These Terms and Conditions of Sale ("Terms and Conditions") between TD SYNNEX Corporation, on behalf of itself and its subsidiaries in the United States and Canada (together "TD SYNNEX") and the entity purchasing products from TD SYNNEX ("Buyer") govern TD SYNNEX’s sale, license, resale and distribution, as applicable, of third-party vendor ("Vendor") hardware, products, services and software (including all open source licenses distributed by Vendor, or incorporated into any Vendor software) and TD SYNNEX services, which consist of a variety of services sold and performed by TD SYNNEX (as opposed to third-party vendor services resold by TD SYNNEX) ("TD SYNNEX Services") (collectively "Products") to Buyer.

 

Certain Vendors require TD SYNNEX to pass-through terms for the Product to resellers and end users. By purchasing the Product from TD SYNNEX, Buyer agrees to these Vendor pass-through terms, which are located at Vendor Pass-Through Terms.

 

1. ACCEPTANCE OF PURCHASE ORDERS

 

Acceptance: Buyer accepts these Terms and Conditions through any of the following, whichever occurs first: (a) Buyer submits a purchase order, whether electronically, by phone, or in writing ("Order") to TD SYNNEX regardless of whether the Products ordered are ever delivered or if the purchase order is completely or partially fulfilled, rejected, modified or cancelled; (b) Buyer provides written acknowledgment; (c) Buyer accepts any shipment of any Products; (d) Buyer’s application for credit is submitted to TD SYNNEX; (e) access of any TD SYNNEX e-commerce website using Buyer’s ID and password; or (f) Buyer performs any other act or expression of acceptance. All Orders are subject to TD SYNNEX acceptance, which may occur in writing, Electronic Data Interchange ("EDI") acknowledgment, or execution of the Order. Acceptance is expressly limited to these Terms and Conditions in their entirety without addition, modification or exception. TD SYNNEX rejects any term, condition, or proposal submitted by Buyer (whether oral or in writing) which are inconsistent with or in addition to these Terms and Conditions. TD SYNNEX's silence or failure to respond to any subsequent or different term, condition, or proposal shall not be deemed to be TD SYNNEX's acceptance. 

 

Quotations: Quotes from TD SYNNEX are applicable for the period specified in the quote. Unless otherwise agreed to in writing by TD SYNNEX, quotes are invitations to tender and are subject to change at any time without notice. All information relating to TD SYNNEX pricing is proprietary and confidential and Buyer will keep such information confidential. TD SYNNEX quotes based upon information provided by the Buyer. For Canadian sales, all prices quoted shall be in Canadian Dollars (“CAD”) unless otherwise specified.

Orders: TD SYNNEX reserves the right to schedule and reschedule any Order, upon notice to Buyer, at TD SYNNEX’s reasonable discretion, and to decline any order for any reason in TD SYNNEX’s sole discretion. Buyer may not change, cancel, or reschedule Orders for Products without TD SYNNEX's prior written consent. TD SYNNEX reserves the right to allocate the sale of Products among its buyers.

 

2. DELIVERY

 

Shipping Policy: Unless otherwise agreed in writing, TD SYNNEX will deliver or arrange to deliver the Products in accordance with TD SYNNEX's shipping policy in effect on the date of shipment or if drop-shipped by the Vendor from a Vendor location, in accordance with the Vendor’s applicable shipping policy. 

 

Domestic: For all domestic transactions, including drop shipments, title and all risk of loss or damage to the Products, except software or services, shall pass to Buyer upon delivery to the carrier or Buyer's representative at the TD SYNNEX logistics center where the Products are located (FCA Origin (Incoterms 2020)). If Buyer requests special shipping or handling (including expedited shipment, third-party billing, freight collect, or special routing or packing), Buyer shall be responsible for all freight, insurance and handling costs as well for filing claims and following up with the carrier in the event the shipment is damaged, lost, diverted, or delayed.  TD SYNNEX will not be subject to any non-compliance penalties or charges related to Buyer’s vendor compliance requirements, including but not limited to any shipping, packaging or delivery requirements. 

