HomeMy WebLinkAbout2010-316
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RESOLUTION NO. 2010-316
RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
PURCHASE OF AN EQUALLOGIC PS6500E DISK ARRAY FOR THE CITY OF SAN
BERNARDINO POLICE DEPARTMENT'S SURVEILLANCE CAMERA SYSTEM
FROM DELL COMPUTERS INC., OF ROUND ROCK, TEXAS.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. After a review of products, pricing, and existing infrastructure, Dell
Computers Inc., of Round Rock, Texas, is the recommended provider for the purchase of a
Police Facility Digital Surveillance Camera System server to be used by the San Bernardino
Police Department. Pursuant to San Bernardino Municipal Code 3.04.01O(b)(3), the Mayor and
Common Council approve a selected source justification for this purchase.
SECTION 2. That the Mayor and Common Council authorize the purchasing
manager to issue a Purchase Order to Dell Computers Inc, of Round Rock Texas, for the
purchase of a Equallogic PS6500E Disk Array for the Police Department's Digital Surveillance
Camera System, used at the central headquarters facility as outlined in Dell Computers Inc's
quote number 541708802, dated May 18,2010, (which includes Dell's "Terms and Conditions
of Sale", "Customer Master Services Agreement", "Basic Hardware Service" as Exhibit "A")
in an amount not to exceed $87,702.78." The Purchase Order shall read "San Bernardino
Digital Surveillance Camera Server Equallogic PS6500E Disk Array".
SECTION 3. The authorization to issue the purchase order referenced in Section 2 of
this resolution is rescinded if the purchase order is not issued within forty-five (45) days of the
passage of this resolution.
III
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2010-316
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III
RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
PURCHASE OF AN EQUALLOGIC PS6500E DISK ARRAY FOR THE CITY OF SAN
BERNARDINO POLICE DEPARTMENT'S SURVEILLANCE CAMERA SYSTEM
FROM DELL COMPUTERS INC., OF ROUND ROCK, TEXAS.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
and Common Council of the City of San Bernardino at a joint regularmeeting thereof, held
on the 20th day of September
Council Members: AYES
MARQUEZ x
DESJARDINS x
x
BRINKER
SHORETT x
KELLEY x
x
JOHNSON
MCCAMMACK x
-
,2010, by the following vote, to wit:
NAYS
ABSTAIN ABSENT
Q~ h. ~
'-
Rachel G. Clark, City Clerk
20 The foregoing resolution is hereby approved this ~c{ day of September ,2010.
~~'
Tobin Brinker, Mayor Pro Tern
City of San Bernardino
Approved as to
Form:
.~
ES F. PENMAN,
ty Attorney
tile:fllZll20 1 Oo/:>20Dell%20Equallogic%20Disk%20Array%20RFCA/05%20-%20Equallogic%20Disk%20Array%20Quote _ 541708802.html
Exhibit "A" (1 of 4)
2010-316
DELL
QUOTATION
Date: 5/18/101 :39:28 PM
QUOTE #: 541708802
Customer #: 7793861
Contract #: WN99ABZ
CustomerAgreement #: WSCA- B27160
Quote Date: 5/18/10
Customer Name: CITY OF SAN BERNARDINO
TOTAL QUOTE AMOUNT: $87,702.78
Product Subtotal: $82,110.00
Tax: $5,592.78
Shipping & Handling: $0.00
Shipping Method: Ground Total Number of System Groups: 1
Service:
Service:
Service:
Service:
S~~S REP: I ~~IC ~IERR;
Emal ddress: rlc_ lerron Dell.com
PHO~E: I ~~~~-~~4-7799
Phone xt: 1
Please review this quote carefully. If complete and accurate, you may place your order online at
www.dell.com/Qto (use quote number above). POs and payments should be made to
Dell Marketing L.P.
If you do not have a separate agreement with Dell that applies to your order, please refer to
www.dell.com/terms as follows:
If purchasing for your internal use, your order will be subject to Dell's Terms and Conditions of
file:l//ZII2010%20Dell%20Equallogic%20Disk%20Array...20Equallogic%20Disk%20Array%20Quote_541708802.html (I of 2) [9/16/20102:35:23 PM]
file:(l/Z1/20 1 0~20Dell%20Equallogic%20Disk%20Array%20RFCA/05%20-%20Equallogic%20Disk%20Array%20Quote _ 541708802.html
2010-316
Sale-Direct including Dell's U.S. Return Policy, at www.dell.com/returnpolicv#total. If purchasing
for resale, your order will be subject to Dell's Terms and Condition of Sale for Persons or Entities
Purchasing to Resell, and other terms of Dell's PartnerDirect program at www.dell.com/partner.
If your order includes services, visit www.dell.com/servicecontracts for service descriptions
and terms.
Quote information is valid for U.S. customers and U.S. addresses only, and is subject to change.
Sales tax on products shipped is based on "Ship To" address, and for downloads is based on
"Bill To" address. Please indicate any tax-exempt status on your PO, and fax your exemption
certificate, with seller listed as Dell Marketing L.P, to Dell's Tax Department at 800-433-9023.
Please include your Customer Number.
For certain products shipped to end-users in California, a State Environmental Fee will be applied.
For Asset Recovery/Recycling Services, visit www.dell.com/assetrecovery.
file:///ZI/201 0%20Dell%20Equallogic%20Disk%20Array...20Equallogic%20Disk%20Array%20Quote_541708802.html (2 of 2) [9/16/2010 2:35:23 PM]
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_I U1ited Slates
Exhibit "A" (2 of 4)
http://www . dell. eonv' content/topics/ glo bal.aspx/policy/ <;:n/policy7 c=us&l...
2010-316
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Tenns and Conditions of Sale
Purchases of Dell products and services are governed by one of the following terms and conditions.
Please review carefully.
U.S. Terms and Conditions of Sale.. Direct (Adplies to all direct purchases-by inteme!, phone. or
Dell Direct Store)
F?etail Purchaser End User Agreernenl (Applies to all purchases from retail sellers)
Terms and CondiUons of Sale for Persons or EnHties. Purchasing 10 Resell (Applies 10 all purchases
of products Llwl buyer inhmds to resnll to oLllms)
SilH Terms (Governs usn of Dell's WHb site)
U.S. Tenns and Conditions of Sale - Direct (Applies to all direct purchases-by internet,
phone. or Dell Direct Store)
PLEASE READ THIS DOCUMENT CAREFULL YilT CONTAINS VERY IMPORTANT
INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND
EXCLUSIONS THAT MAY APPLY TO YOU. THIS DOCUMENT CONTAINS A BINDING
ARBITRATION CLAUSE.
NOTE: These U.S. Terms and Conditions of Sale apply to direct purchases made from Dell by
phone, the Internet, or the Dell Direct store.
These terms and conditions ("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 and conditions of this
Agreement. W you do not wish to be subject to these terms and conditions, you must promptly cancel
your order before it goes into production. W you retum your purchase within 21 days, we'll refund
your purchase price minus shipping, handling, and up to a 15% restocking fee. You may also be
responsible for the cost of the return shipping back to Dell. See: www.dell.com/returnpolicy THIS
AGREEMENT SHALL APPLY UNLESS (I) YOU HAVE A SEPARATE PURCHASE AGREEMENT
WITH DELL, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN; OR (II) OTHER
DELI.. TERMS AND CONDITIONS APPLY TO THE TRANSACTION.
1. Other Documents. This Agreement may NOT be altered, supplemented, or amended by
the use of any other document(s) unless otherwise agreed to in a wrillen agreement signed
by both you and Dell. W you do not receive an invoice or acknowledgement in the mail, via
e-mail, or with your Product, information about your purchase may be obtained at
https:!!supporLdeILconVdollcare!lnvolce.Bspxor by contacting your sales representative.
2. Payment Tenns; Orders; Quotes; Interest. 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. Payment for the products will be made by credit card, wire
transfer, or some other prearranged payment method unless credit terms have been agreed
to by Dell. Invoices are due and payable within the time period noted on your invoice,
measured from the date of the invoice. Dell may invoice parts of an order separately. Your
order is subject to cancellation by Dell, in Dell's sole discretion. Unless you and Dell have
agreed to a different discount, Dell's standard pricing policy for Dell-branded systems,
which indude both hardware and services in one discounted price, allocates the discount
off list price applicable to the service portion of the system to be equal to the overall
calculated percentage discount off list price on the entire system. Dell is not responsible for
pricing, typographical, or other errors in any offer by Dell and reserves the right to cancel
any orders arising from such errors. Invoices must be paid within 30 days of the invoice
date. For all but consumer purchases, Dell reserves the right to charge you a late penalty
charge of 1.5% per month applied against undisputed overdue amounts or the maximum
rate permitted by law whichever is less. Every 30 days thereafter, you will continue to be
charged an additional late penalty charge.
3. Shipping Charges; Taxes; Title; Risk of Loss. Shipping and handling are additional
unless otherwise expressly indicated at the time of sale. Title to products 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. You must notify Dell within 21 days of the
date of your invoice or acknowledgement if you believe any part of your purchase is
missing, wrong or damaged. Unless you provide Dell with a valid and correct tax exemption
certificate applicable to your purchase of Product and the Product ship-to location, you are
responsible for sales and other taxes associated with the order. Shipping and delivery
dates are estimates only.
4. Warranties. THE LIMITED WARRANTIES APPLICABLE TO DELL-BRANDED
HARDWARE PRODUCT CAN BE FOUND AT w\wj.del!.corrVwarranty OR IN THE
DOCUMENTATION DELL PROVIDES WITH DELL-BRANDED PRODUCT. DELL MAKES
NO WARRANTIES FOR SERVICE, SOFTWARE, OR NON-DELL BRANDED PRODUCT,
SERVICE, MAINTENANCE OR SUPPORT. SUCH PRODUCT, SOFTWARE, SERVICE,
MAINTENANCE OR SUPPORT IS PROVIDED BY DELL "AS IS" AND ANY THIRD-PARTY
WARRANTIES, SERVICES, MAINTENANCE AND SUPPORT ARE PROVIDED BY THE
ORIGINAL MANUFACTURER OR SUPPLIER, NOT BY DELL. DELL MAKES NO
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2010-316
EXPRESS WARRANTIES EXCEPT THOSE STATED IN DELL'S APPLICABLE
DELL-BRANDED WARRANTY OR SERVICE DESCRIPTION IN EFFECT ON THE DATE
OF THE INVOICE, PACKING SLIP OR ACKNOWLEDGEMENT. DELL-BRANDED
WARRANTIES AND SERVICES ARE EFFECTIVE ON PAYMENT IN FULL, AND DELL IS
NOT OBLIGATED TO HONOR ANY WARRANTY OR PROVIDE SERVICE UNTIL DELL
RECEIVES PAYMENT IN FULL. DELL MAY REQUEST CANCELLATION OF THIRD-
PARTY-BRANDED SOFTWARE LICENSES, SERVICES, MAINTENANCE OR SUPPORT
IF DELL DOES NOT RECEIVE PAYMENT. IF YOU PURCHASE THIRD-PARTY-
BRANDED PRODUCT, SERVICES, MAINTENANCE, OR SUPPORT, ADDfTlONAL
THIRD-PARTY TERMS AND CONDfTlONS MAY APPLY.
