X-as-a-Service Agreement

Thank you for choosing Insight as your trusted value-added and/or support services partner for OEM Partner “X”-as-a-Service (“XaaS”) offerings. This “XaaS” Agreement (“Agreement”) sets out the terms and conditions which apply to the resale by Insight of certain OEM Partner OEM Products, OEM Partner Services and to Insight value-added and/or Insight Services as set forth on the Order Form to the client named on the Order Form (“Client”) (singly, “Party” or collectively, “the Parties”). This Agreement takes effect on the Order Form Effective Date (“Agreement Effective Date”). In the event of any conflict between any written agreement between the Parties, and this Agreement, this Agreement shall govern as to the subject matter herein. Capitalized terms which are not defined in the text can be found in section 2 of the General Terms below.

1. HOW THIS AGREEMENT WORKS. This Agreement is composed of (i) the General Terms below; (ii) the applicable XaaS End User Terms as set forth in the Order Form (“End User Terms”); and (iii) Client’s Order Form. XaaS offerings are unique third-party branded services offered by Insight’s original equipment manufacturer partners (“OEM Partners”) and, as such, do not fall under any existing master agreement between Insight and Client.
2. PARTIES TO THE AGREEMENT. If Client is purchasing Products or Services in the United States, then this Agreement is between Client and Insight Direct USA, Inc. If Client is purchasing Products or Services in Canada, then this Agreement is between Client and Insight Canada, Inc. If the Client is purchasing Products or Services in the United Kingdom, then this Agreement is between Client and Insight Direct (UK) Limited.
3. ORDER OF PRECEDENCE.  If there is any ambiguity or conflict  between the terms and conditions of the General Terms and those of any Order Form, End User Terms, or Client purchase order (“PO”) , the following order of precedence shall apply:
   1. End User Terms
   2. Order Form
   3. General Terms
   4. Client PO excluding Client preprinted terms or other contractual terms (except for those detailing the product specifics of the particular order, such as the particular product ordered, quantity, duration, etc.).
4. By accepting this Agreement, Client agrees that this Agreement forms the entire agreement and understanding of the Parties, and replaces and supersedes any previous agreements of the Parties related to the subject matter of this Agreement.

General Terms

1    SCOPE

Unless as otherwise set forth in the End User Terms, Insight shall deliver value-added support and/or Insight Services to Client that support the OEM Partner Services as defined in and pursuant to the terms of the Client’s Order Form.

2    DEFINITIONS

“Insight Services” means, as applicable, the value-added and/or other services provided by Insight to the Client as more fully described in the Client’s Order Form and this Agreement.

“Order Form” means the ordering document entered into by Insight and Client which sets forth the committed costs and terms of agreement for Insight Services and the OEM Partner Services.

“OEM Products” means all of the hardware and software deployed by the OEM Partner in the ordinary course of OEM Partner’s performance of the OEM Partner Services.

“OEM Partner Services” means the services detailed in the agreement that the OEM Partner will perform for the Client.

“Start Date” has the meaning as set forth on Client’s Order Form and is when invoicing for the Insight Services and OEM Partner Services will start.

3    END USER AGREEMENTS

By accepting this Agreement and purchasing the Insight Services and/or OEM Partner Services under the applicable Order Form, Client agrees to be bound by the End User Terms which are incorporated herein by reference.

4    GENERAL TERMS AND CONDITIONS

4.1    Compliance with Laws. Each Party will comply with all applicable laws and regulations.

4.2    Liens; Title.

1. Client must keep the OEM Products free and clear of all liens, notify Insight immediately upon receipt of notice of any lien affecting all or any part of the OEM Products, and defend, at its own expense, the rights, title and interest of the OEM Partner in and to the OEM Products from such liens.
2. OEM Partner will have exclusive title to, or the right to license the use of, the OEM Products. Client will have no right, title or interest in such OEM Products except for the right to use the OEM Products and enjoy the benefit of the Insight Services and OEM Partner Services in compliance with the End User Terms.
3. Client may not allow any indicia of ownership or other interest to be placed upon or within the OEM Products that are contrary to or inconsistent with the ownership interests of the OEM Partner.

4.3    Changes to Terms. Insight reserves the right to make changes to this Agreement, any XaaS offering, or parts thereof, or to Insight Services, at any time, including, but not limited to, the offering, eligibility criteria, operational requirements, and fees (collectively, “Program Changes”) . The Parties hereby agree that any Program Changes shall supersede any conflicting term or condition of this Agreement.

