14. EXPORT. If any Products or Services are resold in violation of the restrictions in this Section 14, Dell is not obligated to provide any warranty service or technical support. Nothing in this Section 14 shall be construed as authorization by Dell for you to market or resell Products and Services in violation of Section 1.B.
A. You acknowledge that the Products and Services provided under this Agreement are subject to the customs and export control laws and regulations of the United States , and may also be subject to the customs or export control laws and regulations of the country(ies) in which the Products or Services are purchased, provided, manufactured, incorporated, transferred, used or received. You agree to abide by those laws and regulations, including any requirements to obtain export licenses or other government authorizations. The Products and Services may not be exported, re-exported, sold, leased or otherwise transferred to restricted end-users (including those on the U.S. Department of Commerce, Bureau of Industry and Security “Entity List,” the U. S. Department of the Treasury, Office of Foreign Assets Control “Specially Designated Nationals List,” and other U.S. government lists of denied parties) or to countries subject to a U.S. export embargo (currently Cuba, Iran, North Korea, Sudan, and Syria). In addition, the Products and Services may not be exported, re-exported, sold, leased or otherwise transferred to, or utilized by, an end-user engaged in any activities related to weapons of mass destruction, including any activities related to the design, development, production or use of (a) nuclear weapons, materials, or facilities, (b) missiles or the support of missile projects, or (c) chemical or biological weapons. You agree to apply the requirements of Section 14.A. to any agreement you enter with any party for the resale or distribution of the Products or Services provided under this Agreement.
B. You represent that any software provided by you and installed on or used as part of the Products or Services contains no encryption or, to the extent that it contains encryption, such software is authorized for export without a license or that you have obtained any export licenses as may be necessary. Dell may require export certifications from you concerning the export control classification and licensing status of any software provided by you .
C. You are solely responsible for obtaining any necessary licenses or other authorizations relating to the export of the Products and Services provided under this Agreement, and you are responsible for ensuring compliance with the requirements of any such licenses or other authorizations. Dell's acceptance of any order for any Products or Services is contingent upon the issuance of any applicable export license required by the U.S. Government or any other applicable national government; Dell is not liable for delays or failure to deliver any Products or Services resulting from your failure to obtain such license or to provide certification to Dell that any necessary license has been obtained.
D. You shall indemnify, defend, and hold Dell harmless from any claims, causes of action, or legal proceedings (including any investigations or proceedings by a governmental agency or entity) arising out of or in connection with your inaccurate representation regarding the existence of an export license or your violation or alleged violation of any applicable customs or export control laws or regulations.
E. If an End-User exports or acquires Products for export, you will use commercially reasonable efforts to ensure that the End-User complies with all applicable customs and export control laws and regulations. If any Dell-branded hardware Product is moved outside of the United States or Canada, as applicable, to a geographic location in which such Product’s warranty support service contract (“Warranty Support Service”) is not available, or is not available at the same price as you paid to Dell for the Warranty Support Service, the End-User may not have coverage or may incur an additional charge to maintain the same categories of support coverage at the new location. If you or the End-User choose not to pay such additional charges, in Dell’s sole discretion the Warranty Support Service may be automatically changed to categories of support which are available at such price or a lesser price in such new location with no refund available. You shall inform all End-Users of the foregoing limitations prior to or at the time an End-User places its order with you for any Warranty Support Services for any Dell-branded hardware Products.
15. DISPUTE RESOLUTION - ARBITRATION. YOU AND DELL ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR, WHERE APPLICABLE, TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
A. The parties will attempt to resolve any claim, dispute, or controversy (whether in contract, tort or otherwise, whether pre-existing, present or future, and including statutory, consumer protection, common law, intentional tort and equitable claims) between you and Dell Parties arising from or relating to this Agreement or any Service Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from such written agreements (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), the Dell PartnerDirect program, the reseller or channel partner program, Dell’s advertising, or any related purchase (each a "Dispute") through face-to-face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator .
B. If the parties are unable to resolve the Dispute through negotiation or mediation within a reasonable time after written notice from one party to the other that a Dispute exists, the Dispute SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION administered by the International Institute for Conflict Prevention and Resolution (CPR), the American Arbitration Association (AAA), or JAMS (for Canadian resellers, arbitration will be at ADR Chambers pursuant to the general ADR Chambers Rules for Arbitration located at www.adrchambers.com). Arbitration proceedings shall be governed by this Dispute Resolution – Arbitration section and the applicable procedures of the selected arbitration administrator in effect at the time the claim is filed. The arbitration will be limited solely to the individual dispute or controversy between you and Dell .
