Purchases of Dell products and services are governed by one of the following terms and conditions. Please review carefully.
U.S. Consumer Terms of Sale-Direct (Print) This agreement applies to purchases by Consumer customers over the Internet, by phone or in a Dell Direct Store.Commercial Terms of Sale (Print) This agreement applies to purchases by Commercial customers (including Small, Medium and Large Business and Government and Public sector customers).Cloud Solutions Agreement (Print)
U.S. Consumer Terms of Sale - Direct (Applies to all direct purchases-by internet, phone, or Dell Direct Store)
PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT ORDER/KEEP YOUR PRODUCT.
NOTE: These U.S. Consumer Terms of Sale apply to direct purchases made from Dell by phone, the Internet, or the Dell Direct store.
These Terms of Sale ("Agreement") apply to your purchase of products and/or services and support ("Product") sold in the United States by Dell, including its affiliates or subsidiaries. By placing your order for Product, you accept and are bound to the terms of this Agreement. If you have placed an order but do not wish to be subject to these Terms of Sale, you must promptly cancel your order before it enters production and becomes non-cancellable (see: www.dell.com/ordersupport ), or return your purchase in accordance with Dell's Return Policy (see:www.dell.com/returnpolicy ) within 21 days of the invoice date for a refund of your purchase price minus shipping, handling, and up to a 15% restocking fee.
ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND DELL, its agents, employees, principals, successors, assigns, affiliates (collectively for purposes of this paragraph, "Dell") arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), Dell's advertising, or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (AAA) or JAMS. Arbitration proceedings shall be governed by this provision and the applicable procedures of the selected arbitration administrator, including any applicable procedures for consumer-related disputes, in effect at the time the claim is filed. Consumer claimants (individuals whose transaction is intended for personal, family, or household use) may elect to pursue their claims in small-claims court rather than arbitration. The arbitration or small-claims court proceeding will be limited solely to the individual dispute or controversy between customer and Dell.
You agree to an arbitration on an individual basis. In any dispute, NEITHER CUSTOMER NOR DELL SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR ARBITRATE ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration).
The arbitrator shall be empowered to grant whatever relief would be available in court under law or in equity. This transaction shall be governed by the Federal Arbitration Act 9 U.S.C. sec. 1-16 (FAA). Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. Dell will be responsible for paying any individual consumer's arbitration fees. If you prevail on any claim that affords the prevailing party attorneys' fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law. For information on AAA or JAMS, contact the following: American Arbitration Association, (800) 778-7879, www.adr.org; JAMS, (800) 352-5267, www.jamsadr.com.
Commercial Terms of Sale
Unless otherwise agreed to by Dell in writing, the Commercial Terms of Sale apply to direct commercial purchasers (including Small, Medium and Large Business and Government and Public sector customers) of Dell hardware, software and services and commercial end-users who purchase through a reseller. By placing your order, you accept and are bound to the Commercial Terms of Sale below:
Introduction. Dell's sale of Products, Software, and Services, as well as its performance of Services and your use of the Software are subject to the terms of this agreement between you ("you " or "Customer ") and Dell (the "Agreement "). "Dell " means Dell Marketing L.P., on behalf of itself and its suppliers and licensors, or the entity identified on your order confirmation, invoice, or other form of purchase document entered into by you at the time you purchased the Products, Software, or Services. "Customer " shall include any of your affiliates that places a Dell order, and "Dell " shall include any Dell affiliates with which such an order is placed. Purchases of Products, Software, or Services under this Agreement shall be solely for Customer's own internal use and not for resale purposes. In instances where Customer purchases through a reseller or distributor, final prices and terms and conditions of sale will be as agreed between Customer and the third party from which Customer makes such purchases; however, the terms set forth herein are applicable to your use of Dell Software and the performance of Dell Services.
Definitions. "Products " means computer hardware and any other products provided hereunder. "Services " means any and all services provided by Dell as described in one or more Service Agreements. "Software " means any software, library, utility, tool, or other computer or program code, in object (binary) or source-code form, as well as the related documentation, provided by Dell to you. Software includes software locally installed on your systems and software accessed by you through the Internet or other remote means (such as websites, portals, and "cloud-based" solutions). "Deliverables " means the tangible and intangible materials, including reports, studies, base cases, drawings, findings, manuals, procedures, and recommendations prepared by Dell or its suppliers, licensors, or subcontractors in the course of performing the Services. "Materials" means all content and other items included with or as part of the Products, Services, Software, or Deliverables, such as text, graphics, logos, button icons, images, audio clips, information, data, photographs, graphs, videos, typefaces, music, sounds, and software. "Third-Party Products" means any non-Dell-branded products, software, or services.
Additional Agreements. This Agreement, together with the Service Agreements (as defined below), form a legally binding contract between you and Dell in relation to your purchase and use of Products and Software, and Dell's performance of Services. In the event of a conflict between these agreements, the terms of these documents will be interpreted in the following order of precedence: (1) Service Agreement; and (2) this Agreement.
Quotes, Ordering, and Payment.
Payment Terms; Orders; Quotes; Interest. Your order is subject to acceptance or cancellation by Dell, in Dell's sole discretion. Terms of payment are within Dell's sole discretion, and unless otherwise agreed to by Dell, payment must be received by Dell prior to Dell's acceptance of an order. Each accepted order will be interpreted as a single Agreement, independent of any other orders. Payment for Products, Software, and Services must be made by credit card, automated clearing house, wire transfer, electronic funds transfer or some other prearranged payment method unless credit terms have been agreed to by Dell. Payment to Dell in respect of Products, Software and Services, as applicable, shall be made to the account indicated by Dell (as may be amended from time to time). Orders for Third-Party Products are subject to availability and are cancellable by Dell. Orders for Third-Party Products are non-cancellable by Customer. If Customer purchases a multi-year Software license and related support and/or maintenance, and Dell and the Customer (and, if applicable, the third-party licensor of the software) agree to annualize the Customer's purchase over the term of the license, Customer shall make all annual payments in full and such purchase is non-cancellable over the term of the license. Timely payment of the price and all charges is of the essence. It is the responsibility of Customer to ensure payments are authorized and approved on time to ensure receipt of payment no later than the due date; in no case shall Dell be responsible for ensuring such authorization or approval. Any assignment by Customer of its purchase order to a third-party financing company (other than Dell Financial Services, LLC) must be approved in advance in writing by Dell, and in no case shall any such approval excuse Customer from its obligations hereunder. Dell reserves the right to charge you a late penalty of 1.5% per month applied against undisputed overdue amounts, or the maximum rate permitted by law, whichever is less. Late penalties will be recalculated every 30 days thereafter based on your current outstanding balance. In addition, Dell, without waiving any other rights or remedies to which it may be entitled, shall have the right to suspend or terminate any or all Services and refuse additional orders for Products or Software from Customer until Dell's receipt of all overdue amounts. Dell shall have no liability to Customer for any such suspension or termination of services or for its refusal of additional orders. Dell further reserves the right to seek collection of all overdue amounts (including by referral to third party collectors), plus all reasonable legal fees (including reasonable attorneys fees) and costs associated with such collection. Customer shall place all orders in the country where the Products and Software are to be shipped and where Services are to be performed, and payment of the corresponding price and costs shall be made in the currency identified by Dell in its invoice. Additional charges will apply if Customer requests Services that are performed outside of contracted hours or are beyond the normal coverage for the particular Service, such as customized invoicing, consolidated invoicing, and statements. Dell reserves the right to change the method of delivery of all documentation, and any additional changes requested by Customer may be subject to additional charges.
Invoices. Invoices are due and payable within the time period noted on your invoice, or if not noted, then within 30 days, measured from the date of the invoice, subject to continuing credit approval by Dell, such approval may be revoked without further notice from Dell. Dell may invoice parts of an order separately or may invoice purchases of the Products, Software and Services in one invoice to Customer. Unless you and Dell have agreed to a different discount structure, Dell's standard pricing policy for Dell-branded systems that include Products, Software and Services in one discounted price, allocates the discount off list price applicable to the Services portion of the system to be equal to the overall percentage discount off of the list price of the entire system. Dell is not responsible for pricing, typographical, or other errors in any offer, and reserves the right to cancel orders arising from such errors. Customer agrees that all invoices shall be deemed accurate unless Customer advises Dell in writing of a bona fide, material error within fourteen (14) days of the date of such invoice. In the event that Customer advises Dell of a material error, (i) payment of any amounts corrected or modified by Dell in writing shall be due within fourteen (14) days of such correction, and (ii) all other amounts shall be paid by Customer by the invoice due date. In the event Customer withholds payment of any invoiced amounts upon an assertion by Customer that such amounts are erroneous, and Dell subsequently concludes that such invoiced amounts are accurate, Customer shall pay interest on such amounts as described above from the due date for such amounts until Dell's receipt of those amounts. In no case shall Customer be entitled to offset, defer or deduct any invoiced amounts that Dell determines are not erroneous following the notification process set forth above.
Shipping Charges; Title; Risk of Loss. Taxes, shipping and handling charges are not included in Product prices unless expressly indicated at the time of sale. Title to Products (except title to Software remains with the applicable licensors) passes from Dell to Customer upon shipment to Customer. Loss or damage that occurs during shipping by a carrier selected by Dell is Dell's responsibility. Loss or damage that occurs during shipping by a carrier selected by you is your responsibility. Shipping and delivery dates are provided as estimates only. You must notify Dell within 21 days of the date of your invoice or acknowledgement if you believe any part of your order is missing, wrong, or damaged.
Taxes. Unless you provide Dell with a valid and accurate tax-exemption certificate applicable to your Product purchase and ship-to location, you are responsible for sales tax and any other taxes or governmental fees associated with your order. Customer may qualify for tax exemptions from time to time in which case Dell requests that Customer provide it with a valid certificate of exemption or other appropriate documentary proof of exemption. The charges stated in the order or any invoice shall be inclusive of all duties, levies or any similar charges and shall exclude VAT or equivalent sales or use tax. Unless otherwise specified in writing by Dell, Customer shall pay all freight, insurance, and taxes (including but not limited to import or export duties, sales, use, value add, and excise taxes). Dell shall provide Customer with a valid invoice in accordance with VAT or other applicable law. In the event that Customer is required by law to make a withholding or deduction in respect of the price payable to Dell, Customer will make the relevant payments to Dell net of the required withholding or deduction. Customer will supply to Dell evidence (e.g. official withholding tax receipts), to the reasonable satisfaction of Dell, that Customer has accounted to the relevant authority for the sum withheld or deducted. If such evidence is not provided to Dell within 60 days of remittance to the applicable tax authority, Dell will impose a penalty payment on Customer, and Customer will be liable for such penalty, in the amount of the withholding imposed on that particular transaction.
Prices. The prices charged for Products, Software, and Services purchased under this Agreement shall be the amounts set forth on Dell's website or other quotation, or as provided by the applicable invoice or Service Agreements relating to such Software or Services. Quoted prices will remain in effect only until the expiration date of the quote or Dell's acceptance of your order, and such prices are subject to shortages in materials or resources, increases in the cost of manufacturing, or other factors.
Changed or Discontinued Products, Software, or Services. Dell's policy is one of ongoing update and revision. Dell may revise or discontinue Product, Software, or Services offerings at any time without prior notice to Customer. A change in a Product, Software, or Service may occur after a Customer places an order but before Dell ships the Product or Software or performs the Service. As a result, Products, Software, or Services Customer receives might display minor differences from the Products, Software, or Services Customer orders. However, the Dell-branded Software and Products will meet or exceed all material specifications of such order. Parts used in repairing or servicing Products may be new, equivalent-to-new, or reconditioned.
Returns and Exchanges. Dell's return policy can be found at www.Dell.com/ReturnPolicy and you agree to those terms. Before returning or exchanging a Product, you must contact us directly to obtain an authorization number to include with your return. You must return Products to us in their original or equivalent packaging, and you are responsible for risk of loss, as well as shipping and handling fees. Additional fees, including up to a 15% restocking fee, may apply. If you fail to follow the return or exchange instructions provided by Dell, Dell will not be responsible for any loss, damage, or modification of a Product, or processing of a Product for disposal or resale. Credit for partial returns may be less than invoice or individual component prices due to bundled or promotional pricing associated with your original purchase.
Service Agreements. Dell may provide Services, Software, or Deliverables to you in accordance with one or more "Service Agreements." "Service Agreements" are service contracts, including "Service Descriptions" available at www.Dell.com/ServiceContracts/, "Statements of Work," and any other such mutually agreed upon documents. Each Service Agreement will be interpreted as a single agreement, independent of any other Service Agreement, so that all of the provisions are given as full effect as possible.
Term; Auto-Renewal; Termination.