4.4.    Insight Services; Client Obligations. Insight will provide the Insight Service applicable to the OEM Partner Services ordered by the Client as set forth in the Order Form, including any applicable Insight Service Definition set forth in the Order Form. Where Insight is located in the United States or Canada, the Insight value-added services set forth in the XaaS Operational Guide available at https://www.insight.com/content/dam/insight-web/en_US/pdfs/insight/service-definition/xaas-operational-guide.pdf (“Operational Guide”) shall also apply. If Client does not purchase Insight Services as set forth in the Order Form, and instead only leverages Insight’s value-added services (which may be referred to as the “Essentials” support tier), then Client understands and agrees that (i) Client is solely Client’s responsibility to update and patch the OEM Products, and (ii) Insight has no responsibility or liability for the failure to provide patching or updates for the OEM Partner Services.    Additionally, Client is solely responsible for monitoring, managing and maintaining the health, operational stability and performance of the OEM Products. Client’s sole and exclusive remedy for any alleged failure by Insight to provide Insight Services with reasonable skill, care and diligence following a support request shall be re-performance of the applicable Insight Services.

4.5.    Resource Locations. Unless otherwise specified in the Order Form or Operational Guide, Insight leverages its teammates globally to provide the Insight Services worldwide.

5    FEES AND PAYMENTS.

5.1    Services Fees. Client shall pay Insight in accordance with the rates set forth on the applicable Order Form (“Services Fees”). Insight reserves the right to update or otherwise change pricing upon renewal following the Initial Term. For the avoidance of doubt, the number of months set forth on the Order Form represents Client’s obligation to make monthly payments equal to the number of months in the Service Term, and Client is responsible for the payment of all Services Fees as set forth in the Order Form, regardless of the duration of the Service Term or any ambiguity with respect to the Start Date.

5.2    Payment Terms. Beginning from the Start Date, Client shall remit payment on the invoices within thirty (30) days of the date of the invoice. All fees are due and payable in (i) USD, if Client is located in the United States; or CAD, if Client is located in Canada; or GBP if Client is located in the United Kingdom (or other currency agreed in advance between the parties in writing).

5.3    Client PO. If Client requires a PO to be invoiced, Client must provide a copy of the PO with sufficient funding to cover all charges. Insight will use that PO to facilitate billing. Insight reserves the right to issue its invoice for payment without a PO (i) if Client fails to promptly provide the PO, (ii) if PO funds have been exhausted, (iii) or after termination as set forth in section 11.3.2. Insight will deliver the invoice to the Client’s email and physical address on file. Payment is due upon receipt.  When there is a conflict between terms listed on Client’s PO and these Terms, these Terms will take precedence.

To allow sufficient funds to cover bursting and overages, the PO must be in the amount of 120 percent of the Total Minimum Fees Including One Time Fees (or as otherwise set forth on the Order Form.) 

6    TAXES

The fees invoiced under this Agreement are not inclusive of any sales, use, excise, or other value-added taxes levied on the users of the Services (collectively, “Sales Tax”). Client is responsible for the payment of any and all Sales Tax.

7    WARRANTY

7.1    End User Warranty. Any warranty for the OEM Partner Services and OEM Product shall be provided by OEM Partner directly to Client as set forth in the End User Terms.

7.2    Limitations. In addition to any limitations set forth in the End User Terms, Insight will not be liable for claims arising from (a) the misuse, neglect, improper installation or testing or attempts to repair by Client, any unauthorized third person or any of their respective subcontractors, or (b) any other cause beyond the range of the intended use.

7.3    Exclusive Warranties. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE FOREGOING WARRANTIES ARE EXCLUSIVE. INSIGHT SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE TO THE EXTENT PERMITTED IN LAW.

8    NOVATION

To the extent permitted under the applicable OEM Partner Service, Client agrees that Insight may elect to assign, novate, or otherwise transfer this Agreement, a Client purchase order and/or related Order Form as relates to the OEM Partner Service (and any or all of Insight’s rights and obligations therein) in writing to the applicable OEM Partner (the “Assignee”) if (a) Client does not pay its due amounts on a proper invoice issued by Insight pursuant to this Agreement for any reason, other than the OEM Partner’s uncured breach of the OEM Partner Service obligations, or OEM Partner’s  insolvency; and (b) Such Client non-payment results in an outstanding amount owed to Insight. 