C. You agree to arbitration on an individual basis. Where enforceable, NEITHER YOU NOR DELL SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER RESELLERS OR PARTNERS, OR ARBITRATE ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER, OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration).
D. The arbitration hearing shall take place in Austin, Texas (unless the arbitrator orders otherwise), and will be governed by the United States Federal Arbitration Act to the exclusion of any inconsistent state laws. The arbitrator shall base its award on the terms of any written Agreement (s), and will follow the law and judicial precedents that a United States District Judge sitting in the Western District of Texas would apply to the Dispute. (For Canadian entities: the arbitration hearing shall take place in Toronto, Ontario (unless the arbitrator orders otherwise), and will be governed by the Arbitration Act of Ontario and the applicable laws of Ontario and Canada ). The arbitrator shall render its award in writing and will include the findings of fact and conclusion of law upon which the award is based. Judgment upon the arbitration award may be entered by any court of competent jurisdiction. For information on CPR, call (212) 949-6490; on AAA, call (800) 778-7879; on JAMS, call (800) 352-5267. Notwithstanding the foregoing, either party will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, although the merits of the underlying Dispute will be resolved in accordance with this Dispute Resolution – Arbitration section .
16. GOVERNING LAW. You agree that this Agreement, any purchase hereunder and any Dispute will be governed by the laws of the State of Texas (or for Canadian entities, the Province of Ontario), without regard to its conflict-of-laws rules or to the United Nations Convention on Contracts for the International Sale of Goods.
A. Headings, Interpretation and Language. The section headings used herein are for convenience and reference only and are not to be considered in construing or interpreting this Agreement. All references herein to “Sections” will be deemed references to sections of this Agreement. The words “include” and “including”, and other variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation”. The parties confirm that it is their wish that this Agreement, as well as other documents relating to this Agreement, including all notices, have been and will be drawn up in the English language only. Les parties aux présentes confirment leur volonté que cette convention, de même que tous les documents, y compris tout avis, qui s’y rattachent, soient rédiges en langue anglaise.
B. Independent Contractors. No provision of this Agreement will be deemed to create an association, trust, partnership, joint venture or other entity or similar legal relationship between you and Dell, or impose a trust, partnership, or fiduciary duty, obligation, or liability on or with respect to such entities. You and Dell are independent contractors. Neither party will make any representations or warranties, or assume any obligations, on the other party’s behalf. Neither party is or will claim to be a legal representative, franchisee, agent or employee of the other party. Each party is responsible for the direction and compensation, and is liable for the actions, of its employees and subcontractors.
C. Audit and Record-Keeping. You will maintain accurate and legible accounting books and records for a period of three years concerning the sale, licensing or use of Products or Services. You will cooperate with Dell and will grant to Dell, or its designee, access to and copies of, any information requested by Dell to verify compliance with the terms of this Agreement.
D. U.S. Government End Users. The software and documentation provided with Products and Services are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end-users acquire the software and documentation with only those rights set forth herein. Contractor/manufacturer of Dell software and Dell Products is Dell Products L.P., One Dell Way, Round Rock, Texas 78682.
E. No Third Party Beneficiaries. Except as otherwise expressly provided herein, nothing in this Agreement is intended to, or will be deemed or construed to, create any rights or remedies in any third party.
F. Limitation Period. Neither party may institute any action in any form arising out of this Agreement more than two (2) years after the cause of action has arisen, or in the case of non-payment, more than two (2) years from the date of last payment.
G. Assignment; Subcontracting. You shall not assign this Agreement, in whole or in part, whether by operation of law, merger or stock or asset sale, or otherwise, without the prior written consent of Dell. Any attempt to assign this Agreement without Dell’s written consent will render the purported assignment null and void. Dell has the right to assign, subcontract or delegate in whole or in part this Agreement, or any rights, duties, obligations or liabilities under this Agreement, by operation of law or otherwise, provided that Dell will remain responsible for the performance of Services under this Agreement.
H. Force Majeure. Dell shall not be liable to you for any delays or failure to perform any of its obligations under this Agreement during any period in which such performance is delayed or prevented by circumstances beyond its reasonable control including fire, flood, war, embargo, strike, riot or the intervention of any governmental authority.
I. Waiver. Failure by Dell to enforce any provision of this Agreement will not operate or be construed as a waiver of any future enforcement of that or any other provision of this Agreement. No waiver will be effective against Dell unless in writing and signed by an authorized representative of Dell.
