Westcon Group Inc. Global Terms and Conditions of Sale

  1. Definitions
    1. Where used in these Terms and Conditions of Sale:
      1. "Authorised Representative" means any person who holds the job title and office of General Manager, Finance Director or Vice-President.
      2. "Buyer" means the entity accepting these Conditions via WGI's eCommerce site, or any of its subsidiaries.
      3. "Conditions" means these Terms and Conditions of Sale.
      4. "Contract" means any agreement for the purchase and sale of Products from WGI to Buyer which result from a Purchase Order submitted to and accepted by WGI.
      5. "Contract Date" means the date upon which a Purchase Order is accepted by WGI.
      6. "Force Majeure" means, without limitation, any acts of God, government, war, terrorism, riot, fire, floods, earthquakes, explosions, strikes, lockouts, cessation of labour, trade disputes, breakdowns, accidents of any kind or any other causes which are beyond the reasonable control of WGI (including delay or shortages by its Suppliers).
      7. "Goods" means any Supplier's goods and/or software, or any instalment or parts thereof, which are supplied by WGI to Buyer pursuant to a Contract, including any Supplier documentation related thereto.
      8. "Non-standard Products" means Goods that are: (a) custom ordered; (b) custom manufactured; (c) custom programmed; (d) built or configured to Buyer's specifications; (e) published as configured, non-standard or non-cancellable on the Supplier's price list; (f) included in any Supplier's policy as non-cancellable; (g) not maintained in WGI's inventory; (h) discontinued, end of life or withdrawn; (i) Goods that the Supplier will not accept on return without imposing any restocking or freight charges; or (j) Services unless the Statement of Work includes a description of cancellation rights.
      9. "Products" means any combination of Goods, Non-standard Products and Services which are supplied by WGI to Buyer pursuant to a Contract.
      10. "Purchase Order" means Buyer's oral, written or electronic order for Products and shall include any order that Buyer places online through WGI's eCommerce tool or transmits via email or facsimile.
      11. "Services" means any Supplier's services which are supplied by WGI to Buyer pursuant to a Contract.
      12. Supplier" means the supplier, licensor, publisher, manufacturer or other third party provider of Products.
      13. "WGI means Westcon Group, Inc. with a registered office at 520 White Plains Road, Tarrytown, NY 10591 and any of its subsidiaries.
    2. As used in these Conditions, (i) any reference to a statute shall be construed as a reference to that statute as amended, re-enacted or otherwise modified from time to time, (ii) the term "including" will always be deemed to mean "including, without limitation", (iii) a definition is equally applicable to the singular and plural forms of the feminine, masculine and neuter forms of the term defined, and (iv) any headings in these Conditions are for convenience only and shall not affect the interpretation of any terms.
  2. General Ordering Terms.
    1. Buyer may purchase Products under these Conditions by issuing a Purchase Order to WGI. Quotes shall not constitute an offer. Only a Purchase Order submitted by Buyer shall constitute an offer to contract subject to these Conditions, however, a Purchase Order shall not be deemed a Contract unless and until the earlier date upon which: (i) written confirmation is provided by WGI, or (ii) WGI proceeds with the fulfilment of the Purchase Order. No additional or alternative terms or conditions or any alteration to these Conditions proposed by the Buyer contained or referred to in a Purchase Order or other form submitted to WGI shall be deemed to apply unless they are expressly accepted in writing by an Authorised Representative of WGI with respect to that Purchase Order.
    2. Buyer shall be solely responsible for the accuracy of any Purchase Order, including, but not limited to, the specification, configuration or other details of Products and their functionality, compatibility and interoperability with other products, as well as their fitness for particular use.
    3. Buyer's subsidiaries shall be defined as any entity which the Buyer controls or owns more than 50% of its shares. Buyer guarantees full and prompt payment to WGI of any sums as they fall due for any Purchase Orders placed hereunder by Buyer's subsidiaries.
  3. Cancelling & Rescheduling Purchase Orders.
    1. Except as set forth below, no Purchase Order which has been accepted by WGI may be cancelled or rescheduled by Buyer except with written agreement by WGI.
    2. Buyer may cancel, reschedule or modify a Purchase Order for Goods any time prior to WGI pulling and/or palletizing such Goods for shipment.
