Commercial Terms of Sale
Unless otherwise agreed to by Dell in writing, the Commercial Terms of Sale apply to direct commercial purchasers (including Small, Medium and Large Business, and Government and Public sector customers) of Dell hardware, software and services and commercial end-users who purchase through a reseller. By placing your order, you accept and are bound to the Commercial Terms of Sale below:
These Commercial Terms of Sale (the “Agreement”), made between you (“you” or “Customer”) and Dell, govern your purchase and use of Products and Services from Dell. “Dell” means Dell Marketing L.P. or the Dell Affiliate identified on the order acknowledgment, invoice, quotation, or other Dell documentation. “Dell Affiliate” means a direct or indirect subsidiary of Dell Inc. located in the United States. This Agreement is effective upon the first to occur of (i) your issuance of a purchase order to Dell, (ii) your acceptance of these terms in writing or by “click through” assent, or (iii) if you purchased through a reseller, your agreement with the reseller that references this Agreement. The Products and Services are solely for your internal use and may not be resold. If you purchased through a reseller or distributor, final prices and terms of sale will be as agreed between you and the reseller or distributor; however, this Agreement applies to your possession and use of Products and Services.
A. Definitions. “Hardware” means computer hardware, related devices and other accessories including all embedded components (excluding Software). “Software” means any software, library, utility, tool, or other computer or program code, in object (binary) form, as well as the related media, printed materials, online and electronic documentation, including copies. Software includes, without limitation, stand-alone software, software provided in connection with Hardware or Services, software locally installed on Customer’s systems and software accessed by Customer through the Internet or other remote means. “Products” means Hardware, Software, or both. “Services” means any and all services and Deliverables provided by Dell. “Deliverables” means the tangible materials, including reports, studies, base cases, drawings, findings, software, manuals, procedures, and recommendations that Dell delivers to you under a Statement of Work. “Third-Party Products” means any products, software, or services that are manufactured, created or performed by a party other than Dell.
B. Additional Agreements. This Agreement, together with the Service Agreements and Software Agreements, form a legally binding contract between you and Dell. In the event of a conflict between these agreements, their terms will take precedence in the following order: (1) the applicable Service Agreement or Software Agreement; and (2) this Agreement.
2. Term; Auto-Renewal
This Agreement will continue until all Services and applicable Product warranties or licenses have expired or been terminated. Each Service and license to Software will continue for the term stated in the Service Agreement or the Software Agreement, unless such agreement is terminated. If you purchased directly from Dell, Dell may propose to renew Hardware Service (as defined below) or a non-perpetual Software license by sending you an invoice or, subject to prior notification, continuing to perform the Hardware Service or make the Software available to you. You may (where permitted by law) agree to renewal of the Hardware Service and Software license by paying the invoice by its due date or by continuing to use the Hardware Service or Software. If you purchased through a reseller, the payment terms for renewal for the Hardware Service or Software will be as agreed between you and the reseller.
3. Quotes, Ordering, and Payment
Except for subsection B, this Section applies only to purchases you make directly from Dell.
A. Quotes and Orders. “Order” means your order of Products or Services, either through dell.com or other online process, submitting a purchase order that references a Dell quote, or by executing a Dell order form. Your Order is subject to acceptance by Dell in its sole discretion. Acceptance of one Order is independent and separate from acceptance or rejection of any other Order. Quoted prices are effective until the expiration date of the quote, but may change due to shortages in materials or resources, increases in the cost of manufacturing, or other factors. Orders for Third-Party Products are subject to availability and are cancellable only by Dell. I f Customer purchases a multi-year Software license and related support and/or maintenance, and Dell or the third party licensor of the Software agree to annualize the Customer’s purchase over the term of the license, Customer shall make all annual payments in full and such purchase is non-cancellable over the term of the license. Dell is not responsible for pricing, typographical, or other errors in any offer, and may cancel orders affected by such errors.