 

International: For all international transactions, including drop shipments, the Product will be shipped FCA Origin from the logistics center where the Products are located (Incoterms 2020). TD SYNNEX assumes no responsibility for Additional Fees as defined in Section 4 for the country designated for delivery by the Buyer. Title and all risk of loss or damage to the Products, except for software or services, shall pass to the Buyer upon delivery to the Buyer or Buyer's representative at TD SYNNEX's logistics center or, for drop shipments, upon delivery of the Products to the first common carrier.

 

Delivery Information: Delivery is subject to TD SYNNEX's receipt of all necessary information and documentation from Buyer including all import certificates, exemption or resale certificates, licenses, and other documents required from Buyer for export of the Product. Buyer shall notify TD SYNNEX no later than five (5) days from invoice date of any claimed shortages or rejections of delivery, with the exception of deliveries that reveal visible external shipping damage which must be refused immediately upon delivery by the carrier. Buyer shall provide such notice in writing and with reasonable detail, stating the grounds for any such rejection. Buyer's failure to give such notice within the time specified is deemed an acceptance in full of any such delivery. TD SYNNEX shall not be liable for any shipment delays caused by events outside of TD SYNNEX’s control. 

 

3. TD SYNNEX SERVICES

 

Limited TD SYNNEX Services Warranty and Exclusive Remedy: TD SYNNEX warrants that TD SYNNEX Services will be performed in a reasonable and workmanlike manner. To the extent permitted by law, TD SYNNEX makes no other warranty, express or implied, such as warranty of merchantability, fitness for purpose or non-infringement. TD SYNNEX DISCLAIMS ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES, STATUTORY OR OTHERWISE. IN PARTICULAR, TD SYNNEX DOES NOT WARRANT THAT SOFTWARE PROVIDED BY TD SYNNEX IS UNINTERRUPTED OR ERROR-FREE. THIS SECTION STATES TD SYNNEX'S ENTIRE LIABILITY FOR WARRANTY CLAIMS FOR TD SYNNEX SERVICES. BUYER MUST NOTIFY TD SYNNEX IN WRITING OF ANY ALLEGED BREACH OF WARRANTY NO LATER THAN THIRTY (30) DAYS AFTER COMPLETION OF THE APPLICABLE TD SYNNEX SERVICES. Buyer's sole remedies for breach of this limited warranty are, at TD SYNNEX's sole discretion, to: (i) re-perform the TD SYNNEX Services, or (ii) refund the portion of the fees paid by Buyer that relate to the non-conforming TD SYNNEX Services.

 

4. PRICE AND PAYMENT

 

Additional Fees: TD SYNNEX's prices stated on invoices and quotations are for the Products only and do not include applicable federal, state, provincial, municipal and other government taxes (such as sales, use, value-added, GST, provincial sales tax, and similar taxes) as applicable, as well as import or customs duties, license fees, freight (except as otherwise provided in TD SYNNEX’s shipping policy) and any other similar charges, however designated or levied on the sale or delivery of the Products or measured by the purchase price paid for the Products ("Additional Fees"). Buyer is responsible for all Additional Fees. TD SYNNEX shall invoice Buyer for all taxes applicable to sales of the Products, itemized by type and jurisdiction, which TD SYNNEX is required by law to collect from Buyer. Exemption certificates must be presented to TD SYNNEX prior to shipment if they are to be honored. Upon Buyer's request, TD SYNNEX will provide Buyer with sufficient documentation to enable Buyer to complete any necessary tax filings or claim any applicable tax credits for amounts paid to TD SYNNEX. If applicable law requires Buyer to deduct any amount from the amounts to be paid to TD SYNNEX due to withholding taxes or any other taxes or levies of any kind, Buyer shall pay all such additional amounts so that the net amounts received by TD SYNNEX are the amounts specified on the invoice. To the extent that any withholding tax is payable, TD SYNNEX and Buyer shall mutually collaborate and provide any and all assistance reasonably requested to obtain the benefits of any applicable tax treaty between the country where the TD SYNNEX entity that accepted Buyer Order is located and the applicable jurisdiction where the withholding tax applied.

