INGRAM MICRO GENERAL TERMS AND CONDITIONS OF SALE

In addition to the general provisions as set forth under A of these Conditions, the specific provisions (B to H inclusive) will also apply, as follows: the processing of personal data will also be subject to the provisions under B; the delivery of Products will also be subject to the provisions under C; the provision of warehousing services will also be subject to the provisions under D; the provision of transport services will also be subject to the provisions under E; the provision of configuration services will also be subject to the provisions under F; the provision of installation services will also be subject to the provisions under G; and the provision of ITAD services will also be subject to the provisions under H.

 

A. GENERAL PROVISIONS

1. DEFINITIONS

Unless expressly indicated otherwise, the following capitalized terms (both in plural and in singular) as used in these general conditions will have the following meanings:
GDPR: General Data Protection Regulation, in full: Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC;
Data Subject: the natural person to whom the Personal Data processed by Ingram Micro for purposes of performance of the Agreement(s) relate;
Security Incident: any breach of security that accidentally or unlawfully leads to the destruction, loss, alteration or unauthorised disclosure of, or unauthorised access to, any Personal Data transmitted, stored or otherwise processed;<
DCC: the Dutch Civil Code [Burgerlijk Wetboek];
Configuration Services: the configuration services as agreed between the Client and Ingram Micro, including but not limited to integration of software and certain hardware (such as laptops, desktops, servers, and monitors), and the configuration of, for example, imagines of the Client in hardware and/or software, not being the development by Ingram Micro of software in any way whatsoever;
Services: the services to be provided by Ingram Micro for the Client on the basis of the Agreement, which services may include: Warehousing, Transport Services, Configuration Services, Installation Services, and/or ITAD Services;
EEA: European Economic Area, comprising all the countries of the European Union, Liechtenstein, Norway, and Iceland;
Ingram Micro: Ingram Micro B.V., having its registered office in Utrecht, the Netherlands, as well as any of its direct or indirect affiliates;
Installation Services: the installation services as agreed between the Client and Ingram Micro, to be provided at the location designated by the Client, which may include installation, or causing the installation of, hardware (such as laptops, desktops, monitors), server solutions, the roll-out and migration, or causing the roll-out and migration of, software;
ITAD Services: the "IT Asset Disposition Services" as agreed between the Client and Ingram Micro, which may include the collection and sorting, and the sale, resale, destruction or re-use of ICT hardware, as well as the related preparatory services;
Client: any natural person or legal entity that has entered, or wishes to enter, into an Agreement with Ingram Micro;
Assignment: any Written, oral or electronic assignments granted to Ingram Micro by the Client for the provision of Performances;
Agreement: the agreement between Ingram Micro and the Client for the provision of Performances;
Party: Ingram Micro and the Client, either each individually or jointly;
Personal Data: any information on an identified or identifiable natural person to be processed by Ingram Micro or the Client for purposes of performance of the Agreement(s) and any related agreements;
Performance: the provision of Services and/or Products, of any nature whatsoever and howsoever denominated;
Product: any products offered by Ingram Micro to Clients or potential Clients (also including software and hardware), including the related services;
Written/In Writing: by letter or by email or - to the extent applicable or available - electronically via the Client's user account;
Transport Services: the transport services as agreed between the Client and Ingram Micro, which may include the planning and transport, or causing the transport of, the Items, registration of the expected times of departure and arrival of the Items at the destination designated by or on behalf of the Client, monitoring and progress of the transport of the Items, and financial/administrative handling of the transport;
Conditions: these general terms and conditions;
Warehousing: the warehousing as agreed between the Client and Ingram Micro, which may include the entry, storage, removal, loading, stock management, assembly, order handling, order picking, and getting the Items ready for dispatch; Items: the items made available to Ingram Micro or third parties by or on behalf of the Client for purposes of performance of the Agreement.

 

2. APPLICABILITY

2.1 The provisions of these Conditions will apply to all enquiries made by the Client, offers made by Ingram Micro (including but not limited to quotations), and Agreements, in which the Client acts as the Client, or potential Client, for the Performances to be provided by Ingram Micro and/or related activities, to the extent not expressly derogated from these Conditions In Writing by the Parties.
2.2 The applicability of any general conditions, howsoever denominated, of the Client is hereby expressly rejected. By the mere entry into an Agreement, the Client waives any general conditions that may exist on its part, so that any and all Agreements will be governed by the present Conditions.
2.3 Any derogations from these Conditions will be binding only if and to the extent agreed between Ingram Micro and the Client In Writing, and exclusively in respect of the offers, quotations, deliveries and (additional) Agreements to which they relate. In respect of any other offers, quotations, deliveries and (additional) Agreements, these Conditions will remain in full force and effect.
2.4 In the event of conflict between the provisions of the Conditions and any Agreement, the Agreement will prevail.

 

3. FORMATION OF AN AGREEMENT

3.1 Any and all offers and quotations (including price quotations), made in any form whatsoever, will be subject to contract and may be revoked by Ingram Micro at any time, even if the relevant offer or quotation contains a term for acceptance.
3.2 Any quotations for the provision of Performances will be issued by Ingram Micro In Writing, on the basis of all the information related to the provision of the Performance(s). The Client will be required to provide Ingram Micro with such information. The Client warrants the correctness of the information provided by it. If the Client provides information orally or by telephone, the Client will bear the risk of the information as confirmed by Ingram Micro In Writing.
3.3 It is possible that Ingram Micro may, now or in the future, offer its Clients the option, for one or more Services, or for the sale or resale of the Products, to use an account registered to their names, which the Clients can use to log onto Ingram Micro's digital platform and which will be used to create an electronic interface with the Client's system. If any such account is available, the Client can grant an Assignment using its digital account.
3.4 An Agreement between Ingram Micro and the Client will be formed as a result of Ingram Micro's Written confirmation of the Assignment or commencement of performance of the Assignment. To the extent that the Agreement is formed as a result of Ingram Micro's commencement of performance of the Assignment, Ingram Micro's invoice will also constitute confirmation of the Assignment.
3.5 Ingram Micro's Assignment confirmation will be deemed to be correct, unless the Client has promptly, but not later than two (2) business days, following dispatch of such confirmation objected In Writing, which objection has reached Ingram Micro.
3.6 Any subsequent additional arrangements or changes, as well as any (oral) arrangements and/or representations made by employees of Ingram Micro or on behalf of Ingram Micro by agents, representatives or other intermediaries, will be binding on Ingram Micro only if and to the extent confirmed In Writing by authorized representatives.
3.7 If the Client acts in the pursuit of a profession or business, Articles 6:227b(1) DCC and 6:227c DCC will not apply.

 

4. PLATFORM AND ACCOUNT

4.1 As already indicated in article 3.3, for certain Performances Ingram Micro can use a digital platform to which the Client can log on via one or more accounts to be made available to it using a user name and password. On the platform, the Client can, inter alia, grant Assignments and view the history of Assignments already performed. Ingram Micro will at all times have the right to make changes to the platform or the login access procedure. Ingram Micro cannot be required to change or maintain the platform for the Client.
4.2 The Client will receive from Ingram Micro a client number that is linked to the Client. Ingram Micro will provide one administrator account for each client number. When registering for access to the Ingram Micro platform, the Client will designate its administrator. The Client warrants that the administrator is sufficiently qualified for the administrator role and that such administrator is authorized to bind the Client to the Assignments granted via the Ingram Micro platform. The administrator account provided by Ingram Micro to an administrator of the Client will be personal and nontransferable to a third party. If the Client wishes to appoint a new administrator, the Client will be required to submit an application to that effect to Ingram Micro and the previous administrator will be deprived of their administrator rights.
4.3 The Client's administrator may appoint one or more users who may also be granted access to the platform (admitted users). The Client will be fully responsible for the administrator's administration of access for these admitted users. Ingram Micro will at any time have the right to deactivate or disable the client number, the Client's administrator account, or a login account of an admitted user.
4.4 The Client warrants that its administrator and any and all users admitted by such administrator are authorized to bind the Client and at the expense and risk of the Client to grant Assignments for the provision of Products and Services by Ingram Micro. The Client will be bound vis-à-vis Ingram Micro by all such Assignments as have been granted by its administrator or admitted users and will be required to perform all the related obligations. An Assignment that is granted electronically via an account of the Client, its administrator or admitted users will have the same binding force as an Assignment granted by the Client In Writing.
4.5 The Client will be responsible for the correctness and completeness of all such information as it provides to Ingram Micro so as to allow its administrator and its admitted users to use the account and the platform. This responsibility will extend to all such activities and other data that are posted and uploaded in the account of the Client, its administrator or its admitted users. Ingram Micro may fully rely on the correctness and completeness of the information provided by the Client.
4.6 The login credentials for the administrator account provided by Ingram Micro will be strictly personal. The Client will be responsible for keeping such login credentials (including the combination of user name and password) confidential, and will take such safety measures and procedures as may be necessary to warrant that such information will be used exclusively by the administrator for authorized purposes and in accordance with the Conditions. The Client will be fully and unconditionally liable for any use of the platform by an administrator, an admitted user or any other person with access to the platform using login credentials provided for the Client's client number.
4.7 In the event of loss or attempted or actual abuse of the platform or of the login credentials of the administrator or an admitted user, the Client will promptly notify Ingram Micro In Writing and take all such measures as may be necessary to mitigate the consequences thereof to the extent possible.
4.8 The Client, its administrator and its admitted users will be expressly prohibited from:
- using the platform in any way that is contrary to its intended use, or in any way that is unauthorized pursuant to the law or social standards;
- infringing rights of Ingram Micro or any third parties, including intellectual property rights, such as copying logos or trademarks of Ingram Micro or its suppliers, or copying or disseminating pictures of the Products;
- copying or using any information on the platform, such as product information and prices, either by using web crawlers or otherwise;
- using all or part of the platform itself or incorporating it into another website, for example by embedding it in another domain name
- using all or part of the platform in such a manner that the connection to the platform or the information on the platform may be corrupted, or a disruption may be caused to the availability of the platform;
- in any way whatsoever causing damage to Ingram Micro, other Clients or users, or any third parties.
4.9 Although Ingram Micro provides an appropriate level of protection and safety for its digital systems (including the platform), it cannot warrant the availability and safety of the internet and its use, so that Ingram Micro is not liable in that respect in any way whatsoever.
4.10 Ingram Micro will perform to the best of its ability to ensure that the information on the platform is up to date and accurate, but it cannot warrant that any statements on the platform, such as prices and stocks, will be error-free. The Client cannot derive any rights from the information on the platform.
4.11 The foregoing provisions will also apply if the Client has the possibility to grant Assignments to Ingram Micro using its own interface between a system of the Client's and the Ingram Micro system (partner interface). For purposes of the partner interface, administrator as used in the foregoing provisions should be deemed to be a Client designated user of such interface. Only the provisions set forth under 4.2 and 4.3 above will not apply to the partner interface.

 

5. PRICES

5.1 In consideration of the Performance(s) provided by Ingram Micro, the Client will pay a fee in accordance with the provisions of the Agreement.
5.2 Unless agreed otherwise In Writing, the prices (including rates) quoted by Ingram Micro are stated in euros, exclusive of VAT and any other government levies imposed or to be imposed.
5.3 Ingram Micro will be authorized to pass on to the Client any changes to (cost) price factors in respect of the Agreement, such as prices of labour, exchange rates, packaging, taxes, levies or other government measures and laws or regulations or the consequences thereof, on a one-on-one basis. In line with the foregoing, the Client is aware that any and all prices quoted by Ingram Micro - even after confirmation of the Assignment - are issued subject to (cost) price changes, which Ingram Micro may at all times (unilaterally) pass on to the Client. The foregoing provision will also apply to the sale and purchase prices quoted for Products, which are directly linked to the exchange rates and which may, as a result, fluctuate on a daily basis.
5.4 If the prices quoted by Ingram Micro prove to be based on a manifest calculation error, clerical error or other manifest error, Ingram Micro will promptly notify the Client as soon as it becomes aware of such error and be entitled still to charge the correct prices to the Client with retroactive effect.

