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ORIGINAL CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Keith L. Kilmer, Chief of Police Subject: Resolution of the City of San Bernardino Authorizing the Purchase of a Dell Dept: Police Department Virtual Server Array for the San Bernardino Police Department's Laserfiche Document Date: September 15, 2010 Imaging System from Dell Computers Inc., of Round Rock, Texas. M/CC DATE: October 4, 2010 Synopsis of Previous Council Action: None. Recommended Motion: Adopt Resolution. / . KEITH L. KILMER, Chief of Police Concur: IT ept. -J YOTS A, Interim IT Director Contact person: Public Safety Systems Mgr Michael Eckley Phone: 384-5947 Supporting data attached: Yes Staff Report/Resolution Ward: All FUNDING REQUIREMENTS: Amount: $ 64,632.67 Source: 123-825-5702-0000-0049 COPS 2009 Technology Grant- Computer Equipment Finance Council Notes: Agenda Item No. 11 (O-Oy -2410 CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION Staff Report Subject Subject: Resolution of the City of San Bernardino Authorizing the Purchase of a Dell Virtual Server Array for the San Bernardino Police Department's Laserfiche Document Imaging System from Dell Computers Inc., of Round Rock, Texas. Background In 1995, when the current Police Department headquarters was built, the Police Department purchased a first generation digital document imaging system (from Datamax Technologies of Culver City, California.) to store enforcement documents online. This initial project was very successful and it was expanded to include our entire Investigations Division (detectives). By 2001, the initial system had reached its maximum performance capacity and it was replaced with a larger scale document imaging system from Fi1eNET Corporation, of Irvine California. This system is still in operation and it takes in about 1.2 million pages of enforcement documentation annually. In March 2007, the Management Partner's review of City operations recommended that the City "draft a plan to integrate all city records into a single document management system" (Recommendation 46). At the time of this recommendation, the City Clerk's Office used a Laserfiche Document Imaging System, the Water Department used a system provided by a different vendor, and the Police Department used its Fi1eNET document imaging system. The Water Department, in support of the Management Partners recommendation, has replaced their document imaging system with a Laserfiche Document Imaging System. This move on the part of the Water Department means that the City is operating two Laserfiche systems (City Clerk and Water Department) and one Fi1eNET system (Police Department). In 2009, the Police Department sought a US DOJ COPS Technology Grant to replace their aging Fi1eNET document imaging system with a Laserfiche document imaging system. The request was granted and funded was provided for the Laserfiche system and the associated computer server hardware for a total of$400,000.00. This Request for Council Action seeks permission to move forward with the purchase and installation of a virtual server array to host the Police Department's new Laserfiche document imaging system. This virtual server array will be built from components from Dell Computers Incorporated, of Round Rock, Texas. These components will match the existing virtual server arrays operated by the San Bernardino Police Department, the Water Department, and the City Information Technology Department's Business Systems Group. IT staff have already received training associated with Dell Computers Incorporated's virtual server solution thus saving the City time and the expense associated with training on another vendor's solution. Dell Computers Incorporated is offering us a discounted price that is under their standard GSA pricing schedule in accordance with their Western States Computer Alliance (WSCA) government-pricing schedule. This is a substantial cost benefit to the City. Based on the satisfactory performance of the City's existing Dell virtual server arrays and this discounted pricing formula, it is recommended pursuant to San Bernardino Municipal Code 3.04.010(b)(3), that the Mayor and Common Council approve a selected source justification for the purchase of a virtual server array for the Police Department's Laserfiche document imaging system from Dell Computers Incorporated, of Round Rock, Texas. There is no Vender Service Agreement with this purchase because there are no services being provided by the vendor. These items are "drop ship" items that will be installed by the City IT Department. Financial Impact