By accessing any web sites of SYNNEX Canada Limited or its subsidiaries (collectively “SYNNEX” or “Seller”) or otherwise indicating acceptance as set forth below, you are agreeing to the following terms and conditions (as modified from time to time), and each time that you access SYNNEX you reassert your agreement. If you do not agree with these terms and conditions, then you may not access or use SYNNEX.com or any other SYNNEX web site.
In order to access certain SYNNEX e-commerce websites and other authorized third party websites, you must present a valid password and user ID. Your password is your sole responsibility, and you must take all necessary actions to safeguard the security of your password and its use in accessing SYNNEX and ordering product via SYNNEX. You agree not to challenge the validity or enforceability of any order made via SYNNEX with your password. You must not disclose your password to any person who is not authorized to use the password on your behalf. You will be solely responsible for all unauthorized use of your password by your employees or third parties, except where caused solely and directly by SYNNEX’s negligence. SYNNEX highly recommends that you change your password periodically, and that you change your password immediately when you have reason to believe that your password security has been compromised.
2. Terms and Conditions of Sale
All sales of products and finished goods offered and supplied by Seller to its customer (“Buyer”) for resale (“Products”) shall be pursuant to the following standard terms and conditions. Any conflicting terms in your purchase order or elsewhere are without effect unless signed by the applicable party(ies). All Buyer purchases from SYNNEX are deemed to be purchases pursuant to a written agreement.
a. ACCEPTANCE: Buyer’s acceptance of these Terms and Conditions shall be indicated by any of the following, whichever first occurs: (a) Buyer’s written acknowledgement hereof, (b) Buyer’s submission of an order to SYNNEX, regardless of whether the Product(s) ordered is ever delivered or if the purchase order is completely or partially fulfilled, rejected, modified or cancelled; (c) Buyer’s receipt of any part of the items specified for delivery in any purchase order submitted to SYNNEX, (c) Buyer’s application for credit submitted to SYNNEX, (d) accessing any SYNNEX e-commerce web site, or (e) any other act or expression of acceptance by Buyer. Buyer’s acceptance is expressly limited to the Terms and Conditions in their entirety without addition, modification or exception and any term, condition, or proposal hereafter submitted by Buyer (whether oral or in writing), which is inconsistent with or in addition to the Terms and Conditions set forth hereon is objected to and is hereby rejected by Seller. Seller’s silence or failure to respond to any such subsequent term, condition or proposal shall not be deemed to be Seller’s acceptance or approval thereof.
b. ORDERS: SYNNEX reserves the right to schedule and reschedule any order, with notice to Buyer, at SYNNEX’s reasonable discretion, and to decline any order for any reason, or no reason, in SYNNEX’s sole discretion.
c. DELIVERY: Delivery shall be made in accordance with Seller’s shipping policy in effect on the date of shipment. Product title and risk of loss will transfer to Buyer upon SYNNEX tendering the Product for delivery to the carrier (F.O.B. Origin). If Buyer requests special shipping or handling, including expedited shipment, third-party billing, or freight collect, Buyer shall be responsible filing claims with the carrier and all freight and handling costs. Buyer shall pay for any special routing, packing, handling or insurance requested by Buyer and agreed to by SYNNEX. Orders shipped under special routing instructions must be separately agreed upon and may be subject to additional charges. SYNNEX will not be subject to requirements of non-compliance programs of Buyer, including charges for product delays, missing/inaccurate shipping documents, labeling or product markings.
Buyer shall promptly notify Seller, no later than 30 days from invoice date, of any claimed shortages or rejection as to any delivery, with the exception of deliveries that reveal external shipping damage, which, in some instances, must be refused immediately upon delivery by the carrier. Such notice shall be in writing and shall be reasonably detailed stating the grounds for any such rejection. Failure to provide any such notice within such time shall be deemed an acceptance in full of any such delivery. Seller shall not be liable for any shipment delays that affect Seller or any of Seller’s suppliers, including but not limited to delays caused by unavailability or shortages of Products from Seller’s suppliers, natural disasters, acts of war or terrorism, acts or omissions of Buyer, fire, strike, riot, or governmental interference, unavailability or shortage of materials, labor, fuel or power through normal commercial channels at customary and reasonable rates, failure or destruction of plant or equipment arising from any cause whatsoever, or transportation failures.
