Commercial Terms of Sale - United Kingdom
These terms together with the Service Documents, Software Agreement and Supplementary Terms for Infrastructure Products (as defined below) (together, the “Agreement”), made between you (“you”) and Dell Corporation Limited (“Dell”), govern your purchase and use of Products and Services from Dell. In the event of a conflict between these agreements the following priority order will apply: (1) the applicable Service Document or Software Agreement; (2) the Supplementary Terms for Infrastructure Products (as defined below) and (3) these Commercial Terms of Sale.
The Products and Services are solely for your internal use. If you wish to resell Dell Products and Services, alternative reseller terms of sale, will apply.
“Affiliate” means a legal entity that is controlled by, controls, or is under common control with Dell or you respectively. Control means more than 50% of the voting power or ownership interests.
“Hardware” means computer hardware including all components embedded before shipping.
“Infrastructure Products” means SC and VxRail Products and their related Software or, if offered by Dell in an individual quote to you, any other Product that comprises data storage, back-up and converged function data management products.
“Order Confirmation” means the written order confirmation issued by Dell when Dell accepts your order for Products and/or Services.
“Products” means Hardware, Software, or both, including the Infrastructure Products, and may be Dell, Dell EMC or third party branded.
“Services” means any and all services provided by (or on behalf of) Dell.
“Service Document” means (i) the service descriptions found here or, for Infrastructure Products, the Product Notice, Product Warranty, Customer Service Options, Personalized Support Services and additional Warranty Information found here; or (ii) any statement of work describing specific Services.
“Software” means any software, library, utility, tool, or other computer or program code, in object (binary) or source-code form, as well as related documentation, provided by Dell to you, and may include third party manufactured software titles. Software includes software (1) provided by Dell and locally installed on Hardware or (2) made available by Dell and accessed by you through the internet or other remote means (such as websites, portals, and “cloud-based” solutions).
“Software Agreement” means the license agreement included in writing with the software packaging or presented to you during installation or use of the Software or otherwise communicated to you in writing; or, if no license terms accompany the Software or have been made available in writing or online, the applicable End User License Agreement, such as the Dell End User License Agreement A version, found here and, for Infrastructure Products, the ISG EULA found here.
3. Duration of the Agreement
This Agreement will continue until all Services and applicable Hardware warranties have expired. Each Service will continue for the term stated in the Order Confirmation or, if no term is stated, the term, if any, stated in the Service Document. Any use beyond that term will be subject to the then-current Service Document.
Where relevant, the description of the Products and Services and related pricing will be stated in a quote provided to you by Dell. A contract between you and Dell is formed only when Dell issues you with an Order Confirmation or otherwise accepts a purchase order issued by you on the basis of this Agreement. The terms of any Service Documents referred to in a customer quote or Order Confirmation shall be deemed to be incorporated into this Agreement. For the avoidance of doubt, to the extent that Dell accepts a purchase order from you: (a) Dell rejects all additional or inconsistent terms that may be contained in any purchase order or other documentation submitted by you in connection with your order; and (b) Dell conditions its acceptance on the application of these terms.
5. Prices, Payment and Taxes
A. Prices. Prices for Products and/or Services shall be set out in the Order Confirmation or Service Document.
B. Payment. Invoices shall be paid within 30 days of the invoice date in the currency identified on the invoice. You must advise Dell in writing of a material error in the invoice within 14 days of the invoice date. In that event, (i) payment of amounts corrected by Dell shall be due within 30 days of correction, and (ii) all other amounts shall be paid by the invoice due date.
C. Taxes. All amounts due under the Agreement are exclusive of VAT. Dell will provide a valid VAT invoice. You are responsible to pay the VAT.
6. Products, Services and Software
A. Performance. Dell (or its appropriate Affiliate or subcontractor) shall provide (i) the Hardware in accordance with the Order Confirmation and (ii) the Services in accordance with, and subject to any additional terms, exclusions and limitations set out in, the applicable Service Document. The Infrastructure Products shall be provided in accordance with and subject to additional terms which can be found here (“Supplementary Terms for Infrastructure Products”) and which are incorporated by reference into this Agreement.
B. Title and Risk. Risk in the Hardware passes from Dell to you upon delivery by Dell, or its carrier, to you or your authorized representative, at the location specified in the Order Confirmation. Dell retains ownership of the Products until full payment is received. Risk and title to the Infrastructure Products shall pass to you as set out in the Supplementary Terms for Infrastructure Products.
C. Suspension. Dell may suspend all or part of its obligations under this Agreement:-
(i) if required to do so under applicable law;
(ii) if Dell believes that you are involved in any fraudulent or illegal activities; or
(iii) if you are in breach of your payment obligations or other terms set out in this Agreement.
D. Software. The terms upon which Dell shall provide the Software to you are set out in the applicable Software Agreement.