A total of$65,000.0 from the 2009 US DOJ COPS Technology Grant was approved by the US Department of Justice for this technology purchase in grant account 123-825-5702-0000-0049. All $65,000.00 is available in the grant account for this purchase. This purchase does not require the use of General Fund monies. Account Budgeted Amount: $400,000.00 (123-825-5702-0000-0049) —2009 COPS Technology Grant— Computer Equipment. Balance as of October 4, 2010 is $65,000.00. Balance after this approved purchase will leave a balance of$367.33 in this grant account. Recommendation Adopt Resolution. City of San Bernardino San Bernardino Police Department Interoffice Memorandum To: Charles McNeely, City Manager From: Michael Eckley, Public Safety IT Manager Subject: Purchase pursuant to Municipal Code Section 3. 04 . 010 (B) (3) Date: September 2, 2010 Copies : Keith L. Kilmer, Chief of Police Ronald C Garcia, Captain - Admin Svc Div Commander June Yotsuya, Interim Director of Information Technology The San Bernardino Police Department operates a facility-wide document imaging system. The IT Department is in the process of upgrading the document imaging system from a FileNET product to a Laserfiche product. This will align the PD document imaging system with the two other city-owned Laserfiche systems (City Clerk and Water Department) as recommended by Management Partners in 2008 . Part of the upgrade to the Laserfiche product line is the replace of the existing servers with a new virtual server array. The City current owns three such virtual arrays (Water Department, City Hall Business Systems, and Police Surveillance Cameras) . This purchase will provide a virtual server array to house the new document imaging system. This virtual server array has been approved and funded by the US DOJ as part of our 2009 COPS Technology Grant. The US DOJ COPS Office has approved this item as a sole source purchase. The Police Department and the Information Technology Department have researched mission critical server products . In accordance with Department Director Letter (DDL) 82, the following information is presented as justification for permission to proceed with the purchase of a Dell Computers Incorporated virtual server array for this project pursuant to SBMC Section 3.04 . 010 (B) (3) : 1 . Vendor The Water Department and the Information Technology Department have teamed together to form the City' s first mission critical virtual server array to service the key Water Department systems . This server array was purchased from Dell Computers Inc. IT staff analysts have received core training in the management of this new virtual server technology on the Dell platform. The IT Department' s Business Systems Group has established a similar virtual server array at City Hall using this exact same platform (Dell Computers) . It is only reasonable that the IT Department' s Public Safety Group follow forward with the existing mission critical server array structure. Staff across the IT Department will be trained and experienced in managing the same suite of hardware and software. Since the Police Department has been allowed to standardize their virtual server arrays on the same platform being used by the Water Department and the City' s Business Systems Group at City Hall, it is requested that we be allowed to use a standardized Dell virtual server array for this new document imaging system project. 2. Bid Process The formal bid process was not used because the Police Department established its first virtual server array using the mission critical server platform that is already in place at the IT Department' s City Hall server facility. The decision to standardize on the existing product focused on the success of the Water Department' s initial deployment and the IT Department' s initial deployment at a virtual server array at our City Hall complex. Dell Computers Inc products can only be purchased from Dell Computers. 3. Cost Reductions Because City IT Department analysts are already trained and are already using the Dell Computers solution, the IT Department' s Public Safety System' s Group does not need to pay for formal training outside of the IT Department. Having standardized on a single platform, the IT Department will be able to move forward with virtual server array expansions that over time will greatly reduce the cost of server hardware needed for new automation projects . This standardization and virtualization of our server assets falls into line with suggestions for future planning that the Chief Information Officer of the City of Reno, Nevada (Mr. Rick Vandenberg) shared with us during his 2009 site visit. It is requested that this virtual server hardware purchase be purchased pursuant to San Bernardino Municipal Code Section 3 . 