HP SUPPORT SERVICES RESELLER AGREEMENT
Thank you for your interest in SYNNEX’s HP Support Services Reseller program.
To complete your online agreement to participate in this program, please read the following terms and conditions carefully. If you (the “Reseller”) acknowledge and accept these Terms and Conditions and agree to be bound by them, please click on the “I HAVE REVIEWED AND AGREE TO THE GENERAL TERMS AND CONDITIONS”, checkbox at the bottom of this page to register, insert your company and personal identification information, and then click the “ACCEPT” button. If you do not agree to these Terms and Conditions, please close the browser window, and your application will be terminated. We reserve the right, in our 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 General Terms and Conditions will be available to Reseller on SYNNEX’s website, and Reseller agrees to regularly check SYNNEX’s website for new versions of these General Terms and Conditions. The terms “SYNNEX”, “we”, “us” and “our” refer to SYNNEX Corporation and its subsidiaries.
You can click “I HAVE REVIEWED AND AGREE TO THE GENERAL TERMS AND CONDITIONS” after you read the terms.
GENERAL TERMS AND CONDITIONS
These Terms and Conditions govern the appointment of Reseller as a nonexclusive distributor of the HP Support Services in the United States (“Territory.”) Reseller agrees to be bound by these Terms and Conditions.
SECTION 1 DEFINITIONS.
1.1 “Claims” shall mean any and all claims, liabilities, damages or causes of action.
1.2 “Confidential Information” shall mean the information of a party, which information is conspicuously marked with “Confidential,” or “Proprietary” or other similar legend. If Confidential Information is orally disclosed it shall be identified as such at the time of disclosure and a brief written non-confidential description of the information and confirmation of the confidential nature of the information shall be sent to the recipient within thirty (30) days after the disclosure. Quantities, schedules and pricing shall be considered Confidential Information hereunder whether disclosed orally or in writing, or whether or not marked “Confidential” or “Proprietary.” Confidential Information does not include information that: (1) was in the possession of, or was known by, the receiving party prior to its receipt from the disclosing party, without an obligation to maintain its confidentiality; (2) is or becomes generally known to the public without violation of these Terms and Conditions; (3) is obtained by the receiving party from a third party, without an obligation to keep such information confidential; or (4) is independently developed by the receiving party without use of Confidential Information.
1.3 “Effective Date” shall be the date upon which Reseller agrees to these Terms and Conditions.
1.4 “End User” means the party who has submitted or is likely to submit a formal request for a services offering to Reseller who then submits the formal request to SYNNEX, the party who has a Service Agreement with Reseller, or the party who purchased Services from Reseller with no intent to further remarket the Services.
1.5 “HP” means Hewlett-Packard Company, a Delaware corporation, with its principal place of business located at 3000 Hanover Street, Palo Alto, California 94304.
1.6 “HP Pass Through Terms” refers to the then current version of the “HP PASS THROUGH TERMS”, which document can be found at http://www.hp.com/hps/custdocs/us/index.html and is hereby incorporated herein by reference.
1.7 “HP Single Order Terms and Conditions, Exhibit SO01SP” refers to the then current versions of HP’s standard terms and conditions for the sale of Services which document can be found at http://www.hp.com/hps/custdocs/us/index.html and is hereby incorporated herein by reference.
1.8 “Intellectual Property” shall mean all worldwide rights arising under contract, status, or common law, whether or not perfected, associated with (1) patents and patent applications; (2) works of authorship, including copyrights, mask works, moral rights, and neighboring rights; (3) the protection of trade and industrial secrets and confidential information; (4) any rights analogous to those set forth herein and any other proprietary rights relating to intangible or intellectual property now existing or later recognized in any jurisdiction; and (5) divisions, continuations, renewals, reissuances, reexaminations, applications and registrations, and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired.
1.9 “Order(s)” means each and every instruction by Reseller to initiate a Service Agreement for the provision of Services by HP or to add or delete Services from an existing Service Agreement.
