TERMOS E CONDIÇÕES
*Applicable to Westcon Mexico, S.A. de C.V. (“TD SYNNEX”).
1) INVOICING CONDITIONS
In the event this business is conducted in U.S. dollars, legal tender in the United States of America (USD), TD SYNNEX may authorize payment of the price in Pesos (MXN), local currency. For such purposes and unless otherwise provided, all amounts in U.S. dollars shall be converted into Pesos, according to the quotation of the U.S. dollar calculated on the day prior to the respective invoicing, as published in the Official Federal Gazette (DOF) by Bank of Mexico..
Equipment will be invoiced on the date of shipment of the goods by TD SYNNEX to Customer. Services and licenses will be invoiced at the time defined and agreed upon in the TD SYNNEX Sales Proposal and Purchase Order Confirmation.
2) TERMS OF PAYMENT (subject to credit analysis)
The existence of any type of agreement or contractual relationship of the customer with third parties does not affect the payment conditions set forth herein.
Customer is obliged to keep its registration with TD SYNNEX duly updated, in order to instrumentalize the respective collection. Any imprecision or inaccuracy in the registration and the eventual damages resulting therefrom may not be invoked by the Customer in order to eliminate or mitigate its obligation to make payment on the due date. For sales for which payments are to be made to a foreign TD SYNNEX Entity, all taxes to be withheld/collected at the time of remittance of the respective payments (gross up) must be added to the total price of this Sales Proposal, so as to guarantee TD SYNNEX the payment of the total amount provided for in the Sales Proposal. Any payment terms other than those stated above must be expressly stated in a new proposal submitted by TD SYNNEX, and any other payment terms provided for in any other instrument shall be ineffective.
3) DELIVERY FORECAST
The delivery forecast reported in a Sales Proposal is an estimate based on historical data, to be posted as of the date of issuance of the sales order (SO) by TD SYNNEX, which will be made after analysis and confirmation that all mandatory data has been reported by the customer. Customer is aware and therefore accepts that the delivery of the goods may occur earlier or later than the date(s) initially foreseen in a proposal due to operational, commercial, customs, fortuitous or force majeure events, including delays in the manufacture/availability of the material by the manufacturer or vendor, in which case TD SYNNEX, regardless of the proof or justification, shall not be liable in any way, including for eventual damages caused to the customer or third parties. The sole generation of the OV, and not the customer’s purchase order, is the starting point for counting the estimated days for delivery of the goods, which will be updated after each movement of the product from its origin. Customer shall immediately notify TD SYNNEX, within up to three (3) days of receipt of the goods, if it finds any non-apparent damage to the goods, with the exception of deliveries revealing external and apparent damage, which shall be rejected immediately upon delivery by the carrier. Such notification shall be made in writing and shall be reasonably detailed, stating the reasons for such rejection. Failure to notify within the aforementioned period shall be considered as acceptance of delivery without objection.
Goods in stock are not reserved for a proposal in particular and are subject to confirmation of availability upon acceptance of the purchase order.
Delivery of the goods may be proved by any effective means, including certifications issued by the respective manufacturer.
4) THE SPECIFICATION OF THE GOODS AND WARRANTY
The applications, specifications, services or rights that make up the goods purchased hereunder are those provided for in the respective manufacturer manuals, end user license agreement (“EULA”) and/or data sheet. It is duty of customer to know them and, if applicable, request them directly from manufacturer. the contents of which the customer hereby declares to be aware of and accept.
The list of goods presented in a proposal must be technically validated by the buying party, and TD SYNNEX is exempt from any and all liability arising from any possible configuration or design errors.
Customer is solely responsible for the specification of the products, software and services listed in a proposal, and TD SYNNEX has not provided, in this act or at any time, consultancy or advice that imports responsibility for the suitability or efficiency of the goods purchased against the customer’s interests, in isolation or in the context of a project.
Customer declares to know and accept that, except as expressly provided in a proposal, TD SYNNEX is not responsible for the execution of installation, maintenance, warranty, assistance, support, upgrade, replacement, exchange or any type of service that conforms to the goods purchased hereunder, whose fulfillment is the sole responsibility of the respective manufacturer.