 

6. INVOICING AND PAYMENT

6.1 The fee due by the Client to Ingram Micro in consideration of the Performance(s) provided will be invoiced in accordance with the provisions of the Agreement. Unless agreed otherwise In Writing, Ingram Micro may, at its sole discretion, determine the frequency and timing of invoicing.
6.2 Unless agreed otherwise In Writing, payment of the invoices is to be made to a bank account to be designated by Ingram Micro, within thirty (30) calendar days of the date of the invoice. Payment is to be made in euros in the Netherlands, without any deduction of discounts, bank costs or setoff, unless agreed otherwise In Writing.
6.3 Ingram Micro will at all times have the right to reduce the payment period in view of the requirements set or to be set by its credit insurer and/or financial institutions, for example for purposes of maintaining the associated credit insurance. Ingram Micro will make reasonable efforts to notify the Client In Writing in good time before the effective date of the reduced payment period, a notice period of three (3) months, in principle, being deemed reasonable, except to the extent that the credit insurer and/or financial institution involved has used a shorter notice period vis-à-vis Ingram Micro.
6.4 Ingram Micro reserves the right, if it should be desirable for it for any reason whatsoever, to require advance payment, a bank guarantee or any other form of security from the Client before providing the Performance(s) required of it and lending the necessary cooperation.
6.5 Payment will not be deemed to have taken place until the amount due is irrevocably credited to Ingram Micro's bank account.
6.6 In the event of late payment, the Client will be in default from expiry of the payment period, by operation of law, without any further notice of default being required, and will, from the time of commencement of the default, pay interest on the payable amount (inclusive of VAT) equal to the statutory interest for (commercial) agreements within the meaning of Article 6:119 DCC, 6:119a DCC and 6:120 DCC, respectively.
6.7 If the Client has failed to perform, or is in default of performance of, its obligations under the Agreement(s), all reasonable costs to obtain payment out of court will be payable by the Client, which costs will be equal to 15% of the principal sum claimed (exclusive of interest). If the actual costs of collection are higher, Ingram Micro will be entitled to compensation of such actual costs incurred.
6.8 If the Client fails to provide security within the term set by Ingram Micro, Ingram Micro will be entitled to suspend performance of all or part of its obligations under the Agreement(s) and any related agreements, without prejudice to its other rights ensuing from the Agreement, until the Client has fully performed its obligation to provide security. The foregoing suspension right will not affect the obligations of the Client and their payability. In lieu of exercising its suspension right, Ingram Micro may also opt to dissolve the Agreement(s) and any related agreements out of court.
6.9 If the Assignment has been granted by more than one Client (whether or not belonging to the same group), all the Clients will be jointly and severally liable for performance of the payment and other obligations as set forth in the Agreement (including this article), irrespective of the name in which the invoice has been made out.
6.10 Payment of a sum of money made by the Client will first go to reduce the costs, then to reduce the interest accrued, and finally to reduce the payable invoices that have been outstanding the longest and the accruing interest.
6.11 Any complaints about invoices sent by Ingram Micro must be reported to Ingram Micro In Writing within eight (8) business days of the date of the invoice, failing which the invoice will be deemed to have been accepted, and the Client can no longer invoke incorrectness of the invoice.

 

7. DELIVERY PERIODS

7.1 Delivery times stated will be indicative only, since Ingram Micro depends on third parties for the provision of the Performance or Performances. In no event will any delivery times stated be deemed to be firm deadlines, unless it has expressly been agreed In Writing that it is a firm deadline. Ingram Micro will at all times be entitled to deliver Performances to the Client before the delivery date stated.
7.2 The delivery period will commence as soon as consensus has been reached on all the details of the Assignment, all the necessary information is in Ingram Micro's possession, any agreed (instalment) payment has been received, and the necessary conditions for performance of the Assignment have been satisfied.
7.3 Exceeding the delivery period will not lead to forfeiture by Ingram Micro of any penalty or compensation.
7.4 In respect of the supply of Products, the applicability of Article 7:46f(1) DCC is expressly excluded.

 

8. STATEMENT OF WORK

The operational work to be performed by Ingram Micro in connection with the Performance(s) may be specified in a statement of work.

 

9. ENGAGEMENT OF THIRD PARTIES

9.1 Ingram Micro will be entitled, for purposes of performance of all or part of its obligations under the Agreement(s) and any related agreements, to engage third parties, and the Client hereby consents to such engagement in advance. In line with the foregoing, Ingram Micro will in any event perform, or cause the performance of, the Agreement(s) using third parties to be engaged by it for the following Services: Transport Services, Configuration Services, Installation Services, Warehousing, and ITAD Services. Any reference in these Conditions to "Ingram Micro" will, therefore, be understood to include any third party engaged by Ingram Micro.
9.2 If, for purposes of shielding itself from liability for any act on the part of a third party engaged by it, Ingram Micro can derive any defence vis-à-vis the Client from the Agreement(s) and any related agreements, such third party, if held liable by the Client on account of such act, may also invoke such defence as if that third party itself were a party to the Agreement.

 

10. RETENTION OF TITLE

10.1 To the extent that Ingram Micro delivers Products to the Client, Ingram Micro will retain title to all Products delivered until such time as all amounts due by the Client to Ingram Micro pursuant to the Agreement entered into between the Parties have been paid in full.
10.2 As long as the Client has not paid the outstanding claim or claims under the relevant Agreement, it will not be entitled to create any (non-possessory) right of pledge on the Products delivered by Ingram Micro, or to rent out such Products, or in any way or by any title whatsoever surrender control of such Products, except as provided in article 10.3 of the present module A. In the event of attachment of the Products delivered by a third party, on any basis whatsoever, the Client must immediately notify Ingram Micro In Writing. If the Client creates a new item (also) on the basis of Products delivered by Ingram Micro, the Client will create such item only for Ingram Micro and retain the newly created item for Ingram Micro until such time as the Client has paid all amounts due under the Agreement. In such event, Ingram Micro will retain title to the newly created item until such time as the Client has made payment in full.
10.3 The Client may, as long as it has not paid outstanding claims, use, sell or resell the Products within the context of its normal business operations, to the extent that that is customary and it acts as a reseller.
10.4 The Client will at all times be required to store the Products to which Ingram Micro's retention of title relates separately and clearly marked as property of Ingram Micro.
10.5 If Ingram Micro wishes to exercise its property rights as referred to in this article, the Client hereby, in advance, grants its unconditional and irrevocable consent to Ingram Micro, or to the third party to be designated by Ingram Micro, to access all the locations where Ingram Micro's property may be stored and to repossess such Products.

 

11. RIGHT OF RETENTION AND RIGHT OF PLEDGE

11.1 To the extent that, for purposes of Performances to be provided by it, Ingram Micro holds any Items, documents and/or moneys from the Client, Ingram Micro will have a right of retention in respect of such Items, documents and/or moneys vis-à-vis any party that requires surrender thereof, for all claims that Ingram Micro may, now or in the future, have against the Client.
11.2 The Parties agree that on all Items and/or documents that Ingram Micro may, now or in the future, hold pursuant to the Agreement(s) entered into with the Client, a right of pledge will be created as referred to in Article 3:236 DCC for all claims that Ingram Micro may, now or in the future, have against the Client, on any basis whatsoever. The Client declares to be authorized to create the aforesaid right of pledge, and that such Items and documents are not encumbered with any right of pledge or attachment.

 

12. CONTRACT EXTRAS

12.1 Any additional work performed or additional performances provided by Ingram Micro at the request, or with the prior consent, of the Client, which come outside the content or scope of the agreed services will constitute contract extras. Any such work or performances will be reimbursed by the Client in accordance with Ingram Micro's customary rates. Contract extras will also be understood to include any expansion of, or change to, the scope of an Assignment already agreed, at the request of the Client. In no event will Ingram Micro be required to comply with any such request, and Ingram Micro may require that a separate Agreement be entered into in that respect.
12.2 The Client accepts that any work or performances as referred to in the foregoing paragraph of this article may affect the agreed or expected timing of completion of the work and the mutual obligations of the Client and Ingram Micro. In no event will the mere fact of any contract extras, or the request for such contract extras, arising during performance of the Agreement constitute ground for the Client to dissolve or terminate the Agreement and any related agreements.
12.3 To the extent that a fixed price has been agreed in consideration of the Performances to be provided by Ingram Micro, Ingram Micro will, on request, inform the Client In Writing and in advance of the financial consequences of any additional work or performances.

 

13. RELATED AGREEMENTS

If multiple Agreements have been entered into between the Client and Ingram Micro, such multiple Agreements will be considered related agreements. As a result, attributable failure on the part of the Client to perform under one Agreement will also constitute attributable failure under the other agreement or agreements.

 

14. TERMINATION OF THE AGREEMENT

14.1 Unless agreed otherwise In Writing, either Party will - if the Agreement represents a long-term relationship - at all times have the right to terminate the Agreement (early), with due observance of a notice period of three (3) months, by giving Written notice to the other Party.
14.2 If the Client fails to perform the Agreement(s) entered into between the Parties by failing, or failing punctually, fully or properly, to perform one or more of its obligations under the Agreement(s), or under any other agreements resulting from same, the Client will be in default by operation of law. In such event, Ingram Micro will be entitled to suspend (further) performance of its obligations under the Agreement(s) and any related agreements until such time as the Client has performed its obligations in full and/or to repossess the items owned by it and/or to dissolve all or part of the Agreement(s), all without prejudice to its other rights. In the event of dissolution of the Agreement by Ingram Micro as a result of attributable failure on the part of the Client, the Client will be liable to compensate Ingram Micro for the damage suffered and to be suffered by it, including but not limited to damage as a result of lost profit and the investments made by Ingram Micro.
14.3 Ingram Micro may terminate the Agreement(s) and any related agreements with immediate effect by giving Written notice, without any liability arising on its part to pay damages to the Client, if:
(a) a petition in bankruptcy or an application for a (provisional) moratorium on payment of debts has been filed in respect of the Client, the Client has been ordered bankrupt, or the Client has been granted a (provisional) moratorium on payment of its debt; or
(b) the Client's business is closed down, wound up, dissolved, discontinued or taken over, or in the event of a similar situation occurring in respect of the Client's business.
14.4 Ingram Micro will be entitled to terminate the Agreement(s) and any related agreements In Writing with due observance of a notice period of thirty (30) calendar days in the event of a change in control of the Client. A change in control of the Client is understood as the transfer of the majority of the shares in the issued capital of the Client or a change in the actual control of the Client. The Client will be required promptly to communicate any change in control In Writing, whereupon Ingram Micro will be entitled to terminate the Agreement(s) within a period of thirty (30) calendar days.
14.5 Upon termination of the Agreement(s) and any related agreements, for any reason whatsoever, all such claims as Ingram Micro may have against the Client under the relevant Agreement(s) will become promptly due and payable, and the Client will lend its full cooperation in order to enable Ingram Micro promptly to repossess all items owned by it.
14.6 Termination or dissolution of the Agreement(s) on any of the grounds as set forth in this article will only affect the Parties' future obligations to the extent ensuing from, or relating to, the Agreement(s) and any related agreements. The foregoing means that the legal basis for performances rendered by the Parties prior to termination of the Agreement(s) will not be affected, so that Ingram Micro will continue to be fully entitled to payment of invoices relating to all Performances provided by it up to that point.
14.7 Any obligations which, by their nature, are intended to survive termination or dissolution of the Agreement(s) will continue to be in effect after termination or dissolution, irrespective of the ground for termination or dissolution. Such obligations include, without limitation, confidentiality, liability, dispute resolution, applicable law, and this article.

 

15. LIABILITY

15.1 Ingram Micro will be liable to the Client only for damage suffered as a direct result of an attributable failure in the performance of the Agreement(s) and any related agreements. Such liability will at all times be limited as provided in this article.
15.2 Unless performance by Ingram Micro has been rendered permanently impossible, liability on the part of Ingram Micro on account of attributable failure in the performance of its obligations under the Agreement(s) will only arise if the Client promptly gives it Written notice of default, granting it a reasonable term for performance, and Ingram Micro continues attributably to fail, even after such term, to perform its obligations. The notice of default must give as complete and detailed a description as possible of the failure, in order to enable Ingram Micro to respond adequately.
15.3 If and to the extent that Ingram Micro is liable, on any basis whatsoever, such liability for the provision of: (a) Services will be limited to the invoice amount charged for the damaging Service or Services and - to the extent that the damaging Services have been provided for a consecutive period of two (2) months - for a period of two (2) months preceding the event causing the damage; or (b) Products will be limited to the invoice amount charged for the relevant Products, a series of connected events, for purposes of this article, being deemed to be a single event/instance of damage.
15.4 If Ingram Micro has outsourced performance of all or part of the Agreement(s) and any related agreements to a third party, and the liability of the third party engaged by Ingram Micro for the performance of the work is limited to a further extent than as set forth in this article, Ingram Micro's liability to the Client will - in derogation of the other provisions of this article - be limited to that same extent.
15.5 Any liability for damage caused by Ingram Micro's nonmanagerial staff, indirect damage, consequential damage, nonmaterial damage, business or environmental damage, including lost turnover and profits, losses sustained, lost market share, production standstill, investments made, acquired goodwill, reputational damage, or liability to third parties, will be expressly excluded. 15.6 Ingram Micro will not be liable for damage, of any nature whatsoever, caused by:
(a) failure on the part of the Client to perform its obligations under the Agreement(s) and/or any related agreements and/or applicable laws and regulations. This means, without limitation, that Ingram Micro will in no event be liable for any damage suffered or to be suffered by the Client as a result of the Client's provision of incorrect or incomplete information or other failure to perform the duty to provide information and notifications imposed on it as referred to in these Conditions;
(b) any acts or omissions on the part of the Client or any third parties engaged by the Client;
(c) loss of data in the provision of the Performance(s). The Client will be responsible for backing up its own data; and/or
(d) the Client's requirement that certain work be continued, against Ingram Micro's express advice.
15.7 Any limitation of Ingram Micro's liability will not apply in the event of wilful misconduct or deliberate recklessness on the part of Ingram Micro.
15.8 Any claims for damages must be reported to Ingram Micro In Writing within two (2) months after the Client has discovered, or should reasonably have discovered, the damage, on pain of forfeiture of any right to claim damages.

