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Terms and Conditions > Sales and Service Projects
TERMS AND CONDITIONS
SALES AND SERVICE PROJECTS
--------------------------------------------------------------------------------
PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY
THE TERMS AND CONDITIONS OF PRODUCT SALES AND SERVICE PROJECTS ARE LIMITED TO
THOSE CONTAINED HEREIN. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY
FORM DELIVERED BY YOU ("CUSTOMER") ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS
AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN.
BY ACCEPTING DELIVERY OF THE PRODUCTS OR BY ENGAGING THE CDW AFFILIATE IDENTIFED
ON THE INVOICE, STATEMENT OF WORK OR OTHER CDW DOCUMENTATION ("SELLER") TO
PROVIDE PRODUCT OR PERFORM OR PROCURE ANY SERVICES, CUSTOMER AGREES TO BE BOUND
BY AND ACCEPTS THESE TERMS AND CONDITIONS UNLESS CUSTOMER AND SELLER HAVE SIGNED
A SEPARATE AGREEMENT, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN.
ANY GENERAL DESCRIPTION OF THE TYPES OF PRODUCTS OR SERVICES AND RESULTS THEREOF
POSTED ON ANY SELLER WEBSITE OR MOBILE APPLICATION DO NOT CONSTITUTE PART OF THE
AGREEMENT BETWEEN SELLER AND CUSTOMER.
IMPORTANT INFORMATION ABOUT THESE TERMS AND CONDITIONS
These Terms and Conditions constitute a binding contract between Customer and
Seller and are referred to herein as either "Terms and Conditions" or this
"Agreement". Customer accepts these Terms and Conditions by making a purchase
from or placing an order with Seller or shopping on any Seller Website or Mobile
Application (each, a "Site") or otherwise requesting products (the "Products")
or engaging Seller to perform or procure any Services (as this and all
capitalized terms are defined herein). These Terms and Conditions are subject to
change without prior notice, except that the Terms and Conditions posted on a
Site at the time Customer places an order or signs a Statement of Work will
govern the order in question, unless otherwise agreed in writing by Seller and
Customer.
Customer consents to receiving electronic records, which may be provided via a
Web browser or e-mail application connected to the Internet; individual
consumers may withdraw consent to receiving electronic records or have the
record provided in non-electronic form by contacting Seller. In addition,
Internet connectivity requires access services from an Internet access provider.
Contact your local access provider for details. Electronic signatures (or copies
of signatures sent via electronic means) are the equivalent of written and
signed documents.
Customer may issue a purchase order for administrative purposes only. Additional
or different terms and conditions contained in any such purchase order will be
null and void. No course of prior dealings between the parties and no usage of
trade will be relevant to determine the meaning of these Terms and Conditions or
any purchase order or invoice, or any document in electronic or written form
that is signed and delivered by each of the parties for the performance of
Services other than Third Party Services (each, a "Statement of Work"). This
Agreement contains the entire understanding of the parties with respect to the
matters contained herein and supersedes and replaces in its entirety any and all
prior communications and contemporaneous agreements and understandings, whether
oral, written, electronic or implied, if any, between the parties with respect
to the subject matter hereof.
GOVERNING LAW
THESE TERMS AND CONDITIONS, ANY STATEMENTS OF WORK, THE SERVICES HEREUNDER AND
ANY SALE OF PRODUCTS HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF
ILLINOIS, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION,
ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN COOK
COUNTY, ILLINOIS, AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND
STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE
RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL
JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. Except in
the case of nonpayment, neither party may institute any action in any form
arising out of these Terms and Conditions more than one (1) year after the cause
of action has arisen. The rights and remedies provided Seller under these Terms
and Conditions are cumulative, are in addition to, and do not limit or prejudice
any other right or remedy available at law or in equity.
TITLE; RISK OF LOSS
If Customer provides Seller with Customer’s carrier account number or selects a
carrier other than a carrier that regularly ships for Seller, title to Products
and risk of loss or damage during shipment pass from Seller to Customer upon
delivery to the carrier (F.O.B. Origin, freight collect). For all other
shipments, title to Products and risk of loss or damage during shipment pass
from Seller to Customer upon delivery to the specified destination (F.O.B.