B. Changed or Discontinued Products or Services. Dell may revise or discontinue Product and Service offerings at any time without prior notice. Changes may occur after a Customer places an Order but before Dell ships the Product or performs the Service. As a result, Products and Services Customer receives might display minor differences from those ordered. However, the Dell-branded Products will materially meet or exceed all published specifications of the ordered Product. Parts used in repairing or servicing Products may be new, equivalent-to-new, or reconditioned.
C. Shipping Charges; Title; Risk of Loss. Shipping and handling charges are not included in Product prices unless expressly indicated at the time of sale. Title to Hardware passes from Dell to Customer upon shipment. Delivery of Software is FOB Origin. Loss or damage that occurs during shipping (including returns) is the responsibility of the party that selected the carrier. Shipping and delivery dates are estimates only. You must notify Dell within 21 days of your invoice date if you believe any part of your order is missing, wrong, or damaged.
D. Payment. Invoices are due and payable within the time period stated on your invoice, or if not stated, then within 30 days from the invoice date. Payment must be made in the currency identified by Dell, and either by credit card, automated clearing house, wire transfer, electronic funds transfer or another prearranged payment method unless credit terms have been agreed to by Dell. Credit approval may be revoked at any time. Dell may invoice parts of an Order separately or together in one invoice. All invoices shall be deemed accurate unless Customer advises Dell in writing of a material error within the later in time of 14 days of the invoice date or 10 days following receipt of the invoice. In the event that Customer advises Dell of a material error, (i) payment of any amounts corrected by Dell in writing shall be due within 14 days of correction, and (ii) all other amounts shall be paid by Customer by the invoice due date. If Customer withholds payment upon an assertion that an invoiced amount is erroneous, and Dell concludes that such amount is accurate, Customer shall pay interest as described below from the due date for such amounts until Dell’s receipt of those amounts. Customer may not offset, defer or deduct any invoiced amounts that Dell determines are not erroneous following the notification process set forth above. Any assignment of your payment obligations to a third-party financing company (other than Dell Financial Services, LLC) must be approved in advance in writing by Dell, and you will not be excused from your obligations under this Agreement. Dell may charge a late penalty of 1.5% per month on undisputed overdue amounts, or the maximum rate permitted by law, whichever is less. Late penalties will be recalculated every 30 days based on your current outstanding balance. Dell, without waiving any other rights or remedies and without liability to Customer, may suspend or terminate any or all Services and refuse additional orders for Products until all overdue amounts are paid in full. Dell shall be entitled to all reasonable legal and attorney fees and associated costs of collecting overdue amounts.
E. Taxes. Unless you provide Dell with a valid and accurate tax-exemption certificate applicable to your purchase, you are responsible for sales tax and any other taxes or governmental fees associated with your order. If you qualify for a tax exemption, you must provide Dell with a valid certificate of exemption or other appropriate proof of exemption. The charges stated in the invoice shall include all duties, levies or any similar charges and exclude VAT or equivalent sales or use tax. Customer shall also pay all freight, insurance, and taxes (including but not limited to import or export duties, sales, use, value add, and excise taxes). Dell’s invoice shall be in accordance with VAT or other applicable law. If Customer is required by law to make a withholding or deduction from payment, Customer will make payments to Dell net of the required withholding or deduction. Customer will supply to Dell evidence (e.g. official withholding tax receipts), to the reasonable satisfaction of Dell, that Customer has accounted to the relevant authority for the sum withheld or deducted.
F. Hardware Returns and Exchanges. You agree to Dell's return policy, found at dell.com/returnspolicy. Before returning or exchanging Hardware, you must contact us directly to obtain an authorization number to include with your return. You must return Hardware in its original or equivalent packaging, and you are responsible for risk of loss and shipping and handling fees. Additional fees, including up to a 15% restocking fee, may apply. If you fail to follow the return or exchange instructions, Dell will not be responsible for any loss, damage, or modification of Hardware, or processing of Hardware for disposal or resale. Credit for partial returns may be less than invoice or individual component prices due to bundled or promotional pricing associated with your purchase. Title to returned or exchanged Hardware shall pass to Dell upon receipt at the specified Dell facility.
