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 the Dell entity identified on Customer's quote or invoice. Dell and Customer agree to the following terms and conditions:
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. This 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 this MSA and a Service Agreement or Dell's standard Terms & Conditions of Sale, Service and Technical Support ("T's & C's"), the terms of these documents will be interpreted according to the following order of precedence: (1) Service Agreement (2) this MSA and (3) the T's & C's.
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. Unless otherwise stated in a written quote, all quotes provided by Dell shall be valid for seven (7) days from the quote date after which they shall become null and void.
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. 2.4.1
Unless stated otherwise in the Service Agreement the Services will be invoiced on a monthly basis. Details of actual charges or charge rates will be specified in each relevant Service Agreement. Where there are a number of Services being carried out for Customer an invoice will be issued for each Service unless agreed otherwise with Customer. The due date for payment by Customer shall be specified in the applicable invoice and where unspecified, Customer's payment terms will be net thirty (30) days from the date of invoice and shall be subject to continuing credit approval by Dell. Customer will pay Dell in the currency of the country in which the Dell contracting entity is domiciled, as invoiced by Dell or Dell Affiliate, unless otherwise agreed between the parties. Additional charges may apply if the Customer requests services that are performed outside contracted hours or are beyond the normal coverage for the particular service.
2.4.2 Where Dell and Customer agree that Customer shall have a right to test those Services which are specified in a Service Agreement as being subject to testing in accordance with the tests set forth in any such Service Agreement ("Acceptance Tests", "Acceptance Testing" and "Acceptance Criteria" as applicable), Customer shall complete the Acceptance Tests at the time specified in the Service Agreement or, if no such time is specified in the Service Agreement, within seven (7) days of notification from Dell that such Services are ready for testing. Customer's failure to test or notify Dell in writing of non-acceptance shall constitute Customer's binding acceptance of such Services. Where payment for some or all of the Services is linked to Acceptance Testing payment terms shall be set out in the Service Agreement. For the avoidance of doubt if there are no specific provisions for linking payment to Acceptance Testing then Dell shall have the right to invoice for the Services in accordance with Section 2.4.1 above.
2.5 Nonpayment. For invoices not paid by the due date, Dell reserves the right to charge Customer interest for late payment of one and a half percent (1.5%) per month applied against overdue amounts, or the maximum rate permitted by law, whichever is less. In addition, Dell may, 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 collection. 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.
3. Term & Renewal
Each Service Agreement will begin on the earlier of the date on the Customer's invoice with Dell, the date on which Service delivery begins or the date on which Customer's use of the Service begins ("Effective Date") and continue for the 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.
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. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LOCAL LAW, 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 CUSTOMER'S RESPONSIBILITY TO BACKUP DATA ON CUSTOMER'S SYSTEM(S). CUSTOMER UNDERSTANDS AND AGREES THAT DELL MAY ASSIST CUSTOMER WITH BACKUP, RECOVERY, OR SIMILAR SERVICES UPON CUSTOMER'S REQUEST. EXCEPT AS AGREED TO IN WRITING BETWEEN CUSTOMER AND DELL IN A SPECIFIC SERVICE AGREEMENT, THE BACKUP, RECOVERY OR SIMILAR ASSISTANCE IS PROVIDED IN DELL'S DISCRETION AND WITHOUT ANY GUARANTEE OR WARRANTY OF ANY KIND. CUSTOMER ACKNOWLEDGES THAT DELL'S PERFORMANCE AND DELIVERY OF THE SERVICES ARE CONTINGENT UPON: (A) CUSTOMER PROVIDING SAFE AND HAZARD-FREE ACCESS TO ITS PERSONNEL, FACILITIES, EQUIPMENT, HARDWARE, SOFTWARE, NETWORK AND INFORMATION FOR SERVICES TO BE PERFORMED AT CUSTOMER'S LOCATION, AND (B) CUSTOMER'S TIMELY DECISION-MAKING, NOTIFICATION OF RELEVANT ISSUES OR INFORMATION AND GRANTING OF APPROVALS OR PERMISSIONS.
CUSTOMER WILL PROMPTLY OBTAIN AND PROVIDE TO DELL ANY REQUIRED LICENSES, APPROVALS OR CONSENTS NECESSARY FOR DELL'S PERFORMANCE OF THE SERVICES. FAILURE TO CARRY OUT ANY CUSTOMER RESPONSIBILITY MAY DELAY OR AFFECT A SERVICE LEVEL SET OUT ANY SERVICE AGREEMENT.
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 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 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LOCAL LAW, DELL (INCLUDING ITS AFFILIATES, SUBCONTRACTORS, 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. DELL DOES NOT LIMIT ITS LIABILITY FOR FRAUD, PERSONAL INJURY OR DEATH ARISING FROM ITS NEGLIGENCE OR FOR FRAUD OR ANY OTHER LOSS THAT CANNOT BE LIMITED UNDER APPLICABLE LAW AND THIS SECTION DOES NOT APPLY TO SUCH 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.
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 MSA 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 Service or Deliverable that were not approved by 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 accepts responsibility for and shall defend, indemnify and hold Dell harmless from, any liability, damages, 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, (B) breach of Section 6, Proprietary Rights above, or (C) 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.