Entire Agreement. The purpose of these terms are to define operational standards for the purchase of IT products (“Products”) and constitutes the entire agreement between Insight and the distributor (“Agreement”) as identified in the PO (“Distributor”). Any additional or different terms or conditions contained in any other documents are considered material alterations to this Agreement are expressly rejected and will not be binding upon Insight, except as in accordance with Section 13 (Miscellaneous). Insight and Distributor are each a “Party” and together, “the Parties” under this Agreement. The objective of these terms is to apply consistent standards for sourcing, which will promote operational efficiency and business growth for both Parties.
Term & Termination. This Agreement shall be effective as of the date Distributor first accepts and processes an order (“PO”) issued by Insight (“Effective Date”) and shall continue unless terminated upon ninety (90) days prior written notice to the other Party. Termination of this Agreement will not relieve either Party from its obligations that by their terms or nature survive termination, including Distributor’s duty to pay for any rebates earned by Insight.
Payment Terms. The payment terms for Insight are as follows: Net forty-five (45) days from the date of Insight’s receipt of invoice with a .75% discount for payments made within ten (10) days
Product Information & Cost Transmission. Distributor will transmit Product cost information feeds in a mutually agreed upon format to each Insight purchasing system. Distributor will ensure that all catalogue feeds sent to Insight contain the same Product descriptions and costs for every SKU sent.
Volume Rebates. The volume rebate program for Insight will be standardized at the following rate: 1.00% rebate per purchase dollar on net sales-in basis, net of returns (“Volume Rebate”). For example, if Insight purchases $10,000,000.00, Distributor shall pay Insight $100,000.00 ($10,000,000.00 x 1%) less any returns. Distributor will remit payment to Insight within 30 days of calendar quarter end.
Rebate programs attached to Value-Added Distribution agreements (“VAD Agreements”) are excluded from the Volume Rebate. VAD Agreements are defined as agreements by which a manufacturer or publisher dictates the selection of a single Distributor. VAD Agreement rebates will be managed through their respective RFP processes.
Volume Rebate Reporting. No later than the fifth (5th) business day after the end of each calendar month, Distributor shall provide in writing a monthly point of sale report (“Monthly POS Report”) to Insight. The Monthly POS Report shall be in a mutually agreed upon format and include the following fields for all transactions from the previous month: transaction date, part number purchased/returned, dollar amount of each transaction and total net sales-in. In addition to the Monthly POS Report, at the end of each calendar quarter, no later than the fifth (5th) business day after the end of such calendar quarter, Distributor shall also provide a quarterly point of sale report (“Quarterly POS Report”) that provides all information necessary to substantiate Insight’s Volume Rebate performance in the most recent quarter, including, but not limited to, total net sales-in for the quarter and the dollar amount of Insight’s Volume Rebate attained during the quarter.
Shipping. All Product costs quoted byDistributor to Insight will include all shipping costs to deliver Products to Insight or Insight’s client, as specified by Insight. Regardless of whether Distributor quotes standard cost or any type of special cost, such as client specific pricing, all quotes must include shipping in the Product cost. All Products will be shipped F.O.B. destination, freight pre-paid by Distributor. The only exceptions for which Insight will incur freight costs are as follows: a) Saturday deliveries requested by Insight, b) all same day, next day and next day AM deliveries requested by Insight, and c) all heavyweight Products (125 lbs or greater in per unit shipping weight) that Insight requires to ship overnight or 2 day freight. Insight will advise Distributor on specific client requirements to use third-party freight accounts. Distributor shall comply with Insight’s routing instructions, including using Insight’s designated carrier and Insight’s account number with such carrier, on any shipments where Insight is responsible for freight costs.
Record Keeping. Distributor understands that Insight reserves the right at any time during the term of this Agreement and up to two (2) years post termination of this Agreement to request records to validate rebates and freight charges and agrees to provide such documents as reasonably requested.
Confidentiality. The information contained in this Agreement is confidential between Distributor and Insight (“Confidential Information”). It is not to be forwarded, shared, provided or otherwise disclosed to any third party, including without limitation any other IT distributor or reseller, without the prior written consent of Insight. In addition, if there is a non-disclosure agreement between Distributor and Insight, the information in this LOA should be treated as Confidential Information subject to the obligations contained in such agreement.
Indemnification Pass Through. Distributor shall pass through to Insight, to the extent available, any indemnification rights provided to Distributor by a manufacturer or publisher of Product as a result of any claim against Insight that: 1) such Product infringes, or constitutes a contributory infringement or violation of any patent, copyright, trade secret, trademark, or other third-party intellectual property right or a misappropriation of a trade secret or other personal rights of a third party, or 2) any actual or alleged defect in a Product, whether apparent or latent, caused bodily injury, death, or damage to property.
Limitation of Liability. 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 THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION OR THEORY OF RELIEF, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR CLAIMS OF NON-PAYMENT, THE AMOUNT OF DIRECT DAMAGES RECOVERABLE FROM A PARTY UNDER THIS AGREEMENT IS LIMITED TO THE TOTAL MONEY PAID OR TO BE PAID BY INSIGHT FOR THE PRODUCT PURCHASED UNDER THIS AGREEMENT GIVING RISE TO SUCH LIABILITY.
Governing Law. This Agreement and any communications related to this Agreement (whether by deemed incorporation or otherwise) shall be governed by and interpreted in accordance with the laws of the State of Arizona without regard to its conflict of laws provisions.
Miscellaneous. This Agreement is the entire agreement between the Parties relating to this subject matter and supersedes all prior understandings between the Parties. All amendments or modifications to this Agreement must be in writing and signed by both Parties. This Agreement is not assignable without the prior written consent of Insight. If any provisions contained in this Agreement are for any reason found to be invalid, illegal or unenforceable, they will be construed as if such provisions had never been contained in this Agreement. A delay or failure to exercise or partially exercise any right under this Agreement 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 Parties’ relationship to one another under this Agreement is that of independent contractors.