 

16. INDEMNIFICATION

To the extent that the Client fails to perform any obligation imposed on it under the Agreement(s) and any related agreements and/or applicable laws and regulations, it will be required to indemnify Ingram Micro against any and all damage suffered or to be suffered by the later as a result of the failure to perform such obligation, to the extent that Ingram Micro is held liable in that respect by a third party.

 

17. FORCE MAJEURE

17.1 Force majeure will be understood to include - without limitation -: war and similar situations, government measures, strike, lock-out, obstructions by third parties, transport problems, technical complications unforeseen by the Parties, fire, explosion, other serious disruptions within Ingram Micro's business that are not at Ingram Micro's risk, failure, or failure punctually or properly, by a third party to provide any performance to Ingram Micro (which is relevant in connection with the Performance or Performances to be provided by Ingram Micro) (such as failure on the part of suppliers properly to perform and/or defectiveness of third-party items, equipment, software or materials), power failure and/or downtime of the internet or any data network or telecommunications facilities.
17.2 During a situation of force majeure, Ingram Micro's delivery and other obligations will be suspended. If the situation of force majeure has continued for a consecutive period of more than one (1) month, Ingram Micro will be authorized to dissolve the Agreement and any related agreements, without any liability arising on its part to pay damages.
17.3 If the situation of force majeure has continued for a consecutive period of more than one (1) month, the Client will only be authorized to dissolve the Agreement and any related agreements if: (i) the Client can demonstrate that earlier performance is essential to its business operations, and (ii) the situation of force majeure is not expected to end in the short term (i.e. 60 calendar days). In such event dissolution must be effected In Writing, not later than five (5) calendar days following expiry of the term of one (1) month referred to in the foregoing paragraph.
17.4 If, upon occurrence of the situation of force majeure, Ingram Micro has already performed part of its obligations, or is able to perform only part of its obligations, it will be entitled to invoice the part performed or to be performed separately, and the Client will be required to pay such invoice as if it related to a separate agreement.

 

18. INSURANCE

18.1 The Client will at all times be required to have taken out and to maintain adequate insurance with a reputable insurer in connection with the proper insurance, and maintenance of such insurance, of all Items to be made available to Ingram Micro for purposes of the Performance(s) to be provided (including but not limited to adequate insurance against fire, theft, loss, misplacement, etc.). In this respect, the Client will perform all such obligations as may be imposed on it, such as punctual and full payment of premiums. Within five (5) business days of Ingram Micro's demand, the Client will provide a copy of the then current insurance policy.
18.2 In line with the foregoing paragraph of this article, Ingram Micro will in no event be under any obligation to take out insurance for the Items in the provision of the Performance(s).
18.3 In the event of damage to, or loss of, Items due to fire or any other cause, Ingram Micro will - against compensation of all costs involved - lend all such cooperation as may reasonably be requested and as may be necessary to assess the damage or loss.

 

19. INTELLECTUAL AND INDUSTRIAL PROPERTY

19.1 Ingram Micro will retain title to all images, drawings, calculations, explanations, samples, schedules, models, recommendations or other documentation or materials made available or provided by it to the Client with any offers made by Ingram Micro or Agreements entered into with Ingram Micro and any related agreements. The aforesaid images, drawings, calculations, etc. must be returned to Ingram Micro on demand.
19.2 Ingram Micro, its licensors or suppliers will own the intellectual property rights in any Performances. Any and all intellectual property rights created during, or ensuing from, Ingram Micro's performance of the Agreement(s) and any related agreements will be owned exclusively by Ingram Micro or its licensors. On the condition that the Client has performed all its payment and other obligations under the Agreement(s), Ingram Micro will grant the Client a nontransferable, non-exclusive, non-pledgeable, and nonsublicensable licence, subject to termination, to use the result of the Performances for purposes of its own business, in accordance with the provisions of the Agreement.
19.3 Unless the nature of the Agreement dictates otherwise, the Client may not, in any way whatsoever, reproduce, distribute, exploit, pledge or otherwise provide the Performances to any third parties. The Client will not remove or alter, or cause the removal or alteration of, any notices regarding the confidential nature, copyrights, trademark, trade name or any other intellectual property rights in respect of the Products.
19.4 If, for purposes of provision of the Performances, for example Configuration and/or Installation Services, and at the request of the Client, Ingram Micro is to use any logos, images or other materials in which the Client or its licensors own the intellectual property rights, the Client will grant Ingram Micro, as Ingram Micro accepts, a royalty-free, worldwide, nonexclusive and sublicensable licence to use the intellectual property rights provided for purposes of performance of the Agreement(s) and any related agreements. The Client warrants that the aforesaid intellectual property rights do not infringe any third-party intellectual property rights, and will indemnify Ingram Micro against any third-party claims on account of alleged or actual infringement of intellectual property rights owned by such third parties in connection with intellectual property rights owned by the Client.
19.5 If the Client becomes aware of, or receives any (impending) claims in respect of Ingram Micro's intellectual property rights, the Client will be required immediately to notify Ingram Micro thereof In Writing and to provide it with all the information. The Client will not be authorized to enter into negotiations or to agree a settlement with the relevant party. In that respect, the Client will be required to follow all Ingram Micro's instructions. The Client will lend its full cooperation to Ingram Micro in any proceedings or negotiations with third parties. The Client will refrain from any acknowledgments, declarations or acts that may harm Ingram Micro's intellectual property rights.
19.6 Ingram Micro will not be required to assist or support the Client in any way whatsoever in the event of (impending) entitlements, claims or proceedings brought by one or more third parties in respect of a possible infringement by the Products or Performances of the intellectual property rights of any such third parties. Nor will Ingram Micro indemnify the Client in that respect or hold the Client harmless in any way whatsoever. The only exception to the foregoing will be if the relevant licensor or supplier of Ingram Micro offers such assistance, support or indemnification, and provided that Ingram Micro will in no event be required to offer more than that which is offered by the licensor or supplier.
19.7 The Client warrants that the Items do not infringe any thirdparty intellectual or industrial property rights.
19.8 Unless agreed otherwise In Writing, the Client will not be entitled to use Ingram Micro's trademarks, trade or other names or logos in any way whatsoever.

 

20. DUTY TO PROVIDE INFORMATION AND COOPERATION

20.1 The Client undertakes to provide Ingram Micro with all such information and cooperation as may be necessary for Ingram Micro properly to perform the Agreement(s) and any related agreements. The Client will refrain from performing any acts that may render the proper performance of the Agreement(s) and any related agreements impossible for Ingram Micro.
20.2 The Client will be required promptly to notify Ingram Micro In Writing of any facts and circumstances that may come to its knowledge prior to or during performance of the Agreement(s) and that may be relevant to the performance of the Agreement(s). 20.3 The Client will indemnify Ingram Micro against any thirdparty claims in respect of the use of any information provided by or on behalf of the Client.

 

21. INFORMATION SECURITY AND BACK-UPS

The Client will be responsible for adequate security of information and making back-ups or archiving data before making any ICT or other equipment, data, information carriers or any information whatsoever available to Ingram Micro. The Client acknowledges and agrees that Ingram Micro is not responsible for information security and/or for making backups or archiving any data stored in the ICT or other equipment or information carriers, and that Ingram Micro will not be liable for any loss of data or information.

 

22. TRADE SANCTIONS

22.1 The Client will at all times act in accordance with the applicable laws and regulations in the field of import, export and economic sanctions, including but not limited to those imposed by the United Nations, the European Union, the United States of America, and OFAC, prohibiting import and export or abuse of (certain) products and technologies for certain countries, as well as transactions vis-à-vis certain entities and individuals.
22.2 Lists of entities and individuals subject to economic sanctions, which will be updated from time to time, are included in the OFAC Specially Designated Nationals and Blocked Persons List, which can be viewed on the internet (at the time of preparation of these Conditions via the link: https://www.treasury.gov/resource-center/sanctions/sdn-list/pages/default.aspx). It is the Client's responsibility to keep up to date on sanctioned parties and to ensure compliance with the said sanctions legislation.
22.3 The Client will be responsible for imposing all restrictions on third parties in the event of the import of products or the purchase of services from third parties or the export or reexport or transfer of products or the provision of services to third parties. The Client will take all such measures as may reasonably be necessary in this respect in order to ensure that the Client (and any third parties engaged by it) act in accordance with the said sanctions legislation, and the Client will, on demand, provide Ingram Micro with all such information as may be requested in that respect (including the names of any third parties that may be involved). The Client will indemnify Ingram Micro against any and all direct or indirect damage and other forms of liability that may ensue from any claims as a result of failure by the Client or the third parties engaged by it to comply with the provisions of this article.
22.4 Ingram Micro will screen whether transactions under the Agreement(s) are in compliance with international, including European and US, sanctions legislation. In the event that a transaction is not in compliance with the sanctions legislation, Ingram Micro will not perform the transaction, of which it will notify the Client In Writing. In this respect, Ingram Micro will also be entitled to process personal data of Clients in order to be able to perform the aforesaid screening. Ingram Micro will be entitled to share the screening, and the results thereof (and the personal data of the Client and/or its employees and/or any third parties engaged by it) with its affiliates. In the event that Ingram Micro or its affiliates see reason to disclose personal data to the relevant authorities within and/or outside the EEA in respect of the performance of the Agreement(s), Ingram Micro will notify the Client In Writing, unless this is contrary to the law or is not permitted pursuant to a decision of a competent government authority.
22.5 The Client agrees to comply with all applicable laws and regulations, and to conduct its business in accordance with the principles of the United Nations Global Compact, as well as with the principles in Ingram Micro's code of conduct. A copy of Ingram Micro's code of conduct is available on www.ingrammicro.com and upon request. The Client agrees to comply with the applicable anti-bribery and anti-corruption legislation (e.g. the U.S. Foreign Corrupt Practices Act, UK Bribery Act). The Client shall not make any direct or indirect payment, offer to pay, or authorization to pay, any money, gift, promise to give, or authorization of the giving, of anything of value to any government official or politician, or the immediate family of any such official or politician, for the purpose of influencing acts or decisions of the government or such individual in order to assist, directly or indirectly, the Client or Ingram Micro in obtaining or retaining business, or securing an improper advantage. The Client's commitment to comply with the anti-bribery and anti-corruption laws and regulations shall also extend to the Client's dealings with private entities, including but not limited to, Ingram Micro and its suppliers, and the Client's customers and any other commercial parties.

 

23. CONFIDENTIALITY

All information, in any form whatsoever, that the Parties exchange, or have exchanged in connection with enquiries from the Client, offers from Ingram Micro (including quotations) and the Agreement(s), or the formation thereof, to which they mutually provide, or have provided, access, or with which they are, or have been, confronted, will be qualified by the Parties as confidential. The Parties will not use, copy or store any such confidential information - even after termination of the relationship - for any purpose other than that for which it was provided to them. Neither Party will be free to provide the confidential information to any third parties in any way whatsoever, unless they have obtained the Written consent of the other Party to do so.

 

24. MISCELLANEOUS PROVISIONS

24.1 The Client will not be authorized to set off any obligation, whether or not due and payable, on its part against any obligation of Ingram Micro vis-à-vis the Client.
24.2 Either Party will be required to act in accordance with the laws and regulations applicable to the Agreement(s) and any obligations relating to, or ensuing from, same.
24.3 Any legal claims that the Client may have against Ingram Micro pursuant to the Agreement(s) and any related agreements and/or the law will expire after one (1) year has passed since commencement of the statutory prescription period.
24.4 Ingram Micro will be authorized to make amendments to these Conditions. Any such amendments will take effect at such time as is announced. Ingram Micro will provide the amended Conditions to the Client prior to the effective date of the amendments. If no effective date has been communicated, any amendments will take effect vis-à-vis the Client as soon as it has been notified, or it has become aware, of such amendments.
24.5 Unless agreed otherwise In Writing, the Client cannot and may not assign to third parties or encumber any of its rights and/or obligations under any Agreement entered into with Ingram Micro. This provision will have effect under the law of obligations and under property law within the meaning of Article 3:83(2) DCC.
24.6 Ingram Micro will be entitled to assign its rights and obligations under the Agreements entered into between itself and the Client to any other natural person or legal entity, whether or not affiliated with Ingram Micro, as a result of which assignment, Ingram Micro will be discharged of its obligations vis-à-vis the Client. Ingram Micro will notify the Client of the assignment In Writing. The Client hereby agrees in advance to any such assignment.
24.7 If any provision of these Conditions is void or voided, the other provisions of these Conditions will remain in full force and effect, and the Parties will consult in order to agree new provisions to replace the void or voided provisions, observing the objective and purport of the void or voided provision to the extent possible.