Term; Auto-Renewal. This Agreement commences on the date you place your order and continues until all Services and Software licenses and applicable Product warranties have expired or been terminated. Each Service and license to Software will continue for the term stated in the Service Agreement or the Software license, unless otherwise terminated. Dell may, at its option, propose to renew the Service and the Software license by sending you an invoice or, subject to prior notification, continuing to perform the Service or make the Software available to you. You may (where permitted by law) agree to such renewal of the Service and Software license by paying such invoice by its due date or by continuing to order Services or use the Software.
Termination of Services and Software License. Either party may terminate an individual Service Agreement if the other party commits a material breach of such agreement and the breach is not cured within 90 days of receipt of written notice from the injured party except Dell may immediately terminate a Service Agreement if you fail to make payment for the Services when due. Termination of any or all Service Agreements will not terminate this Agreement. Unless renewed in accordance with this Agreement, this Agreement will terminate automatically upon the expiration of the agreed term of Services and Software license. Dell may terminate this Agreement immediately, including prior to the expiration of the term of Services or Software license, if (1) you fail to make any payment when due; (2) you are acquired by or merge with a competitor of Dell; (3) you declare bankruptcy or are adjudicated bankrupt; or (4) a receiver or trustee is appointed for you or substantially all of your assets. Upon termination of this Agreement, all rights and obligations of the parties under this Agreement will automatically terminate except for rights of action accruing prior to termination, payment obligations, and any obligations that expressly or by implication are intended to survive termination.
Proprietary Rights. All right, title, and interest in the intellectual property (including all copyrights, patents, trademarks, trade secrets, and trade dress) embodied in the Software, Products and Materials, as well as the methods by which the Services are performed and the processes that make up the Services, shall belong solely and exclusively to Dell or the applicable suppliers or licensors, and you shall have no rights whatsoever in any of the above, except as expressly granted in this Agreement. The Software, Products and Materials are protected pursuant to copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. You may not modify, remove, delete, augment, add to, publish, transmit, adapt, translate, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Software and Materials, in whole or in part.
Deliverables. Dell and its applicable suppliers or licensors will retain exclusive ownership of all Deliverables, and will own all intellectual property rights, title, and interest in any ideas, concepts, know-how, documentation, and techniques associated with such Deliverables. Subject to payment in full for the applicable Services, Dell grants you a non-exclusive, non-transferable, royalty-free right to use the Deliverables solely in the country or countries in which you do business, solely for your internal use, and solely as necessary for you to enjoy the benefit of the Services as stated in the applicable Service Agreements.
Suspension or Modification of Software or Services. Dell may suspend, terminate, withdraw, or discontinue all or part of the Services or your access or one or more users' access to the Software (and third-party software) upon receipt of a subpoena or law-enforcement request, or when Dell believes, in its sole discretion, that you (or your users) have breached any term of this Agreement or an applicable Service Agreement, or are involved in any fraudulent, misleading, or illegal activities.
With respect to Software provided or otherwise made available to you by Dell in connection with Services, it may be necessary for Dell to perform scheduled or unscheduled repairs or maintenance, or remotely patch or upgrade the software, which may temporarily degrade the quality of the Services or result in a partial or complete outage of the Software. Dell provides no assurance that you will receive advance notification of such activities or that the Software or Services will be uninterrupted or error-free. Unless otherwise agreed to in writing between you and Dell, any degradation or interruption in the Software or Services shall not give rise to a refund or credit of any fees paid by you.
YOU AGREE THAT THE OPERATION AND AVAILABILITY OF THE SYSTEMS USED FOR ACCESSING AND INTERACTING WITH THE SOFTWARE, INCLUDING TELEPHONE, COMPUTER NETWORKS, AND THE INTERNET, OR TO TRANSMIT INFORMATION, CAN BE UNPREDICTABLE AND MAY, FROM TIME TO TIME, INTERFERE WITH OR PREVENT ACCESS TO OR USE OR OPERATION OF THE SOFTWARE. DELL SHALL NOT BE LIABLE FOR ANY SUCH INTERFERENCE WITH OR PREVENTION OF YOUR ACCESS TO OR USE OF THE SOFTWARE.
Support Services.
Your Responsibilities. When Services consist of repair of Dell-branded systems, such Services shall be those repair services that are necessary to fix a defect in materials or workmanship of a system or any standard system component covered by this Agreement. Preventive maintenance is not included. Repairs necessitated by software problems, or as a result of alteration, adjustment, or repair by anyone other than Dell (or its representatives) are not included. Unless otherwise expressly provided in a Service Agreement, Services do not include repair of any system or system component that has been damaged as a result of (1) accident, misuse, or abuse of the system or component (such as use of incorrect line voltages or fuses, use of incompatible devices or accessories, improper or insufficient ventilation, or failure to follow operating instructions) by anyone other than Dell (or its representatives); (2) the moving of the system from one geographic location or entity to another; or (3) an act of nature such as lightning, flooding, tornado, earthquake, or hurricane.
Customer Authorization for Provision of Services. Some warranties or service-contracts for Third-Party Products may become void if Dell or anyone other than an authorized service provider provides services for or works on such hardware or software (such as providing maintenance or repair services for the Third-Party Products). DELL DOES NOT TAKE RESPONSIBILITY FOR ANY EFFECT THAT THE DELL SERVICES MAY HAVE ON THOSE WARRANTIES OR SERVICE CONTRACTS.
You authorize Dell to use or otherwise access any and all Customer-provided Third-Party Products as necessary or as requested by Customer in Dell's performance of the Services, including copying, storing, and reinstalling a backup system or data. You shall defend, indemnify, and hold Dell harmless from any third-party claim or action arising out of your failure to provide such authorization (such as obtain appropriate licenses, intellectual-property rights, or any other permissions, regulatory certifications, or approvals associated with technology, software, or other components).
Software.
Accompanying License. Software is subject to the separate software license agreements accompanying the software, along with any product guides, operating manuals, or other documentation included with the software media packaging or presented to Customer during the installation or use of the Software. Customer agrees that Customer will be bound by such license agreement.
Restrictions. Customer may not copy, modify, or create a derivative work, collective work, or compilation of the Software, and may not reverse engineer, decompile or otherwise attempt to extract the code of the Software or any part thereof. Customer may not license, sell, assign, sublicense, or otherwise transfer or encumber the Software; may not use the Software in a managed-services arrangement; and may not use the Software in excess of the authorized number of licensed seats for concurrent users, sites, or other criteria specified in the applicable Service Agreements. In addition, Customer may not access the Software to monitor its availability, performance, or functionality, or for any other benchmarking or competitive purpose.
Customer is further prohibited from (1) attempting to use or gain unauthorized access to Dell or to any third party's networks or equipment; (2) permitting other individuals or entities to use the Software or copy the Software or Services; (3) attempting to probe, scan, or test the vulnerability of Software or a system, account, or network of Dell or any of its customers or suppliers; (4) interfering or attempting to interfere with service to any user, host, or network; (5) engaging in fraudulent activity of any nature; (6) transmitting unsolicited bulk or commercial messages; (7) restricting, inhibiting, or otherwise interfering with the ability of any other person, regardless of intent, purpose, or knowledge, to use or enjoy the Software (except for tools with safety and security functions); or (8) restricting, inhibiting, interfering with, or otherwise disrupting or causing a performance degradation to any Dell (or Dell Service supplier) facilities used to deliver the Services.
Audit. You hereby grant Dell, or an agent designated by Dell, the right to perform an audit of your use of the Software during normal business hours; you agree to cooperate with Dell in such audit; and you agree to provide Dell with all records reasonably related to your use of the Software. The audit will be limited to verification of your compliance with the terms of this Agreement.
Open Source Software. A portion of the Software may contain or consist of open source software, which you may use under the terms and conditions of the specific license under which the open source software is distributed.
THIS OPEN SOURCE SOFTWARE IS DISTRIBUTED IN THE HOPE THAT IT WILL BE USEFUL, BUT IS PROVIDED "AS IS" WITHOUT ANY WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY REGARDING TITLE OR AGAINST INFRINGEMENT. IN NO EVENT SHALL DELL, THE COPYRIGHT HOLDERS, OR THE CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS OPEN SOURCE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
Privacy. For information about Dell's privacy practices, please read Dell's global and country-specific privacy policies at www.Dell.com/Privacy. These policies explain how Dell treats your personal information and protects your privacy.
Customer & System Data. In Dell's performance of the Services or in connection with your use of the Service-related Software, it may be necessary for Dell to obtain, receive, or collect data or information, including system-specific data (collectively, the "Data" ). In such cases, you grant Dell a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license to use, compile, distribute, display, store, process, reproduce, or create derivative works of the Data solely for those purposes. In addition, you grant Dell a license to aggregate and use the Data in an anonymous manner in support of Dell's marketing and sales activities. You also grant Dell the right to copy and maintain such material and content on Dell's servers (or the servers of its suppliers) during the term of this Agreement. You represent and warrant that you have obtained all rights, permissions, and consents necessary to use and transfer the Data within and outside of the country in which you are located in conjunction with Dell's performance of the Services or your use of the Service-related Software (including providing adequate disclosures and obtaining legally sufficient consent from your employees, agents, and contractors).
High-Risk Disclaimer. The Dell-branded Products, Software and Services are not fault-tolerant and are not designed or intended for use in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life-support machines, or any other application in which the failure of the products, software, or services could lead directly to death, personal injury, or severe physical or property damage (collectively, "High-Risk Activities" ). Dell expressly disclaims any express or implied warranty of fitness for High-Risk Activities.
Important Additional Information.
Limited Warranty.
THE LIMITED WARRANTIES FOR DELL-BRANDED PRODUCTS CAN BE FOUND AT www.Dell.com/Warranty OR IN THE DOCUMENTATION DELL PROVIDES WITH SUCH PRODUCTS. THE SERVICES WILL BE PROVIDED IN A GOOD AND WORKMANLIKE MANNER. DELL HAS THE RIGHT TO GRANT THE LICENSES TO THE SOFTWARE LICENSED IN SECTION 8.b ABOVE, AND SUCH SOFTWARE WILL SUBSTANTIALLY CONFORM TO THE FUNCTIONAL SPECIFICATIONS AND CURRENT DOCUMENTATION PROVIDED BY DELL. EXCEPT AS EXPRESSLY STATED IN THE PRECEDING SENTENCES OF THIS PARAGRAPH, DELL, (INCLUDING ITS AFFILIATES, CONTRACTORS, AND AGENTS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, AND OFFICERS), ON BEHALF OF ITSELF AND ITS SUPPLIERS (COLLECTIVELY, THE "DELL PARTIES") MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO ANY OF THE PRODUCTS, SOFTWARE, OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY (1) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY, OR NON-INFRINGEMENT; (2) RELATING TO THIRD-PARTY PRODUCTS, SOFTWARE, OR SERVICES; (3) RELATING TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE, OR DELL'S PERFORMANCE OF THE SERVICES; OR (4) REGARDING THE RESULTS TO BE OBTAINED FROM THE PRODUCTS, SOFTWARE, SERVICES, OR THE RESULTS OF ANY RECOMMENDATION BY DELL.
WARRANTIES DO NOT COVER DAMAGE DUE TO EXTERNAL CAUSES, SUCH AS ACCIDENT, ABUSE, MISUSE, PROBLEMS WITH ELECTRICAL POWER, SERVICE NOT PERFORMED OR AUTHORIZED BY DELL (INCLUDING INSTALLATION OR DE-INSTALLATION), USAGE NOT IN ACCORDANCE WITH PRODUCT OR SOFTWARE INSTRUCTIONS, NORMAL WEAR AND TEAR, OR USE OF PARTS AND COMPONENTS NOT SUPPLIED OR INTENDED FOR USE WITH THE PRODUCTS, SOFTWARE, OR SERVICES. THESE WARRANTIES DO NOT APPLY TO THIRD-PARTY PRODUCTS. ANY WARRANTY ON A THIRD-PARTY PRODUCT IS PROVIDED BY THE PUBLISHER, PROVIDER, OR ORIGINAL MANUFACTURER. ALL THIRD-PARTY PRODUCTS ARE PROVIDED "AS IS."