4. Services and Software
A. Service Agreements. Dell may provide Services, Service-related Software, or Deliverables to you in accordance with one or more “Service Agreements.” “Service Agreements” are service contracts, including “Service Descriptions” available at dell.com/servicecontracts/us, “Statements of Work,” and any other mutually executed documents. Each Service Agreement will be interpreted separately from any other Service Agreement, so that all provisions are given as full effect as possible.
B. Hardware Services.
i. Exclusions. “Hardware Services” are Services necessary to repair or fix a defect in materials or workmanship of Hardware. Hardware Services do not include preventive maintenance or repairs required due to (a) software problems, (b) alteration, adjustment, or repair of the Hardware by anyone other than Dell or Dell’s representatives; (c) accident, misuse, or abuse of the system or component (such as fire, water leakage, use of incorrect line voltages or fuses, use of incompatible devices or accessories, improper or insufficient ventilation, or failure to follow operating instructions) that have been caused by anyone other than Dell (or Dell’s representatives); (d) moving of the system from one geographic location or entity to another; or (e) an act of nature.
ii. Customer Authorization for Provision of Services. Some warranties or service contracts for Third-Party Products may become void if Dell provides services for such products. DELL SHALL NOT BE RESPONSIBILE FOR ANY EFFECT THAT THE HARDWARE SERVICES MAY HAVE ON THOSE WARRANTIES OR SERVICE CONTRACTS. You authorize Dell to use or otherwise access any and all Third-Party Products you provide to us as may be necessary to perform the Services or as requested by you, including copying, storing, and reinstalling a backup system or data.
C. Software. The Software is subject to, and you are bound by, the applicable Software Agreement. “Software Agreement” means (i) the software license agreements included with the software media packaging or presented to Customer during the installation or use of the Software, or (ii) if no license terms accompany the Software or are not otherwise made available to you by Dell, the End User License Agreement –A Version, found at dell.com/aeula. For Software listed at software.dell.com (the “DSG Software”), the terms and conditions of the applicable local agreement located at software.dell.com/legal/sta shall govern the DSG Software and the maintenance and support services for such Software.
D. Customer & System Data. In connection with Dell’s performance or your use of the Services and Service-related Software, Dell may obtain, receive, and/or collect data or information, including system-specific data (collectively, the “Data”). You grant Dell (i) a non-exclusive, worldwide, royalty-free, perpetual, irrevocable license to use, compile, distribute, display, store, process, reproduce, or create derivative works of the Data solely to provide the Services or Service-related Software; (ii) a license to aggregate and use the Data in an anonymous manner in support of Dell’s marketing and sales activities; and (iii) the right to copy and maintain the Data on Dell’s or its suppliers’ servers as necessary to provide the Services. You represent and warrant that you have obtained all rights, permissions, and consents necessary to use and transfer the Data within and outside of the country in which you are located (including providing adequate disclosures and obtaining legally sufficient consent from your employees, agents, and contractors).
5. Proprietary Rights
A. All right, title, and interest in the intellectual property (including all copyrights, patents, trademarks, trade secrets, and trade dress) embodied in the Software, Products and Deliverables, and the methods by which the Services are performed and the processes that make up the Services, shall belong solely and exclusively to Dell or its suppliers or licensors. Subject to Dell’s receipt of payment in full for the applicable Services, Dell grants you a non-exclusive, non-transferable, royalty-free right to use the Deliverables solely (i) in the country or countries in which you do business, (ii) for your internal use, and (iii) as necessary for you to enjoy the benefit of the Services as stated in the applicable Service Agreements.