Warranty of goods, licenses and services is the sole responsibility of the respective manufacturers and must be requested from them. The term, conditions and processing of the warranty are stipulated by the policy defined by the respective manufacturers for each of their products, licenses and services, being duty of customer to know them and, if applicable, request them directly from manufacturer.
Any defect in the performance of the contractual obligations by the Manufacturer of the goods shall not be considered by the Customer as a reason to suspend or deviate from its duty to pay the price fixed by TD SYNNEX.
5) PRICES AND TAXES
Prices are valid only for the purchase of the total quantities described in a proposal.
All taxes are included in the amounts shown in a proposal.
Customer shall not deduct any amount from any invoice from TD SYNNEX, without the prior express approval of TD SYNNEX, which in turn shall be contingent upon the provision of all supporting documentation for this deduction as required by TD SYNNEX.
The prices indicated in a proposal may be subject to change, even after acceptance by the customer, due to a change in the applicable tax rate, the creation of new taxes or a change in the manufacturer’s price list, provided that this is duly proven.
TD SYNNEX is not responsible for maintaining the same prices on new products that eventually replace products discontinued by the manufacturer, leaving it to the customer’s discretion to request a new proposal with updated products at their market price.
6) TERMS AND CONDITIONS OF SALE
Upon acceptance of a proposal, no change in the quality and quantity of the products sold, which have already been accepted, will be accepted, unless otherwise agreed in writing between the parties.
Payment terms are subject to credit analysis up to the time of invoicing. TD SYNNEX will or will not extend credit to Customer in accordance with its corresponding credit analysis and may require the purchase price to be paid prior to shipment (“prepayment”). TD SYNNEX may, from time to time, without prior notice, change or revoke Customer’s credit limit based on changes in Customer’s financial condition as result of a new credit analysis and/or Customer’s payment history. In the event Customer is late in making any payment for which Customer is responsible, TD SYNNEX may apply, from the day after the due date until the date of actual payment default interest at the Monthly Interest Rate of 1.5% (one and a half percent) over the overdue amounts, as well as a late payment penalty for the overdue installment at the rate of 10% (ten percent) on the fifth day after the due date, without prejudice to the exercise of any other remedies to which TD SYNNEX may be entitled.
If judicial collection of debts is necessary, attorneys’ fees will be paid at a rate of 20% (twenty percent) of the total amount of the debt.
TD SYNNEX is only liable to the customer for the supply of the products derived from the purchase transaction, which is within the limits set forth in this instrument. TD SYNNEX is not liable for any type of agreement, obligation, duty, guarantee, performance, service, promise or project under the responsibility of third parties.
Requests from customers requesting substitution/alteration of tax documents may only be honored if formally submitted, with due justification, to TD SYNNEX within 10 (ten) calendar days of the original billing and provided that the commercial conditions of the respective business do not change. Even if the request for substitution/alteration is submitted within the deadline, it is up to TD SYNNEX whether or not to comply with the request submitted.
7) DIRECT BILLING
In case the invoicing is made directly to the respective end user, through the intermediation of the customer, to whom this proposal is addressed, the customer (the client, bringing the business) assumes the following obligations towards TD SYNNEX: a) to ensure that the end user has full knowledge of the contents of this instrument, obtaining his acceptance of these terms and conditions; b) to maintain the end user registration at TD SYNNEX duly completed and updated; c) to be jointly and severally liable to TD SYNNEX for the end user’s non-compliance, in the following cases: c.1) in case customer does not obtain from the end user, to whom the goods are destined, the express and irrevocable acceptance of the contents of this instrument and of the respective invoicing; c.2) if he does not keep the end user’s registration correctly updated in TD SYNNEX’s database; and c.3) if the end user refuses to pay for the delivery because of an act or omission attributable to the customer.
Failure to comply with any of the obligations set forth in this Clause shall entitle TD SYNNEX to make, regardless of prior acceptance, compensation for the amount corresponding to the verified damages, including in respect of the charges (correction, interest and penalty) not received by reason of the end user’s delay, in the payment of the commissions to which the customer is entitled on account of any business the customer has captured. The commission shall be due to the customer after TD SYNNEX actually receives the adjusted amounts for the brokered supply, there being no right or claim of the customer prior to such payment.
