Terms and Conditions of Sale - Product and Services

1. Definitions

Confidential Information means any information that is marked or otherwise identified as confidential or proprietary at the time of disclosure, or information that the parties should reasonably know is confidential based on the nature of the information and basis of its disclosure, and includes, but is not limited to, trade secrets, know-how, inventions, techniques, data, customer lists, financial information, sales and marketing plans of the other Party, its affiliates, or its customers.

Disputes means 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) arising from or relating to these Terms or any Agreement including but not limited to the interpretation or application of these Terms, any breach, termination or validity of the Terms, the relationships which result from these Terms or any Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to these Terms or an Agreement).

Modern Slavery has the same meaning as it has in the Modern Slavery Act 2018 (Cth).

Personal Information has the meaning given to it under the relevant privacy legislation in the jurisdiction in which You acquire the Product and/or Services. For clarity, in Australia, Personal Information has the meaning given to it in under the Privacy Act 1988 (Cth).

Product means any third-party hardware, software, and/or related third party services but excluding any Third-Party Cloud Service.

Services means the services as described in a SOW.

Statement of Works or “SOW” means any document bearing that name that is agreed between You and Insight for the provision of Services.

Third Party Cloud Service means, individually and collectively, a software as a service, platform as a service, or an infrastructure as a service Product offering.

2. Application of these Terms and Conditions of Sale

2.1 These Terms and Conditions of Sale (“Terms”) are between you (“Client”, “You”, or “Your”) and the Insight entity described in the Insight quotation or SOW.

2.2 These Terms apply to, and are incorporated into, each purchase order or SOW between You and Insight (each, an “Agreement”) unless Insight’s quotation or the SOW specifies that a separately signed contract applies to that quotation or SOW, in which case that signed contract will apply.

2.3 By signing a SOW, or by Insight accepting Your purchase order, You agree to be bound by and comply with these Terms. Any additional terms or conditions specified by You in Your purchase order, or any other document provided by You, including documents attached or incorporated into Your purchase order, will not form part of Your Agreement with Insight, and are expressly rejected.

2.4 The Terms posted on Insight’s Website at the time Insight accepts your purchase order, or when You sign an agreed SOW, govern that purchase only and will not apply to any existing purchase order or SOW unless otherwise agreed in writing by the parties, or as required by law in which case Insight will provide notice to You of such changes.  In placing an order or signing a SOW, You agree you have had a reasonable opportunity to review and negotiate these Terms and obtain independent advice.

2.5 These Terms do not apply to the supply of a Third-Party Cloud Service which are governed by the Third-Party Cloud Service Terms located on the Insight website in the jurisdiction in which You have acquired the Product or Services.

3. Product Supply and Orders

3.1 Insight agrees to supply Products to You in accordance with these Terms. All purchase orders are subject to acceptance by Insight and any amendments to an accepted purchase order must be agreed in writing by Insight.

3.2 You represent and warrant You are purchasing Products for Your internal business purposes only and not for resale. If Products purchased under these Terms are intended for export, they may be subject to export regulations. You accept full responsibility for and agree to comply fully with all export regulations, including obtaining export licenses. You acknowledge and agree the export of Products may also alter or void the manufacturer's or publisher's warranty and Insight will not be responsible for any loss or liability arising directly or indirectly from the manufacturer or publisher voiding Your purchase of Products.

3.3 Products offered for sale by Insight are not designed for use in life support, life sustaining systems, nuclear systems, or other applications in which failure of the Product could reasonably be expected to result in personal injury, loss of life, or catastrophic property damage. You agree that use in any such applications is at Your own risk, and You waive the right to claim against Insight in respect of any liability, loss, or damage arising directly or indirectly from Your use in these applications.

3.4 You acknowledge and agree that Insight obtains certain Product data and information directly from the manufacturer, publisher, or supplier and Insight is not responsible for pricing, typographical, or other errors in the Product data or information. Insight may, in its sole discretion, either correct or cancel an order where it becomes aware of an error in the Product data (including pricing errors not detected until after Insight's acceptance of Your purchase order) or as a result of the Product discontinuation or unavailability.