B. The Products and Software are protected pursuant to copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Unless expressly permitted by Dell, you may not (i) modify, remove, delete, augment, add to, publish, transmit, adapt, translate, localize, create derivative works from or create a patent based on the Software, or (ii) resell, sublicense, distribute, or otherwise make available the Software, in whole or in part, to any third party. Except and only to the extent prohibited by applicable law, you may not reverse engineer, decompile, disassemble, or attempt to discover or modify in any way the underlying source code of the Software. Dell reserves all rights not expressly granted in this Agreement or the Software Agreement.
6 . Limited Warranty
A. THE LIMITED WARRANTIES FOR DELL-BRANDED OR DELL-LICENSED HARDWARE SHALL BE AS STATED IN THE DOCUMENTATION PROVIDED WITH THE HARDWARE. IF THERE IS NO SUCH DOCUMENTATION, THEN THE WARRANTIES SHALL BE AS STATED AT DELL.COM/WARRANTYTERMS (“EXPRESS WARRANTIES”). THE LIMITED WARRANTIES FOR SOFTWARE SHALL BE AS STATED IN THE APPLICABLE SOFTWARE AGREEEMENT. THE SERVICES WILL BE PROVIDED IN A GOOD AND WORKMANLIKE MANNER.
B. THE ABOVE WARRANTIES DO NOT COVER DAMAGE DUE TO EXTERNAL CAUSES, SUCH AS ACCIDENT, ABUSE, MISUSE, PROBLEMS WITH ELECTRICAL POWER, SERVICE NOT PERFORMED OR AUTHORIZED BY DELL (INCLUDING INSTALLATION OR DE-INSTALLATION), USAGE NOT IN ACCORDANCE WITH PRODUCT INSTRUCTIONS, NORMAL WEAR AND TEAR, OR USE OF PARTS AND COMPONENTS NOT SUPPLIED OR INTENDED FOR USE WITH THE PRODUCTS OR SERVICES. ANY WARRANTY FOR A THIRD-PARTY PRODUCT IS PROVIDED BY THE PUBLISHER, PROVIDER, OR ORIGINAL MANUFACTURER. ALL THIRD-PARTY PRODUCTS ARE PROVIDED BY DELL “AS IS.”
C. EXCEPT AS EXPRESSLY STATED ABOVE OR IN THE EXPRESS WARRANTIES, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, DELL, (INCLUDING DELL AFFILIATES, CONTRACTORS, AND AGENTS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, AND OFFICERS), ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO ANY OF THE PRODUCTS OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY (i) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY, OR NON-INFRINGEMENT; (ii) FOR ANY THIRD-PARTY PRODUCTS; (iii) FOR THE PERFORMANCE OF OR RESULTS TO BE OBTAINED FROM ANY PRODUCTS OR SERVICES, OR (iv) THAT THE PRODUCTS OR SERVICES WILL OPERATE OR BE PROVIDED WITHOUT INTERRUPTION OR ERROR. THE DELL-BRANDED PRODUCTS AND SERVICES ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS ANY APPLICATION IN WHICH THE FAILURE OF THE PRODUCTS OR SERVICES COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE (COLLECTIVELY, “HIGH-RISK ACTIVITIES”). DELL EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH-RISK ACTIVITIES.
7 . Confidentiality
“Confidential Information” means information that is not generally known to the public and either is designated as confidential or which, due to the nature of the information or the circumstances, should reasonably be understood to be confidential. Confidential Information may not be disclosed to third parties and may only be disclosed to the receiving party’s personnel, professional advisors, agents, and subcontractors (“Representatives”), on a “need-to-know” basis in connection with this Agreement. Representatives shall be bound to the receiving party to treat the Confidential Information under terms at least as restrictive as those herein, and the receiving party shall be liable to the disclosing party for disclosures by its Representatives which if made by the receiving party would be a breach of this Agreement. Each party agrees to take the necessary precautions to maintain confidentiality by using at least the same degree of care as such party employs with respect to its own Confidential Information of a similar nature, but in no case less than a commercially reasonable standard of care. The foregoing shall not apply to information that (i) the receiving party independently developed without use of the other party’s Confidential Information, (ii) has been obtained from a source which is not under a confidentiality obligation with respect to such information, or (iii) is or becomes publicly available without fault of the receiving party. The receiving party may also disclose Confidential Information as required by law or legal process; provided that the receiving party shall notify the disclosing party prior to making such disclosure. The obligations in this Section shall continue for 3 years from the date of disclosure to the receiving party, except for information about a party’s intellectual property, for which these obligations shall never expire.