d. PRICES: Prices payable by Buyer for the Products are specified on the invoice. Seller does not offer price protection. Buyer shall bear all applicable federal, state, provincial, municipal and other government taxes (such as sales, use and similar taxes), as well as import or customs duties, license fees and similar charges, however designated, levied on this sale or the Products (or the delivery thereof) or measured by the purchase price hereunder. Seller’s prices do not include such taxes, fees and charges. Exemption certificates must be presented prior to shipment if they are to be honored. To the extent any sale is made without the prior receipt of a valid exemption certificate, Seller expressly reserves the right to include on the invoice for such sale, or to separately invoice Buyer for all applicable taxes, fees and charges and Buyer agrees that these amounts shall be immediately due and payable.
e. PAYMENT TERMS: Buyer shall provide all financial information reasonably requested by SYNNEX from time to time for the purpose of establishing or continuing Buyer’s credit limit. Buyer agrees that SYNNEX shall have the right to decline or extend credit to Buyer and to require that the applicable purchase price be paid prior to shipment. SYNNEX shall have the right from time to time, without notice, to change or revoke Buyer’s credit limit on the basis of changes in SYNNEX’s credit policies or Buyer’s financial condition and/or payment record.
Buyer shall not deduct any amounts from any SYNNEX invoice without SYNNEX’s express written approval, which approval shall be contingent upon Buyer providing all supporting documentation for such deduction as required by SYNNEX. Any authorized deductions for returned Products must include Buyer’s customer tracking number and SYNNEX’s Return Merchandise Authorization (“RMA”) number. Deductions received by SYNNEX without advance notice will be denied. No Program fees may be deducted from invoices.
If Buyer fails to make timely payment of any amount invoiced by SYNNEX, SYNNEX shall have the right, in addition to any and all other rights and remedies available to SYNNEX at law or in equity, to immediately revoke any or all credit extended, to delay or cancel future deliveries and/or to reduce or cancel any or all quantity discounts extended to Buyer. Buyer shall pay all costs of collection including reasonable attorneys’ fees. A service charge of the greater of one and one-half percent (1 ½%) per month or the maximum amount allowed by law will be charged on all past due balances commencing on the date payment is due.
f. PRODUCT RETURNS: Return of Products purchased from SYNNEX shall be governed by Seller’s product return policies in effect on the date of return. Seller reserves the right to modify or eliminate such policies at any time. Although Seller’s policies may permit Buyer to return Products claimed to be defective under certain circumstances, Seller makes no representations or warranties of any kind with respect to the Products.
g. POST AUDIT CLAIMS: SYNNEX requires complete supporting documentation in advance for post audit deductions by Buyer. In the event that required documentation is missing, it must be provided allowing thirty (30) days from receipt date for investigation and response. Post audit claims must be submitted within six (6) months of the date of occurrence. Any claims outside this six (6) month period will be declined.
h. RESALE ONLY/EXPORT: All Products delivered to Buyer hereunder are for resale only and shall not be used for the internal business purposes of Buyer, or any parent company, subsidiary, or affiliate of Buyer. All Products delivered to Buyer hereunder, if sold in Canada, are intended for use in Canada only. Shipment of the Products outside Canada may require a valid export license and the approval of the manufacturers of such Products.
i. WARRANTIES; INDEMNITY: Buyer acknowledges that SYNNEX is not the manufacturer of the Products that will be sold to it, and that SYNNEX therefore will have no responsibility for, among other things, product warranties. Product warranties, if any, are provided by the manufacturer or publisher of the Products. SYNNEX’s sole obligation (and Buyer’s sole remedy) in the event of breach of any warranty shall be to assist the Buyer in its efforts to have the manufacturer repair or replace defective Product(s).
THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT AND FOR ALL OTHER OBLIGATIONS OR LIABILITIES ON SYNNEX’S PART.
SYNNEX NEITHER ASSUMES, NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR SYNNEX, ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OF PRODUCTS TO BUYER. THIS WARRANTY SHALL NOT APPLY TO ANY UNITS OF PRODUCTS WHICH SHALL HAVE BEEN REPAIRED OR ALTERED OTHER THAN BY SYNNEX OR WHICH SHALL HAVE BEEN SUBJECT TO MISUSE, NEGLIGENCE, OR ACCIDENT. SYNNEX SHALL NOT BE LIABLE FOR PERSONAL INJURY RESULTING DIRECTLY OR INDIRECTLY FROM THE DESIGN, MATERIAL, OPERATION OR INSTALLATION OF ANY UNITS OF PRODUCTS.