Destination, freight prepaid and added). Notwithstanding the foregoing, title to
software will remain with the applicable licensor(s), and Customer's rights
therein are contained in the license agreement between such licensor(s) and
Customer.
SERVICES
Customers may order services (collectively, "Services") from or through Seller
from time to time. Certain Services may be provided by third parties, including,
but not limited to, extended warranty service by manufacturers, and are sold by
Seller as distributor or sales agent ("Third Party Services").
In the case of Third Party Services, Customer shall consider the third party to
be the contracting party and the third party shall be the party responsible for
providing the services to the Customer and Customer will look solely to the
third party for any loss, claims or damages arising from or related to the
provision of such Third Party Services. Customer and Customer’s Affiliates
(defined below) hereby release Seller and Seller’s Affiliates (defined below)
from any and all claims arising from or relating to the purchase or provision of
any such Third Parties Services. Any amounts, including, but not limited to,
taxes, associated with Third Party Services which may be collected by Seller
will be collected solely in the capacity as an independent sales agent.
"Affiliate" means, with respect to a party, an entity that controls, is
controlled by, or is under common control with such party.
Where Services are ordered in a Statement of Work, each Statement of Work hereby
incorporates these Terms and Conditions and constitutes a separate agreement
with respect to the Services performed. Seller, or any of its Affiliates on
behalf of Seller, may execute a Statement of Work. In the event of an addition
to or a conflict between any term or condition of the Statement of Work and
these Terms and Conditions, these Terms and Conditions will control, except as
expressly amended in the applicable Statement of Work by specific reference to
this Agreement. Each such amendment will be applicable only with respect to such
Statement of Work and not to future Statements of Work. Changes to the scope of
the Services described in a Statement of Work will be made only in a writing
executed by authorized representatives of both parties. Seller will have no
obligation to commence work in connection with any such change, unless and until
the change is agreed upon in that writing executed by both parties. All such
changes to the scope of the Services will be governed by these Terms and
Conditions and the applicable Statement of Work. Each Statement of Work may be
signed in separate counterparts each of which shall be deemed an original and
all of which together will be deemed to be one original.
COOPERATION
In addition to any specific Customer duties set forth in any applicable
Statement of Work, Customer agrees to cooperate with Seller in connection with
performance of the Services by providing: (i) timely responses to Seller's
inquiries and requests for approvals and authorizations, (ii) access to any
information or materials reasonably requested by Seller which are necessary or
useful as determined by Seller in connection with providing the Services,
including, but not limited to, physical and computer access to Customer's
computer systems, and (iii) all Required Consents necessary for Seller to
provide the Services. "Required Consents" means consents or approvals required
to give Seller, its Affiliates, and its and their subcontractors the right or
license to access, use and modify all data and third party products. Customer
acknowledges and agrees that the Services are dependent upon the completeness
and accuracy of information provided by Customer and the knowledge and
cooperation of the agents, employees or subcontractors ("Personnel") engaged or
appointed by Customer who are selected by Customer to work with Seller.
Seller will follow all reasonable Customer security rules and procedures, as
communicated in writing by Customer to Seller from time to time.
ACCESS
Seller may perform the Services at Customer's place of business, at Seller's own
facilities or such other locations as Seller and Customer deem appropriate. When
the Services are performed at Customer's premises, Seller will attempt to
perform such Services within Customer's normal business hours unless otherwise
jointly agreed to by the parties. Customer will also provide Seller access to
Customer's staff and any other Customer resources (and when the Services are
provided at another location designated by Customer, the staff and resources at
such location) that Seller determines are useful or necessary for Seller to
provide the Services. When the Services are provided on Customer's premises or
at another location designated by Customer, Customer agrees to maintain adequate
insurance coverage to protect Seller and Customer's premises and to indemnify
and hold Seller and its Affiliates, and its and their agents and employees
harmless from any loss, cost, damage or expense (including, but not limited to,
attorneys' fees and expenses) arising out of any product liability, death,
personal injury or property damage or destruction occurring at such location in
connection with the performance of the Services, other than solely as a result
of Seller's gross negligence or willful misconduct.
