Thank you for choosing Insight as your trusted cloud reseller partner! These terms and conditions (“Terms of Sale”) govern the purchase, access to, and use of the Cloud Services from Insight Direct USA, Inc., on behalf of itself and its U.S. affiliates (“Insight” or “We”) by the customer, including its affiliates, and/or its end users (collectively, “Client” or “You” or “Your”) identified in Your Cloud Services order form (the “Order”). These Terms of Sale are entered into by Insight and Client and are incorporated into and made part of Your Order, unless Insight and Client have signed a separate agreement which expressly governs the receipt, use of and/or access to Cloud Services (“Separate Agreement”), in which case that separate agreement will govern.  Insight and Client may collectively be referred to as the “Parties” or individually as a “Party.”

Please read these Terms of Sale carefully and note that any additional or different terms or conditions in any form delivered by You are deemed to be material alterations and notice of objection to (and rejection of) them is hereby given. Any capitalized terms which are not defined in the text can be found in the Definitions section of these Terms of Sale and/or Your Order.

1.     Scope of Cloud Services

1.1   Insight as Reseller. Insight is an authorized reseller of third-party Cloud Services which are performed or otherwise provided by the applicable Service Provider or through its affiliates, subcontractors, successors or assigns. Insight is in no way involved with or connected to the manufacturing or production of the Cloud Services. This means We do not perform any aspect of the Cloud Services nor do We have any access to Client Data which You may store in or process using the Cloud Services. We also do not perform any services related to implementation or configuration of Cloud Services (unless We’ve agreed to do so under the Separate Agreement).

1.2   Additional Terms and Order of Precedence. While these Terms of Sale will apply to all Order Forms for Cloud Services, some Cloud Services may have unique or specific terms which apply only to those Cloud Services on the Order Form, and which may be included as a schedule or attachment to Your Order Form or as a “click-through” (“Service-Specific Terms”). In some cases, the Service Specific terms may conflict with these Terms of Sale or other terms and conditions between You and Insight. If this happens, the order of precedence in which terms related to the Cloud Services will apply is as follows:

  1. Service Provider Terms.
  2. Service-Specific Terms.
  3. These Terms of Sale/the Separate Agreement.

1.3   Cloud Services Use, Rights, and Restrictions

1.3.1       Service Provider Terms. Your use of the Cloud Services is governed by the Service Provider Terms, and You assume all risks, costs and expenses in connection with Your use of the Cloud Services (except as may be otherwise set forth in the Service Provider Terms). You are solely responsible for periodically reviewing any designated Service Provider Terms URL (or successor URL, if the Service Provider makes an update) in order to understand and perform Your obligations in accordance with the Service Provider Terms.

UNLESS OTHERWISE STATED IN THE SERVICE PROVIDER TERMS, SERVICE PROVIDER TERMS IN EFFECT AT COMMENCEMENT OF EACH SUBSCRIPTION PERIOD WILL REMAIN IN EFFECT UNTIL THE END OF CLIENT’S THEN-CURRENT SUBSCRIPTION PERIOD. NOTWITHSTANDING THE FOREGOING, INSIGHT RESERVES THE RIGHT TO MAKE CHANGES TO THESE TERMS OR TO THE SERVICE PROVIDER’S OFFERING TO THE EXTENT THE SAME CHANGES ARE IMPOSED BY THE SERVICE PROVIDER.

1.3.2       Compliance with Service Provider Terms.  You will comply with the Service Provider Terms and look solely to Service Provider for compliance with the Service Provider’s responsibilities under the Service Provider Terms.

1.3.3       Insight Not Liable. Since Insight is not a party to the Service Provider Terms, Insight shall not be liable for (i) any claim, loss, damages, costs, or expenses arising out of either Your or Service Provider’s performance under or breach of the Service Provider Terms or (ii) any breach by Service Provider of Service Provider’s obligations under the Service Provider Terms, or for any loss, damages, costs, or expenses incurred by Client arising out of or in connection with any provisions or any actions taken by Service Provider under the Service Provider Terms, including, without limitation, any actions against Client to enforce any provisions therein.