WITH RESPECT TO YOUR USE OF THE SOFTWARE (1) NEITHER DELL NOR ANY OF THE DELL PARTIES MAKES ANY EXPRESS OR IMPLIED WARRANTY THAT SOFTWARE PROVIDED TO YOU IN CONNECTION WITH THIS AGREEMENT IS OR WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS; OR THAT ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED; (2) YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS, UNLESS SUCH ERRORS OR VIRUSES ARE THE DIRECT RESULT OF DELL'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (3) DELL AND THE DELL PARTIES, JOINTLY AND SEVERALLY, DISCLAIM AND MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF ANY REPORTS, DATA, RESULTS, OR OTHER INFORMATION OBTAINED OR GENERATED BY YOU RELATED TO YOUR USE OF THE SOFTWARE; AND (4) USE OF THE SOFTWARE IS ENTIRELY AT YOUR OWN RISK AND NEITHER DELL NOR THE DELL PARTIES SHALL HAVE ANY LIABILITY RELATING TO SUCH USE.
Limitation of Liability
DELL WILL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS, SOFTWARE, OR SERVICES PROVIDED HEREUNDER. EXCEPT FOR YOUR BREACH OF SECTION 1.d.1. OR 8,, NEITHER PARTY SHALL HAVE LIABILITY FOR THE FOLLOWING: (1) LOSS OF REVENUE, INCOME, PROFIT, OR SAVINGS; (2) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF A SYSTEM OR NETWORK OR THE RECOVERY OF SUCH; (3) LOSS OF BUSINESS OPPORTUNITY; (4) BUSINESS INTERRUPTION OR DOWNTIME; OR (5) DELIVERABLES, DELL PRODUCTS, OR THIRD-PARTY PRODUCTS NOT BEING AVAILABLE FOR USE.
DELL'S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING ANY PRODUCTS, SOFTWARE, OR SERVICES PROVIDED HEREUNDER) IN ANY 12-MONTH PERIOD SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER DURING THE PRIOR 12 MONTHS OF THIS AGREEMENT FOR THE SPECIFIC PRODUCT, SOFTWARE, OR SERVICE GIVING RISE TO SUCH CLAIM(S).
THESE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SHALL APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. THE PARTIES AGREE THAT THESE LIMITATION OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR DELL'S SALE OF PRODUCTS, SOFTWARE, OR SERVICES TO CUSTOMER, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.
Confidentiality. In connection with this Agreement, each party may have access to or be exposed to information of the other party that is not generally known to the public, such as software, product plans, pricing, marketing and sales information, customer lists, "know-how," or trade secrets, which may be designated as confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential (collectively, "Confidential Information" ). Confidential Information may not be shared with third parties unless such disclosure is to the receiving party's personnel, including employees, agents, and subcontractors, on a "need-to-know" basis in connection with this Agreement, so long as such personnel have agreed in writing to treat such Confidential Information under terms at least as restrictive as those herein. Each party agrees to take the necessary precautions to maintain the confidentiality of the other party's Confidential Information by using at least the same degree of care as such party employs with respect to its own Confidential Information of a similar nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality. The foregoing shall not apply to information that (1) was known by one party prior to its receipt from the other or is or becomes public knowledge through no fault of the recipient; or (2) is rightfully received by the recipient from a third party without a duty of confidentiality. If a recipient is required by a court or government agency to disclose Confidential Information, the recipient shall provide advance notice to other party before making such a disclosure. The obligations with respect to Confidential Information shall continue for two years from the date of disclosure.
Indemnification. Dell shall defend and indemnify you against any third-party claim or action that Products, Software, Services, or Deliverables (excluding Third-Party Products and open source software) prepared or produced by Dell and delivered pursuant to this Agreement infringe or misappropriate that third party's U.S. patent, copyright, trade secret, or other intellectual property rights ("Indemnified Claims" ). In addition, if Dell receives prompt notice of an Indemnified Claim that, in Dell's reasonable opinion, is likely to result in an adverse ruling, then Dell shall at its option, (1) obtain a right for you to continue using such Products, Deliverables or Software or allow Dell to continue performing the Services; (2) modify such Products, Software, Services or Deliverables to make them non-infringing; (3) replace such Products, Software, Services, or Deliverables with a non-infringing equivalent; or (4) refund any pre-paid fees for the allegedly infringing Services that have not been performed or provide a reasonable depreciated or pro rata refund for the allegedly infringing Product, Deliverables, or Software. Notwithstanding the foregoing, Dell shall have no obligation under this Section for any claim resulting or arising from (1) modifications of the Products, Software, Services, Deliverables that were not performed by or on behalf of Dell; (2) the combination, operation, or use of the Products, Software, Services, or Deliverables in connection with a third-party product, software, or service (the combination of which causes the claimed infringement); or (3) Dell's compliance with your written specifications or directions, including the incorporation of any software or other materials or processes provided by or requested by you. Dell's duty to indemnify and defend under this Section 12.d. is contingent upon: (x) Dell receiving prompt written notice of the third-party claim or action for which Dell must indemnify Customer, (y) Dell having the right to solely control the defense and resolution of such claim or action, and (z) your cooperation with Dell in defending and resolving such claim or action. This Section 12.d. states Customer's exclusive remedies for any third-party intellectual property claim or action, and nothing in this Agreement or elsewhere will obligate Dell to provide any greater indemnity to Customer.
You shall defend and indemnify Dell against any third-party claim or action arising out of (1) your failure to obtain any appropriate license, intellectual property rights, or other permissions, regulatory certifications, or approvals associated with technology or data provided by you, or associated with software or other components directed or requested by you to be installed or integrated as part of the Products, Software Services or Deliverables; (2) your breach of Dell's proprietary rights as stated in this Agreement; (3) any inaccurate representation regarding the existence of an export license or any allegation made against Dell due to your violation or alleged violation of applicable export laws, regulations, or orders; or (4) your providing of (or providing access to) Excluded Data to Dell.
Each party shall defend and indemnify the other party against any third-party claim or action for personal bodily injury, including death, to the extent directly caused by the indemnifying party's gross negligence or willful misconduct in the course of performing its obligations under this Agreement.
Independent Contractor Relationship; Assignment; Subcontracting. The parties are independent contractors. No provision of this Agreement will or shall be deemed to create an association, trust, partnership, joint venture or other entity or similar legal relationship between Dell and Customer, or impose a trust, partnership or fiduciary duty, obligation, or liability on or with respect to such entities. Neither party will have any rights, power, or authority to act or create an obligation, express or implied, on behalf of another party except as specified in this Agreement. Dell has the right to assign, subcontract, or delegate in whole or in part this Agreement, or any rights, duties, obligations or liabilities under this Agreement, by operation of law or otherwise, provided that Dell shall remain responsible for the performance of Services under this Agreement. Otherwise, neither party may assign this Agreement without the permission of the other.
Force Majeure. Neither party shall be liable to the other for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control, such as fire, flood, war, embargo, strike, riot, or the intervention of any governmental authority (a "Force Majeure"). In such event, however, the delayed party must promptly provide the other party with written notice of the Force Majeure. The delayed party's time for performance will be excused for the duration of the Force Majeure, but if the Force Majeure event lasts longer than 30 days, then the other party may immediately terminate, in whole or in part, this Agreement or the applicable Service Agreement by giving written notice to the delayed party.
Export Compliance. You acknowledge that the Products, Software, and Services provided under this Agreement, which may include technology and encryption, are subject to the customs and export control laws and regulations of the United States ("U.S."), may be rendered or performed either in the U.S., in countries outside the U.S., or outside of the borders of the country in which you or your system is located, and may also be subject to the customs and export laws and regulations of the country in which the Products, Software, or Services are rendered or received. You agree to abide by those laws and regulations. You further represent that any software provided by you and used as part of the Products, Software, or Services contains no encryption or, to the extent that it contains encryption, such software is approved for export without a license. If you cannot make the preceding representation, you agree to provide Dell with all of the information needed for Dell to obtain export licenses from the U.S. Government or any other applicable national government and to provide Dell with such additional assistance as may be necessary to obtain such licenses. Notwithstanding the foregoing, you are solely responsible for obtaining any necessary licenses relating to the export of software. Dell also may require export certifications from you for software. Dell's acceptance of any order for Products, Software, or Services is contingent upon the issuance of any applicable export license required by the U.S. Government or any other applicable national government; Dell is not liable for delays or failure to deliver Products, Software, or Services resulting from your failure to obtain such license or to provide such certification. Each Party agrees to indemnify, defend and hold the other harmless from any third-party claims, demands, or causes of action against the other due to the indemnifying party's violation or alleged violation of the applicable export laws, regulations or orders. Excluded Data . Customer acknowledges that Software and Services provided under this Agreement are not designed with security and access management for the processing and/or storage of the following categories of data: (1) data that is classified and or used on the U.S. Munitions list, including software and technical data; (2) articles, services and related technical data designated as defense articles and defense services; (3) ITAR (International Traffic in Arms Regulations) related data; and (4) other personally identifiable information that is subject to heightened security requirements as a result of Customer's internal policies or practices or by law (collectively referred to as "Excluded Data"). Customer hereby agrees that Customer is solely responsible for reviewing its data that will be provided to Dell (or to which Dell will have access) to ensure that it does not contain Excluded Data.
Regulatory Requirements. Dell is not responsible for determining whether any Third-Party Product to be used in the Products, Software, or performance of the Services, satisfies the local regulatory requirements of the country to which such Products, Software, or Services are to be delivered, and Dell shall not be obligated to provide any Product or Software or perform any Services where the resulting Products, Software, or Services do not satisfy the local regulatory requirements.
Entire Agreement; Severability. This Agreement is the entire agreement between you and Dell with respect to its subject matter and supersedes all prior oral and written understandings, communications, or agreements between you and Dell. Any preprinted terms on your purchase order shall be given no force or effect and no terms of a purchase order that conflict with this Agreement shall be binding on Dell. No amendment to or modification of this Agreement, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this Agreement should be found to be void or unenforceable, such provision will be stricken or modified, but only to the extent necessary to comply with the law, and the remainder of this Agreement will remain in full force and will not be terminated.
Updates. Dell reserves the right to update this Agreement at any time, effective upon posting an updated version at www.Dell.com/Terms; however, your rights and obligations shall be as provided in the version of this Agreement executed by you or available to you at the time of your purchase of Products, Software, or Services or, when applicable, renewal of Software or Services.
U.S. Government Restricted Rights. The software and documentation provided with the Products, Software, and Services are "commercial items" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end-users acquire the software and documentation with only those rights set forth herein. Contractor/manufacturer of Software and Dell-branded Products is Dell Products L.P., One Dell Way, Round Rock, Texas 78682.
Governing Law. This Agreement, any related Service Agreement, and ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND DELL, including their affiliates, contractors, and agents, and each of their respective employees, directors, and officers arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), Dell's advertising, or any related purchase (a "Dispute" ) shall be governed by the laws of the State of Texas, without regard to conflicts of law. The parties agree that the UN Convention for the International Sale of Goods will have no force or effect on this Agreement.
Venue. The parties agree that any Dispute (as defined in ¶ 12(l)) shall be brought exclusively in the state or federal courts located in Travis or Williamson County, Texas. Customer and Dell agree to submit to the personal jurisdiction of the state and federal courts located within Travis or Williamson County, Texas, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
Bench Trial. The parties agree to waive, to the maximum extent permitted by law, any right to a jury trial with respect to any Dispute (as defined in ¶ 12(l)).
No Class Actions. NEITHER CUSTOMER NOR DELL SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR PURSUE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
Limitation Period. NEITHER PARTY SHALL BE LIABLE FOR ANY CLAIM BROUGHT MORE THAN TWO YEARS AFTER THE CAUSE OF ACTION FOR SUCH CLAIM FIRST AROSE.
Dispute Resolution. Customer and Dell will attempt to resolve any Dispute (as defined in ¶ 12(l)) through face-to-face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mediator agreed to by the parties, rather than through litigation. The existence or results of any negotiation or mediation will be treated as confidential. Notwithstanding the foregoing, either party will have the right to obtain from a state or federal court in Travis or Williamson County a temporary restraining order, preliminary injunction, or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitations period, or preserve a superior position with respect to other creditors, although the merits of the underlying Dispute will be resolved in accordance with this paragraph. In the event the parties are unable to resolve the Dispute within 30 days of notice of the Dispute to the other party, the parties shall be free to pursue all remedies available at law or in equity.
Notices. Notice to Dell under this Agreement or any related Service Agreement must be in writing and sent by postage prepaid first-class mail or receipted courier service to the address below or to such other address (including facsimile or e-mail) as specified in writing, and will be effective upon receipt.
Dell Marketing L.P., Attn: Contracts Manager One Dell Way, Round Rock, Texas 78682 END OF DOCUMENT Dell Inc. Commercial Terms of Sale (United States)Revision Date 10/1/2010
U.S. Retail Purchaser End User Agreement (Applies to all purchases from retail sellers)
PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT KEEP YOUR PRODUCT.