 

Payment Terms: Payment is due as stated on TD SYNNEX's invoice without offset or deduction for withholding taxes or any other fees. All payment information must match Buyer’s account and authorized payment source.  If Buyer elects to use a third-party payment processor to remit the payment, Buyer explicitly agrees that all payment processing and/or transaction fees (if any) shall be paid by the Buyer. Unless otherwise specifically agreed to by TD SYNNEX in writing, TD SYNNEX does not offer price protection. 

Buyer shall provide all financial information reasonably requested by TD SYNNEX from time to time for the purpose of establishing or continuing Buyer’s credit limit. Buyer agrees that TD 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. At any time, TD SYNNEX may change the terms of Buyer's credit. TD SYNNEX, at its discretion, may require reasonable advance assurances of payment through irrevocable bank letters of credit or otherwise. Notwithstanding any "net" payment provisions specified on the invoice, TD SYNNEX shall have no continuing obligation to deliver Products on credit, and any credit approval may be withdrawn by TD SYNNEX at any time and without prior notice. 

 

All unpaid invoices will bear interest at an amount equal to one and one-half percent (1.5%) of the outstanding balance per month (or the maximum rate of interest allowed to be contracted for by law, whichever is less), starting on the date payment is due. Buyer's failure to make timely payment may result in such action as commencement of proceedings for collection, revocation of credit, cancellation of Orders, stoppage of shipment, delay or cessation of future deliveries, repossession of unpaid delivered goods, and termination of any one or more sales agreements. 

 

TD SYNNEX may apply payments submitted by Buyer to any of Buyer's accounts. Buyer shall not deduct any amounts from any TD SYNNEX invoice without TD SYNNEX’s express written authorization, which shall be granted by TD SYNNEX in its sole discretion and upon Buyer providing all requested supporting documentation.

Collections: If TD SYNNEX engages an attorney or collection agency for the purpose of collection, or enforcing TD SYNNEX's security interest in the Products, with or without litigation, Buyer shall pay any and all associated costs, including and without limitation, attorneys' fees and costs (whether incurred prior to, during, or subsequent to trial), collection, bankruptcy, or other creditor's rights proceedings. TD SYNNEX reserves the right to effect a recoupment, to set off of any funds due at any time to Buyer from TD SYNNEX, and to set off any amounts against amounts owed by Buyer to TD SYNNEX.

 

Currency: All payments shall be made in the currency indicated on the invoice unless otherwise specified. Buyer acknowledges and agrees that if any amount due TD SYNNEX is payable in U.S. Dollars, any payment by Buyer in local currency or the receipt by TD SYNNEX of local currency as a consequence of enforcement procedures against Buyer will be deemed (a) an authorization for TD SYNNEX to use that local currency to purchase U.S. Dollars or, (b) if such purchase is prohibited by local law, an authorization to purchase appropriate bonds or other instruments and export them from the Buyer's country in order to convert the currency into U.S. Dollars and apply the proceeds to the payment of any amounts owed to TD SYNNEX by Buyer. Buyer is responsible for any deficiency as a result of conversion of payment into U.S. Dollars. Notwithstanding the foregoing, for Canadian sales, pricing is subject to change based on fluctuations in the CAD exchange rate. 

 

Canadian Environmental Fees: Orders shipping into provinces where environment fees exist will be assessed a separate charge for Products covered under the applicable provincial program unless Buyer is properly registered as a remitter in the province and has agreed to report and remit the fees directly to the appropriate provincial agency. Any environment fees billed will be in addition to standard quoted product costs’ and will appear as a separate line item on your invoice. Fee structure and product categories for each of the provinces where environment fees currently exist can be found at: http://epra.ca/provincial-programs.

