16. Limited Warranty
THE SOLUTION, TOGETHER WITH ALL THIRD-PARTY PRODUCTS AND OPEN SOURCE SOFTWARE PROVIDED BY DELL, IS PROVIDED “AS IS.” DELL (INCLUDING ITS AFFILIATES, CONTRACTORS, AND AGENTS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, AND OFFICERS), ON BEHALF OF ITSELF AND ITS LICENSORS, CLOUD PARTNERS AND SUPPLIERS (COLLECTIVELY AND TOGETHER WITH DELL, THE “DELL PARTIES”), MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO THE SOLUTION OR ANY OF THE SOFTWARE OR SERVICES INCLUDED THEREIN, INCLUDING BUT NOT LIMITED TO ANY WARRANTY (1) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY OR NON-INFRINGEMENT; (2) RELATING TO THE PERFORMANCE OF SOFTWARE (INCLUDING WHETHER THE SOFTWARE IS OR WILL BE SECURE, ACCURATE, COMPLETE, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS OR OTHER HARMFUL COMPONENTS OR PROGRAM LIMITATIONS, OR THAT ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED ) OR OUR PERFORMANCE OF THE SERVICES (INCLUDING WHETHER THE SERVICES ARE OR WILL BE UNINTERRUPTED, TIMELY OR WITHOUT ERROR) OR THE SECURITY OF THE SOLUTION OR WHETHER THE SOLUTION IS SUITABLE FOR HIGH-RISK ACTIVITIES; (3) REGARDING THE RESULTS TO BE OBTAINED FROM THE SOLUTION (INCLUDING THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS OR EFFECTIVENESS OF ANY REPORTS, DATA, RESULTS OR OTHER INFORMATION OBTAINED OR GENERATED BY YOU RELATED TO YOUR USE OF THE SOFTWARE ) OR THE RESULTS OF ANY RECOMMENDATION BY US; OR (4) ARISING OUT OF ANY COURSE OF DEALING OR TRADE USAGE. ANY WARRANTY ON A THIRD-PARTY PRODUCT IS PROVIDED BY THE PUBLISHER, PROVIDER OR ORIGINAL MANUFACTURER, WHETHER OR NOT SUCH THIRD-PARTY PRODUCT IS DESIGNATED BY US AS “CERTIFIED,” “APPROVED” OR OTHERWISE. IN THE EVENT WE ARE PROVIDING THE SOLUTION IN CONNECTION WITH A TRIAL, THE SOLUTION IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES.
WITH RESPECT TO YOUR OR END USER’S USE OF THE SOFTWARE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS, UNLESS SUCH PROBLEMS OR VIRUSES ARE THE DIRECT RESULT OF OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT .
YOU AGREE THAT THE OPERATION AND AVAILABILITY OF THE SYSTEMS USED FOR ACCESSING AND INTERACTING WITH THE SOLUTIONS, INCLUDING TELEPHONE, COMPUTER NETWORKS AND THE INTERNET, OR FOR TRANSMITTING INFORMATION CAN BE UNPREDICTABLE AND MAY, FROM TIME TO TIME, INTERFERE WITH OR PREVENT ACCESS TO OR USE OR OPERATION OF THE SOLUTIONS. WE WILL NOT BE LIABLE FOR ANY SUCH INTERFERENCE WITH OR PREVENTION OF YOUR OR END USER’S ACCESS TO OR USE OF THE SOLUTIONS OR THE IMPACT SUCH INTERFERENCE OR PREVENTION MAY HAVE ON OUR ABILITY TO PERFORM THE SOLUTIONS.
17. Limitation of Liability
EXCEPT FOR INFRINGEMENT/MISAPPROPRIATION OF INTELLECTUAL PROPERTY, NEITHER PARTY WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY (a) LOSS OF REVENUE, INCOME, PROFIT, SAVINGS OR BUSINESS OPPORTUNITY; (b) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF A SYSTEM OR NETWORK, OR THE RECOVERY OF SUCH; (c) BUSINESS INTERRUPTION OR DOWNTIME; (d) LOSS OF GOODWILL OR REPUTATION; (e) SERVICES, SOFTWARE, DELIVERABLES OR THIRD-PARTY PRODUCTS NOT BEING AVAILABLE FOR USE; OR (f) THE PROCUREMENT OF SUBSTITUTE SOLUTIONS; ARISING OUT OF OR IN CONNECTION WITH THE SOLUTIONS PROVIDED HEREUNDER.