This Retail Purchaser End User Agreement ("Agreement") governs your retail purchase and use of products and/or services and support ("Product") sold in the United States by Dell, including its affiliates or subsidiaries. BY PURCHASING AND USING THE PRODUCT, YOU ("CUSTOMER") AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE, DO NOT USE THE PRODUCT, AND RETURN THE PRODUCT TO YOUR PLACE OF PURCHASE (subject to its return policy).
ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE, AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND DELL, its agents, employees, principals, successors, assigns, affiliates (collectively for purposes of this paragraph, "Dell") arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), Customer's purchase or use of the Product, Dell's advertising, or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (AAA) or JAMS. Arbitration proceedings shall be governed by this provision and the applicable procedures of the selected arbitration administrator, including any applicable procedures for consumer-related disputes, in effect at the time the claim is filed. Consumer claimants (individuals whose transaction is intended for personal, family, or household use) may elect to pursue their claims in small-claims court rather than arbitration. The arbitration or small-claims court proceeding will be limited solely to the individual dispute or controversy between Customer and Dell.
You agree to an arbitration on an individual basis. In any dispute, NEITHER CUSTOMER NOR DELL SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR ARBITRATE ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER, OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration).
The arbitrator shall be empowered to grant whatever relief would be available in court under law or in equity. This transaction shall be governed by the Federal Arbitration Act 9 U.S.C. sec. 1-16 (FAA). Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. Dell will be responsible for paying any individual consumer's arbitration fees. If you prevail on any claim that affords the prevailing party attorneys' fees, the arbitrator may award you reasonable fees under the standards for fee shifting provided by law. For information on AAA or JAMS, contact the following: American Arbitration Association, (800) 778-7879, www.adr.org; JAMS, (800) 352-5267, www.jamsadr.com
Reseller Terms of Sale (Applies to all purchases of Products and Services that you intend to resell to others)
These Reseller Terms of Sale, including all applicable terms referenced herein, (collectively, this "Agreement" ) apply to your purchase (whether from Dell or from a Dell distributor in the United States or Canada) and resale of (a) any Dell-branded products and licensed software products (each, a "Dell Product" ), (b) any non-Dell-branded products, licensed software products, and services (each, a "Third Party Product" ) (Dell Products and Third Party Products are collectively referred to herein as "Products" ), and (c) any Dell services (each, a "Service" ), unless you have a separate written agreement with Dell that expressly applies to your purchase and resale of such Products and Services. This Agreement does not apply to you if you are buying Products and Services for your own internal end-use. "Dell" means the direct or indirect affiliate or subsidiary of Dell Inc. named on your invoice, order confirmation, or other sales documents. "You" or "your" means the entity that places an order for Products and/or Services with Dell for purpose of resale to an End-User (defined below).
By placing your order, you accept and are bound to the terms and conditions of this Agreement.
APPOINTMENT.
General. Subject to the terms and conditions of this Agreement and your compliance therewith, you may resell certain Products and Services to End-Users. "End-User" means any entity purchasing or otherwise obtaining Products and/or Services from you for its own internal end-use and not for reselling, distributing, or sub-licensing to others. You shall not market, resell, or use Products or Services other than as expressly permitted in this Agreement. You understand that not all Products and Services may be purchased for resale under this Agreement.
Restrictions to Appointment. Notwithstanding Section 1.A, and unless and to the extent that you are expressly granted such rights under the Dell PartnerDirect Program, you shall not market or resell Products or Services (a) to any consumers, resellers, distributors, or third-party sales agents; (b) through retail storefronts or auction-type websites; or (c) to any government (including federal, provincial, state, or local government), healthcare, or education end-users. You shall not market or resell Products or Services to anyone outside the United States or Canada, whichever is the country covered by the Dell entity from which you purchased such Products and Services.
Non-Exclusive. This Agreement is not exclusive. Dell may appoint third parties (including those who may compete with you) to sell or market Products and Services to anyone. Dell may sell or market (whether directly or indirectly through a third party) Products and Services at any price Dell chooses without any obligation or liability to you. This Agreement does not guarantee that you will make any sales of Products or Services.
Additional Requirements. Your eligibility to resell certain Products and Services may be subject to additional obligations or conditions not outlined in this Agreement, including additional training, specialization requirements, contractual agreements, and other conditions. Dell may require you to meet such additional obligations or conditions prior to your resale of any Products and Services. Such obligations and conditions will be disclosed to you prior to your purchase of Products and Services for resale. You agree to provide Dell with information and reports pertinent to your relationship with Dell as may reasonably be requested by Dell.
PRICING & TAX
Pricing. Prices for Products and Services will be as specified on Dell's website, in a written quote to you for such Products and Services, or as specified in the applicable Dell invoice or Service Agreement (defined below) relating to such Product or Service. Except as otherwise expressly set forth in Dell's quote, Dell's quoted price is valid for thirty (30) days from the date of the quote. Before Dell issues a quote, Dell may require you to provide information concerning the End-User and you agree to provide such information. Dell reserves the right to modify pricing (including quotes) due to shortage of materials or products, increase in costs, pricing or other error, or any event beyond Dell's control, without liability to you. Taxes, shipping and handling charges and any government mandated environmental disposal surcharges are not included in prices for Products and Services, unless expressly indicated at the time of sale.
Unless you and Dell have agreed to a different discount structure, Dell's standard pricing policy for a solution that includes products, software, and services in one discounted price, allocates the discount off list price applicable to the services portion of the solution to be equal to the overall percentage discount off of the list price of the entire solution. If you breach the provisions of this Agreement or the terms of any offer, Dell may charge or re-debit your account or credit card the full list price for your purchase (in lieu of a discounted or special price included in the offer). If Dell offers you certain discounts off of Dell's standard list price, such discounts do not apply to special product promotions and cannot be combined with other offers.
Taxes. You are responsible for all applicable taxes, duties, fees and other charges, including sales or use and/or similar taxes, imposed by any federal, state, provincial or local governmental entity on Services and Products provided by Dell under this Agreement, except for taxes based on Dell's net income, gross revenue or employment obligations. If Dell is obligated by applicable law or regulation to collect and remit any taxes or fees relating to the Services or Products, then Dell will add the appropriate amount to your invoices as a separate line item. You may qualify for tax exemptions from time to time in which case Dell requests that you provide to Dell a valid certificate of exemption or other appropriate documentary proof of exemption.
Reseller Pricing. You are free to determine and set your resale pricing of Products and Services.
PURCHASE ORDERS
Orders. Each order must reference Dell's quote (if any), the requested Products and Services, the End-User's name and address, and any other information requested by Dell. If requested by Dell, you shall submit Orders on Dell designated order form(s). You shall place orders for Products and Services in the country where the End-User is located. All orders and transactions are subject to acceptance or cancellation by Dell, in Dell's sole discretion. Each accepted order will be interpreted as a single agreement, independent of any other orders.
Shipping, Title and Risk of Loss. Title to Products (except title to software which remains with the applicable licensors) passes from Dell to you upon shipment to you. Loss or damage that occurs during shipping by a carrier selected by Dell is Dell's responsibility. Loss or damage that occurs during shipping by a carrier selected by you is your responsibility. Selecting your carrier of choice may not be available in certain geographic locations. Shipping and delivery dates are provided as estimates only and Dell is not responsible for any early or delayed shipment or delivery. Dell may ship parts of an order separately. You must notify Dell within twenty-one (21) days from the date of your invoice or acknowledgement if you believe any part of your order is missing, wrong, or damaged.
Cancellation. Orders for Third Party Products, Products that have been discontinued or have reached the end of their product lifecycle, and formerly standard parts that are no longer regularly used in Products, may not be changed or cancelled without Dell's prior written approval. If you purchase a multi-year software license and related support or maintenance, and you and Dell (and, if applicable, the third-party licensor of the software) agree to make installation payments of the purchase price over the term of the license, then you shall make all such installation payments in full and such purchase is non-cancellable over the term of the license. Dell is not responsible for pricing, typographical, or other errors in any offer or quote, and reserves the right to cancel any order arising from such errors. In addition, Dell may cancel orders due to shortage of products or materials, increases in the costs of manufacturing, or any event beyond Dell's control.
No Return. All sales are final. Neither you nor any of your End-Users may return Products to Dell, except as expressly permitted in Section 5 below or to the extent that you are expressly granted return rights under the Dell PartnerDirect Program.
Security Interest. You hereby grant Dell, and Dell hereby retains, a first priority security interest and lien on any and all of your rights, title, and interest in Products, wherever located, and all replacements or proceeds of the Products, until the invoice for the applicable Products is paid in full, including any late payment fees and costs of collection. You agree Dell may file any financing statements or related filings for protecting this security interest as Dell reasonably deems necessary or appropriate.
INVOICING, AND PAYMENT
Invoices. Dell may invoice parts of an order separately, or may invoice purchases of Products and Services in one invoice. Additional charges will apply if you request customized invoicing, consolidated invoicing, or other special billing arrangement or statements. Dell reserves the right to change the method of delivery of all documentation. You agree that all invoices will be deemed accurate unless you advise Dell in writing of a bona fide, material error within fourteen (14) days from the date of such invoice. In the event you advise Dell of a material error, (a) payment of any amounts corrected or modified by Dell in writing will be due, and you shall pay such amounts, within fourteen (14) days of such correction, and (b) you shall pay all other amounts by the invoice due date. In the event you withhold payment of any invoiced amounts upon an assertion that such amounts are erroneous, and Dell subsequently concludes that such invoiced amounts are accurate, then you shall pay a late payment fee as described in Section 4.C, from the due date, for such invoiced amounts, until Dell's receipt of those amounts. In no event will you be entitled to offset, defer or deduct any invoiced amounts that Dell determines are not erroneous following the notification process described in this paragraph. If you do not receive an invoice or acknowledgement in the mail or with your Products and/or Services, information about your purchase may be obtained at www.support.dell.com/DellCare/Index.aspx (or in Canada at www.dell.ca/support) or by contacting your Dell sales representative.
Payment. Invoices are due and payable within the time period noted on your invoice, or if not noted, then within thirty (30) days measured from the date of the invoice, subject to continuing credit approval by Dell (such approval may be revoked without notice from Dell). Payment shall be made in the currency as invoiced by Dell. Payment for Products and Services must be made by credit card, automated clearing house, wire transfer, electronic funds transfer or some other prearranged payment method, unless credit terms have been agreed to by Dell. You shall make payment to Dell for Products and Services to the account indicated by Dell (as may be amended from time to time). Timely payment is of the essence. Your assignment of a purchase order to a third-party financing company (other than Dell Financial Services, LLC, or Dell Financial Services Canada Ltd., as applicable) must be approved in advance in writing by Dell, and in no case will any such approval excuse you from your obligations hereunder.
Late Payment. Dell reserves the right to charge you a late payment fee of 1.5% per month applied against undisputed overdue amounts, or the maximum rate permitted by law, whichever is less. Late payment fees will be recalculated every thirty (30) days thereafter based on your current outstanding balance. In addition, Dell may, without waiving any other rights or remedies to which it may be entitled, take any one or more of the following actions: (a) not accept additional orders from you; (b) suspend or terminate its provision of software licenses, maintenance, warranty service, technical support, or any other Service; and (c) seek collection of all amounts due, including reasonable attorney or legal fees, expenses and costs of collection. Dell will have no liability to you or to any End-User for any such suspension or termination or for any refusal of additional orders.
SOFTWARE
You agree that all software distributed with or for the Products ("Software" ) is subject to the separate end-user software license agreement that is shipped with, included in (e.g., part of a product installer or an executable document), made available by download, or otherwise accompanies such software or Products . If no such agreement is shipped with, included in, made available by download, or otherwise accompanies the Software, and there is no separate license agreement between End-User and the manufacturer or owner of such software, then the Software shall be governed by and subject to the applicable license agreement at www.dell.com/softwarelicenseagreement ("Dell EULA" ). You shall pass on the end-user software license agreement to the End-User to which you resell such Products , and you are responsible for ensuring that the End-User agrees to abide by the terms of the end-user software license agreement. For Dell Software, you shall require the End-User to agree that if End-User does not agree to be bound by the end-user software license agreement then the End-User shall not download, install, activate or otherwise use the Dell Software and shall promptly return the Dell Software (including media, written materials and packaging) and any hardware to which such software is attached, for a full refund from you. If you accept such return and provide a full refund to End-User you will be entitled to return the same to Dell and obtain a refund of your purchase price; provided, however, your right to return and obtain a refund, as permitted in this Section, expires twenty-one (21) days from the date of Dell's invoice to you, and further provided that Dell may require documentation from End-User of its objection to the software license agreement and its receipt of refund from you.
If you are installing, downloading, or otherwise using the Software on behalf of the End-User, you shall obtain the End-User's written authorization prior to accepting the terms of the end-user software license agreement on behalf of the End-User and you shall comply with the terms of the software license agreement.