1.10 “Out of Support” products are defined as those products which are not Supported Products and have not been under a support agreement with an HP Authorized Services Management Partner immediately prior to placing such products under support hereunder.
1.11 “Products” means hardware and software products, components, and spare parts, which are determined by HP to be available from HP and considered part of the Service delivered to End User.
1.12 “Quotation” refers to the applicable authorized HP quotation in effect when HP accepts the Order.
1.13 “Reseller” shall mean the reseller that has agreed to these Terms and Conditions as identified upon its electronic acceptance of these Terms and Conditions.
1.14 “Relationship Guide” means the relevant portions of the “Authorized Service Management Partner- Distributor Relationship Guide”, together with any updates thereto, a current copy of which is attached as Exhibit B to these Terms and Conditions.
1.15 “Service(s)” mean the hardware services, software services, systems support services, supplemental services, contract renewals, warranty conversions and other services available for Supported Products and third party products which are designated by HP for sale to Reseller in Exhibit A. Hardware, components, and/or spare parts, and/or software (“Products”) may be provided and shall be considered as part of a Service delivered to an End User. Technical and consulting services described in a statement of work that is made available for remarketing by SYNNEX are considered Services.
1.16 “Supported Products” means Products that have been purchased under a valid purchase agreement with HP or with an authorized HP distributor. This definition also includes non-HP products currently supported under HP’s multi-vendor support program. To be eligible, Supported Products must be within the HP-specified support life period.
1.17 “SYNNEX” shall mean SYNNEX Corporation, located at 44201 Nobel Drive, Fremont, CA 94538.
1.18 “Technical Data Sheet or Service Description” means the written specifications or terms of delivery for a particular HP Service.
1.19 “Terms and Conditions” shall mean these General Terms and Conditions.
1.20 “Territory” shall mean the United States.
SECTION 2 APPOINTMENT, ELIGIBILITY AND RELATIONSHIP.
2.1 Reseller Eligibility. To be eligible to remarket Services under these Terms and Conditions, Reseller must have a current valid HP U.S. Business Development Partner Agreement and remain in good credit standing with HP.
2.2 Supported Product Eligibility. To be eligible for Services, Supported Products must be at current specified revision levels and, in HP’s reasonable opinion, in good operating condition. Any work performed by HP to meet these requirements will be subject to additional charges payable by Reseller at SYNNEX’s current standard service rates. Reseller is subject to a thirty (30) day waiting period for Out of Support products to be placed under support.
2.3 Appointment, License Grant and Sublicense. Subject to the terms and conditions of these Terms and Conditions, SYNNEX hereby appoints Reseller as a nonexclusive reseller of the Support Services in the Territory and grants to Reseller a nontransferable and nonexclusive license during the term of these Terms and Conditions to distribute the Support Services in the Territory.
2.4 Authority. Reseller will have no authority to bind SYNNEX or HP to any contract, representation, understanding, act or deed concerning SYNNEX, HP or any Services covered by these Terms and Conditions without HP’s prior written consent. These Terms and Conditions will not be deemed to establish a joint venture or partnership. Reseller will make no warranties or representations, such as representations concerning prices, terms of delivery and payment, or conditions of sale, relating to the Services unless SYNNEX or HP authorizes such warranties and representations in writing.
2.5 Sales to End Users Only. Unless otherwise authorized by HP or Distributor in writing, Reseller shall only sell Services to End Users who do not intend to further remarket such Services.
2.6 Remarketing Waiting Period. Reseller shall wait ninety (90) days before remarketing Services to any HP End User formerly covered under a HP service contract.
2.7 Compliance with Laws. Each party shall be responsible for complying with all applicable laws, statutes, rules, regulations and ordinances of the Territory with respect to the distribution of the Products and its performance under these Terms and Conditions and shall obtain all necessary approvals and permits in the Territory to distribute the Products and perform its obligations under these Terms and Conditions. If either party receives any notice or becomes aware of any violation of any law, statute, rule, regulation or ordinance of the Territory by the Products or the distribution thereof, such party shall promptly notify the other party of such notice or violation.