5. Software. All software is provided subject to a license agreement and you agree that you
will be bound by such license agreement in addition to these terms. Title to software
remains with the applicable Iicensor(s),
6. Return Policies; Exchanges. Dell's retum policy can be found at
www.doll.com/retumpolicy and you agree to those terms. You must contact us directly
before you attempt to retum Product to obtain a Retum Material Authorization Number for
you to include with your return. You must retum Product to us in their original or equivalent
packaging. You are responsible for risk of loss, shipping and handling fees for returning or
exchanging Product. Additional fees, induding up to a 15% restocking fee, may apply. If
you fail to follow the return or exchange instructions and policies provided by Dell, Dell is
not responsible for Product that is lost, damaged, modified or otherwise processed for
disposal or resale. N. Dell's discretion, credit for partial returns may be less than invoice or
individual component prices due to bundled or promotional pricing.
7. Changed or Discontinued Product. Dell's policy is one of ongoing update and revision.
Dell may revise and discontinue Product at any time without notice to you and this may
affect information saved in your online "cart." Dell will ship Product that has the functionality
and performance of the Product ordered, but changes between what is shipped and what is
described in a specification sheet or catalog are possible. Parts used in repairing or
servicing Product may be new, equivalent-to-new, or reconditioned.
8. Service and Support.
A Consumer Customers. Service offerings may vary. In addition to these terms and
conditions, Dell and/or your third-party service provider may provide such service
and support to you in accordance with term and conditions of Dell Service
Descriptions located at WVrN.doll.comlsorvlcocontracts or as otherwise delivered to
you. Dell and/or your third-party service provider may in their discretion revise their
general and optional service and support programs and the terms and conditions
that govem them without prior notice to you.Your purchase of services is pursuant
to this Agreement and the terms and conditions of Dell Service Descriptions, if
applicable, published online at the time of your purchase. Dell has no obligation to
provide service or support until Dell has received full payment for the Product or
service/support contract you purchased. Dell is not obligated to provide third-party
branded service or support, or service or support for any products or services that
you purchased through a third-party and not Dell. It is your responsibility to
backup all existing data, software, and programs before receiving services
or support (including telephone support). Dell and/or your third-party service
provider will have no liability for loss or recovery of data, programs or loss
of use of system(s) arising out of the services or support or any act or
omission, including negligence, by Dell or your-third-party service provider.
Dell and/or your third-party service provider is not permitted by law to copy pirated
or copyrighted materials or to copy or handle illegal data. Prior to Dell and/or your
third-party service provider providing service or support, you represent that your
system(s) does not contain illegal files or data. You also represent that you own the
copyright or have a license to make copies to all files on your system and do not
have any data that would cause Dell or your third-party service provider to be liable
for copyright infringement if such data was copied by Dell and/or your third-party
service provider. Parts used in repairing or servicing Product(s) may be new,
equivalent-to-new or reconditioned.
B. Commercial Customers, Including Small, Medium and Large Business and
the Public Sector Customers. Services and/or support offerings are provided to
you pursuant to Dell's Customer Master Services Agreement ("CMSA"), which is
available for review at www.dell.corr:!servicccontraGts and incorporated herein in its
entirety by reference.
9. Limitation of Liability. DELL DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES
SET FORTH HEREIN, INCLUDING BUT NOT LIMITED TO ANY LIABILITY FOR
PRODUCT NOT BEING AVAILABLE FOR USE, LOST PROFITS, LOSS OF BUSINESS
OR FOR LOST OR CORRUPTED DATA OR SOFTWARE, OR THE PROVISION OF
SERVICES AND SUPPORT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, DELL WILL
NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE
DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR
ANY CLAIM BY ANY THIRD PARTY. YOU AGREE THAT FOR ANY LIABILITY RELATED
TO THE PURCHASE OF PRODUCT, DELL IS NOT LIABLE OR RESPONSIBLE FOR
ANY AMOUNT OF DAMAGES ABOVE THE AMOUNT INVOICED FOR THE APPLICABLE
PRODUCT. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE
CONTRARY, THE REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY EVEN
IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
10. Not For Resale or Export. You agree to comply with all applicable laws and regulations
of the various states and of the United States. You agree and represent that you are buying
only for your own internal use only, and not for resale or export. Dell has separate terms
and conditions goveming resale of Product by third parties and transactions outside the
United States. Terms and conditions for resale are located at: www.deil.comiterms
!#resellor.
11. Governing Law. THE PARTIES AGREE THAT THIS AGREEMENT, ANY SALES THERE
UNDER, OR ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT,
TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND
INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, AND
EQUITABLE CLAIMS) BETWEEN CUSTOMER AND DELL arising from or relating to this
agreement, its interpretation, or the breach, termination or validity thereof, the relationships
which result from this agreement, Dell's advertising, or any related purchase SHALL BE
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GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO
CONFLICTS OF LAW.
12. Dispute Resolution and Binding Arbitration. 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 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 ellect 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
dispute or controversy between customer and Dell.!n 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 REPRESENTATIVE OR
CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The individual
(non-class) nature of this dispute provision goes to the essence of the parties' dispute
resolution agreement, and if found unenforceable, the entire arbitration and dispute
resolution provision shall not be enforced.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. W any customer prevails on any claim that allords the
prevailing party attorneys' fees, or if there is a written agreement providing for fees, the
Arbitrator may award reasonable fees to the prevailing party, under the standards for fee
shifting provided by law.YOU ACKNOWLEDGE THAT YOU ARE GIVING UP YOUR
RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO
PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT
TO SUCH 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. For information on AAA or JAMS, contact the following:
Annerican Arbitration Association, 335 Madison Avenue, 10th Floor, New York, NY 10017,
www.",jr,org: JAMS, 45 Broadway, New York, NY 10005, (800) 352-5267,
v./VtIW-Jarnsadr,Gom.
(REV 110109)
Retail Purchaser End User Agreement (Applies to all purchases from retail sellers)
PLEASE READ THIS DOCUMENT CAREFULL YIlT CONTAINS VERY IMPORTANT
INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND
EXCLUSIONS THAT APPLY TO YOU. THIS DOCUMENT CONTAINS A BINDING
ARBITRATION CLAUSE.
This Retail Purchaser End User Agreement ("Agreement") governs your retail purchase and use of
products andlor 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).
1. Other Documents. This Agreement may NOT be altered, supplemented, or amended by
the use of any other document(s) unless otherwise agreed to in a written agreement signed
by both you and Dell.
2. Warranties. THE LIMITED WARRANTIES APPLICABLE TO DELL-BRANDED
HARDWARE PRODUCT CAN BE FOUND AT www.dell.convwarranty OR IN THE
DOCUMENTATION FOUND WITH YOUR DELL-BRANDED PRODUCT. DELL MAKES
NO WARRANTIES FOR SERVICE, SOFTWARE, OR NON-DELL BRANDED PRODUCT,
SERVICE, MAINTENANCE OR SUPPORT. SUCH PRODUCT, SOFTWARE, SERVICE,
MAINTENANCE OR SUPPORT IS PROVIDED BY DELL "AS IS" AND ANY THIRD-PARTY
WARRANTIES, SERVICES, MAINTENANCE AND SUPPORT ARE PROVIDED BY THE
ORIGINAL MANUFACTURER OR SUPPLIER, NOT BY DELL. DELL MAKES NO
EXPRESS WARRANTIES EXCEPT THOSE STATED IN DELL'S APPLICABLE
DELL-BRANDED WARRANTY OR SERVICE DESCRIPTION IN EFFECT ON THE DATE
OF THE PURCHASE OF YOUR PRODUCT. DELL-BRANDED WARRANTIES AND
SERVICES ARE EFFECTIVE WHEN YOU HAVE TRANSFERRED THE OWNERSHIP OF
THE PRODUCT INTO YOUR NAME, ALTHOUGH THE WARRANTY PERIOD
COMMENCES ON THE DATE OF THE PURCHASE. YOU MAY FIND THE
INSTRUCTIONS FOR HOW TO TRANSFER OWNERSHIP INTO YOUR NAME IN THE
DOCUMENTATION FOUND WITH YOUR COMPUTER OR BY VISITING
hUp:i/www.dell.conVreg:ster. LIKE YOUR USE OF THE PRODUCT, TRANSFERRING
OWNERSHIP OF THE PRODUCT INTO YOUR NAME EXPRESSES YOUR INTENT TO
BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU PURCHASE THIRD-
PARTY-BRANDED PRODUCT, SERVICES, MAINTENANCE, OR SUPPORT ADDITIONAL
THIRD-PARTY TERMS AND CONDITIONS MAY APPLY.
3. Software. All software is provided subject to a license agreement and you agree that you
will be bound by such license agreement in addition to these tenns. Title to software
remains with the applicable licensor(s).
4. Return Policies; Exchanges. Returns and exchanges are governed by the policies of the
retailer where you purchased the Product.
5. Service and Support.
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A Consumer Customers. Service offerings may vary. In addition to terms and
conditions, Dell and/or your third-party service provider may provide such service
and support to you in accordance with the terms and conditions of Dell Service
Descriptions located at www.dell.comiserv.cecontracts or as otherwise delivered to
you. Dell and/or your third-party service provider may in their discretion revise their
general and optional service and support programs and the terms and conditions
that govern them without prior notice to you. Your purchase of services is pursuant
to this Agreement and the terms and conditions of the Dell Service Descriptions, if
applicable, published online at the time of your purchase. Dell has no obligation to
provide service or support until Dell has received full payment for the
service/support contract you purchased. Dell is not obligated to provide third-party
branded service or support, or service or support for any products or services that
you purchased through a third-party and not Dell. It is your responsibility to
backup all existing data, software, and programs before receiving services
or support (including telephone support). Dell and/or your third-party service
provider will have no liability for loss or recovery of data, programs or loss
of use of system(s) arising out of the services or support or any act or
omission, including negligence, by Dell or your third-party service provider.
Dell and/or your third-party service provider is not permitted by law to copy pirated
or copyrighted materials or to copy or handle illegal data. Prior to Dell and/or your
third-party service provider providing service or support, you represent that your
system(s) does not contain illegal files or data. You also represent that you own the
copyright or have a license to make copies to all files on your system and do not
have any data that would cause Dell to be liable for copyright infringement if those
files were copied by Dell and/or your third-party service provider. Parts used in
repairing or servicing Product may be new, equivalent-te-new, or reconditioned.
B. Commercial Customers, including Small, Medium and Large Business and
Public Sector Customers. Services and/or support offerings are provided to you
pursuant to Dell's Customer Master Agreement ("CMSA"), which is available for
review at ,wlW.dell.com!servicecontracts and incorporated herein in its entirety by
reference.
6. Limitation of Liability. DELL DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES
SET FORTH HEREIN, INCLUDING BUT NOT LIMITED TO ANY LIABILITY FOR
PRODUCT NOT BEING AVAILABLE FOR USE, LOST PROFITS, LOSS OF BUSINESS
OR FOR LOST OR CORRUPTED DATA OR SOFTWARE, OR THE PROVISION OF
SERVICES AND SUPPORT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, DELL WILL
NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE
DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR
ANY CLAIM BY ANY THIRD PARTY. YOU AGREE THAT FOR ANY LIABILITY RELATED
TO THE PURCHASE OF PRODUCT, DELL IS NOT LIABLE OR RESPONSIBLE FOR
ANY AMOUNT OF DAMAGES ABOVE THE AMOUNT YOU PAID FOR THE APPLICABLE
PRODUCT. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE
CONTRARY, THE REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY EVEN
IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
7. Not For Resale or Export. You agree to comply with all applicable laws and regulations
of the various states and of the United States. You agree and represent that you are buying
for your own internal use only, and not for resale or export. Dell has separate terms and
conditions governing resale of Product by third parties and transactions outside the United
States. Terms and conditions for resale are located at: www.dell.comitcrms/#resellcr.