PAYMENT
Orders are not binding upon Seller until accepted by Seller. Customer agrees to
pay the total purchase price for the Products plus shipping (to the extent
shipping is not prepaid by Customer), including shipping charges that are billed
to Seller as a result of using Customer's carrier account number. Terms of
payment are within Seller's sole discretion. In connection with Services being
performed pursuant to a Statement of Work, Customer will pay for the Services in
the amounts and in accordance with any payment schedule set forth in the
applicable Statement of Work. If no payment schedule is provided, Customer will
pay for the Services as invoiced by Seller. Invoices are due and payable within
the time period specified on the invoice, measured from the date of invoice,
subject to continuing credit approval by Seller. Seller, or any of its
Affiliates on behalf of Seller may issue an invoice to Customer. Seller may
invoice Customer separately for partial shipments, and Seller may invoice
Customer for all of the Services described in a Statement of Work or any portion
thereof. Customer agrees to pay interest on all past-due sums at the lower of
one and one-half percent (1.5%) per month or the highest rate allowed by law.
Customer will pay for, and will indemnify and hold Seller and its Affiliates
harmless from, any applicable sales, use, transaction, excise or similar taxes
and any federal, state or local fees or charges (including, but not limited to,
environmental or similar fees), imposed on, in respect of or otherwise
associated with any Statement of Work, the Products or the Services. Customer
must claim any exemption from such taxes, fees or charges at the time of
purchase and provide Seller with the necessary supporting documentation. In the
event of a payment default, Customer will be responsible for all of Seller’s
costs of collection, including, but not limited to, court costs, filing fees and
attorneys’ fees. In addition, if payments are not received as described above,
Seller reserves the right to suspend Services until payment is received.
Customer hereby grants to Seller a security interest in the Products to secure
payment in full. Customer authorizes Seller to file a financing statement
reflecting such security interest. Except as otherwise specified on an
applicable Statement of Work, Customer will reimburse Seller for all reasonable
out-of-pocket expenses incurred by Seller in connection with the performance of
the Services, including, but not limited to, travel and living expenses.
EXPORT SALES
If this transaction involves an export of items (including, but not limited to,
commodities, software or technology) subject to the Export Administration
Regulations, such items were exported from the United States by Seller in
accordance with the Export Administration Regulations. Customer agrees that it
will not divert, use, export or re-export such items contrary to United States
law. Customer expressly acknowledges and agrees that it will not export,
re-export, or provide such items to any entity or person within any country that
is subject to United States economic sanctions imposing comprehensive embargoes
without obtaining prior authorization from the United States Government. The
list of such countries subject to United States economic sanctions or embargoes
may change from time to time but currently includes Cuba, Iran, Sudan and Syria.
Customer also expressly acknowledges and agrees that it will not export,
re-export, or provide such items to entities and persons that are ineligible
under United States law to receive such items, including but not limited to, any
person or entity on the United States Treasury Department’s list of Specially
Designated Nationals or on the United States Commerce Department’s Denied
Persons List, Entity List or Unverified List. In addition, manufacturers'
warranties for exported Products may vary or may be null and void for Products
exported outside the United States.
WARRANTIES
Customer understands that Seller is not the manufacturer of the Products
purchased by Customer hereunder and the only warranties offered are those of the
manufacturer, not Seller or its Affiliates. In purchasing the Products, Customer
is relying on the manufacturer’s specifications only and is not relying on any
statements, specifications, photographs or other illustrations representing the
Products that may be provided by Seller or its Affiliates. SELLER AND ITS
AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES EITHER EXPRESS OR IMPLIED,
RELATED TO PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE,
ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF
NONINFRINGEMENT, OR ANY WARRANTY RELATING TO THIRD PARTY SERVICES. THE
DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY
MANUFACTURER'S WARRANTY. Customer expressly waives any claim that it may have
against Seller or its Affiliates based on any product liability or infringement
or alleged infringement of any patent, copyright, trade secret or other
intellectual property rights (each a "Claim") with respect to any Product and
also waives any right to indemnification from Seller or its Affiliates against
any such Claim made against Customer by a third party. Customer acknowledges
that no employee of Seller or its Affiliates is authorized to make any
representation or warranty on behalf of Seller or any of its Affiliates that is
not in this Agreement.