1.3.4       Additional Usage Terms. In addition to the Service Provider Terms, You are also subject to the following usage notices and limitations:

  • Territory. You are purchasing Cloud Services for use within the Territory. Unless otherwise set forth in Your Order Form or the Service Provider Terms, the Territory is worldwide.
  • Service Provider Facilities. Service Provider provides the Cloud Services from Service Provider Facilities in accordance with the Service Provider Terms, which may include locations worldwide. There is no guarantee that any Service Provider Facility, or part thereof, is dedicated to Your sole use, unless otherwise set forth in the Service Provider Terms or as agreed by You and Service Provider directly.
  • High Risk. The Cloud Services are not designed for use in life support, life sustaining, nuclear or other applications in which failure could reasonably be expected to result in personal injury, loss of life or catastrophic property damage.
  • Business Purpose. You will use the Cloud Services for Your own use and for legitimate business purposes only. You are not permitted to resell, sub-lease, sub-rent, or sub-license the Cloud Services to any third party.

1.3.5         Intellectual Property. Each of Client, Insight, and Service Provider will own all rights, title and interest in its respective intellectual property, and You will not infringe, misappropriate, or otherwise violate any of these rights, title, or interests (and We agree that We will not violate Yours). No transfer of any intellectual property is contemplated under these Terms of Sale. Any license required for You to access or use the Cloud Services along with Service Provider’s specific obligations with respect to intellectual property (including indemnification, if any), will be set forth in the Service Provider Terms.

1.4   Your Responsibilities. You are responsible for the activity in Your Cloud Services accounts, including the provision of additional licenses, instances, and consumption of Cloud Services resources (as applicable). To that end, You are responsible for (a) maintaining the security of Your networks, servers, applications and access codes, including, without limitation, the backup and other protection of Your system and data against loss, damage or destruction by third parties; (b) providing information reasonably requested by Insight or Service Provider, including, without limitation, any technical and related information, and any consents that Insight or Service Provider may need from You which are necessary for Service Provider to enable the Cloud Services; and (c) working with Insight and Service Provider to resolve performance issues as necessary. It is also Your responsibility to safeguard and maintain account information and any access codes you receive for the Cloud Services. We may therefore assume, without inquiry or liability, that any person who has Your account information or access codes has the authority to access or modify Your account or the Cloud Services, or modify Your account, unless you notify Us immediately in writing of any unauthorized use of such information or codes.

2      Fees and Invoicing

2.1   Fees. Client shall pay Insight the Fees identified in the Order.

2.2   Invoicing/Payment. Fees for the Cloud Services will commence from the date the Cloud Services are made available to You by Service Provider and are non-refundable. Fees include: (a) recurring charges for identified calendar month or other mutually-agreed-upon billing period; and (b) non-recurring set up and other one-off charges (including but not limited to domain set-up charges), if any, for the identified calendar month or other mutually agreed-upon billing period. Insight will invoice You the Fees in accordance with the frequency set forth in the Order Form. Unless otherwise agreed with Insight, You must pay all invoices in full within thirty (30) days of the invoice date.

2.3   Applying for Insight Credit. To apply for credit in connection with such purchase, Client must establish an account with Insight. Client agrees to promptly: (i) provide certain accurate, current and complete information as reasonably required by Insight to process credit application or Order, or by Service Provider to provision the Cloud Services or provide technical support ; and (ii) maintain and update such information to keep it accurate, current and complete, including but not limited to, changes to Client’s billing address or e-mail address, the names of its authorized personnel, or changes in applicable credit card information (including, without limitation, any expiration or cancellation of the credit card). If Client has selected to use a credit card as its method of payment, then Client authorizes Insight to charge that credit card for such Fees (and any applicable credit card processing fees) until Cloud Services are terminated in accordance with these Terms of Sale.

2.4   Usage-Based Billing. You agree that all future increases in quantities used, enabled or consumed for existing purchased Cloud Services will be invoiced on an actual use basis. If new Cloud Services or features are procured, You may need to execute additional forms for any such net-new Cloud Services.

2.5   Taxes. Fees or prices expressed in an Order Form exclude taxes of any kind. Federal, state and local sales, use and excise taxes and all similar taxes and duties, (excluding taxes based on Insight's income, assets or net worth), are solely Your responsibility. You may provide Insight a valid tax exemption certificate authorized by the appropriate taxing authority prior to the start date of Your Cloud Services, which will be subject to review and acceptance by Insight.  Client is solely responsible for ensuring the tax exemption certificate remains valid, up to date, and accurate at all times.