EXCEPT FOR INFRINGEMENT/MISAPPROPRIATION OF INTELLECTUAL PROPERTY, NEITHER PARTY’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING WITH RESPECT TO ANY SOLUTIONS PROVIDED HEREUNDER) IN ANY 12–MONTH PERIOD WILL EXCEED THE TOTAL AMOUNT RECEIVED BY DELL FROM YOU (OR FROM YOUR RESELLER, IF YOU HAVE PURCHASED FROM A RESELLER) DURING THE PRIOR TWELVE (12) MONTHS OF THIS AGREEMENT FOR THE SPECIFIC SOLUTION GIVING RISE TO SUCH CLAIM(S).
THESE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT OR OTHERWISE. THE PARTIES AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR OUR SALE AND PERFORMANCE OF THE SOLUTION TO CUSTOMER, AND SUCH LIMITATIONS 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.
18. Confidentiality
Confidential Information may not be disclosed except to affiliates, employees, agents and subcontractors who “need-to-know” it and who have agreed in writing to treat the Confidential Information under terms at least as restrictive as those in this Agreement. Each party agrees to take the necessary precautions to maintain the confidentiality of the other party’s Confidential Information 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 to maintain confidentiality. If a recipient is required by a court or government agency to disclose Confidential Information, the recipient will provide reasonable advance notice to other party before making the disclosure.
19. Indemnification
We will defend and indemnify you 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 that the Solution (excluding Third-Party Products and open source software) infringes or misappropriates that third-party’s Intellectual Property rights enforceable in the country in which the Solution is sold to you. In addition, if we receive prompt notice of a claim that, in our reasonable opinion, is likely to result in an adverse ruling, then we will, at our option, (i) obtain a right for you to continue using the Software or that allow us to continue performing the Services; (ii) modify the Software or Services to make them non-infringing; (iii) replace the Software or Services with a non-infringing equivalent; or (iv) refund any pre-paid fees for the allegedly infringing Services that have not been performed or provide a reasonably depreciated or pro rata refund for the allegedly infringing Software. Notwithstanding the foregoing, we will have no obligation under this Section 19 for any claim resulting or arising from (1) modifications of the Software or Services that were not performed by or on behalf of us; (2) the combination, operation or use of the Software or Services in connection with a Third-Party Product (the combination of which causes the claimed infringement); or (3) our compliance with your written specifications or directions, including the incorporation of any software or other materials or processes provided by or requested by you. This Section 19 states Customer’s exclusive remedies for any third-party Intellectual Property claim or action, and nothing in this Agreement or elsewhere will obligate us to provide any greater indemnity to Customer. This paragraph of Section 19 will not apply in the case of a Trial.
You will defend and indemnify the Dell Parties 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 (a) your failure to obtain or maintain 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, Third-Party Products or other components directed or requested by you to be installed or integrated as part of the Solution; (b) your breach of this Agreement or violation of any applicable law, regulation or order; (c) any inaccurate representation regarding the existence of an export license or any allegation made against the Dell Parties due to your violation or alleged violation of applicable Control Laws; (d) you providing any Excluded Data to Dell; (e) tax liabilities that are your responsibility pursuant to Section 2; (f) your use of the Solution; (g) the failure of any End Users to comply with your obligations under this Agreement; and (h) your provision of your own services, software, technology or solution.
Each party will defend and indemnify the other party against any third-party claim or action for personal bodily injury, including death, to the extent directly caused by the indemnifying party’s gross negligence or willful misconduct in the course of performing its obligations under this Agreement.
20. Indemnification Procedure
The indemnified party will (i) promptly notify the indemnifying party in writing of any claim; (ii) grant the indemnifying party sole control of the defense and resolution of the claim; and (iii) cooperate with the indemnifying party, at the indemnifying party’s expense, in defending and resolving the claim. Failure to provide prompt notice, however, will not affect the indemnifying party’s obligations to the extent the failure does not materially prejudice the indemnifying party’s ability to defend the claim.
In no event will an indemnifying party consent to the entry of any judgment or enter into any settlement with respect to any third-party claim without the prior written consent of the indemnified party (not to be unreasonably withheld) unless the judgment or settlement involves only the payment of money damages, without admission of fault, and expressly and unconditionally releases the indemnified party from all liabilities and obligations with respect to the claim.