The Parties agree that upon such assignment, novation or transfer, the Assignee shall have the rights and obligations of Insight under the relevant instrument and may enforce the terms of this Agreement, a Client purchase order and/or related Order directly against Client as relates to such rights and obligations.

By executing this Agreement, Client consents to Insight assigning, novating or transferring the above noted rights and obligations as set out above.

In consideration of the transactions contemplated by this Agreement and for other good and valuable consideration, the receipt and adequacy of which are hereby irrevocably acknowledged, following any assignment, novation or transfer the Client hereby releases and forever discharges Insight and its respective associates and affiliates from any further obligations under this Agreement, a Client purchase order and/or related Order.

8.1    Client acknowledges and agrees that upon any such event the following terms will apply:

1. Client will remain responsible for paying all amounts incurred prior to the novation to Insight and will owe and pay any amounts incurred after novation to OEM Partner.
2. Once novated, the Agreement will be considered a direct agreement between OEM Partner and the Client.
3. The novation will only be for the OEM Partner’s specific Services and will not apply to any Insight Service or third party services that are unrelated to the OEM Partner’s Services.
4. With the effect of novation, OEM Partner will have the following right under the novated Agreement: OEM Partner may terminate the Agreement for non-payment 30 days after notification of the breach and failure to cure.
5. OEM Partner will not be bound by any service level agreements or penalties that vary from those provided by OEM Partner.
6. The OEM Partner End User Agreement creates an enforceable delivery obligation between OEM Partner and the Client.
7. Client agrees to be bound by OEM Partner’s standard payment terms which require all invoiced amounts to be paid without offset within 30 days of the invoice date.
8. Client agrees to the following order of precedence: “To the extent there is a conflict between the novated Agreement and the OEM Partner End User Terms or any other applicable terms, the OEM Partner End User Terms will prevail.”

8.2    In order to effectuate any such assignment, novation or transfer, Client hereby irrevocably constitutes and appoints Insight as agent and true and lawful attorney to act on Client’s behalf with full power and authority, for and in the name of Client, to:

1. execute, file and deliver on behalf of Client any such documents with Insight and Assignee and its respective affiliates concerning the assignment, novation and transfer of Insight’s rights and obligations under this Agreement to Assignee; and
2. do and perform any and every act required, necessary or proper to be done in the exercise of any of the rights and powers herein granted, as fully to all intents and purposes as the Client might or could do if personally present, with full power of substitution or revocation, hereby ratifying and confirming all that Insight shall lawfully do or cause to be done by virtue of this Power of Attorney and the rights and powers herein granted.

8.3    The power of attorney granted by this section is irrevocable and is coupled with an interest to secure the performance of the Client’s obligations under this section. The Client represents that it has taken all necessary corporate action to authorize the authority granted by this section.  Client acknowledges and agrees that it is not required to sign any documents to effectuate or confirm any novation, assignment or transfer contemplated by this section, but that it will, upon request by Insight, take all actions to ratify and confirm any actions taken by Insight pursuant to this section.

9    INDEMNIFICATION

Client shall indemnify Insight and its directors, employees, subsidiaries, and affiliates for any and all third-party claims, damages, losses, costs and expenses, including attorneys' fees, against Insight, its employees, subsidiaries, and/or affiliates arising from or related to Client’s failure to comply with any provisions, requirements or applicable laws set forth in this Agreement or an Order Form.

10    LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, (i) IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES OR THEIR EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT; AND (ii) IN NO EVENT SHALL EITHER PARTY’S CUMULATIVE AND AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID OR PAYABLE TO INSIGHT BY CLIENT UNDER THE APPLICABLE ORDER GIVING RISE TO THE CLAIM.

11    TERM AND TERMINATION

11.1    Term. The term of this Agreement will commence on the Agreement Effective Date and end upon the termination of all active Order Forms, unless earlier terminated in accordance with the terms of this Agreement.