04 . 010 (B) (3) . Approved by: (2ia„ Char(s McNeely, ity M ager p1 RESOLUTION NO. 2 RESOLUTION THE CITY OF SAN BERNARDINO AUTHORIZING THE PURCHASE OF A DELL VIRTUAL SERVER ARRAY FOR THE SAN BERNARDINO 3 POLICE DEPARTMENT'S LASERFICHE DOCUMENT IMAGING SYSTEM FROM DELL COMPUTERS INC, OF ROUND ROCK, TEXAS. 4 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 5 OF SAN BERNARDINO AS FOLLOWS: 6 7 SECTION 1. After a review of products, pricing, and existing infrastructure, Dell 8 Computers Inc.,of Round Rock, Texas, is the recommended provider for the purchase of a virtual 9 server array to be used by the San Bernardino Police Department for their Laserfiche document 10 imaging system. Pursuant to San Bernardino Municipal Code 3.04.010(b)(3), the Mayor and 11 Common Council approve a selected source justification for this purchase. 12 SECTION 2. That the Mayor and Common Council authorize the purchasing manager 13 to issue a Purchase Order to Dell Computers Inc,of Round Rock Texas,for the purchase of a virtual 14 server array for the Police Department's Laserfiche document imaging system, used at the central 15 headquarters facility as outlined in Dell Computers Inc's quote number 555275110,dated September 16 1,2010,(including Dell's"Terms and Conditions of Sale","Customer Master Services Agreement" 17 and "Basic Hardware Service"), a copy of which is attached hereto and incorporated herein as 18 Exhibit "A," in an amount not to exceed $65,632.67. The Purchase Order shall read "San 19 Bernardino PD Virtual Server Array" and shall reference this Resolution No. 20 SECTION 3. The authorization to issue the purchase order referenced in Section 2 of this 21 resolution is rescinded if the purchase order is not issued within forty-five(45)days of the passage 22 of this resolution. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// �Q � \- \ c 1 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE PURCHASE OF A DELL VIRTUAL SERVER ARRAY FOR THE SAN BERNARDINO 2 POLICE DEPARTMENT'S LASERFICHE DOCUMENT IMAGING SYSTEM FROM DELL COMPUTERS INC, OF ROUND ROCK, TEXAS. 3 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 5 Common Council of the City of San Bernardino at a meeting thereof, held on the 6 day of , 2010, by the following vote, to wit: 7 Council Members: AYES NAYS ABSTAIN ABSENT 8 MARQUEZ 9 DESJARDINS 10 BRINKER 11 SHORETT 12 KELLEY 13 JOHNSON 14 MCCAMMACK 15 Rachel G. Clark, City Clerk 16 The foregoing resolution is hereby approved this day of , 2010. 17 18 Patrick J. Morris, Mayor 19 City of San Bernardino Approved as to 20 Form: 2 22 S' . PENMAN, City Att.rney 23 24 25 26 27 28 Exhibit"A" file:///C:/Documents and Settings/eckiey_mi/Local Settings/Temporary Int... DELL QUOTATION QUOTE #: 555275110 Customer#: 7793861 Contract#: WN99ABZ CustomerAgreement#: WSCA- B27160 Quote Date: 9/1/10 Date: 9/1/10 3:41:42 PM Customer Name: CITY OF SAN BERNARDINO TOTAL QUOTE AMOUNT: $64,632.67 Product Subtotal: $60,588.85 Tax: $4,043.82 Shipping &Handling: $0.00 Shipping Method: Ground Total Number of System Groups: 3 GROUP: 1 QUANTITY: 2 SYSTEM PRICE: $12,119.96 GROUP TOTAL: $24,239.92 Base Unit: R715 Chassis for Up to Six 2.5 Inch Hard Drives(224-9009) Processor: PowerEdge R715 Shipping(330-9365) Memory: 32GB Memory(16x2GB),1333MHz,Dual Ranked RDIMMs for 2/4 Processors(317-3992) Memory: Memory for 2CPU Platforms(317-8999) Video Card: 2x AMD Opteron 6136,2.4GHz,8C,4M L2/12M L3,1333Mhz Max Mem(317-3937) Video Card: PowerEdge RX15 Heatsink(330-8351) Video Card: PowerEdge RX15 Heatsink(330-8351) Hard Drive: 146GB 15K RPM Serial-Attach SCSI 6Gbps 2.5in Hotplug Hard Drive(342-0427) Hard Drive Controller: PERC H700 Integrated RAID Controller,512MB Cache(342-0371) Hard Drive Controller: H700 Integrated Cable,PowerEdge R815(330-8924) Operating System: No Operating System(420-6320) Mouse: VMware ESX 4.1 Ent Plus-3Yr Support and Upgrade Subscription Only wDwngrd to 4.0(421-1056) Mouse: VMware ESX Ent Plus Version 4.1,License Only,3Y,NFI,wogr 4.0(421-1057) Mouse: Vizioncore vEssentials(vRangerPro,vFoglightPro vReplicator)90-day evaluation(330-4185) NIC: Intel Gigabit ET NIC,Quad Port,Copper,PCIe-4(430-0657) Modem: !DRAGS Enterprise(467-8648) CD-ROM or DVD-ROM Drive: DVD ROM,SATA,INTERNAL(313-9092) Sound Card: PowerEdge RX10/X15 Bezel(313-9263) Documentation Diskette: Dell Management Console(330-5280) Documentation Diskette: Electronic System Documentation,OpenManage DVD Kit with DMC(330-9366) Additional Storage Products: 146GB 