If partial payments occur, the commission will be paid proportionally, according to the partial payments. Unless otherwise stated, payment of the commission will be made to the Customer, no later than (15) fifteen calendar days after TD SYNNEX actually receives from the End User the amounts due to it. Customer will issue the corresponding invoices for the commission service or commercial intermediation after confirmation that TD SYNNEX has actually received the adjusted amounts for the sale.
The description of the services linked to the invoice must include the details of the fees that make up the total amount invoiced. The scheduling of the respective payment shall follow the internal rules of TD SYNNEX. The calculation of the commissions will always be made on the basis of the calculation formula determined 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 customer in its business. Customer agrees to reimburse TD SYNNEX for any sales commission paid in error at the time prior to actual receipt of the adjusted amounts for the sale.
Customer expressly authorizes the withholding and offsetting of fees owed to it in the event of any outstanding indebtedness to TD SYNNEX, regardless of prior consent or communication. Due to TD SYNNEX’s operating circumstances, Customer acknowledges and agrees that: (i) it must send TD SYNNEX invoices for payment of commissions no later than 120 (one hundred and twenty) days from the date on which payments are made to TD SYNNEX by the respective end users, under penalty of forfeiture of the respective commission; and (ii) if there is a delay of more than 180 (one hundred and eighty) days in relation to the total payment due to TD SYNNEX by the respective end users, the loss of the respective commission will occur, even if the end users make the payment of the debt after such period.
8) NO CANCELLATION
After acceptance, no cancellation or withdrawal will be allowed for any reason (including variation of the dollar, facts related to the respective Manufacturer, among others), so the customer must purchase and pay for the goods in full in the manner and within the term provided herein.
9) AUTHORIZATION OF DIRECT COLLECTION
The customer irrevocably assigns to TD SYNNEX, as security for any eventual default, the receivables to be received by the end user who received the goods purchased from TD SYNNEX for resale. For which the customer undertakes, if necessary according to the applicable legislation, to formalize the respective act of assignment. In this case, TD SYNNEX may notify the end user to make directly to itself the payments due to the customer. This assignment is not intended to constitute or characterize the form of payment of the debts owed by the customer to TD SYNNEX, nor does it imply the exoneration of the customer from its duty to pay its debts with its own resources and on the respective due dates, regardless of the receipt by the customer of any payment owed by the end user.
Customer’s debts with TD SYNNEX shall always be freely collectible, with all its charges, as of the due date. Notwithstanding the foregoing, in the event of TD SYNNEX’s billing to Customer, upon Customer’s failure to pay, TD SYNNEX may, at its sole discretion and upon written notice to Customer, elect to bill and collect directly from End User as an interim solution until all billing and collection issues are resolved.
10) PRIVACY AND DATA PROTECTION
Customer is committed to comply with the legislation and sectorial regulations on privacy and data protection, especially with the truthfulness, quality and security of personal data eventually shared by any means and for any purpose that serves to comply with these Terms and Conditions or any related commitment, safeguarding the strict necessity of personal data, as well as the due transparency to the personal data subjects, and must help TD SYNNEX to respond to the requests of the subjects.
Customer shall keep the personal data shared as a consequence of these Terms and Conditions, safe from any “Incident” (considered as such, the loss of confidentiality, availability or integrity and irregular treatment of the personal data) having to notify TD SYNNEX within 24 (twenty-four) hours from the knowledge of the event, safeguarding TD SYNNEX’s right to be indemnified in case of any damage derived from such Incident.
Notwithstanding anything to the contrary, the Customer’s obligations defined in this section shall continue to be in effect for as long as it continues to have access to, is in possession of, acquires or carries out any Personal Data Processing operation obtained as a result of the contractual relationship with TD SYNNEX, even if the purchase transaction linked to the Terms and Conditions has been terminated for any reason whatsoever.
11) GOVERNING LAW AND VENUE
This instrument shall be governed by and construed in accordance with the laws of Mexico. In the event that any legal action is necessary for the enforcement or interpretation of the terms of this instrument, the Parties agree that such action shall be brought to a competent court in Mexico City, and that the Parties submit to the jurisdiction and venue of such court as if the dispute were between residents.