J. Severability. If any provision of this Agreement is declared or found to be illegal, invalid or unenforceable, then such provision will be stricken or modified to the extent necessary to make it legal, valid, and enforceable while preserving the parties’ original intent to the maximum extent possible. The remaining provisions of this Agreement will remain in full force and will not be terminated.
K. Entire Agreement. This Agreement (including all online terms referenced herein) constitutes the entire integrated agreement between you and Dell regarding its subject matter, and supersedes all prior or contemporaneous, written or oral understandings, communications or agreements between you and Dell regarding such subject matter. This Agreement may not be altered, supplemented or amended by you via the use of any other document(s) unless otherwise agreed to in a separate written agreement signed by an authorized representative of Dell. Any use of your pre-printed forms, such as purchase orders, are for convenience only, and any pre-printed terms set forth therein that are in addition to, inconsistent or in conflict with the terms of this Agreement shall be given no force or effect.
L. Agreement Updates. Dell reserves the right to update this Agreement (including all applicable terms referenced herein) at any time, effective upon posting an updated version to the Dell website, in the case of (a) the Reseller Terms of Sale, available at www.dell.com/resellerterms, (b) the U.S. CTS, available at www.dell.com/cts, (c) the CSA, available at www.dell.com/cloudterms, (d) the Canada CTS, available at www.dell.ca/terms, (e) Services Descriptions, available at www.dell.com/servicecontracts, and (f) the Dell EULA, available at www.dell.com/softwarelicenseagreement. You shall monitor the revision date/version number, and any change to its posted date/version number will be deemed notice to you that the terms have been updated. However, subject to Section 10.C., your rights and obligations with respect to any particular Products or Services will be as provided in the version of this Agreement executed by you or available to you at the time of your purchase of such Products or Services or, when applicable, at the time of renewal of any Services or software license.
M. Notices. Any notice to Dell relating to this Agreement must be in writing and sent by postage prepaid first-class mail or receipted courier service to the address below or to such other address (including facsimile or e-mail) as specified by Dell in writing, and will be effective upon receipt. Notice from Dell may be sent to you by postage prepaid first-class mail, receipted courier service, facsimile telecommunication or electronic mail to the address and contact information provided by you to Dell in connection with this Agreement.
Dell Marketing L.P. (U.S.) Dell Canada Inc. (Canada)
Attention: Contracts Manager Attention: Contracts Manager
One Dell Way 155 Gordon Baker Rd. Suite 501
Round Rock, TX 78682 North York, ON M2H3N5
18. SUPPLEMENTAL TERMS FOR OEM CUSTOMERS ONLY. The following terms in this Section 18 will apply to you only if you are an OEM Customer (as defined below). To the extent there is a conflict, the terms of this Section 18 will take precedence and govern over the terms in Sections 1-17, including any terms referenced therein.
A. Definitions. “OEM Customer” means you in your capacity as an original equipment manufacturer that is purchasing Dell Products and Services from the Dell OEM Solutions (or its successor) business group for an OEM project. In general, an OEM Customer (a) embeds or bundles such Dell Products in or with OEM Customer’s proprietary hardware, software or other intellectual property, resulting in a specialized system or solution with industry or task-specific functionality (such system or solution an “OEM Solution”) and (b) resells such OEM Solution under OEM Customer’s own brand. With respect to OEM Customers, the term (1) “Dell Products” includes Dell Products that are provided without Dell branding (i.e. unbranded OEM-ready system), and ( 2 ) “End-User” means any entity purchasing an OEM Solution for its own end-use and not for reselling, distributing or sub-licensing to others.
B. Appointment. Notwithstanding Section 1.B., and subject to the other terms and conditions of this Agreement and your compliance therewith, you (whether directly or through distributors, resellers, or sales agents in your distribution channel (collectively, “OEM Representatives”)) may resell certain Dell Products to End-Users only as part of your OEM Solution and after you have added value to the Dell Product through the addition of hardware, software or services. You may use OEM Representatives to resell OEM Solutions, provided that the agreement between you and such OEM Representatives is as comprehensive and as restrictive as the terms of this Agreement. You shall include in all agreements selling, leasing, or transferring ownership of Dell Products or selling Services, a limitation of liability provision similar to Section 13, including a disclaimer as to Dell’s liability for incidental, consequential, special, indirect, exemplary, and punitive damages; loss of revenue, income, profit, or savings; lost or corrupted data or software; and loss of use of products or services. Dell’s pricing and discounts offered to you are considered Dell’s confidential information, and you shall not show such pricing or discounts as a separate line item to any OEM Representatives or End-Users or otherwise disclose such information to any third party without Dell’s prior written permission.
