These Reseller Terms of Sale, including all applicable terms referenced herein, (collectively, this “Agreement”) apply to your purchase (whether from Dell or from a Dell distributor in the United States or Canada) and resale of Products and Services, unless you have a separate written agreement with Dell that expressly applies to your purchase and resale of such Products and Services. This Agreement does not apply to you if you are buying Products and Services for your own internal end-use.

DEFINITIONS.Dell” means the direct or indirect affiliate or subsidiary of Dell Inc. named on your invoice, order confirmation, or other sales documents. “Dell Affiliate” means Dell Inc. or any legal entity (excluding Dell) controlling, controlled by, or under common control with Dell Inc. “You” or “your” means the entity that places an order for Products and/or Services with Dell for purpose of resale to an End-User (defined below). "Software" means any software, library, utility, tool, or other computer or program code, in object (binary) or source-code form, as well as the related documentation. Software includes software delivered electronically, pre-installed on an appliance, or locally installed on hardware systems, and software accessed through the internet or other remote means (such as websites, portals and "cloud-based" solutions). “Dell Software” means Software licensed by Dell or Dell Affiliate. Dell Software and Dell-branded hardware products are collectively referred to as “Dell Product.” “Services” means services provided by Dell as described in one or more Service Agreements. “Third Party Product” means any non-Dell-branded products and services and non-Dell-licensed software products. Dell Products and Third Party Products are collectively referred to as “Products”.

By placing your order, you accept and are bound to the terms and conditions of this Agreement.

1. APPOINTMENT

A. General. Subject to the terms and conditions of this Agreement and your compliance therewith, you may resell certain Products and Services to End-Users. “End-User” means any entity purchasing or otherwise obtaining Products and/or Services from you for its own internal end-use and not for reselling, distributing, or sub-licensing to others. You shall not market, resell, or use Products or Services other than as expressly permitted in this Agreement. You understand that not all Products and Services may be purchased for resale under this Agreement. Certain activities require that you enter into a separate written agreement with Dell, including but not limited to (i) use of Dell Software to provide services to and on behalf of End-Users, (ii) use and reproduction of Dell Software to combine with your software products or other products to create one unified product (“Bundled Product”) and marketing, distribution and sublicensing of Dell Software to End-Users as part of the Bundled Product, and (iii) selling renewals of certain Dell Software maintenance services.

B. Restrictions to Appointment. Notwithstanding Section 1.A., and unless and to the extent that you are expressly granted such rights under the Dell PartnerDirect Program or in a separate written agreement between you and Dell, you shall not market or resell Products or Services (i) to any consumers, resellers, distributors, or third-party sales agents; (ii) through retail storefronts, online stores, or auction or resale websites; or (iii) to any government (including federal, provincial, state, or local government), healthcare, or education end-users. You shall not market or resell Products or Services to anyone outside the United States or Canada, whichever is the country covered by the Dell entity from which you purchased such Products and Services.

C. Non-Exclusive. This Agreement is not exclusive. Dell may appoint third parties (including those who may compete with you) to sell or market Products and Services to anyone. Dell may sell or market (whether directly or indirectly through a third party) Products and Services at any price Dell chooses without any obligation or liability to you. This Agreement does not guarantee that you will make any sales of Products or Services.

D. Additional Requirements. Your eligibility to resell certain Products and Services may be subject to additional obligations or conditions not outlined in this Agreement, including additional training, specialization requirements, contractual agreements, and other conditions. The Product Addendum located here applies to your purchase and resale of Dell Products that are integrated with Google Chrome OS. You agree to provide Dell with information and reports pertinent to your relationship with Dell as may reasonably be requested by Dell.

2. PRICING & TAX

A. Pricing. Prices for Products and Services will be as specified on Dell’s website, in a written quote to you for such Products and Services, or as specified in the applicable Dell invoice or Service Agreement (defined below) relating to such Product or Service. Except as otherwise expressly set forth in Dell’s quote, Dell’s quoted price is valid for thirty (30) days from the date of the quote. Before Dell issues a quote, Dell may require you to provide information concerning the End-User and you agree to provide such information. Dell reserves the right to modify pricing (including quotes) due to shortage of materials or products, increase in costs, pricing or other error, currency and exchange rate fluctuations, or any event beyond Dell’s control, without liability to you. Taxes, shipping and handling charges and any government mandated or other regulated environmental disposal surcharges are not included in prices for Products and Services, unless expressly indicated at the time of sale.