 

25. APPLICABLE LAW AND CHOICE OF FORUM

25.1 The enquiries, offers, Assignments and Agreements, and their performance, as well as these Conditions themselves, will be governed by the laws of the Netherlands, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG 1980).
25.2 Any disputes that may arise as a result of, or in connection with, the Agreement and any obligations ensuing from it to which these Conditions apply, or the Conditions themselves and their interpretation or performance, will in the first instance be decided by the District Court of the Central Netherlands, Utrecht location.

 

B: Specific provisions governing personal data processing

26. SCOPE OF APPLICATION

In addition to the provisions as set forth under A of these Conditions, these provisions under B will apply to the processing of personal data relating to all enquiries from the Client, offers from Ingram Micro (including quotations), and Agreements and any related agreements.

 

27. PERSONAL DATA PROCESSING

27.1 In the context of performance of the Agreement, Ingram Micro will process Personal Data. Such Personal Data may include data of the contacts at the Client's or data of customers of the Client, such as name, address, email address or telephone number. These data may have been disclosed to Ingram Micro by the Client or obtained by Ingram Micro itself. If the Client discloses Personal Data to Ingram Micro, the Client will at all times be deemed to be the controller within the meaning of the GDPR. If Ingram Micro processes Personal Data on the instructions of the Client without any control of that processing, Ingram Micro will be deemed to be a processor within the meaning of the GDPR. In such event, the Parties will be deemed to have agreed to the data processing agreement as set forth below. To the extent that Ingram Micro processes Personal Data in the context of the Performances provided and/or to be provided by it for the Client, Ingram Micro having control of the purpose of the processing, Ingram Micro will be deemed to be the controller within the meaning of the GDPR in respect of that processing operation.
27.2 The Parties will process the Personal Data in accordance with the applicable privacy regulations, including the GDPR and the applicable implementation acts. The Client warrants that it is entitled to disclose the Personal Data to, and cause the processing thereof by, Ingram Micro. The Parties will keep the Personal Data confidential and will take such measures as may be necessary to safeguard the confidentiality of the Personal Data.

 

28. JOINT CONTROLLERS

28.1 For purposes of processing operations for which the Parties are deemed to be joint controllers within the meaning of the GDPR, they agree the following arrangements in accordance with Article 26 GDPR:
(a) The Client will be responsible for all its own processing operations in respect of the Personal Data up to and including disclosure of the Personal Data to Ingram Micro. Furthermore, the Client will be responsible for the processing operations in respect of Personal Data by Ingram Micro carried out on the instructions of the Client. This will include the disclosure by Ingram Micro of Personal Data to third parties on the instructions of the Client or on the instructions of a party designated by the Client. Ingram Micro will be responsible solely for the processing operations carried out by it for its own purposes.
(b) The Client will notify the Data Subjects of the processing of their Personal Data in accordance with Articles 13 and 14 GDPR. The Client will inform Data Subjects of such part of this provision as may be relevant to Data Subjects. For example, the Client will in any event inform the Data Subjects of the disclosure of Personal Data to Ingram Micro in the context of performance of the Agreement(s) and of the fact that Data Subjects may submit their questions and requests to the Client.
(c) If and to the extent that Ingram Micro processes Personal Data for its own purposes, Ingram Micro will inform the Data Subjects through its privacy notice on the relevant website.
(d) Ingram Micro will forward any requests or objections that it may receive from a Data Subject, including a request for information, access, rectification, erasure, restriction of the processing, or data portability in respect of the processing of Personal Data in the context of performance of the Agreement(s), to the Client. Ingram Micro will inform the Data Subject thereof. The Client will handle any such requests in accordance with the applicable privacy regulations. The Client will inform Ingram Micro of the handling of the request. Where necessary, Ingram Micro will lend the necessary cooperation in order to comply with the request against reimbursement of the costs incurred. Only if Ingram Micro receives a request as referred to above in respect of the processing of Personal Data for its own purposes will Ingram Micro handle such request itself in accordance with the applicable privacy regulations.
(e) If the Client receives a request as referred to under (d) of this article from a Data Subject, or a complaint about the processing of Personal Data in which Ingram Micro is involved as well, the Client will immediately notify Ingram Micro thereof. The Parties will consult as to the method of handling the request or complaint.
(f) The Client will immediately notify Ingram Micro if it discovers any Security Incident in which Ingram Micro is involved. Prior to reporting any such Security Incident to the competent authority and/or notifying the Data Subject or Data Subjects thereof, the Client will consult with Ingram Micro as to the information to be provided to the competent authority or any Data Subjects.
(g) In the event of any investigation by a supervisory authority or any occurrence that may indicate an intention on the part of a supervisory authority to initiate an investigation or to impose a penalty in respect of the processing of Personal Data pursuant to the Agreement(s), either Party will immediately notify the other.

 

29. DATA PROCESSING AGREEMENT

29.1 In respect of processing operations for which Ingram Micro acts as a processor and the Client acts as the controller within the meaning of the GDPR, the Parties agree the following arrangements in accordance with Article 28 GDPR:
(a) Ingram Micro will process the Personal Data based on the Written instructions of the Client in the context of performance of the Agreement(s) or in connection with a legal obligation for Ingram Micro or any of its affiliates.
(b) Ingram Micro will keep the Personal Data confidential and will also impose the confidentiality obligation on its employees and the persons engaged by it. Ingram Micro will disclose the Personal Data to a third party only if necessary in the context of performance of the Agreement(s) for the Client or if necessary to perform a legal obligation for Ingram Micro or any of its affiliates.
(c) Ingram Micro will, in accordance with the applicable privacy regulations, take, maintain and, where necessary, adjust technical and organisational measures in order to safeguard a level of security appropriate to the risk. When taking security measures, Ingram Micro will take into account the state of the art, the cost of implementation, as well as the nature, scope and context, and the purposes of processing, and the risks of varying likelihood and severity for rights and freedoms of natural persons.
(d) Ingram Micro will inform the Client without undue delay after becoming aware of a Security Incident in respect of the processing of the Personal Data. In the event of a Security Incident, Ingram Micro will take all reasonable measures to mitigate the consequences of the incident. Ingram Micro will lend its full cooperation to enable the Client to comply with its duty to report data breaches and its duty to inform Data Subjects, where applicable.
(e) If a Security Incident at Ingram Micro's should lead to a duty for the Client to report or inform, the Client will make the report or provide the information in consultation with Ingram Micro. The Parties will make arrangements, in good consultation, as to the allocation of the costs involved.
(f) Ingram Micro will immediately forward any requests or objections that it may receive from a Data Subject, such as a request for information, access, rectification, erasure, restriction of the processing or portability of the Personal Data, to the Client. Ingram Micro will lend all such reasonable cooperation to the Client as may be necessary to ensure that the Client can comply with the obligations pursuant to the applicable privacy regulations within the statutory terms. The reasonable costs incurred in lending such cooperation will be reimbursed by the Client to Ingram Micro.
(g) Furthermore, Ingram Micro will lend all such cooperation to the Client as may be necessary in the performance of its obligations under the applicable privacy regulations, including in the performance of a data protection impact assessment (DPIA) or a mandatory prior consultation. The Client will reimburse the costs incurred by Ingram Micro in lending such cooperation.
(h) The Client will be entitled, once per year, at its own expense, to cause independent experts to carry out an audit in respect of Ingram Micro's processing of Personal Data to verify compliance with this data processing agreement. Ingram Micro will lend all reasonable cooperation to any such audit. The Parties may agree that the aforesaid audit will be replaced by a Third Party Notice (TPN) from Ingram Micro.
(i) The Client consents to Ingram Micro's processing of the Personal Data outside the EEA if necessary in the context of performance of the Agreement(s). This may include the processing of the Personal Data through the systems used by the affiliates, including Ingram Micro Inc. in the United States of America.
(j) The Client consents to Ingram Micro's engaging of third parties for the performance of the Agreement(s) for the Client and, where necessary, to disclose Personal Data to such parties (Sub-processors). At the Client's request, Ingram Micro will provide details of the parties engaged by Ingram Micro. Ingram Micro will notify the Client of any changes to the parties to be engaged. In such event, the Client will be entitled to object to such change for cause within fourteen (14) business days.
(k) Ingram Micro will enter into an agreement with the Subprocessors engaged by it, in accordance with the applicable privacy regulations and this data processing agreement.
(l) This data processing agreement will end by operation of law upon termination of the Agreement as a result of notice given by Ingram Micro to the Client, where Ingram Micro is the processor. Upon termination of the Agreement(s), Ingram Micro will, at the Client's request and against reimbursement of the reasonable costs, make the Personal Data available to the Client in a commonly used format. Where transfer is not desired, Ingram Micro will destroy the Personal Data, unless it is required by law to retain the Personal Data for a longer period of time.

 

30. CONTACT FOR QUESTIONS OR COMMENTS

The Client can submit any questions or comments as to the processing of Personal Data to privacy@ingrammicro.com.

 

C: Specific provisions governing delivery of Products

1. SCOPE OF APPLICATION

In addition to the provisions as set forth under A of these Conditions, the delivery of Products will be governed by the provisions under C of these Conditions. In the event of conflict between the provisions under A and under C, the provisions under C will prevail.

 

2. DELIVERY, RISK AND TRANSPORT

2.1 If the Client does not take delivery of the Products at the time of delivery by Ingram Micro, the Client will be in default, without any notice of default being required, and Ingram Micro will be entitled to store the Products at the expense and risk of the Client. Moreover, Ingram Micro will be entitled to invoice any such Products to the Client in accordance with the provisions of article 6 under module A of these Conditions, while the Client will be under the obligation to pay the relevant invoice. All costs ensuing from the foregoing circumstances, including but not limited to the costs of storage, will be payable by the Client and must, just as the aforesaid invoice, be paid by the Client before Ingram Micro can be required to deliver the relevant Products. The provisions of this paragraph will apply without prejudice to any other rights that Ingram Micro may have.
2.2 The Products will be transported at the expense and risk of the Client, even if the carrier requires that any consignment notes, road waybills, and such like contain the provision that any transport damage be at the expense and risk of the sender. The foregoing entails that any and all transport and insurance costs will be payable by the Client. Unless agreed otherwise In Writing, the method of transport, shipment, packing, etc. will be determined by Ingram Micro.
2.3 Ingram Micro will be entitled to deliver in consignments, each of which may be invoiced separately. In such event, the Client will be required to pay in accordance with the provisions of article 6 under module A of these Conditions.

 

3. LICENCE CONDITIONS

3.1 If the intellectual property rights in the Products are owned by licensors or suppliers of Ingram Micro's, only the licence conditions, user conditions and/or product conditions of the relevant licensor or supplier will apply. The Client will strictly comply with the applicable licence and other conditions. The Client will indemnify Ingram Micro against the consequences of any claims by right owners on account of non-compliance by the Client with the applicable licence or other conditions.
3.2 The Client will acquire the right to use the Products subject to the licence conditions of the relevant licensor or supplier. In the event of software, the use right granted to the Client or its end users will not extend to the source code. The source code of the software and any accompanying technical documentation will not be made available to the Client, unless agreed otherwise In Writing.
3.3 The Client will have the right, to the extent necessary for the supply of the Products, to grant its end users a non-exclusive, non-transferable, non-pledgeable, and non-sublicensable sublicence, subject to termination, to use the Products subject to the applicable licence conditions of the licensors and/or suppliers of Ingram Micro'.
3.4 The Client will at all times provide its end users with the applicable licence and other conditions and ensure that the end users are aware of the fact that the Products may be used solely in accordance with the relevant licence and other conditions. More specifically, the Client will ensure that the end user will accept the licence and other conditions before the end user may start using the Product.
3.5 The Client may not copy or otherwise reproduce, duplicate, lend or otherwise make the Product and, more specifically, the software and any accompanying documentation from Ingram Micro or its licensors and/or suppliers, available to its end users or any third parties, unless expressly provided otherwise in the applicable licence or other conditions.