Buyer further acknowledges that SYNNEX will have no responsibility for any claims for infringement of intellectual property rights pertaining to distribution, sale or use of the Products. SYNNEX SHALL HAVE NO DUTY TO DEFEND, INDEMNIFY OR HOLD HARMLESS BUYER FROM AND AGAINST ANY OR ALL DAMAGES AND COSTS INCURRED BY BUYER ARISING FROM THE INFRINGEMENT OF PATENTS OR TRADEMARKS OR THE VIOLATION OF COPYRIGHTS.
j. LIMITATION OF LIABILITY: SYNNEX SHALL NOT BE LIABLE TO BUYER, BUYER’S CUSTOMERS, OR ANY OTHER PARTY FOR ANY LOSS, DAMAGE, OR INJURY THAT RESULTS FROM THE USE OR APPLICATION BY BUYER, BUYER’S CUSTOMER, OR ANY OTHER PARTY, OF PRODUCTS DELIVERED TO BUYER, UNLESS THE LOSS OR DAMAGE RESULTS DIRECTLY FROM THE INTENTIONALLY TORTIOUS OR FRAUDULENT ACTS OR OMISSIONS OF SYNNEX. IN NO EVENT SHALL SYNNEX BE LIABLE TO BUYER OR ANY OTHER PARTY FOR LOSS, DAMAGE, OR INJURY OF ANY KIND OR NATURE ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS, OR ANY AGREEMENT INTO WHICH THEY ARE INCORPORATED, OR ANY PERFORMANCE OR NONPERFORMANCE UNDER THESE TERMS AND CONDITIONS BY SYNNEX, ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS, IN EXCESS OF THE NET PURCHASE PRICE OF THE PRODUCTS OR SERVICES ACTUALLY DELIVERED TO AND PAID FOR BY BUYER HEREUNDER. IN NO EVENT SHALL SYNNEX BE LIABLE TO BUYER OR ANY OTHER PARTY FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF GOOD WILL, LOSS OF ANTICIPATED PROFITS, OR OTHER ECONOMIC LOSS ARISING OUT OF OR IN CONNECTION WITH SYNNEX’S BREACH OF, OR FAILURE TO PERFORM IN ACCORDANCE WITH ANY OF THESE TERMS AND CONDITIONS, OR THE FURNISHING, INSTALLATION, SERVICING, USE OF PERFORMANCE OF ANY PRODUCTS OR INFORMATION SYNNEX SHALL PROVIDE HEREUNDER, EVEN IF NOTIFICATION HAS BEEN GIVEN AS TO THE POSSIBILITY OF SUCH DAMAGES.
k. CONFIDENTIALITY: The receiving party shall protect the confidentiality and secrecy of the disclosing party’s Confidential Information and shall prevent any improper disclosure or use thereof by its employees, agents, contractors or consultants, in the same manner and with the same degree of care (but in no event less than a reasonable degree of care) as it uses in protecting its own information of a confidential nature for a period of three (3) years from the date of such disclosure. Each party must inform its employees having access to the other’s Confidential Information of restrictions required to comply with this Section 2(k). Each party agrees to provide notice to the other immediately after learning of or having reason to suspect a breach of any of the restrictions of this Section 2(k). Notwithstanding the foregoing, each party may disclose the other party’s Confidential Information if and to the extent that such disclosure is required by applicable law, provided that the receiving party uses reasonable efforts to limit the disclosure and provides the disclosing party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure.
Each party retains for itself all proprietary rights it possesses in and to all of its own Confidential Information. Accordingly, Confidential Information which the disclosing party may furnish to the receiving party shall be in the receiving party’s possession pursuant only to a restrictive, nontransferable, nonexclusive license under which the receiving party may use such Confidential Information under the terms of this Agreement, solely for the purposes of satisfying its obligations hereunder. Each party understands that the party receiving Confidential Information may now or in the future be developing proprietary information internally, or receiving proprietary information from third parties in confidence that may be similar to disclosed Confidential Information. Nothing in this Agreement shall be construed as a representation or inference that the receiving party will not develop products, for itself or others, that compete with the products, processes, systems or methods contemplated by disclosed Confidential Information.
