THESE TERMS AND CONDITIONS ("AGREEMENT") APPLY TO YOUR ORDER AND PURCHASE OF HARDWARE, SOFTWARE, THIRD-PARTY BRANDED SERVICES AND SUPPORT, AND INSIGHT SKU'D SERVICES (COLLECTIVELY, "PRODUCT") SOLD BY INSIGHT and through its website at au.insight.com (the "Website"). You accept the terms and conditions of this Agreement, unless you have a separate purchase agreement governing the purchase of Product signed by both your company and Insight, in which case, that separate agreement will govern your purchase. Insight may, from time to time and at its sole option, revise this Agreement without notice by posting the revised agreement on the Website. The Agreement posted on the Website at the time Insight accepts your order will govern that purchase.
- 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. In addition, availability of third party Product is subject to change without notice. Insight reserves the right to cancel orders related to such errors or Product discontinuation or unavailability, and to correct the Website at any time, including pricing errors not detected until after Insight's confirmation or e-mail response.
- Prices/Payment Terms. Your order is subject to review and acceptance by Insight. Prices are subject to change at any time prior to Insight's acceptance of your order and all orders are subject to Insight's credit approval. You must provide appropriate credit references upon request and authorize us to obtain credit history from such references. You agree to pay the total purchase price for the Products, plus taxes (including any GST that is payable) and shipping (to the extent shipping is not prepaid by you), including shipping charges billed to Insight as a result of using your carrier account number or a carrier selected by you. Invoices are due and payable within the time frame and in the currency specified on the invoice, measured from the date of 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 which result in a short-payment of such invoices. 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 further deliveries until payment is received.
- Credits. You must expend or apply any credits issued to you by Insight for any reason within two years from the date the credit is issued. If not used within such period, credits will automatically expire.*
- 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 your responsibility. You may provide Insight a tax exemption certificate, which will be subject to review and acceptance by Insight.
- 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 you to cancel other installments. Product will be delivered to you EXW (Incoterms 2010), at your designated location, with freight prepaid and added, whereupon title and risk of loss for tangible products will pass to you. Insight is not responsible for insuring shipments, nor for any loss or damages to Product during shipment and recommends you obtain insurance for shipments. Notwithstanding anything in this paragraph, title to software Product remains with the applicable licensor(s), and your rights and obligations related to software are contained in the license agreement between you and the licensor(s). Upon the passing to you of title to a Product purchased by you under this Agreement, you will grant, or be taken to have granted, to Insight a security interest in that Product to secure payment in full to Insight for that Product. You authorize Insight to execute and file a financing statement or other documents, or take any other action necessary or desirable, to register such security interest on the Personal Property Securities Register or otherwise to perfect Insight's security interest. You must promptly at your own cost take any action required by Insight to ensure that such security interest is enforceable, perfected, protected and afforded the priority ranking required by Insight. Insight's security interest in Product purchased by you under this Agreement shall be automatically released (without anything further to be done) when Insight has received all amounts due for that Product in full and immediately available funds. While such security interest remains outstanding, you must not, without Insight's prior written consent, sell, assign, transfer or otherwise dispose of the Product subject to such security interest or create or permit the creation or existence of any other security interest in that Product. To the extent not prohibited under the Personal Property Securities Act 2009 (Cth) (PPSA), you waive your right to receive a copy of any verification statement or any other notice required to be given by Insight under section 157 (verification statements) or any other provision of the PPSA in respect of any such security interest in favour of Insight.
- CCA. 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 replacement, repair or refund of the cost of the Product.
- Limited Warranty. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SUBJECT ALWAYS TO THE CCA CLAUSE:
- PRODUCTS MANUFACTURED, PUBLISHED OR PROVIDED BY THIRD PARTIES ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY BY INSIGHT OF ANY KIND, EITHER EXPRESS OR IMPLIED. Insight shall pass through to you, to the extent available, any manufacturer's/publisher's/supplier's written warranties associated with third party Products purchased from Insight. Although third-party services and support are considered "Product" and you may purchase such services through Insight, Insight is not obligated to provide the services or support. Insight accepts no liability for any claims arising out of any act or omission, including negligence, by your third-party service provider; and any amounts associated with third party services, including but not limited to taxes, will be collected solely in our capacity as an independent reseller of such Product.