21. Additional Information
A. Independent Contractor Relationship; No Third-Party Beneficiaries. The parties are independent contractors. No provision of this Agreement creates an association, trust, partnership or joint venture or imposes fiduciary duties, obligations or liability between you and us. Neither party will have any rights, power or authority to act or create an obligation, express or implied, on behalf of another party except as specified in this Agreement. This Agreement does not and is not intended to confer any rights or remedies, express or implied, upon any person other than the parties hereto.
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. In the case of a delay arising under this Section, Customer acknowledges and agrees that its data may not be recoverable and accepts responsibility for re-entry of such data.
C. Export Compliance; Excluded Data. You will comply with all applicable import, re-import, export and re-export control laws, orders and regulations (“Control Laws”), including the Export Administration Regulations, the International Traffic in Arms Regulations (“ITAR”) and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, you are solely responsible for compliance relating to the manner in which you choose to use the Solution, including the location from which you or your End Users access the Solution, your transfer and processing of data or software, the provision of data or software to End Users and any Control Laws of the country in which the Services or Software are rendered or received. Customer acknowledges that data processed in the Solution may contain personally identifiable information and associated metadata, and further agrees as data controller to comply with applicable privacy laws and/or regulations related to the provision of data. Customer Content, software or any Customer Solution that you provide in connection with the Solution will not (i) be classified or listed on the U.S. Munitions list; (ii) contain defense articles or defense services; (iii) contain ITAR-related data; or (iv) include protected health information subject to specific federal or state privacy or data security requirements (items (i) – (iv) collectively, the “Excluded Data”).
D. Regulatory Requirements. We are not responsible for determining whether any Third-Party Product used in the performance of the Solution satisfies the local regulatory requirements of the country in which the Third-Party Product is delivered, and we are not obligated to provide any Software or perform any Services where we become aware that the resulting Software or Services do not satisfy local regulatory requirements.
E. Revision to Online Terms. Any revisions to this Agreement (other than to the AUP) (“Revisions”) are not effective until the underlying Solution Description or Order Form is renewed or extended following the date we publish the Revisions on our website.
F. Order of Precedence. If there is a conflict between the terms of any of the documents that comprise this Agreement, the documents will prevail in the following order: (i) Regional Addendum (if any), (ii) the Solution Description or Order Form, (iii) these terms and conditions, the (iv) AUP; provided, however, that for Partner Solutions, as between Customer and the Cloud Partner, the Partner Terms will prevail over any of the terms of any of the documents that comprise this Agreement. Prevailing terms will be construed as narrowly as possible to resolve the conflict while preserving as much of the non-conflicting terms as possible, including preserving non-conflicting provisions within the same paragraph, section or sub-section.
G. Entire Agreement; Severability. This Agreement is the entire agreement between you and Dell with respect to its subject matter and supersedes all prior oral and written understandings, communications or agreements between you and Dell for the Solution. Except as otherwise provided for in Section 21.E, no amendment to or modification of this Agreement, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this Agreement should be found to be void or unenforceable, the 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 and will not be terminated. 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.
H. U.S. Government Restricted Rights. The Software and documentation provided with the Software and Services are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as these 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 is Dell Products L.P., One Dell Way, Round Rock, Texas 78682.
I. Governing Law. This Agreement and ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN YOU AND DELL PARTIES arising from or relating to this Agreement, its interpretation or the breach, termination or validity thereof, any 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 service (a "Dispute" ) shall be governed by the laws of the State of Texas, without regard to conflicts of law.
J. Jurisdiction and Venue. The parties agree that any Dispute will be brought exclusively in the state or federal courts located in Travis or Williamson County, Texas. The parties further agree to submit to the personal jurisdiction of the state and federal courts located in Travis or Williamson County, Texas, and agree to waive any objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
K. 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.
L. No Class Actions. NEITHER CUSTOMER NOR DELL WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR PURSUE ANY CLAIM AS A REPRESENTATIVE OF A CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
M. Limitation Period. NEITHER PARTY Will be liable for OR ASSERT any claim more than two years after THE claim first arose.
N. Waiver. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers must be in writing to be effective.
O. Attorneys’ Fees. In any Dispute (other than as provided in Section 3B), 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.
P. Notices. Notice to us under this Agreement must be in writing and sent by overnight courier or certified mail to Dell Marketing L.P., Attn: Contracts Manager, One Dell Way, Round Rock, Texas 78682.