 

4. WARRANTY

4.1 Ingram Micro warrants that, at the time of delivery, the Products will conform in terms of agreed quantities and types and will satisfy the applicable product specifications as set forth in the Agreement, all with due observance of the following provisions.
4.2 The warranty in respect of the product specifications will be limited to the warranty given by the manufacturer/supplier(s). In no event, therefore, will Ingram Micro give the Client any warranty extending beyond the warranty given by the manufacturer/supplier(s). This warranty only regards substantial defects that render the normal use of the Products impossible. Ingram Micro will determine - also based on the position taken by the manufacturer/supplier(s) - whether the warranty will be given to the Client or its end user through Ingram Micro or directly by the manufacturer/supplier(s).
4.3 The warranty referred to in this article means that - at Ingram Micro's sole discretion - any missing Products will still be delivered, defective Products (or parts thereof) will be replaced or repaired (to the extent that the Products and/or parts are still available from the manufacturer/supplier(s)), or are taken back and the relevant invoice will be credited and the costs relating to return shipment of the Products will be reimbursed. In no event will Ingram Micro be liable to perform any further obligation, including compensation of other costs, damage and/or interest.
4.4 Any warranty claim in respect of the Products on the part of the Client must be reported to Ingram Micro's Customer Service. After any such claim has been reported, Ingram Micro will notify the Client of the procedure of the manufacturer/supplier(s) of the Products: 1) dealing directly with the Client (in which event the Client must deal directly with the manufacturer/supplier(s)); or 2) provision by Ingram Micro to the Client of an RMA number (in which event the Client must return the items in their original unmarked packaging to Ingram Micro, together with details on the RMA number and the Client's name and address). If Ingram Micro has provided the Client with an RMA number, Ingram Micro will not send any replacement items to the Client until the original Product has been returned to Ingram Micro. The Client will be required to follow any and all directions and instructions. In any communication on the warranty claim, the Client must at all times state the RMA number.
4.5 Any documentation (including brochures), disclaimers, recommendations on use and condition of the Products delivered, other recommendations and guidance will be prepared and given, as the case may be, by Ingram Micro to the best of its knowledge and ability. Ingram Micro does not warrant that any information obtained from the foregoing will be correct and complete, and will not be liable to the Client in any way whatsoever in that respect.
4.6 Any other conditions and warranties in respect of the quality or fitness for the intended use of the Products, either separately or together with other materials, will apply only if agreed between the Parties In Writing.
4.7 Any and all claims to warranty will be forfeited if the Client adapts or processes, or has adapted or processed, or makes alterations to, the Products delivered without the prior written consent of Ingram Micro, or uses, or causes the use of, the Products delivered in any way other than in accordance with the use instructions, or in an improper fashion.

 

5. USE BY THE CLIENT/INDEMNIFICATION

5.1 The Client will be required to:
(a) trade the Products only in the original Ingram Micro packaging. The Client may not in any way whatsoever alter the condition of the packaging of the Products purchased by it from Ingram Micro with a view to resale;
(b) follow any and all Written and/or oral instructions given by Ingram Micro in respect of the use, quality protection, and durability of the Products;
(c) pass on the aforesaid instructions to its customers/buyers in good time;
(d) promptly discontinue the use or resale and delivery of the Products to a third party and warn Ingram Micro without delay in case of doubt as to the quality and soundness of the Products in its possession;
(e) give the inspectors designated by Ingram Micro the opportunity to inspect the Products in its possession in the situations described above and in general, in order to verify whether the obligations set forth in this article are properly performed;
(f) promptly notify Ingram Micro of any complaints or comments (including but not limited to complaints or comments from customers/buyers) regarding the Products, and to keep in place a proper complaints registration procedure in that respect; and
(g) on Ingram Micro's demand, provide a statement of any third parties to which it has resold the Products, and to give access to the relevant sales contracts.
5.2 The Client will be required, in the event of resale of Products to a third party (not being a consumer), to impose on such third party the obligations and prohibitions as set forth in this article and in article 7 (recall) of the present module, to the extent applicable, for the benefit of Ingram Micro, stipulating a penalty for the benefit of Ingram Micro for each violation, as described in the following paragraph. The obligations of this article and of article 7 (recall) of this module will be imposed by the Client by way of a perpetual clause.
5.3 In the event of violation of the provisions of this article, the Client will forfeit to Ingram Micro an immediately payable penalty in the amount of EUR 1,000 per violation and EUR 500 per day or part of a day that the violation continues. Ingram Micro will be entitled to claim full damages if the damage exceeds the amount of the penalty.
5.4 The Client will indemnify Ingram Micro against the consequences of any third-party claims arising as a result of failure by the Client to perform its obligations as set forth in this article.

 

6. COMPLAINTS

6.1 The Client will be required, promptly upon taking delivery of the Products, to check the quantity and types of Products, as well as the packaging, for any inaccuracies, shortcomings and/or damage, and to check whether the Products show any defects and/or damage.
6.2 Any complaints as to quantities, types and packaging of the Products must be promptly noted by the Client on the transport document or the delivery note, on pain of forfeiture of the right to complain in that respect. Any complaints as to visible defects in the Products and/or packaging must be filed In Writing as soon as possible, but in any event within eight (8) business days following receipt of the Products, accurately stating the nature of and the ground for the complaints, as well as the invoice number (or, in the absence thereof, the dispatch note or order confirmation), failing which the Client will be deemed to have accepted the Products.
6.3 Use and/or resale of the Products will be deemed to constitute acceptance by the Client.
6.4 The provisions of paragraphs 2 and 3 will apply without prejudice to the Client's rights in the event of hidden defects. The Client will be required to report any hidden defects to Ingram Micro In Writing within five (5) business days after they have been, or could reasonably have been, discovered, but in no event later than six (6) months following receipt of the Products.
6.5 In the event of a complaint, the Client will be required to keep the Products complained about at Ingram Micro's disposal for further investigation. Moreover, the Client will be required also otherwise to lend its cooperation in any investigation of the Products by Ingram Micro.
6.6 A complaint will not entitle the Client to suspend its payment or other obligations vis-à-vis Ingram Micro and/or to rely on setoff.
6.7 Return shipment of the Products will be permitted only within 8 business days of purchase and with the prior Written consent of Ingram Micro, on conditions subsequently to be determined by Ingram Micro, including in respect of the costs and method of return shipment. In the event of return shipment without Ingram Micro's consent, shipment as well as storage will be at the expense and risk of the Client.
6.8 If Ingram Micro accepts a request for return shipment in respect of the Products, Ingram Micro will provide the Client with an "RMA number". Subsequently, the Client must ensure that the Products be returned to Ingram Micro in their original unmarked packaging - within eight (8) business days of provision of the RMA number - by delivering, or causing the delivery of, same to the distribution centre designated by Ingram Micro. The RMA number must be clearly stated on the packaging or other documents accompanying the return shipment of the Products.

 

7. RECALL

The Client will be required to lend its assistance to Ingram Micro in the event of a possible recall. In the event of a recall by Ingram Micro in respect of a Product, the Client will promptly return the relevant Products, to the extent in its possession, to the Client to Ingram Micro and follow any and all directions and instructions from Ingram Micro in that respect. In such event, Ingram Micro will send the Client a credit note for the invoice amount of the returned Products and reimburse the costs relating to return shipment of such Products.

 

8. ADDITIONAL TERMS AND CONDITIONS

In addition to these Conditions, additional terms and conditions may apply to (the sale and purchase of) certain Products as prescribed by the supplier(s) of Ingram Micro. In such an event, Ingram Micro and/or the supplier will inform the Client of (the applicability of) these additional terms and conditions. The aforementioned additional terms and conditions form an integral part of the agreements made between Ingram Micro and the Client and may, among other things, relate to special project and/or promotional conditions relating to the sale of the Products by the Client to end users. In the event of non-compliance by the Client with the applicable supplementary conditions, the Client is liable for all damage suffered and to be suffered as a result of this, including the damage suffered or to be suffered by Ingram Micro as a result of any claims from its suppliers regarding compliance with the applicable terms and conditions.

 

D: Specific provisions governing Warehousing

1. SCOPE OF APPLICATION

In addition to the provisions as set forth under A of these Conditions, Warehousing will be governed by the provisions under D of these Conditions. In the event of conflict between the provisions under A and under D, the provisions under D will prevail.

 

2. TITLE TO THE ITEMS

The Client will hold title to the Items and warrants that it is authorized to order Ingram Micro to provide Warehousing services.

 

3. PROVISION OF INFORMATION AND PRE-ARRIVAL NOTIFICATION

3.1 The Client will be required to provide Ingram Micro with all correct and complete information on the Items (such as nature, weight, dimensions, value, packaging, and all other particulars, etc.) in good time, and to notify Ingram Micro in the event of any special requirements that may apply to the storage, safekeeping and/or handling of the Items, as well as to provide all other information that the Client knows, or should know, is, or may be, relevant to Ingram Micro.
3.2 The Client will be required to inform Ingram Micro in good time as to what Items, in what quantity, and at what time, will be presented by it to Ingram Micro for Warehousing purposes.
3.3 If the Client fails to perform any of the obligations as referred to in this article, the Client will be liable for any and all costs and other damage sustained by Ingram Micro (including but not limited to engaging staff or third parties and/or keeping available or renting equipment).

 

4. PROVISION AND CONDITION OF THE ITEMS

4.1 Unless agreed otherwise In Writing, the Client will be required to make the Items available to Ingram Micro at the agreed location and time and in the agreed manner, accompanied by such documents as may be required by Ingram Micro and by law. Furthermore, the Items presented by the Client must be adequately labelled stating the following information (to the extent applicable): sender, destination, packaging number and number of packages, client and reference number.
4.2 The Items must be presented by the Client in good condition and - where applicable - properly and carefully packed. If any Item arrives at Ingram Micro's in damaged or defective condition, which is visible on the exterior, Ingram Micro will be entitled to refuse the Item and to recover any and all costs and other damage involved from the Client. Ingram Micro will promptly notify the Client thereof In Writing.
4.3 The Client warrants the Items made available. Furthermore, the Client warrants that the Items presented by it for storage are not waste or other substances that are prohibited, or at least that should not be accepted by Ingram Micro pursuant to the applicable laws and regulations, and are not: hazardous substances, toxins, substances liable to spontaneous combustion, highly flammable substances, explosives, carcinogens, pathological waste, small chemical waste, or any of the following categories of materials: etchings, textile, corrosive substances, radioactive materials, ionizing materials, organic greases, (compressed) gases, liquid bituminous substances and crude oil products, hospital waste, ink waste (other than ink cartridges in/of electrical equipment) and/or other prohibited waste or problematic substances designated as such by Ingram Micro.
4.4 To the extent that, at any given time, Ingram Micro should learn that, despite the provisions of article 4.3 of this module, the Items received contain any prohibited, hazardous or nonacceptable items, Ingram Micro will be entitled immediately to remove, destroy, or cause the removal or destruction of, the Items, or otherwise render the Items harmless, or to demand that the Client collect and take back the Items immediately. In such event, the Client will be liable for any and all costs and other damage involved. The measures referred to above may be taken by Ingram Micro, irrespective of whether the said Items may constitute an immediately impending hazard. The Client will lend all such cooperation as Ingram Micro may reasonably require. Moreover, the Client will be fully liable for any and all damage suffered and to be suffered by Ingram Micro as a result of violation of the provisions of article 4.3 of this module.

 

5. REGISTRATION

After taking delivery of the Items at the agreed location and time and in the agreed manner, Ingram Micro will inspect the Items based on the pre-arrival notification. In the event of any discrepancies, Ingram Micro will notify the Client and make a registration as such in the (digital) system. For purposes of determination of the Items presented to Ingram Micro for storage, the registration by Ingram Micro of the Items taken delivery of. The registration kept by Ingram Micro in the digital stock system will also be decisive for purposes of determination of any subsequent Items present and movements, for example as a result of taking the Items out of storage at the Client's request.

 

6. WORKING HOURS

The Items must be presented (and collected) by the Client or any third parties engaged by it at the agreed location during such working hours as are customary for the employees of Ingram Micro or any third parties engaged by it. If the Client requires the performance of work outside regular working hours, such work will require the prior Written consent of Ingram Micro and the additional costs involved will be fully payable by the Client.

 

7. DUTIES, COSTS AND TAXES

All costs of freight, COD, taxes, duties, contributions, levies, penalties and/or other charges or costs, howsoever denominated, in respect of, or in connection with, the Items, that may be, or prove, due upon arrival or possibly in arrears, will be payable by the Client and must be prepaid or reimbursed immediately on Ingram Micro's demand, irrespective of whether such Items are (still) present in the storage location.

 

8. STORAGE

8.1 The Client will ensure that the Items are sufficiently identifiable. Upon receipt by Ingram Micro, it will ensure that the Items are stored separately from other items belonging to Ingram Micro or to any third parties.
8.2 Unless agreed otherwise In Writing, Ingram Micro will, in addition to storage, also be responsible for possible forwarding or shipment to one or more third parties designated by the Client (which transport will be governed by the Transport Services module).
8.3 Unless agreed otherwise In Writing, Ingram Micro will not be under the obligation to weigh or measure the Items to be stored. Ingram Micro will, in principle, only open packages to inspect the contents at the express request of the Client, unless Ingram Micro suspects that the contents may derogate from the statements made by the Client in advance. The costs of conducting the investigation referred to above will be payable by the Client.
8.4 In no event will Ingram Micro be responsible for the description and/or identification of the Items taken into custody.