Seller makes no warranties to the Customer and the Customer hereby acknowledges
that Seller makes no warranties in regard to the applicability of all laws and
regulations affecting, without limitation the manufacture, performance, sale,
packaging and labelling of the Products which are in force within the Customer’s
territory.
Customer further acknowledges and agrees that Seller makes no representations,
warranties or assurances that the Products are designed for or suitable for use
in any high risk environment, including but not limited to aircraft or
automobile safety devices or navigation, life support systems or medical
devices, nuclear facilities, or weapon systems, and Customer agrees to indemnify
Seller in connection with any such use of the Products. Customer further agrees
to review and comply with the manufacture’s disclaimers and restrictions
regarding the use of the Products in high risk environments.
Seller warrants that the Services will be performed in a good and workmanlike
manner. Customer's sole and exclusive remedy and Seller's entire liability with
respect to this warranty will be, at the sole option of Seller, to either (a)
use its reasonable commercial efforts to reperform or cause to be reperformed
any Services not in substantial compliance with this warranty or (b) refund
amounts paid by Customer related to the portion of the Services not in
substantial compliance; provided, in each case, Customer notifies Seller in
writing within five (5) business days after performance of the applicable
Services. EXCEPT AS SET FORTH HEREIN OR IN ANY STATEMENT OF WORK THAT EXPRESSLY
AMENDS SELLER'S WARRANTY, AND SUBJECT TO APPLICABLE LAW, SELLER MAKES NO OTHER,
AND EXPRESSLY DISCLAIMS ALL OTHER, REPRESENTATIONS, WARRANTIES, CONDITIONS OR
COVENANTS, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION, ANY EXPRESS
OR IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE,
MERCHANTABILITY, DURABILITY, TITLE, ACCURACY OR NON-INFRINGEMENT) ARISING OUT OF
OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, INCLUDING BUT
NOT LIMITED TO ANY WARRANTY RELATING TO THIRD PARTY SERVICES, ANY WARRANTY WITH
RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN PERFORMING
SERVICES AND ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE
SERVICES. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY
AND LIMITED REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER
ACKNOWLEDGES THAT NO REPRESENTATIVE OF SELLER OR OF ITS AFFILIATES IS AUTHORIZED
TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF SELLER OR ANY OF ITS
AFFILIATES THAT IS NOT IN THIS AGREEMENT OR IN A STATEMENT OF WORK EXPRESSLY
AMENDING SELLER'S WARRANTY.
Customer shall be solely responsible for daily back-up and other protection of
its data and software against loss, damage or corruption. Customer shall be
solely responsible for reconstructing data (including but not limited to data
located on disk files and memories) and software that may be lost, damaged or
corrupted during the performance of Services. SELLER, ITS AFFILIATES, AND ITS
AND THEIR SUPPLIERS, SUBCONTRACTORS AND AGENTS ARE HEREBY RELEASED AND SHALL
CONTINUE TO BE RELEASED FROM ALL LIABILITY IN CONNECTION WITH THE LOSS, DAMAGE
OR CORRUPTION OF DATA AND SOFTWARE, AND CUSTOMER ASSUMES ALL RISK OF LOSS,
DAMAGE OR CORRUPTION OF DATA AND SOFTWARE IN ANY WAY RELATED TO OR RESULTING
FROM THE SERVICES.
Seller will not be responsible for and no liability shall result to Seller or
any of its Affiliates for any delays in delivery or in performance which result
from any circumstances beyond Seller’s reasonable control, including, but not
limited to, Product unavailability, carrier delays, delays due to fire, severe
weather conditions, failure of power, labor problems, acts of war, terrorism,
embargo, acts of God or acts or laws of any government or agency. Any shipping
dates or completion dates provided by Seller or any purported deadlines
contained in a Statement of Work or any other document are estimates only.
PRICING INFORMATION; AVAILABILITY DISCLAIMER
Seller reserves the right to make adjustments to pricing, Products and Service
offerings for reasons including, but not limited to, changing market conditions,
Product discontinuation, Product unavailability, manufacturer price changes,
supplier price changes and errors in advertisements. All orders are subject to
Product availability and the availability of Personnel to perform the Services.