A. If you purchased Products or Services directly from Dell, Dell shall defend and indemnify you against any third-party claim or action that Dell-branded Products or Services (excluding Third-Party Products and open source software) prepared and delivered by Dell infringe or misappropriate that third party’s U.S. patent, copyright, trade secret, or other intellectual property rights (“Indemnified Claims”). In addition, if Dell receives prompt notice of an Indemnified Claim that, in Dell’s reasonable opinion, is likely to result in an adverse ruling, then Dell shall at its option, (i) obtain a right for you to continue using such Products or Deliverables or for Dell to continue performing the Services; (ii) modify such Products or Services to make them non-infringing; (iii) replace such Products or Services with a non-infringing equivalent; or (iv) if you purchased directly from Dell, refund any pre-paid fees for the allegedly infringing Services that have not been performed or provide a reasonable depreciated or pro rata refund for the allegedly infringing Product or Deliverables. Dell shall have no obligation for any claim resulting or arising from (a) modifications of the Products and Services that were not performed by or on behalf of Dell; (b) the misuse of the Products or Services, or the combination or use of such with Third-Party Products (the combination of which causes the claimed infringement); or (c) Dell’s compliance with your written specifications or directions, including the incorporation of any software or other materials or processes provided or requested by you. Dell’s duty to indemnify and defend is contingent upon: (x) Dell receiving prompt written notice of the third-party claim or action (y) Dell having the right to solely control the defense and resolution of such claim or action, and (z) your cooperation with Dell in defending and resolving such claim or action. These remedies are your exclusive remedies for any third-party intellectual property claim or action, and nothing in this Agreement or elsewhere will obligate Dell to provide any greater indemnity.
B. You shall defend and indemnify Dell against any third-party claim or action resulting or arising from: (i) your failure to obtain any appropriate license, intellectual property rights, or other permissions, regulatory certifications, or approvals associated with technology or data provided by you, or associated with software or other components directed or requested by you to be used with, or installed or integrated as part of the Products or Services; (ii) your violation of Dell’s intellectual property rights as stated in this Agreement; (iii) any inaccurate representation regarding the existence of an export license or any allegation made against Dell due to your violation or alleged violation of applicable export laws, regulations, or orders; or (iv) your providing of (or providing access to) Excluded Data to Dell.
C. Each party shall defend and indemnify the other against any third-party claim or action for personal bodily injury, including death, where the injury has been exclusively caused by the indemnifying party’s gross negligence or willful misconduct in the course of performing its obligations under this Agreement.
9. Compliance with Laws
A. In performing its obligations under this Agreement, each party agrees to comply with all laws and regulations applicable to such party. Customer acknowledges that the Products and Services may (i) include technology, authentication and encryption which is subject to the customs and export control laws and regulations of the United States (“U.S.”); (ii) be delivered or performed either in the U.S. or another country; and (iii) be subject to the customs and export laws and regulations of the country in which the Products or Services are delivered or performed. Customer also may be subject to, and will comply with, import and re-export restrictions in the event Customer relocates the Products or Deliverables from the country of delivery.
B. Customer certifies that all items (including hardware, software, technology and other materials) it provides to Dell for any reason that contain or enable encryption functions either (i) satisfy the criteria in the Cryptography Note (Note 3) of Category 5, Part 2 of the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies or (ii) employ key length of 56-bit or less symmetric, 512-bit asymmetric or less, and 112-bit or less elliptic curve.