    3. If Buyer has elected to purchase Non-standard Products, Buyer understands and agrees that any Contracts for Non-standard Products may not be cancelled, withdrawn, rescheduled or otherwise modified by Buyer, unless such cancellation, withdrawal, rescheduling or modification occurs prior to WGI's placement of the order with the Supplier. Buyer further understands and agrees that such Non-standard Products, except as set forth under Section 11 ("Warranty Assistance"), may not be returned, refused or rejected for any reason whatsoever. Further, Buyer shall not be entitled to a credit or refund for such Non-standard Products for any reason whatsoever.
    4. Where an order is shipped in instalments, once the time to cancel the initial instalment has passed (as determined by the terms of these Conditions), subsequent instalments may not be cancelled unless otherwise agreed in writing by an Authorized Representative of WGI.
    5. Any cancellation, rescheduling or modification of a Purchase Order is conditioned upon Buyer reimbursing WGI for all reasonable, verifiable costs (including the cost of all labour and materials used), damages and expenses actually incurred by WGI as a result of such action, which may include, but is not limited to, WGI's costs and expenses of recovering Products delivered or in transit. WGI will use commercially reasonable efforts to mitigate any such costs, damages and expenses.
  4. Prices.
    1. The price of Products on the Contract Date shall be: (i) the quoted price (which shall be given formally in writing and be valid for seven (7) days following the date of quotation), or (ii) the list price in WGI's then current published price list on the date of Contract, where no price has been quoted or a quoted price has expired. All prices and charges are exclusive of the cost of handling, packaging, interest, shipping, delivery, insurance, configuration, fulfilment, cancellation, or rescheduling charges, and other services, as well as applicable value added tax (VAT), sales, use, consumption, privilege, goods and services tax (GST), and other taxes (other than taxes based upon WGI's net income) duties or customs fees for which the Buyer shall be additionally liable for paying to WGI , but WGI shall, upon request, quote the additional costs of such items to Buyer. In addition, prices exclude any copyright levies, waste and environment fees and similar charges that WGI by law or statute may charge or collect upon in accordance with such laws or statutes.
    2. Notwithstanding the foregoing, WGI reserves the right, by giving notice to Buyer any time before delivery, to increase the price of Products after the Contract Date but only to reflect (i) any foreign exchange fluctuation or currency regulation; (ii) alteration of duties; (iii) any change in delivery dates, quantities or specifications for the Products which are requested by the Buyer; or (iv) any delay caused by any instructions of the Buyer or failure of the Buyer to give WGI adequate information or instruction. WGI shall only increase its price by the amount necessary to reflect such an increase. Further, in the event WGI or its agent makes a material error or omission when quoting a price, WGI shall be entitled, for a period of thirty (30) days following the Contract Date, to increase the price of the related Products sold to Buyer by either (x) invoicing Buyer for the Buyer's proper list price on the date of the Contract Date, or (y) allowing Buyer to return such Products to WGI and crediting Buyer for the fees paid by Buyer for such Products.
    3. WGI will not increase the price for Products resulting from any increase in the cost that is due to any foreign exchange fluctuation or currency regulation if (i) Buyer accepts delivery of the Products within seven (7) days of the Contract Date; or (ii) if Buyer issues the Purchase Order in the same currency as the currency quoted (which shall be the currency that Westcon uses to purchase the Products from the Supplier).
    4. Buyer will be responsible for any sales, uses, excise, value added, services, consumption, and other taxes and duties payable by Buyer on any goods or services purchased by Buyer where the tax is imposed on Buyer's acquisition or use of such goods or services and the amount of tax is measured by Buyer's costs in acquiring such goods or services and shall make all payments of any such taxes to WGI without reduction for any withholding taxes, which shall be Buyer's sole responsibility. All taxes shall be paid by Buyer to WGI unless Buyer provides WGI with a valid certificate of exemption acceptable to the appropriate taxing authority.
    5. In the event a Supplier should grant a special pricing consideration, promotion or discount to WGI and such Supplier pricing is made available to Buyer ("Pass-Through Discounts"), the Buyer agrees to adhere to the terms and conditions of such Pass-Through Discounts, which may include the obligation to trade in certain products or provide for limited use credits ("Pass-Through Discount Terms"), and agrees to indemnify WGI for any Supplier claims against WGI for Buyer's failure to comply with such Pass-Through Discount Terms. Buyer agrees that payment and receipt of benefits under Pass-Through Discount Terms are contingent upon Buyer's compliance with such terms, and further agrees to pay any costs or fees, if any, charged to WGI by the Supplier for participation in Pass-Through Discounts.