 

9. STORAGE LOCATION AND RELOCATION OF ITEMS

9.1 Unless agreed otherwise In Writing, Ingram Micro will be free to choose the storage location. Moreover, Ingram Micro will at all times be entitled - at its sole discretion - to relocate, or cause the relocation of, the Items to a different storage location, without the prior approval of the Client being required.
9.2 If the Items are relocated by Ingram Micro to a different storage location, the costs involved will be payable by the Ingram Micro and transport will be arranged subject to the customary transport conditions. The costs of relocation of the Items to a different storage location will, however, be fully payable by the Client if the relocation is arranged (i) on the instructions of the Client; (ii) as a result of circumstances beyond Ingram Micro's control; (iii) as a result of circumstances that should not reasonably be at the expense and risk of Ingram Micro; or (iv) as a result of government measures or laws and/or regulations, or amendments thereto. In the situations described under (i) to (iv) above, Ingram Micro will arrange transport as a forwarder at the Client's risk.
9.3 In the event of relocation of the Items to a different storage location, Ingram Micro will notify the Client, however, without any right on the Client's part to object or oppose such relocation.

 

10. DAMAGE TO OR LOSS OF ITEMS

10.1 In the event of damage to and/or loss of the Items as a result of theft preceded by forcible entry, Ingram Micro will be deemed to have observed adequate care if it has arranged proper locking of the storage location. The foregoing will not apply to any Items stored on open premises or that can only be stored on open premises or in respect of which it is customary for Ingram Micro to store such Items on open premises, in which situations Ingram Micro's liability is fully excluded, save wilful misconduct or deliberate recklessness.
10.2 In the event of damage to and/or loss of the Items as a result of attributable failure on the part of Ingram Micro, Ingram Micro's liability will be equal to the amount of the purchase price of the damaged or lost Items paid by the Client. Ingram Micro will be liable to pay damages only if the Client submits sufficient evidence to Ingram Micro demonstrating the aforesaid original purchase price of the Items.

 

11. SPECIAL TREATMENT OF ITEMS

11.1 Ingram Micro will only take the customary measures that can be deemed to be normal for safekeeping of the relevant Items and/or their packaging. Ingram Micro will only be required to take special measures to the extent agreed In Writing with the Client before commencement of the Warehousing services.
11.2 Without prejudice to the provisions of paragraph 1 of this article, Ingram Micro will be entitled promptly to take a measure, at the expense and risk of the Client (such as cleaning up, removing, destroying or otherwise rendering items harmless), if failure to take such measure would entail the risk of loss of and/or damage to the Items themselves or any other items, the storage location or any equipment, or disadvantage for natural persons, or if taking measures is otherwise necessary or appropriate, all at Ingram Micro's discretion. Ingram Micro will notify the Client of such measures being taken, however, without any right on the Client's part to object or oppose such measures.

 

12. TAKING BACK ITEMS

12.1 The Client may only take back the Items (early) against payment of the claims that Ingram Micro has against it and subject to the provisions of these Conditions.
12.2 Unless agreed otherwise In Writing, the safekeeping fee will at all times be calculated on the basis of full weeks, part of a week being deemed to be a full week.
12.3 On the date of expiry of the agreed storage period, the Client will be required to take back or cause the Items to be taken back.
12.4 Ingram Micro will at all times be entitled to require the Client to take back the Items before expiry of the agreed storage period if - at Ingram Micro's discretion - there is an urgent reason to do so as a result of which, according to standards of reasonableness and fairness, Ingram Micro cannot be required to continue storage. To that end, Ingram Micro will set a reasonable term In Writing for the Client to take back the Items. If the Client fails, or fails fully or punctually, to lend its cooperation in any request to take back the Items as referred to above within the term set by Ingram Micro, Ingram Micro will be entitled immediately to remove or destroy, or cause the removal or destruction of, the Items. Any and all costs involved and damage suffered by Ingram Micro in that respect will be fully payable by the Client.
12.5 An urgent reason as referred to in the foregoing paragraph will be deemed to include - without limitation: (i) failure by the Client to perform any of the provisions under the Agreement(s); (ii) risk caused by the presence of the Items of loss of and/or damage to the Items themselves or any other items, the storage location or equipment, or disadvantage for natural persons; (iii) perishable Items, which entail the risk of a substantial value decrease if the Items are kept longer and the Client fails to give instructions to prevent and combat that. In those situations, the safekeeping fee will be fully due by the Client.

 

13. OBLIGATION TO COMPLAIN

13.1 If, after storage, Ingram Micro makes the Items available to the Client again with damage or loss visible on the exterior, without the Client notifying Ingram Micro of a Written reservation, indicating the general nature of the damage or loss, upon or immediately, or at least not later than 24 hours, after taking delivery of the Items, Ingram Micro will be deemed to have made the Items available in the same condition as the condition in which it had received them. If the damage to, or the loss of, the Items upon Ingram Micro's making them available to the Client again after storage is not visible on the exterior, and the Client has not notified Ingram Micro of any Written reservation, indicating the general nature of the damage or loss within one (1) week of taking delivery of the Items, Ingram Micro will be deemed to have made the Items available in the same condition as the condition in which it had received them.
13.2 If, after expiry of the agreed storage period, the Items are not made available to the Client within a reasonable, or the agreed, term, and the Client has not made a Written reservation within one week of taking delivery of the Items in respect of the fact that the Items had not, or not punctually, been made available, Ingram Micro will be deemed to have made the Items available in good time.

 

14. STORAGE AND RIGHT OF PLEDGE

If the Items are not collected or taken delivery of by the Client promptly upon expiry of the storage period (including refusal by the Client to sign for receipt), Ingram Micro will be entitled to:
(a) store the Items at the Client's expense and risk for a period and at a location to be determined by Ingram Micro; and/or
(b) set a further term In Writing for the Client still to take delivery, or cause the taking delivery of, the Items. If, even in the period referred to under b above, the Client fails to take delivery, it will be in default by operation of law. In such event, Ingram Micro will be entitled to sell the Items by public auction, without prior leave from the court within the meaning of Article 3:248(2) DCC being required.

 

15. LIABILITY

15.1 In the event of failure by Ingram Micro to perform its Warehousing obligations, it will not be liable for the damage arising as a result, to the extent that such failure to perform is the result of special risks associated with any of the following circumstances:
(a) the absence or defectiveness of the packaging of the Items which, given their nature or the method of transport, should have been adequately packed;
(b) the handling, loading, stowage or unloading of the Items by the Client, the sender or the persons acting for the account of the Client;
(c) the nature of certain Items itself which, as a result of causes associated with that nature itself, have been exposed to full or partial loss or damage, in particular as a result of combustion, explosion, melting, breakage, corrosion, decay, dehydration, normal loss of quality, or the occurrence of vermin or rodents;
(d) the heat, cold, temperature differences or humidity of the air, but only if it had not been agreed that storage would be arranged in a location specially designed to shield the Items from the influence thereof; and/or
(e) the incompleteness or defectiveness of the identification, digits, letters or marks of the packaging.
15.2 The Client will be liable to Ingram Micro for any damage arising as a result of incorrect and/or fraudulent and/or incomplete descriptions, information or communications, as well as for any damage arising as a result of defects in the Items and/or the packaging not communicated in advance. The foregoing will also apply to any damage as a result of failure, or failure correctly, by the Client to state the weight of the Items.
15.3 The Client will be required to indemnify Ingram Micro against any third-party claims on account of damage caused by the Items presented by the Client for storage, in any way whatsoever (including but not limited to any third-party claims in connection with (alleged) infringement of intellectual property rights).

 

16. VALUE ADDED SERVICES

In addition to Warehousing, the Client may purchase Value Added Services against payment of an additional fee, such as repacking, special treatment of Items, bundling, labelling and crossdocking.

 

E: Specific provisions governing the provision of Transport Services

1. SCOPE OF APPLICATION

In addition to the provisions as set forth under A of these Conditions, Transport Services will be governed by the provisions under E of these Conditions. In the event of conflict between the provisions under A and under E, the provisions under E will prevail.

 

2. TITLE TO THE ITEMS

The Client will hold title to the Items and warrants that it is authorized to order Ingram Micro to provide Transport Services.

 

3. PROVISION OF INFORMATION AND PRE-ARRIVAL NOTIFICATION

3.1 The Client will be required to provide Ingram Micro with all correct and complete information on the Items (such as nature, weight, dimensions, value, packaging, and all other particulars, etc.) in good time, and to notify Ingram Micro in the event of any special requirements that may apply to the transport of the Items, as well as to provide all other information that the Client knows, or should know, is, or may be, relevant to Ingram Micro.
3.2 The Client will be required to inform Ingram Micro in good time as to what Items, in what quantity, and at what time, will be presented by it to Ingram Micro for the provision of the Transport Services.
3.3 If the Client fails to perform any of the obligations as referred to in this article, the Client will be liable for any and all costs and other damage sustained by Ingram Micro (including but not limited to engaging staff or third parties and/or keeping available or renting equipment).

 

4. PROVISION AND CONDITION OF THE ITEMS

4.1 The Client will be required to make the Items available to Ingram Micro at the agreed location and time and in the agreed manner, accompanied by such documents as may be required by Ingram Micro and by law. Furthermore, the Items presented by the Client must be adequately labelled stating the following information (to the extent applicable): sender, destination, packaging number and number of packages, client and reference number.
4.2 The Items must be presented by the Client in good condition and - where applicable - properly and carefully packed. If any Item arrives at Ingram Micro's in damaged or defective condition, which is visible on the exterior, Ingram Micro will be entitled to refuse the Item and to recover any and all costs and other damage involved from the Client. Ingram Micro will promptly notify the Client thereof In Writing.
4.3 Unless agreed otherwise In Writing, the Client will be required to load, stow or cause the unloading of the Items in or onto or from the vehicle in accordance with the instructions of Ingram Micro or a third party engaged by it.
4.4 The Client warrants the Items made available. Furthermore, the Client warrants that the Items presented by it for transport are not waste or other substances that are prohibited, or at least that should not be accepted by Ingram Micro pursuant to the applicable laws and regulations, and are not: hazardous substances, toxins, substances liable to spontaneous combustion, highly flammable substances, explosives, carcinogens, pathological waste, small chemical waste, or any of the following categories of materials: etchings, textile, corrosive substances, radioactive materials, ionizing materials, organic greases, (compressed) gases, liquid bituminous substances and crude oil products, hospital waste, ink waste (other than ink cartridges in/of electrical equipment) and/or other prohibited waste or problematic substances designated as such by Ingram Micro.
4.5 To the extent that, at any given time, Ingram Micro should learn that, despite the provisions of article 4.4 of this module, the Items received contain any prohibited, hazardous or nonacceptable items, Ingram Micro will be entitled immediately to remove, destroy, or cause the removal or destruction of, the Items, or otherwise render the Items harmless, or to demand that the Client collect and take back the Items immediately. In such event, the Client will be liable for any and all costs and other damage involved. The measures referred to above may be taken by Ingram Micro, irrespective of whether the said Items may constitute an immediately impending hazard. The Client will lend all such cooperation as Ingram Micro may reasonably require. Moreover, the Client will be fully liable for any and all damage suffered and to be suffered by Ingram Micro as a result of violation of the provisions of article 4.4 of this module.

 

5. REGISTRATION

After taking delivery of the Items at the agreed location and time and in the agreed manner, Ingram Micro will inspect the Items based on the pre-arrival notification. In the event of any discrepancies, Ingram Micro will notify the Client and make a registration as such in its (digital) system. For purposes of determination of the Items presented to Ingram Micro for transport, the registration by Ingram Micro of the Items taken delivery of. The registration kept by Ingram Micro in the digital system will also be decisive for purposes of determination of any subsequent Items present and movements, for example as a result of Items already transported.

 

6. WORKING HOURS

The Items must be presented by the Client or any third parties engaged by it at the agreed location during such working hours as are customary for the employees of Ingram Micro or any third parties engaged by it. If the Client requires the performance of work outside regular working hours, such work will require the prior Written consent of Ingram Micro and the additional costs involved will be fully payable by the Client.

 

7. DUTIES, COSTS AND TAXES AND FREIGHT COSTS

All costs of freight, COD, taxes, duties, contributions, levies, penalties and/or other charges or costs, howsoever denominated, in respect of, or in connection with, the Items, that may be, or prove, due upon arrival or possibly in arrears, will be payable by the Client and must be prepaid or reimbursed immediately on Ingram Micro's demand.