8. Governing Law. THE PARTIES AGREE THAT THIS AGREEMENT, THE PURCHASE
AND USE OF THE PRODUCT, OR ANY CLAIM, DISPUTE OR CONTROVERSY
(WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING,
PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION,
COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND DELL arising
from or relating to this Agreement, its interpretation, or the breach, termination or validity
thereof, the relationships which result from this Agreement, Customer's purchase or use of
the Product, Dell's advertising, or any related purchase SHALL BE GOVERNED BY THE
LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICTS OF LAW.
9. Dispute Resolution and Binding Arbitration. 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 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 dispute or
controversy between Customer and Dell.!n 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 REPRESENTATIVE OR
CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The individual
(non-class) nature of this dispute provision goes to the essence of the parties'dispute
resolution agreement, and if found unenforceable, the entire arbitration and dispute
resolution provision shall not be enforced. 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). Aily 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 consumers' arbitration fees. W any Customer prevails on any claim that affords the
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prevailing party attorneys' fees, or if there is a written agreement providing for fees, the
Arbitrator may award reasonable fees to the prevailing party, under the standards for fee
shifting provided by law. YOU ACKNOWLEDGE THAT YOU ARE GIVING UP YOUR
RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO
PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT
TO SUCH 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. For information on AAA or JAMS, contact the following:
American Arbitration Association, 335 Madison Avenue, 10th Floor, New York, NY 10017,
www.adr.org; JAMS, 45 Broadway, New York, NY 10005, (800) 352-5267,
www.jamsadr.com.
(REV 110109)
Terms and Conditions of Sale for Persons or Entities Purchasing to Resell (applies to all
purchases of Products that buyer intends to resell to others)
PLEASE READ THIS DOCUMENT CAREFULLY. IT CONTAINS VERY IMPORTANT
INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND
EXCLUSIONS THAT APPLY TO YOU.
These terms and conditions (this "Agreemenf") apply to your purchase and resale of certain
products ("Products") and Dell services ("Services") from Dell or a Dell distributor in the United
States or Canada (collectively, Products and Services shall be referred to as "Dell Products and
Services"). This Agreement does not apply to you if you are buying Dell Products and Services for
your own end use. Not all Dell Products and Services are available for purchase under this
Agreement. "Dell" means the direct or indirect affiliate or subsidiary of Dell Inc. named on your
invoice, order confirmation, or other sales documents. "You" or "you" shall include your
subsidiaries and affiliates that are majority owned or controlled by you, and are approved by Dell to
resell Dell Products and Services under this Agreement (collectively, "Affiliates"). These terms
and conditions are subject to change at any time in Dell's sole discretion without prior written notice.
If you do not wish to be bound by this Agreement, you must promptly notify Dell. Products must
remain in the boxes in which they were shipped and you must notify us immediately to arrange a
Product return, for which YOU WILL BE RESPONSIBLE FOR SHIPPING & HANDLING CHARGES.
ADDITIONAL RETURN OR RESTOCKING FEES MAY APPLY. THIS AGREEMENT SHALL APPLY
UNLESS YOU HAVE A SEPARATE WRITTEN AGREEMENT WITH DELL THAT EXPRESSLY
APPLIES TO YOUR PURCHASE AND RESALE OF DELL PRODUCTS AND SERVICES.
By purchasing Dell Products and Services for resale, you agree to be bound by and accept the
terms and conditions of this Agreement.
TERMS AND CONDITIONS
1. Appointment. Subject to your compliance with this Agreement, you may resell Dell
Products and Services to certain third parties ("End-users" ) as authorized by Dell in
writing, in Dell's sole discretion, only after you have added value to the Products through
the addition of hardware, software, or services. Approval by Dell shall not be deemed from
the sale of Product to you. You may not resell to Consumer, Education, Healthcare,
Federal, State, Provincial or Local or other Public-sector customers, or to distributors or
third-party sales agents, and you may not remarket or resell through retail storefronts or
auction-type web sites. You may not resell to customers outside the United States or
Canada, whichever is the country covered by the Dell entity from which you purchased Dell
Products and Services. This Agreement is not exclusive. Dell may appoint other dealers,
distributors, resellers, licensees or sales agents (including those who may compete with
you) to sell Dell Products and Services. Dell may market Dell Products and Services to any
third-party directly or indirectly without any obligation or liability to you. This Agreement
does not guarantee that you will make any sales of Dell Products and Services. You
determne or set your resale pricing. Dell reserves the right to restrict or prohibit your
participation in certain promotions, and to add, modify, or discontinue pricing, Products,
Services, or parts. Dell may require you to meet additional obligations not outlined herein,
which will be disclosed to you prior to your purchase of Dell Products and Services for
resale. You will provide Dell such information and reports pertinent to your relationship with
Dell as may reasonably be requested by Dell.
2. Trademarks; Copyrights. . You may use the "Dell" name and the names of Dell's
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
may not use the Names for any other purpose, and may not use any other Dell trademarks,
service marks, or copyrighted works. You agree to change or correct, at your own expense,
any materials or activity that Dell decides is inaccurate, objectionable or misleading, or a
misuse 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 permitted expressly by
the terms of the PartnerDirect program. You may 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 may not
register or use any domain name or business name containing or confusingly similar to any
name or mark of Dell's. You will clearly and prominently identify yourself in all your offers
and advertising, marketing, and promotional materials.
3. Intellectual Property Ownership. All right, title and interest in the intellectual property
rights in Dell Products and Services, including technology and trade secrets embodied
therein and any custom developments created or provided in connection with or related to
this Agreement, and any derivative works thereof, shall belong solely and exclusively to Dell
or its licensors, and you shall have no rights whatsoever in any of the foregoing other than
the rights set forth in this Agreement. Nothing in this Agreement or otherwise will be
deemed to grant to you an ownership interest in the intellectual property rights in Dell
Products and Services, in whole or in part.
4. WARRANTIES. DELL MAKES NO EXPRESS WARRANTIES EXCEPT THOSE STATED
IN (i) DELL'S APPLICABLE LIMITED WARRANTY STATEMENT IN EFFECT ON THE
DATE OF THE INVOICE, PACKING SLIP, OR ACKNOWLEDGEMENT FOUND AT
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WWW.DELL.COMiWARRANTY OR THE DOCUMENTATION PROVIDED WITH THE
PRODUCT(S) OR SERVICES OR (ii) WITH RESPECT TO THE SERVICES IN AN
APPLICABLE SERVICE CONTRACT OR SERVICES DESCRIPTION FOUND AT
WWW.DELL.COMiSERVICECONTRACTS OR A SEPARATELY SIGNED STATEMENT
OF WORK. DELL DISCLAIMS A/LL OTHER WARRANTIES AND CONDITIONS, EXPRESS
OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OR
CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A
PARTICULAR PURPOSE. THERE ARE NO WARRANTIES BY DELL FOR NON-DELL
BRANDED PRODUCTS, SERVICES, OR SOFTWARE PRODUCTS. A/LL SUCH
PRODUCTS AND SERVICES ARE PROVIDED BY DELL "AS IS." NO REVISION IN
LIMITED WARRANTIES WILL AFFECT PRODUCTS OR SERVICES A/LREADY
ORDERED BY YOU.
5. REMEDIES & RESPONSIBILITIES. DELL RESERVES THE RIGHT TO MODIFY OR
DISCONTINUE SERVICE, MAINTENANCE, OR SUPPORT IT OFFERS IN WHOLE OR IN
PART PROVIDED SUCH MODIFICATION OR DISCONTINUANCE SHA/LL NOT VOID ANY
WARRANTY, SERVICE, MAINTENANCE, OR SUPPORT IN EXISTENCE AND PAID FOR
PRIOR TO SUCH MODIFICATION OR DISCONTINUANCE. DELL MAY CANCEL
SOFTWARE LICENSES, SERVICES, MAINTENANCE, OR SUPPORT IF DELL DOES
NOT RECEIVE PAYMENT. IF YOU PURCHASE THIRD-PARTY-BRANDED PRODUCTS,
SERVICES, MAINTENANCE, OR SUPPORT, ADDITIONA/L THIRD-PARTY TERMS AND
CONDITIONS MAY APPLY. YOU SHA/LL BE SOLELY RESPONSIBLE FOR ANY AND A/LL
REPRESENTATIONS AND OMISSIONS YOU MAKE OR FAIL TO MAKE TO YOUR
CUSTOMERS OR TO THE PUBLIC. YOU WILL INFORM YOUR CUSTOMERS OF
DELL'S RIGHTS AND YOUR OBLIGATIONS UNDER THIS AGREEMENT.
6. 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
Dell. Any use of pre-printed forms, such as purchase orders, are for convenience only, and
any terms set forth therein shall not apply to the purchase of Dell Products and Services in
accordance with this Agreement.
7. limitation of Liability. DELL DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES
SET FORTH IN THIS AGREEMENT. DELL WILL NOT BE LIABLE FOR ANY
INCIDENTA/L, CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES, OR
FOR ANY LIABILITY FOR PRODUCTS OR SERVICES NOT BEING AVAILABLE FOR
USE, LOST OR CORRUPTED DATA OR SOFTWARE, LOST PROFITS OR SAVINGS,
LOSS OF BUSINESS, OR THE PROVISION OF SERVICES OR SUPPORT NOT
OTHERWISE PAID FOR OR SUBJECT TO ANY WARRANTY ASSOCIATED WITH SUCH
PRODUCT OR SERVICE WHETHER DIRECT OR INDIRECT, AND EVEN IF ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR ON OUR 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. YOU AGREE THAT FOR ANY LIABILITY ARISING FROM OR RELATED TO
THE PURCHASE OF ANY PRODUCTS OR SERVICES, DELL IS NOT LIABLE OR
RESPONSIBLE FOR ANY AMOUNT OF DAMAGES: IN THE CASE OF PRODUCTS
ABOVE THE AGGREGATE DOLLAR AMOUNT YOU PAID TO DELL FOR SUCH
PRODUCTS THAT CAUSED THE LIABILITY OR IN THE CASE OF SERVICES THE
AGGREGATE DOLLAR AMOUNT YOU PAID TO DELL FOR SUCH SERVICES THAT
CAUSED THE LIABILITY IN THE PREVIOUS 12 MONTHS PRIOR TO SUCH CLAIM FOR
LIABILITY. THE REMEDIES SET FORTH IN THIS AGREEMENT SHA/LL APPLY EVEN IF
SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
8. 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
nonpayment, more than two (2) years from the date of last payment.
9. Your Indemnity to Dell. To the fullest extent permitted by law, you will indemnify, defend,
and hold harmless Dell, including Dell's officers, directors, agents, empioyees, subsidiaries,
affiliates, parents, successors and assigns, from any claim, demand, cause of action, debt,
or liability (including reasonable attorneys' or legal fees, expenses, and court costs) that
relates to: (a) your modification of or addition to Dell Products and Services; (b) your
breach of this Agreement, including your failure to secure assent by your End-Users to be
bound by the CMSA (as defined below) or such other End-User terms provided by Dell to
you in connection with this Agreement; (c) your omission, misrepresentation, or negligence;
(d) warranties you provide to End-Users outside the terms of this Agreement with respect to
Dell Products and Services; and (d) damage to a third party by Dell Products and Services
sold by you to the extent such claim is based on (i) your modification of or addition to Dell
Products and Services, misuse or abuse of Dell Products and Services, or breach of any
provision in this Agreement; (ii) your failure to abide by all applicable laws, rules,
regulations, and orders that affect Dell Products and Services; (iii) your omission,
misrepresentation, or negligence; or (iv) intentional harm to any person or property caused
by you. Inderrnified claims, debts, and liabilities include the amount of any discount in price
or concession that is made available by Dell to you.