  5. Payment.
    1. Buyer shall pay the purchase price, without any deduction or set-off, within thirty (30) days from the date of the invoice which shall be issued to Buyer on the date that Products are shipped. If payment is made by credit or debit card, then, unless prohibited by applicable law, Buyer agrees to pay all fees and service charges incurred by WGI in handling such transactions, including fees charged by the credit or debit card company.
    2. All express deliveries are subject to additional shipping charges regardless of invoice value.
    3. If (i) Buyer fails to make any payment under any Contract when due; (ii) any distress or execution is levied upon Buyer's property or assets; (iii) Buyer makes or offers any arrangement or composition with its creditors; (iv) Buyer is a body corporate and any resolution or petition to wind up Buyer's business (other than for the purpose of amalgamation or reconstruction) is passed or presented; (v) a receiver, administrator, manager or analogous person is appointed in respect of the undertaking, property or assets of Buyer or any part thereof; (vi) Buyer is an individual or a partnership, and any grounds arise for the application for a bankruptcy order made under applicable bankruptcy and/or insolvency laws (an "Act of Bankruptcy"); or (vii) Buyer exceeds its credit limit, then, without prejudice to any other right or remedy available to WGI, the full price of all Products delivered to Buyer under any Contract, but not paid, shall become immediately due (notwithstanding any previously agreed credit terms) and WGI may take any or all of the following courses of action:
      1. by notice, suspend or terminate any Contract or any part thereof, without liability, stop any Products in transit;
      2. charge Buyer interest, both pre- and post judgment, on any unpaid amount past due, at the rate of 2.5% per month until full payment is made. For clarity, a part of a month shall be treated as a full month for the purpose of calculating interest;
      3. set-off any amounts due against any credit note, balance or other liability issued by WGI to Buyer;
      4. appropriate any payment made by Buyer to such Products (including Products supplied under any other contract between Buyer and WGI or any WGI branch or subsidiary) as WGI may deem fit (notwithstanding any purported appropriation by Buyer); and/or
      5. alter Buyer's payment terms, which may include withdrawing or altering any credit limit previously granted, requiring prepayment, and demanding adequate assurance of due performance by Buyer through the provision of a bank guarantee.
  6. Delivery.
    1. Any dates quoted for delivery of the Products are approximate only and WGI shall not be liable for any delay in delivery of the Products however caused. Any Products may be delivered by WGI in advance of the quoted delivery date upon giving reasonable notice to Buyer.
    2. Delivery of the Products shall be coordinated by WGI to the location identified in the Purchase Order and shipped DAP or DAT (IncoTerms 2010) or such lesser IncoTerm as defined in the Purchase Order. In addition, if WGI has a legal entity in the destination country that is capable and authorized to act as an importer of record, WGI shall arrange for delivery DDP. Buyer remains responsible for all charges as described in Section 4(a). For Delivery Ex Works (IncoTerms 2010), delivery of the Products shall be made at WGI's premises upon notification to Buyer that such Products are ready for collection. Buyer shall be entitled to collect the Products on reasonable notice during WGI's normal business hours. Collection must occur no more than five (5) days from notice date. WGI shall have the right to assume that any person who both reasonably appears and claims to have the authority to accept and sign for delivery of the Products on behalf of Buyer does, in fact, have requisite authority from Buyer.
    3. Claims for non-delivery of Products must be made in writing to WGI within five (5) working days from (i) the date of invoice, or (ii) receipt of the delivered Products. Buyer agrees to notify WGI promptly in the event buyer receives the invoice prior to receipt of the Products.
    4. Buyer agrees to accept partial delivery of Products ordered unless otherwise mutually agreed by the parties in writing. Where the parties agree in writing that a shipment must be sent complete, Buyer agrees to accept allocations of Product in the event of shortage by Supplier. Where the Products are delivered in instalments, each delivery shall constitute a separate Contract. Failure by WGI to deliver any one or more of the instalments in accordance with these Conditions or any claim by Buyer in respect of any one or more instalments shall not entitle Buyer to treat a Contract as repudiated or to cancel any other instalment.
    5. If Buyer fails to take delivery of the Products or fails to give WGI adequate delivery instructions in its Purchase Order, then, without prejudice to any other right or remedy available, WGI may: (i) store the Products until actual delivery and charge Buyer for the reasonable costs thereof, including insurance costs; or (ii) terminate the Contract forthwith and sell the Products.
