TERMS AND CONDITIONS OF SALE
INVOICING CONDITIONS:
All amounts in US dollars will be converted into Brazilian reais, according to the exchange rate of the US dollar determined on the day prior to the respective invoicing. For the conversion mentioned, the average PTAX (Sale) exchange rate from the Central Bank of Brazil on the day before invoicing will be used. Equipment will be invoicing on the date of shipment of the goods by TD SYNNEX to the client. Services and Licenses will be invoiced at the time defined and agreed upon in the TD SYNNEX Commercial Proposal (hereinafter simply referred to as “Proposal”) and confirmation of the purchase order.
The invoicing of the supplied goods (Equipment, Licenses, and/or Services) will be carried out according to the origin indicated in the list of Materials/Licenses/Services in accordance with the Proposal, and may be performed by any TD SYNNEX branch.
- TD SYNNEX Brasil Ltda., CNPJ: 28.268.233/0007-84, Av. Acesso Rodoviário, S/N, Quadra 08; Módulo M-01; Sala 03; TIMS, Serra/ES, CEP 29.161-376;
- TD SYNNEX Brasil Ltda., CNPJ: 28.268.233/0008-65, Rua José Semião Rodrigues Agostinho, 1370, Galpão 43, Bairro Água Espraiada, Embu das Artes/SP, CEP 06.833-370;
- TD SYNNEX Brasil Ltda., CNPJ: 28.268.233/0003-50, Avenida Alfredo Egídio de Souza Aranha, nº 100, conjunto 10-B, Vila Cruzeiro, São Paulo/SP, CEP 04.726-170;
PAYMENT TERMS:
The existence of any type of agreement or contractual relationship between the client and third parties does not affect the payment conditions established in the Proposal.
The client is obliged to keep their registration with TD SYNNEX duly updated, in order to facilitate the respective invoicing. Any imprecision or inaccuracies in the registration and any damages resulting from this fact cannot be claimed by the client to avoid their obligation to make payment by the due date. In sales where payments must be made to a TD SYNNEX entity located abroad, all taxes to be withheld/charged upon the remittance of the respective payments (gross up) must be added to the total price of the Proposal, ensuring that TD SYNNEX receives the total amount specified in the Proposal. Any payment terms other than those specified above shall be expressly stated in a new proposal submitted by TD SYNNEX and no other payment terms provided for in any other instrument shall be effective.
ESTIMATED DELIVERY:
The delivery forecast provided in the Proposal is an estimate based on historical data, counted from the date of issuance of the Purchase order (PO) by TD SYNNEX, which will be made after analyzing and confirming that all mandatory data has been provided by the reseller/end user. The client (buying company) is aware and agrees that the delivery of goods may occur before or after the initially projected date(s) in the Proposal due to operational, commercial, unforeseen circumstances or force majeure, including delays in manufacturing/availability of materials by the vendor, in which case TD SYNNEX, regardless of proof or justification, will not be held responsible in any way, including for any damages caused to the client or third parties.
The generation of the PO, and not the client´s purchase order, is the starting point for counting the estimated days for the delivery of goods, which will be updated after each movement of the product from its origin. The client will immediately notify TD SYNNEX, within a period of up to 3 days from the receipt of the goods, if they find any non-apparent damage to the goods, except for deliveries that reveal external and apparent damages, which must be refused immediately upon delivery by the carrier. This notification must be made in writing and should be reasonably detailed, indicating the reasons for such rejection. Failure to provide any notification within this timeframe will be considered as full and unconditional acceptance of the goods.
Stock items are not reserved for this proposal and are subject to confirmation of availability at the time of acceptance of the purchase order.
The delivery of goods may be proven by any effective means, including certifications issued by the respective Vendor. Software licenses will be considered delivered from the moment they are available for activation/access, either by TD SYNNEX or by the respective Vendor.
SPECIFICATION OF GOODS AND GUARANTEE:
The applications, specifications, services, or rights that make up the goods being acquired are those provided in the respective manuals, End User License Agreement (“EULA”), and/or data sheet, the content of which the client declares to know and accept when placing a purchase order with TD SYNNEX and/or accepting the respective Proposal.
The list of goods presented in the Proposal must be technically validated by the purchasing company, and TD SYNNEX is exempt from responsibility for possible configuration or design errors.