B. Unless you and Dell have agreed to a different discount structure, Dell's standard pricing policy for a solution that includes products, software, and services in one discounted price, allocates the discount off list price applicable to the services portion of the solution to be equal to the overall percentage discount off of the list price of the entire solution. 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). If Dell offers you certain discounts off of Dell’s standard list price, such discounts do not apply to special product promotions and cannot be combined with other offers.

C. Taxes. The charges stated in any Dell quote or invoice will include all duties, levies or any similar charges and will exclude VAT, sales, use, or equivalent taxes. You are responsible for the payment of all taxes and fees assessed or imposed on Products and Services in any geography in which you or an End User receives the benefit of the Products and Services, including any sales, use, excise, value-added or comparable taxes, but excluding taxes for which you have provided a valid resale or exemption certificate. You will defend and indemnify Dell Parties (defined below) from and against any claims, damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim or action relating to tax liabilities that are your responsibility. If you are required by law to make any withholding or deduction in respect of any payments that you are required to make to Dell under this Agreement, additional amounts shall be simultaneously payable such that Dell’s nominated bank account receives (after that withholding and deduction) those amounts which Dell would have received if no withholding or deduction had been required. Upon request, you will supply to Dell evidence (e.g. official withholding tax receipts), to the reasonable satisfaction of Dell, that you have accounted to the relevant authority for the sum withheld or deducted.

D. Reseller Pricing. You are free to determine and set your resale pricing of Products and Services.

3. PURCHASE ORDERS

A. Orders. Each order must reference Dell’s quote (if any), the requested Products and Services, the End-User’s name and address, and any other information requested by Dell. If requested by Dell, you shall submit Orders on Dell designated order form(s). Orders for certain Software may require purchase of related services. You shall place orders for Products and Services in the country where the End-User is located. All orders and transactions are subject to acceptance or cancellation by Dell, in Dell’s sole discretion. Each accepted order will be interpreted as a single agreement, independent of any other orders.

B. Shipping, Title and Risk of Loss. Title to Products (except title to software which remains with the applicable licensors) passes from Dell to you upon shipment to you. Loss or damage that occurs during shipping by a carrier selected by Dell is Dell's responsibility. Loss or damage that occurs during shipping by a carrier selected by you is your responsibility. Selecting your carrier of choice may not be available in certain geographic locations. Shipping and delivery dates are provided as estimates only and Dell is not responsible for any early or delayed shipment or delivery. Dell may ship parts of an order separately. Dell may electronically deliver Software directly to the End-User. You must notify Dell within twenty-one (21) days from the date of your invoice or acknowledgement if you believe any part of your order is missing, wrong, or damaged.

C. Cancellation. Orders for Third Party Products, Products that have been discontinued or have reached the end of their product lifecycle, and formerly standard parts that are no longer regularly used in Products, may not be changed or cancelled without Dell’s prior written approval. If you purchase a multi-year software license and related support or maintenance, and you and Dell (and, if applicable, the third-party licensor of the software) agree to make installation payments of the purchase price over the term of the license, then you shall make all such installation 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 or quote, and reserves the right to cancel any order arising from such errors. In addition, Dell may cancel orders due to shortage of products or materials, increases in the costs of manufacturing, or any event beyond Dell’s control.

D. No Return. All sales are final. Neither you nor any of your End-Users may return Products to Dell, except as expressly permitted in Section 5.E. or to the extent that you are expressly granted return rights under the Dell PartnerDirect Program.

E. Security Interest. You hereby grant Dell, and Dell hereby retains, a first priority 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 payment fees and costs of collection. You agree Dell may file any financing statements or related filings for protecting this security interest as Dell reasonably deems necessary or appropriate.

4. INVOICING, AND PAYMENT

A. Invoices. Dell may invoice parts of an order separately, or may invoice purchases of Products and Services in one invoice. Additional charges will apply if you request customized invoicing, consolidated invoicing, or other special billing arrangement or statements. Dell reserves the right to change the method of delivery of all documentation. You agree that all invoices will be deemed accurate unless you advise Dell in writing of a bona fide, material error within fourteen (14) days from the date of such invoice. In the event you advise Dell of a material error, (i) payment of any amounts corrected or modified by Dell in writing will be due, and you shall pay such amounts, within fourteen (14) days of such correction, and (ii) you shall pay all other amounts by the invoice due date. In the event you withhold payment of any invoiced amounts upon an assertion that such amounts are erroneous, and Dell subsequently concludes that such invoiced amounts are accurate, then you shall pay a late payment fee as described in Section 4.C., from the due date, for such invoiced amounts, until Dell's receipt of those amounts. In no event will you be entitled to offset, defer or deduct any invoiced amounts that Dell determines are not erroneous following the notification process described in this paragraph. If you do not receive an invoice or acknowledgement in the mail or with your Products and/or Services, information about your purchase may be obtained at www.support.dell.com/DellCare/Index.aspx (or in Canada at www.dell.ca/support) or by contacting your Dell sales representative.