SECTION 3 RESELLER OBLIGATIONS
3.1 Reseller will establish and administer its own Service Agreements with End Users to cover the Services delivered by HP. Reseller will not obligate SYNNEX or HP to provide any services that are not included in HP’s description of Services or are not listed in the current version of Attachment A, Services Availability Matrix, available from the password-protected HP Partner Portal, located at http://www.hp.com/partners/us or from an HP services sales representative. Services may vary from country to country.
3.2 Reseller is the first point of contact for the End-User. Any and all contract issues in connection with any Services agreement will be handled solely by and between the Reseller and the End-User.
3.3 Reseller shall not duplicate HP copyrighted materials except for archive purposes, to replace a defective copy or for program error verification. However Reseller is granted a limited right to copy specific marketing and sales documentation provided by HP relating to the Services in order to promote Reseller’s service offering incorporating Services.
3.4 Upon request, Reseller will provide SYNNEX with a forecast of anticipated sales of Services to be remarketed to End Users for each year these Terms and Conditions are in effect.
3.5 Reseller shall maintain an updated and accurate asset management equipment list of Supported Products, including serial numbers, the HP-designated system handle(s)and/or access number, the location of the products, their associated coverage levels, End User information, and any subsequent changes to such listing, as required, throughout the applicable Services coverage period.
3.6 Except as specifically provided in these Terms and Conditions, Reseller agrees not to distribute any HP documentation (including, but not limited to) a Quotation or Service Agreement.
3.7 Reseller will be responsible for all commitments it makes to End Users. All renewals, collections, promotions and sales of Service Agreements to End Users will be Reseller’s sole responsibility. If Reseller does not Order its Service Agreement with a particular End User, either SYNNEX or HP may at their discretion, contact that End User directly and offer an HP Service Agreement after the expiration date.
3.8 Reseller is responsible for on time renewals of Service Agreements between Reseller and SYNNEX regardless of End User renewal status.
3.9 Reseller will supply SYNNEX with End User information (other than price) which HP in its sole opinion considers necessary for the timely and accurate delivery of Services or to protect any rights which HP has reserved.
3.10 Reseller will maintain reasonable standards of End User service and satisfaction as outlined in the Relationship Guide. SYNNEX may terminate these Terms and Conditions for cause pursuant to Section 12 if in SYNNEX’s reasonable opinion Reseller consistently fails to maintain such End User service and satisfaction standards.
3.11 In the event that Reseller resells or redistributes any Services to End Users in violation of Section 3.11 above, Reseller will reimburse SYNNEX for any discounts granted to Reseller hereunder which would otherwise not have been available to Reseller.
3.12 Reseller is responsible for complying with all training requirements, as stated in the Relationship Guide, designated by HP for each eligible Service listed in Schedule 1.
3.13 Reseller will comply with the Relationship Guide, including operating procedures and administrative processes set out therein (and updated from time to time), which Relationship Guide is incorporated herein by this reference. Any deviation from such Relationship Guide processes must be agreed to in writing signed by Reseller, SYNNEX and HP.
3.14 Reseller will provide SYNNEX with a designated single point of contact. The Reseller designated contact will responsible for receiving all calls from the Reseller’s employees and End Users regarding the Services (such as questions about zone information, pricing, renewal or agreement information, policy clarification, etc.). If the Reseller designated contact is unable to answer the question, then that person will contact SYNNEX or HP.
3.15 Reseller shall not modify or remove the contents of any Service offering without the express written approval of SYNNEX and HP.
3.16 Resellers and End Users are responsible for the security of their proprietary and confidential information and for maintaining a procedure external to the Supported Products to reconstruct lost or altered End User’s files, data, or programs. Resellers and/or End Users must have a representative present when HP provides Services on site. Reseller must notify SYNNEX if any Supported Product is being used in an environment which poses a potential health or safety hazard to HP employees or subcontractors; HP may require Reseller and/or End Users to maintain such Supported Products under HP’s supervision and may postpone Services until such hazard is remedied.