 

5. RETURNS

 

Returns: All Product returns are subject to TD SYNNEX's then-applicable return policies. All Orders that are identified by TD SYNNEX as non-standard or "NCNR" are non-cancelable and non-returnable. If TD SYNNEX issues a return authorization to Buyer allowing Buyer to return Product to TD SYNNEX, Buyer will deliver the Product to TD SYNNEX's specified address and Buyer shall bear Additional Fees designated or levied, on any replacement Product to be shipped by TD SYNNEX to Buyer. If TD SYNNEX determines such Products are not eligible for return, TD SYNNEX will, at its sole discretion, send such Products back to Buyer on freight collect basis, or hold such Products (at Buyer's expense) for Buyer's collection and on Buyer's account. The right to return defective Products as set forth herein shall constitute TD SYNNEX's sole liability and Buyer's exclusive remedy in connection with any claim of any kind relating to the quality, condition, or performance of any Product, whether such claim is based upon breach of contract, warranty, negligence or other tort, breach of any statutory duty, indemnity or contribution, the failure of any limited or exclusive remedy to achieve its essential purpose, or otherwise.

 

Lithium Batteries: Buyer shall not return to TD SYNNEX facilities any recalled lithium batteries or lithium batteries that are known or suspected to be defective or damaged. 

Packaging and Labeling of Dangerous Goods: When returning dangerous goods to TD SYNNEX, Buyer shall package, mark and label such dangerous goods according to local and global regulations for transport (such as IATA, IMDG, DOT, ADR). Dangerous goods include, but are not limited to, lithium batteries, magnetic materials, aerosols or pressurized gas, and other materials that can pose a risk to property and life.

 

6. DISCLAIMER OF WARRANTIES

 

Disclaimer of Warranties: Buyer acknowledges that TD SYNNEX is not the manufacturer of the Products that are being provided pursuant to this Agreement. Notwithstanding any right to return defective products under TD SYNNEX's limited Services Warranty as specified in Section 3 and the then-applicable Return Policy as specified in Section 5, TD SYNNEX makes no representations or warranties of any kind with respect to the Products, including but not limited to Product information. TD SYNNEX HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCTS OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. TD SYNNEX WILL NOT BE LIABLE FOR ANY DAMAGE, LOSS, COST, OR EXPENSE FOR BREACH OF WARRANTY. Except for the limited TD SYNNEX Services Warranty as specified in Section 3, any product warranties applicable to the Products shall be provided by the Product manufacturer. Buyer shall not make any representations and warranties on behalf of TD SYNNEX or the Product manufacturer.

 

7. LIMITATION OF LIABILITY

 

Limitation of Liability: SUBJECT TO THE LIMITATIONS OF SECTIONS 3, 5 AND 6, TD SYNNEX SHALL NOT BE LIABLE TO BUYER, BUYER’S CUSTOMER OR END USER, OR ANY OTHER PARTY FOR ANY LOSS, DAMAGE, OR INJURY THAT RESULTS FROM THE USE OR APPLICATION BY SUCH PARTY OF PRODUCTS DELIVERED TO BUYER. TD SYNNEX'S LIABILITY FOR DAMAGES ARISING UNDER THESE TERMS AND CONDITIONS, OR WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL: (1) BE LIMITED TO ACTUAL, PROVEN, DIRECT DAMAGES, AND (2) WILL NOT EXCEED THE NET AMOUNT PAID TO TD SYNNEX BY BUYER FOR THE PRODUCT THAT IS THE SUBJECT OF THE CLAIM. TD SYNNEX SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS AND CONDITIONS OR THE PRODUCT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOSS OF USE, LOST DATA, COSTS OF COVER, OR FOR ANY DAMAGES OR SUMS PAID BY BUYER TO THIRD PARTIES, EVEN IF TD SYNNEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY APPLIES WHETHER ANY CLAIM IS BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE.

 

8. STREAMONETM

 

StreamOneTM: StreamOneTM is an online platform offered by TD SYNNEX. If Buyer chooses to use StreamOneTM, Buyer's use is subject to these Terms and Conditions, and any additional StreamOneTM platform agreements, which will be communicated to Buyer at the time of purchase. The additional terms found in this Section 8 will specifically apply to all sales by TD SYNNEX through StreamOneTM. All data and other information available on StreamOneTM are proprietary, confidential and the sole property of TD SYNNEX or third parties licensing such information to TD SYNNEX.