11.2   Termination.

11.2.1   Client will only have the right to terminate this Agreement, and/or that portion of an applicable Order as well as any or all licenses granted hereunder, without any judicial intervention, subject to prior written notice:

1. As to the portion relating to the OEM Partner Service and OEM Product, only if permitted by the OEM Partner End User Terms; and
2. As to the portion relating to the Insight Service, if (i) Insight fails to perform any material term or condition of this Agreement or any Order respectively, including but not limited to addressing any reporting discrepancies, and in the case of a breach which is capable of remedy, fails to remedy such failure within thirty (30) days of written notice of such default; or (ii) Insight commits a non-remediable breach of a material term or condition of this Agreement or any Order or including but not limited to complying with reporting obligations under this Agreement or any Order Form.
3. For purposes of clarity, a breach by Insight of Insight Service obligations does not permit Client to terminate the OEM Partner Services or OEM Product order, and a breach by the OEM Partner of the OEM Partner Services or OEM Product order does not permit Client to terminate the Insight Services. 

11.2.2 Insight will have the right to terminate the Agreement, and/or any portion of any applicable Order as well as any and all licenses granted hereunder, without any judicial intervention, subject to prior written notice only if: (a) the Client fails to perform any material term or condition of this Agreement or any Order respectively, including but not limited to addressing any reporting discrepancies, and in the case of a breach which is capable of remedy, fails to remedy such failure within thirty (30) days of written notice of such default; or (b) the Client commits a non-remediable breach of a material term or condition of this Agreement or any Order or including but not limited to complying with reporting obligations under this Agreement or any Order Form.

11.3    Effect of Termination. 

11.3.1    The effect of termination of the OEM Partner Service (and related OEM Product) will be as set forth in the End User Terms.   Termination for any reason other than as set forth in section 11.2.1(a) will require Client’s payment in full of the outstanding balance of all fees due under the Order form as relates to the OEM Partner Services (and related OEM Product).  Termination pursuant to section 11.2.1(a) will require Client’s payment in full of (i) the outstanding balance of all fees due under the Order form as relates to Insight’s Services and (ii) any payment due to the OEM Partner under the OEM Partner End User Terms.

11.3.2    Upon termination, all outstanding fees are immediately due and Insight will invoice the Client in accordance with this Agreement.

11.4    Clients in Quebec, Canada. Each Party hereby waives and excludes its rights regarding the provisions pertaining to contracts for services set forth in Article 2125 of the Civil Code of Quebec and acknowledges that this Order Form may only be terminated in the circumstances set forth by the provisions of the present Order Form.

11.5    Renewal. The OEM Partner Services may renew, where available, upon the agreement of Client, Insight, and the OEM Partner. Discussions will be initiated approximately six (6) months prior to the end of the Service Term to allow Client to provide its instructions to Insight with respect to renewal or placing a new order.

12    MISCELLANEOUS

12.1    Notices. Notice to Insight under this Agreement or any related transaction must be in writing and sent (i) by registered or certified mail, postage prepaid first-class mail with return receipt requested; or (ii) by overnight delivery service with verification of receipt, to the address below. All such notices will be effective upon receipt.

Insight Direct USA, Inc.
Attn: Legal
2701 East Insight Way
Chandler, AZ 85286
Legal@insight.com

12.2    Governing Law.

12.2.1    Canada. If the Client is located in Canada (except Quebec), then this Agreement shall be governed by and interpreted in accordance with the laws of the Province of Ontario, which shall have exclusive jurisdiction for all judicial proceedings; if Client is located in Quebec then this Agreement shall be governed by and interpreted in accordance with the laws of the Province of Quebec, which shall have exclusive jurisdiction for all judicial proceedings.  The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.

12.2.2    United States. If the Client is located in the United States, then this Agreement is governed by the laws of the State of Arizona, excluding its conflicts of laws rules.

12.2.3    United Kingdom. If the Client is located in the United Kingdom, then this Agreement is governed by the laws and subject to the exclusive jurisdiction of England & Wales.

12.3    Third Party Beneficiary. Client acknowledges and agrees that the OEM Partner is a third-party beneficiary under this Agreement.

12.4    English. The Parties acknowledge that they have requested and consented that this Agreement and all documents, notices, correspondence and legal proceedings consequent upon, ancillary or relating directly or indirectly hereto, forming part hereof or resulting here from, be drawn up in English.

Les parties reconnaissent qu'elles ont exigé et consenti à ce que cette convention ainsi que tous documents, avis, correspondance et procédures légales consécutifs à, ayant directement ou indirectement avec, faisant partie ou découlant de cette convention, soient rédigés en anglais.