2.6   Cloud Service Credits. Your Cloud Services may be subject to Service Level Agreements, or SLAs, which are set by the Service Provider. If available and applicable to your Cloud Services, the Service Provider may offer Cloud Service credits if such SLAs are not met. If You believe You are owed a credit by the Service Provider, You must promptly inform Insight so that We can provide You any assistance, as necessary, to claim a Cloud Service credit from the Service Provider. Insight will credit your account within a reasonable time after We receive the credit from the Service Provider. Because the Service Provider must verify any request for credit, You agree that Insight is not obligated to provide any Cloud Service credit if Service Provider is unable to verify, or otherwise rejects Your claim or otherwise does not provide the Cloud Service credit for any reason. ANY CREDITS OR TERMINATION RIGHTS DESCRIBED UNDER THE SLA, IF ANY ARE PROVIDED AS PART OF THIS TRANSACTION, SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY IN CONNECTION WITH ANY TOPIC SPECIFICALLY ADDRESSED BY ANY SUCH SLA’s.

3      Term; Termination/Suspension Rights; Effect

3.1   Order Term. Unless earlier terminated in accordance with this Section, the initial term of Client’s subscription of Cloud Services shall commence on the later of (i) the Effective Date, or (ii) the date the Cloud Services are made available to Client by the Service Provider as notified by the Service Provider to Insight, (“Initial Term”, which is coterminous with the Initial Subscription Period identified on the Order). Upon expiration of the Initial Term, Client’s subscription of Cloud Services will automatically renew for additional, successive terms (each a “Renewal Term”) unless Client or Insight provides notice of non-renewal in accordance with Section 4.5.6.2 (Notices – Routine) or the Order Form specifies otherwise. Unless otherwise set forth on an Order Form, written notice of non-renewal for a monthly Subscription Period must be given to Insight at least 30 days prior to the end of the then-current Subscription Period. Notice of non-renewal for a Subscription Period of greater than 1 month must be given at least 45 days prior to the end of the then-current Subscription Period.

3.2   Termination Rights.

3.2.1       For Cause.

3.2.1.1    By Insight. Without prejudice to any other rights to which it may be entitled, Insight may terminate the Order, in whole or in part, with immediate effect, if Client materially breaches these Terms of Sale and fails to remedy that breach within 30 days of receipt of Insight’s written notice of such breach, or if Client breaches the Service Provider Terms or Service-Specific Terms. A material breach, includes but is not limited to: (i) Client’s failure to pay Fees when due, (ii) rejection, for any reason, of any charges for Fees using a credit card provided by Client, (iii) Client’s breach of Section 5.1 (Compliance With Laws), or (iv) unauthorized use of or access to the Cloud Services. or use of or access to the Cloud Services outside of the scope of these Terms of Sale. In addition, If Service Provider suspends or terminates any part or all of the Cloud Services in connection with any “Use Issues” as defined in this paragraph, Client shall be deemed to have been in material breach of the Order. “Use Issues” means Client’s (and/or any Client end user’s) misuse of Cloud Services in violation of the Order, the Service Provider Terms or Service-Specific Terms, or due to any other negligent or wrongful act or omission of Client in connection with Client’s use of the Cloud Services. Notwithstanding anything to the contrary in this paragraph, if Service Provider terminates any part or all of the Cloud Services in connection with any Use Issues, Insight may terminate the Order, in whole or in part, upon written notice with immediate effect unless indicated otherwise in such notice. Client is responsible for Insight's costs of collection for any payment default, including, but not limited to, court costs, filing fees and attorneys' fees. In addition, if payments are not received as described herein, Insight reserves the right to, and may, in its sole discretion, exercise one or more of the following rights: suspend or terminate Cloud Services, and/or revoke or amend any Insight-provided credits, discounts, incentives, or concessions provided by Insight to Client under the Order.  Insight may exercise these rights in addition to any other rights, remedies, or recourse Insight may have at law, in equity, or otherwise.