10. Marketing. Reseller shall make no representations or warranties concerning Dell Products
and Services except as Dell may itself approve in writing.
11. Dispute Resolution - Arbitration. The parties will attempt to resolve 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 and equitable
claims) between you and Dell, its agents, employees, principals, successors, assigns, or
affiliates (collectively for purposes of this paragraph, "Dell") arising from or relating to the
parties' written agreements, their interpretation, or the breach, termination or validity
thereof, the relationships which result from the written agreements, the partner direct
program, the reseller 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, rather than through
litigation. 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 will be settled by binding individual arbitration in accordance with the
then current CPR Rules for Non-Administered Arbitration. The Arbitration will be conducted
before a single arbitrator mutually agreed to by the parties. If such arbitrator cannot be
agreed upon Dell will appoint one (1) arbitrator and you will appoint one (1) arbitrator. The
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two (2) appointed arbitrators will then select a third arbitrator, who shall be the presiding
arbitrator. 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 REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY
GENERAL CAPACITY. The individual (non-class) nature of this dispute provision goes to
the essence of the parties' arbitration agreement, and if found unenforceable, the entire
arbitration provision shall not be enforced. The arbitration hearing shall take place in
Austin, Texas, and will be governed by the United States Federal Arbitration Act to the
exclusion of any inconsistent state laws. The arbitrators shall base their 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, 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 their award is based. Judgment upon the arbitration
award may be entered by any court of competent jurisdiction. 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 paragraph.
12. Independent Contractors. No provision of this Agreement will or shall be deemed to
create a legal partnership, joint venture, or other combination between Dell and you. You
and Dell are independent contractors. Neither party will make any warranties or
representations 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 amounts it incurs arising from this Agreement and for the
direction and compensation, and is liable for the actions, of its employees and
subcontractors.
13. Governing Law. THE PARTIES AGREE THAT THIS AGREEMENT, ANY SALES
THEREUNDER, OR ~Y CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN
CONTRACT, TORT, OR OTHERWISE. WHETHER PREEXISTING, PRESENT, OR
FUTURE, AND INCLUDING STATUTORY, COMMON LAW, AND EQUITABLE CLAIMS)
BETWEEN CUSTOMER ~D DELL arising from or relating to this Agreement, its
interpretation, or the breach, termination, or validity thereof, the relationships which result
from this Agreement, Dell's advertising, or any related purchase SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF TEXAS (OR FOR C~ADIAN ENTITIES, THE
PROVINCE OF ONTARIO), WITHOUT REGARD TO CONFLlCTS-OF-LAWS RULES.
14. Export. You acknowledge that the purchased Dell Products and Services licensed or sold
under this agreement may include technology and software that are subject to the customs
and export control laws and regulations of the United States ("U.S.") or Canada and may
also be subject to the customs and export laws and regulations of the country in which Dell
Products and Services are manufactured andlor in the case of both Dell Products and
Services are received. For any authorized resale under this Agreement, you acknowledge
that it is your sole responsibility to comply with those laws and regulations and you agree to
fully abide by those laws and regulations. Further, under those laws, Dell Products and
Services shipped pursuant to this Agreement may not be 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" and other lists of denied parties) or to restricted
countries (currently Cuba, Iran, North Korea, Sudan. and Syria). In addition, the shipped
Dell Products and Services may not be sold, leased or otherwise transferred to, or utilized
by an End-User engaged in activities related to weapons of mass destruction, including
without limitation, activities related to the design, development, production or use of nuclear
weapons, materials, or facilities, missiles or the support of missile projects, and chemical or
biological weapons. In addition, you agree to indemnify, defend and hold Dell harmless from
any loss, expense, penalty or claim against Dell due to your violation or alleged violation of
any such applicable laws and regulations. II purchased Dell Products and Services are
resold in violation of the foregoing restrictions, Dell shall not be obligated to provide any
warranty service or technical support.
15. Regulatory Compliance. Dell has not tested the Products for use in specialized or
high-risk applications or hazardous environments, including but not limited to any
life-sustaining, chemical, or mission-critical use. DELL WILL NOT HAVE ~Y LIABILITY
FOR ANY DAMAGES ARISING FROM THE USE OF THE PRODUCTS IN ANY HIGH RISK
ACTIVITY, INCLUDING BUT NOT LIMITED TO THE OPERATION OF NUCLEAR
FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC
CONTROL, MEDICAL SYSTEMS, LIFE SUPPORT, OR WEAPONS SYSTEMS. You are
responsible for ensuring continued regulatory compliance, including but not limited to
compliance to electrostatic discharge and radiated emissions standards, for any
modifications or additions made to the Products after the Products are shipped from Dell.
You are also responsible for obtaining any regulatory compliance marks that may be
required to ship into locations other than United States and Canada.
16. Headings. The section headings used herein are for convenience of reference only and
do not form a part of these terms and conditions, and no construction or inference shall be
derived there from. II any provision of this Agreement is void or unenforceable, the
remainder of this Agreement will remain in full force and will not be terminated.
17. Language. 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 presentes confirment leur volonte que cette
convention, de m<'!me que tous les documents, y compris tout avis, qui s'y rattachent, soient
rMiges en langue anglaise.
18. Audit. You will maintain accurate and legible records for a period of five years and will
grant to Dell, or its designee, reasonable access to and copies of, any information
reasonably requested by Dell with respect to your performance under this Agreement.
19. Tennination. Dell may terminate this Agreement for any reason upon written notice to you
at the address provided to Dell in accordance with the terms of this Agreement. This
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20.
cure).
Purchases by Affiliates. Unless otherwise agreed in writing, any Affiliate who submits an
order to Dell shall have thereby agreed to abide by the terms of this Agreement. Dell, in its
sole discretion, may discontinue selling Dell Products and Services to any Affiliate or may
require additional payment and/or credit conditions for such Affiliate. In consideration of
Dell's agreement to extend credit to your Affiliates at the same or similar level as the credit
extended to you, you hereby unconditionally guarantee complete and timely payment of any
and all amounts due to Dell from any Affiliate.
Assignment; Subcontracting. You may not assign this Agreement without the prior
written consent of Dell. Dell has the right to subcontract the Services provided under this
Agreement.
Force Majeure. Dell shall not be liable to you for any failure to perform any of its
obligations under this Agreement during any period in which such performance is delayed
by circumstances beyond its reasonable control including, but not limited to, fire, flood, war.
embargo, strike, riot or the intervention of any governmental authority (a "Force Majeure").
Notices. To give notice under this Agreement, your notice must be in writing and sent by
postage prepaid first-class mail, receipted courier service, facsinile telecommunication or
electronic mail to the address below. Notice to you may be sent to you by postage prepaid
first-class mail, receipted courier service, facsinile telecommunication or electronic mail to
the address and contact information provided by you to Dell in connection with this
Agreement.
Dell Marketing l. P.
AIIn: Mgr Contracts
One Dell Way
Round Rock, TX 78682
Quotes; Orders; Payment Terms; Interest. Payment terms for Dell Products and
Services are within Dell's sole discretion and shall be set forth at the time of purchase of
such Dell Products and Services. You agree not to violate the terms of any offer or
concession made available by Dell. Dell may invoice or ship parts of an order separately.
Dell reserves the right to cancel an order or transaction, in whole or in part. II 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). You agree to pay interest on all past-due sums at the highest
rate allowed by law. You hereby grant Dell, and Dell hereby retains, a purchase money
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 charges and costs of collection.
You consent to Dell's use of this Agreement, as well as Product invoices, as financing
statements for protecting this security interest and appoint Dell as your agent for service of
process. Unless you and Dell have agreed to a different discount, Dell's standard pricing
policy for Products, which include both hardware and support services in one discounted
price, allocates the discount off list price applicable to the service portion of the system to
be equal to the overall calculated percentage discount off list price on the entire system.
Shipping Charges; Risk of Loss; Taxes. Shipping dates provided by Dell are estimates
only. Shipping and handling are additional and will be shown on the invoice(s) or other
documentation. Loss or damage to Products 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. Unless you provide Dell with a valid and
correct tax-exemption certificate at the time of purchase, you will be responsible for any and
all taxes and fees associated with the order of Dell Products and Services, however
designated, except for Dell's franchise taxes and taxes on Dell's net income.
Title; Insurance. Title to Products (except software) passes from Dell to you on shipment
from Dell's facility or third-party manufacture~s facility. Title to software will remain with the
applicable licensor(s). You will 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 Upon request,
you will name Dell as an additional insured and provide to Dell a certificate of such
insurance (including any new or amended certificates of insurance).
Software; End-User License Agreement.
A Products. All software distributed with Products is provided subject to the
End-User license agreement that is provided with the Product. You agree that you
and your End-Users will be bound by such license agreement.
B. Services. All software services, online services, hosted solutions, cloud computing
services and software-enabled services are provided pursuant to the license
agreement and Acceptable Use Policy set forth at www.dell.corrJiAUP.
No Returns. All sales are final. Neither you nor your customers may retum Products to
Dell. II you refuse delivery of Products that you ordered. you will be responsible for shipping
and handling charges and additional return or restocking fees may apply.
Order Support; Other. II you do not receive an invoice or acknowledgement in the mail or
with your Dell Products and Services, information about your purchase may be obtained at
wVNI.support.dell.corrJiDeIlCare/lndex.aspx (or in Canada at w'W#.dell.ca/support) or by
contacting your sales representative. You are obligated to ensure that you transfer the
asset/service identification number (e.g. the Service Tag or Asset Number) to your
End-User that is associated with Dell Products and Services you have purchased for resell
in accordance with this Agreement. The process to complete such transfer is located at
wVNI.support.dell.com, which process may change from time to time. II is your responsibility
to ensure compliance with the latest version of the posted process. You acknowledge that
your failure to property transfer the asset/service identification number will result in the
End-Use~s inability to receive services from Dell.
Dell Products and Services Updates. Dell's policy is one of ongoing Dell Products and
Services update and revision. Dell may revise and discontinue Dell Products and Services
at any time without notice to you. Dell will ship Products and offer Services that have the
functionality and performance of Dell Products and Services ordered, but changes between
what is provided to you and wihat is described in a specification sheet or catalog are
possible.
Support Services Parts. The parts and assemblies used in building Products, service
parts and spare parts are selected from new, equivalent-to-new, or reconditioned parts and
assemblies.
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32. Your Resale of Dell Services.
A Dell Terms & Conditions Applicable to End-Users. You will only resell
Services, including support services sold with Products, to End-Users who agree to
be bound to Dell's Customer Master Services Agreement set forth at
www.dell.comiservlcecontrac\s ("CMSA"), Including terms and conditions
incorporated by reference therein. You will incorporate in an enforceable manner
the CMSA into your own agreement with End-Users ("End-User Reseller
Agreement"), or where required by Dell, enable the CMSA to be presented direclly
to End-Users prior to their use of Services. Where Dell requires the CMSA to be
presented directly to End-Users, the specific implementation and presentation of
such terms will be mutually agreed, but at a niniroom shall include i) direct links to
the CMSA in an enforceable manner; ii) consent/accept provisions; and iii)
continued accessibility by End-Users to the CMSA You will immediately notify Dell
If you become aware of any End-User's violation of the CMSA and any actions you
have taken or will take in connection with the violation. M. Dell's request, you will
promptly discontinue further sales and suspend or terminate End-Use~s access to
the Services in response to a violation of the CMSA You acknowledge and agree
that Dell is a third party beneficiary of the agreement used to engage the End User
with respect to the Services and that you shall require the End User to acknowledge
and agree as to such in the End-User Reseller Agreement. For avoidance of doubt,
to ensure compliance with this Section, you shall provide the following provision in
your End-User Reseller Agreement (or such other agreement you have with the End
User as it relates to the Services):
"Services being provided to you pursuant to this agreement that are provided by
Dell Marketing, L.P. or one of its worldwide affiliates ("Dell"), are being provided to
you in accordance with the terms and conditions of Dell's Customer Master Services
Agreement and any and all applicable Service Descriptions set forth at
www.dell.comiservicecontracts. You hereby acknowledge and agree to be bound by
the terms set forth therein and that Dell is a third party beneficiary to this
agreement."