15K RPM Serial-Attach SCSI 6Gbps 2.5in Hotplug Hard Drive(342-0427) Feature RAID 1 for PERC H200 or PERC H700 Controllers(Non-Mixed Drives)(342-1391) Feature Sliding Ready Rails With Cable Management km(330-9417) Service: Dell Hardware Limited Warranty Plus On Site Service Extended Year(929-8268) Service: Dell Hardware Limited Warranty Plus On Site Service Initial Year(922-8467) Service: Mission Critical Package:4-Hour 7x24 On-Site Service with Emergency Dispatch,4 Year Extended (922-9794) Service: Mission Critical Package:4-Hour 7x24 On-Site Service with Emergency Dispatch,Initial Year (932-3340) Service: MISSION CRITICAL PACKAGE:Enhanced Services,5 Year(922-8527) Service: ProSupport for IT:7x24 HW/SW Tech Support and Assistance for Certified IT Staff,5 Year (922-9984) Service: Thank you choosing Dell ProSupport.For tech support,visit httpJ/supporl.dell.comfProSupport or call 1-800-9(989-3439) Installation: On-Site Installation Declined(900-9997) Exhibit "A" of 3 9/2/2010 4:19 PM - file:///C:/Documents and Settings/eckley_mi/Local Settings/Temporary Int... Misc: 1100 Watt Redundant Power Supply(330-9292) Misc: Power Cord,NEMA5-15P to C13,15 amp,wall plug,10 feet/3 meter(310-8509) Misc: Power Cord,NEMA5-15P to C13,15 amp,wall plug,10 feet/3 meter(310-8509) GROUP: 2 QUANTITY: 1 SYSTEM PRICE: $30,118.85 GROUP TOTAL: $30,118.85 Base Unit: Dell EqualLogic PS4000XV,HighPerformance,15K SAS Drives(224-6038) Processor: 7.2 Terabyte capacity,16 X 450GB,15K SAS,Dual Controller(341-9446) Factory Installed Software: Asynchronous Replication(468-7110) Software Disk Two: Snaps/Clones with Integration for MS SQL,Exchange,Hyper V and VMware(468-7155) Feature SAN HQ multi group monitoring software(468-7156) Service: Dell Hardware Limited Warranty Extended Year(994-7578) Service: Dell Hardware Limited Warranty Initial Year(994-7617) Service: Mission Critical Package:4-Hour 7x24 On-Site Service with Emergency Dispatch,4 Year Extended (989-3844) Service: Mission Critical Package:4-Hour 7x24 On-Site Service with Emergency Dispatch,Initial Year (994-4340) Service: EqualLogic Advanced Software Warranty and Service,7x24 Access,5 Year(994-7628) Service: MISSION CRITICAL PACKAGE:Enhanced Services,5 Year(994-7737) Service: ProSupport for IT:7x24 HW I SW Tech Support and Assistance for Certified IT Staff,5 Year (989-3964) Service: Thank you choosing Dell ProSupport.For tech support,visit http://support.dell.com/ProSupport or call 1-800-9(989-3439) Installation: EDT Remote Implementation Design of an EqualLogic Storage Array(994-8897) Installation: Remote Implementation of a Dell EqualLogic Array(to schedule,email US Remote Services@dell.com)(990-0708) Installation: Installation of a Dell Server,Storage or Peripheral Device,EqualLogic MWT(992-2539) Support: Proactive Maintenance Service Declined(926-2979) GROUP: 3 QUANTITY: 2 SYSTEM PRICE: $2,890.55 GROUP TOTAL: $5,781.10 Base Unit: PowerConnect 6248,48 GbE PortManaged Switch,10GbE and Stacking Capable(222-6714) Service: Dell Hardware Warranty,Extended Years),(985-6038) Service: Dell Hardware Warranty InitialYR(985-6027) Service: Mission Critical Package:4-Hour 7x24 On-Site Service with Emergency Dispatch,4 Year Extended (986-3994) Service: Mission Critical Package:4-Hour 7x24 On-Site Service with Emergency Dispatch,Initial Year (990-5020) Service: MISSION CRITICAL PACKAGE:Enhanced Services,5 Year(991-8357) Service: ProSupport for IT:7x24 HW/SW Tech Support and Assistance for Certified IT Staff,5 Year (986-4184) Service: Thank you choosing Dell ProSupport.For tech support,visit http://support.dell.com/ProSupport or call 1-800-9(989-3439) Installation: On-Site Installation Declined(950-8997) SOFTWARE &ACCESSORIES Product Quantity Unit Price Total Stacking Module,48Gbps Includes 1m Stacking Cable Customer Kit(320-5171) 2 $224.49 $448.98 Number of S &A Items: 1 S&A Total Amount: $448.98 of 3 9/2/2010 4:19 PM file:///C:/Documents and Settings/eckley_mi/Local Settings/Temporary Int... 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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/assetrecoverv. of 3 9/2/2010 4:19 PM Dell's Onlihe Policies I Dell - http://www.dell.com/content/topics/global.aspx/policy/en/policy?c=us&1... United States I Buy Online or Call 1-800-WWW-DELL Premier Login I Hello,Michael(rot Michael?) 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THE LIMITED WARRANTIES APPLICABLE TO DELL-BRANDED HARDWARE PRODUCT CAN BE FOUND AT wwvi.dell.corrfwarranty 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 of 9 1/26/2010 3:44 PM Dell's Online Policies I Dell http://www.dell.com/content/topics/global.aspx/policy/en/policy?c=us&l... 