloud Terms of Sale 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.
5.9 Governing Law and Venue. The Agreement will be governed by the substantive laws of New South Wales, Australia without giving effect to any conflict of law rules. You are responsible for compliance with local laws, if and to the extent local laws are applicable. Both parties specifically agree to submit to the exclusive jurisdiction of, and venue in, the courts of New South Wales, Australia in any dispute arising out of or relating to the Agreement.
5.10 Entire Agreement. These Cloud Terms of Sale including any Special Terms and Conditions or Special Terms Addendum and attachments thereto, are the entire agreement between the parties with respect to Client’s purchase of Cloud Services from Insight under this Order and supersedes and replaces any previous communications, representations or agreements, oral or written. Any different or additional terms and conditions provided by Client to Insight are considered material alterations to this Order, expressly rejected and will not be binding upon Insight.
5.11 Competition and Consumer Act (CCA). Notwithstanding the foregoing, these Cloud Terms of Sale must be read and construed subject to any statutory provisions, which cannot lawfully be excluded, restricted or modified. If any such statutory provisions apply then, to the extent to which Insight is entitled to do so and at Insight's option, Insight limits its liability pursuant to such provisions to the re-performance or refund of the cost of services under this Agreement.
Terms of Sale for Insight Services
THESE TERMS AND CONDITIONS OF SALE FOR SERVICES (“Terms of Sale”) APPLY TO YOUR PURCHASE OF SERVICES PERFORMED BY INSIGHT OR ITS SUBCONTRACTORS AND/OR AGENTS (COLLECTIVELY, "SERVICES"). By engaging Insight to perform Services under a Statement of Work (as defined below), you agree to be bound by and accept these Terms of Sale, unless you are purchasing such Services pursuant to a separate written agreement signed by both your company and Insight, in which case, the terms of that separate agreement shall govern. Insight may, from time to time and at its sole option, revise these Terms of Sale without notice by posting them on its website at au.insight.com (the “Website”). The Terms of Sale posted on the Website at the time Insight accepts your order governs that purchase.
1. Entire Agreement. The description of the scope of work and terms associated with the Services ("Statement of Work" or “SOW”) along with these Terms of Sale - Services and any attachments, schedules, addenda and exhibits are together one agreement and forms the entire agreement between the parties relating to the Services to be performed by Insight (the “Agreement”). The Agreement supersedes any prior representations or agreements, oral or written, and all other communications between the parties relating to the relevant subject matter. Any conflicting, additional or different terms contained in any other agreement, invoice or SOW, as the case may be, are expressly rejected, unless the modified Terms of Sale is specifically referenced and mutually agreed upon in writing under the SOW. Such modification shall be applicable exclusively to that SOW.
2. Competition and Consumer Act (CCA). Notwithstanding the foregoing, these Terms of Sale must be read and construed subject to any statutory provisions, which cannot lawfully be excluded, restricted or modified. If any such statutory provisions apply then, to the extent to which Insight is entitled to do so and at Insight's option, Insight limits its liability pursuant to such provisions to the re-performance or refund of the cost of Services.
3. Term; Termination. The Agreement commences upon execution of the relevant SOW (“Effective Date”), which incorporates these Terms of Sale, and will continue until completion of the Services, unless earlier terminated in accordance with this Section. Either party may terminate the Agreement, in whole or in part, immediately if the other party materially breaches the Agreement and fails to remedy that breach within 30 days after receipt of written notice of such breach, except that a party will only have 10 days to remedy any default of its payment obligations.
4. Invoicing/Payment. Services will be invoiced in accordance with the SOW. Services will be deemed accepted (completed) 5 days from the date of the invoice, unless otherwise specified in writing under the SOW. You must pay all undisputed invoices in full within 30 days of the invoice date, unless otherwise specified under the SOW. You agree to pay the total purchase price for the Services, plus taxes (including any GST that is payable), and all payments must reference the invoice number. You may provide Insight with a tax exemption certificate at the time of purchase, which will be subject to review and acceptance by Insight. Unless otherwise specified, all invoices shall be paid in the currency of the invoice. Where invoices are paid in a currency other than that specified on the invoice, you agree to remit payment to Insight for any losses incurred upon conversion of any payments received that result in a short-payment of such invoices.
5. Credit/Late Payment. Your order is subject to acceptance and credit approval by Insight. You must provide appropriate credit references upon request and authorize Insight to obtain credit history from such references. You agree to pay interest on all past-due amounts at the rate of one and one-half percent (1.5%) per month (18% per annum), or such lesser amount determined by Insight calculated monthly on the past due amount. You will be responsible for Insight's costs of collection for any payment default, including, but not limited to, court costs, filing fees and attorneys' fees. In addition, if payments are not received as described above, Insight reserves the right to suspend performance of Services until payment is received.
6. Limited Services Warranty. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SUBJECT ALWAYS TO THE CCA CLAUSE:
Services performed by Insight will: (i) be performed in a timely, competent, professional and workmanlike manner; (ii) substantially conform to the written specifications under the SOW for 30 days from completion, or for such other warranty period as may be indicated under the relevant SOW; (iii) be in compliance with all laws, rules and regulations applicable to Insight's performance of the Services under the SOW. Notwithstanding the foregoing, Insight is not responsible for default or delays caused by your failure to provide accurate instructions, information, access to facilities or a suitable product or application environment
Your sole remedy and Insight’s sole obligation for breach of this Limited Services Warranty, except as set forth in any SOW that expressly amends this warranty, will be the re-performance of any deficient Services at Insight's expense. If Insight is unable to remedy any deficient Services within 30 days of notice or such additional time as may be mutually agreed upon, Insight will, at its option, provide a credit or refund of any fees paid for the specific non-conforming Services. No re-performance will extend any warranty period. Any credits issued to you by Insight for any reason must be applied by you within 2 years from the date the credit is issued. If not used within such period, credits will automatically expire.