 

8. TRANSPORT, DELIVERY AND CHANGE

8.1 Ingram Micro will transport, or cause the transport of, the Items at its own discretion, subject to the information provided by the Client. Ingram Micro will transport, or cause the transport of, the Items in or using such means of transport as it may deem proper and appropriate, and - where necessary - keep the Items in such means of transport or storage areas or locations as it may see fit.
8.2 Ingram Micro will be required to deliver, or cause delivery of, the Items received for transport at their destination within a reasonable term, to the extent possible in the condition in which Ingram Micro had received the Items. Where a delivery period has been agreed In Writing, Ingram Micro will perform to the best of its ability to deliver, or cause delivery of, the Items within such term.
8.3 The Client may make changes In Writing in terms of the recipient(s), the delivery address(es), the quantity and/or the Items to be delivered as long as the order is not yet being processed by Ingram Micro. As soon as the order has been processed by Ingram Micro, the order will be final and no further changes will be permitted.

 

9. DAMAGE TO OR LOSS OF ITEMS

9.1 In the event of damage to and/or loss of the Items as a result of theft preceded by forcible entry, Ingram Micro will be deemed to have observed adequate care if it has arranged proper locking of the storage location or the means of transport. The foregoing will not apply to any Items transported in an open vehicle with the approval of the Client, in which event any liability on Ingram Micro's part is fully excluded, save wilful misconduct or deliberate recklessness on the part of Ingram Micro or its managerial staff.
9.2 The Client may opt to have Ingram Micro take out insurance for the Items (including transport), in which event the applicable conditions will be recorded In Writing. If the Parties have not agreed In Writing that Ingram Micro will take out insurance for the Items as referred to above, any liability on Ingram Micro's part in the event of damage to and/or loss of the Items as a result of attributable failure on the part of Ingram Micro will be limited in accordance with the provisions of the General Transport Conditions, as filed with the Registry of the Amsterdam District Court under number 81/2014 and with the Registry of the Rotterdam District Court under number 2/2015.

 

10. SPECIAL TREATMENT OF ITEMS

10.1 Ingram Micro will only take the customary measures that can be deemed to be normal for transport of the relevant Items and/or their packaging. Ingram Micro will only be required to take special measures to the extent agreed In Writing with the Client before commencement of the Transport Services.
10.2 Without prejudice to the provisions of paragraph 1 of this article, Ingram Micro will be entitled promptly to take a measure, at the expense and risk of the Client (such as cleaning up, removing, destroying or otherwise rendering Items harmless), if failure to take such measure would entail the risk of loss of and/or damage to the Items themselves or any other items, the storage location or any equipment, or disadvantage for natural persons, or if taking measures is otherwise necessary or appropriate, all at Ingram Micro's discretion. Ingram Micro will notify the Client of such measures being taken, however, without any right on the Client's part to object or oppose such measures.

 

11. OBLIGATION TO COMPLAIN

11.1 If Ingram Micro delivers the Items with damage or loss visible on the exterior, without the Client notifying Ingram Micro of a Written reservation, indicating the general nature of the damage or loss, upon or immediately, or at least not later than 24 hours, after taking delivery of the Items, Ingram Micro will be deemed to have delivered the Items in the same condition as the condition in which it had received them. If the damage to, or the loss of, the Items upon delivery by Ingram Micro is not visible on the exterior, and the Client has not notified Ingram Micro of any Written reservation, indicating the general nature of the damage or loss within one week of taking delivery of the Items, Ingram Micro will be deemed to have delivered the Items in the same condition as the condition in which it had received them.
11.2 If the Items are not delivered within the agreed term, and the Client has not made a Written reservation within one week of taking delivery of the Items in respect of the fact that the Items had not, or not punctually, been delivered, Ingram Micro will be deemed to have delivered the Items in good time.

 

12. STORAGE AND RIGHT OF PLEDGE

If the Items are not collected or taken delivery of by the Client or the recipient(s) promptly upon delivery (including refusal by the Client or the recipient(s) to sign for receipt), Ingram Micro will be entitled to:
(a) store the Items at the Client's expense and risk for a period and at a location to be determined by Ingram Micro; and/or
(b) set a further term In Writing for the Client still to take delivery, or cause the taking delivery of, the Items. If, even in the period referred to under b above, the Client fails to take delivery, it will be in default by operation of law. In such event, Ingram Micro will be entitled to sell the Items by public auction, without prior leave from the court within the meaning of Article 3:248(2) DCC being required.

 

13. LIABILITY

13.1 In the event of failure by Ingram Micro to perform its obligations under the Transport Services, it will not be liable for the damage arising as a result, to the extent that such failure to perform is the result of special risks associated with any of the following circumstances:
(a) transport of the Items in an open vehicle if expressly so agreed;
(b) the handling, loading, stowage or unloading of the Items by the Client or the sender, the recipient or any persons acting for the account of the Client, the sender or the recipient;
(c) the nature of certain Items itself which, as a result of causes associated with that nature itself, have been exposed to full or partial loss or damage, in particular as a result of combustion, explosion, melting, breakage, corrosion, decay, dehydration, normal loss of quality, or the occurrence of vermin or rodents;
(d) the heat, cold, temperature differences or humidity of the air, but only if it had not been agreed that transport would be arranged using a vehicle specially designed to shield the Items from the influence thereof; and/or
(e) the incompleteness or defectiveness of the address, digits, letters or marks of the packaging.
13.2 The Client will be liable to Ingram Micro for any damage arising as a result of incorrect and/or fraudulent and/or incomplete descriptions, information or communications, as well as for any damage arising as a result of defects in any Items and/or the packaging not communicated in advance. The foregoing will also apply to any damage as a result of failure, or failure correctly, by the Client to state the weight of the Items.
13.3 The Client will be required to indemnify Ingram Micro against any third-party claims on account of damage caused by the Items presented by the Client for transport, in any way whatsoever.

 

14. VALUE ADDED SERVICES

In addition to the Transport Services, the Client may purchase Value Added Services against payment of an additional fee, such as door-to-door transport, door-to-room transport, unpacking of the Items at the delivery address, taking back the packing materials after delivery and unpacking of the Items, placement on site, and/or taking back used products.

 

F. Specific provisions governing the provision of Configuration Services

1. SCOPE OF APPLICATION

In addition to the provisions as set forth under A of these Conditions, the provision by Ingram Micro of Configuration Services will be governed by the provisions under F of these Conditions. In the event of conflict between the provisions under A and under F, the provisions under F will prevail.

 

2. CLIENT'S OBLIGATIONS

2.1 The Client will bear the risk of the choice of the software to which the Configuration Services relate. Ingram Micro does not warrant that the software is suitable for the intended use and the (possibility of) provision of the Configuration Services.
2.2 The Client will ensure that all IT and other hardware, software and data which Ingram Micro indicates are necessary or which the Client should reasonably understand to be necessary for the provision of the Configuration Services, are properly made available to Ingram Micro in good time. The Client will thereby prepare and provide all such data as may be necessary for Ingram Micro's provision of the Configuration Services in accordance with Ingram Micro's instructions and specifications.
2.3 Unless agreed otherwise In Writing, the Client will make the ICT hardware, software and data available at the location where Ingram Micro provides the Configuration Services and collect the results thereof at the same location.
2.4 The Client warrants that all that is made available to Ingram Micro (including all information carriers) will satisfy the specifications required by Ingram Micro, as well as that all data, procedures and instructions will at all times be correct and complete, and that the hardware and software perform properly and are suitable for the provision of the Configuration Services.
2.5 The Client will be responsible for the use and application of the Configuration Services in its organisation (including its hardware and software), and will be solely responsible for any control and security procedures and adequate systems administration. Moreover, the Client will ensure that all such data and information as may be made available by it to Ingram Micro pursuant to the Agreement(s) will be adequately protected and backed up.
2.6 If any data necessary for the provision of the Configuration Services are not made available to Ingram Micro, or are not made available to it punctually or in accordance with the arrangements made, or if the Client otherwise fails to perform its obligations, Ingram Micro will in any event be entitled to suspend provision of the Configuration Services and to charge the costs incurred as a result.

 

3. LIABILITY

3.1 Ingram Micro will not be liable for damage, of any nature whatsoever, caused by:
(a) incompatibility, dysfunctioning or other problems caused by the design, production or condition of the content supplied by the Client or the requirements set by the Client for the Configuration Services;
(b) the performance or failure to perform of software and/or hardware of the Client; and/or
(c) errors in transmission, malfunctions or non-availability of any other software, hardware, databases and/or other computer facilities, unless the Client demonstrates that such damage or costs are the result of wilful misconduct or deliberate recklessness on the part of Ingram Micro.
3.2 If the Client or any third party makes any modifications to the result of the Configuration Services provided by Ingram Micro, Ingram Micro's liability for the performance of the Configuration Services and any consequential or other damage will be excluded.

 

4. WARRANTY

4.1 After Ingram Micro has provided the Configuration Services and made the results available to the Client, the Client will verify the results. If the Client discovers any inaccuracies in the results of the Configuration Services, the Client will be required to notify Ingram Micro thereof In Writing and in detail without delay, but in any event not later than one (1) week following receipt of the results.
4.2 Upon receipt of a timely notice as referred to in the foregoing paragraph of this article, Ingram Micro will investigate the inaccuracies reported. If Ingram Micro's investigation reveals that the inaccuracies in the results of the Configuration Services are a direct result of any products, software, information carriers or procedures for which Ingram Micro is expressly responsible under the Agreement, Ingram Micro will provide the Configuration Services again in order to remedy such inaccuracies to the best of its ability, provided that the data necessary to repeat the Configuration Services are still available.
4.3 Ingram Micro's repeated provision of the Configuration Services as referred to in the foregoing paragraph of this article will, in principle, be free of charge. If, however, the inaccuracies are not attributable to Ingram Micro, the costs of repeated provision of the Configuration Services will, indeed, be fully payable by the Client if it (still) requests Ingram Micro to repeat provision of the Configuration Services.
4.4 If any inaccuracies that are attributable to Ingram Micro cannot reasonably be remedied, Ingram Micro will credit the amounts due by the Client in consideration of the relevant Configuration Services, without any further or other liability arising on its part vis-à-vis the Client.

 

5. VALUE ADDED SERVICES

In addition to the Configuration Services, the Client may purchase Value Added Services against payment of an additional fee, such as asset tagging and labelling, hardware installation (hard disks, memory), imaging, OS installations, (DOA) testing, staging or switches and routers, server configuration, and server rack configuration.

 

G. Specific provisions governing the provision of Installation Services

1. SCOPE OF APPLICATION

In addition to the provisions as set forth under A of these Conditions, the provision by Ingram Micro of Installation Services will be governed by the provisions under G of these Conditions. In the event of conflict between the provisions under A and under G, the provisions under G will prevail.

 

2. CLIENT'S OBLIGATIONS

2.1 The Client will bear the risk of the choice of the software to which the Installation Services relate. Ingram Micro does not warrant that the hardware and/or software is suitable for the intended use and the (possibility of) provision of the Installation Services.
2.2 The Client will ensure that all hardware, software and data which Ingram Micro indicates are necessary or which the Client should reasonably understand to be necessary for the provision of the Installation Services, are properly made available to Ingram Micro in good time. The Client will thereby prepare and provide all such data as may be necessary for Ingram Micro's provision of the Installation Services in accordance with Ingram Micro's instructions and specifications.
2.3 The Installation Services will be provided by Ingram Micro at the location or locations designated by the Client. The Client will ensure that such locations are well accessible and that the required rooms (and the associated facilities) are available to Ingram Micro and/or any third parties engaged by it for the provision of the Installation Services, as well as that all hardware, software and data are available on the location or locations.
2.4 The Client warrants that all that is made available to Ingram Micro (including all information carriers) will satisfy the specifications required by Ingram Micro, as well as that all data, procedures, instructions and other facilities will at all times be correct and complete, that the hardware and software perform properly, and - just as the location(s) and rooms - are suitable for the provision of the Installation Services.
2.5 The Client will be responsible for the use and application of the Installation Services of the hardware and/or software installed by Ingram Micro in its organisation (including its hardware and software), and will be solely responsible for any control and security procedures and adequate systems administration. Moreover, the Client will ensure that all such data and information as may be made available by it to Ingram Micro pursuant to the Agreement(s) will be adequately protected and backed up.
2.6 If any data necessary for the provision of the Installation Services are not made available to Ingram Micro, or are not made available to it punctually or in accordance with the arrangements made, and/or if the Client otherwise fails to perform its obligations, Ingram Micro will in any event be entitled to suspend provision of the Installation Services and to charge the costs incurred as a result.
2.7 Ingram Micro will not be liable for any damage or costs on account of errors in transmission, malfunctions or nonavailability of the data, hardware, facilities, etc. as referred to in the foregoing paragraph, unless the Client demonstrates that such damage or costs are the result of wilful misconduct or deliberate recklessness on the part of Ingram Micro.