B. Payment. Invoices are due and payable within the time period noted on your invoice, or if not noted, then within thirty (30) days measured from the date of the invoice, subject to continuing credit approval by Dell (such approval may be revoked without notice from Dell). Payment shall be made in the currency as invoiced by Dell. Payment for Products and Services must be made by credit card, automated clearing house, wire transfer, electronic funds transfer or some other prearranged payment method, unless credit terms have been agreed to by Dell. You shall make payment to Dell for Products and Services to the account indicated by Dell (as may be amended from time to time). Timely payment is of the essence. Your assignment of a purchase order to a third-party financing company (other than Dell Financial Services, LLC, or Dell Financial Services Canada Ltd., as applicable) must be approved in advance in writing by Dell, and in no case will any such approval excuse you from your obligations hereunder.

C. Late Payment. Dell reserves the right to charge you a late payment fee of 1.5% per month (18% per annum) applied against undisputed overdue amounts, or the maximum rate permitted by law, whichever is less. Late payment fees will be recalculated every thirty (30) days thereafter based on your current outstanding balance. In addition, Dell may, without waiving any other rights or remedies to which it may be entitled, take any one or more of the following actions: (a) not accept additional orders from you; (b) suspend or terminate its provision of software licenses, maintenance, warranty service, technical support, or any other Service; and (c) seek collection of all amounts due, including reasonable attorney or legal fees, expenses and costs of collection. Dell will have no liability to you or to any End-User for any such suspension or termination or for any refusal of additional orders.

5. SOFTWARE

A. Use of Software by the End-User is subject to and governed by the end-user software license agreement that is shipped with, included in (e.g., part of a product installer or an executable document), made available by download, or otherwise accompanies such Software or Products. If no such agreement is shipped with, included in, made available by download, or otherwise accompanies the Software or Products, and there is no separate license agreement between End-User and the manufacturer or owner of such software, then the Dell Software shall be governed by and subject to the applicable license agreement at http://software.dell.com/legal/license-agreements.aspx (“Dell EULA”). Any updates to the Dell EULA shall be posted to http://software.dell.com/legal/license-agreements.aspx.

B. For certain large or non-standard Software transactions, you acknowledge and agree that (a) Dell may present or, if requested by Dell, you shall present, a purchase acknowledgment form directly to the End-User, and (b) Dell is not required to process your order or deliver the applicable Software to the End-User unless and until such End-User has executed the purchase acknowledgment form. You may obtain Not for Resale licenses to certain Software but may be required to comply with additional requirements and terms and conditions.

C. If you take possession of the Products, you shall pass on the end-user software license agreement to the End-User to which you resell such Products. You may not modify in any way the terms of any software license agreement or purchase acknowledgment form.

D. Notwithstanding anything contrary in this Agreement, you have no right under this Agreement to sublicense the Dell Software. You may not use, install or download Dell Software for your internal use. If you are installing, downloading, or otherwise using Software on behalf of an End-User, then prior to the installation or download, you shall obtain the End-User’s written authorization to accept the terms of the end-user software license agreement on behalf of the End-User. Additionally, you shall comply with the terms of the software license agreement and, for Canadian based End-Users, you shall obtain all End-User consents required under applicable law to install the Software on an End-User’s system).

E. For Dell Software, if (i) the End-User does not agree to be bound by the Dell EULA, (ii) the Dell EULA provides End-User a specific right of return in the event End-User does not accept the Dell EULA terms, (iii) the End-User has not downloaded, installed, activated or otherwise used the software and, (iv) the End-User exercises the right to return the software (including media, written materials and packaging) and any hardware to which such software is attached, then you will be entitled to return such hardware and the software to Dell for a refund; provided, however, your right to return and obtain a refund, as permitted in this Section, expires twenty-one (21) days from the date of Dell’s invoice to you, and further provided that Dell may require documentation from End-User of its objection to the software license agreement and its receipt of refund from you. Notwithstanding anything otherwise set forth in this Section 5.E. or 3.D., no right of return shall be provided for Products that are specifically excluded from the right of return policy located at www.dell.com/returnspolicy.

