Last updated January 26, 2023
1. Applicability. (a) These terms and conditions ("Terms") are the only terms which govern the purchase of goods ("Goods") and services ("Services") by the applicable Ingram Content Group entity named on the Order Form ("Ingram") from the vendor/supplier named on the Order Form ("Vendor"). (b) The Order Form which incorporates these Terms ("Order Form") and these Terms (collectively, "Agreement") comprise the entire agreement between the parties for the sale and purchase of Goods and/or Services, and supersede all prior or contemporaneous understandings or agreements, both written and oral, covering the subject matter herein. The Agreement prevails over any of Vendor's general terms and conditions regardless of whether or when Vendor has submitted its sales confirmation or such terms. Fulfillment of or other performance under the Order Form constitutes Vendor’s acceptance of these Terms.
2. Delivery of Goods and Performance of Services. (a) Vendor shall deliver the Goods in the quantities and on the dates specified in the Order Form or as otherwise agreed in writing by the parties ("Delivery Date"). If no Delivery Date is specified, Vendor shall deliver the Goods within 30 days of Vendor's receipt of the Order Form. If Vendor fails to deliver the Goods in full on the Delivery Date, Ingram may terminate the Agreement immediately by providing written notice to Vendor and Vendor shall immediately reimburse Ingram all reasonable costs and expenses attributable to Vendor's failure to deliver the Goods on the Delivery Date. (b) Vendor shall deliver all Goods to the address specified in the Order Form ("Delivery Point") during Ingram's normal business hours or as otherwise instructed by Ingram. Vendor shall pack all goods for shipment according to Ingram's instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in new and undamaged condition. Vendor must provide Ingram prior written notice if it requires Ingram to return any packaging material. Any return of such packaging material shall be made at Vendor's risk of loss and expense. (c) Vendor shall provide the Services to Ingram as described and in accordance with the Agreement. (d) Vendor acknowledges that time is of the essence with respect to Vendor's obligations.
3. Quantity. If Vendor delivers more or less than the quantity of Goods ordered, Ingram may reject all Goods or any excess Goods. Any such rejected Goods will be made available for immediate pickup at Vendor’s sole expense. If Ingram does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price (defined below) for the Goods shall be adjusted on a pro-rata basis.
4. Shipping Terms. Unless otherwise agreed by Ingram in writing, delivery shall be made DAP Delivery Point. The Order Form number must appear on all shipping documents, shipping labels, invoices, correspondence, and any other documents pertaining to the Order Form.
5. Title and Risk of Loss. Title and risk of loss passes to Ingram upon delivery of the Goods at the Delivery Point.
6. Inspection and Rejection of Nonconforming Goods. Ingram has the right to inspect the Goods on or after the Delivery Date and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Ingram rejects any portion of the Goods, Ingram has the right, effective upon written notice to Vendor, to: (a) rescind the Agreement in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods at Vendor’. If Ingram requires replacement of the Goods, Vendor shall, at its expense, within 10 days of receipt of Ingram’s request for replacement, replace the nonconforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for return of the defective Goods and delivery of replacement Goods. If Vendor fails to timely deliver replacement Goods, Ingram may replace them with similar goods from a third party, charge Vendor the cost difference, and terminate the Agreement. Any inspection or other action by Ingram under this Section shall not reduce or otherwise affect Vendor's obligations under the Agreement, and Ingram shall have the right to conduct further inspections after Vendor has carried out its remedial actions.
7. Price. The price of the Goods and Services is stated in the Order Form or the relevant purchase order issued by Ingram ("Price"). If no price is included in the Order Form or a purchase order, the Price shall be the price set out in Vendor's published price list in force as of the date of the Order Form. Unless otherwise specified in the Order Form, the Price includes all handling and convenience fees, packaging, transportation costs to the Delivery Point, insurance, customs duties, applicable taxes, and all other fees, including, but not limited to, all sales, use, or excise taxes. No increase in the Price is effective, whether due to increased material, labor, or transportation costs or otherwise, without the prior written consent of Ingram.
8. Payment Terms. Vendor shall issue an invoice to Ingram any time after the completion of delivery and only in accordance with these Terms. Ingram shall pay all properly invoiced amounts due to Vendor within 30 days after Ingram's receipt of such invoice (“Due Date”), except for any amounts disputed by Ingram in good faith. All payments will be in United States dollars. Without prejudice to any other right or remedy it may have, Ingram reserves the right to set off any amount owing to it by Vendor against any amount payable by Ingram to Vendor. In the event of a payment dispute, Ingram shall deliver a written statement to Vendor listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not disputed are deemed accepted and will be paid by the Due Date, notwithstanding disputes on other items, within the period in the Agreement. The parties shall seek to resolve all disputes expeditiously and in good faith. Vendor shall continue performing its obligations under the Agreement notwithstanding any such dispute.