 

3. LIABILITY

3.1 Ingram Micro will not be liable for damage, of any nature whatsoever, caused by:
(a) incompatibility, dysfunctioning or other problems caused by the design, production or condition of the hardware and/or software made available by the Client or the requirements set by the Client for the Installation Services;
(b) the performance or failure to perform of software and/or hardware of the Client; and/or
(c) errors in transmission, malfunctions or non-availability of any other software and/or hardware, databases and/or other computer facilities, unless the Client demonstrates that such damage or costs are the result of wilful misconduct or deliberate recklessness on the part of Ingram Micro. 3.2 If the Client or any third party makes any modifications to the result of the Installation Services provided by Ingram Micro, Ingram Micro's liability for the performance of the Installation Services and any consequential or other damage will be excluded.

 

4. WARRANTY

4.1 After Ingram Micro has provided the Installation Services and made the results available to the Client, the Client will verify the results. If the Client discovers any inaccuracies in the results of the Installation Services, the Client will be required to notify Ingram Micro thereof In Writing and in detail without delay, but in any event not later than one (1) week following receipt of the results.
4.2 Upon receipt of a timely notice as referred to in the foregoing paragraph of this article, Ingram Micro will investigate the inaccuracies reported. If Ingram Micro's investigation reveals that the inaccuracies in the results of the Installation Services are a direct result of any products, software, information carriers or procedures for which Ingram Micro is expressly responsible under the Agreement, Ingram Micro will provide the Installation Services again in order to remedy such inaccuracies to the best of its ability, provided that the data necessary to repeat the Installation Services are still available.
4.3 Ingram Micro's repeated provision of the Installation Services as referred to in the foregoing paragraph of this article will, in principle, be free of charge. If, however, the inaccuracies are not attributable to Ingram Micro, the costs of repeated provision of the Installation Services will, indeed, be fully payable by the Client if it (still) requests Ingram Micro to repeat provision of the Installation Services.
4.4 If any inaccuracies that are attributable to Ingram Micro cannot reasonably be remedied, Ingram Micro will credit the amounts due by the Client in consideration of the relevant Installation Services, without any further or other liability arising on its part vis-à-vis the Client.

 

5. VALUE ADDED SERVICES

In addition to the Installation Services, the Client may purchase Value Added Services against payment of an additional fee, such as full network installation services, testing, mounting of monitors, on-site services (including integration of servers, storage, printers, workstations, racks), and hand-out and registration services. etc.

 

H. Specific provisions governing the provision of ITAD Services

1. SCOPE OF APPLICATION

In addition to the provisions as set forth under A of these Conditions, the provision by Ingram Micro of ITAD Services will be governed by the provisions under H of these Conditions. In the event of conflict between the provisions under A and under H, the provisions under H will prevail.

 

2. ITAD SERVICES

2.1 The purpose of provision of ITAD Services is for Ingram Micro to offer an integrated solution for safe and environmentally friendly removal of obsolete, unsuitable or no longer usable ICT hardware.
2.2 For purposes of preparation of refurbishment, remarketing, reuse, redevelopment and/or recycling of ICT hardware, Ingram Micro may - if so agreed In Writing with the Client - also arrange inspection and validation of the Items, collection of the Items at a location designated by the Client, storage of the Items, determination of the economic or residual value of the Items, removal of the data stored on the Items, dismantling of the Items in respect of ICT, selling or recycling, or causing the sale or recycling of, the Items.
2.3 The ITAD Services to be provided by Ingram Micro will focus on used ICT hardware (such as used or redundant computers, laptops, hard disks, smartphones, SSDs).
2.4 Ingram Micro will not provide any ITAD Services in respect of any waste or other substances that are prohibited, or at least that should not be accepted by Ingram Micro pursuant to the applicable laws and regulations. Nor will Ingram Micro provide any ITAD Services in respect of any hazardous substances, toxins, substances liable to spontaneous combustion, highly flammable substances, explosives, carcinogens, pathological waste, small chemical waste, or any of the following categories of materials: etchings, textile, corrosive substances, radioactive materials, ionizing materials, organic greases, (compressed) gases, liquid bituminous substances and crude oil products, hospital waste, ink waste (other than ink cartridges in/of electrical equipment) and/or other prohibited waste or problematic substances designated as such by Ingram Micro.
2.5 To the extent that, at any given time, Ingram Micro should learn that, despite the provisions of article 2.4 of this module, the ICT hardware received contain any prohibited, hazardous or non-acceptable items, Ingram Micro will be entitled - to the extent that the ICT hardware is still at its disposal - immediately to remove, destroy, or cause the removal or destruction of, such ICT hardware, or otherwise render the ICT hardware harmless, or to demand that the Client immediately collect and take back the ICT hardware to the extent still present. In such event, the Client will be liable for any and all costs and other damage involved. The measures referred to above may be taken by Ingram Micro, irrespective of whether the said Items may constitute an immediately impending hazard. The Client will lend all such cooperation as Ingram Micro may reasonably require. Moreover, the Client will be fully liable for any and all damage suffered and to be suffered by Ingram Micro as a result of violation of the provisions of article 2.4 of this module.
2.6 For purposes of provision of the ITAD Services, the Client will act as the controller and Ingram Micro will act as the processor. The processing of personal data will be governed by the (relevant) provisions as set forth in module B of these Conditions.

 

3. CLIENT'S OBLIGATIONS

3.1 The Client will - in the manner designated by Ingram Micro for such purposes - provide a Written statement of the ICT hardware that it will make available to Ingram Micro for the provision of ITAD Services.
3.2 The Client represents that it holds full and unencumbered title to the ICT hardware and that it is authorized to present the ICT hardware to Ingram Micro for the provision of ITAD Services. The Client warrants and represents that the ICT hardware is not, and will not be, the subject of any restricted right, personal right or attachment, or right of retention of, or for the benefit of, any third parties, and that it has not undertaken to grant any such rights to any third parties.
3.3 The Client warrants that the ICT hardware in respect of which it requests Ingram Micro to provide the ITAD Services is suitable for such ITAD Services and meets the requirements set by Ingram Micro, and does not contain any of the substances or materials referred to in article 2.4 of this module.
3.4 The Client warrants that all the information, location(s) and rooms, procedures and instructions, and other facilities which Ingram Micro indicates are necessary or which the Client should reasonably understand to be necessary for the provision of the ITAD Services, are properly provided to Ingram Micro in good time. Furthermore, the Client warrants that all information and data provided will at all times be correct and complete and satisfy all the specifications required by Ingram Micro.
3.5 If any data necessary for the provision of the ITAD Services are not made available to Ingram Micro, or are not made available to it punctually or in accordance with the arrangements made, and/or if the Client otherwise fails to perform its obligations, Ingram Micro will in any event be entitled to suspend provision of the ITAD Services and to charge the costs incurred as a result.

 

4. COLLECTION, SORTING, (RE)SALE, DESTRUCTION AND/OR RE-USE

4.1 Unless agreed otherwise In Writing, Ingram Micro will collect the ICT hardware directly from the Client or from a location of an end customer to be designated by it. The Client warrants that the collection location will be well accessible and that the ICT hardware to be collected is either in a separate room or adequately marked, so that it will be clear to Ingram Micro which items are to be collected. The costs as referred to above in connection with the collection and transport of the ICT hardware will be payable by the Client.
4.2 At the Client's Written request, Ingram Micro will arrange removal of data or destruction of disks or tapes at the collection location.
4.3 Ingram Micro will arrange labelling of the ICT hardware and transport thereof to the Ingram Micro ITAD location. At such location, Ingram Micro will unpack the ICT hardware, take inventory, and include the ICT hardware in a database. Subsequently, Ingram Micro will determine whether the ICT hardware, or any parts thereof, still have any (residual) value and - if so - in what amount. Ingram Micro will subsequently offer such ICT hardware to professional parties. Any sales proceeds that may be realized will fully accrue to Ingram Micro.
4.4 If Ingram Micro does not deem it economically viable to resell the ICT hardware, the parts in which the data are stored will be removed from the hardware. Subsequently, Ingram Micro will arrange demagnetization or physical shredding of such parts. The other ICT hardware will be disassembled by Ingram Micro and any re-usable parts (such as spare parts for repair of new hardware) will be retained. The remaining materials will be sorted. Ingram Micro will arrange for the sorted materials to be offered to specialized companies that operate in compliance with the European laws and regulations on electrical and electronic equipment.
4.5 If Ingram Micro determines that the ICT hardware can be reused, the materials will be tested by technicians engaged by Ingram Micro. Subsequently, the technicians will arrange erasure of all the data on the ICT hardware using appropriate software. Ingram Micro will subsequently offer such ICT hardware to professional parties. Any sales proceeds that may be realized will fully accrue to Ingram Micro.
4.6 Ingram Micro's decision whether the ICT hardware will be destroyed or is suitable for resale or re-use or will be used for any other destination will be binding. The Client will not be entitled to object or oppose such decision.

 

5. STATEMENT

Within 60 business days of receipt of the ICT hardware at the Ingram Micro ITAD location, Ingram Micro will provide the Client with a binding statement of the ICT hardware made available. Ingram Micro will perform to the best of its ability to inform the Client, within the same term, as to whether the ICT hardware will be resold (stating the value determined) or - where resale is not possible - whether all or part of the ICT hardware will be re-used or destroyed.

 

6. TRANSFER OF TITLE AND FAIR MARKET VALUE

6.1 The Client will transfer title to the ICT hardware - against the pre-agreed percentage of the Fair Market Value to be determined by Ingram Micro - to Ingram Micro after Ingram Micro has taken delivery of the ICT hardware and has determined that the ICT hardware satisfies the agreed specifications and administrative data that are visible based on an initial visual inspection. If the ICT hardware does not meet the requirements set forth above, the Client will be required, at its own expense and risk, immediately to collect the ICT hardware at the location to be designated by Ingram Micro.
6.2 The Fair Market Value as referred to in article 6.1 will be deemed to be the value to be determined by Ingram Micro of the ICT hardware, based, inter alia, on the condition, the parts, and the assessment whether the ICT hardware can be re-used or resold. The Client must conform to the Fair Market Value to be determined by Ingram Micro.
6.3 The Fair Market Value will be determined by Ingram Micro after the ICT hardware has been received and sorted by Ingram Micro, and will subsequently be communicated to the Client.

 

7. LIABILITY

7.1 The Client is aware that, with the provision of the ITAD Services, all the data stored on the ICT hardware will be destroyed beyond repair. The provision of the ICT hardware (and, thus, commencement by Ingram Micro of provision of the ITAD Services) will be irrevocable, and Ingram Micro is not liable in any way whatsoever in that respect to the extent that the Client should later wish to take back the ICT hardware or the data stored on it. After Ingram Micro has taken delivery of any ICT hardware, such ICT hardware will not be returned.
7.2 To the extent that a destruction operation is carried out on site at the Client's, and such operation must be discontinued due to acts or omissions on the part of the Client, Ingram Micro cannot warrant the correct, complete and safe destruction, and will not be liable in any way whatsoever in that respect, save in the event of wilful misconduct or deliberate recklessness on the part of Ingram Micro.
7.3 Ingram Micro will register all ICT hardware received by it. The registration by Ingram Micro of any tapes, disks, CDs/DVDs and other information carriers is not possible due to the absence of a serial number.
7.4 Ingram Micro will be liable for any leaking of information stored on the ICT hardware received only to the extent that such leaking is the direct result of attributable failure in the performance of Ingram Micro's obligations or of wilful misconduct or deliberate recklessness.
7.5 Ingram Micro will not be liable to the extent that the Client has failed to provide any, or has provided incorrect or incomplete, information on the ICT hardware and any hazardous substances. If necessary, Ingram Micro will - if, at any time, in connection with the ITAD Services provided or to be provided, it becomes aware of the incorrectness or incompleteness of the information provided by the Client - take all such measures as may be deemed necessary by it, including filing reports with the police and environmental services.
7.6 If, during the provision of the ITAD Services, the work is precluded by hazardous substances, or the release or other processing thereof, Ingram Micro will be entitled to suspend or discontinue performance of the work. In such event, Ingram Micro will invoice the ITAD Services in proportion to completion of the work. The Client will, however, pay the full fee if it was, or should have been, aware of the hazardous substances in respect of the ICT hardware but failed, or failed punctually, to notify Ingram Micro thereof. In such event, the Client will also be liable for any and all damage suffered and to be suffered by Ingram Micro as a result.

 

8. INFORMATION SECURITY AND BACK-UP

The Client declares expressly to have taken cognizance of article 21 of module A of these Conditions in respect of information security and back-up. In addition, it is important to note that Ingram Micro will, after receipt of the ICT hardware, process such hardware and delete the data. Ingram Micro will not be liable for any release of data before Ingram Micro's receipt of the ICT hardware.

 

9. VALUE ADDED SERVICES

In addition to the ITAD Services, the Client may purchase Value Added Services against payment of an additional fee, such as single global IT solutions, virtual warehouse, redeploy, etc.

These Terms and Conditions have been filed with the Chamber of Commerce in Utrecht under number 30085572 and are applicable as of 1 April 2020.