The client is solely responsible for the specification of the equipment, software, and services listed in the Proposal, and TD SYNNEX has not provided, at this time or at any time, consulting or advisory services that would imply liability for the adequacy or efficiency of the goods acquired in relation to the client´s interests, either individually or in the context of a project.
The client declares to know and accept that, unless otherwise expressly provided in the Proposal, TD SYNNEX is not responsible for the execution of installation, maintenance, warranty, assistance, support, updates, replacement, exchange, or any type of service that comprises the goods being acquired. The execution of such services is the sole responsibility of the respective Vendor.
The warranty for goods, licenses, and services is the exclusive responsibility of the respective Vendors/Providers/Suppliers and must be sought from them. The terms, conditions, and processing of the warranty are stipulated by the policy defined by the respective Vendors/Suppliers /Providers for each of their equipment, licenses, and services, which the client declares to know and accept.
Any defects identified in the execution of the contractual obligations by the Vendor of the goods cannot be considered by the client as a reason to suspend or dismiss their obligation to pay the price set forth in this instrument.
PRICES AND TAXES:
The prices are valid only for the purchase of the total quantities described in the Proposal. All taxes are calculated according to the legislation in force at the time of issuance of the Proposal.
Client will not deduct any amount from any TD SYNNEX invoice without prior and express approval from TD SYNNEX, which will also depend on the provision of all supporting documentation for this deduction, as required by TD SYNNEX.
The prices indicated in a proposal may change, even after being accepted by the client, due to changes in the incidence rules (rates, calculation base, etc.) of the taxes applicable to them, the creation of new taxes, or changes in the vendor’s price list, provided that duly proven. It is understood, for all purposes, that the increase in the tax burden will be assessed based on the effective application of the new tax rules at the time of the respective invoicing. Prices may also increase due to any modification of the tax classification of imported goods during customs clearance, which reflects on the total value of applicable taxes, without the client having the right to cancel or withdraw.
Check in the Proposal Summary whether the prices presented are for the “TD SYNNEX Resale” or “End User” modality. If the modality is “End User,” check in the Summary for the “Included Reseller Services.” In the “End User” modality, which is considered a fixed asset purchase, the price will undergo a proportional change due to the incidence of taxes as defined in the tax legislation.
Due to the constant changes in state legislation regarding the incidence of ICMS Tax Substitution, with possible additions of new product categories and inclusions of new federative units and agreements, we alert that the final analysis of the application or not of this tax rule is the sole responsibility of the substituting company, with TD SYNNEX being responsible only for providing, within its best efforts, all necessary information for this analysis.
TD SYNNEX is not responsible for maintaining equal prices on new goods that may eventually replace discontinued products by the vendor, leaving it to the purchasing company to request a new proposal with the updated products at their market price.
TERMS AND CONDITIONS OF SALE:
From the acceptance of the Proposal, no changes will be allowed in the quality and quantity of the goods being sold, which are hereby accepted, except by mutual consent between the parties formalized in writing.
The payment conditions presented are subject to credit analysis until the time of invoicing. TD SYNNEX will grant or not grant credit to the client according to its credit policy, and may require that the purchase price be paid before shipment (“prepayment”).
TD SYNNEX may, from time to time, without notice, change or revoke Client’s credit limit based on changes in TD SYNNEX’s credit policies or Client’s financial condition and/or payment record.
In case of default by the client in making any payment due, there will be an automatic incidence of positive monetary correction by IGPM/FGV (or the index that may replace it), late payment interest at the rate of 1% (one percent) per month (calculated pro-rata die), as well as a late payment penalty of 10% (ten percent) on the 5th day counted from the due date. These charges resulting from the delay will accrue on the updated outstanding balance until its effective payment.
The existence of internal procedures for sending invoices and/or making payments does not exempt the client from being late regarding the payment of the price within the stipulated period.
If judicial collection of debts is necessary, attorney’s fees will be due at the rate of 20% (twenty percent) of the total value of the debt. The client acknowledges and authorizes that failure to pay any obligation will imply the protest of the respective titles and the reporting of default to credit protection agencies, such as SERASA and SPC, among others. If titles are protested, in addition to the charges provided for in this instrument, the client will bear the protest notary fees, either by reimbursing the fees advanced by TD SYNNEX or by paying directly to the respective protest notary.
TD SYNNEX is only liable to the client for the supply described herein and within the limits and conditions set forth in this instrument. TD SYNNEX is not responsible for any type of contract, obligation, duty, guarantee, provision, service, promise, or project on the part of third parties, including Vendor.