3.2.1.2    By Client. Client may terminate the Order if Insight materially breaches these Terms of Sale and fails to remedy that breach within 30 days after receipt of Client’s written notice of such breach. Insight shall not deemed in default if Service Provider withholds provision of Cloud Services or suspends or terminates Client’s access to, or use of, Cloud Services, or any part thereof, as allowed under this Section 4.1. Any such action by Service Provider does not give Client the right to terminate the Order.

3.2.1.3    For Cloud Services Not Provisioned.  If Insight and Client enter into the Order before Service Provider agrees to provide the applicable Cloud Services to Client, and if Service Provider then refuses to provision such Cloud Services for any reason, Insight may immediately terminate the Order, without any liability for such termination, upon written notice to Client. Insight shall not be deemed in default if Service Provider withholds provision of Cloud Services or suspends or terminates Client’s access to, or use of, Cloud Services, or any part thereof, as allowed under this Section 3. Any such action by Service Provider does not give Client the right to terminate the Order.

3.2.2       For Convenience.

3.2.2.1    By Insight. The Order will automatically terminate with immediate effect, without any liability for such termination, upon written notice to Client if Service Provider terminates its agreement with Insight to resell Cloud Services.

3.2.2.2    By Client. Once Cloud Services are provisioned (made available for use by Client), an Order may generally not be terminated or suspended by Client for convenience. Client may have certain rights to terminate Cloud Services as expressly provided under the Service Provider Terms; however, Client must provide Insight prior written notice of Client’s election to exercise such termination rights, and any such election shall be exercised in accordance with the applicable Service Provider Terms.

3.3   Service Provider Suspension/Termination Rights. The provision of the Cloud Services may be withheld or the Cloud Services may be suspended or terminated, in whole or in part, by Service Provider, (a) should Client use the Cloud Services in violation of the Service Provider Terms, or any Service-Specific Terms, if applicable; or (b) under circumstances described in the Service Provider Terms. Insight will determine whether any such action by Service Provider gives Client the right to terminate the Order. To the extent that Fees continue to accrue for the duration of any withholding or suspension of the Cloud Services, or any part thereof based upon the Subscription Period, Client shall be responsible to pay for such Fees in accordance with the Order. In addition, if any Cloud Services disconnection or suspension pursuant to this Section 3.3 results in the requirement of a reasonable reinstatement fee or if Service Provider suspends any Cloud Services due to Client’s acts or omissions and requires an increase in the fees payable by Insight to Services Provider as a prerequisite for Service Provider to resume making the Cloud Services available for Client, Client agrees to pay such additional fees as invoiced by Insight.

3.4   Effect of Termination. Termination or expiration of the Order shall not relieve either party of its rights or obligations incurred prior to suspension, termination, or expiration that by their nature or term survive, including any and all payments due and payable to Insight under the Order.  For the avoidance of doubt, and except as otherwise agreed by the Parties or as set forth in the Service Provider Terms, upon the termination effective date or expiration effective date of the Order, You shall cease accessing and/or using the Cloud Services.

3.4.1       Payment Upon Breach. If all or part of the Order is terminated by Insight for cause, Client shall pay Insight any unpaid Fees currently owed, as well as the Fees that would be due for the remainder of the unexpired Subscription Period and any Fees for Cloud Services performed prior to termination.  All such fees shall become immediately due and payable upon any such termination. Client will not be eligible for any refund of prepaid Fees if Insight terminates the order for cause.

3.4.2       Provision of Cloud Services after Client’s Termination. Notwithstanding anything to the contrary in this Section, if despite Client’s election of termination, or any notice to terminate Cloud Services or any part thereof, Client: (i) requests the continued delivery of the Cloud Services (or part thereof) after the intended termination effective date indicated in Client’s written notice, or (ii) otherwise continues to have access to and use such Cloud Services after the intended termination date, then, even if such request or access and use is temporary, to the extent Service Provider invoices Insight for the provision of such Cloud Services to Client, Client shall pay Insight the Fees. These Terms of Sale and the Service Provider Terms will survive and govern Client’s purchase and use of Cloud Services, respectively, until the Cloud Services are terminated by Service Provider.