4. Publisher/Manufacturer Terms

4.1 You acknowledge and agree that Insight supplies Products to You in its capacity as a reseller only and Your purchase and use of Products is governed by, and subject to, the publisher’s end user licence agreement (“EULA”) or other vendor/manufacturer terms issued by the relevant vendor/manufacturer. You may obtain a copy of the EULA or the relevant vendor/manufacturer terms on the Insight website in the jurisdiction you acquired the Product (where available) or on written request to Insight. By issuing a purchase order for Products or signing a SOW that includes the supply of Products, You agree to accept, be bound by, and comply with the terms of the EULA or the relevant vendor/manufacturer terms.

5. Product Delivery, Risk, and Title

5.1 Hardware Products are delivered Delivery and Duty Paid (DDP), incoterms 2000, to the location specified by You, with local delivery freight charged. Insight will not insure Product delivery and is not responsible for any loss or damages to Products during delivery. Insight suppliers may insure Product during delivery and until title is transferred to You on delivery.

5.2 Software Product delivery occurs when the software is first made available to You by either the publisher or Insight.

5.3 Insight will use commercially reasonable efforts to meet requested delivery times. Insight does not guarantee delivery by a stated time and is not responsible for any liability, loss, or damage arising directly or indirectly from delays, or the failure to meet a stated delivery schedule not within Insight’s direct control.

5.4 Insight reserves the right to make deliveries in instalments. Delivery delays in one instalment will not entitle You to cancel other instalments or terminate Your Agreement.

5.5 Title and risk in hardware Products will pass to You on delivery. Title in software Products remains with the relevant publisher and is governed by the terms of the EULA between you and the relevant publisher. Risk in software Products will pass to You on delivery.

5.6 All Product is deemed accepted on delivery and is not subject to acceptance testing.

5.7 You grant Insight a security interest in all Products purchased under these Terms to secure payment in full, which if acquired in Australia is registerable by Insight on the PPSR Register in accordance with the terms of the Personal Property Security Act 2009 (Cth); or if purchased in New Zealand in accordance with the terms of the Personal Property Securities Act 1999 (NZ); or if purchased in Singapore in accordance with the terms of the Companies Act 1967 (Singapore). You authorise Insight to execute and file any documents or take any other action, necessary to register such security interest or otherwise to perfect Insight's security interest.  You must promptly, and at your own cost, take any action reasonably 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 will automatically terminate and be released on Your payment in full for the Products. 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 by law, You waive Your right to receive a copy of any verification statement, or any other notice required to be given by Insight by law (including under section 157 of the Personal Property Security Act 2009 (Cth)) in respect of any such security interest in favour of Insight. 

6. Supply of Services, Statements of Works

6.1 Insight agrees to supply Services to You in accordance with these Terms and any additional terms agreed in a SOW.

6.2 You agree that any purchase order for Services issued by You that references or describes a SOW agreed with Insight will be deemed to be Your acceptance of these Terms, and Your agreement to the terms specified in an SOW, regardless of whether the SOW is signed by You.

6.3 In the event of any inconsistency between these Terms and a SOW, the terms of the SOW will take precedence to the extent of any inconsistency.

7. Prices and Payment

7.1 All orders for Products and Services are subject to Insight's credit approval. You must promptly provide the financial information reasonably requested by Insight for Insight to conduct any required credit checks. Insight may, in its sole discretion, decline to accept a purchase order or sign a SOW based on your credit history and/or payment record.

7.2 Product prices are as specified in Your quotation and are invoiced by Insight after proof of delivery of shipment to You. Prices are subject to change at any time prior to Insight's acceptance of Your purchase order.

7.3 Service prices are as specified in the agreed SOW, and/or any purchase order issued referencing an agreed SOW and are invoiced in accordance with the terms specified in the SOW, and where no date is specified, monthly in arrears.

7.4 All prices are in the currency specified in the Insight quotation or the agreed SOW.

7.5 All quoted prices are exclusive of any applicable goods and services tax (‘GST’), and other applicable taxes, duties, shipping, and handling charges. A handling fee may apply to Products when ordering special or non-standard Products. You agree to pay the quoted price and any applicable government taxes, GST (if applicable) charges, duties, shipping, and handling charges imposed on Insight in connection with Insight’s supply of the relevant Product and/or Services.

7.6 You must pay the total undisputed amount specified in an invoice within 30 days of the date of the invoice. Insight may, in its sole discretion, charge interest on any late payments at a rate of 2% above the prevailing cash rate in Australia at the relevant time the claim for interest is made. You agree You are responsible for all costs associated with Insight enforcing its payment rights under these Terms, including reasonable legal fees.