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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 governing resale of Product by third parties and transactions outside the United States.Terms and conditions for resale are located at:www.dell.com/terms /#reselier. 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 of 9 1/26/2010 3:44 PM Dell's Online Policies I Dell http://www.dell.com/content/topics/global.aspx/policy/en/policy?c=us&l... • 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, induding 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 DelI.in any dispute,NEITHER CUSTOMER NOR DELL SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS,OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.The individual (non-lass)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(FM).My award of the arbitrator(s)shall be final and binding on each of the parties,and may be entered as a judgment in any court of competent jurisdiction.Dell will be responsible for paying any individual consumer's arbitration fees.If any customer prevails on any daim that affords 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: 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.jamsuir.mxn. (REV 110109) Retail Purchaser End User Agreement(Applies to all purchases from retail sellers) PLEASE READ THIS DOCUMENT CAREFULLY!IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS,AS WELL AS LIMITATIONS AND EXCLUSIONS 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 and/or services and support(Product")sold in the United States by Dell,including its affiliates or subsidiaries.BY PURCHASING AND USING THE PRODUCT,YOU("CUSTOMER") AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.IF YOU DO NOT AGREE,DO NOT USE THE PRODUCT,AND RETURN THE PRODUCT TO YOUR PLACE OF PURCHASE (subject to its return policy). 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.convwaranty 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 hdp://www.dell.corrdregmter.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 terms.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 of 9 1/26/2010 3:44 PM Dell's Online Policies I Dell http://www.dell.com/content/topics/global.aspx/policy/en/policy?c=us&l... 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,corniservicecontracts 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-to-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 www,dell.comiservicecontracts 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.com/terms/#reseller. 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.ln 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-dass)nature of this dispute provision goes to the essence of the partles'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(FM).My 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.If any Customer prevails on any claim that affords the of 9 1/26/2010 3:44 PM Dell's Online Policies I Dell http://www.dell.com/content/topics/global.aspx/policy/en/policy?c=us&l... 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 MA 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.jemsadr.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 Agreement")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'tell 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 determine 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 MMES 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 of 9 1/26/2010 3:44 PM Dell's Online Policies J Dell http://www.dell.com/content/topics/global.aspx/policy/en/policy?c=us&l... WWW.DELL.COM/WARRANTY 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 W W W.DELL.COM/SERVICECONT RACTS OR A SEPARATELY SIGNED STATEMENT OF WORK.DELL DISCLAIMS ALL 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.ALL SUCH PRODUCTS AND SERVICES ARE PROVIDED BY DELL AS IS."NO REVISION IN LIMITED WARRANTIES WILL AFFECT PRODUCTS OR SERVICES ALREADY 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 SHALL 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,ADDITIONAL THIRD-PARTY TERMS AND CONDITIONS MAY APPLY.YOU SHALL BE SOLELY RESPONSIBLE FOR ANY AND ALL 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.My 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 INCIDENTAL,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 SHALL 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,rare 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,employees,subsidiaries, affiliates,parents,successors and assigns,from any daim,demand,cause of action,debt, or liability(induding 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,induding 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.Indemnified 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 induding 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,"Deli")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 e ssts,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 i of 9 1/26/2010 3:44 PM Dell's Online Policies I Dell http://www.dell.com/content/topics/global.aspx/policy/en/policy?c=us&l... 