    6. Buyer shall bear any and all costs (including original and return carriage costs) associated with any unjustified refusal of delivery of Products ordered pursuant to a Contract.
  7. Title & Risk.
    1. Risk of loss or damage to the Products shall pass to Buyer in accordance with the chosen Incoterm. Buyer shall insure the Products for their invoice value in accordance with the chosen Incoterm. Notwithstanding delivery and the passing of risk in the Products, Buyer agrees that title to the Products shall not pass to Buyer until WGI has cleared funds received as payment for the price of the Products, and all other sums which are then currently outstanding to WGI by Buyer.
    2. Until such time as title in the Products passes to Buyer, Buyer shall (i) hold the Products as WGI's fiduciary agent and bailee, (ii) store all of the Products in such a way as to be clearly separate and identifiable from Buyer's inventory, and (iii) keep the Products in their original packaging, properly stored, protected, insured and identified as WGI's property.
    3. Until such time as the title in the Products passes to Buyer, WGI shall be entitled to require Buyer to return the Products to WGI. If Buyer should fail to immediately comply with WGI's request, WGI shall have the right to enter on or in any premises or vehicles of Buyer where the Products are loaded or stored for the purpose of repossessing said Products if Buyer is in breach of any of these Conditions or a Contract.
    4. Buyer's right to possess any Products, for which payment has not been received by WGI and cleared, shall immediately cease (i) after the appointment of a receiver to its property; (ii) after it has been placed in liquidation or administration; (iii) when and if Buyer makes an arrangement for the benefit of creditors generally, suffers or permits the appointment of an administrator, administrative receiver or receiver for its business or assets, or avails itself or becomes subject to any proceeding under any applicable bankruptcy laws; (iv) if Buyer is unable to pay its debts within the meaning of applicable bankruptcy and/or insolvency laws; (v) if Buyer, not being a company, has become bankrupt; or (vi) if Buyer otherwise ceases to trade or threatens to cease to trade.
  8. Damage & Loss in Transit.
    1. WGI shall not be liable in respect of error in delivery, loss, damage or destruction to any Products during transportation of the Products to Buyer unless notice thereof is advised to WGI by telephone immediately on receipt of the Products and confirmed in writing within five (5) working days and WGI has agreed to deliver the affected Products to Buyer in accordance with Section 7(b). Buyer shall concurrently notify the carrier in writing of any such error, loss or damage and shall, in all cases, where possible, enter a note of the same upon the carrier's bill of lading or other delivery receipt. If by reason of Buyer's failure to give any such notice as provided above WGI is unable to make recovery from the carriers in respect of the error, loss or damage complained of, then Buyer shall be liable to pay for Products as though no such error, loss or damage occurred. No liability for Product shortages will be accepted by WGI unless such shortage is noted on the bill of lading or other delivery receipt.
    2. Subject to the foregoing, any Products which WGI has agreed to deliver to Buyer in accordance with Section 7(b) that are delivered in error or lost, damaged or destroyed during transportation will be replaced or rectified by WGI, as originally ordered or, if rectification or replacement is not practicable, WGI will issue a credit to Buyer equal to any payments received by WGI for such Products. WGI shall not be liable for any loss, damage or expense whatsoever and howsoever arising from any error, loss, damage or defect except as set forth herein.
    3. Any error, loss, damage or destruction of Product discovered by Buyer in delivery shall not entitle Buyer to rescind the remainder of a Contract.
  9. Publications & Specifications.
    Any and all specifications, descriptions, photographs, measurements, capacities or illustrations contained in any catalogues, price lists, brochures, leaflets, proposals, advertising matter, publications of WGI or a Supplier are intended to be illustrative and approximate only and shall not form part of a Contract or constitute a representation, warranty or condition regarding any Products unless specifically agreed by written agreement between the Buyer and WGI. No employee or agent of WGI has any authority to make any representation regarding the Products. Buyer acknowledges that it has not been induced to accept these Conditions by any representations or statement, oral or written, not expressly contained herein.
  10. Warranty.
    1. Buyer understands that WGI is not the Supplier of the Products. Accordingly, all Products are sold subject to the express warranty terms, if any, specified by the original Supplier of the Products. Any software supplied to Buyer pursuant to a Contract is supplied subject to the provisions of the Supplier's licensing terms.