Therefore, Seller cannot guarantee that it will be able to fulfill Customer’s
orders. If Services are being performed on a time and materials basis, any
estimates provided by Seller are for planning purposes only.
CREDITS
Any credit issued by Seller to Customer for any reason must be used within two
(2) years from the date that the credit was issued and may only be used for
future purchases of Products and/or Services. Any credit or portion thereof not
used within the two (2) year period will automatically expire.
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF
ANY REMEDY SET FORTH HEREIN, WILL SELLER, ITS AFFILIATES OR ITS OR THEIR
SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT,
SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF
PROFITS, BUSINESS, REVENUES OR SAVINGS, EVEN IF SELLER HAS BEEN ADVISED OF THE
POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN
EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF
CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY;
(B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY; (C) ANY
LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH CUSTOMER'S IMPLEMENTATION OF
ANY CONCLUSIONS OR RECOMMENDATIONS BY SELLER OR ITS AFFILIATES BASED ON,
RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE PRODUCTS OR SERVICES;
OR (D) ANY UNAVAILABILITY OF THE PRODUCT FOR USE OR ANY LOST, DAMAGED OR
CORRUPTED DATA OR SOFTWARE. IN THE EVENT OF ANY LIABILITY INCURRED BY SELLER OR
ANY OF ITS AFFILIATES, THE ENTIRE LIABILITY OF SELLER AND ITS AFFILIATES FOR
DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF: (A) THE DOLLAR
AMOUNT PAID BY CUSTOMER FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM OR THE
SPECIFIC SERVICES GIVING RISE TO THE CLAIM; OR (B) $50,000.00.
LIMITED LICENSE
Customer's sole rights to the work product, materials and other deliverables to
be provided or created (individually or jointly) in connection with the
Services, including but not limited to, all inventions, discoveries, methods,
processes, formulae, ideas, concepts, techniques, know-how, data, designs,
models, prototypes, works of authorship, computer programs, proprietary tools,
methods of analysis and other information (whether or not capable of protection
by patent, copyright, trade secret, confidentiality, or other proprietary
rights) or discovered in the course of performance of this Agreement that are
embodied in such work or materials ("Work Product") will be, upon payment in
full, a non-transferable, non-exclusive, royalty-free license to use such Work
Products solely for Customer's internal use. Customer will have no ownership or
other property rights thereto and Customer shall have no right to use any such
Work Product for any other purpose whatsoever. Customer acknowledges that
Sellers may incorporate intellectual property created by third parties into the
Work Product ("Third Party Intellectual Property"). Customer agrees that its
right to use the Work Product containing Third Party Intellectual Property may
be subject to the rights of third parties and limited by agreements with such
third parties.
CONFIDENTIAL INFORMATION
Each party anticipates that it may be necessary to provide access to information
of a confidential nature of such party, the Affiliates or a third party
(hereinafter referred to as "Confidential Information") to the other party in
the performance of this Agreement and any Statement of Work. "Confidential
Information" means any information or data in oral, electronic or written form
which the receiving party knows or has reason to know is proprietary or
confidential and which is disclosed by a party in connection with this Agreement
or which the receiving party may have access to in connection with this
Agreement, including but not limited to the terms and conditions of each
Statement of Work. Confidential Information will not include information which:
(a) becomes known to the public through no act of the receiving party; (b) was
known to the receiving party, or becomes known to the receiving party from a
third party having the right to disclose it and having no obligation of
confidentiality to the disclosing party with respect to the applicable
information; or (c) is independently developed by agents, employees or
subcontractors of the receiving party who have not had access to such
information. To the extent practicable, Confidential Information should be
clearly identified or labeled as such by the disclosing party at the time of
disclosure or as promptly thereafter as possible, however, failure to so
identify or label such Confidential Information will not be evidence that such
information is not confidential or protectable.
Each party agrees to hold the other party's Confidential Information
confidential for a period of three (3) years following the date of disclosure
and to do so in a manner at least as protective as it holds its own Confidential
Information of like kind but to use no less than a reasonable degree of care.