To ensure compliance with the terms of this Agreement, Dell reserves the right to
audit your agreements with the End Users. Such audit shall take place during
normal business hours upon seven days prior written notice.
B. Internal Use by Reseller. W you use or otherwise are the recipient of Services,
including support services sold with Products, in any manner in connection with
your resale of Services, such as serving as a managed service provider or
participating in the delivery or deployment of Services to your customers, such use
shall be governed by the CMSA
C. Updates. Dell reserves the right to update the CMSA at any time and from
time-to-time, effective upon posting of an updated version to the Dell website
available at www.dell.comiservlGecontracis. You are responsible for regularly
reviewing the CMSA You should closely monitor the revision date on the CMSA
and any change of its posted date shall be deemed notice to you that the CMSA
has been changed or amended. Continued resale or use of Services after any such
changes shall constitute your consent to such changes.
D. Dell Enforcement. Dell reserves the right, in its sole discretion, to suspend or
terminate any End-User in response to a violation or suspected violation of the
CMSA or terms and conditions incorporated by reference therein.
E. Dell Access to End-User Usage Data. "End-User Usage Data" means data or
information collected or received by Dell relating to an End-Use~s use of the
Service, including preferences, images, files and documents. Dell reserves the right
to access, preserve, or disclose End-User Usage Data if required to do so by law or
in a good faith belief that such access, preservation or disclosure is reasonably
necessary to: (i) comply with legal process; (ii) enforce Dell's CMSA; (iii) respond to
claims that any End-User Usage Data violates the rights of third parties; (iv)
respond to your or your End Users' requests for technical support; or (v) protect the
rights, property or personal safety of Dell, its users and the public.
(Rev 110109)
~ Printable Version
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1/26/20103:44 PM
Exhibit "A" (3 of 4)
2010-316
Dell Customer Master Services Agreement
THIS CUSTOMER MASTER SERVICES AGREEMENT ("MSA") is entered into by you ("Customer") as evidenced by your use of the Services
(defined below). "Customer" shall include Customer's corporate subsidiaries, as well as corporate parents, affiliates, and other related entities
(collectively, "Affiliates") approved by Dell to receive Services under this MSA. For purposes of this MSA the term "Dell" shall mean Dell
Marketing L.P. or, when applicable, the Dell entity identified on Customer's invoice. Dell and Customer agree to the following terms and
conditions:
1. Services
All services provided by Dell under this MSA (the "Services") will be described in one or more Service Agreements. "Service Agreements" are
order forms or service contracts that incorporate the terms of this MSA, including "Service Descriptions" available at
www.Dell.com/ServiceContracts. "Technical Specification Forms", "Statements of Work", and any other such mutually agreed upon document.
The MSA and each Service Agreement will be interpreted as a single agreement, independent of each other Service Agreement, so that all of
the provisions are given as full effect as possible. In no event will the description of Services under any Service Agreement be deemed by
implication or otherwise to exclude any Services described in this MSA or another Service Agreement.
In the event of a conflict between the terms of the MSA and a Service Agreement, the terms of these documents will be interpreted according to
the following order of precedence: (1) Service Agreements and (2) the MSA.
2. Terms of Purchase
2.1. Requests for Service; Quotes and Orders. All orders for Services must specify Dell's quotation (if any), and reference the
Service(s) requested and invoice address. All orders are subject to acceptance by Dell. If Customer orders on-line, Dell may issue to Customer
user names and passwords (the "Purchase Codes"). By accepting and using the Purchase Codes, Customer acknowledges the validity of an
electronic order, which shall be deemed to be a writing for all purposes hereunder, and agrees to be responsible for full payment of any Services
ordered using Customer's Purchase Codes. Customer is responsible for keeping the Purchase Codes confidential and controlling their use.
2.2. Prices. The prices charged for Services purchased under this MSA will be Dell's "then-current" charges for such services in each
geographic region or as quoted by Dell. Dell reserves the right to revise pricing if prices for Services are based upon written assumptions and
those assumptions are determined inaccurate. If Customer and Dell are not able to reach agreement on the revised pricing, Customer or Dell
may terminate the applicable Service Agreement. All prices are exclusive of all applicable country, provincial, state and local sales, use, value
added, excise, privilege, franchise and similar taxes. If the Services are being performed on a time and materials basis, any estimates provided
by Dell are for planning purposes only. Any required deposits are non-refundable.
2.3. Additional Fees; Taxes. Customer shall be responsible for all applicable taxes and fees assessed or imposed upon the Services
provided or the amounts charged under this MSA, including any sales, use, excise, value-added, or comparable taxes, but excluding taxes
related to Dell's net assets or net income or for which Customer has provided a valid resale or exemption certificate. Should any payments to
Dell become subject to withholding tax, then Customer shall deduct these taxes from the amount owed to Dell and pay the taxes to the
appropriate tax authority in accordance with the laws thereof. Customer shall promptly provide Dell with receipts or other applicable evidence of
substantiating the payments as required under the laws of the applicable taxing authority. Dell shall not be liable for any withholding tax, penalty,
or interest due as a result of Customer's failure to withhold any applicable tax.
2.4. Invoicing and Payment. Customer's payment terms will be net thirty (30) days from the date of invoice, subject to continuing
credit approval by Dell. Customer will pay Dell in US dollars or in the currency of the country in which the Dell affiliate that supplied the Services
is domiciled, as invoiced by Dell or an affiliate of Dell. Additional charges may apply if Customer requests services that are performed outside
contracted hours or are beyond the normal coverage for the particular service.
2.5. Nonpayment. For invoices not paid within thirty (30) days of the invoice date, Dell reserves the right to charge Customer a late
penalty charge of one and a half percent (1.5%) per month applied against undisputed overdue amounts, or the maximum rate permitted by law,
whichever is less. In addition, Dell, without waiving any other rights or remedies to which it may be entitled, shall have the right to suspend or
terminate the Services until such payment is received and may decide not to accept additional orders from Customer and/or seek collection of all
amounts due, including reasonable legal fees and costs of collections. Dell shall have no liability to Customer for any such suspension or
termination of Services, or non-acceptance of orders.
2.6. Purchases by Affiliates. Unless otherwise agreed in writing, any Affiliate who submits an order to Dell for Services shall agree to
abide by the terms of this MSA. Dell, in its sole discretion, may discontinue selling Services to any Affiliate or may require additional payment
and/or credit conditions for such Affiliate.
2.7. Purchases from a Third-Party Reseller. This Section 2.7 shall not apply to Customers who purchase Services directly from Dell.
If Customer purchases from a party other than Dell (each a "Reseller"), then Customer acknowledges that its payment for the Services is subject
to the agreement between the Customer and the Reseller (the "End-User Reseller Agreement"). Otherwise, Customer agrees that this MSA,
except for the "Terms of Purchase" provisions above, shall apply to such Customer's use of the Services notwithstanding anything to the
contrary in the End-User Reseller Agreement. Dell shall not be liable to Customer for any representations, warranties, indemnities or damages
beyond those set forth in this MSA. Customer acknowledges that to the extent Dell does not receive payment for the Services from the Reseller;
Dell shall have the right to suspend or terminate the Services until such payment is received. Dell shall have no liability to Customer for such
suspension or termination of Services and Customer shall look solely and exclusively to the Reseller for any and all damages and liability
associated with such suspension or termination of the Services.
3. Term & Renewal
This MSA has a one year term, beginning on the earlier of the date on Customer's invoice with Dell, the date on which Service delivery begins or
the date on which your use of the Service begins ("Effective Date"). The MSA will automatically renew on the anniversary of the Effective Date
for subsequent one year terms ("Term") unless terminated in accordance with Section 4 below. Each Service Agreement will continue for the
ABU CMSA Rev. 4.2
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Page 1 of 4
2010-316
term stated therein, unless otherwise terminated pursuant to this MSA. In addition, Dell may, at its option, propose to renew the Service by
sending Customer an invoice or continuing to make the Service available to Customer. Customer may (where permitted by law) agree to such
renewal of the Service by paying such invoice by its due date or by continuing to use the Service. If Customer renews a Service Agreement by
continued use of the Service, Customer will be invoiced in a manner substantially similar to their initial term of Service.
4. Termination
Either party may terminate this MSA for convenience by providing at least thirty (30) days prior written notice to the other. Termination of this
MSA for convenience will not terminate any outstanding Service Agreement that provides for a specific term over which the Services are to be
provided. In such case, this MSA, as incorporated into the Service Agreement, and the Service Agreement that provides for a specific term will
remain in effect for the remainder of such term. Upon termination of this MSA, all rights and obligations of the parties under this MSA 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.
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 thirty (30) days of receipt of written notice from the injured party. Termination of one or more Service Agreements will not
terminate this MSA.
5. Third-Party Products & Warranties
"Third Party Products" means any third-party hardware, services or software. Some manufacturers' warranties or service contract terms and
conditions for Third Party Products may become void if Dell or anyone else, other than the manufacturer or its authorized representative,
provides services for or works on the hardware or software (such as providing maintenance and repair services). DELL DOES NOT TAKE
RESPONSIBILITY FOR THIRD PARTY WARRANTIES OR FOR ANY EFFECT THAT THE DELL SERVICES MAY HAVE ON THOSE
WARRANTIES. Except as agreed to in writing between Customer and Dell, Third Party Products shall be exclusively subject to terms and
conditions between the third party and Customer. Dell shall have no liability for Third Party Products and Customer shall look exclusively to the
third party provider for any damages or liability with respect to the provision of such Third Party Products.
Except as otherwise specifically agreed to in a Service Agreement, Customer authorizes Dell (or otherwise obtains the rights for Dell) to copy,
install and modify, when necessary and as required by the Service Agreement, all Third Party Products, including software, to be used in the
Services or to be copied or stored for subsequent re-installation of a backup system or data. Customer warrants to Dell that it has obtained any
licenses, consents, regulatory certifications or approvals required to give Dell and its subcontractors or employees such rights or licenses to
access, copy, distribute, use and/or modify (including creating derivative works) or install any Third Party Products to be used in the Services,
without infringing the ownership or license rights (including patent and copyright) of the providers or owners of such products.
6. Proprietary Rights
6.1. Deliverables. Except as otherwise specifically agreed to in a Service Agreement, Dell will retain exclusive ownership in all
Deliverables created by Dell hereunder and will own all intellectual property rights, title and interest in any ideas, concepts, know how,
documentation or techniques developed by Dell under this MSA. Subject to payment in full for the applicable Services, Dell grants Customer a
non-exclusive, non-transferable, royalty-free right to use the Deliverables solely in the country(ies) in which Customer does business and solely
for Customer's internal use. "Deliverables" means the tangible and intangible materials, including reports, studies, base cases, drawings,
findings, manuals, procedures and recommendations that are prepared by Dell or its subcontractors in the course of performing the Services.