7. Your Obligations
A. Your Authorisation for Provision of Services. You will ensure that Dell’s (or its appropriate Affiliate or subcontractor’s) performance of the Services will not affect any third party manufacturer’s warranties. You authorise, and will have obtained all necessary permissions or consents to allow Dell to use or access any and all software, hardware, systems and data that you provide to us, or that you request Dell to use, or which may be necessary to perform the Services.
B. Co-operation. You will provide all co-operation necessary for Dell (and/or its Affiliates or subcontractors) to perform the Agreement including co-operating with any instructions provided by Dell.
C. On-site Obligations. Where Services are provided on-site, you will provide Dell with free, safe and sufficient access to your facilities and environment, including working space, electricity, safety equipment, access to a computer and a local telephone line.
D. Data back-up. You are solely responsible for completing regular back-ups of all data, software and programs on your systems, prior to and during the delivery of the Services.
8. Intellectual Property and Confidentiality
A. Intellectual Property: All right, title, and interest in the intellectual property in the Hardware, and the methods and processes by which the Services are performed belong solely and exclusively to Dell, its suppliers or licensors. Dell grants you a non-exclusive, non-transferable, free of charge right to use the Services solely (i) in the country or countries in which you do business, (ii) for your internal use, and (iii) for you to enjoy the benefit of the Services as stated in this Agreement.
B. Confidentiality: Information that is not generally known to the public, whether or not it is described as confidential or which, due to the nature of the information or the circumstances surrounding its disclosure, should reasonably be understood to be confidential (“Confidential Information”), may only be disclosed to the receiving party on a “need-to-know” basis. The receiving party shall keep the Confidential Information confidential and may not disclose it to any third party. The receiving party shall be liable to the disclosing party for disclosures by its personnel or advisors.
9. Quality of Products
A. Dell will provide the Services with reasonable care and skill (the “Services Warranty”).
B. Dell will provide the Hardware free from material defects for a period of 12 months from the date of the invoice (“Hardware Warranty”).
C. Dell will provide the Dell-branded spare parts free from defects for (i) 90 days from the date of delivery or (ii) for the remainder of the period of the Hardware Warranty if longer.
D. Dell will provide the Infrastructure Products in accordance with the warranty, remedy and exclusion provisions set out in the Supplementary Terms for Infrastructure Products.
E. Dell will pass to you, to the extent that Dell is permitted to do so, the benefit of any warranty or guarantee given by the manufacturer or supplier of any third party manufactured Hardware or Software. Without prejudice to your rights against Dell, Dell may therefore ask third party Hardware manufacturers and/or third party Software licensors to fulfill their obligations to you under such warranties and guarantees and seek to ensure that such manufacturers and/or licensors do so with reasonable skill and care and within a reasonable period.
F. Dell does not warrant that the Software will operate uninterrupted or that it will be free from defects or that it will meet customer’s requirements.
G. All other warranties and other terms implied by law are, to the fullest extent permitted by law, excluded from the Agreement.
H. If the Hardware does not comply with the Hardware Warranty, you must notify Dell in writing within 7 days of the date you discovered, or ought to have discovered, the defect.
I. Dell shall either repair or replace the Hardware that does not comply with the Hardware Warranty. Dell may use new or reconditioned goods and components in line with industry standards.
J. Where Hardware is replaced, you shall return it to Dell or you shall pay Dell the applicable prices for the replacement Hardware which shall be invoiced by Dell.
K. Dell shall re-perform those Services which do not comply with the Services Warranty.
L. The above warranties do not apply to:
(i) damage caused by alteration, repair, adjustment or installation by someone other than Dell;
(ii) damage caused due to accident, misuse or abuse;
(iii) damage caused due to Dell’s compliance with your written instructions;
(iv) damage caused due to normal wear and tear;
(v) damage caused due to use of parts and components not supplied or intended for use with the Products; or
(vi) products, software or services made, created or performed by a party other than Dell;
together the “Excluded Events”.
A. Indemnity from Dell. Dell shall indemnify you (a) against any third party claim that the Hardware and/or Services (excluding third party Products and open source software) supplied by Dell infringe or misappropriate that third party’s intellectual property rights in the country in which Dell delivers the Hardware and/or Services (“Indemnified Claims”) and (b) by paying: (i) the resulting costs and damages finally awarded against you by a court of competent jurisdiction to the extent that such are the result of the Indemnified Claim; or (ii) the amounts stated in a written settlement negotiated and approved by Dell. This clause is an exclusive statement of Dell’s liability and responsibility for Indemnified Claims and nothing in this Agreement or elsewhere will obligate Dell to provide any greater indemnity.
B. Additional Remedies. 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 discretion and as a sole and exclusive remedy, offer a reasonable resolution to the breach such as, but not limited to, obtaining a right for you to continue using such Hardware or Services, modifying such Hardware to make it non-infringing or replacing such Hardware. Dell shall have no obligation for any claim resulting or arising from any Excluded Events.
C. Process. Dell’s duty to indemnify is dependent upon:-
(1) Dell receiving prompt written notice of the third party claim;
(2) Dell having sole control of the defence and resolution of such claim, and
(3) your cooperation with Dell in defending and resolving such claim.