 7.7 Unless otherwise agreed in writing with Insight, You must use any credits issued to You by Insight for any reason within one year from the date the credit is issued. If not used within such period, You agree that such credits will automatically expire without further notice to You.

8. Insight General Warranties

8.1 Except in relation to the limited warranties specified in clauses 9 and 10 below, and to the extent permitted by law, all Products and Services are supplied on an ‘as is’ basis and without any warranty, whether express or implied, including 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.

9. Product Specific Warranties, Defects, and Returns

9.1 Products manufactured, published, or supplied by third parties are supplied by Insight to You on an ‘as is’ basis without any express or implied warranty by Insight and are supplied subject to the relevant publisher, or manufacturer/vendor, written warranties (‘product warranties’). Insight will pass to You any written product warranties and You agree to accept the relevant product warranty unless you have a separate warranty agreement with the publisher, manufacturer, or vendor, in which case that agreement will apply. Any support services in respect of Products will be subject to the manufacturer or publisher service description and service levels (if any).

9.2 Product defects will be rectified in accordance with the relevant publisher EULA, or manufacturer/vendor policy, or their respective product defect policies. You acknowledge and agree that Insight will process defects and/or returns notified to it in accordance with its returns policy which can be located on the relevant Insight entity website.

10. Service Specific Warranties

10.1 Insight warrants that the Services performed by Insight under an agreed SOW will:

(a) be performed in a timely, competent, professional, and workmanlike manner;

(b) substantially conform to the written specifications in the SOW for 30 days from delivery and acceptance, or for such other warranty period specified in the relevant SOW;

10.2 Except to the extent an SOW expressly modifies this clause, You agree Your sole remedy, and Insight’s sole obligation for breach of clause 10.1, will be the re-performance of the Services to the extent that the Services do not meet the warranties specified in 10.1 above, at Insight's expense. If Insight is unable to remedy the Services within 30 days of written notice from You, or such additional time as may be mutually agreed, Insight will, at its option, provide a credit or refund of any fees paid for the specific non-conforming Services.  Re-performance will not extend any warranty period.

11. Australian Consumer Law

11.1 Nothing in these Terms is intended to exclude, restrict or modify any consumer rights under the Competition and Consumer Act 2010 (Cth) (“CCA”) or any other legislation which may not be excluded, restricted or modified by agreement. If the CCA or any other legislation implies a condition, warranty, or term into these Terms or provides statutory guarantees in connection with these Terms, in respect of Products and Services supplied (if any), Insight’s liability for breach of such a condition, warranty, other term or guarantee is limited (at Insight’s election), to the extent Insight is reasonably able to do so: (A) in the case of supply of Product, our doing any one or more of the following: (1) replacing the Product or supplying equivalent Products; (2) repairing the Products; (3) paying the cost of replacing the Products or of acquiring equivalent Products; and (4) paying the cost of having the Products repaired; or (B) in the case of supply of Services, our doing either or both of the following: (1) supplying the Services again; and (2) paying the cost of having the Services supplied again.

12. Intellectual Property Rights

Products

12.1 Intellectual property rights in Products is as specified in the EULA or relevant manufacturer or vendor terms. Insight will pass through to You, all such rights.

12.2 Insight is not responsible for any liability, loss, or damages arising directly or indirectly from Your purchase or use of a Product. You agree to waive Your right to any claim You may have against Insight based on any infringement, or alleged infringement, of any patent, copyright, trade secret, or other intellectual property rights regarding any Product. You acknowledge that Insight’s employees are not authorised to make any representation or warranty on behalf of Insight that is not in these Terms.

Services

12.3 You retains all right, title and interest in Your proprietary information (“Client Proprietary Information”), including such Proprietary Information of yours contained in the deliverables resulting from the Services described in and delivered under a SOW (“Work Product”).

12.4 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 a SOW (“Insight IP”).

12.5 Except as otherwise provided 12.3 and 12.4, Insight grants You a worldwide, non-exclusive, non-transferable, royalty-free, perpetual, without the right of sublicense, license to use Insight IP that is included in Work Product in the course of Your 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 license for non-payment of required fees under these Terms or an applicable Agreement.