Disclosures of the other party's Confidential Information will be restricted (i)
to those individuals who are participating in the performance of this Agreement
or the applicable Statement of Work and need to know such Confidential
Information for purposes of providing or receiving the Products or Services or
otherwise in connection with this Agreement or the applicable Statement of Work,
or (ii) to its business, legal and financial advisors, each on a confidential
basis. Each party agrees not to use any Confidential Information of the other
party for any purpose other than the business purposes contemplated by this
Agreement and the applicable Statement of Work. Upon the written request of a
party, the other party will either return or certify the destruction of the
Confidential Information of the other party.
If a receiving party is required by law, rule or regulation, or requested in any
judicial or administrative proceeding or by any governmental or regulatory
authority, to disclose Confidential Information of the other party, the
receiving party will give the disclosing party prompt notice of such request so
that the disclosing party may seek an appropriate protective order or similar
protective measure and will use reasonable efforts to obtain confidential
treatment of the Confidential Information so disclosed.
RETURN PRIVILEGES
CDW allows Customer returns based on the policies of the original product
manufacturer. Software is not returnable if the packaging has been opened. If
software was distributed electronically, it is not returnable if the licenses
were downloaded. For additional information see CDW's full Product Return Policy
at the following link: Return Policy. Customers should contact CDW Customer
Relations at 866.SVC.4CDW or e-mail at Customer Relations to initiate a return
or for additional information. Customers must notify CDW Customer Relations of
any damaged Products within fifteen (15) days of receipt.
TERMINATION
Either party may terminate performance of a Service or a Statement of Work for
cause if the other party fails to cure a material default in the time period
specified herein. Any material default must be specifically identified in a
written notice of termination. After written notice, the notified party will,
subject to the provision of warranties herein, have thirty (30) days to remedy
its performance except that it will only have ten (10) days to remedy any
monetary default. Failure to remedy any material default within the applicable
time period provided for herein will give cause for immediate termination,
unless such default is incapable of being cured within the time period in which
case the defaulting party will not be in breach (except for Customer’s payment
obligations) if it used its reasonable efforts to cure the default. In the event
of any termination of the Services or a Statement of Work, Customer will pay
Seller for all Services performed and expenses incurred up to and including the
date of termination plus any termination fee if one is set forth in the
applicable Statement of Work. In such event Customer will also pay Seller for
any out-of-pocket demobilization or other direct costs resulting from
termination. Upon termination, all rights and obligations of the parties under
this Agreement will automatically terminate except for any right of action
occurring prior to termination, payment obligations and obligations that
expressly or by implication are intended to survive termination (including, but
not limited to, limitation of liability, indemnity, confidentiality, or
licensing of Work Product and this survival provision).
PROVISIONS RELATED TO CUSTOM IMAGING
If in connection with the provision of Products or Services, Customer desires to
have Seller provide installation of custom software images, Customer will be
required to execute an Installation Indemnity Agreement, a form of which is
provided at If in connection with the provision of Products or Services,
Customer desires to have Seller provide installation of custom software images,
Customer will be required to execute an Installation Indemnity Agreement, a form
of which is provided
at https://www.cdw.com/content/cdw/en/landing-pages/installation-and-custom-engraving-indemnity-agreement.html
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) arising from or
relating to the Products, the Services, the interpretation or application of
these Terms and Conditions or any Statement of Work or the breach, termination
or validity thereof, the relationships which result from these Terms and
Conditions or any Statement of Work (including, to the full extent permitted by
applicable law, relationships with third parties who are not signatories
hereto), or Seller's or any of its Affiliates' advertising or marketing
(collectively, a "Claim") WILL BE RESOLVED, UPON THE ELECTION OF ANY OF SELLER,
CUSTOMER OR THE THIRD PARTIES INVOLVED, EXCLUSIVELY AND FINALLY BY BINDING
ARBITRATION. If arbitration is chosen, it will be conducted pursuant to the
Rules of the American Arbitration Association. If arbitration is chosen by any
party with respect to a Claim, neither Seller nor Customer will have the right
to litigate that Claim in court or to have a jury trial on that Claim or to
engage in pre-arbitration discovery, except as provided for in the applicable
arbitration rules or by agreement of the parties involved. Further, Customer
will not have the right to participate as a representative or member of any
class of claimants pertaining to any Claim. Notwithstanding any choice of law
provision included in these Terms and Conditions, this arbitration agreement is
subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16). The arbitration will
take place exclusively in Chicago, Illinois. Any court having jurisdiction may
enter judgment on the award rendered by the arbitrator(s). Each party involved
will bear its own cost of any legal representation, discovery or research
required to complete arbitration. The existence or results of any arbitration
will be treated as confidential. Notwithstanding anything to the contrary
contained herein, all matters pertaining to the collection of amounts due to
Seller arising out of the Products or Services will be exclusively litigated in
court rather than through arbitration.