    2. WGI warrants, for a period of fourteen (14) days from delivery, that any Non-standard Products will be delivered subject to the configuration set forth on the Purchase Order. WGI's sole and exclusive liability, and Buyer's sole remedy, for a breach of the warranty in this Section 10(b) shall be to repair or replace the Non-standard Products, at its sole and absolute discretion in accordance with the warranty set forth in Section 10(a).
    3. Buyer may not make or pass on any warranty terms or representations in addition to those described in Section 10(a) (e.g. the warranty provided by the Supplier), and shall take all measures necessary to ensure that neither it nor any of its agents or employees shall make or pass on, any such warranty or representation relating to a Product provided by WGI or Supplier.
    4. Any warranties, conditions or other terms implied by common law or statute or otherwise in connection with these Conditions (except to title, in the case of Products) are hereby expressly excluded to the fullest extent permitted by law, save for fraudulent misrepresentation.
  11. Warranty Assistance.
    1. Buyer shall immediately notify WGI if any Products supplied to Buyer prove to be defective in quality or condition within the Supplier's warranty period (the "Claim"). Upon receipt of notification of such Claim from Buyer, WGI shall notify Buyer whether, as a matter of Supplier policy, the Claim must be handled directly with the Supplier or indirectly through WGI. In the event the Claim must be handled directly between Buyer and Supplier, WGI shall provide contact information to enable Buyer to contact Supplier. In the event the Claim will be handled by WGI, then WGI shall provide Buyer with a return material authorization ("RMA") for Buyer to return the Products to WGI, and Buyer shall return such Products to WGI in accordance with these Conditions and WGI's then current RMA policy (which shall be made available to Buyer upon request). No Products may be returned to WGI without a valid RMA number displayed on the Products packaging. Any Products returned without a valid RMA number displayed on the Products packaging will be refused or returned. WGI shall not be obligated to ship replacement Products to Buyer until WGI is in receipt of the original Products being returned.
    2. Buyer agrees that WGI's sole liability to Buyer regarding any Product defect claims is limited to the administration of such claims with the Supplier and is expressly contingent upon WGI's ability to obtain a refund, credit or new replacement Products from the Supplier. WGI has no obligation to accept a return of Products where the Buyer fails to comply with Supplier's policy on Product returns.
    3. WGI shall not be liable or responsible for administering any defect or other claim which arises from normal wear and tear, misuse, negligence, accident, abuse, use not in accordance with Supplier's Product documentation, modification or alteration not authorised by Supplier, or use in conjunction with a third party product. WGI reserves the right to determine whether any Products are defective.
    4. All transport charges incurred in returning or replacing Products are the responsibility of Buyer.
  12. Warranty Returns.
    1. Any Products returned pursuant to an RMA issued by WGI must be returned to WGI within five (5) working days of the date of such RMA.
    2. Buyer irrevocably authorizes WGI to carry out any necessary tasks related to the repair or replacement of Products on behalf of Buyer under these Conditions.
    3. Unless WGI collects Products using its own carrier, Buyer agrees that WGI shall not be liable for any loss or damage to Products returned to WGI.
    4. Except for Products returned pursuant to Clause 12 above, any returns are subject to WGI's sole and absolute discretion and may be subject to a fifteen percent (15%) restocking fee, at WGI's sole discretion.
  13. Limitation of Liability.
    1. WGI'S LIABILITY FOR ANY DIRECT LOSS OR DAMAGE ARISING OUT THESE CONDITIONS AND ANY CONTRACT SHALL BE LIMITED TO, AND SHALL UNDER NO CIRCUMSTANCES EXCEED THE PRICE PAID BY BUYER FOR THE PRODUCTS GIVING RISE TO THE CLAIM (EXCLUDING VAT). WGI SHALL HAVE NO LIABILITY UNDER THESE CONDITIONS OR ANY CONTRACT IF WGI HAS NOT RECEIVED PAYMENT OF THE TOTAL INVOICE PRICE OF THE PRODUCTS GIVING RISE TO THE CLAIM.
    2. EXCEPT AS EXPRESSLY PROVIDED IN THESE CONDITIONS, WGI AND ITS SUPPLIERS SHALL NOT BE LIABLE TO BUYER FOR ANY FINANCIAL, CONSEQUENTIAL OR OTHER LOSS OR DAMAGE CAUSED TO BUYER BY REASON OF ANY REPRESENTATION, WARRANTY (EITHER EXPRESS OR IMPLIED), CONDITION OR OTHER TERM, OR ANY DUTY AT COMMON LAW; OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS, REVENUE, RECORDS OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, DAMAGE TO REPUTATION OR GOODWILL, OR ANY MATTER BEYOND ITS REASONABLE CONTROL) OR FOR ANY OTHER CLAIMS FOR COMPENSATION HOWEVER CAUSED (WHETHER CAUSED BY THE NEGLIGENCE OF WGI, ITS EMPLOYEES, AGENTS, SUPPLIERS OR OTHERWISE) WHICH ARISE OUT OF OR IN CONNECTION WITH THESE CONDITIONS OR A CONTRACT HEREUNDER, EVEN IF WGI OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, LIABILITY OR DAMAGES.