Supplemental Terms and Conditions:
Additional Terms for Customer and/or End Users in EMEA:
For Customers and/or End Users who receive or are given access to the Solution or Customer Solution in any of the countries in Europe, the Middle East, or Africa, the provisions of this EMEA Addendum shall apply. Customer shall be responsible for ensuring compliance by End Users with the terms of this Agreement including this EMEA Addendum.
1. Data Privacy.
1.1 In this clause 1, the terms “data controller”, “data processor”, “personal data” and “processing” shall be as defined in the European Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (“Directive”) as amended or superseded from time to time.
1.2 To the extent Customer is a data controller for the purpose of any personal data processed under or in connection with this Agreement, Customer shall comply with the provisions and obligations imposed by the Directive.
1.3 As data controller, Customer confirms that it has obtained all necessary authorisations for lawful processing, prior to passing personal data to Dell. To the extent Dell processes personal data as a data processor for Customer under or in connection with this Agreement, Dell shall ensure appropriate protection is in place to safeguard such personal data.
1.4 Dell shall use its reasonable efforts to assist Customer to comply with its obligations, as data controller, to respond to requests for access to Customer records made by individuals to whom the personal data relates, subject to the payment by Customer of Dell’s reasonable professional charges for the time engaged by Dell staff in so doing.
1.5 Customer authorises Dell to collect, use, store and transfer the personal data Customer provides to Dell for the purpose of performing Dell’s obligations under this Agreement and for any additional purposes described, pursuant to this Agreement.
1.6 Dell may, in the normal course of business, make worldwide transfers of personal data on its corporate systems, to other entities, agents or subcontractors in the same group of companies, or to other relevant business partners who may have incidental access to personal data. When making such transfers, Dell shall ensure appropriate protection is in place to safeguard personal data transferred under or in connection with this Agreement.
1.7 Dell shall not be liable for any claim brought by Customer or a data subject arising from any action or omission by Dell to the extent that such action or omission resulted from compliance by Dell with Customer’s instructions.
2. Employees.
2.1 In this clause 2, “Claim” means claims, demands, actions, losses (including, without limitation, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), expenses, liabilities, judgments, settlements, damages and costs (including all interest, penalties and legal and other professional costs and expenses).
2.2 Dell personnel shall remain under the sole control, direction and authority of Dell. Dell will solely be responsible for the human resources it assigns for the provision of the Solution. Dell personnel will remain Dell’s employees for all purposes and under Dell’s administrative and hierarchical control. Customer shall ensure that Customer, its agents, employees or representatives do not in any way interfere in Dell’s actions as an employer nor influence this in any way.
2.3 Customer shall indemnify on demand Dell from and against all Claims incurred by Dell, Dell affiliates, its officers, agents and sub-contractors arising out of or in connection with Customer’s or its employees, contractors or agents failure to comply with regulations governing trade union or employee representatives, including but not limited to employee representatives consultation, the termination of the employment rights (by way of redundancy or otherwise) or deemed transfer of any employment rights pursuant to applicable laws and regulations of any Customer employees or Customer’s previous supplier providing services similar to the Solutions resulting from the entering into or termination of any Solutions or arising out of or in connection with this Agreement.
2.4 If a member of Dell personnel (whether employed or engaged by Dell or its contractors or agents) brings a Claim against Dell or its subcontractors or suppliers as a result of any act, omission or default of Customer or it employees, contractors or agents (including any Claim arising from a request by Customer that the individual be removed from providing any part of the Solutions), Customer shall cooperate with Dell in defending any such proceedings and shall indemnify on demand Dell, its subcontractors and suppliers from and against all Claims incurred by Dell, Dell affiliates, its officers, agents and sub-contractors arising out of or in connection with any award of compensation or other payment made by a court or tribunal or any monies paid in respect of any settlement or compromise agreement and all legal costs and any disbursements incurred by Dell in dealing with any such Claim.
Additional Terms for Customer and/or End Users in Canada:
This Canadian Addendum to the Agreement applies to Customer, where Customer is U.S.-based but has End Users who receive or are given access to a Solution or Customer Solution in Canada. For greater certainty this Canadian Addendum is not intended to facilitate the sale of Solutions from Dell directly to a Canadian company.
1. Data Privacy.
1.1 You acknowledge that the Solution is provided from facilities located outside of Canada and any data, or information you provide through the Solution (including personal information) will be transmitted and stored outside of Canada.
1.2 You will be responsible to ensure that you have obtained all rights, permissions, and consents or have provided disclosures necessary to use and transfer such data and information outside of Canada in conjunction with Dell’s performance of the Solution.