C. Dell is not responsible for determining whether any Third-Party Product to be used in the Products and Services satisfies the local regulatory requirements of the country to which such Products or Services are to be delivered or performed, and Dell shall not be obligated to provide any Product or Service where the resulting Product or Service is prohibited by law or does not satisfy the local regulatory requirements.
D. Dell’s privacy policies explain how Dell treats your personal information and protects your privacy and can be found at dell.com/privacy.
10. Termination or Suspension
A. Suspension or Modification of Services. Dell may suspend, terminate, withdraw, or discontinue all or part of the Services upon receipt of a subpoena or law-enforcement request which requires Dell to do so, or when Dell believes, in its sole reasonable judgment, that you are involved in any fraudulent or illegal activities.
B. Termination. Either party may terminate an individual Service Agreement or Software Agreement if the other party commits a material breach of such agreement and the breach is not cured within 90 days of receipt of written notice from the non-breaching party. Termination of any Service Agreement will not terminate other Service Agreements, and termination of all Service Agreements will not terminate this Agreement. Dell may terminate this Agreement and all Service Agreements and Software Agreements immediately, including prior to the expiration of the term of Services or Software license, if (i) you fail to make any payment when due; (ii) you declare bankruptcy or are adjudicated bankrupt; (iii) a receiver or trustee is appointed for you or substantially all of your assets; or (iv) you purchased through a reseller and, as applicable, the agreement between you and such reseller expires or is terminated, the agreement between Dell and such reseller expires or is terminated, or your reseller is delinquent on its payment obligations to Dell. Further, Dell may terminate a Service Agreement immediately if you are acquired by or merge with a competitor of Dell. Upon termination of this Agreement, all rights and obligations under this Agreement will automatically terminate except for rights of action accruing prior to termination, payment obligations, and any obligations that expressly or by implication are intended to survive termination.
11. Limitation of Liability
A. DELL WILL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS OR SERVICES. EXCEPT FOR YOUR BREACH OF SECTIONS 3(D) OR 7, OR YOUR VIOLATION OF DELL’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY SHALL HAVE LIABILITY FOR THE FOLLOWING: (i) LOSS OF REVENUE, INCOME, PROFIT, OR SAVINGS; (ii) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF A SYSTEM OR NETWORK OR THE RECOVERY OF SUCH; (iii) LOSS OF BUSINESS OPPORTUNITY; (iv) BUSINESS INTERRUPTION OR DOWNTIME; (v) THE PRODUCTS, DELIVERABLES OR THIRD-PARTY PRODUCTS NOT BEING AVAILABLE FOR USE OR (vi) THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES.
B. DELL’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING PRODUCTS AND SERVICES) IN ANY 12 MONTH PERIOD SHALL NOT EXCEED THE TOTAL AMOUNT RECEIVED BY DELL DURING THE PRIOR 12 MONTHS OF THIS AGREEMENT FOR THE SPECIFIC PRODUCT OR SERVICE GIVING RISE TO SUCH CLAIM(S).
C. THESE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR DELL’S SALE OF PRODUCTS OR SERVICES TO CUSTOMER, AND WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.
12. Additional Terms
A. Independent Subcontractor Relationship; Assignment; Subcontracting. The parties are independent contractors. Neither party will have any rights, power or authority to act or create an express or implied obligation on behalf of the other party except as specified in this Agreement. Neither party’s employees, agents, nor consultants shall be considered under any circumstances to be employees of the other party. Dell has the right to assign, subcontract, or delegate in whole or in part this Agreement, or any of its rights, duties, obligations or liabilities provided that if it subcontracts its duties in providing Services, Dell shall remain responsible for the performance of such Services under this Agreement. You may not assign this Agreement without Dell’s permission.