 

Electronic Delivery / Access: Unless otherwise agreed in writing, the Products made available through StreamOneTM will be made available for use by software download or the transmission of (or access to) enabling information electronically.

 

Credit Card Authorization: If Buyer pays by credit card, Buyer represents that it is the owner of or is authorized to use the credit card and Buyer authorizes TD SYNNEX to charge the credit card for all transactions through the StreamOneTM platform, unless otherwise specified. If TD SYNNEX extends credit to Buyer, Buyer will be invoiced on the agreed upon terms.

 

9. AUTOMATIC RENEWALS, RECURRING SERVICES, AND OTHER RELATED REQUIREMENTS

 

Automatic Renewals and Recurring Services: For Products made available on a subscription or recurring term basis ("Subscriptions"), Buyer agrees that TD SYNNEX may invoice Buyer for automatic renewals and Subscriptions, using Buyers initial purchase order number as authorization for subsequent invoices until Buyer properly cancels the applicable Subscription. Buyer further agrees to notify its customers or end users of the applicable renewal Subscriptions and payments due and acknowledges that Buyer's obligation to pay is not conditioned on: (a) TD SYNNEX's invoice for Products, (b) Buyer's placement of a renewal purchase order, or (c) Buyer's receipt of a renewal order from its customer or end user.

 

Consumption-Based Subscriptions: For Subscriptions that are billed on a consumption basis, Vendor may set minimum allotted consumption entitlements (“Minimum Usage”) and/or maximum allotted consumption entitlements (“Maximum Usage”). If Buyer consumes less than the Minimum Usage for a particular billing period, TD SYNNEX shall invoice Buyer and Buyer shall pay the applicable fee for the entire Minimum Usage amount regardless of actual usage. If Buyer consumes more than the Maximum Usage for a particular billing period (“Overage”), TD SYNNEX shall invoice Buyer and Buyer shall pay the applicable fees for the Maximum Usage plus any applicable fees for the Overage amount.

 

Consent to Move End Users for Default: If Buyer defaults on these Terms and Conditions, TD SYNNEX reserves the right to move Buyer's customers or end users to another reseller or other provider to avoid interruption of access by the customer or end user.

 

Unauthorized Activity, Insolvency:  If Buyer or its customer or end user becomes Insolvent (as defined below) or files for dissolution, or is subject to a security breach or hacking incident, which may result in unauthorized activity or charges, Buyer shall remain fully liable to TD SYNNEX for all payments due under these Terms and Conditions even if such amounts are the result of unauthorized activity or charges against the customer’s or end user’s account.  “Insolvent” or “Insolvency” shall mean that a party is unable to pay its debts as they come due, has filed for protection under a bankruptcy and insolvency act or has obtained relief for its debts in an assignment for the benefit of creditors.

 

Other Security Obligations: Buyer shall be solely responsible for any and all activity under its portals and accounts. Buyer will ensure that (i) only its authorized representatives are given access to the portals and accounts, and (ii) its authorized representatives will access and use the portals and accounts responsibly and in a secure manner. Buyer must implement and enable a multifactor authentication (“MFA”) process to access its portals, accounts and any other underlying service. Furthermore, Buyer shall ensure that its customer and/or end user implements and uses MFA processes to secure the access to their portals, accounts or any underlying service.  Buyer will defend, indemnify and hold harmless TD SYNNEX for any claims arising out of or related to Buyer’s breach of its obligations in this section.