6.2. Tools & Software. Dell will retain all intellectual property rights with respect to the processes, tools and software related to the
Services. Any use by Customer, including the execution, reverse engineering, decompilation, reproduction, modification, distribution,
transmission, republication, display, transfer or performance, except as specifically permitted by Dell during the term of Services is prohibited
7. Software License Provided by Dell
Customer use of Software in connection with the Services is pursuant to the terms accompanying the Software. "Software" includes software
locally installed on Customer's systems and software remotely accessed by Customer through the Internet or other means (including, but not
limited to websites, Internet portals and "cloud-based" software services). In the absence of such terms, Customer use of Software is pursuant
to the Dell Services License Agreement & Acceptable Use Policy ("AUP") available at www.Dell.com/AUP. By accessing, downloading,
installing, activating or otherwise using such Software, Customer agrees to be bound by the terms of the AUP.
8. Customer Responsibilities
It is the Customer's responsibility to backup data on Customer's system(s). Customer acknowledges that Dell's performance and delivery of the
Services are contingent upon: (A) Customer providing safe and hazard-free access to its personnel, facilities, equipment, hardware, software,
network and information for Services to be performed at Customer's location, and (B) Customer's timely decision-making, notification of relevant
issues or information and granting of approvals or permissions. Customer will promptly obtain and provide to Dell any required licenses,
approvals or consents necessary for Dell's performance of the Services.
9. Confidentiality
In the performance of the Services, Customer and Dell may have access to or be exposed to information of the other party not generally known
to the public, including, but not limited to software, product plans, marketing and sales information, customer lists, "know-how," or trade secrets
which may be designated as being 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 personnel of
Dell or Customer, including employees, agents and subcontractors, on a "need-to-know" basis in connection with its performance of this MSA,
so long as such personnel have agreed 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 Confidential Information by using at least the same degree of care as
such party employs with respect to its own Confidential Information of a like-kind nature, but in no case less than a commercially reasonable
standard of care to maintain confidentiality, and shall only make such information available to its employees on a "need-to-know" basis. The
foregoing shall not include information, which, (A) was known by one party prior to its receipt from the other or is or becomes public knowledge
without the fault of the recipient, (B) is received by the recipient from a source other than a party to this MSA, or (C) a party is required to
ABU CMSA Rev. 4.2 Page 2 of 4
07/30/2009
2010-316
disclose in response to an order by a court or governmental agency, provided that advance notice of the disclosure is provided to other party.
The obligations with respect to Confidential Information shall continue for three (3) years from the date of disclosure.
10. Support Services
When Services consist of repair of Dell-branded systems, such Services shall be those repair services that are necessary because of any
existing defect or a defect occurs in materials or workmanship in the system or in any system component covered by this MSA. 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 which has been damaged as a result of: (A) accident, misuse, or abuse of the system or component (such as, but
not limited to, use of incorrect line voltages, use of incorrect 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), (B) an act of God such as, but not limited
to, lightning, flooding, tornado, earthquakes, and hurricanes, or (C) the moving of the system from one geographic location or entity to another.
11. LIMITED WARRANTY & LIMITATION OF LIABILITY; HIGH-RISK DISCLAIMER
11.1. Limited Warranty. DELL WARRANTS THAT SERVICES WILL BE PERFORMED IN A GOOD AND WORKMANLIKE MANNER.
EXCEPT AS EXPRESSLY STATED IN THE PRECEDING SENTENCE, DELL (INCLUDING ITS AFFILIATES, SUBCONTRACTORS AND
AGENTS) AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS AND OFFICERS (COLLECTIVELY, THE "DELL PARTY(IES)")
MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO ANY OF THE SERVICES OR DELlVERABLES, INCLUDING BUT NOT
LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY OR
NON-INFRINGEMENT; ANY WARRANTY RELATING TO THIRD-PARTY PRODUCTS OR THIRD-PARTY SERVICES; ANY WARRANTY WITH
RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN CONDUCTING SERVICES; OR ANY WARRANTY
CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES OR THE RESULTS OF ANY RECOMMENDATION THE DELL
PARTIES MAY MAKE.
11.2. Limitation of Liability. NEITHER THE DELL PARTIES NOR CUSTOMER WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT,
PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES PROVIDED BY
DELL. WHETHER DIRECT OR INDIRECT, NEITHER PARTY SHALL HAVE LIABILITY FOR THE FOLLOWING, (A) LOSS OF REVENUE,
INCOME, PROFIT, OR SAVINGS, (B) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF SYSTEM(S) OR NETWORK, OR
THE RECOVERY OF SUCH, (C) LOSS OF BUSINESS OPPORTUNITY, (D) BUSINESS INTERRUPTION OR DOWNTIME, OR (E)
SERVICES, DELL PRODUCTS OR THIRD-PARTY PRODUCTS NOT BEING AVAILABLE FOR USE BY CUSTOMER. THE DELL PARTIES'
AGGREGATE LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE) FOR ALL CLAIMS OF LIABILITY ARISING OUT OF, OR IN
CONNECTION WITH ANY SERVICE PROVIDED PURSUANT TO THIS MSA SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER
FOR THE SPECIFIC SERVICE(S) GIVING RISE TO SUCH CLAIM DURING THE PRIOR TWELVE (12) MONTH PERIOD.
EACH PARTY ACKNOWLEDGES THAT THESE LIMITATIONS APPLY EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES OR THE REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE AND THAT, WITHOUT THESE LIMITATIONS, THE FEE FOR
THE SERVICES PROVIDED HEREUNDER WOULD BE HIGHER.
11.3. High-Risk Application Disclaimer. The Services are not fault-tolerant and are not designed or intended for use in hazardous
environments requiring fail-safe performance, including without limitation, 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 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.
12. Indemnification
Dell shall defend, indemnify and hold harmless Customer from any third-party claim or action that the Services or any Deliverables (excluding
Third-Party Products) prepared or produced by Dell and delivered pursuant to this Agreement infringe or misappropriate that third party's patent,
copyright, trade secret, or other intellectual property rights enforceable in the country(ies) in which the Services or Deliverables are sold to
Customer by Dell ("Indemnified Claims"). In addition, if Dell receives notice of a claim that, in Dell's reasonable opinion, is likely to result in an
adverse ruling, then Dell shall at its option, (A) obtain a right for Customer to continue using such Service or Deliverable; (B) modify such
Service or Deliverable to make it non-infringing; (C) replace such Service or Deliverable with a non-infringing equivalent; or (D) refund any pre-
paid fees for the allegedly infringing Services that have not been performed or provide a reasonable depreciated refund for the allegedly
infringing Deliverable. Notwithstanding the foregoing, Dell shall have no obligation under this Section for any claim resulting or arising from (A)
Customer's modifications of the Services or Deliverables that were not performed by or on behalf of Dell; (B) the combination, operation or use
of the Service or Deliverable in connection with a third-party product or service (the combination of which causes the infringement); or (C) Dell's
compliance with Customer's written specifications or directions, including the incorporation of any software or other materials or process
provided by or requested by Customer.
Customer shall defend, indemnify and hold Dell harmless from, any third-party claim or action arising out of (A) the failure of Customer to obtain
the appropriate license, intellectual property rights, or any other permissions, regulatory certifications or approvals associated with Customer-
provided technology, software or other components related to the Service, as well as software directed or requested by Customer to be installed
or integrated as part of Services, or (B) any inaccurate representations regarding the existence of an export license or any allegation made
against Dell due to Customer's violation or alleged violation of applicable export laws, regulations, and orders.
Each party agrees to indemnify and hold harmless the other party from any third-party claim or action for personal bodily injuries, including
death, resulting from the indemnifying party's gross negligence or willful misconduct resulting from the Services (excluding Third-Party Products)
provided hereunder. This section states each party's exclusive remedies for any third-party claim or action, and nothing in this MSA or
elsewhere will obligate either party to provide any greater indemnity to the other.
ABU CMSA Rev. 4.2
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2010-316
-
13. Export; Regulatory Requirements
13.1. Export. Customer and Dell aCknowledges that the Services sold under this MSA, which may include technology and software, are
subject to the customs and export control laws and regulations of the United States ('U.S."), may be rendered and/or performed in countries
outside the U.S. and may also be subject to the customs and export laws and regulations of the country in which the Services are rendered
and/or received. Customer and Dell agrees to abide by those laws and regulations. Customer further represents that any software provided by
Customer and used as part of the Services contains no encryption or, to the extent that it contains encryption, such software is approved for
export without a license. If Customer cannot make the preceding representation, Customer agrees to provide Dell with all of the information
needed for Dell to obtain export licenses from the U.S. Government and to provide Dell with such additional assistance as may be necessary to
obtain such licenses. Notwithstanding the foregoing, Customer is solely responsible for obtaining any specific licenses relating to the export of
software if a license is needed. Dell may also require export certifications from Customer for Customer-provided software. Dell's acceptance of
any order for Services is contingent upon the issuance of any applicable export license required by the U.S. Government; Dell is not liable for
delays or failure to deliver Services or a product resulting from Customer's failure to obtain such license or to provide such certification.
13.2. Regulatory Requirements. Dell is not responsible for determining if Third Party Products to be used in performance of the
Services satisfy the local regulatory requirements of the country to which the products are to be shipped, nor shall Dell be obligated to perform
any Services where the resulting products or software do not satisfy the local regulatory requirements.
14. Important Additional Terms
14.1. Independent Contractor Relationship; MSA Assignment; Subcontracting. The parties are independent contractors. 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 MSA. Dell has the right to assign, subcontract or delegate in whole or in part this MSA, or any rights, duties, obligations or liabilities under
this MSA, by operation of law or otherwise, provided that Dell shall remain responsible for the performance of Services under this MSA.
Otherwise, neither party may assign this MSA without the permission of the other.
14.2. Entire Agreement; Severability; Section Headings. This MSA and Service Agreements is the entire agreement between Dell
and Customer with respect to its subject matter and supersedes all prior oral and written understandings, communications or agreements. No
amendment to or modification of this MSA, 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 MSA is void or unenforceable, the remainder of this MSA will remain in full force and
effect. Section headings are for reference only and shall not affect the meaning or interpretation of this MSA.
14.3. Force Majeure. Neither party shall be liable to the other party for any failure to perform any of its obligations (except payment
obligations) under this MSA during any period in which such performance is delayed by circumstances beyond its reasonable control including,
but not limited to, 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 events lasts longer than thirty (30) days, the other
party may immediately terminate the applicable Service Agreement by giving written notice to the delayed party.
14.4. Notices. Notice to Dell under this MSA 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 (incl. facsimile or electronic) as specified in writing and will be effective upon receipt.
Dell Marketing L.P., Attn: Contracts Manager
One Dell Way, Round Rock, Texas 78682
14.5. Governing Law, Forum and Language. THE PARTIES AGREE THAT THE MSA, ANY SALES THERE UNDER, OR ANY
CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR
FUTURE, AND INCLUDING STATUTORY, COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND DELL arising from or
relating to the MSA, its interpretation, or the breach, termination or validity thereof, the relationships which result from this agreement or any
related purchase SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICTS OF LAW.
The parties agree that any and all claims, causes of action or disputes (regardless of theory) arising out of or relating to the MSA shall be
brought exclusively in the courts located in Travis County, Texas. Customer and Dell agree to submit to the personal jurisdiction of the courts
located within Travis 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.
This MSA will be interpreted and construed in accordance with the English language.
14.6. Dispute Resolution. Customer and the Dell Parties will attempt to resolve any claim, or dispute or controversy (whether in
contract, tort or otherwise) arising out of or relating to this MSA, Dell's advertising, or any related purchase (a 'Dispute') through face-to-face
negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, 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 court of competent jurisdiction 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 equity.
14.7. Limitation Period. Neither party may institute any action in any form arising out of this MSA more than two (2) years after the
cause of action has arisen, or in the case of nonpayment, more than two (2) years from the date of last payment.