3.17 Reseller, when remarketing Services, shall obtain in writing its End User’s agreement with all of the terms and conditions included in the HP Single Order Terms and Conditions (Exhibit SO01SP), the HP Pass Through Terms and the applicable HP Technical Data Sheet(s) and/or Service Description(s).
3.18 Reseller shall provide to the End User the applicable HP Single Order Terms and Conditions (Exhibit SO01SP), the HP Pass Through Terms and the applicable Technical Data Sheet(s) and/or Service Description(s) for use with End Users as detailed in the Relationship Guide.
3.19 Reseller is responsible for reviewing the applicable Services with the End User, including the order requirements and final configurations.
3.20 Reseller shall: (a) provide HP and SYNNEX with the location for delivery, (b) put in place with the End User procedures for reporting order status, and (c) expedite delivery as may be required.
SECTION 4 ORDERS
4.1 Purchase Orders. Purchase orders shall be submitted in writing to SYNNEX by postal delivery, courier delivery, facsimile transmission, or electronic transmission. Each purchase order shall contain the following information: (1) quantity and type of units of Product to be shipped; (2) Product unit price; (3) Product unit revision level; (4) delivery schedule, by date, Product unit and quantity; (5) packaging process and method; and (6) destination, carrier and other specific instructions. Receipt of each purchase order shall be promptly confirmed by SYNNEX.
4.2 Reseller Obligation To Purchase From SYNNEX. Reseller agrees to purchase from SYNNEX the same Services as Reseller’s Service Agreement with End User (e.g. If End User purchases a pre-paid services agreement from Reseller, Reseller will purchase a pre-paid services agreement from SYNNEX.)
4.3 Response Times. Response times indicated in Quotations, Service Agreements, attached Exhibits or subsequently added to these Terms and Conditions are measured from the time a call is received by HP.
(A) Reseller’s Orders are subject to acceptance by SYNNEX and shall reference these Terms and Conditions.
(B) All Orders are subject to the terms and conditions of these Terms and Conditions. Unless agreed to in writing, no additional or different terms on the face or reverse side of any Order, or in any written communication, from Reseller shall apply.
(C) Reseller may at any time issue new Orders for Services. Reseller may cancel any Order or choose to add or delete products on any order with sixty (60) days’ written notice to SYNNEX, except for multi-year Orders which require one hundred twenty (120) days’ written notice to SYNNEX.
(D) Unless otherwise agreed in writing by SYNNEX and HP, the minimum term for any Services Order is twelve (12) calendar months.
(E) Unless otherwise agreed to in writing by SYNNEX and HP, Orders must be placed in the country where the Services are to be performed.
SECTION 5 FEES AND PAYMENT.
5.1 Payment. Payment for Services is due net thirty (30) days from date of invoice and may be made by check or wire transfer. Should Reseller fail to make payment within thirty (30) days after date of invoice, SYNNEX may, at its option, if it gives Reseller written notice, in reasonable detail, of such failure and Reseller does not cure such failure within five (5) business days of its receipt of such notice, terminate these Terms and Conditions. Daily interest at the rate of one and one-half percent (1.5%) per month shall accrue and be charged, until paid, on all payments not received by SYNNEX within such thirty (30) day period. Reseller agrees to purchase under payment terms with SYNNEX at least as stringent as Reseller’s service agreement with End User.
5.2 Price Changes. SYNNEX may change monthly charges for ongoing Services upon thirty (30) days’ written notice. Prepaid Services, if any, will not be subject to increases during the prepaid period. If prepaid Services are cancelled by Reseller, SYNNEX will be under no obligation to offer a refund for the remaining unused Services.