C. Additional Fees and Taxes. Dell’s prices do not include, and you are responsible for paying, all import or export fees, duties, tariffs, insurance or other charges associated with exporting or importing any Products from Dell’s or its contractor’s manufacturing facility.
D. Product Labeling. Except as otherwise agreed between you and Dell in a Service Agreement, you must resell all Dell Products with their original markings. In no event shall you (or any others on your behalf) remove or change safety or agency certification labels or other manufacturers’ labels on any Products without the appropriate agency or manufacturer written approval.
E. Customization Services. If your order includes Services (including custom factory integration (CFI) services and custom fulfillment services (CFS) services) to customize the Dell Product portion of your OEM Solution, such Services will be performed subject to (a) the U.S. CTS (if your order is placed in the U.S.) or to the Canada CTS (if you order is placed in Canada) and (b) all other applicable Service Agreements. You are solely responsible for (1) determining technical specifications for such customized project; (2) ensuring that those technical specifications are properly documented in the applicable Service Agreement; (3) testing of prototype(s) to verify that the prototype(s) meet applicable specifications and that all hardware and software are compatible, before you place any production order for the customized configuration; and (4) obtaining all necessary licenses and other rights for Dell to perform the Service, including all rights to copy, install, modify and distribute any Third Party Products and any software or hardware provided or requested by you. Regardless of any tests that may be performed by Dell, Dell is not responsible for the suitability of the customized configuration, for any effect any Dell Services may have on any warranty or service contract for Third Party Products, for the compatibility of any Third Party Products or your software or hardware with any of the Dell Products, or for any liability or damage arising from the installation or customization of a configuration in accordance with a Service Agreement or your instructions. Any additional regulatory and safety compliance required due to the integration of non-Dell hardware or software into the configurations shall be your sole responsibility. To the extent you require Dell to affix or label any non-Dell name, logo, trademark, artwork or images on any of the Dell Products, you hereby grant Dell a non-exclusive, royalty-free, fully paid-up, transferable and sub-licensable license to use, reproduce and distribute such name, logo, trademark, artwork and images solely in connection with such purpose and you shall enter into a trademark license agreement if requested by Dell.
F. Unique Materials. Dell may purchase unique parts, end-of-life products, and long lead-time components (collectively “Unique Materials”) to support the manufacture of customized configurations for you. If (i) the Unique Materials are not used within ninety (90) days because of a change in forecast, reschedule or cancellation of any purchase order, or other reasons, and (ii) Dell is unable to resell such Unique Materials to others at a reasonable price or unable to cancel its order for the Unique Materials, then in its sole discretion Dell may invoice and deliver the Unique Materials to you. You will pay Dell for the Unique Materials and any stocking fees Dell may incur as a result of holding such Unique Materials in its inventory.
G. Warranty Exclusions. Dell’s express limited warranty does not cover: (a) any components that are added to any Dell Products after such products are shipped from Dell or that are added through Services (e.g., custom factory integration services or custom fulfillment services) at your request; (b) any problems caused by such components or any Third Party Products; (c) any repairs necessitated by any software problems or as a result of alteration or repair by anyone other than Dell or its representatives; or (d) any damage or problems due to any external causes, including accident, abuse, misuse, neglect, problems with electrical power, acts of God, usage not in accordance with product instructions, or normal wear and tear.
H. Regulatory Compliance. You shall ensure the Dell Products remain compliant with regulatory and agency approvals after such products are shipped from Dell.
(a) If you (or others on your behalf) make any modifications or additions to the Dell Product (including adding logos or markings) after the Dell Products are shipped from Dell, you are solely responsible for obtaining all necessary regulatory approvals and other authorizations for each country where you or your OEM Representatives will sell or ship such products.
(b) The regulatory compliance marks on Dell Products may vary, depending on where such products are manufactured and sold to you. You understand that the Dell Products sold from the United States generally contain regulatory compliance marks that are required to ship into the United States, Canada, and European Union (EU) countries. Additional regulatory compliance marks are required to ship to other locations. You are solely responsible for obtaining any such additional marks that may be required.
(c) You shall ensure that each OEM Solution complies with all regulatory requirements for its target market and locations and is properly labeled.
I.Independent Efforts. Nothing in this Agreement precludes Dell from independently developing, manufacturing, marketing or selling any products or services in competition with those offered by OEM Customer, provided that OEM Customer’s confidential information is not used by Dell.