14.8. Updates. Dell reserves the right to update its MSA at any time, effective upon posting an updated version at www.Dell.comfCMSA;
however, Customer's rights and obligations shall be as provided in the version of the MSA executed by Customer or available to Customer at
the time of Customer's purchase of Services or, when applicable, Customer's renewal of Services.
14.9. Counterparts. If a signature block is appended hereto, this MSA may be executed in counterparts, each of which shall be deemed
an original, but all such counterparts shall together constitute one and the same instrument.
ABU CMSA Rev. 4.2 Page 4 of 4
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Exhibit "A" (4 of 4)
2010-316
DeLLtM
Service Description
Terms & Conditions Overview
This agreement ("Agreement" or "Service Description") is made between the customer ("you" or "Customer") and Dell. By
purchasing these Services (as defined herein) from Dell, Customer agrees to be bound by all terms and conditions set forth
in this document. Customer agrees that renewing, modifying, extending or continuing to utilize the Services beyond the
initial term is subject to the then-current Service Description available for review at www.dell.com/servicecontracts.
· Direct Customers & End Users Who Purchase Dell Services from a Reseller: This Service is provided in
connection with Customer's separate signed master services agreement with Dell or, in the absence of such
agreement, Dell's standard Customer Master Services Agreement ("CMSA"), which can be obtained at
www.dell.com/servicecontracts.
· PartnerDirect Certified Partners or Registrants and Authorized Resellers: This Service is provided for resale
by Dell's authorized resellers in connection with Dell's Terms and Conditions of Sale for Persons or Entities
Purchasing to Resell, which can be obtained at www.dell.com/servicecontracts.
Service Overview
Dell and/or your Dell Authorized Reseller is pleased to provide Basic Hardware Service (the "Service" or "Basic") in
accordance with the applicable service response level identified below. Customer's applicable service response level is
identified on Customer's order acknowledgement, invoice or receipt for the Supported Product(s). Available service
response levels include the following:
· Return for Repair - Mail-In Service (MIS)
. Parts Only Service
· Next Business Day Onsite Service (NBD)
· Advanced Exchange Service
This Service provides technical support options (telephone, Internet, etc.) and service parts and related labor services to
repair and/or replace defect(s) in workmanship occurring within the hardware warranty period applicable to Customer's
Supported Product(s) ("Qualified Repair(s)").
Supported Products: Basic Hardware Services are available on select Dell Optiplex™, Latitude TM, Dell Precision TM,
Vostro™, Dell Printers, PowerEdge™, PowerEdge SCTM, PowerVault™, PowerConnecFM, Dell EqualLogic™ and Dell I
EMC Storage Systems™ which are purchased in a standard configuration.
Each Supported Product is tagged with a serial number (the "Service Tag"). A separate Basic Hardware Service agreement
must be purchased by the Customer for each Supported Product. For example, a printer purchased with a laptop system is
not covered by the laptop system's service contract: The printer and the laptop will each have a separate Service contract.
Please read this Service Description carefully and note that Dell and/or the Dell Authorized Reseller reserves the right to
change or modify any of the terms and conditions set forth in this Service Description at any time.
BASIC HARDWARE SERVICE CONSISTS OF: 1) TECHNICAL SERVICE AND SUPPORT,
AND 2) SERVICE PARTS AND RELATED LABOR SERVICES.
1. TECHNICAL SERVICE AND SUPPORT
All Basic Hardware service offerings, except Parts Only Service, are entitled to the following technical service and
support
· Telephone support services, which provides hardware troubleshooting during local business hours excluding local
national holidays.
· 24x7 technical support service through Internet based chat and e-mail
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· Repair and resolution of defects in materials and workmanship according to the response level of service
purchased by the Customer.
· Note: Service offerings may vary by geographic region. For Supported Products purchased from Dell Authorized
Resellers, the Customer may contact Dell or the Dell Authorized Reseller to identify applicable service level for
Supported Products.
Contactina Dell for Service
Low-Urgency Technical Service Resolution: For issues that are of low urgency, please consider contacting Dell technical
support service through e-mail and instant online chat available at www.support.dell.com.
Technical Support Service - Telephone Resolution: Basic Hardware Service Analysts ("Dell Analysts") are available by
telephone during local business hours Monday-Friday, excluding local national holidays. Telephone support numbers are
available at www.support.dell.com. Before contacting Dell, please have the following available:
· The Supported Product's 1) Service Tag Number, 2) Express Service Code and 3) Model Number. In general, the
Service Tag Number and Express Service Code are located on a label affixed to the Supported Product.
· A description of the problem and any troubleshooting steps taken prior to calling Technical Service.
· The case number if one has already been assigned through prior contact with Dell Service staff.
· The current version of the operating system.
· Physical access to the Supported Product during the troubleshooting process.
Please contact Dell or the Dell Authorized Reseller via telephone. During the phone call, the Dell Analyst will ask for the
Service Tag Number and Express Service Code. The Dell Analyst will also verify the service level and any expiration of
services for the Supported Product. Then, the Dell Analyst will begin a series of troubleshooting steps to help diagnose the
issue.
· When requested, the Customer should identify error messages received and when they occur.
· The Customer should be prepared to share with the Dell Analyst the steps that have already been attempted to
resolve the issue prior to contacting Dell technical support.
· The Dell Analyst may ask that the Customer open the product case, remove hardware, manipulate software or
perform other diagnostic activities. Failure to assist in or allow remote diagnosis may result in a service fee for
onsite diagnostic services.
· If the Customer does not wish to, or is not able to perform the initial phone-based troubleshooting steps with the
Dell Analyst, the Customer may upgrade their Basic Hardware Service to "Dell ProSupport with Onsite Diagnosis"
resolution service from Dell or the Dell Authorized Reseller, if available.
· If the product is outside its applicable hardware warranty term, there may be a fee for diagnosis and remedy.
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2. SERVICE PARTS AND RELATED LABOR SERVICES
Regardless of the service response level purchased, some component parts are specifically designed for easy Customer
removal and replacement: such parts are designated as Customer Self Replaceable (CSR). If during the diagnosis, the Dell
Analyst determines that the repair can be accomplished with a CSR designated part, Dell will ship the CSR designated part
directly to the Customer. CSR parts fall into two categories:
· Optional CSR parts - These parts can be replaced by the Customer. Depending on the type of service that was
purchased with the Supported Product, Dell may provide an Onsite Technician to replace the parts.
· Mandatory CSR parts - These are parts that the Customer must replace themselves. Dell does not provide
installation labor for them. If the Customer requests that Dell and/or the Dell Authorized Reseller replace these
parts, the Customer will be charged a fee for this service.
The freight method used to ship the CSR part is based on the level of service purchased by the Customer.
· Service parts for customers with Next Business Day Service will be shipped via a next business day freight
method.
· Service parts for customers with Return for Repair Service will be shipped via ground freight service.
Once the Dell Analyst has determined whether it is necessary to replace a part or return the system, the Customer will be
informed of the next steps to take. Depending on the service level that was purchased by the Customer, the following options will
apply:
A. Return for Repair
There are three types of Return for Repair service: Mail-In Service, Carry-In Service or Collect and Return Service. Return for
Repair service options vary according to the type of service purchased and the Customer's geographical location.
Return for Repair - Mail-in Service (MIS)
Return for Repair - Mail-in Service is initiated by calling Dell technical support as outlined above. During the telephone-
based troubleshooting process, the Dell Analyst will determine if the issue requires that the Supported Product be sent
to a Dell-designated repair center to support a Qualified Repair. Should it be necessary to send the Supported Product
to the repair center, the Dell Analyst will clearly explain the procedures to follow and the next steps for the Customer to
take. Typical cycle time, including shipping to and from the repair center, is 10 business days from date of shipment.
General Mail-in Service Procedures:
· Shipping procedure: During the telephone-based trouble shooting process, the Dell Analyst will provide
instructions on how to return the product to the Dell-designated repair center. The Supported Product must be
shipped to the address given to the Customer by the Technician.
· Clearly display the Return Authorization Number on the outside of the shipping box. The Return Authorization
Number will be provided by the Dell Analyst.
· To expedite repair or replacement, enclose a brief description of the issue in writing.
· Package the product being returned in its original packaging. If the original packaging is not available, the Dell
Analyst may assist by providing packaging; however a fee may apply for this service.
· Shipping precautions: The Customer should not send manuals, confidential, proprietary or personal
information or removable media such as floppy disks, DVDs, PC Cards, etc. Dell is not responsible for lost or
corrupted data, damaged or lost media or the Customer's confidential, proprietary or personal information.
B. Parts-Only Service
For Customers with Parts-Only Service, Dell will make replacement parts available to Customers on an exchange basis to
support a Qualified Repair(s). Dell may provide whole unit exchanges of such third party hardware rather than the exchange of
individual parts. Dell includes a prepaid shipping container with each replacement part to allow the Customer to return the
original defective part back to Dell. Parts-Only Service does not include Technical Support Service.
C. Next Business Day Onsite Service
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During the telephone based troubleshooting, the Dell Analyst will determine if an Onsite Service Technician must be dispatched
to support a Qualified Repair. For Next Business Day Onsite Service, a technician typically arrives onsite the next business day.
There are specific restrictions and terms to this Service:
· Technicians are available Monday-Friday, excluding local national holidays, from 8:00 am to 6:00 pm local time.
· Calls receivedl dispatches made after 5:00 pm local time will require an additional day for the Technician to arrive.
· In the event that additional partsl resources are required once the Onsite Technician is at the Customer's site, work
may be temporarily suspended. Work will resume when those additional partsl resources are available.
Missed Service Visit: If the Customer or Customer's authorized representative is not at the location when the Onsite Technician
arrives, the Technician cannot complete the required service. If possible, the Onsite Technician will leave a card to let the
Customer know that they were there. If this occurs, the Customer may incur an additional charge for a follow-up service call.
D. Advanced Exchange Service
Certain Supported Products can be purchased with Advanced Exchange Service to support a Qualified Repair(s). If the Dell
Analyst determines that the Supported Product requires a Qualified Repair(s), Dell may choose to ship a replacement product to
the Customer's business location. The replacement product will be shipped via ground shipping. In some instances, at Dell's
discretion, an Onsite Technician may also be dispatched to replacel install the replacement product. Upon receipt of the
replacement product, the Customer must return the defective Supported Product to Dell by taking the defective Supported
System to the designated return carrier location within 3 business days. Should the Customer fail to return the defective item, a
fee will be charged.
Dell EqualLogic Software Updates
Basic Hardware Support for select Dell EqualLogic Supported Products, including the Dell EqualLogic PS Series, includes both
maintenance software updates and the introduction of new features to firmware and core software such as SAN HQ, Auto
Snapshot Manager and the Host Integration Toolkit (for the service period indicated on the invoice).
Patches and Bug Fixes. Dell will periodically release patches and bug fixes to the applicable Enterprise Storage Software for
purposes of maintaining operating system compatibility and/or database compatibility; and any error corrections, workarounds
and/or patches needed to maintain conformance to the documentation for the applicable Enterprise Storage Software.
New Versions. New versions or releases of the applicable Enterprise Storage Software are generally made available by Dell at
no additional charge to licensees for Enterprise Storage Software that is installed on a Supported Product covered by a Dell
limited warranty or an annual service or maintenance contract. New Versions generally consist of releases that contain patches
and bug fixes, changes that reflect an expansion or extension of existing features, and changes that include substantial new
features, functions or capabilities.
Dell EqualLogic Support Renewal Rates are available at: htto:/Iwww.dell.com/ProSuooortlEQLoricelist
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Hardware Coverage Limitations:
· SATA hard drives in PowerEdge™, PowerEdge SCTM and PowerVaulFM systems carry the lesser of either a 1-year
limited hardware warranty or the length of the limited hardware warranty for the Dell system with which the SATA hard
drive is shipped.