5.3 Additional Charges. Contractual charges for Services will be invoiced in advance of the support period. Charges for services not covered by these Terms and Conditions, services performed outside the specified periods of coverage, and travel and per diem expenses not included in the specified coverage will be invoiced by HP and paid by End User as they are incurred at HP’s current standard service rates.
5.4 Prices. HP, SYNNEX and Reseller are free to establish their own price list for the Services.
5.5 Offsets. SYNNEX may offset amounts due to Reseller with any credits granted or credit memos issued to Reseller, or any other current amounts owed by SYNNEX to Reseller.
5.6 Taxes. Reseller shall be responsible for all sales taxes, use taxes, withholding taxes, value added taxes, import and export taxes and any other similar taxes imposed by any federal, state, provincial or local governmental entity or any government entity in the Territory on the transactions contemplated by these Terms and Conditions, excluding taxes based on SYNNEX’s net income. When SYNNEX has the legal obligation to pay or collect such taxes, the appropriate amount shall be invoiced to and paid by Reseller unless Reseller provides SYNNEX with a valid tax exemption certificate authorized by the appropriate taxing authority.
SECTION 6 CONFIDENTIALITY.
6.1 Confidentiality Obligations. 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 6.1. 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 6.1. 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 these Terms and Conditions, 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 these Terms and Conditions 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 6.1 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 13.6, 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.
SECTION 7 STAFFING.
7.1 Staffing. Each of the parties agrees not to solicit, hire or engage any employees of the other party that are directly involved in the activities of the other party in connection with these Terms and Conditions during the period such employees are employed by the other party and for a period of one hundred eighty (180) days after the date of such employee’s termination of employment from the other party. Each party acknowledges that any material violation of the rights and obligations provided in this Section 7.1 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 13.6, 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.
SECTION 8 WARRANTY, LIMITATION OF LIABILITY AND INDEMNITY.
8.1 SYNNEX Warranties and Limitations.
SYNNEX shall assign to Customer any warranties for Products it purchases under these Terms and Conditions and cooperate reasonably with Customer in its efforts to exercise its rights under such warranties.
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 CUSTOMER. 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.
EXCEPT FOR A BREACH OF SECTION 6.1 OR SECTION 7.1, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES OR COSTS HOWSOEVER ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS, WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.
To the extent SYNNEX is held legally liable to Reseller, SYNNEX’s total liability is limited to: direct damages to tangible property up to a limit of U.S.$1,000,000; other direct damages for any claim based on a material breach of Services, up to a maximum of twelve (12) months of the related Services charges for the affected End User paid by Reseller during the period of material breach; and other direct damages for any claim based on a material breach of the Agreement, up to a limit of U.S.$1,000,000 or the amount paid to HP for the associated Product, whichever is less.
8.2 Reseller Indemnification.
(A) Reseller agrees to indemnify SYNNEX and HP and hold SYNNEX and HP harmless from any liability or expense, including attorney’s fees, incurred as a result of any claim that may be made against SYNNEX or HP by End User or any third party that arises out of:
(i) Reseller’s failure(s) to perform its obligations under this Agreement; or
(ii)Reseller’s service delivery to End Users.
(B) Reseller agrees to indemnify and hold SYNNEX and HP harmless for all claims and related expenses incurred by SYNNEX and HP during or after the Agreement as a result of: (a) Reseller’s failure to require agreement by a End User to HP’s Services terms and conditions, including without limitation, warranty, limitations and remedies, and Service Descriptions; (b) any changes to the Service Agreement, HP Service End User Agreement, and Service Descriptions by Reseller not authorized in writing by SYNNEX and HP; and (c) any representations or commitments by Reseller regarding Services which create liabilities or obligations not so authorized by SYNNEX or HP, HP’S Service End User Agreement and Service Descriptions.
SECTION 9 SUPPORTED PRODUCTS
9.1 Modification of Supported Products.
(A) HP may, at no additional charge, modify Supported Products to improve operation, supportability and reliability, or to meet legal requirements.