DATA PROTECTION
This Section shall apply to the extent Seller performs any operation or set of
operations, including collecting, recording, storing, retaining, using,
disclosing or otherwise accessing, (collectively, "Process," "Processed," or
"Processing") on any information that identifies, relates to, describes, is
capable of being associated with, or could reasonably be linked, directly or
indirectly, with a particular individual or household in connection with the
Services ("Personal Data"), including without limitation any information that
qualifies as “personal information” under the California Consumer Privacy Act,
Cal. Civ. Code §§ 1798.100 et seq. (“CCPA”). Seller shall only Process Personal
Data in accordance with the instructions of Customer as detailed in the
Agreement or the applicable SOW or PO and applicable data privacy law,
including, if applicable, the CCPA ("Privacy Laws"). For the avoidance of doubt,
it is the intention of the Parties that Seller be a “service provider” of
Customer pursuant to the CCPA. Notwithstanding the foregoing, to the extent
expressly set forth in the Agreement, Seller (1) shall have the right to retain,
use or disclose de-identified or aggregated data derived from Personal Data
(“Seller Data”), provided that Seller Data shall not include any Personal Data,
and (2) if Seller Processes any “personal information” as such term is defined
in the CCPA in connection with the Services, Seller shall have the right to
Process such “personal information” for any purpose permitted by the CCPA. Where
applicable law requires Seller to Process Personal Data under terms other than
those of the Agreement, Seller shall promptly notify Customer of such legal
requirement before Processing, unless applicable law prohibits such disclosure.
Where required by applicable law, Seller shall also notify Customer if Seller
determines any of Customer's instructions infringes applicable Privacy Laws.
The Parties agree that Customer is responsible for obtaining any consents
required by applicable Privacy Laws, as well as providing and ensuring the
accuracy of any notices required to disclose Personal Data to Seller, Seller's
Affiliates, or any Seller subcontractor providing Services for use in accordance
with the Agreement. Furthermore, Customer warrants that all Personal Data
provided to Seller has been obtained, Processed, and provided to Seller in
accordance with all applicable laws and ensured that there are legitimate
grounds for Processing any and all Personal Data by Seller, Seller's Affiliates,
or any Seller subcontractor providing Services for use in accordance with the
Agreement.
Seller shall promptly notify Customer of any request, complaint, claim, or other
communication received by Seller or a subcontractor regarding its Processing of
Personal Data. Seller shall cooperate with and provide any necessary assistance
to Customer in responding to any such inquiries, in so far as possible and
taking into account the nature of Seller's Processing and the Personal Data
available to Seller. Seller shall be obliged to provide such assistance only in
so far that the Customer cannot respond to such request on its own.
Notwithstanding anything to the contrary in the Agreement, Customer is obliged
to reimburse Seller for out of pocket expenses in connection with such
requests. Such expenses will be invoiced to Customer in accordance with the
Agreement.
Customer acknowledges that Seller is reliant on Customer for instruction as to
the extent to which Seller is entitled to use and Process Personal Data, and
that Seller is not liable for any claim brought by a data subject to the extent
that such claim arises from the Customer's instructions.