    3. Nothing contained herein shall be construed as excluding or limiting WGI's liability for death or personal injury caused by WGI's negligence, or for breach of implied title to Products.
  14. Intellectual Property Rights.
    1. Buyer acknowledges that the Products are the intellectual property of the Suppliers. Nothing contained herein shall be deemed to grant any right or title to such intellectual property to Buyer. Buyer further agrees not to translate, reverse compile or disassemble any software. Buyer will not remove, alter or destroy any form of copyright notice, proprietary markings, serial numbers, or confidential legends placed upon or contained within any Products.
    2. Buyer understands and agrees that WGI will not and has no duty to indemnify, defend or hold Buyer or a third party harmless from or against any claims, losses, liabilities, damages, costs and expenses, judgments or settlement amounts arising out of or in connection with the actual or alleged infringement of a third party's intellectual property rights, except and only to the extent that a Supplier has expressly agreed to offer such indemnification and defence to Buyer on a pass through basis.
    3. When making proposals and agreements with foreign governments which involve any Products, Buyer will take all reasonable steps to ensure that Supplier's proprietary rights in such Products receive the maximum protection available from such foreign government for commercial computer software and related documentation developed solely at private expense.
    4. Nothing contained herein shall be construed as authorizing or granting to Buyer any right or license to use any logo, trademark or trade name of WGI or any Supplier, any license of which shall be subject to separate agreement including any then current policies of WGI or its Suppliers, as appropriate.
  15. Force Majeure.
    1. Neither party shall be liable to the other party or be deemed in breach of these Conditions or any Contract by reason of delay or failure to perform if such delay or failure to perform was caused by Force Majeure.
    2. In the event of a Force Majeure event: (i) the party claiming Force Majeure shall, as soon as commercially practicable, notify the other party of such Force Majeure event provided the notifying party shall incur no liability for its failure to give such notice; (ii) the notifying party's duty to perform shall be suspended for the duration of the Force Majeure event; and (iii) the time of performance for the party impacted by the Force Majeure event shall be extended by a period equal to the duration of said Force Majeure event.
    3. In the event a Force Majeure event should continue for more than ninety (90) days, either party may, by written notice to the other, cancel a Contract insofar as Products remain undelivered under said Contract. Upon such cancellation, WGI shall have no obligation to deliver and Buyer will have no obligation to accept delivery of or pay for the undelivered Products, but the Contract shall remain in full force and effect regarding all Products delivered prior to the date of cancellation.
  16. Compliance with Laws; Export.
    1. Buyer acknowledges that the Products and any technical data related thereto is licensed or sold subject to and controlled by the export laws of (i) the United States ("US") including its Export Administration Regulations, (ii) the European Union ("EU") and countries within the European Free Trade Area ("EFTA"), and (iii) any other government with jurisdiction (collectively the "Export Control Laws") and Buyer hereby agrees not to export, re-export or otherwise distribute Products, or direct products thereof, in violation of any Export Control Laws. Buyer acknowledges that such Export Control Laws and/or the applicable government authority may require licensing or other authorisation prior to export.
    2. Buyer warrants that it will not export or re-export any Products with knowledge that they will be used in the design, development, production, or use of chemical, biological, nuclear, or ballistic weapons, or in a facility engaged in such activities, unless Buyer has obtained prior written approval from the appropriate department of the US Government or any other government with jurisdiction. Buyer further warrants that it will not export or re-export, directly or indirectly, any Products to embargoed countries or sell Products to companies or individuals listed on the Denied Persons List published by the US Department of Commerce.
    3. It is Buyer's sole and exclusive responsibility to obtain any and all appropriate approvals from the applicable government entities, which may include the US government and/or member states of the EU and EFTA or any other government with jurisdiction, prior to exporting such Products, or any technical data related thereto, from the United Kingdom. WGI shall not be responsible for any costs, liabilities or damages resulting from Buyer's failure to obtain any such required authorisation. Buyer understands that the Export Control Laws may change from time to time. It is Buyer's sole and exclusive responsibility to obtain guidance of counsel or other appropriate channels to ensure its compliance with these laws.
