1. Introduction

This Professional Services Agreement (the “Agreement”), made between you (“you” or “Customer”) and Dell, govern Dell’s sale and performance of Professional Services (as defined below). “Dell” means Dell Marketing L.P. or the Dell Affiliate identified on the Dell sales documentation. “Dell Affiliate” means a direct or indirect subsidiary of Dell Inc. located in the United States. This Agreement is effective upon the earliest of (i) your execution of an Order Form or Statement of Work (each, a “Service Agreement”) that incorporates this Agreement by reference or (ii) your acceptance of these terms. Professional Services are solely for your internal use and may not be resold. If you purchased through a reseller or distributor, final prices and sales terms will be between you and the reseller or distributor; however, this Agreement applies to your use of Professional Services.

A. Definitions. Deliverables” means the tangible materials, including reports, studies, drawings, software, manuals or written procedures and recommendations that Dell delivers to you under a Statement of Work. “Order Form” means any quote, purchase order form, order acknowledgment or invoice provided by Dell that describes the Professional Services or identifies the Professional Services by stock-keeping unit or “SKU” and incorporates this Agreement by reference. “Professional Services” (referred to hereinafter as “Services”) means the services performed by Dell as described in one or more Statements of Work or identified in an Order Form. “Software” means any software, library, utility, tool, or other computer or program code, in object (binary) form, and “Documentation” means the related media, printed materials, online and electronic documentation, including copies. "Statements of Work" are separately signed mutually agreed upon documents that outline the scope of service, time period for service delivery (including any milestone requirements), requisite service steps, and payment terms. “Third-Party Products” means products, software, or services that are not manufactured or performed by or on behalf of Dell.

B. Additional Agreements. This Agreement, together with any Statements of Work and Order Forms, form a legally binding contract between you and Dell. In the event of a conflict or ambiguity, the documents will be interpreted in the following order of precedence: (1) Statement of Work, (2) Order Form, and (3) this Agreement.

2. Scope

This Agreement authorizes you to purchase Services from Dell in accordance with one or more Statements of Work or Order Forms that explicitly incorporate this Agreement, including, but not limited to, Consulting Services, Managed Services, Asset Recovery & Recycling Services, Training & Education Services, Application Modernization, Installations & Deployment Services, Help Desk Services, Software Support, and Configuration & Image Management Services. Additional services, Dell-branded hardware products, warranty-related support services on Dell-branded products and Third-Party Products are available from Dell pursuant to the separate terms and conditions accompanying their purchase or, in the absence of accompanying terms, Dell’s Commercial Terms of Sale, which is available at dell.com/CTS.

3. Term; Auto-Renewal

This Agreement will continue until the Service Agreement expires or is terminated and when any Software licenses expire or are terminated.

4. Quotes, Ordering, and Payment

Except for subsection B, this Section applies only to direct purchases from Dell.

A. Quotes and Orders.Order” means your order of Services, either through dell.com or other online process, by submitting a purchase order that references a Dell quote, or by executing a Service Agreement. Your Order is subject to acceptance by Dell. Acceptance of one Order is independent from any other Order. Quoted prices will remain in effect only until the expiration date of the quote or Dell’s acceptance of your Order. Dell is not responsible for pricing, typographical, or other errors in any offer, and may cancel orders affected by such errors. Customer shall place all Orders in the country where the Services benefit is received.

B. Payment. Invoices are due and payable within the time period stated on your invoice, or if not stated, within 30 days from the invoice date. Payment must be made using the rates set forth in the Service Agreement and in the method and currency identified by Dell. Customer (1) will reimburse Dell for reasonable, actual travel, meals, lodging, and other out-of-pocket expenses incurred by Dell in connection with the Services, and (2) will pay or reimburse Dell for all taxes, however designated or levied, on the Services or Deliverables provided by Dell hereunder. Additional charges may apply if Customer requests Services that are performed outside of contracted hours or are beyond the normal coverage for the particular Service, such as customized invoicing, consolidated invoicing and statements. 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 10 days following receipt. If Customer advises Dell of a material error, (i) any amounts corrected by Dell in writing shall be paid within 14 days of correction and (ii) all other amounts shall be paid by Customer by the 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 L.L.C.) must be approved in advance in writing by Dell, and you will not be excused from your obligations under this Agreement. Dell may charge interest of 1.5% per month on undisputed overdue amounts, or the maximum rate permitted by law, whichever is less. Interest 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 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.

C. Cost of Living Adjustment. This Section 4(c) shall apply to Service Agreements with a term longer than one year. Dell may adjust prices on any anniversary of the effective date of such Service Agreement if on such date the ECI (as defined below) is higher than it was on the immediately preceding anniversary date. The permitted price adjustment shall be calculated by multiplying the then-existing price(s) by a factor equal to the new ECI divided by the immediately preceding ECI, minus one. Each price adjustment shall remain in effect until the next permitted adjustment.

For purposes of this Agreement, “ECI” means the Employment Cost Index, Total Compensation, Not Seasonally Adjusted, Private Industry for Professional, Specialty and Technical Occupations published by the Bureau of Labor Statistics of the United States Department of Labor or, if such index ceases to be published, then another comparable measure agreed to by Dell and Customer.

D. Taxes. 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 on each line item of 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 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 satisfactory evidence (e.g. official withholding tax receipts) that Customer has accounted to the relevant authority for the sum withheld or deducted.

5. Software

A. 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, (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 or (iii) for Software listed at software.dell.com (the “DSG Software”), the applicable local Software Transaction Agreement located at software.dell.com/legal/sta.

B. 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.

6. Proprietary Rights

The Software is protected pursuant to copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. All right, title, and interest in the intellectual property (including all copyrights, patents, trademarks, trade secrets, and trade dress) embodied in the Software 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 Agreement.