4      Additional Terms and Conditions

4.1   Compliance with Laws. Client shall comply with, and agrees that it is its sole responsibility to adhere to, all applicable laws in connection with Client’s use of the Cloud Services. Cloud Services may also be subject to export regulations. Client acknowledges this possibility and accepts full responsibility for and agrees to comply fully with applicable laws and all export regulations, including obtaining export licenses. Client represents and warrants that no technical data will be exported under the Order except in compliance with all requirements of the International Traffic in Arms Regulations (ITAR), Export Administration Regulations (EAR), or any other applicable regulations. Client shall be solely responsible for any and all claims, losses, costs, liability and charges, including reasonable attorneys’ fees, incurred by Insight as a result of Client’s breach of this provision.

4.2   Warranty Disclaimer. INSIGHT PROVIDES NO WARRANTIES AND SPECIFICALLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, IN CONNECTION WITH THE CLOUD SERVICES, ANY TECHNICAL SUPPORT PROVIDED BY SERVICE PROVIDER, OR ANY SERVICE PROVIDER FACILITIES. EXCEPT AS PROVIDED HEREIN, THE CLOUD SERVICES AND ANY TECHNICAL SUPPORT PROVIDED BY SERVICE PROVIDER ARE SOLD BY OR OTHERWISE PROVIDED BY INSIGHT TO CLIENT "AS IS" AND CLOUD SERVICES, TECHNICAL SUPPORT PROVIDED BY SERVICE PROVIDER, AND SERVICE PROVIDER FACILITIES UTILIZED ARE WITHOUT WARRANTY OF ANY KIND FROM INSIGHT, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, PERFORMANCE, OR TRADE PRACTICE.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CLIENT FROM INSIGHT (INCLUDING, WITHOUT LIMITATION, ITS SALES REPRESENTATIVES), OR FROM INSIGHT’S OR SERVICE PROVIDER’S WEBSITE, WILL CREATE ANY WARRANTY BY INSIGHT NOT EXPRESSLY STATED IN THESE TERMS OF SALE.

4.3   Confidentiality. “Confidential Information” means any non-public information, including but not limited to, intellectual property, pricing, customer lists, personally identifiable health information, financial information, access codes, sales and marketing plans of the other party, its affiliates, or its clients, customers, service providers, contractors, or licensors (collectively, “Vendors”). Each party (“Receiving Party”) will maintain in strict confidence and safeguard any Confidential Information disclosed to it by the other party (“Disclosing Party”). Each party must use the same degree of care in protecting and preserving Confidential Information as it uses to protect its own confidential and proprietary information, but shall never use less than what would be a reasonable standard of care. If Client is a federal or state governmental entity, then Client agrees on behalf of the other agencies of the federal or state government who may benefit from the Cloud Services that such agencies shall be subject to the same obligations of confidentiality as set forth in these Terms of Sale. Each party agrees to use any Confidential Information only for the purpose of conducting business with each other in the manner contemplated by the Order and restrict disclosure to only those personnel who have a legitimate need to know. Each party will bind such personnel to obligations of confidentiality to the same extent it is bound by these Terms of Sale. The obligations under this paragraph do not apply to information that: (i) is or becomes generally known or in the public domain through no act or omission of the other party; (ii) was lawfully in a party’s possession without restriction as to use or disclosure before its receipt from the other party; (iii) is received from, or was made available to, a third party without any obligation of confidentiality; (iv) was independently developed by the party; (v) is otherwise permitted to be disclosed under the Order; or (vi) is disclosed with the prior written consent of the Disclosing Party. Client agrees Insight may disclose Client’s Confidential Information to Service Provider as reasonably necessary for, or requested by, Service Provider to provide the Cloud Services or any technical support related to the Cloud Services. If a Receiving Party is required to provide Confidential Information to any court, government agency or party pursuant to a written court order, subpoena, regulation or process of law, the Receiving Party must first promptly notify the Disclosing Party so that the Disclosing Party may have a reasonable opportunity to seek a protective order or other appropriate remedy from the proper authority; and to the extent permitted by law, shall only disclose that portion of Confidential Information that is legally required. Each party agrees that in the event of a breach or threatened breach of any provisions within this paragraph, the Disclosing Party is entitled to seek specific performance and injunctive or other equitable relief, in any convenient venue or forum of competent jurisdiction without the necessity of posting bond or security, as a remedy for such breach or anticipated breach. Any such relief is in addition to, and not in lieu of any other remedies available, including, without limitation, monetary damages.  For the avoidance of doubt, CONFIDENTIAL INFORMATION IS PROVIDED “AS IS” AND WITH ALL FAULTS.  Neither party makes any representation or warranty, express or implied, as to the accuracy or completeness of its Confidential Information.