1.3 You will also be responsible to ensure that you are permitted to disclose or transfer data and information outside of Canada under any laws that may be applicable to your business, including the data and information collected and used by or in the course of conducting your business.
Additional Terms for Customer and/or End Users in LatAm:
For Customers and/or End Users who receive or are given access to the Solution or Customer Solution in any of the countries in Central and South America (“LatAm”), the provisions of this LatAm Addendum shall apply. Customer shall be responsible for ensuring compliance by End Users with the terms of this Agreement including this LatAm Addendum.
1. Data Privacy.
1.1 You expressly authorize Dell to use, reproduce, modify, perform, display and distribute your and End User’s data as is reasonable or necessary for Dell to perform or provide the Solution.
1.2 You acknowledge and expressly consent that the Solution is provided from facilities located outside of your country and LatAm and any data or information you provide through the Solution (including personal information protected by Data Privacy Laws) will be transmitted and stored outside of your country and LatAm. You agree that the stored information may be subject to the applicable laws and jurisdiction of the place of such facilities.
1.3 You will be responsible to ensure that you have obtained all rights, permissions, and consents or have provided disclosures necessary to use and transfer such data and information outside of LatAm in conjunction with Dell’s performance of the Solution. Once such data or information has been transferred to Dell you will have been deemed to have obtained the necessary consent and authorisations.
1.4 You will also be responsible to ensure that you are permitted to disclose or transfer data and information outside of LatAm under any laws that may be applicable to your business, including the data and information collected and used by or in the course of conducting your business.
1.5 You acknowledge and expressly consent that Dell may, in the normal course of business, make worldwide transfers of personal data on its corporate systems, to other entities, agents or subcontractors in the same group of companies, or to other relevant business partners who may have incidental access to personal data. When making such transfers, Dell shall ensure appropriate protection is in place to safeguard personal data transferred under or in connection with this Agreement.
1.6 You will be solely responsible for all access of information requests made by individual and legal entities permitted by local legislation. Dell shall use its reasonable efforts to assist Customer to comply with its obligations, subject to the payment by Customer of Dell’s reasonable professional charges for the time engaged by Dell staff in so doing and any indemnification as applicable.
Cloud Solutions Agreement Acceptable Use Policy
This Cloud Solutions Agreement Acceptable Use Policy (the “AUP”) sets forth certain limitations and restrictions required in connection with your use and your End Users’ use of (i) the Solutions, and (ii) any online portal, console, dashboard or similar interface used in accessing the Solutions (the “Portal”). We may revise this AUP from time to time to add or modify restrictions on your use or your End Users’ use of the Solutions or the Portal. If you or your End Users violate this AUP, we may suspend or terminate your use or your End Users’ use of the Solutions.
Terms used in this AUP that are capitalized and not otherwise defined have the meanings set forth in the Dell Cloud Solutions Agreement.
You are prohibited from (1) attempting to use or gain unauthorized access to our or to any third-party's networks or equipment; (2) permitting other individuals or entities to copy the Solutions; (3) providing unauthorized access to or use of Activation Instructions; (4) attempting to probe, scan or test the vulnerability of the Solutions or of a system, account or network of Dell or any of our customers or suppliers; (5) interfering or attempting to interfere with service to any user, host or network; (6) engaging in fraudulent, offensive or illegal activity of any nature; (7) uploading any content, or engaging in any activity, that is pornographic, obscene, harassing, abusive, slanderous or defamatory or that encourages, promotes or expresses racism, hatred, bigotry or violence; (8) engaging in any activity that infringes the intellectual property rights or privacy rights of any individual or third-party; (9) transmitting unsolicited bulk or commercial messages; (10) intentionally distributing worms, Trojan horses, viruses, corrupted files or any similar items; (11) restricting, inhibiting or otherwise interfering with the ability of any other person, regardless of intent, purpose or knowledge, to use or enjoy the Solutions (except for tools with safety and security functions); or (12) restricting, inhibiting, interfering with or otherwise disrupting or causing a performance degradation to any Dell (or Dell supplier) facilities used to deliver the Solutions.
We may investigate suspected violations of this AUP. We may report suspected violations of this AUP to applicable law-enforcement authorities or third-parties and may cooperate with any investigation of illegal activities associated with your use or your End Users’ use of the Solutions, the Portal, the system or network, or any violation of this AUP.
Dell Cloud Solutions Agreement
Revision Date: May 27, 2016