9. Vendor's Obligations Regarding Services. Vendor shall: (a) before the date on which the Services are to start, obtain, and at all times during the term of the Agreement, maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services; (b) comply with all rules, regulations, and relevant policies of Ingram, including security procedures concerning systems and data and remote access thereto, building security procedures, including the restriction of access by Ingram to certain areas of its premises or systems for security reasons, and general health and safety practices and procedures; (c) maintain complete and accurate records relating to the provision of the Services under the Agreement, including records of the time spent and materials used by Vendor in providing the Services in such form as Ingram shall approve. During the term of the Agreement and for a period of 2 years thereafter, upon Ingram's written request, Vendor shall allow Ingram to make copies of such records and interview Vendor personnel in connection with the provision of the Services; (d) obtain Ingram's written consent prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Vendor, other than Vendor's employees, to provide any Services to Ingram (each such approved subcontractor or other third party, a "Permitted Subcontractor"). Ingram's approval shall not relieve Vendor of its obligations under the Agreement, and Vendor shall remain fully responsible for its performance under the Agreement. Nothing contained in the Agreement shall create any contractual relationship between Ingram and any Vendor subcontractor or supplier. Vendor shall (a) require each Permitted Subcontractor to be bound in writing by the confidentiality provisions of, or at least as strict as, the Agreement, and, upon Ingram's written request, to enter into a non-disclosure or intellectual property assignment or license agreement in a form that is reasonably satisfactory to Ingram; (b) ensure that all persons acting for or on behalf of Vendor, are properly licensed, certified, or accredited as required by applicable law and are suitably skilled, experienced, and qualified to perform the Services; (c) ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and any standards specified by Ingram; and (d) keep and maintain any Ingram equipment in its possession in good working order and not dispose of or use such equipment other than in accordance with Ingram's written instructions or authorization.
10. Change Orders. Ingram may, by written instructions or drawings issued to Vendor, order changes to the Services ("Change Order"). Vendor shall submit to Ingram a firm cost proposal for the Change Order. If Ingram accepts such cost proposal in writing, Vendor shall proceed with the changed Services subject to the cost proposal and the Agreement. Vendor acknowledges that a Change Order may or may not entitle Vendor to an adjustment in Vendor's compensation or the performance deadlines under the Agreement.
11. Warranties. (a) Vendor warrants to Ingram that for 12 months from the Delivery Date, all Goods will (i) be free from defects in workmanship, material, and design; (ii) conform to applicable specifications, drawings, designs, samples, and other requirements specified and provided by Ingram; (iii) be fit for their intended purpose and operate as intended; (iv) be merchantable; (v) be free and clear of all liens, security interests, or other encumbrances; and (vi) not infringe or misappropriate any third party's intellectual property rights. These warranties survive any delivery, inspection, acceptance, or payment of or for the Goods by Ingram. (b) Vendor warrants to Ingram that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and skillful manner in accordance with best industry standards for similar services and shall devote adequate resources to meet its obligations under the Agreement. (c) The warranties set forth in this Section are cumulative and in addition to any other warranty provided by law, equity, or Vendor. (d) Any applicable statute of limitations runs from the date of Ingram's discovery of the noncompliance of the Goods or Services with the foregoing warranties. (e) If Ingram gives Vendor notice of noncompliance, Vendor shall, at its own cost and expense, promptly (i) replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Vendor and the delivery of repaired or replacement Goods to Ingram, and (ii) repair or re-perform the applicable Services.
12. General Indemnification. Vendor shall defend, indemnify, and hold harmless Ingram and Ingram's subsidiaries, affiliates, successors, or assigns and their respective directors, officers, shareholders, employees, and agents (collectively, "Indemnitees") against all claims for or allegations of loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification and the cost of pursuing any insurance providers (collectively, "Losses") arising out of or occurring in connection with the provision of Goods and Services hereunder or Vendor's and Vendor’s subcontractors’ and representatives’ negligence, willful misconduct, or breach of the Agreement. Vendor shall not enter into any settlement without Ingram's prior written consent.
13. Intellectual Property Indemnification. Vendor shall, at its expense, defend, indemnify, and hold harmless Ingram and any Indemnitee against all Losses arising out of or in connection with any claim that Ingram's or any Indemnitee's use or possession of the Goods or Services infringes or misappropriates the intellectual property right of any third party. In no event shall Vendor enter into any settlement without Ingram's or the Indemnitee's prior written consent.
14. Limitation of Liability. Nothing in the Agreement shall exclude or limit (a) Vendor's liability under Sections 11, 12, and 13 hereof, or (b) Vendor's liability for fraud, personal injury, or death caused by its negligence or willful misconduct.