4.4   Indemnification. Client shall defend, indemnify, and hold harmless Insight, and its respective affiliates, subsidiaries, shareholders, directors, officers, employees, agents, successors, and assigns for, from, and against any losses, damages, penalties, costs, and expenses, including, without limitation, reasonable attorneys’ fees incurred by Insight in connection with any claims or actions by Service Provider or other third parties arising out of or resulting from: (i) Client Data passing through the Cloud Services and/or Service Provider’s network to or from the Client, (ii) unauthorized use or misuse of Cloud Services by Client, its employees or agents (excluding any claims that the Cloud Services, as provided by Service Provider, infringe third-party intellectual property rights), (iii) Client’s failure to comply with applicable law, (iv) Client’s failure to pay Insight for the full Term, regardless of Service Provider performance issues, and/or (v) Client’s failure to comply with these Terms of Sale, the Service Provider Terms, or any Service-Specific Terms.

4.5   Limitation of Liability.

4.5.1       Direct Damages Limitation. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO THE SUBSECTION 4.5.2 BELOW TITLED “INDIRECT/SPECIAL DAMAGES,” INSIGHT’S MAXIMUM LIABILITY TO CLIENT FOR DAMAGES ARISING IN ANY WAY OUT OF THE ORDER IS LIMITED TO PROVEN DIRECT DAMAGES, NOT TO EXCEED THE AMOUNT PAID OR PAYABLE BY CLIENT TO INSIGHT FOR THE CLOUD SERVICES PROVIDED TO CLIENT DURING THE SUBSCRIPTION PERIOD IN WHICH THE EVENT CAUSING SUCH CLAIM OCCURRED. UNDER NO CIRCUMSTANCES WILL INSIGHT’S AGGREGATE MAXIMUM LIABILITY TO CLIENT FOR DAMAGES IN RELATION TO OR ARISING FROM THE ORDER OR THE SUPPLY OF CLOUD SERVICES EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO INSIGHT FOR THE CLOUD SERVICES UNDER THE ORDER DURING THE PRECEDING TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

4.5.2       Indirect/Special Damages. EXCEPT FOR FRAUD, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BAD FAITH, CLIENT’S PAYMENT OBLIGATIONS, AND OBLIGATIONS UNDER THE SUBSECTION TITLED “INDEMNIFICATION,” NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, NOR DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE, ARISING IN ANY WAY OUT OF THE ORDER, ANY OF THE DOCUMENTS REFERENCED IN THE ORDER (OR ANY ADDENDA OR AMENDMENT THERETO), OR THE USE OF OR INABILITY TO USE ANY CLOUD SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

4.5.3       Limitations/Applicability. BOTH PARTIES UNDERSTAND AND AGREE THAT THE LIMITATIONS OF LIABILITIES FOR EACH PARTY SET FORTH IN THESE TERMS OF SALE ARE REASONABLE AND THEY WOULD NOT HAVE ENTERED INTO THE ORDER WITHOUT SUCH LIMITATIONS. FURTHER, EACH PARTY AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE ORDER MUST BE FILED WITHIN 1 YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE.

4.5.4       Processing of Personal Data. Insight will process limited business contact data of Client employees for the purpose of fulfilling the Order and making any necessary communications to Client regarding the Order and the applicable Cloud Services. Insight will comply with all data protection laws that may be applicable to this processing. Client authorizes Insight to transfer and process any personal data outside of the United States in order to perform the Order, provided that such transfer is made under a legal framework compliant with applicable data privacy laws.

4.5.5       Force Majeure. Except for the obligation to make timely payments, neither party will be liable for any failure or delay in the performance of the obligations under these Terms of Sale due to circumstances beyond its reasonable control, including but not limited to acts of nature, acts of government in either its sovereign or contractual capacity, national emergencies, pandemics, epidemics, acts of terrorism, transportation delays, labor disturbances, work stoppages or loss of electrical power; loss of telecommunications or similar infrastructure. If Service Provider has been hindered or prevented by any cause beyond its reasonable control including, without limitation, the events described in this paragraph, then Insight shall not be liable for Service Provider’s delay or failure in providing the Cloud Services to Client.