13. Termination

13.1 On prior written notice to Insight of no less than five days prior to scheduled shipment of a Product, You may cancel any order for Product, including as a result of price changes, at no charge, unless such Product has been modified or otherwise reconfigured in accordance with Your specifications, or the manufacturer, publisher, or Insight’s supplier rejects Insight’s cancellation of the order. Cancellation will not relieve Your duty to pay for Products shipped, services performed, or expenses incurred by Insight prior to such notice.

13.2 If an order for Product is cancelled for any reason prior to shipment, Your sole remedy and Insight's sole obligation will be a full refund of the purchase price paid for the Product. You agree that cancellation of orders following shipment must be made in accordance with the return policies of the manufacturer, publisher, or supplier of the Product and may not be accepted.

13.3 Either party may terminate these Terms or an Agreement, in whole or in part, immediately if the other party materially breaches these Terms or the terms of an Agreement and fails to remedy that breach within 30 days after receipt of written notice of such breach.

13.4 You acknowledge and agree that termination of these Terms may not terminate any licenses with a publisher.

13.5 Insight may, at its election, either suspend or terminate these Terms or an Agreement in whole or in part, or the performance of its obligations under these Terms or an Agreement, without liability, where You fail to meet Your payment obligations under an Agreement.

14. Limitation of Liability

14.1 To the maximum extent permitted by law, in no event will either party be liable to the other or any third party, for any indirect, special, incidental, or consequential losses including loss of income, loss of profits, special or punitive damages, loss of operational efficiency, or loss or use or information regardless of the form of action or theory of relief, even if advised of the possibility of such loss or damages.

14.2 Except in relation to personal injury or death, wilful misconduct or fraud, the total aggregate amount of direct damages a party can recover from a party under these Terms is limited to:

(a) for Products, the total amount paid or payable by You under the purchase order giving rise to the claim; or

(b) for Services, the total amount paid or payable by You under all agreed SOWs between You and Insight in the 12 months preceding the event, or series of events, giving rise to the claim.

15. Confidential Information

15.1 Both parties will maintain in confidence and safeguard all Confidential Information of the other party, its affiliates, and its customers. Both parties 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 unauthorised purposes.

15.2 Each party agrees to use Confidential Information only for the purpose of conducting business with each other and their clients in the manner contemplated by an Agreement. Both parties will restrict disclosure 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 these Terms or an Agreement.

15.3 On written request of the owner of Confidential Information, the other party will promptly return or destroy (at the requesting party’s election) all Confidential Information and any copies of such Confidential Information.

15.4 The obligations under clause 15.3 do not apply to Confidential Information that:

(a) is or becomes generally known or in the public domain through no act or omission of the recipient;

(b)was lawfully in a party’s possession without restriction as to use or disclosure before its receipt from the disclosing party;

(d) was independently developed;

(e) is otherwise permitted to be disclosed under these Terms;

(f) is disclosed with the prior written consent of the disclosing party; or

(g) 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 will (where legally permitted) give prompt notice of this to the other party prior to such disclosure so that party may, if required, seek an appropriate protective order.

15.5 Despite any other clause in these Terms, a party may retain Confidential Information, or a document or other material containing Confidential Information:

(a) if that party is required to retain the Confidential Information, document, or material to comply with any applicable law or regulatory obligation; or

(b) if the Confidential Information, document, or material is retained as part of a reasonable automatic back-up or archival process of a party and it is not commercial reasonable to either return or destroy it,

but any such Confidential Information, document, or material retained shall be maintained subject to the obligations of confidentiality under these Terms and must be destroyed promptly after the requirement for retention has expired.

16. Privacy

16.1 You acknowledge and agree that Insight will collect, process, share, store, and use Personal Information in accordance with the terms of its Privacy Policy which is located on the relevant Insight entity website.

16.2 Each Party agrees to comply with applicable laws in relation to privacy and will promptly (and within 48 hours of becoming aware) notify the other party of any privacy breach that impacts Personal Information provided by a party to an Agreement, or which is collected by a party as part of the performance of its obligations under an Agreement.

17. Modern Slavery

17.1 Insight will take reasonable steps to identify, assess, and address risks of Modern Slavery practices in the operations and supply chains used in the provision of Product and Services.

17.2 If Insight becomes aware of Modern Slavery practices in the operations and supply chains used in the performance of its obligations under an Agreement, the Supplier must as soon as reasonably practicable, take all reasonable action to address or remove these practices, including where relevant by addressing any practices of other entities in its supply chains.