- PRODUCTS PRODUCED SOLELY BY INSIGHT ("INSIGHT PRODUCT") ARE PROVIDED WITH ONLY THOSE WARRANTIES EXPRESSLY SET FORTH IN THE INSIGHT PRODUCT SPECIFICATION. In addition to any non-excludable statutory remedies, your sole remedy and Insight's sole obligation for breach of this warranty will be reasonable efforts to correct any non-conformance or, if this cannot be accomplished, then Insight will issue you a credit for, or a refund of, the purchase price and original freight paid for the Insight Product.
- Disclaimer of Warranty. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SUBJECT ALWAYS TO THE CCA CLAUSE, THE FOREGOING WARRANTIES 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 MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. No agent or employee of Insight or any other party is authorized to make any warranty in addition to those made in this Agreement.
- Limitations on Use. You agree and represent that you are buying Product for your own internal business 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.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW:
- INSIGHT WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, PROFITS, DATA, OPERATIONAL EFFICIENCY, USE OR INFORMATION, ARISING UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION OR THEORY OF RELIEF (INCLUDING NEGLIGENCE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Any liability for direct damages arising under this Agreement, regardless of the form of action or theory of relief, is limited to the purchase price of the Product. No action arising out of the transactions under this Agreement may be brought by you more than one (1) year after the damage, loss or expense occurred. Insight is not liable for any claim made by a third party or made by you for a third party.
- Termination. You may cancel any order for Product at no charge up to five (5) business days prior to scheduled shipment upon written notice to Insight, unless such Product has been modified or otherwise reconfigured in accordance with your specifications. Cancellation shall not relieve your duty to pay for Products shipped, services performed or expenses incurred by Insight prior to such notice. If an order is cancelled prior to shipment, your sole remedy and Insight's sole obligation will be a full refund of the purchase price paid for the Product. Cancellation of orders following shipment must be made in accordance with the return policies of the manufacturer, publisher or supplier of the Product.
- Governing Law and Venue. This 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. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Both parties to this Agreement 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 this Agreement.
- Assignment. Insight may assign or subcontract all or any portion of its rights or obligations with respect to the sale of Products and/or assign the right to receive payments without your consent. You may not assign this Agreement or any of its rights or obligations without the prior written consent of Insight. Subject to the restrictions in assignment contained in this provision, this Agreement will be binding on and inure to the benefit of the parties hereto and their successors and assigns.
- Force Majeure. Insight will not liable for failure to fulfill its obligations under this Agreement or for delays in delivery or performance due to causes beyond its reasonable control. Insight's time for performance of any such obligation will be extended for the time period of such delay, or Insight may, at its options, cancel any order or remaining part thereof, without liability, upon notice to you.
- Miscellaneous. No provision of this Agreement may be waived, amended or modified by either party except by a written agreement signed by both you and Insight. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights. The relationship between Insight and you is that of independent contractors and not that of employer/employee, partnership or joint venture. If any part of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable, all other parts will still remain in effect. Notices to be provided under this Agreement must be in writing and will be deemed received upon the earlier of: 1) actual receipt; 2) three (3) days after mailing, if mailed postage prepaid by regular mail or airmail; or 3) one (1) day after such notice is sent by courier or facsimile transmission. The terms and conditions applicable to all returns are set forth in Insight's Return Policy on the Website. Terms in effect at the time of Product purchase shall apply to any requested returns.
- Entire Agreement. This Agreement constitutes the entire agreement between us regarding this purchase of Products from Insight and supersedes and replaces any previous communications, representations or agreements. Any additional or different terms or conditions contained in any purchase order or other documents provided by you are considered material alterations to this Agreement, expressly rejected and will not be binding upon Insight.
Revised January 2018
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