(B)Failure to allow HP to carry out such modifications may result in additional charges or in deletion of affected Products from the Services Order.
9.2 Relocation of Supported Products. Relocation of Supported Products is Reseller’s responsibility. Relocation may result in additional Service charges and modified response times. Relocation outside of the initial country of Service will require that the Supported Product be placed under a new Agreement, if available, in the destination country. Reseller must give SYNNEX sixty (60) days’ written notice prior to Supported Products being relocated.
SECTION 10 SOFTWARE LICENSES.
10.1 Terms and Conditions. The use and remarketing of HP Software are governed by the HP Single Order Terms and Conditions (Exhibit SO01SP) and the HP Pass Through Terms.
10.2 Software for Reseller’s Own Use. Software licenses provided for Reseller’s use are subject to the terms detailed in the HP Single Order Terms and Conditions (Exhibit SO01SP) and the HP Pass Through Terms. For the purposes of this provision, End User in the HP Single Order Terms and Conditions (Exhibit SO01SP) shall mean Reseller.
10.3 Sub-licensing. Reseller agrees that its only distribution right in relation to software licenses (including updates and new versions) acquired from SYNNEX hereunder is to sublicense same to End Users subject to the provisions set forth in Sections 10.4 and 10.5 below. Further, Reseller understands and accepts that it only will be entitled to obtain and sublicense software updates and new versions to an End User if it (i) originally licensed the software to which the update or new version relates; or (ii) it supplied the CPU on which the software is used pursuant to a HP Business Agreement, a HP Business Partner Agreement or an Authorized Product Reseller Agreement.
10.4 Sub-licensing Terms. For purchases of Services permitting the remarketing of HP Non-Shrink-wrap Software, Resellers may sublicense Software by obtaining the End User’s agreement prior to delivery to:
(A) The terms in HP Single Order Terms and Conditions (Exhibit SO01SP); or
(B) The terms of a valid HP Business Agreement with End User; or
(C) Reseller’s own terms which are substantially similar to those in the HP Single Order Terms and Conditions (Exhibit SO01SP) and the HP Pass Through Terms which SYNNEX and HP shall be entitled to review and approve; or
(D) The software license terms listed on the back of the HP Product Authorization Key or license certificate.
10.5 Additional Sub-licensing Terms. For purchase of Services permitting the remarketing of HP Shrink-wrap or third party licensed Software, Reseller may sublicense Software by obtaining the End User’s agreement prior to delivery to the terms accompanying the Software.
SECTION 11 SERVICE LIMITATIONS.
11.1 HP will provide Services for products that are not Supported Products when approved by HP in writing. HP will provide Services for such Products when End User allows HP to perform modifications if requested by HP as set forth in these Terms and Conditions. Reseller and/or End User is responsible for removing any products not eligible for Services to allow HP to perform Services. If Services are made more difficult because of such product(s), HP will charge the End User for the extra work at HP’s standard rates.
11.2 Services do not cover any damage or failure caused by:
(A) use of non-HP media, supplies and other products; or
(B) site conditions that do not conform to HP’s site specifications; or
(C) neglect, improper use, fire or water damage, electrical disturbances, transportation by its Reseller or the End User, work or modification by people other than HP employees or subcontractors, or other causes beyond HP’s control; or
(D) inability of any non-HP products in Reseller’s or End User’s environment to correctly process, provide or receive correctly date data (i.e., representations for month, day and year), and to properly exchange date data with Supported Products.
11.3 HP may cover obsolete Products that are beyond their specified support period using reasonable efforts as determined by HP.
SECTION 12 TERM AND TERMINATION.
12.1 Term and Termination. The initial term of these Terms and Conditions shall commence on the Effective Date and extend for one (1) year thereafter, with automatic one year renewals unless terminated according to one or more of the following provisions:
(A) At any time upon the mutual written agreement of both parties;
(B) With or without notice to Reseller, immediately upon termination of the ASMP Agreement between SYNNEX and HP.