Upon request, Seller shall provide reasonable cooperation and assistance to
Customer with its obligations under applicable Privacy Laws, in so far as
possible in connection with the Services, taking into account the nature of
Seller's Processing and the Personal Data available to Seller. Seller shall be
obliged to provide such assistance only in so far that Customer's obligations
cannot be met by Customer through other means. Notwithstanding anything to the
contrary in the Agreement, Customer is obliged to reimburse Seller for out of
pocket expenses in connection with such assistance. Such expenses will be
invoiced to Customer in accordance with the Agreement.
To the extent that Personal Data includes information about individuals who are
located in the European Economic Area ("EEA") and/or Switzerland, and Seller
stores or otherwise obtains access to such Personal Data outside of the EEA
and/or Switzerland, Seller agrees it has implemented appropriate measures to
address the cross-border transfer of Personal Data.
Seller shall implement and maintain an information security program that
includes appropriate technical and procedural safeguards to protect Personal
Data, taking into account the nature of Seller's Processing and the Personal
Data available to Seller. To the extent required by applicable Privacy Laws,
upon request, Seller shall make available to Customer information reasonably
necessary to demonstrate compliance with this obligation.
The parties agree that Seller may subcontract its obligations to subcontractors
as necessary to perform the Services under the Agreement. Seller shall remain
responsible for subcontractors' performance under the Agreement, and shall enter
into an agreement with subcontractors that impose materially the same
obligations as set forth in this Section. Seller also agrees that any
subcontractors who have access to Personal Data are bound to Process Personal
Data in accordance with Seller's instructions and are subject to obligations to
maintain confidentiality.
Notwithstanding any provisions in the Agreement to the contrary, Seller shall
promptly notify Customer in the event Seller discovers or is notified of a known
breach of security leading to unauthorized disclosure of or access to Personal
Data as a result of its Processing of Personal Data ("Security Breach"). Seller
shall reasonably cooperate in the investigation of the Security Breach.
The parties agree that to the extent required by applicable Privacy Laws, and
upon thirty (30) days written notice to Seller, and no more than once per
calendar year, Customer may request reasonable access to Seller's facilities,
systems, and supporting documentation used to provide the Services, to the
extent necessary to assess Seller's compliance with its obligations under this
Section. Such assessments shall be subject to Seller's security and
confidentiality policies, and shall be conducted in a manner that minimizes any
disruption of Seller's performance of services and other normal operations. Such
expenses will be invoiced to Customer in accordance with the Agreement.
Notwithstanding any other provision of the Agreement to the contrary, upon
termination of the Agreement or otherwise at Customer’s written request, Seller
shall, at the choice of Customer, either return or delete Personal Data from its
systems unless required by law, rule or regulation, or requested in any judicial
or administrative proceeding or by any governmental or regulatory authority.
Customer shall reimburse Seller and its managers, officers, directors,
employees, agents, affiliates, successors and permitted assigns (collectively,
“Reimbursed Party”) against any and all losses costs, or expenses of whatever
kind, including professional fees and attorney’s fees, that are incurred by any
Reimbursed Party for any investigation or any preparation for any investigation
by any governmental or regulatory authority arising out of Customer’s violation
of any Privacy Laws in connection with this Agreement.
MISCELLANEOUS
Seller may assign or subcontract all or any portion of its rights or obligations
with respect to the sale of Products or the performance of Services or assign
the right to receive payments, without Customer's consent. Customer may not
assign these Terms and Conditions, or any of its rights or obligations herein
without the prior written consent of Seller. Subject to the restrictions in
assignment contained herein, these Terms and Conditions will be binding on and
inure to the benefit of the parties hereto and their successors and assigns. No
provision of this Agreement or any Statement of Work will be deemed waived,
amended or modified by either party unless such waiver, amendment or
modification is in writing and signed by both parties. The relationship between
Seller and Customer is that of independent contractors and not that of
employer/employee, partnership or joint venture. If any term or condition of
this Agreement or a Statement of Work is found by a court of competent
jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall
not affect the other terms or conditions hereof or thereof or the whole of this
Agreement or the applicable Statement of Work. Notices provided under this
Agreement will be given in writing and deemed received upon the earlier of
actual receipt or three (3) days after mailing if mailed postage prepaid by
regular mail or airmail or one (1) day after such notice is sent by courier or
facsimile transmission. 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.
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Version Date: 12-27-2019
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