B. Excused Performance. A party shall not be liable to the other for any delay in performing its obligations if the delay is caused by circumstances beyond its reasonable control, provided that the other party is promptly notified in writing. If the circumstance lasts longer than 30 days, then the other party may immediately terminate, in whole or in part, this Agreement or the affected Service Agreement or Software Agreement by giving written notice to the delayed party. This Section shall not relieve either party of its obligations under this Agreement (including payment), but rather will only excuse a delay in performance.
C. Excluded Data. Customer acknowledges that Products and Services provided under this Agreement are not designed to process, store or be used in connection with any of the following categories of data: (i) data that is classified and/or used on the U.S. Munitions list, including software and technical data; (ii) articles, services and related technical data designated as defense articles and defense services; (iii) ITAR (International Traffic in Arms Regulations) related data; and (iv) except for certain DSG Software, other personally identifiable information that is subject to heightened security requirements as a result of Customer’s internal policies or practices or by law (collectively referred to as “Excluded Data”). You are solely responsible for reviewing data that will be provided to or accessed by Dell to ensure that it does not contain Excluded Data.
D. U.S. Government Restricted Rights. The software and documentation provided with the Products and Services are “commercial items” as that term is defined at 48 C.F.R. 12.101, 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 (i) Software (other than DSG Software) and Dell-branded Products is Dell Products L.P., One Dell Way, Round Rock, Texas 78682, and (ii) DSG Software is Dell Software Inc., 5 Polaris Way, Aliso Viejo, California 92656.
E. Governing Law. This Agreement and any related Service Agreement(s), and ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND DELL, including their affiliates, contractors, and agents, and each of their respective employees, directors, and officers, arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), Dell's advertising, or any related purchase (a “Dispute”) will be governed by the laws of the State of Texas, without regard to conflicts of law. The UN Convention for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply.
F. Venue. The parties agree that any Dispute shall be brought exclusively in the state or federal courts located in Travis or Williamson County, Texas. The parties agree to submit to the personal jurisdiction of such courts.
G. Bench Trial. The parties agree to waive, to the maximum extent permitted by law, any right to a jury trial with respect to any Dispute.
H. No Class Actions. NEITHER PARTY SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR PURSUE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
I. Limitation Period. NEITHER PARTY Shall be liable for any claim brought more than 2 years after the cause of action for such claim first arose.
J. Dispute Resolution. Customer and Dell will attempt to resolve any Dispute through negotiation or by utilizing a mediator agreed to by the parties, rather than through litigation. Negotiations and mediations will be treated as confidential. Each party has the right to obtain from a state or federal court in Travis or Williamson County a temporary restraining order, preliminary injunction, or other equitable relief to preserve the status quo, prevent irreparable harm, protect its intellectual property rights, avoid the expiration of any applicable limitations period, or preserve a superior position with respect to other creditors, although the parties will attempt to resolve the merits of the Dispute according to this paragraph. If the parties are unable to reach a resolution within 30 days of notice of the Dispute to the other party, the parties may pursue all other courses of action available at law or in equity.
K. Notices. Notice to Dell under this Agreement or any related Service Agreement must be in writing and sent by registered or certified mail (postage prepaid first-class mail and return receipt requested) by overnight delivery service or by electronic mail to the address below, and will be effective upon receipt.
Dell Marketing L.P., Attn: Contracts Manager
One Dell Way RR1-33, Round Rock, Texas 78682
L. Entire Agreement; Severability. This Agreement is the entire agreement with respect to its subject matter and supersedes all prior or contemporaneous communications or agreements that may exist. If you purchased directly from Dell, any preprinted terms on your purchase order shall be of no force or effect. Modifications to this Agreement will be made only through a written amendment signed by both parties. If any provision of this Agreement is found to be void or unenforceable, such provision will be stricken or modified, but only to the extent necessary to comply with the law, and the remainder of this Agreement will remain in full force. No rights may arise by implication or estoppel, other than those expressly granted herein.
Commercial Terms of Sale (United States)
Revision Date 3/17/2015