4.5.6       Notices.

4.5.6.1    Required Notices. Except as otherwise provided herein, any notice required to be given under these Terms of Sale must be in writing, in English, and addressed to the Parties at the addresses listed later in this subsection. Such notice is considered received: (i) when personally delivered; (ii) one business day after having been sent by overnight mail via a professional carrier; (iii) when sent by fax or electronic mail, receipt confirmed by the applicable method of transmittal; or (iv) if sent by certified or registered mail, within 5 business days of deposit in the mail.

Notices to Insight shall be addressed to: Insight, 2701 E Insight Way, Chandler, Arizona 85286, Attention: Director of Cloud. Legal notices to Insight must be sent with a separate copy to the same address, Attention Legal Department.

Notices to Client shall be addressed to the mailing address on file with Insight or as shown on public records.

4.5.6.2    Routine Notices. Routine communications, including subscription non-renewal notifications and other notices by either party to the other in the normal course of ordering or provisioning Cloud Services, are properly given when: (i) provided in accordance with Section 4.5.6.1 above; or (ii) sent by e-mail, receipt confirmed and addressed to the receiving party at the addresses described in this subsection, as evidenced by the computer records or any archival copy thereof kept in the ordinary course of business by the sender. Routine communications provided by e-mail shall be submitted as follows:

If to Insight, then to CloudEnablement@insight.com.

If to Client, then to Client’s email address on file with Insight.

Routine communications will be deemed received and effective on the date sent if sender sends it before 5:00 p.m. Mountain Standard Time on the receiving party’s business day; otherwise it will be effective on the receiving party’s next business day.

4.5.7       Miscellaneous. If any part of these Terms of Sale is, for any reason, found to be invalid, illegal, or unenforceable, that provision will be severed or reformed to the extent necessary to be enforceable, and all other parts of the Order will remain in full force and effect. Insight may, at its sole option, revise these Terms of Sale from time to time and post the revised terms on its website. Neither party may assign its duties or rights under the Order or these Terms of Sale, whether by operation of law or otherwise, except with the other party's prior written consent; provided that Insight will have the right to assign the Order or these Terms of Sale to an affiliate or corporate successor. A delay or failure to exercise or partially exercise any right under these Terms of Sale does not operate as a waiver, nor will it preclude future exercise of that right or permit, or sanction any subsequent breach of any term or condition.  These Terms of Sale will be binding upon the Parties and their respective successors and assigns.  Insight, Service Provider, and You are independent contractors and these Terms of Sale do not create an agency, partnership or joint venture. You acknowledge and agree that Insight is not an agent or partner of Service Provider or in a joint venture with Service Provider and Insight has no authority to bind Service Provider or to change any terms, conditions, warranties or covenants made by Service Provider.

4.5.8       Governing Law. UNLESS OTHERWISE AGREED IN WRITING IN THE ORDER, THESE TERMS OF SALE AND ALL ORDERS SHALL BE GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF ARIZONA WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN MARICOPA COUNTY, ARIZONA, AND CLIENT CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CLIENT FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Order. Both Parties are solely obligated to address and resolve all disputes associated with these Terms of Sale or any Order, including any damages or injuries to the Client’s affiliates, and all claims related to these Terms of Sale or any Order will be brought by Client in Maricopa County, Arizona as provided in these Terms of Sale.