SERVICES
Dell Terms and Conditions Applicable to End-Users. You will only resell Services to End-Users who agree to be bound to:
(a)(i) if the End-User is purchasing Services other than Dell's cloud solutions, (x) if the End-User is located in the U.S., Dell's Commercial Terms of Sale set forth at www.dell.com/terms (the "U.S. CTS"), (y) if the End-User is located in Canada, Dell's Commercial Terms of Sale (Canada) set forth at www.dell.ca/terms (the "Canada CTS"), or (z) such other written agreement as Dell may designate; and (ii) if the End-User is purchasing any of Dell's cloud solutions, Dell's Cloud Solutions Agreement set forth at www.dell.com/terms (the "CSA"), in each of cases (i) and (ii) including all terms and conditions incorporated by reference therein; and
(b) all applicable service contracts associated with such Services, including service descriptions available at www.dell.com/servicecontracts ("Services Descriptions"), any statements of work, and any other service contracts designated by Dell (all such documents referenced in the foregoing clauses (a) and (b), collectively, the "Service Agreements").
You shall communicate to the End-User in writing (in each quote and in your own agreement with such End-User for the sale of Services (such agreement, the "End-User Agreement")) that the provision and performance of such Services are subject to and will be governed by the applicable Service Agreements. You acknowledge and agree that Dell is a third party beneficiary of the End-User Agreement and may enforce the provisions thereof directly against the End-User or through you, and you shall require the End-User to acknowledge and agree to such in the End-User Agreement. Additionally, you acknowledge and agree that (x) Dell may present or, if requested by Dell, you shall present, all applicable Service Agreements directly to the End-User and (y) Dell is not required to provide or perform any Services for such End-User unless and until such End-User has agreed to be bound by all such Service Agreements, as may be determined in each case by Dell in its sole discretion. You shall immediately notify Dell if you become aware of any End-User's violation of any of the Service Agreements. Dell reserves the right, in its sole discretion, to suspend or terminate the provision of any one or more of the Services to an End-User in response to such End-User's violation, or suspected violation, of any of the applicable Service Agreements, and Dell will have no liability to you as a result of any such suspension or termination.
Services Delivery. All Services will be performed by Dell or its subcontractors. You may not use, provide, or perform any Services, including in your capacity as a Managed Services Provider, absent a separate written agreement with Dell expressly authorizing the same.
WARRANTIES
Limited Warranty on Dell Products and Services. DELL MAKES NO WARRANTIES EXCEPT THOSE EXPRESLLY STATED (A) WITH RESPECT TO DELL HARDWARE PRODUCTS: IN THE END USER DOCUMENTATION PROVIDED WITH THE DELL PRODUCTS OR DELL'S APPLICABLE LIMITED WARRANTY STATEMENT IN EFFECT ON THE DATE OF THE INVOICE, PACKING SLIP, OR ACKNOWLEDGEMENT FOUND AT WWW.DELL.COM/WARRANTY (or in Canada at www.dell.ca/warranty), (B) WITH RESPECT TO DELL SOFTWARE: IN THE APPLICABLE SOFTWARE LICENSE AGREEMENT FOUND AT WWW.DELL.COM/SOFTWARELICENSEAGREEMENT; OR (C) WITH RESPECT TO SERVICES: IN THE APPLICABLE SERVICE AGREEMENT. You shall not make any warranty on Dell's behalf. You are solely responsible for, and you shall indemnify and hold Dell harmless from any claims related to, any warranty you grant that is beyond the Dell limited warranty provided in this paragraph.
Third Party Products. Third Party Products may carry with them a limited warranty from the third-party publisher, provider or original manufacturer of such Third Party Products. Dell is not responsible for fulfillment of any Third Party Product warranty or for problems attributable to the use of Third Party Products. Dell does not warrant that any Product will function in any specific configuration that includes any Third Party Products, or that any Product will function to produce a particular result, even if the specific configuration or the result has been discussed with Dell. ALL THIRD PARTY PRODUCTS ARE PROVIDED BY DELL ON AN "AS IS" BASIS.
Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.A, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, DELL (INCLUDING ITS AFFILIATES, CONTRACTORS, AND AGENTS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, SUCCESSORS AND ASSIGNS), ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS (COLLECTIVELY AND TOGETHER WITH DELL, THE "DELL PARTIES"), DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES AND CONDITIONS WITH RESPECT TO THE PRODUCTS AND SERVICES, INCLUDING IMPLIED WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
Hardware Support Services/Tag Transfer. You shall transfer the asset/service identification number (e.g. the Service Tag or Asset Number) to the End-User that is associated with the Dell Products you have purchased for resale in accordance with this Agreement. The process to complete such transfer may be found at www.support.dell.com (or in Canada at www.dell.ca/support), which process Dell may change from time to time. It is your responsibility to ensure compliance with the latest version of the posted process. You acknowledge that your failure to properly transfer the asset/service identification number of the Dell Products will result in the End-User's inability to receive hardware support services from Dell for such Dell Products, and Dell will not be liable to you or to any End-User for any such failure. The parts used in repairing or servicing Products and spare parts may be new, equivalent-to-new, or reconditioned.
HIGH RISK APPLICATIONS. You understand that Dell Products have been designed, manufactured, and tested by Dell or its suppliers for use in general-use office/business environments. Dell has not tested or certified Dell Products for use in any high-risk applications, including the operation of nuclear facilities, aircraft navigation, air traffic control, emergency communications systems, life support machines, weapons systems, or any other application where the failure or malfunction of any Dell Products can reasonably be expected to result in death, personal injury, severe property damage or severe environmental harm ("High Risk Applications" ). The Services are not fault-tolerant and are not designed or intended for use in, and you shall not use any Services in, any hazardous environments requiring fail-safe performance or in any High Risk Applications. You understand and agree that Dell makes no warranties or assurances that the Products and Services are suitable for any High Risk Applications and you shall defend and indemnify Dell from any claims made by third parties resulting from any such High Risk Applications. As between you and Dell, you are responsible for the design and implementation of configurations, systems, networks, and services suitable for the risks involved in the End-User applications and operating environments into which you sell.
INTELLECTUAL PROPERTY
Trademarks and Copyrights. You may use the "Dell" name and the names of Dell Products and Services (collectively, "Names") solely for the purpose of accurately identifying the Dell Products and Services you market or sell under this Agreement. You shall not use any of the Names for any other purpose, and shall not use any other Dell trademarks, services marks, or copyrighted works, unless and to the extent you are expressly granted such usage right under the Dell PartnerDirect Program. You agree to change or correct, at your own expense, any materials or activity that Dell decides is inaccurate, objectionable or misleading, or is a misuse of any of the Names, trademarks, service marks, logos, or copyrighted works. You are prohibited from using Dell's logos, referring to yourself as an authorized reseller of Dell, or creating the impression that Dell is affiliated with you, other than as expressly permitted by the terms of the Dell PartnerDirect Program. You shall not claim or imply that you and Dell are legal partners or that Dell has sponsored, authorized, approved, or endorsed your business or any offer or marketing, advertising, or promotion thereof in any manner. You will clearly and prominently identify yourself in all your offers and advertising, marketing, and promotional materials. You may not register or use any domain name or business name containing or confusingly similar to any name or mark of Dell's. Additionally, you may not use any Names or Dell marks in search engine advertising, either as a keyword or in advertisements appearing on search engines, without Dell's prior written permission
Intellectual Property Ownership and Reservation of Rights. All right, title and interest in and to the intellectual property rights in Dell Products and Services, including technology and trade secrets embodied therein and any customer developments created or provided in connection with or related to this Agreement, and any derivative works thereof, belong solely and exclusively to Dell or its licensors or suppliers, and you have no rights whatsoever in any of the foregoing other than the rights expressly set forth in this Agreement. Nothing in this Agreement or otherwise will be deemed to grant to you an ownership interest in any of the intellectual property rights in or to any Dell Products or Services, in whole or in part.
Discontinued or Changed Products or Services; Service Parts. Dell reserves the right to revise or discontinue any Product or Service offering at any time without notice to you or the End-User. Changes to Dell Products or Services may occur after you place an order but before Dell ships the Dell Product, before Dell performs the Services, or before the end of the Service subscription. As a result, any Dell Products or Services that you or an End-User receive might display minor differences from the Dell Products and Services ordered, but Dell Products and Services will meet or exceed all material specifications of such Dell Products and Services that were ordered.
Confidential Information. The term "Dell Confidential Information" means any confidential or proprietary information pertaining to or provided by Dell, including, without limitation, product plans, software, pricing, marketing and sales information, business plans, customer and supplier data, financial and technical information, "know-how," trade secrets, and other information, whether such information is in written, oral, electronic, web-based, or other form. You will keep all Dell Confidential Information confidential for a period of three years from the date of Dell's disclosure to you, and use at least the same degree of care as you use to protect your own confidential information but no less than reasonable care. Notwithstanding anything to the contrary in this Agreement, your confidentiality obligations with respect to customers' personally-identifiable information and Dell trade secrets shall never expire. You may not disclose Dell Confidential Information to any third party without Dell's prior written consent. You may share Dell Confidential Information with only your employees who have a need to know and who are subject to legally binding obligations of confidentiality no less restrictive than those imposed by this Agreement. These confidentiality obligations do not apply to any Dell Confidential Information that (a) you can demonstrate was in your possession before receipt from Dell; (b) is or becomes publicly available through no fault by you; or (c) you rightfully received from a third party without a duty of confidentiality. If you are required by a government body or court of law to disclose any Dell Confidential Information, you agree to give Dell reasonable advance notice so that Dell may contest the disclosure or seek a protective order. You may use the Dell Confidential Information solely for the purpose of, and in connection with, your business relationship with Dell. No license or conveyance of any rights under any patent, copyright, trade secret, trademark or any other intellectual property right to Dell Confidential Information is granted under this Agreement except the limited rights to use the Dell Confidential Information as expressly set forth in this paragraph. Dell makes no warranties as to the accuracy or completeness of the Dell Confidential Information. ALL DELL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS". To the extent permitted by law, Dell disclaims all express, implied and statutory warranties and conditions, and assumes no liability to you for any damages of any kind in connection with the Dell Confidential Information or any intellectual property in them. Upon Dell's written request, you will promptly return all Dell Confidential Information, together with all copies, or certify in writing that all such Dell Confidential Information and copies thereof have been destroyed. You acknowledge that damages for improper disclosure of Dell Confidential Information may be irreparable and that Dell shall be entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies available at law or in equity. You agree to adhere to all applicable United States, Canadian and foreign export control laws and regulations and will not export or re-export any technical data or products, to any proscribed country listed in the U.S. Export Administration regulations, or foreign national thereof, unless properly authorized by the U.S. Government.
YOUR RESPONSIBILITIES. In addition to your other obligations set forth in this Agreement, you are responsible for the following:
End-User Documentation. You will provide each End-User with appropriate product warranty statements, registration cards, software license agreements and other materials that Dell includes with its shipments of Products to you. In addition, you are responsible for providing all similar information related to your addition or modification to the Products.
Business Conduct. At all times you shall conduct business in a manner which reflects favorably on the Products, Services, and goodwill and reputation of Dell. In your marketing and sales of Products and Services, you will use best efforts to conduct your business in an ethical manner and to avoid any business practices that may be perceived as deceptive, misleading, or otherwise improper. You shall not make any false or misleading statement concerning Dell or any Products or Services in any of your advertising, marketing or promotional materials or in any content. Furthermore, you shall not make any representations, warranties, or guarantees with respect to the specifications, features or capabilities of Dell Products or Services that are inconsistent with or absent from Dell's published product specifications at www.dell.com (or www.dell.ca for Canada) or service descriptions at www.dell.com/servicecontracts. You shall comply with all laws and regulations applicable to your activities in connection with this Agreement, including your marketing and resale of Products and Services. You shall comply with the anti-bribery and anti-corruption laws of the countries in which you operate, including the U.S. Foreign Corrupt Practices Act and Canada's Corruption of Foreign Public Officials Act of 1999. You shall not (a) offer, promise or give any item of value to any individual for an improper purpose or with a corrupt intent to obtain or retain business or any other improper business advantage; (b) request, receive or accept any item of value offered with a corrupt intent; (c) engage any third party to represent you in the sale of Dell Products or Services if there is any concern that the third party may engage in bribery; nor (d) offer, promise or give a facilitation payment of any kind in relation to the sale, delivery or performance of Dell Products or Services, regardless of whether such payments are permitted by law or are common and expected under local custom.