Client requests for the replacement/change of tax documents may only be analyzed if formally submitted, with the proper justification, to TD SYNNEX within 10 (ten) calendar days from the original invoicing and provided that they do not alter the commercial conditions of the respective business. Even if submitted within this timeframe, it is at the discretion of TD SYNNEX to accept or not the request presented.
TD SYNNEX will not be liable, under any circumstances, even in a joint or subsidiary capacity, for the following: I – the authenticity, validity, and accuracy of the data provided by the client; II – for fortuitous events or force majeure situations; III – for damages caused by third-party acts, such as virus attacks, trojans, and hackers, among others; IV – for damages exceeding the price effectively received for the contracted supply; and V – for indirect damages and/or lost profits.
The parties agree that this relationship is governed by the Brazilian Civil Code.
DIRECT INVOICING AND SERVICES PROVIDED BY THE RESELLER TO TD SYNNEX:
If invoicing is done directly to the end user, due to a project/business operated by the client to whom the Proposal is addressed, the client (the operator of the project/business) assumes the following obligations towards TD SYNNEX: a) ensure that the end user has the full knowledge of the content of this instrument, obtaining their acceptance of all its terms and conditions; b) keep the end user’s registration with TD SYNNEX duly filled out and updated; c) answer jointly and severally to TD SYNNEX for the end user’s default in the following cases: c.1) if the client does not obtain from the end user, to whom the goods are intended, the express and irrevocable acceptance of the content of this instrument and the respective invoicing; c.2) if the client does not maintain the end user’s registration duly updated in TD SYNNEX’s database; and c.3) if the end user refuses to make payment for the supply due to an act or omission attributable to them. The failure to comply with any of the obligations set forth in this Clause will also allow TD SYNNEX to offset the amount corresponding to the verified damage, including charges (correction, interest, and penalty) not received due to the end user’s delay in any payment the client is entitled to receive from TD SYNNEX.
In the case of direct invoicing to the end user, the client must also provide support/advisory to TD SYNNEX in order to execute the following: a) provide the end user with technical information (functionalities, compatibility, performance, warranty terms, among others) related to the goods subject to the supply in the context of the project/business, thereby exempting TD SYNNEX from any obligation in detail; b) technically support TD SYNNEX and/or the respective Vendor in identifying, addressing, and forwarding issues raised by the end user that are directly related to the supply of goods contracted, which are the exclusive responsibility of TD SYNNEX and/or the respective Vendor; and c) ensure, to the extent of their responsibilities, the adequacy of the goods to be supplied to the project developed with the end user.
For the execution of the advisory/support service referenced above, TD SYNNEX will pay the client an amount corresponding to a percentage of the price fixed in the Proposal or formally agreed upon (in writing) between the parties. The calculation of the price for this advisory/support service will always be based on a calculation formula determined exclusively by TD SYNNEX and according to the same exchange rate used by TD SYNNEX in its invoicing, regardless of the exchange rate eventually used by the client in their dealings with the end user. Payment to the client for advisory/support services will only occur after TD SYNNEX effectively receives from the end user the amounts adjusted for the respective supply, with no right or claim from the client prior to such payment, even if the services have been effectively provided. In the event of partial payments by the end user, the advisory/support services will be settled proportionally, according to the receipts. Unless expressly adjusted otherwise, payment for advisory/support services will be made to the client within a maximum period of 15 (fifteen) calendar days after TD SYNNEX effectively receives from the end user the amounts due to it. The client must issue the appropriate Invoicing for Advisory/Technical Support Services after confirming that TD SYNNEX has effectively received the amounts adjusted for the sale. The description of the services in the Invoice must include a detailed account of the services and the project(s) and/or business(es) that comprise the total amount subject to the Invoice. The scheduling of the respective payment will follow TD SYNNEX’s internal rules. The client is obliged to refund TD SYNNEX for any services mistakenly paid prior to the effective receipt of the amounts adjusted for the supply. The client expressly authorizes the retention and offsetting of amounts due to it in the event of any outstanding debt with TD SYNNEX, regardless of prior or specific consent or communication. Due to the operational circumstances of TD SYNNEX, the client accepts and agrees that: (i) it must send TD SYNNEX the invoices for the provision of services within a maximum period of 120 (one hundred and twenty) days from the effective payments made to TD SYNNEX by the respective end users, under penalty of losing the right to payment for the support services; and (ii) if there is a delay of more than 180 (one hundred and eighty) days regarding the total payment due to TD SYNNEX by the respective end users, the respective right to payment for the advisory/support service provided will be lost, even if the respective end users make the payment of the debt to TD SYNNEX after such deadline.