 

10. BUYER'S OBLIGATIONS

 

Compliance with Laws: Buyer represents and warrants that it will comply with all applicable laws, codes, directives, ordinances, and regulations. Buyer further acknowledges and agrees that the Products are subject to the export control laws and regulations of the United States, including, but not limited to, the Export Administration Regulations, and sanctions regimes of the U.S. Department of Treasury, Office of Foreign Asset Controls. Buyer shall not, without prior U.S. government authorization, export, reexport, or transfer any Products, either directly or indirectly, to any country subject to a U.S. trade embargo, or to any resident or national of any such country, or to any person or entity listed on the "Entity List" or "Denied Persons List" maintained by the U.S. Department of Commerce or the list of "Specifically Designated Nationals and Blocked Persons" maintained by the U.S. Department of Treasury. In addition, Buyer may not export, re-export, or transfer Products to an end-user engaged in activities related to weapons of mass destruction. Such activities include, but are not necessarily limited to, activities related to the design, development, production, or use of: (1) nuclear materials, nuclear facilities, or nuclear weapons; (2) missiles or support of missiles projects; (3) chemical or biological weapons; and 4) life support systems, human implantation, or any other application where Product failure could lead to loss of life or property damage.

 

Vendor Restrictions: Buyer acknowledges and agrees that some Product sales are limited to a specified territory and shall not sell Products outside that territory. Such sales may constitute copyright or trademark infringement. Products purchased by Buyer may also be subject to additional usage restrictions or authorizations or terms and conditions imposed by the product Vendor. Buyer is responsible for ensuring compliance with any such restrictions, authorizations or terms and conditions. Buyer shall comply with any applicable rights of third parties regarding Products, including software or other intellectual property, such as patents, copyrights, and user licenses.

 

Anti-Bribery Anti-Corruption: Each party agrees it has not and will not in the future directly or indirectly offer or pay, or authorize the offer or payment of, any money or anything of value in an effort to influence any government official or any other person in order to improperly obtain or retain business or gain an improper business advantage, and has not accepted, and will not accept in the future, any such payment.

 

Software: Software is the machine-readable (object code) version of computer programs ("Software"). Buyer shall not, directly or indirectly, modify the features or functionality of, copy or create derivative works using all or any portion of, decompile, or otherwise reverse engineer or attempt to reverse engineer or derive source code, techniques, algorithms or processes from the Software or permit or encourage any third-party to do so. Buyer's use of Software and any related documentation is governed by the Software's applicable license agreements. Software embedded in or bundled with hardware must be used solely with the device for which it was intended and may not be transferred separately. If agreed to between the parties, Buyer authorizes TD SYNNEX to accept, on Buyer's behalf, any end-user license agreement, or similar agreement for Products. Buyer shall secure this same authority from its end user. Buyer acknowledges that Vendor or Vendor's third-party licensors will provide any license required to use the Product and not TD SYNNEX.

Records and Audit: Buyer shall keep complete and accurate books and records for seven (7) years from the date of the purchase or longer if required by applicable law. Buyer will allow TD SYNNEX to audit records related to transactions under these Terms and Conditions.

 

Refunds: Buyer will reimburse to TD SYNNEX any funds TD SYNNEX has provided to Buyer as a pass-through from the Vendor ("Pass-Through Funds") in the following instances: (1) TD SYNNEX is obligated to return the Pass-Through Funds to the Vendor, or (2) TD SYNNEX provided the Pass-Through Funds to Buyer but did not receive the Pass-Through Funds from the Vendor. These Pass-Through Funds include but are not limited to discounts, fees, and marketing funds. TD SYNNEX may also recover such Pass-Through Funds by offsetting any amounts due to Buyer from TD SYNNEX.

 

Notices and Communications: Buyer consents to receive all communications from TD SYNNEX or Vendor regarding Products and shall promptly notify TD SYNNEX in writing of all changes to Buyer's name, address, and control/ownership of its assets. Additionally, Buyer consents to allow TD SYNNEX to contact Buyer's customers and end users regarding Products.

 

Indemnification: Buyer will indemnify, defend, and hold TD SYNNEX harmless from and against any and all liabilities, losses, and damages (including but not limited to, reasonable attorney's fees, and costs of establishing rights to indemnification) for any claim including: (i) breach by Buyer of any warranty, representation, or covenant under these Terms and Conditions; (ii) breach or violation by Buyer of any agreement with a Vendor or the rights of a Vendor, respectively; (iii) non-compliance with requirements of these Terms and Conditions; (iv) claims arising from Buyer's negligence or willful misconduct; (v) claims arising from (1) TD SYNNEX's compliance with Buyer's designs, specifications or instructions; (2) modifications of any Product by anyone other than TD SYNNEX; or (3) use or sale of Products in combination with other products or in violation of the Vendor's applicable specifications and/or documentation.