Each party acknowledges that any material violation of the rights and obligations provided in this Section 2(k) may result in immediate and irreparable injury to the other party, and hereby agrees that the aggrieved party shall be entitled to immediate temporary, preliminary, and permanent injunctive relief against any such continued violations upon adequate proof, as required by applicable law. Notwithstanding Section 2(m), each party hereby submits itself to the personal jurisdiction of the courts of competent subject matter jurisdiction for purposes of entry of such injunctive relief.
l. ECExpress/EDI/ELECTRONIC COMMUNICATIONS DISCLAIMER: Seller is not liable for any failure of the ECExpress service, EDI service, or any other form of electronic communication (collectively, “Electronic Communication”) to transmit, receive, store or handle documents or perform related activities. SYNNEX does not represent or warrant that the information accessible via the SYNNEX web site is accurate, complete or current. Price and availability information is subject to change without notice.
Buyers must properly use security procedures, which are reasonably sufficient to ensure that all electronic transmissions of documents to Seller are authorized and shall be responsible for any such unauthorized transmissions. Buyer’s ECExpress identification code is Buyer’s signature and use of the code is sufficient to verify that Buyer originated an order, when purchasing via ECExpress.
Any order properly transmitted in accordance with these terms and conditions is considered to be “in writing”; and any order containing a code is deemed (a) to have been “signed” and (b) to constitute an “original” when printed from electronic files or records established and maintained in the normal course of business. Buyer and Seller agree not to contest the validity or enforceability of orders as to whether certain agreements are to be in writing or signed.
You agree and acknowledge that SYNNEX may suspend or terminate your account if it is used for any purpose that is unlawful or prohibited by law or these terms and conditions or that SYNNEX in its sole discretion determines is abusive.
m. Independent Contractor: SYNNEX and Buyer are and shall be independent contractors to one another, and nothing herein shall be deemed to cause this Agreement to create an agency, partnership, or joint venture between the parties.
n. Force Majeure: Neither party shall be liable to the other for any delay in performance or failure to perform, in whole or in part, due to labor dispute, strike, war or act of war (whether an actual declaration is made or not), insurrection, riot, civil commotion, act of public enemy, accident, fire, flood, earthquake, or other act of God, act of any governmental authority, judicial action, computer virus or worm, or similar causes beyond the reasonable control of such party. If any event of force majeure occurs, the party affected by such event shall promptly notify the other party of such event and take all reasonable actions to avoid the effect of such event.
o. Notice: All written notices required by this Agreement must be delivered in person or by means evidenced by a delivery receipt and will be effective upon receipt.
USE OF SYNNEX’S E-COMMERCE WEB SITE IS ON AN “AS IS” BASIS AND SYNNEX MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE WEB SITE OR RELATED PRODUCTS. SYNNEX DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, SYNNEX DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THE SYNNEX WEB SITE IS ACCURATE, COMPLETE OR CURRENT. PRICE AND AVAILABILITY INFORMATION IS SUBJECT TO CHANGE WITHOUT NOTICE.
4. Limitation on Use
Buyer hereby acknowledges that Products are not intended for use in life support systems, critical care applications, human implantation, commercial aviation, nuclear facilities or systems or any other applications where product failure could lead to injury to persons or loss of life or catastrophic property damage. SYNNEX hereby disclaims any liability or responsibility for risk of loss, expenses, cost, liability, litigation and/or potential adverse verdict or judgment in relation to any such use of the products.
5. Limited License
The information and databases provided to you via certain SYNNEX e-commerce web sites is licensed to you by SYNNEX for your use only in the ordinary course of your business for your review, selection and purchase of products from SYNNEX. This license is non-exclusive, non-transferable, and may be terminated by SYNNEX with or without cause at any time.
6. Limitation of Liability
Except as specifically stated herein, neither SYNNEX nor any of its directors, employees or other representatives will be liable for damages arising out of or in connection with your use of any SYNNEX web site. This is a comprehensive limitation of liability that applies to all damages of any kind, including (without limitation) compensatory, direct, indirect or consequential damages, loss of data, income or profit, loss of or damage to property and claims of third parties.