Insurance. You will obtain and maintain comprehensive general liability, including products liability, insurance in an amount appropriate for your business, but in no event less than $1,000,000.00 (US), with an insurance company having a Best rating of A or better. You will name Dell as an additional insured on all commercial general liability insurance policies procured in accordance with this paragraph. Upon request, you will provide to Dell a certificate of the above-mentioned insurance, including any new or amended certificates of insurance.
INDEMNIFICATION
IP Indemnity. Dell shall defend and indemnify you against any third-party claim or action (provided that such third party is not affiliated with you) that the Dell Products and Services prepared or produced by Dell and delivered pursuant to this Agreement infringe or misappropriate that third party's U.S. (or, if you are in Canada, Canadian) patent, copyright, trade secret, or other U.S. (or, if you are in Canada, Canadian) intellectual property rights (collectively, "Indemnified Claims"). In addition, if Dell receives prompt notice of an Indemnified Claim that, in Dell's reasonable opinion, is likely to result in an adverse ruling, then Dell shall, at its option and expense: (a) obtain a right for End-User to continue using such Dell Products or allow Dell to continue performing the Services; (b) modify such Dell Products or Services to make them non-infringing; (c) replace such Dell Products or Services with a substantially comparable, non-infringing product or service; or (d) terminate any allegedly infringing Service and the applicable Service Agreement, and refund any pre-paid fees for such allegedly infringing Service on a pro rata basis for the period of time that such Service has not been performed or provide a reasonable depreciated or pro rata refund for the allegedly infringing Dell Products. Notwithstanding the foregoing, Dell shall have no responsibility for, and no obligation to defend or indemnify you for, any claim resulting or arising from (1) any Third Party Products; (2) any open source software; (3) modifications of the Dell Products or Services that were not performed by or on behalf of Dell; (4) the combination, operation, or use of any of the Dell Products or Services with any Third Party Product (where such combination, operation or use causes the claimed infringement); (5) Dell's compliance with any of your written specifications or directions, including the incorporation of any materials, processes, or Third Party Products provided by or requested by you; or (6) any circumstance for which you are required to indemnify any Dell Party. Dell's duty to indemnify and defend under this paragraph is contingent upon: (i) Dell receiving prompt written notice of the third-party claim or action for which Dell must indemnify you, (ii) Dell having the right to solely control the defense and resolution of such claim or action, and (iii) your cooperation with Dell in defending and resolving such claim or action. Dell has no obligation to defend or indemnify any End-User or any other third party. This paragraph states your exclusive remedies, and Dell's sole liability, for any third-party intellectual property claim or action, and nothing in this Agreement or elsewhere will obligate Dell to provide any greater indemnity to you.
Your Indemnity to Dell. You shall defend and indemnify the Dell Parties against any third-party claim or action resulting from or relating to (a) your failure to obtain or maintain any appropriate license, intellectual property rights, or other permissions, regulatory certifications or approvals associated with any product, software, data or other materials you provide, request or direct to be installed or integrated as part of the Products or Services; (b) your misuse or modification of any Products or Services; (c) your combination, operation, or use of any of the Products or Services with any Third Party Product, where such combination, operation or use infringes or misappropriates any intellectual property right or trade secret of a third party; (d) your fraud, misrepresentation, gross negligence, willful misconduct, or breach of any provision of this Agreement; or (e) the provision of your own products, software, or services.
LIMITATION OF LIABILITY
DELL WILL NOT BE LIABLE FOR (A) ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, (B) LOSS OF REVENUE, INCOME, PROFIT, SAVINGS OR BUSINESS OPPORTUNITY, (C) BUSINESS INTERRUPTION OR DOWNTIME, (D) LOST OR CORRUPTED DATA OR SOFTWARE, OR (E) LOSS OF USE OF ANY PRODUCTS OR SERVICES. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR ON DELL'S WEB SITE TO THE CONTRARY, DELL IS NOT RESPONSIBLE FOR INFORMATION OR DATA YOU PROVIDE TO US UNLESS YOU HAVE A SEPARATE WRITTEN AGREEMENT TO THE CONTRARY. DELL DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH IN THIS AGREEMENT.
DELL'S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY PRODUCTS OR SERVICES SHALL NOT EXCEED (A) IN THE CASE OF PRODUCTS, THE AGGREGATE DOLLAR AMOUNT YOU PAID TO DELL UNDER THIS AGREEMENT FOR SUCH PRODUCTS THAT CAUSED THE LIABILITY OR (B) IN THE CASE OF SERVICES, THE AGGREGATE DOLLAR AMOUNT YOU PAID TO DELL UNDER THIS AGREEMENT FOR SUCH SERVICES THAT CAUSED THE LIABILITY IN THE PREVIOUS 12 MONTHS PRIOR TO SUCH CLAIM FOR LIABILITY. The existence of more than one claim will not increase or otherwise alter these limitations on Dell's liability.
THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO ALL CLAIMS FOR DAMAGES OR LIABILITY, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. YOU AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR DELL'S SALE OF PRODUCTS AND SERVICES TO YOU, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF DELL HAS BEEN ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH LIABILITIES.
EXPORT. If any Products or Services are resold in violation of the restrictions in this Section 13, Dell is not obligated to provide any warranty service or technical support. Nothing in this Section 13 shall be construed as authorization by Dell for you to market or resell Products and Services in violation of Section 1.B.
You acknowledge that the Products and Services provided under this Agreement are subject to the customs and export control laws and regulations of the United States , and may also be subject to the customs or export control laws and regulations of the country(ies) in which the Products or Services are purchased, provided, manufactured, incorporated, transferred, used or received. You agree to abide by those laws and regulations, including any requirements to obtain export licenses or other government authorizations. The Products and Services may not be exported, re-exported, sold, leased or otherwise transferred to restricted end-users (including those on the U.S. Department of Commerce, Bureau of Industry and Security "Entity List," the U. S. Department of the Treasury, Office of Foreign Assets Control "Specially Designated Nationals List," and other U.S. government lists of denied parties) or to countries subject to a U.S. export embargo (currently Cuba, Iran, North Korea, Sudan, and Syria). In addition, the Products and Services may not be exported, re-exported, sold, leased or otherwise transferred to, or utilized by, an end-user engaged in any activities related to weapons of mass destruction, including any activities related to the design, development, production or use of (a) nuclear weapons, materials, or facilities, (b) missiles or the support of missile projects, or (c) chemical or biological weapons. You agree to apply the requirements of Section 13.A to any agreement you enter with any party for the resale or distribution of the Products or Services provided under this Agreement.
You represent that any software provided by you and installed on or used as part of the Products or Services contains no encryption or, to the extent that it contains encryption, such software is authorized for export without a license or that you have obtained any export licenses as may be necessary. Dell may require export certifications from you concerning the export control classification and licensing status of any software provided by you.
You are solely responsible for obtaining any necessary licenses or other authorizations relating to the export of the Products and Services provided under this Agreement, and you are responsible for ensuring compliance with the requirements of any such licenses or other authorizations. Dell's acceptance of any order for any Products or Services is contingent upon the issuance of any applicable export license required by the U.S. Government or any other applicable national government; Dell is not liable for delays or failure to deliver any Products or Services resulting from your failure to obtain such license or to provide certification to Dell that any necessary license has been obtained.
You shall indemnify, defend, and hold Dell harmless from any claims, causes of action, or legal proceedings (including any investigations or proceedings by a governmental agency or entity) arising out of or in connection with your inaccurate representation regarding the existence of an export license or your violation or alleged violation of any applicable customs or export control laws or regulations.
If an End-User exports or acquires Products for export, you will use commercially reasonable efforts to ensure that the End-User complies with all applicable customs and export control laws and regulations. If any Dell-branded hardware Product is moved outside of the United States or Canada, as applicable, to a geographic location in which such Product's warranty support service contract ("Warranty Support Service" ) is not available, or is not available at the same price as you paid to Dell for the Warranty Support Service, the End-User may not have coverage or may incur an additional charge to maintain the same categories of support coverage at the new location. If you or the End-User choose not to pay such additional charges, in Dell's sole discretion the Warranty Support Service may be automatically changed to categories of support which are available at such price or a lesser price in such new location with no refund available. You shall inform all End-Users of the foregoing limitations prior to or at the time an End-User places its order with you for any Warranty Support Services for any Dell-branded hardware Products.
DISPUTE RESOLUTION - ARBITRATION. YOU AND DELL ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR, WHERE APPLICABLE, TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
The parties will attempt to resolve any claim, dispute, or controversy (whether in contract, tort or otherwise, whether pre-existing, present or future, and including statutory, consumer protection, common law, intentional tort and equitable claims) between you and Dell Parties arising from or relating to this Agreement or any Service Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from such written agreements (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), the Dell PartnerDirect program, the reseller or channel partner program, Dell's advertising, or any related purchase (each a "Dispute" ) through face-to-face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator.
If the parties are unable to resolve the Dispute through negotiation or mediation within a reasonable time after written notice from one party to the other that a Dispute exists, the Dispute SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION administered by the International Institute for Conflict Prevention and Resolution (CPR), the American Arbitration Association (AAA), or JAMS (for Canadian resellers, arbitration will be at ADR Chambers pursuant to the general ADR Chambers Rules for Arbitration located at www.adrchambers.com). Arbitration proceedings shall be governed by this Dispute Resolution - Arbitration section and the applicable procedures of the selected arbitration administrator in effect at the time the claim is filed. The arbitration will be limited solely to the individual dispute or controversy between you and Dell.
You agree to arbitration on an individual basis. Where enforceable, NEITHER YOU NOR DELL SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER RESELLERS OR PARTNERS, OR ARBITRATE ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER, OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration).
The arbitration hearing shall take place in Austin, Texas (unless the arbitrator orders otherwise), and will be governed by the United States Federal Arbitration Act to the exclusion of any inconsistent state laws. The arbitrator shall base its award on the terms of any written Agreement(s), and will follow the law and judicial precedents that a United States District Judge sitting in the Western District of Texas would apply to the Dispute. (For Canadian entities: the arbitration hearing shall take place in Toronto, Ontario (unless the arbitrator orders otherwise), and will be governed by the Arbitration Act of Ontario and the applicable laws of Ontario and Canada). The arbitrator shall render its award in writing and will include the findings of fact and conclusion of law upon which the award is based. Judgment upon the arbitration award may be entered by any court of competent jurisdiction. For information on CPR, call (212) 949-6490; on AAA, call (800) 778-7879; on JAMS, call (800) 352-5267. Notwithstanding the foregoing, either party will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, although the merits of the underlying Dispute will be resolved in accordance with this Dispute Resolution - Arbitration section.
GOVERNING LAW. You agree that this Agreement, any purchase hereunder and any Dispute will be governed by the laws of the State of Texas (or for Canadian entities, the Province of Ontario), without regard to its conflict-of-laws rules or to the United Nations Convention on Contracts for the International Sale of Goods.
MISCELLANEOUS
Headings, Interpretation and Language. The section headings used herein are for convenience and reference only and are not to be considered in construing or interpreting this Agreement. All references herein to "Sections" will be deemed references to sections of this Agreement. The words "include" and "including", and other variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words "without limitation". The parties confirm that it is their wish that this Agreement, as well as other documents relating to this Agreement, including all notices, have been and will be drawn up in the English language only. Les parties aux présentes confirment leur volonté que cette convention, de même que tous les documents, y compris tout avis, qui s'y rattachent, soient rédiges en langue anglaise.
Independent Contractors. No provision of this Agreement will be deemed to create an association, trust, partnership, joint venture or other entity or similar legal relationship between you and Dell, or impose a trust, partnership, or fiduciary duty, obligation, or liability on or with respect to such entities. You and Dell are independent contractors. Neither party will make any representations or warranties, or assume any obligations, on the other party's behalf. Neither party is or will claim to be a legal representative, franchisee, agent or employee of the other party. Each party is responsible for the direction and compensation, and is liable for the actions, of its employees and subcontractors.
Audit. You will maintain accurate and legible records for a period of three years and will grant to Dell, or its designee, reasonable access to and copies of, any information reasonably requested by Dell to verify compliance with the terms of this Agreement.
U.S. Government End Users. The software and documentation provided with Products and Services are "commercial items" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end-users acquire the software and documentation with only those rights set forth herein. Contractor/manufacturer of Dell software and Dell Products is Dell Products L.P., One Dell Way, Round Rock, Texas 78682.
No Third Party Beneficiaries. Except as otherwise expressly provided herein, nothing in this Agreement is intended to, or will be deemed or construed to, create any rights or remedies in any third party.
Limitation Period. Neither party may institute any action in any form arising out of this Agreement more than two (2) years after the cause of action has arisen, or in the case of non-payment, more than two (2) years from the date of last payment.