D. Indemnity from you. You shall indemnify Dell and its Affiliates against any third party claim arising out of:-
(1) your failure to obtain any appropriate license, rights, or other permissions, regulatory certifications or approvals associated with technology, software 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;
(2) your breach of Dell’s, its Affiliates’ or third parties’ intellectual property rights;
(3) any inaccurate representation regarding the existence of an export license or any allegation made against Dell or its Affiliates due to your violation or violation of applicable export laws, regulations, or orders; and
(4) any allegation made against, or loss to, Dell due to your violation or alleged violation of applicable anti-bribery or anti-corruption laws, regulations or orders.
11. Compliance with Laws
A. Each party agrees to comply with all applicable laws and regulations.
B. You acknowledge that the Products and Services provided under this Agreement, which may include technology, authentication and encryption, are subject to the customs and export control laws and regulations of the United States (“U.S.”); may be rendered or performed either in the U.S., in countries outside the U.S., or outside the borders of the country in which you or your systems are located; and may also be subject to the customs and export laws and regulations of the country in which the Products or Services are rendered or received. You also may be subject to import or re-export restrictions in the event you transfer the Products or Services from the country of delivery and you are responsible for complying with applicable restrictions.
A. Either party may terminate this Agreement (i) if the other party commits a material breach which is not cured within 30 days of written notice or (ii) if the other party ceases, or threatens to cease, to carry on business or becomes insolvent.
B. 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.
13. Limitation of Liability
A. Neither Dell nor you exclude or limit liability for (i) death or personal injury resulting from negligence; (ii) fraud or fraudulent misrepresentation; or (iii) any other liability that cannot be excluded by law.
B. Neither Dell nor you shall be liable for (i) loss of profit, income or revenue; (ii) loss of use of your systems or networks; (iii) loss of goodwill or reputation; (iv) loss of, corruption of or damage to data, software or media; (v) recovery or reinstallation of data or programs; or (vi) special, indirect or consequential loss or damage.
C. Neither party’s total liability to the other party, however arising out of or in connection with this Agreement, shall exceed 125% of the prices payable by you to Dell under this Agreement.
14. Data Privacy
A. Each party shall comply with all laws and regulations that are applicable to that party in relation to the processing of personal data under this Agreement. In this clause, “personal data”, “controller” and “processing” shall have the meaning set out in the General Data Protection Regulation (EU) 2016/679.
B. You shall obtain all necessary rights, permissions and consents prior to disclosing any personal data to Dell.
C. To the extent that Dell processes any personal data on your behalf in the performance of this Agreement, Dell shall only process the personal data as required to fulfil its legal obligations under applicable laws and regulations and in accordance with a form of Data Processing Agreement to be agreed between the parties. In the absence of an agreed form of Data Processing Agreement, where and to the extent that Dell is required to process any personal data in the performance of this Agreement (Dell acting as a processor, for you, as a controller of the relevant personal data), it shall do so in accordance with Dell’s standard Data Processing terms, available here.
D. You agree that, subject to Dell’s compliance with this clause 14, Dell can use any customer or transaction related data for the purposes of providing, assessing and/or improving Products, Services or other offerings.
15. WEEE Compliance
Dell takes responsibility for compliance with the Waste Electrical and Electronic Equipment Directive 2002/96/EC (“WEEE”) as amended or superseded from time to time. You are responsible for returning products at your cost to Dell’s designated collection facilities as per Dell’s WEEE recycling program –www.euro.dell.com/recycling.
16. Additional Terms
A. Assignment and Subcontracting. Neither party may assign or transfer this Agreement without the prior written consent of the other party except that Dell may without your consent (i) assign to its affiliated companies and (ii) subcontract any or all of its obligations under this Agreement but shall remain liable to you for such obligations.
B. Excused Performance. Neither party shall be liable to the other for any delay or failure to perform any of its obligations caused by events beyond its reasonable control. If the delay lasts longer than 30 days, then the other party may immediately terminate, in whole or in part, this Agreement by giving written notice to the delayed party.
C. Governing Law. This Agreement will be governed by English law and the English courts shall have exclusive jurisdiction.
D. Third Party Rights. A person who is not a party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
E. Notices. Notice to Dell under this Agreement must be in writing and sent by postage prepaid first-class mail or receipted courier service to the address below or to such other address (including e-mail) as specified in writing, and will be effective upon receipt.
F. Entire Agreement This Agreement is the entire agreement with respect to its subject matter and each party acknowledges that it has not relied on, and shall have no right or remedy in respect of any statement, representation or warranty other than as expressly set out in this Agreement.
G. Changes. Changes to this Agreement will be made only through a written amendment signed by both parties.
H. Severability. If any provision of this Agreement is found to be void or unenforceable, such provision will be removed or modified to the extent necessary to give effect to the commercial intention of the parties and to comply with the law, and the remainder of this Agreement will remain in full force.
Dell Corporation Limited Commercial Terms of Sale (UK) Revision Date 6/6/2018