    4. Buyer and WGI warrant they will not to take any action or permit or authorize any action which will render the other party liable for a violation of the US Foreign Corrupt Practices Act or any other applicable anti-corruption and anti-bribery laws (the "Act"), which prohibits the offering, giving or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party or instrumentality thereof in order to assist in obtaining or retaining business and (a) will not violate or cause the other party to violate such Act in connection with the sale and distribution of the Products; and (b) will notify the other party in writing if any of its owners, partners, principals, directors or officers are or become officials, officers or representatives of any government or political party or candidate for political office.
    5. Buyer shall comply with applicable laws pertaining to hazardous substances, and electric or electronic waste, which may include EU Directives 2011/65/EU (Restriction on Hazardous Substances) and EU: Waste Electrical and Electronic Equipment (WEEE), Directive 2012/19/EU, or generally and as instated within each country into which Products imported in, exported from or otherwise distributed by Buyer, including any registration obligations under such legislation.
    6. Buyer shall indemnify, defend and hold WGI harmless from any violation or alleged violation by Buyer of the terms of this Clause. Upon WGI's request, Buyer agrees to confirm, in writing, its compliance with applicable Export Control Laws and the Act.
  17. Non-Solicitation.
    During the term of these Conditions and for a period of twelve (12) months following the date of any Contract hereunder, Buyer hereby agrees not to solicit, induce or hire any employee of WGI involved in the marketing, promotion, sale or distribution of Products to Buyer to leave their employment or terminate or breach their contract for services with WGI as the case may be. Notwithstanding the foregoing, solicitation of either party's current employees or independent contractors who are not involved in the performance of these Conditions by means of a general media solicitation or trade publication or advertisement shall not constitute a breach of this provision.
  18. Confidential Information.
    1. "Confidential Information" means any and all information, in any medium, which is provided by one party to these Conditions ("Discloser") to the other party ("Recipient"), that is either (i) related to these Conditions, including any Contracts, pricing, Product descriptions, business practices, financial statements, financial information, customers, methods, techniques, processes, apparatuses, and employee data; (ii) marked using a legend such as "confidential", "proprietary" or similar words, or if disclosed orally, confirmed as such by the Discloser; or (iii) any information which the Recipient should have reasonably considered to be confidential under the circumstances surrounding disclosure. All Confidential Information is provided "AS IS" without any representation or warranty, either express or implied, as to accuracy or completeness.
    2. Each party acknowledges that during the course of performing its obligations hereunder it may receive Confidential Information. Each party will employ the same degree of care to protect the secrecy and confidentiality of the Confidential Information of the other party as it uses to protect its own Confidential Information of a similar nature, but in no event less than a reasonable degree of care. Each party will restrict the release, access and use of Confidential Information to those of its employees, officers, directors, consultants and agents who must have access to the Confidential Information in order perform its obligations under these Conditions, provided such employees, officers, directors, consultants and agents are subject to written agreements which contain confidentiality obligations in substance, at least as strict as those set forth herein, in order to enable each party to comply with the provisions of these Conditions.
    3. Confidential Information herein shall not include information that (i) the Recipient can demonstrate by its written records to have had in its possession prior to disclosure to the Recipient by the Discloser; (ii) was part of the public knowledge or literature, not as a result of any action or inaction of the Recipient; (iii) was subsequently disclosed to the Recipient from a source other than the Discloser who was not bound by an obligation of confidentiality to the Discloser; (iv) the Recipient can demonstrate by its written records to have been independently developed by the Recipient without the use, directly or indirectly, of any Information; or (v) the Recipient is required to disclose pursuant to a court order or as otherwise required by law; provided, however, that Recipient notifies the Discloser within sufficient time to give the Discloser a reasonable period to contest such order.
  19. Additional Terms of Sale.
    1. Notwithstanding anything to the contrary herein, WGI and its Suppliers reserve the right to make any changes in the specifications of the Products, without notice to Buyer, which are required in order to conform to any statutory or other legal requirements or which do not materially affect the performance of the relevant Products.