Assignment; Subcontracting. You shall not assign this Agreement, in whole or in part, whether by operation of law, merger or stock or asset sale, or otherwise, without the prior written consent of Dell. Any attempt to assign this Agreement without Dell's written consent will render the purported assignment null and void. Dell has the right to assign, subcontract or delegate in whole or in part this Agreement, or any rights, duties, obligations or liabilities under this Agreement, by operation of law or otherwise, provided that Dell will remain responsible for the performance of Services under this Agreement.
Force Majeure. Dell shall not be liable to you for any delays or failure to perform any of its obligations under this Agreement during any period in which such performance is delayed or prevented by circumstances beyond its reasonable control including fire, flood, war, embargo, strike, riot or the intervention of any governmental authority.
Waiver. Failure by Dell to enforce any provision of this Agreement will not operate or be construed as a waiver of any future enforcement of that or any other provision of this Agreement. No waiver will be effective against Dell unless in writing and signed by an authorized representative of Dell.
Severability. If any provision of this Agreement is declared or found to be illegal, invalid or unenforceable, then such provision will be stricken or modified to the extent necessary to make it legal, valid, and enforceable while preserving the parties' original intent to the maximum extent possible. The remaining provisions of this Agreement will remain in full force and will not be terminated.
Entire Agreement. This Agreement (including all online terms referenced herein) constitutes the entire integrated agreement between you and Dell regarding its subject matter, and supersedes all prior or contemporaneous, written or oral understandings, communications or agreements between you and Dell regarding such subject matter. This Agreement may not be altered, supplemented or amended by you via the use of any other document(s) unless otherwise agreed to in a separate written agreement signed by an authorized representative of Dell. Any use of your pre-printed forms, such as purchase orders, are for convenience only, and any pre-printed terms set forth therein that are in addition to, inconsistent or in conflict with the terms of this Agreement shall be given no force or effect.
Agreement Updates. Dell reserves the right to update this Agreement (including all applicable terms referenced herein) at any time, effective upon posting an updated version to the Dell website, in the case of (a) the Reseller Terms of Sale, available at www.dell.com/terms, (b) the U.S. CTS and the CSA, available at www.dell.com/terms, (c) the Canada CTS, available at www.dell.ca/terms, (d) Services Descriptions, available at www.dell.com/servicecontracts, and (e) the Dell EULA, available at www.dell.com/softwarelicenseagreement. You shall monitor the revision date/version number, and any change to its posted date/version number will be deemed notice to you that the terms have been updated. However, subject to Section 9.C, your rights and obligations with respect to any particular Products or Services will be as provided in the version of this Agreement executed by you or available to you at the time of your purchase of such Products or Services or, when applicable, at the time of renewal of any Services or software license.
Notices. Any notice to Dell relating to this Agreement must be in writing and sent by postage prepaid first-class mail or receipted courier service to the address below or to such other address (including facsimile or e-mail) as specified by Dell in writing, and will be effective upon receipt. Notice from Dell may be sent to you by postage prepaid first-class mail, receipted courier service, facsimile telecommunication or electronic mail to the address and contact information provided by you to Dell in connection with this Agreement. Dell Marketing L.P. (U.S.) Dell Canada Inc. (Canada) Attention: Contracts Manager Attention: Contracts Manager One Dell Way 155 Gordon Baker Rd. Suite 501 Round Rock, TX 78682 North York, ON M2H3N5
SUPPLEMENTAL TERMS FOR OEM CUSTOMERS ONLY. The following terms in this Section 17 will apply to you only if you are an OEM Customer (as defined below). To the extent there is a conflict, the terms of this Section 17 will take precedence and govern over the terms in Sections 1-16, including any terms referenced therein.
Definitions. "OEM Customer" means you in your capacity as an original equipment manufacturer that is purchasing Dell Products and Services from the Dell OEM Solutions (or its successor) business group for an OEM project. In general, an OEM Customer (a) embeds or bundles such Dell Products in or with OEM Customer's proprietary hardware, software or other intellectual property, resulting in a specialized system or solution with industry or task-specific functionality (such system or solution an "OEM Solution" ) and (b) resells such OEM Solution under OEM Customer's own brand. With respect to OEM Customers, the term (1) "Dell Products" includes Dell Products that are provided without Dell branding (i.e. unbranded OEM-ready system), and (2) "End-User" means any entity purchasing an OEM Solution for its own end-use and not for reselling, distributing or sub-licensing to others.
Appointment. Notwithstanding Section 1.B, and subject to the other terms and conditions of this Agreement and your compliance therewith, you (whether directly or through distributors, resellers, or sales agents in your distribution channel (collectively, "OEM Representatives" )) may resell certain Dell Products to End-Users only as part of your OEM Solution and after you have added value to the Dell Product through the addition of hardware, software or services. You may use OEM Representatives to resell OEM Solutions, provided that the agreement between you and such OEM Representatives is as comprehensive and as restrictive as the terms of this Agreement. You shall include in all agreements selling, leasing, or transferring ownership of Dell Products or selling Services, a limitation of liability provision similar to Section 12, including a disclaimer as to Dell's liability for incidental, consequential, special, indirect, exemplary, and punitive damages; loss of revenue, income, profit, or savings; lost or corrupted data or software; and loss of use of products or services. Dell's pricing and discounts offered to you are considered Dell's confidential information, and you shall not show such pricing or discounts as a separate line item to any OEM Representatives or End-Users or otherwise disclose such information to any third party without Dell's prior written permission.
Additional Fees and Taxes. Dell's prices do not include, and you are responsible for paying, all import or export fees, duties, tariffs, insurance or other charges associated with exporting or importing any Products from Dell's or its contractor's manufacturing facility.
Product Labeling. Except as otherwise agreed between you and Dell in a Service Agreement, you must resell all Dell Products with their original markings. In no event shall you (or any others on your behalf) remove or change safety or agency certification labels or other manufacturers' labels on any Products without the appropriate agency or manufacturer written approval.
Customization Services. If your order includes Services (including custom factory integration (CFI) services and custom fulfillment services (CFS) services) to customize the Dell Product portion of your OEM Solution, such Services will be performed subject to (a) the U.S. CTS (if your order is placed in the U.S.) or to the Canada CTS (if you order is placed in Canada) and (b) all other applicable Service Agreements. You are solely responsible for (1) determining technical specifications for such customized project; (2) ensuring that those technical specifications are properly documented in the applicable Service Agreement; (3) testing of prototype(s) to verify that the prototype(s) meet applicable specifications and that all hardware and software are compatible, before you place any production order for the customized configuration; and (4) obtaining all necessary licenses and other rights for Dell to perform the Service, including all rights to copy, install, modify and distribute any Third Party Products and any software or hardware provided or requested by you. Regardless of any tests that may be performed by Dell, Dell is not responsible for the suitability of the customized configuration, for any effect any Dell Services may have on any warranty or service contract for Third Party Products, for the compatibility of any Third Party Products or your software or hardware with any of the Dell Products, or for any liability or damage arising from the installation or customization of a configuration in accordance with a Service Agreement or your instructions. Any additional regulatory and safety compliance required due to the integration of non-Dell hardware or software into the configurations shall be your sole responsibility. To the extent you require Dell to affix or label any non-Dell name, logo, trademark, artwork or images on any of the Dell Products, you hereby grant Dell a non-exclusive, royalty-free, fully paid-up, transferable and sublicensable license to use, reproduce and distribute such name, logo, trademark, artwork and images solely in connection with such purpose and you shall enter into a trademark license agreement if requested by Dell.
Warranty Exclusions. Dell's express limited warranty does not cover: (a) any components that are added to any Dell Products after such products are shipped from Dell or that are added through Services (e.g., custom factory integration services or custom fulfillment services) at your request; (b) any problems caused by such components or any Third Party Products; (c) any repairs necessitated by any software problems or as a result of alteration or repair by anyone other than Dell or its representatives; or (d) any damage or problems due to any external causes, including accident, abuse, misuse, neglect, problems with electrical power, acts of God, usage not in accordance with product instructions, or normal wear and tear.
Regulatory Compliance. You shall ensure the Dell Products remain compliant with regulatory and agency approvals after such products are shipped from Dell.
(a) If you (or others on your behalf) make any modifications or additions to the Dell Product (including adding logos or markings) after the Dell Products are shipped from Dell, you are solely responsible for obtaining all necessary regulatory approvals and other authorizations for each country where you or your OEM Representatives will sell or ship such products.
(b) The regulatory compliance marks on Dell Products may vary, depending on where such products are manufactured and sold to you. You understand that the Dell Products sold from the United States generally contain regulatory compliance marks that are required to ship into the United States, Canada, and European Union (EU) countries. Additional regulatory compliance marks are required to ship to other locations. You are solely responsible for obtaining any such additional marks that may be required.
(c) You shall ensure that each OEM Solution complies with all regulatory requirements for its target market and locations and is properly labeled
Independent Efforts. Nothing in this Agreement precludes Dell from independently developing, manufacturing, marketing or selling any products or services in competition with those offered by OEM Customer, provided that OEM Customer's confidential information is not used by Dell.
(Rev 012012)
Dell | Cloud Solutions Agreement
This Agreement is effective upon your execution of a Solution Description or an Order Form, or you otherwise agree to be bound by this Agreement through your acceptance pursuant to an online order process that references this Agreement. "You ," "your " or "Customer " means the customer entity identified in the applicable Solution Description, Order Form or online order process. "Dell ," "us ," "we " or "our " means Dell Marketing L.P., on behalf of itself and its suppliers and licensors, or the Dell entity identified on your Solution Description or Order Form. You agree that your purchases of Solutions pursuant to this Agreement will be solely for your own internal business use and not for resale.
"Confidential Information " means (i) for you, information provided to us on any Order Form; (ii) for us, pricing and other Solution terms, Activation Instructions, marketing and sales information, "know-how," audit and security reports, product development plans, data center designs (including non-graphic information you may observe on a tour of a data center), or other proprietary information or technology provided to you; and (iii) for both you and us, Trade Secrets or any information designated as Confidential. Information developed without reference to another party's Confidential Information, or that is a part of or enters the public domain or otherwise is made available to a party other than through violation of confidentiality, will not be Confidential Information. For the avoidance of doubt, information transmitted to us or stored as part of the Solution will not be considered Confidential Information.
"Cloud " means a combination of hardware, services, software and networking elements made available by us under a Solution Description that comprise an information technology system. Depending on the Solution purchased, the Cloud may consist of a dedicated system for your use only, the right to use certain parts of a shared system maintained for multiple customers, or a combination of some dedicated elements and some shared elements.
"End User " means each individual whom the Customer has authorized to access and use the Solution. End Users may include you and your affiliates' employees and independent contractors that agree to be bound by terms and conditions no less restrictive than those contained in this Agreement and are acting on behalf of you and not a third-party.
"Intellectual Property " means all patents, applications for patents, copyrights, moral rights, author's rights, rights of publicity, mask works, Trade Secrets, know-how, contract rights, licensing rights and/or any other intellectual or proprietary rights recognized by any jurisdiction, whether now existing or hereafter arising. Intellectual Property also includes corporate names, trade names, trademarks, service marks, or other proprietary designations.
"Services " means any and all services performed by us as described in one or more Solution Descriptions, including our providing access to and use of the Cloud.
"Software " means any software, library, utility, tool, or other computer or program code, as well as the related documentation, provided by us in connection with the Services. Software includes software locally installed on your systems and software accessed through the Internet or by other remote means including websites, portals, and "cloud-based" solutions to utilize a Service in accordance with this Agreement.
"Solution " means the combination of the Services performed and Software provided by us to you pursuant to a Solution Description.
"Solution Description " means (i) a statement of work, service description, solution description or other agreement that references this Agreement, or (ii) a specification sheet referenced in an Order Form.
"Third-Party Products " means any non-Dell software or services provided, made available or otherwise used by us in connection with the Solution, including Customer provided software.
"Trade Secret " means any information not commonly known or available to the public, which (i) derives economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
We will charge amounts for Solutions as set forth in the applicable Solution Description or Order Form or, if not specified, the current list pricing provided on our website. The number of systems, units (e.g., mailboxes, recipients, minutes, etc.), and End Users for which you have purchased Solution(s) is indicated on the Order Form. Usage in excess of these numbers or for a period of time longer than the Term will result in additional costs. The additional costs per billing period will be determined by multiplying the excess usage by the contracted fee per system, unit, or End User in the original Order Form. Payment must be made by credit card, wire transfer or other prearranged payment method unless we agree in writing to credit terms. Solutions are invoiced monthly beginning on the Activation Date. Invoices are due and payable within thirty (30) days from the invoice date. We reserve the right to charge a late payment fee of 1.5% per month against overdue amounts, or the maximum rate permitted by law, whichever is less. Late payment fees are recalculated every thirty (30) days based on your current outstanding balance, which may include any previously accrued and unpaid penalty amounts.