(C) By either party with or without cause upon sixty (60) days prior written notice of termination to the other party;
(D) By either party, following a material breach of these Terms and Conditions by the other party and the breaching party’s failure to cure such breach within thirty (30) days of it receiving written notice of such breach; and
(E) By either party upon the other party seeking an order for relief under the bankruptcy laws of the United States or similar laws of any other jurisdiction, a composition with or assignment for the benefit of creditors, or dissolution or liquidation.
12.2 Return of Confidential Information. Upon termination of these Terms and Conditions by either party, each party shall return all originals and copies of Confidential Information or destroy the same with certification of such destruction.
12.3 Survival. Provisions herein which by their nature extend beyond the termination or expiration of these Terms and Conditions will remain in effect until fulfilled.
SECTION 13 MISCELLANEOUS.
13.1 Entire Agreement and Modification. These Terms and Conditions shall constitute the entire agreement between the parties with respect to the transactions contemplated hereby and supersedes all prior agreements and understandings between the parties relating to such transactions. The Exhibits attached hereto are considered to be a part of these Terms and Conditions. No modification of these Terms and Conditions shall be binding, unless in writing and signed by an authorized representative of each party.
13.2 Assignment. These Terms and Conditions shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Neither party hereto shall in any way sell, transfer, assign, or otherwise dispose of any of the rights, privileges, duties and obligations granted or imposed upon it under these Terms and Conditions; provided, however, SYNNEX shall have the right to assign its rights, duties and responsibilities under these Terms and Conditions to an affiliate of SYNNEX. An affiliate of SYNNEX means any corporation, partnership or other business entity which controls, is controlled by, or is under common control with SYNNEX.
13.3 Severability. In case any one or more of the provisions contained in these Terms and Conditions shall for any reason be held to be invalid, illegal or unenforceable in any respect, except in those instances where removal or elimination of such invalid, illegal, or unenforceable provision or provisions would result in a failure of consideration under these Terms and Conditions, such invalidity, illegality or unenforceability shall be severed and shall not affect any other provision hereof. Furthermore, the severed provision shall be replaced by a provision which comes closest to such severed provision, or part thereof, in language and intent, without being invalid, illegal or unenforceable.
13.4 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.
13.5 Independent Contractor. SYNNEX and Reseller are and shall be independent contractors to one another, and nothing herein shall be deemed to cause these Terms and Conditions to create an agency, partnership, or joint venture between the parties.
13.6 Disputes. Both parties agree to negotiate in good faith the settlement of any disputes that may arise under these Terms and Conditions. If necessary, such disputes shall be escalated to appropriate senior management of each party. In the event that such good faith settlements fail, excluding any and all disputes and controversies arising out of or in connection with Sections 6.1 or 7.1, any and all other disputes and controversies of every kind and nature between the parties arising out of or in connection with the existence, construction, validity, interpretation, or meaning, performance, non-performance, enforcement, operation, breach, continuance, or termination of these Terms and Conditions shall be submitted to binding arbitration, pursuant to the Rules of the American Arbitration Association, before a single arbitrator in Alameda County, California. In the event the parties cannot agree on the arbitrator, then an administrator of the American Arbitration Association shall select an appropriate arbitrator from among arbitrators of the American Arbitration Association with experience in commercial disputes related to technology products. In the event of any litigation arising out of these Terms and Conditions 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.
13.7 Jurisprudence. These Terms and Conditions shall be governed by and construed in accordance with the laws of California and the United Nations Convention on Contracts for the International Sale of Goods shall not apply.
13.8 Notice. All written notices required by these Terms and Conditions must be delivered in person or by means evidenced by a delivery receipt and will be effective upon receipt.
13.9 Exhibits. Each of the following Exhibits is incorporated herein by this reference. The parties may amend any Exhibit from time to time by entering into a separate written agreement, referencing such Exhibit and specifying the amendment thereto, signed by an authorized employee of each of the parties.