4.5.9       Arbitration. Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including, but not limited to, statutory, common law, intentional tort and equitable claims capable in law of being submitted to binding arbitration) arising from or relating to the Cloud Services, the interpretation or application of these Terms of Sale or any Order or the breach, termination or validity thereof, the relationships which result from these Terms of Sale or any Order (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories hereto), or Insight’s or any of its affiliates' advertising or marketing WILL BE RESOLVED BY FINAL CONFIDENTIAL AND BINDING ARBITRATION IN MARICOPA COUNTY, ARIZONA, INSTEAD OF IN COURT, except that (a) Client may take claims to small claims court, if Client qualifies for hearing by such court, and (b) if Client fails to timely pay amounts due, Insight may assign Client’s account for collection and the collection agency may pursue such claims in court limited strictly to the collection of the past due debt and any interest or cost of collection permissible under applicable law or these Terms of Sale. Arbitration under these Terms of Sale shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. THE RULES GOVERNING ARBITRATION ARE DIFFERENT THAN THOSE IN COURT. ARBITRATION DOES NOT INVOLVE A JUDGE OR JURY AND REVIEW IS LIMITED, BUT AN ARBITRATOR CAN AWARD THE SAME DAMAGES AS A COURT. EXCEPT AS MAY OTHERWISE BE PROVIDED IN THE AMERICAN ARBITRATION ASSOCIATION RULES OR AS OTHERWISE REQUIRED UNDER APPLICABLE LAW, CLIENT UNDERSTANDS THAT BY INITIATING THIS ARBITRATION PARAGRAPH CLIENT IS GIVING UP ITS RIGHT TO A TRIAL IN COURT OR ADMINISTRATIVE PROCEEDING, EITHER WITH OR WITHOUT A JURY, AS A MEANS BY WHICH TO SETTLE CLIENT’S DISPUTE. Notwithstanding any choice of law provision included in these Terms of Sale, this arbitration agreement is subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16).

4.5.10     No Third-Party Beneficiary. No provisions of these Terms of Sale are intended or shall be construed to confer upon or give to any person or entity other than Insight and Client any rights, remedies or other benefits with respect to the Terms of Sale under the Order.

4.5.11     Entire Agreement. These Terms of Sale and the Order , are the entire agreement between the parties with respect to Client’s purchase of Cloud Services from Insight under the Order and supersedes and replace any previous communications, representations or agreements, oral and written.  Any different or additional terms and conditions provided by Client to Insight are considered material alterations to the Order and these Terms of Sale, are expressly rejected, and will not be binding upon Insight.

Definitions

“Client Data” means any information of, or related to, Client, including, without limitation, (i) any information about Client disclosed by Client or Insight to Service Provider during the Term of the Order, including, without limitation, any Client-issued requirements in connection with the Cloud Services; (ii) any information of Client transmitted or otherwise sent to, or uploaded to, any Service Provider Facilities, and/or any information of Client that resides in any Service Provider Facilities, through or as a result of Client’s purchase or use of the Cloud Services; (iii) any work product or other information of Client developed, generated, or otherwise produced from the use of the Cloud Services; and/or (iv) any information obtained by Service Provider, whether visually, physically, orally, or remotely, from any client facilities during the course of provisioning Cloud Services to Client. Client Data may include Personal Information as defined herein.

“Cloud Service(s)” means (i) the services and any software or other materials described in the Service Provider Terms, and (ii) any ancillary services or offerings provided by Service Provider in connection with such services, as described in the Service Provider Terms and offered by Insight under the Order.

“Fees” means the amounts due for use of the Cloud Services purchased by Client under the Order.

“Personal Information” means information that is identifiable to a particular individual, including but not limited to such person’s name, physical address, telephone number, email address, social security number, or credit card number.

“Service Level Agreement” or “SLA” means the service levels or service level agreements, if any, set forth in the Service Provider Terms.

“Service Provider” means the third-party entity that provides the Cloud Services

“Service Provider Facilities” means any infrastructure of Service Provider or its licensors in connection with the Cloud Services or technical support, including, without limitation, software programs, hardware, data centers, networks, systems, websites, technology, or other facilities or resources provided or operated by, or on behalf of, Service Provider or its licensors in connection with the Cloud Services.

“Service Provider Terms” means, collectively, Service Provider’s description of Cloud Services, terms of use/service, direct agreements entered into with Client, SLAs, if any, and any other terms provided by Service Provider, all of which may be amended or otherwise updated unilaterally by the Service Provider from time to time.

“Subscription Period” means the monthly, yearly or other period as identified in the Order that begins on the date Cloud Services commence for such Subscription Period.

“Term” means collectively, the “Initial Term” and any “Renewal Term,” as those terms are defined in Section 3.1 (Order Term), that begins as of the Effective Date of the Order.




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