· Portable computer batteries carry the lesser of either a 1-year limited hardware warranty or the length of the limited
hardware warranty for the Dell computer with which the battery is shipped.
· Your PERC5 or PERC 6 battery may provide up to 72 hours of controller cache memory backup power when new.
Under the 1-year limited hardware warranty, we warrant that the battery will provide at least 24 hours of backup
coverage during the 1-year limited hardware warranty period.
· Projector lamps carry a gO-day limited hardware warranty.
· Memory carries a lifetime limited hardware warranty.
· The limited hardware warranty for monitors purchased independent of a system lasts for the time period indicated on
your packing slip. Monitors purchased with a system are covered by the system limited hardware warranty.
· PDAs, earphones, and remote inline controls carry a 1-year limited hardware warranty.
· Other add-on hardware carries the longer of either a 1-year limited hardware warranty for new parts and a gO-day
limited hardware warranty for reconditioned parts or, for both new and reconditioned parts, the remainder of the
warranty for the Dell computer on which such parts are installed.
Additional hardware coverage limitations may apply. Please see www.dell.com/warrantv or your invoice or contact Dell
technical support for more details.
Not Included With Basic Services:
· Operating system software or database assistance
· Media replacement for non-Dell branded software (for example, Microsoft@ Office) or for software that Dell no
longer ships with new systems
· Assistance with configuration, optimization, installation, relocation or upgrades
. Access to senior-level engineers
. Fast-Track Dispatch service(s)
· Global Command Center mission critical monitoring
· Emergency dispatch or Customer determined incident severity levels
. Case Management or escalation management
· Warranty, repair or any other type of service for third party products or Collaborative Service with third party
vendorsl partners
· Accessories, operating supplies, peripherals or parts such as batteries, frames and covers
. Installation services for Mandatory Customer Replaceable Unit (CSR) parts
. Preventative maintenance
· Service or repairs for any damage to or defect in the Supported Product that is purely cosmetic and which does not
affect the device functionality. Dell will not repair wear and tear on the device for superficial items such as
scratches and dents.
· Service for equipment damaged by misuse, accident or abuse of the Supported Product and components (such as,
but not limited to, use of incorrect line voltages, use of incorrect fuses, use of incompatible devices and
accessories, improper or insufficient ventilation or failure to follow operating instructions), modification, unsuitable
physical or operating environment, improper maintenance by the Customer (or Customer's agent), moving the
Supported Product, removal or alteration of equipment or parts identification labels or failure caused by a product
for which Dell is not responsible.
. Repairs necessitated by software problems, or as a result of alteration, adjustment, or repair by anyone other than
Dell, Dell's Authorized Reseller or Service Provider or by customers utilizing Customer Self Replaceable (CSR)
parts.
· Service for damage resulting from an Act of God such as, but not limited to: lightning, flooding, tornados,
earthquakes, or hurricanes.
. Any recovery or transfer of data
. Any activities or services not expressly described in this Service Description
Customer Responsibilities
· Authority to Grant Access. Customer represents and warrants that the Customer, Dell and if applicable the Dell
Authorized Reseller will have access to and use of the Supported Product, the data on it, and all hardware and software
components included in it, for the purpose of providing these Services. If the Customer does not already have that
permission, it is the Customer's responsibility to obtain it, at the Customer's expense, prior to asking Dell to perform
these Services.
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· Cooperate with Dell Analyst and Onsite Technician. Customer agrees to cooperate with and follow the instructions
given by the Dell Analyst.
· Maintain Software and Serviced Releases. Customer must maintain software and Supported Product(s) at Dell-
specified minimum release levels or configurations as specified on PowerLink for Delli EMC Storage or EqualLogic™,
or as specified on www.support.dell.com for Supported Products. Customer must also ensure installation of remedial
replacement parts, patches, software updates or subsequent releases as directed by Dell in order to keep the
Supported Product(s) eligible for this Service.
· Third-Party Warranties. Basic Hardware Service may require that Dell access hardware or software that is not
manufactured by Dell. Some manufacturer's warranties may become void if Dell or anyone other than the original
manufacturer performs work on their products. It is the Customer's responsibility to ensure that Dell's and/or its
Authorized Reseller service performance do not affect such warranties or, if it does, that the effect will be acceptable to
the Customer. DELL AND DELL'S AUTHORIZED RESELLERS DO NOT TAKE RESPONSIBILITY FOR THIRD
PARTY WARRANTIES OR FOR ANY EFFECT THAT THE DELL SERVICES MAY HAVE ON THOSE WARRANTIES.
· Onsite Obligations. For Onsite Service Services, the Customer must provide free, safe and sufficient access to the
Customer's facilities and the Supported Product(s). Sufficient access includes ample working space, electricity and a
local telephone line. A monitor or display, a mouse and a keyboard should also be provided to the Technician if the
Supported Product does not already include those items.
· Return Defective Parts. If a Dell Analyst delivers a replacement unit to Customer, the Customer must relinquish the
defective System or component thereof, unless Customer has purchased "Keep Your Hard Drive" service for the
affected system in which case Customer may retain the respective hard drive(s).
If the Customer fails to comply with the responsibilities and terms outlined in this Service Description (available at
www.dell.com/servicecontracts). then Dell or its Authorized Reseller is not obligated to provide Service.
Customer Data Backup Responsibilities
Complete a backup of all existing data and programs on all affected systems prior to the delivery of this Service. DELL WILL
HAVE NO LIABILITY FOR LOSS OR RECOVERY OF DATA OR PROGRAMS or loss of use of system(s) arising out of the
services or support or any act or omission, including negligence, by Dell or a third-party service provider.
Important Additional Information
A. Assignment. Dell may assign this Service and/or Service Description to qualified third party service providers.
B. Whole Unit Replacement. If the analyst determines that the component of the defective Supported Product is one that is
easily disconnected and reconnected (such as a keyboard or monitor), or if the analyst determines that the Supported
Product is one that should be replaced as a whole unit, Dell reserves the right to send Customer a whole replacement unit.
If a Dell technician delivers a replacement unit to Customer, Customer must relinquish the defective System or component
thereof to the Dell technician, unless Customer has purchased Keep Your Hard Drive for the affected system in which case
Customer may retain the respective hard drive(s). If Customer does not relinquish the defective unit to the Dell technician as
required above, or if (in the event the replacement unit was not delivered in person by a Dell technician) the defective unit is
not returned within ten (10) days, Customer agrees to pay Dell for the replacement unit upon receipt of invoice. If Customer
fails to pay such invoice within ten (10) days after receipt, in addition to any other legal rights and remedies available to Dell,
Dell may terminate this Service Description upon notice.
C. Cancellation. Subject to the applicable product and services return policy for Customer's geographic location, Customer
may terminate this Service within a defined number of days of Customer's receipt of the Supported Product by providing
Dell with written notice of cancellation. If Customer cancels this Service within that period, Dell will send Customer a full
refund less the costs of support claims, if any, made under this Service Description. However, if that period has transpired
since Customer's receipt of the Supported Product, Customer may not cancel this Service except as provided by an
applicable state/country/province law which may not be varied by agreement.
Dell may cancel this Service at any time during the Service term for any of the following reasons:
· Customer fails to pay the total price for this Service in accordance with the invoice terms;
· Customer refuses to cooperate with the assisting analyst or on-site technician; or
· Customer fails to abide by all of the terms and conditions set forth in this Service Description.
If Dell cancels this Service, Dell will send Customer written notice of cancellation at the address indicated on Customer's
invoice. The notice will include the reason for cancellation and the effective date of cancellation, which will be not less than
ten (10) days from the date Dell sends notice of cancellation to Customer, unless state law requires other cancellation
provisions that may not by varied by agreement. IF DELL CANCELS THIS SERVICE PURSUANT TO THIS PARAGRAPH,
CUSTOMER SHALL NOT BE ENTITLED TO ANY REFUND OF FEES PAID OR DUE TO DELL.
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D. Relocation. This Service will be delivered to the site(s) indicated on the Customer's invoice. This Service is not available
at all locations. Dell's obligation to supply the Services to relocated Supported Products is subject to local service
availability and may be subject to additional fees, and to inspection and recertification of the relocated Supported Products
at Dell's then current time and materials consulting rates. Customer will provide Dell with sufficient and safe access to
Customer's facilities at no cost to Dell for Dell to fulfill Dell's obligations.
E. Parts Stocked. Dell currently stocks parts in various locations throughout the world. Selected parts ay not be stocked in
the location closest to the customer's site. If a part that is needed to repair the Supported Product is not available from a
Dell facility near the customer's location and must be transferred from another facility, response times may be impacted.
F. Support Limitations. Dell is not liable for any failure or delay in performance due to any cause beyond its control. Service
extends only to uses for which the Supported Product was designed.
G. Service Parts Ownership. All Dell service parts removed from the Supported Product and returned to Dell become the
property of Dell. Customer must pay Dell at the current retail price(s) for any service parts removed from the System and
retained by Customer (except for hard drives from systems covered by Keep Your Hard Drive service) if Customer has
received replacement parts from Dell. Dell uses new and reconditioned parts made by various manufacturers in performing
warranty repairs.
H. Optional Services. Optional services (including point-of-need support, installation, consulting, managed, and professional,
support or training services) may be available for purchase from Dell and will vary by Customer location. Optional services
may require a separate agreement with Dell. In the absence of such agreement, optional services are provided pursuant to
this Agreement.
I. Term and Renewal. Customer will receive Services for the term indicated on Customer's Dell invoice. Prior to the
expiration of the service term, Customer may be entitled to extend the term depending on available options then in effect
and in accordance with Dell's then-current procedures.
In addition, Dell may, at its option, propose to renew this Service by sending Customer an invoice to renew the Services.
Customer may, at its option (where permitted by law), agree to such renewal of the Services by paying such invoice by the
due date. Payment of renewal invoices shall indicate Customer's agreement to extend the term of this Service. By
renewing this Service, Customer agrees that the then-current terms will apply to the renewal period. If Customer elects not
to pay a renewal invoice, Services will be discontinued as of the expiration date set forth on the original or last paid
Customer invoice.
J. Transfer of Service. Subject to the limitations set forth in this Service Description, Customer may transfer this Service to a
third party who purchases Customer's entire Supported Product before the expiration of the then-current service term,
provided Customer is the original purchaser of the Supported Product and this Service, or Customer purchased the
Supported Product and this Service from its original owner (or a previous transferee) and complied with all the transfer
procedures. A transfer fee may apply. Notwithstanding the foregoing provisions, Service for Dell EqualLogic products is not
transferrable. Customers wishing to transfer ownership of Dell EqualLogic products should advise any potential transferee
to contact Dell at ealx-customer-serviceav.dell.com to discuss possible transfer of license, warranty and/or service for the
Supported Product(s). Additional terms, conditions and fees may apply to any such transfer, and Dell may, in its sole
discretion, refuse to allow any such transfer for any reason or no reason.
Please note that if Customer or Customer's transferee moves the Supported Product to a geographic location in which this
Service is not available or not available at the same price as Customer paid for this Service, Customer may not have
coverage or may incur an additional charge to maintain the same categories of support coverage at the new location. If
Customer chooses not to pay such additional charges, Customer's 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.
PowerEdge™, PowerEdge SCTM, PowerVault™, PowerConnect™, Dell EqualLogic™ and Dell I EMC Storage Systems™ are trademarks of
Dell Inc.
@ 2008-2009 Dell Inc. All Rights Reserved
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