    2. Where Services relate to the provision of training, WGI reserves the right to provide such Services at a venue or venues other than WGI's premises and to provide personnel of its own selection. WGI further reserves the right to refuse or curtail any training Services if a delegate or substitute delegate attending on behalf of Buyer fails to satisfy any training requirements for which Buyer was notified prior to the commencement of such training.
    3. Any Products which are subject to guidelines, restrictions or provisions imposed by a Supplier are sold, supplied and delivered to Buyer subject to any such guidelines, restrictions or provisions, which will be provided to Buyer upon request.
  20. Choice of Law & Venue.
    1. These Conditions and any Purchase Order placed under them shall be governed by the laws and exclusive jurisdiction is as set forth in the countries as defined below dependent on the location where WGI or its subsidiary receives the Purchase Order as follows:
      Australia and New Zealand — the laws and jurisdiction of the Territory of New South Wales.
      North America, South America and Canada — laws and jurisdiction of the State of New York without regard to its conflicts of law principles. The parties agree that the state and federal courts located in New York City, New York, shall have sole and exclusive jurisdiction and venue over any matter arising out of these Conditions and each party hereby submits itself and its property to the venue and jurisdiction of such courts. Each party irrevocably waives any objection that it may now or hereafter have to the laying of venue of any such proceeding in such court, including any claim that such proceeding has been brought in an inappropriate or inconvenient forum.
      The European Union, Turkey, the UAE and Switzerland — the laws and jurisdiction of England and Wales.
      Malaysia, Singapore and Indonesia — the laws and jurisdiction of Singapore.
      Republic of South Africa — the laws and jurisdiction of South Africa
    2. The UN Convention on Contracts for the International Sale of Goods does not apply.
    3. Each party waives any right it may have to claim that the chosen jurisdiction under these Conditions is not a convenient forum and expressly waives any right to a jury trial regarding disputes related to these Conditions.
  21. Miscellaneous.
    1. Assignment. Buyer may not transfer or assign these Conditions to a third party by operation of law or otherwise without the prior written consent of WGI. WGI may assign any Purchase Order, in whole or in part, as it relates to a particular WGI subsidiary outside the US without the consent of the Buyer. WGI shall endeavor to provide prompt notice of any assignment to the Buyer.
    2. Waiver. Failure by either party to enforce any provision of these Conditions or a Contract shall not be deemed a waiver of the right to thereafter enforce that or any other provision of these Conditions or a Contract.
    3. Severability. In the event that any provision of these Conditions is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of these Conditions will remain in full force and effect.
    4. Audit Rights. Buyer shall keep and maintain true and complete records pertaining to its performance of these Conditions or any Contract hereunder in sufficient detail to permit WGI to accurately determine whether Buyer has fully complied with their terms. Buyer shall make such records available upon reasonable notice, during regular business hours, for inspection and copying by WGI and its representatives. Buyer shall maintain such records for at least two (2) years after the end of the calendar year to which they pertain.
    5. Marketing. Buyer agrees that WGI may collect, store and use Buyer data, including personal data, for the purpose of facilitating its marketing and sale of the Products, and Buyer hereby consents to such collection, storage and use of Buyer data by WGI for these purposes. Notwithstanding the foregoing, WGI agrees not to share personal data with third parties without Buyer's prior consent. Buyer further consents to the use of such data for communicating Product and promotional information to Buyer via email or other electronic means unless Buyer notifies WGI in writing that it does not wish to receive such promotional information.
    6. Notices. All notices shall be in writing and shall be sufficiently given if delivered personally or by a reputable overnight carrier with proof of delivery or mailed by first class certified mail, return receipt requested, to Buyer at the address provided through WGI's eCommerce site and to Westcon Group, Inc., 520 White Plains Road, Tarrytown, NY 10591, Attention: Legal Department or to such other address or addressee as either party may, from time to time, specify by notice in accordance with this Clause. Notices shall be deemed given upon receipt by the addressee.
  22. Entire Agreement. These Conditions constitute the entire agreement between the parties as to the subject matter hereof and supersedes and cancels any and all of Buyer's terms and conditions, or other written or oral agreements previously existing between the parties and/or their affiliates with respect to such subject matter. Buyer acknowledges that it is not entering these Conditions on the basis of any representations not expressly contained herein. Every Contract between WGI and the Buyer or any of its subsidiaries shall be subject to these Conditions. Buyer shall be deemed to have accepted these Conditions by the earlier of: (i) indicating acceptance to these terms through the WGI eCommerce site, (ii) submitting a Purchase Order to WGI, or (iii) accepting Products from WGI.