15. Insurance. For all Services, Vendor agrees to comply with and maintain for the duration of the Agreement the following insurance coverages: (i) General Liability Insurance $1,000,000 per occurrence / $2,000,000 aggregate per location including Contractual Liability and Completed Operations Coverage, (ii) Workers Compensation Insurance Statutory; Employer’s Liability $500,000, (iii) Automobile Liability Insurance $1,000,000 Combined Single Limit, and (iv) Excess Liability Insurance $4,000,000 per occurrence / aggregate per location. The above policies, except workers compensation and media or professional liability, will name Ingram, its parent, subsidiaries, affiliated companies, directors, officers, and employees as additional insureds. The above policies will include a waiver of Vendor’s right to subrogation against Ingram, its parent, subsidiaries, affiliated companies, directors, officers, and employees. The insurance listed above is to be considered primary irrespective of any other insurance in force. All deductibles or self-insured retentions will be for Vendor’s account. All coverages listed above shall be provided by insurers with A.M. Best ratings of A-10 or higher. The limits of coverage required above are minimums and in no way serve as a limitation or restriction on indemnity or liability. Vendor shall provide Ingram with certificates of insurance evidencing the coverages and requirements listed above prior to work taking place and upon renewal of each coverage. The certificates shall provide that the insurance policies listed may not be modified materially or cancelled without 30 days prior written notice to Ingram.
16. Compliance with Law. Vendor shall comply with all applicable laws, regulations, ordinances, and Ingram’s Supplier Code of Conduct. Vendor shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under the Agreement. Vendor assumes all responsibility for shipments of Goods (including fees, duties, taxes, or penalties) requiring any government import clearance. Ingram may terminate the Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
17. Termination. In addition to any remedies provided in these Terms, Ingram may terminate the Agreement with immediate effect upon written notice to Vendor, either before or after the acceptance of the Goods or Vendor’s delivery of the Services, if (a) Vendor has not performed or complied with the Agreement or (b) if Vendor becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or has made an assignment for the benefit of creditors. If Ingram terminates the Agreement, Vendor’s sole and exclusive remedy is payment for the Goods and Services received and accepted by Ingram prior to termination.
18. Waiver. No waiver by either party of any of the provisions of the Agreement is effective unless explicitly set forth in writing and signed by both parties. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from the Agreement operates, or may be construed, as a waiver. No single or partial exercise of any right, remedy, power, or privilege precludes any other or further exercise, or the exercise of any other right, remedy, power, or privilege.
19. Confidential Information. All non-public, confidential, or proprietary information of a party, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, methodologies, customer lists, pricing, discounts, or rebates, disclosed by one party to the other party, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether marked, designated, or that should reasonably be understood as "confidential" in connection with the Agreement, is confidential and to be used solely for the purpose of performing the Agreement and may not be disclosed or copied unless authorized in advance by the disclosing party in writing. Upon the disclosing party’s request, the other party shall promptly return or delete all documents and other materials received from the disclosing party. The disclosing party shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is shown by sufficient records to be: (a) in the public domain; (b) known to a party at the time of disclosure through no fault of such party; or (c) rightfully obtained by a party on a non-confidential basis from a third party.
20. Force Majeure. No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement, when and to the extent such party's ("Impacted Party") failure or delay is caused by or results from the following ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, pandemic, or explosion; (c) war, invasion, hostilities (whether war is declared), terrorist threats or acts, riots, or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades; (f) national or regional emergency; and (g) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within 10 days of the Force Majeure Event to the other party, stating the expected duration of the occurrence. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal or end of the Force Majeure Event. If the Impacted Party's failure or delay remains uncured for a period of 20 consecutive days following written notice, the other party may terminate the Agreement upon written notice.
21. Assignment. Vendor shall not assign, transfer, delegate, or subcontract its rights or obligations under the Agreement without the prior written consent of Ingram. Any unapproved purported assignment or delegation shall be null and void. No assignment or delegation shall relieve Vendor of its obligations. Ingram may at any time assign or transfer any of its rights or obligations under the Agreement without Vendor's prior written consent to any affiliate or to any person acquiring all or substantially all of Ingram's assets.
22. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
23. No Third-Party Beneficiaries. The Agreement is for the sole benefit of the parties and their respective successors and permitted assigns and nothing in the Agreement, express, or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.
24. Governing Law and Venue. All matters arising out of or relating to the Agreement are governed by and construed in accordance with the laws of the State of Tennessee without giving effect to any choice or conflict of law provision that would cause application of the laws of any other jurisdiction. Any legal suit, action, or proceeding arising out of or relating to the Agreement shall be brought solely in the state or federal courts of Davidson County, Tennessee and the parties waive any objection to that venue.
25. Jury Trial Waiver. THE PARTIES IRREVOCABLY WAIVE THEIR RIGHT TO TRIAL BY JURY.
26. Notices. All notices and other communications under the Agreement (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the Order Form or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
27. Severability. If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
28. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Agreement including, but not limited to, the following provisions: General Indemnification, Insurance, Compliance with Laws, Confidential Information, Governing Law and Venue, and Survival.
29. Amendment and Modification. The Agreement may only be amended or modified in a writing stating specifically that it amends the Agreement and is signed by an authorized representative of each party. The Vendor warrants the signatory on the Order Form is an authorized representative of Vendor.
