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* Terms of Sale - Professional Services
TERMS OF SALE
TERMS OF SALE
Professional Services
Professional 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 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 and will
not impact any existing orders unless otherwise required by law, and in which
case, Insight will provide prior notice to you of such changes. In proceeding
with an order, you agree you have had a reasonable opportunity to review,
comment negotiate this Agreement, and obtain independent advice.
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,, 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.
* 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.
* Azure Services. Where you purchase or consume Azure either independently or
in connection with a Service, your access to and use of Azure will be subject
to your acceptance of Insight’s Azure terms located here.
* Cloud Services. Your access to and use of any cloud service acquired through
Insight are governed by the Insight Cloud Services Terms and Conditions
located here.
2. 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.
3. 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.
· 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.
4. 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, you
acknowledge and agree that such credits will automatically expire.
5. 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.
6. 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 to 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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 June 2023
© 2023 Insight Enterprises Australia Pty Ltd. All rights reserved.
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