IN NO EVENT SHALL SYNNEX BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL OR OTHER DAMAGES WHATSOEVER RESULTING FROM OR RELATED TO BUYER’S USE OF ANY SYNNEX WEB SITE OR SYNNEX’s PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT OR THE FURNISHING, PERFORMANCE OR USE OF ANY PRODUCT(S) SOLD PURSUANT HERETO, WHETHER DUE TO BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, PRODUCT LIABILITY, PERSONAL INJURY, THE NEGLIGENCE OF SYNNEX OR OTHERWISE. SYNNEX’s LIABILITY SHALL BE LIMITED SOLELY TO THE REPAIR, REPLACEMENT OR CREDIT OF THE PRODUCT(S), AT SYNNEX’s OPTION.
You agree to defend, indemnify and hold SYNNEX and its affiliates, and their respective directors, officers, employees and agents, harmless from and against any and all liabilities, costs and expenses, including reasonable attorneys’ fees, arising from or in any way relating to your use of any SYNNEX web site or any Product acquired from SYNNEX.
These Terms and Conditions, along with (a) the terms and conditions on any SYNNEX invoice, (b) the terms and conditions of the SYNNEX credit application, and (c) the terms and conditions of any other agreement signed by authorized representatives of both Buyer and Seller, sets forth the entire agreement and understanding of the parties relating to the subject matter herein. In the event of a conflict between these various terms and conditions, they will take effect in the following order of precedence: (1) any signed agreement between the parties; (2) the terms and conditions on any SYNNEX Invoice, (3) these Terms and Conditions, and (4) the terms and conditions in Buyer’s credit application to SYNNEX. Any terms and conditions on Buyer’s purchase order or any other document not signed by SYNNEX shall have no force and effect.
Notwithstanding the foregoing, if Buyer and Seller have executed an agreement that specifically supersedes and replaces or modifies any or all of the Terms and Conditions, the terms of such Agreement shall control. No additional or different terms of conditions, whether material or immaterial, shall become a part of these Terms and Conditions unless expressly accepted in writing by an authorized officer of Seller. Any waiver by Seller of one or more of these Terms and Conditions or any defaults hereunder shall not constitute a waiver of the remaining Terms and Conditions or any future defaults hereunder. It is the intention of the parties that these Terms and Conditions shall be enforceable to the fullest possible extent, regardless of any partial invalidity or unenforceability, and that no failure or delay by either party in exercising or enforcing any right hereunder shall operate as a waiver thereof or preclude any other exercise or enforcement of rights hereunder. The rights and obligations of Buyer under the Terms and Conditions may not be assigned by Buyer without the prior written consent of Seller (which shall not be unreasonably withheld).
SYNNEX may modify the information and functionality of any SYNNEX web site at any time. SYNNEX reserves the right, in its sole discretion, to modify, alter or otherwise update these Terms and Conditions at any time, and you agree to be bound by such modifications, alterations or updates. Any modifications, alterations or updates to these Terms and Conditions will be available to you on SYNNEX’s website, and you agree to regularly check SYNNEX’s website for new versions of these Terms and Conditions.
9. Waiver of Jury Trial
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
10. Governing Law/Venue
This Agreement shall be governed by and construed under the laws of the Province of Ontario, without regard to its principles regarding conflicts of law. The parties disclaim the United Nations Convention on Contracts for the International Sale of Goods in its entirety. The parties will attempt in good faith to promptly resolve any controversy, dispute or claim arising out of or relating to this Agreement through negotiations between the parties before resorting to other remedies available to them. If attempts to resolve the dispute amicably have failed or if negotiation to resolve the dispute is impossible (notably in case of urgent procedure to obtain a protective order), any action or proceeding between the parties relating to this Agreement shall take place in Toronto, Ontario and the parties hereby waive any objection to that forum. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. Buyer agrees to pay court costs and reasonable legal fees incurred in the collection of any unpaid balances whether or not suit is filed. In the event of any litigation arising out of this Agreement or its enforcement by either party, the prevailing party shall be entitled to recover as part of any judgement, reasonable attorneys’ fees and court costs.
BY ACCESSING ANY SYNNEX WEB SITE, OR PLACING ORDERS VIA ANY SYNNEX-AUTHORIZED THIRD PARTY WEBSITE, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.