7 . Limited Warranty

A. DELL WARRANTS THAT THE SERVICES WILL BE PROVIDED BY QUALIFIED PERSONNEL IN A MANNER CONSISTENT WITH GOOD PRACTICE IN THE INFORMATION TECHNOLOGY SERVICES INDUSTRY. IF DELL BREACHES THIS WARRANTY, IT SHALL SUPPLY SERVICES TO CORRECT OR REPLACE THE WORK AT NO CHARGE. THE REMEDY SET FORTH IN THIS SECTION IS CUSTOMER’S EXCLUSIVE REMEDY FOR BREACH OF WARRANTY.

B. 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.

8 . Confidentiality

Confidential Information” means information that is designated as confidential or should reasonably be understood to be confidential. Confidential Information 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 treat the Confidential Information under terms at least as restrictive as those herein, and the receiving party shall be liable for unauthorized disclosures by its Representatives. Each party will use at least the same degree of care as it employs with respect to its own Confidential Information, but not less than a commercially reasonable standard of care. The foregoing shall not apply to information that (i) is 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; or (iii) is or becomes publicly available without fault of the receiving party. If receiving party must disclose Confidential Information as required by law, it shall give reasonable prior notice to the disclosing party. These obligations shall continue for 3 years from the initial date of disclosure, except that obligations related to information about a party’s intellectual property shall never expire.

9. Indemnification

A. If you purchased Services directly from Dell, Dell shall defend and indemnify you against any third-party claim that the Services (excluding Third-Party Products and open source software) infringe or misappropriate that third party’s United States (“U.S.”) patent, copyright, trade secret, or other intellectual property rights (“Claim(s)”). In addition, if Dell receives prompt notice of a Claim that Dell believes 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 arising from (a) modifications of the Products and Services that were not performed by or on behalf of Dell; (b) misuse, or the combination or use with Third-Party Products (the combination of which causes the claimed infringement); or (c) Dell’s compliance with your written specifications, including the incorporation of any software or other materials or processes you provide or request. Dell’s duty to indemnify and defend the Claim is contingent upon: (1) your prompt written notice of the Claim; (2) Dell’s right to solely control the defense and resolution of the Claim; and (3) your cooperation in defending and resolving the Claim. These are your exclusive remedies for any third-party intellectual property claim, 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 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 components 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; (iii) any inaccurate representation regarding the existence of an export license or any allegation made against Dell due to your alleged violation of applicable export laws; or (iv) your transferring or providing access to Excluded Data (as defined below) to Dell.

C. Each party shall defend and indemnify the other against any third-party claim for personal bodily injury, including death, where the injury has been exclusively caused by the indemnifying party’s gross negligence or willful misconduct in connection with this Agreement.

10. Compliance with Laws

A. Customer’s purchase of Services is for its own use, not for resale, export, re-export, or transfer. Customer is subject to and solely responsible for compliance with the export control and economic sanctions laws of the United States and other applicable jurisdictions. Customer’s purchase may not be used, sold, leased, exported, re-exported, or transferred except in compliance with such laws, including, without limitation, export licensing requirements, end-user, end-use, and end-destination restrictions, and prohibitions on dealings with sanctioned individuals and entities, including but not limited to persons on the Office of Foreign Assets Control's Specially Designated Nationals and Blocked Persons List or the U.S. Department of Commerce Denied Persons List. Customer represents and warrants that it is not the subject or target of, and that Customer is not located in a country or territory that is the subject or target of, economic sanctions of the United States and other applicable jurisdictions.

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. Dell is not responsible for determining whether any Third-Party Product to be used in the Services satisfies regulatory requirements of the country to which such Services are to be delivered or performed, and Dell shall not be obligated to provide any Service where the resulting Service is prohibited by law or does not satisfy the local regulatory requirements.

C. Dell’s privacy policies explain how Dell treats personal information and protects its customers’ privacy and can be found at dell.com/privacy.

11. Termination or Suspension

A. Suspension or Modification of Services. Dell may suspend, terminate, withdraw, or discontinue all or part of the Services when Dell believes, in its sole judgment, that you have breached any term of this Agreement or are involved in any fraudulent or illegal activities.

B. Termination. Either party may terminate an individual Service Agreement if the other party commits a material breach and the breach is not cured within 90 days of receipt of written notice. 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, 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.

12. 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 4(B) OR 8, 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.

13. 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 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 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 the 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 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 Dell-branded Software is Dell, One Dell Way, Round Rock, Texas 78682.

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 (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 and waive any right to have any Dispute resolved in any other venue. If any party breaches this provision by filing in any other court, the breaching party will owe the non-breaching party all their attorneys’ fees and costs incurred in response to that breach.

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. 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. Attorneys’ Fees. In any Dispute (other than as provided in Section 4B), each party will bear its own attorneys’ fees and costs and expressly waives any statutory right to attorneys’ fees under § 38.001 of the Texas Civil Practices and Remedies Code.

L. 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
Dell_Legal_Notices@dell.com

M. Entire Agreement; Severability. This Agreement and the related Service Agreements, each of which is incorporated in this Agreement for all purposes, constitutes the entire agreement between the Parties concerning the subject matter of this Agreement. There are no representations, understandings or agreements, written or oral, relative to this Agreement that are not fully expressed in this Agreement. In entering into this Agreement, neither Party is relying upon any representations or statements of the other that are not fully expressed in this Agreement; rather each Party is relying on its own judgment and due diligence and expressly disclaims reliance upon any representations or statements not expressly set forth in this Agreement. Any preprinted terms on Customer’s 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, or any Service 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 or the affected Service Agreement will remain in full force. No rights may arise by implication or estoppel, other than those expressly granted herein.

Dell Inc.
Professional Services Agreement (United States)
Revision Date 11/4/2015