17.3 You can view Insight’s Modern Slavery Statement on its Australian website here: https://au.insight.com/en_AU/about/slavery-and-human-trafficking.html

18. Anti-Corruption

18.1 Insight complies, and will continue to comply with, all applicable local and international laws prohibiting the bribery of public officials and private persons. These laws include but are not limited to the Corporation Act 2001 (Cth), Criminal Code Act 1995 (Cth), the US Foreign Corrupt Practices Act and UK Bribery Act.

19. Dispute Resolution

19.1 Except in relation to any urgent declaratory, interlocutory, or injunctive relief, a Dispute will be resolved by the parties first notifying the other party in writing of the dispute, and then engaging in good faith to resolve the Dispute. If the Dispute cannot be resolved between the parties within 30 days of a party being notified in writing of a Dispute, or such other timeframe as agreed in writing between the parties, a party may take any action it requires to resolve such Dispute, including commencing legal proceedings.

19.2 You acknowledge and agree that, in relation to payment Disputes, Insight may engage a debt collection agency and may notify any applicable credit reporting agency of any payment defaults.

20. General Terms

20.1 Entire Agreement. These Terms, and any Agreement, forms the entire agreement between You and Insight relating to the Products and Services to be provided by Insight and supersedes any prior representations or agreements, oral or written, and all other communications between the parties relating to an Agreement.

20.2 English Version. The English version of these Terms will be the version used when interpreting or construing these Terms and will prevail over any other translation.

20.3 Governing Law. These Terms, and any Agreement, will be governed by the substantive laws of the Insight entity You transacted with as specified in Annexure A to these Terms, without giving effect to any conflict of laws rules. Despite this, You agree Insight may bring any claim, cause of action or dispute Insight may have against You in any competent court in any country that has jurisdiction over the claim. You agree the United Nations Convention on Contracts for the International Sale of Goods, and any local laws implementing the Convention on Contracts for the International Sale of Goods, do not apply to these Terms.

20.4 Notices. Any notice required or permitted to be given must be in writing and is considered received: (i) when personally delivered; (ii) one (1) business day after having been sent by overnight mail including via a professional carrier; or (iii) when sent via email, when received by the recipient’s email server during normal working hours at the place of the receiving party or, if outside normal working hours, at 9.00am on the next business day, unless the sender receives an automated message that delivery of the email has failed, with an original document placed in the mail within five business days of the date electronic mail. Legal notices to Insight must be sent with a copy emailed to APAClegal@insight.com .

20.5 Assignment. Neither Party may assign its duties or rights under these Terms, whether by operation of law or otherwise, without the other party’s prior written consent, except Insight may without prior notice to You, assign or novate these Term or an Agreement to an Affiliate, or to any corporate successor as part of a company reorganisation or sale, and You agree to such assignment or novation.

20.6 Force Majeure. Insight is not be liable to You for any delay or failure by Insight to fulfill its obligations under these Terms, or any Agreement, if such delay or failure arises from any cause or causes beyond the reasonable control of Insight, including but not limited to labour disputes, strikes or other labour 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.

20.7 Non-Solicitation. Both parties agree, that during the term of an Agreement, and for a period of one year after the termination or expiration of the relevant 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 any obligations under an Agreement. 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.

20.8 Compliance with All Applicable Laws. Each Party shall comply with all laws, rules, and regulations applicable to the performance of its obligations under these Terms and any Agreement.

20.9 Severance. If any provision of these Terms is invalid, illegal, or unenforceable, it will be regarded as severed from these Terms, and any Agreement, and not affect the validity or enforceability of the remaining provisions of these Terms or any Agreement. A delay or failure to exercise or partially exercise any right under these Terms 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 these Terms, which by sense and content are intended to survive, will survive the expiration or termination.

20.10 Relationship. The relationship between the parties is that of independent contractors and not that of employer/employee, partnership, or joint venture.

Annexure A

Insight Entity You have entered into an Agreement with	Applicable Governing Law
Insight Enterprises Australia Pty Ltd	Sydney, New South Wales
Insight Enterprises (NZ) Limited	Auckland, New Zealand
Insight Technology Solutions Pte Ltd	Singapore
Insight Enterprises Hong Kong	Hong Kong
Insight Enterprises (Shanghai) Co Ltd	China Mainland

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