 

Code of Conduct: Buyer shall comply with the requirements of TD SYNNEX's then current Code of Conduct. The current TD SYNNEX Code of Conduct is located at https://s22.q4cdn.com/848111767/files/doc_downloads/governance_documents/2023/Code-of-Conduct_English.pdf.

 

11. U.S. GOVERNMENT SALES

 

Product Sourcing Restrictions: Buyer has an affirmative duty to notify TD SYNNEX in writing during the quotation, request, and order process of any product sourcing restrictions, including the Trade Agreement Act ("TAA"), Buy American Act, or other sourcing restrictions that apply to the Products.

 

Commercial Items: TD SYNNEX is a distributor of "Commercial Items" as defined in FAR 2.101. TD SYNNEX does not intend to sell Products to the U.S. Government or a higher-tier contractor that fail to meet the “commercial item” definition in FAR 2.101. Accordingly, TD SYNNEX agrees only to the clauses in the Federal Acquisition Regulation ("FAR") and agency FAR supplements (as applicable based on the U.S. Government customer) that are explicitly required to be inserted in a subcontract for commercial items, as set forth in FAR 52.244-6(c)(1) or an agency FAR supplement. In accordance with FAR 12.211, Buyer will receive only those rights in technical data customarily provided to TD SYNNEX by the Vendors. By no means will this be interpreted as providing to Buyer unlimited rights in data, software, or intellectual property rights provided by the Vendor or any other third party. To the extent Buyer is not an Authorized GSA Reseller under these Terms and Conditions, TD SYNNEX specifically rejects the requirements of the: (i) Trade Agreements Act, FAR 52.225-5 or DFARS 252.225-7021; and (ii) the Buy American Act, FAR 52.225-1 or DFARS 252.225-7001 (the “Acts”). Both parties represent they are in compliance with Covered Telecommunications Equipment or Services FAR 52.204-25, and as applicable DFARS 252.204-7018. TD SYNNEX does not accept any Preference for Domestic Specialty Metals regulations unless the original equipment manufacturer expressly represents and warrants that the Products provided through TD SYNNEX are compliant.

 

12. GENERAL

 

Entire Agreement: These Terms and Conditions, along with (a) the terms and conditions on any TD SYNNEX invoice, (b) the terms and conditions of the TD SYNNEX credit application, and (c) the terms and conditions of any other agreement signed by authorized representatives of both Buyer and TD SYNNEX, constitute the entire agreement of the parties with respect to all sales by TD SYNNEX to Buyer, and supersedes any and all prior negotiations, representations and agreements, whether written or oral, between the parties. 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 amendment or addendum to these Terms and Conditions; (2) these Terms and Conditions; and (3) the terms and conditions of TD SYNNEX’s Buyer credit application. 

Each party acknowledges that no representations, inducements, promises or agreements, orally or otherwise have been made by any party. No other agreement, statement or promise modifies these Terms and Conditions unless it is in writing and signed by both parties. Any TD SYNNEX waiver or default of one or more of these Terms and Conditions is not a waiver of the remaining Terms and Conditions or of any future defaults. 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 its rights.

 

Governing Law and Venue:

1. Canada:  All contracts for the sale of the Products involving TD SYNNEX’s Canadian entities shall be governed and construed according to the laws of the Province of Ontario and the parties irrevocably attorn to the jurisdiction of the courts of Ontario. Any provision of these terms and conditions that is prohibited or unenforceable under the laws of the Province of Ontario shall be ineffective to the extent of such prohibition or unenforceability, without impairing or invalidating the remaining provisions of these terms and conditions. The venue for any disputes arising out of any sales agreement shall be, at TD SYNNEX’s sole and exclusive option, Toronto, Ontario, or the courts with proper jurisdiction at Buyer's location. For Buyers situated in Alberta, to the extent permitted by law, Buyer hereby waives its rights, benefits or protection given to Buyer in the Judicature Act and the Seizures Act (Alberta). For Buyers situated in Saskatchewan, Buyer agrees that the Limitation of Civil Rights Act shall have no application to these terms and conditions of sale. ALL SALES TRANSACTIONS EXCLUDE THE APPLICATION OF THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.