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 indude 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 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 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 CANADIAN ENTITIES,THE PROVINCE OF ONTARIO),WITHOUT REGARD TO CONFLICTS-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 and/or 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.If 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,induding but not tinted to any life-sustaining,chemical,or mission-critical use.DELL WILL NOT HAVE ANY 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,induding 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.If 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 mama que tour les documents,y compris tout avis,qui s'y rattachent,soient rediges 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. Termination. 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 Agreement may be terminated by written notice of termination by either party if the other party breaches any of its obligations under this Agreement and the breach is not substantially cured within 30 days of receipt of notice of such breach(or,if an effort to cure is being diligently pursued,within such time as is reasonably necessary to complete the 7 of 9 1/26/2010 3:44 PM Dell's Online Policies I Dell http://www.dell.com/content/topics/global.aspx/policy/en/policy?c=us&l... cure). 20. 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. 21. 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 22. 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"). 23. Notices. To give notice under this Agreement,your notice must be in writing and sent by postage prepaid first-class mail,receipted courier service,facsimile telecommunication or electronic mail to the address below.Notice to you may be sent to you by postage prepaid first-dass mail,receipted courier service,facsimile telecommunication or electronic mail to the address and contact information provided by you to Dell in connection with this Agreement Dell Marketing L.P. Attn:Mgr Contracts One Dell Way Round Rock,TX 78682 24. 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.if you breach the provisions of this Agreement or the terms of any offer,Dell may charge or re-debit your account or credit card the full list price for your purchase(in lieu of a discounted or special price included in the offer).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. 25. 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 carder 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. 26. Title;Insurance. Title to Products(except software)passes from Dell to you on shipment from Dell's facility or third-party manufacturer'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). 27. 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.tiell.corrYAUP. 28. No Returns. All sales are final.Neither you nor your customers may return Products to Dell.if 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. 29. Order Support;Other. If 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 www.support.dell.com/DellCareAndox.aspx(or in Canada at www.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 wvw.support.dell.com,which process may change from time to time.It is your responsibility to ensure compliance with the latest version of the posted process.You acknowledge that your failure to properly transfer the asset/service identification number will result in the End-User's inability to receive services from Dell. 30. 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 what is described in a specification sheet or catalog are possible. 31. 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. 3 of 9 1/26/2010 3:44 PM )ell's Online Policies I Dell http://www.dell.com/content/topics/global.aspx/policy/en/policy?c=us&l... 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.comtservicecontracts(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 directly 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 minimum 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.At Dell's request,you will promptly discontinue further sales and suspend or terminate End-User'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 Deli's Customer Master Services Agreement and any and all applicable Service Descriptions set forth at www.dell.comriservicecontracts.