ACCEPTANCE OF THE PROPOSAL:
The approval of the Proposal will be conveyed through the client’s acceptance. Such acceptance may be formalized via email, electronically, or any written document sent by an authorized person from the buying company, or even by the simple receipt of the respective goods, licenses, and services. From this acceptance, a Contract is established between the parties, in an irrevocable, non-retractable manner and not subject to cancellation or withdrawal for any reason (including issues related to the acquired goods, fluctuations in the dollar, unlawful acts attributable to third parties, and facts related to the respective Vendor), which must comply with all clauses and conditions set forth herein, with no right of regret for the client after the acceptance of the proposal.
In the event of a purchase order formatted by the client in response to the Proposal, the submission of the purchase order will be deemed as full and unrestricted acceptance of the terms of the Proposal. In the event of any conflict between the terms of the client’s purchase order and the Proposal, the terms and conditions of the Proposal will prevail, unless expressly stated in writing by TD SYNNEX that some provisions of the Proposal do not apply. The purchase order must contain all necessary information for invoicing, delivery, and collection, as well as the documentation required by the vendor for acceptance and processing of the order. The processing of the sales order is the indication that the purchase order received by TD SYNNEX is complete and accepted.
NON-CANCELLATION:
After acceptance, cancellation or withdrawal will not be permitted for any reason (including fluctuations in the dollar, facts related to the acquired goods, facts or conduct related to the Vendor of the goods, commercial issues related to the client, among others), so the client must acquire and pay for the entirety of the goods in the manner and within the deadlines set forth herein.
DIRECT COLLECTION AUTHORIZATION:
The client, supported by Article 286 of the Brazilian Civil Code, irrevocably assigns to TD SYNNEX, as a guarantee for any default, the credits they have to receive from the end user who received the goods acquired from TD SYNNEX. In this case, TD SYNNEX may notify the end user to make payments directly to it for amounts owed by the end user to the client. This assignment does not characterize the payment of the client´s debts with TD SYNNEX and does not relieve the client of the obligation to settle their debts with their own resources and on the respective due dates, regardless of the receipt by the client of any payment due from the end user.
The client’s debts with TD SYNNEX may always be freely collected, with all related charges, from the due date. Without prejudice to the above, in the event of invoicing from TD SYNNEX to the client, if the client defaults, TD SYNNEX may, at its sole discretion and upon written notification to the client, choose to bill and collect directly from the end user as a temporary solution until all invoicing and collection issues are resolved.
PRIVACY AND DATA PROTECTION:
The client to comply with all legislation and sector regulations related to privacy and data protection, including but not limited to Law No. 13,709/2018. This includes ensuring the accuracy, quality, and security of personal data shared by any means and for any purpose related to the fulfillment of this instrument or related commitments. The client must keep the shared personal data secure against incidents such as loss of confidentiality, availability, or integrity, and must notify TD SYNNEX within 24 hours of becoming aware of any incident, reserving TD SYNNEX’s right to be compensated for any resulting damages.
The client’s obligations in this section will continue as long as they have access to, are in possession of, acquire, or carry out any operation involving the processing of personal data obtained due to the contractual relationship with TD SYNNEX, even if the contract is no longer in effect or has been terminated.
ANTI-CORRUPTION LEGISLATION:
The parties agree to comply with applicable regulations regarding acts of corruption, both Brazilian and foreign, in accordance with Law No. 12,846/13. The parties acknowledge that they are subject to anti-corruption laws abroad, including but not limited to the Foreign Corrupt Practices Act (FCPA) of the United States. They declare that they are aware of the obligations and sanctions arising from these national and foreign legislations and commit to immediately notify the other party of any investigation or procedure initiated by a government authority related to any alleged violation.
JURISDICTION:
The Court of Cariacica, Metropolitan Region of Greater Vitória, State of Espírito Santo, is elected, in preference to any other, however privileged it may be, to settle any disputes arising from this instrument, as well as for any actions, measures, or proceedings, judicial or extrajudicial, including protests, concerning the place of payment for the fulfillment of obligations agreed upon based on these Terms and Conditions of Sale.