 

2. United States:  All contracts for the sale of the Products involving TD SYNNEX’s U.S. entities shall be governed and construed according to the laws of the State of Florida notwithstanding any choice of law provisions. Any provision of these Terms and Conditions that is prohibited or unenforceable under the laws of the State of Florida shall be ineffective to the extent of such prohibition or unenforceability, without impairing or invalidating the remaining provisions of these Terms and Conditions. The venue for any disputes arising out of these Terms and Conditions shall be, at TD SYNNEX's sole and exclusive option, Pinellas County, Florida or the courts with proper jurisdiction at Buyer's location. ALL SALES TRANSACTIONS EXCLUDE THE APPLICATION OF THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.

 

Force Majeure: TD SYNNEX is not liable for failures to perform (including, without limitation, delays in delivery) due to causes beyond its reasonable control (for example, acts of nature, acts or omissions of Buyer, operational disruptions, man-made or natural disasters, acts of war or terrorism, government interference, epidemic medical crises, materials or Product shortages, strikes, criminal acts, delays in delivery or transportation, riot, unavailability of 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).

 

Data Protection and Personal Information: Buyer acknowledges that customer and end user personal information is necessary for customers and end users to access or use certain Products. Buyer agrees to provide such personal information as requested by the Vendor to both TD SYNNEX and the Vendor. Buyer represents and warrants that Buyer, will comply with applicable data protections laws, including providing notice and properly obtaining the consent of the customer or end user to provide said personal information to TD SYNNEX and the Vendor for the purpose of fulfilling the transaction.

 

Trademarks: Buyer will not use TD SYNNEX's name, logos, trademarks, or other intellectual property rights without TD SYNNEX's written consent. Buyer grants TD SYNNEX the limited right to use its logos and trademarks in any marketing and promotional materials associated with these Terms and Conditions.

 

Accurate Information: Buyer represents and warrants that the information provided in any documents to TD SYNNEX will be true and correct in all material respects and contains all information necessary so that the information is not materially misleading. Buyer acknowledges that TD SYNNEX is relying on the accuracy of the information provided by Buyer.

 

Assignment and Survival of Obligations: Buyer may not assign these Terms and Conditions without TD SYNNEX's prior written consent. TD SYNNEX may, without Buyer's consent, assign these Terms and Conditions, including all its amendments, attachments and addenda, and its rights and obligations to its successors, assigns or a purchaser of all or substantially all of its assets. All benefits of these Terms and Conditions will enure to the benefit of the assignee. All obligations under these Terms and Conditions that by their nature extend beyond termination, including without limitation all monetary obligations of either party to the other under these Terms and Conditions, will survive termination, remain in effect and bind all successors and assigns.

 

Independent Contractors. The parties will act as independent contractors in the performance of these Terms and Conditions and neither party shall act as agent for or partner of the other party.

 

Confidentiality Each party acknowledges that during performance of its obligations pursuant to these Terms and Conditions, it may obtain certain information specifically marked as confidential or proprietary. Each party hereby agrees that all such information disclosed to it by the other party, its parent, affiliates, subsidiaries, whether before or after the effective date, shall be and was received in strict confidence, shall be used only for purposes of these Terms and Conditions, and shall not be disclosed without the prior written consent of the other party, except as may be necessary by reason of legal, accounting or regulatory requirements beyond either party's reasonable control. This confidentiality requirement shall survive for a period of one (1) year after the date of such disclosure.

 

Language. The parties confirm that it is their wish that these Terms and Conditions, as well as all other documents relating hereto, including all notices, have been and will be drawn up in the English language only. Les parties aux présentes confirment leur volonté que cette entente, de même que tous les documents, y compris tout avis, qui s’y rattachent, soient rédigés en langue anglaise.