You are responsible for the payment of all taxes and fees assessed or imposed on the Solution provided or amounts charged under this Agreement, including any sales, use, excise, value-added, or comparable taxes, but excluding taxes for which you have provided a valid resale or exemption certificate. Should any payments become subject to withholding tax, you will deduct these taxes from the amount owed and pay the taxes to the appropriate tax authority in accordance with applicable tax laws. You will promptly provide us with receipts or documents evidencing these tax payments. We are not liable for any withholding tax, penalty or interest due as a result of your failure to withhold any applicable tax.
With respect to certain Solutions, after our receipt and acceptance of an order, you will receive Activation Instructions. The date Activation Instructions are transmitted or, in the event Activation Instructions are not required, the effective date of the applicable Solution Description is the "Activation Date. " You are responsible for providing, maintaining and monitoring one dedicated email address for the receipt of notices and other communications related to the Solution.
The "Term " for any Solution begins on the Activation Date and extends for the period indicated in the Solution Description or Order Form. Unless you decline auto-renewal in writing at least thirty (30) days prior to the expiration of the Term or unless auto-renewal is explicitly disclaimed in a Solution Description or an Order Form, we may automatically renew this Agreement and the related Solution(s) for a successive Term at our then-current list price. By continuing to use the Solution(s) beyond the expiration of the applicable Term, you renew this Agreement and the related Solutions) for a successive Term at our then-current list price.
Either party may terminate this Agreement if the other party commits a material breach and the breach is not cured within ninety (90) days of receipt of written notice describing the nature of the breach. If you purchased multiple Solutions, termination of an individual Solution will not terminate this Agreement unless the circumstances giving rise to termination generally affect all purchased Solutions. Notwithstanding the foregoing, we may terminate this Agreement or the affected Solutions upon written notice to you if (i) you are delinquent on your payment obligations for thirty (30) days or more; (ii) you violate the AUP; (iii) a change in our relationship with a third-party Software or technology provider has had a material adverse effect on our ability to provide the Solution; or (iv) you declare bankruptcy, are adjudicated bankrupt or a receiver or trustee is appointed for you or substantially all of your assets.
Upon expiration of the Term for all Solutions purchased pursuant to this Agreement, either party may terminate this Agreement by providing thirty (30) days written notice. Upon termination of this Agreement, all rights and obligations under this Agreement will automatically terminate except for rights of action accruing prior to termination, payment obligations, and any obligations that expressly or by implication are intended to survive termination.
You may not assign this Agreement or any rights or obligations under this Agreement to a third-party without our prior written consent. We may assign, sell or otherwise transfer our rights to a business, product line or substantially all of our assets, provided the transferee agrees to perform the obligations under this Agreement. We may subcontract or delegate in whole or in part this Agreement, provided that we remain responsible for the performance of the Solution. For purposes of this Agreement, any change of control will be deemed an assignment.
Except for information created or otherwise owned by you or licensed by you from third-parties, including all information provided by you to us through the Solution or for use in connection with the Solution, all right, title, and interest in the Intellectual Property embodied in the Solution, including the know-how and methods by which the Solution is provided and the processes that make up the Solution, will belong solely and exclusively to us or our licensors, and you will have no rights in any of the above, except as expressly granted in this Agreement. The Services and the Software used to provide the Solution embody valuable Trade Secrets and proprietary rights of Dell and/or our licensors and are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Any Intellectual Property developed by us during the performance of the Solution will belong solely and exclusively to us and our licensors.
We may suspend all or part of the Solution or your access to or use of data stored in the Cloud (i) if you are delinquent on your payment obligations for fifteen (15) days or more; (ii) upon receipt of a subpoena or law-enforcement request; or (iii) when we have a commercially reasonable belief that you have breached this Agreement or that your use of the Solution poses an imminent security risk or may subject Dell to liability. We will use commercially reasonable efforts to give you at least twelve (12) hours notice of a suspension unless we determine in our commercially reasonable judgment that a suspension on shorter or contemporaneous notice is necessary to protect us or our customers.
We may delete your data stored in the Cloud (a) sixty (60) days following any termination by us pursuant to Section 6 of this Agreement, or (b) if you fail to renew an applicable Solution Description within sixty (60) days of expiration.
We may modify the functionality or features of the Solution at any time; provided that the modification does not materially denigrate the functionality of the Solution (as described in the applicable Solution Description) during the Term. We will not be liable to you or any third-party for any such modification.
It may be necessary for us to perform scheduled or unscheduled repairs or maintenance, or remotely patch or upgrade the Software, which may temporarily degrade the quality of the Solution or result in a partial or complete outage of the Solution. Although we cannot guarantee that you will always receive advance notice of repairs or maintenance, we will endeavor to provide at least seven (7) days notice of scheduled updates and patches.
To the extent Software is provided as a part of the Solution, such Software is provided subject to the following terms:
You acknowledge and agree that you are liable for any breach of this Agreement by any End User.
For information about our privacy practices, please read our global and country specific privacy policies at www.Dell.com/Privacy. These policies explain how we treat your personal information and protect your privacy. If your Solution Description specifies the region in which your data will be stored, we will not move the data from the specified region without notifying you other than as required by law or pursuant to lawful requests from government entities.
We have designed the Cloud to help safeguard against unauthorized access to customer's data consistent with our Security Statement, a copy of which is attached.
You must use reasonable security precautions in connection with your use of the Solution and comply with the AUP and laws and regulations applicable to your use of the Solution. You must cooperate with our reasonable investigation of Service outages, security issues, and any suspected breach of this Agreement. We may revise the AUP to add or modify restrictions on our customers' use of the Services, provided that the changes are commercially reasonable, consistent with industry norms and apply to all customers.
You are responsible for keeping your account permissions, billing, and other account information up to date. You must pay when due the amounts for the Solution stated in the applicable Solution Description or other agreement between you and Dell.
You are responsible for the use of the Solutions by any End User and any person who gains access to your data or the Solution as a result of your failure to use reasonable security precautions, even if the use was not authorized by you. You will ensure that End Users comply with your obligations under this Agreement.
You are responsible for selecting, obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Solution and for ensuring that the equipment is compatible with the Solution.
You are responsible for the data and software you use or store in the Cloud, including its maintenance, operation and compatibility in and with the Cloud, and any third-party claims regarding the same. You understand and agree that we have no control over the content of the data processed by us and that we perform the Services on your behalf. You are responsible for properly configuring and using the Solution and taking your own steps to maintain appropriate security, protection and back-up of your data and software, including the use of appropriate encryption, back-up and archiving. You remain responsible for properly handling and processing notices claiming that your data or software violates a person's rights.
You acknowledge that the Solutions are not intended to replace and do not replace the need for you to maintain regular data back-ups or redundant data archives. You are responsible for maintaining back-up copies of your data that may be stored or processed by us in the course of our provision of Solutions. You understand and agree that we are not responsible for any loss of your data. WE WILL HAVE NO LIABILITY FOR LOSS OR RECOVERY OF DATA OR PROGRAMS or loss of use of system(s) arising out of the Solutions.
In our performance of the Solution, we may obtain information related to your use of the Solution. You agree that we may use such information in an aggregated, anonymized form to assist in improving and optimizing various aspects of the Solution or in support of generic marketing activities related to the Solution.
The Software and Services are not fault-tolerant and are not designed or intended for use and may not be used in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life-support machines, or any other application in which the failure of the Solutions could lead directly to death, personal injury, or severe physical or property damage (collectively, "High-Risk Activities "). We expressly disclaim any liability or express or implied warranty of fitness for High-Risk Activities.
NOTHING IN THIS SECTION WILL EXCLUDE OR LIMIT OUR WARRANTY OR LIABILITY FOR LOSSES THAT MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. AS SUCH, ONLY THE LIMITATIONS THAT ARE LAWFULLY APPLIED TO YOU IN YOUR JURISDICTION WILL APPLY TO YOU, AND IN SUCH EVENT OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
ANY WARRANTY ON A THIRD-PARTY PRODUCT IS PROVIDED BY THE PUBLISHER, PROVIDER, OR ORIGINAL MANUFACTURER. ALL THIRD-PARTY PRODUCTS AND OPEN SOURCE SOFTWARE ARE PROVIDED BY US "AS IS." WITH RESPECT TO YOUR USE OF THE SOFTWARE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS, UNLESS SUCH PROBLEMS OR VIRUSES ARE THE DIRECT RESULT OF OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
YOU AGREE THAT THE OPERATION AND AVAILABILITY OF THE SYSTEMS USED FOR ACCESSING AND INTERACTING WITH THE SOLUTIONS, INCLUDING TELEPHONE, COMPUTER NETWORKS, AND THE INTERNET, OR FOR TRANSMITTING INFORMATION CAN BE UNPREDICTABLE AND MAY, FROM TIME TO TIME, INTERFERE WITH OR PREVENT ACCESS TO OR USE OR OPERATION OF THE SOLUTIONS. WE WILL NOT BE LIABLE FOR ANY SUCH INTERFERENCE WITH OR PREVENTION OF YOUR ACCESS TO OR USE OF THE SOLUTIONS OR THE IMPACT SUCH INTERFERENCE OR PREVENTION MAY HAVE ON OUR ABILITY TO PERFORM THE SOLUTIONS.
OUR TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING WITH RESPECT TO ANY SOFTWARE OR SERVICES PROVIDED HEREUNDER) IN ANY 12-MONTH PERIOD WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER DURING THE PRIOR TWELVE (12) MONTHS OF THIS AGREEMENT FOR THE SPECIFIC SOFTWARE OR SERVICE GIVING RISE TO SUCH CLAIM(S).
THESE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS WILL APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. THE PARTIES AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR OUR SALE OF SOFTWARE OR SERVICES TO CUSTOMER, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.
You will defend and indemnify the Dell Parties from and against any claims, damages, liabilities, losses, costs and expenses (including reasonable attorneys' fees) arising out of or relating to any third-party claim or action relating to your (x) failure to obtain or maintain any appropriate license, Intellectual Property rights, or other permissions, regulatory certifications or approvals associated with technology or data provided by you, or associated with Software, Third-Party Products or other components directed or requested by you to be installed or integrated as part of the Services; (y) your breach of this Agreement or violation of any applicable law, regulation or order; and (z) your use of the Solution.
Each party will defend and indemnify the other party against any third-party claim or action for personal bodily injury, including death, to the extent directly caused by the indemnifying party's gross negligence or willful misconduct in the course of performing its obligations under this Agreement.
In no event will an indemnifying party consent to the entry of any judgment or enter into any settlement with respect to any third-party claim without the prior written consent of the indemnified party (not to be unreasonably withheld) unless the judgment or settlement involves only the payment of money damages, without admission of fault, and expressly and unconditionally releases the indemnified party from all liabilities and obligations with respect to the claim.
This Acceptable Use Policy (the "AUP") sets forth certain limitations and restrictions required in connection with your use of the Services. We may revise the AUP from time to time to add or modify restrictions on your use of the Services. If you violate the AUP, we may suspend or terminate your use of the Services.
Terms used in the AUP that are capitalized and not otherwise defined have the meanings set forth in the Cloud Solutions Agreement.
You are prohibited from (1) attempting to use or gain unauthorized access to our or to any third-party's networks or equipment; (2) permitting other individuals or entities to copy the Services; (3) providing unauthorized access to or use of Activation Instructions; (4) attempting to probe, scan, or test the vulnerability of the Services or of a system, account, or network of Dell or any of our customers or suppliers; (5) interfering or attempting to interfere with service to any user, host, or network; (6) engaging in fraudulent, offensive or illegal activity of any nature or any activity that infringes the intellectual property rights or privacy rights of any individual or third party; (7) transmitting unsolicited bulk or commercial messages; (8) intentionally distributing worms, Trojan horses, viruses, corrupted files or any similar items; (9) restricting, inhibiting, or otherwise interfering with the ability of any other person, regardless of intent, purpose, or knowledge, to use or enjoy the Services (except for tools with safety and security functions); or (10) restricting, inhibiting, interfering with, or otherwise disrupting or causing a performance degradation to any Dell (or Dell Service supplier) facilities used to deliver the Services. Dell may in its sole discretion determine whether your use of the Services is a violation of this AUP.
We may investigate suspected violations of the AUP. We may report suspected violations of the AUP to applicable law-enforcement authorities or third-parties and may cooperate with any investigation of illegal activities associated with your use of the Services, the system or network, or any violation of this AUP.
(Rev. 102511)
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