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. If 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.kxm'servicecontracis.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-User'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 disdosure 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) ga^Printable Version Shop Support Community About Dell My Account Solutions Home Users Join the Discussion Investor Relations Sign-in/Register Services Small Businesses Share Your Ideas News Order Status Systems Enterprise IT Read our Blog Company Information Software&Peripherals Ratings&Reviews Corporate Responsibility Community Home All About Dell Laptops I Desktops I Business Laptops I Business Desktops I Workstations I Servers I Storage I Monitors I Printers I LCD TVs I Electronics ®2010 Dell I About Dell I Terms of Sale I Unresohed Issues I Privacy I About Our Ads I Dell Recycling I Contact I Site Map I Feedback Large Text AT I AU I BE I BR I CA I CH I CL I CN I CO I DE I DK I ES I FR I FIK I IE I IN I IT I JP I KR I ME I MX I MY NL I ND I PA I PR I RU I SE I SG I UK I VE I ALL snDWW4 of 9 1/26/2010 3:44 PM I I / 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 Page 1 of 4 07/30/2009 Dom;. 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 Deli'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 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 DELIVERABLES,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 Page 3 of 4 07/30/2009 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.com/CMSA; 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 07/30/2009 DLI Service Description 4 sib-Har xx m „m :Aid �4;CE � lyy�'9�' �y T 8aak.. ��i,�M..� .�. _3.� .1 mt wi:,� .�..i;,� �.., x„�u «sS.. ,�,.. 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 OptiplexT"', Latitude '', Dell Precision TM VostroT", Dell Printers, PowerEdgeTM, PowerEdge SCTM, PowerVaultTM', PowerConnectT"', Dell EqualLogicT"" and Dell EMC Storage Systems T""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 ©2008-2009 Dell Inc.All Rights Reserved Basic Hardware Service Description v2.1 04/13/2009 Page 1 of 7 • 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. Contacting 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.su000rt.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.supoort.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. ©2008-2009 Dell Inc.All Rights Reserved Basic Hardware Service Description v2.1 04/13/2009 Page 2 of 7 • 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 ©2008-2009 Dell Inc.All Rights Reserved Basic Hardware Service Description v2.1 04/13/2009 Page 3 of 7 • DLLTM 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 received/dispatches made after 5:00 pm local time will require an additional day for the Technician to arrive. • In the event that additional parts/resources are required once the Onsite Technician is at the Customer's site, work may be temporarily suspended.Work will resume when those additional parts/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 replace/ 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://www.dell.com/ProSu000rt/EQLoricelist ©2008-2009 Dell Inc.All Rights Reserved Basic Hardware Service Description v2.1 04/13/2009 Page 4 of 7 Hardware Coverage Limitations: • SATA hard drives in PowerEdge'TM, PowerEdge SCT"' and PowerVaultT"" 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 90-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 90-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/warranty 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 vendors/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, tomados, 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. ©2008-2009 Dell Inc.All Rights Reserved Basic Hardware Service Description v2.1 04/13/2009 Page 5 of 7 D4LL' • 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 Dell I EMC Storage or EqualLogic'*', or as specified on www.suoport.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. ©2008-2009 Dell Inc.All Rights Reserved Basic Hardware Service Description v2.1 04/13/2009 Page 6 of 7 DLL 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-serviceedell.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'TM,PowerEdge SCT"',PowerVaultT",PowerConnecP'',Dell EqualLogicTM and Dell I EMC Storage Systems.'"are trademarks of Dell Inc. ®2008-2009 Dell Inc.All Rights Reserved Basic Hardware Service Description v2.1 04/13/2009 Page 7 of 7