7. Warranty Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SUBJECT ALWAYS TO THE CCA CLAUSE, THE LIMITED WARRANTIES UNDER SECTION 4 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND YOUR SOLE AND EXCLUSIVE REMEDIES. INSIGHT DISCLAIMS ALL OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING OUT OF OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF SERVICES. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE WARRANTY PERIOD.
8. Intellectual Property Rights. Insight retains all right, title and interest in any pre-existing intellectual property that is owned by Insight ("Insight IP"), and which may be used in carrying out Services, including any modifications or improvements made to Insight IP during or as a result of the Services to be performed under the Agreement. Except for Insight IP and upon payment in full of all amounts due Insight, all documents, drawings, specifications, information, patents, patent applications, inventions, developments or processes or any copyrightable material originated and developed by Insight specifically for you as part of the Services to be performed under the Agreement ("Work Product") shall be owned by you. Insight hereby grants you a worldwide, non-exclusive, royalty-free, perpetual, without the right of sublicense, license to use Insight IP in the course of your internal, business operations.
9. Confidential Information. Both parties will maintain in confidence and safeguard all Confidential Information, as defined in this paragraph, of the other party, its affiliates, and its customers. "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 Data (as defined herein), financial information, sales and marketing plans of the other party, its affiliates, or its customers. “Personal Data” means any nonpublic information relating to an identified or identifiable individual that may be subject to further obligations of confidentiality under applicable privacy laws. 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 agrees to use any Confidential Information only for the purpose of conducting business with each other and their clients in the manner contemplated by the 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 the Agreement. Upon request of the owner of Confidential Information, the other party will promptly return all materials incorporating any Confidential Information and any copies. 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 other party; (ii) was lawfully in Insight's or your possession without restriction as to use or disclosure before its receipt from the other 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 the 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 the other party may seek an appropriate protective order or give its written consent to such disclosure.
10. Indemnification. When Services are performed by Insight on your premises or at another location designated by you, each party and its respective officers, directors, employees, agents and affiliates (the “Indemnifying Party”) will indemnify, defend and hold harmless the other party, its officers, directors, employees, agents and affiliates (the Indemnified Party”) from and against any damages, costs, or expenses (including reasonable attorney’s fees) incurred relating to bodily injury or death of any person or damage to tangible personal property occurring at such location in connection with the performance of the Services to the extent caused by the negligence or willful acts or omissions of the Indemnifying Party. In the event that any such claim is made or suit is commenced, the Indemnified Party shall: (i) give prompt written notice of such demand, claim or suit to the Indemnifying Party; and (ii) provide reasonable assistance and cooperation in the defense and settlement of any claim or legal proceeding. Notwithstanding the foregoing, if the Indemnifying Party fails to assume its obligation to defend, the Indemnified Party may do so to protect its interests and seek reimbursement from the Indemnifying Party.
11. Limitation of Liability. No action, whether for indemnification or otherwise, regardless of form, arising out of the transaction under the Agreement, may be brought by either party more than 1 year after the damage, loss or expense occurred. In addition, to the maximum extent permitted by law:
NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF INCOME, PROFITS, DATA, OPERATIONAL EFFICIENCY, USE OR INFORMATION,) ARISING UNDER THE 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 THE AGREEMENT IS LIMITED TO THE TOTAL AMOUNT PAID OR TO BE PAID BY YOU FOR SERVICES PERFORMED UNDER THE RELEVANT SOW.
12. Governing Law and Venue. The Agreement will be governed by the substantive laws of New South Wales, Australia without giving effect to any conflict of law rules. You are responsible for compliance with local laws, if and to the extent local laws are applicable. Both parties specifically agree to submit to the exclusive jurisdiction of, and venue in, the courts of New South Wales, Australia in any dispute arising out of or relating to the Agreement.
13. General. Notices to be provided under the Agreement must be in writing and sent to the addresses as each party designates under the SOW and are deemed received upon the earlier of actual receipt or 3 days after mailing, if mailed postage prepaid by regular mail or airmail or 1 day after such notice is sent by courier or facsimile transmission. Insight will not be liable for, nor shall any liability to Insight result from, any delays in the performance of the Agreement due to circumstances beyond its control, including but not limited to acts of nature, acts of government, national emergencies, acts of terrorism, transportation delays, labor disturbances, work stoppages, or material shortages. Any additions, deletions or modifications to the Agreement subsequent to the Effective Date are not binding unless agreed upon in writing by authorized representatives of both parties. If any part of the Agreement is, for any reason, found by a court of competent jurisdiction to be invalid, illegal or unenforceable, all other parts will still remain in effect. A delay or failure by either party to exercise or partially exercise any right or remedy does not operate as a waiver by that party to thereafter enforce such rights. Insight may assign or subcontract any or all of its rights or obligations under the Agreement without consent. You may not assign the Agreement or any SOW, or any of the rights or obligations therein, without Insight’s prior written consent. The provisions of the Agreement, which by sense and content are intended to survive, including but not limited to the sections related to payment, warranties, remedies, confidentiality, indemnification and limits of liability, will survive the expiration or termination of the Agreement. The relationship between Insight and you is that of independent contractors and not that of employer/employee, partnership or joint venture. No personnel employed or engaged by Insight to perform Services for you will be considered your employees, agents, partners, joint venture partners, or franchisors. Insight has sole responsibility for the direction of its employees and has the right to fire, hire, suspend, layoff, transfer or reassign employees at will without your consent. Electronic signatures (or copies of signatures sent via electronic means) are the equivalent of written and signed documents.
Revised October 2015
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