F. If you receive activation or registration codes or keys (“Activation Codes”), you shall distribute the Activation Codes as directed by Dell and to activate (i) only the particular Software copy for which the Activation Codes are intended by Dell to be used and (ii) only as many copies of the Software as licenses you have purchased and resold to an End-User. You shall not reuse Activation Codes for multiple End-Users or for multiple Software copies for the same End-User.

6. SERVICES

A. Dell Terms and Conditions Applicable to End-Users. You will only resell Services to End-Users who agree to be bound to:

(i) (a) if the End-User is purchasing Services other than Dell’s cloud solutions, (1) if the End-User is located in the U.S., Dell’s Commercial Terms of Sale set forth at www.dell.com/cts (the “U.S. CTS”), (2) if the End-User is located in Canada, Dell’s Commercial Terms of Sale (Canada) set forth at www.dell.ca/terms (the “Canada CTS”), or (3) such other written agreement as Dell may designate; or

(b) if the End-User is purchasing any of Dell’s cloud solutions, Dell’s Cloud Solutions Agreement set forth at www.dell.com/cloudterms for U.S. or at http://www.dell.com/downloads/global/services/sd/csacanada.pdf for Canada (the “CSA”) or such other agreement as Dell may designate; and

(ii) all applicable service contracts associated with such Services, including service descriptions available at www.dell.com/servicecontracts, any statements of work, and any other service contracts designated by Dell (all such documents referenced in the foregoing clauses (i) and (ii), collectively, the “Service Agreements”).

You shall communicate to the End-User in writing (in each quote and in your own agreement with such End-User for the sale of Services (such agreement, the “End-User Agreement”)) that the provision and performance of such Services are subject to and will be governed by the applicable Service Agreements. You acknowledge and agree that Dell is a third party beneficiary of the End-User Agreement and may enforce the provisions thereof directly against the End-User or through you, and you shall require the End-User to acknowledge and agree to such in the End-User Agreement. Additionally, you acknowledge and agree that (x) Dell may present or, if requested by Dell, you shall present, all applicable Service Agreements directly to the End-User and (y) Dell is not required to provide or perform any Services for such End-User unless and until such End-User has agreed to be bound by all such Service Agreements, as may be determined in each case by Dell in its sole discretion. You shall immediately notify Dell if you become aware of any End-User’s violation of any of the Service Agreements. Dell reserves the right, in its sole discretion, to suspend or terminate the provision of any one or more of the Services to an End-User in response to such End-User’s violation, or suspected violation, of any of the applicable Service Agreements, and Dell will have no liability to you as a result of any such suspension or termination.

B. Services Delivery. All Services will be performed by Dell or its subcontractors. You may not use, provide, or perform any Services, including in your capacity as a managed services provider, absent a separate written agreement with Dell expressly authorizing the same.

7. WARRANTIES

A. Limited Warranty on Dell Products and Services. DELL MAKES NO WARRANTIES TO YOU UNDER THIS AGREEMENT. YOU UNDERSTAND THAT ( I ) WITH RESPECT TO DELL HARDWARE PRODUCTS, END USER WARRANTIES MAY BE FOUND IN THE END USER DOCUMENTATION PROVIDED WITH THE DELL PRODUCTS OR DELL’S APPLICABLE LIMITED WARRANTY STATEMENT AT www.dell.com/warrantyterms (or in Canada at www.dell.ca/warranty ), (II ) WITH RESPECT TO DELL SOFTWARE, END USER WARRANTIES MAY BE FOUND IN THE APPLICABLE DELL EULA AT http://software.dell.com/legal/license-agreements.aspx; AND (III) WITH RESPECT TO SERVICES, END USER WARRANTIES MAY BE FOUND IN THE APPLICABLE SERVICE AGREEMENT. You shall not make any warranty on Dell’s behalf. You are solely responsible for, and you shall indemnify and hold Dell harmless from any claims related to, any warranty you grant that is beyond the Dell end user warranties described in this paragraph.

B. Third Party Products. Third Party Products may carry a limited warranty from the third-party publisher, provider or original manufacturer of such Third Party Products. Dell is not responsible for fulfillment of any Third Party Product warranty or for problems attributable to the use of Third Party Products. Dell does not warrant that any Product will function in any specific configuration that includes any Third Party Products, or that any Product will function to produce a particular result, even if the specific configuration or the result has been discussed with Dell. ALL THIRD PARTY PRODUCTS ARE PROVIDED BY DELL ON AN “AS IS” BASIS.

C. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.A., AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, DELL (INCLUDING DELL AFFILIATES, CONTRACTORS, AND AGENTS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, SUCCESSORS AND ASSIGNS), ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS (COLLECTIVELY AND TOGETHER WITH DELL, THE “DELL PARTIES”), DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES AND CONDITIONS WITH RESPECT TO THE PRODUCTS AND SERVICES, INCLUDING IMPLIED WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

D. Support Services/Tag Transfer. You shall transfer the asset/service identification number (e.g., the Service Tag or Asset Number) to the End-User that is associated with the Dell hardware Products you have purchased for resale in accordance with this Agreement. The process to complete such transfer may be found at www.support.dell.com (or in Canada at www.dell.ca/support), which process Dell may change from time to time. Your failure to properly transfer the asset/service identification number of the Dell Products will result in the End-User’s inability to receive hardware support services from Dell for such Dell Products, and Dell will not be liable to you or to any End-User for any such failure. The parts used in repairing or servicing Products and spare parts may be new, equivalent-to-new, or reconditioned.

8. HIGH RISK APPLICATIONS. You understand that Dell Products have been designed, manufactured, and tested by Dell or its suppliers for use in general-use office/business environments. Dell has not tested or certified Dell Products for use in any high-risk applications, including the operation of nuclear facilities, aircraft navigation, air traffic control, emergency communications systems, life support machines, weapons systems, or any other application where the failure or malfunction of any Dell Products can reasonably be expected to result in death, personal injury, severe property damage or severe environmental harm (“High Risk Applications”). The Services are not fault-tolerant and are not designed or intended for use in, and you shall not use any Services in, any hazardous environments requiring fail-safe performance or in any High Risk Applications. You understand and agree that Dell makes no warranties or assurances that the Products and Services are suitable for any High Risk Applications and you shall defend and indemnify Dell from any claims made by third parties resulting from any such High Risk Applications. As between you and Dell, you are responsible for the design and implementation of configurations, systems, networks, and services suitable for the risks involved in the End-User applications and operating environments into which you sell.

9. EXCLUDED DATA. The Products and Services have not been designed with security and access management for the processing and/or storage of the following categories of data: (a) data that is classified and/or used on the U.S. Munitions list, including software and technical data; (b) articles, services and related technical data designated as defense articles and defense services, (c) ITAR (International Traffic in Arms Regulations) released data; and (d) personally identifiable information that is subject to heightened security requirements as a result of your or End-User’s internal policies or practices, industry-specific standards or by law (collectively referred to as “Excluded Data”). You are solely responsible for reviewing data that you will provide to Dell (or to which Dell will have access) to ensure that it does not contain Excluded Data.

10. INTELLECTUAL PROPERTY

A. Trademarks and Copyrights. You may use the “Dell” name and the names of Dell 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 shall not use any of the Names for any other purpose, and shall not use any other Dell trademarks, services marks, logos, or copyrighted works, unless and to the extent you are expressly granted such usage right under the Dell PartnerDirect Program. You agree to change or correct, at your own expense, any materials or activity that Dell decides is inaccurate, objectionable or misleading, or is a misuse of any 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 expressly permitted by the terms of the Dell PartnerDirect Program. You shall not claim or imply or create an impression 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 will clearly and prominently identify yourself in all your offers and advertising, marketing, and promotional materials. You may not register or use any domain name or business name containing or confusingly similar to any name or mark of Dell’s. Additionally, you may not use any Names or Dell marks in search engine advertising, either as a keyword or in advertisements appearing on search engines or in email addresses, without Dell’s prior written permission.

B. Intellectual Property Ownership and Reservation of Rights. All right, title and interest in and to 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, belong solely and exclusively to Dell, Dell Affiliates or their licensors or suppliers, and you have no rights whatsoever in any of the foregoing other than the rights expressly set forth in this Agreement. Nothing in this Agreement or otherwise will be deemed to grant to you an ownership interest in any of the intellectual property rights in or to any Dell Products or Services, in whole or in part.

C. Discontinued or Changed Products or Services. Dell reserves the right to revise or discontinue any Product or Service offering at any time without notice to you or the End-User. Changes to Dell Products or Services may occur after you place an order but before Dell ships the Dell Product, before Dell performs the Services, or before the end of the Service subscription. As a result, any Dell Products or Services that you or an End-User receive might display minor differences from the Dell Products and Services ordered, but Dell Products and Services will meet or exceed all material specifications of such Dell Products and Services that were ordered.
 

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