5. SOFTWARE LICENSE TERMS
Unless otherwise established in the Product Schedules:
- License Grant of Software. Subject to OEM’s compliance with the terms of this Agreement, Supplier grants to OEM a non-exclusive, non-transferable, license to resell and distribute the Software to End-Users for their internal business operations only. The quantity of Software and any other usage restrictions and/or descriptions (e.g., ‘pool’ or ‘enterprise’ licensing arrangements) shall be accurately detailed and agreed upon between Supplier and OEM (provided in this Agreement, Quote and Product Notice), and the OEM shall convey to its End-User, such usage and/or descriptions, only to the extent Supplier has granted (as outlined in the OEM documentation provided to the End-User).
- License Grant of Documentation. Subject to OEM’s compliance with the terms of this Agreement, Supplier hereby grants to OEM a royalty-free, non-exclusive, non-transferable, license to distribute the then-current, generally available documentation (“Documentation”) to End-Users in conjunction with the distribution of the applicable ordered Products solely for the purpose of supporting End User’s use of the applicable ordered Products.
- License Restrictions. Except for any Software and Documentation license expressly granted to OEM in this Agreement, no rights are granted, and none shall be implied. All Software licenses are for use of object code only. Without Supplier’s prior written consent, OEM shall not, and OEM shall not permit any third party to, do any of the following: (i) sublicense any Supplier Software, (ii) cause or permit the copying or reproduction of Software; (iii) translate, adapt, enhance, supplement, vary or modify the Software or Documentation; (iv) disassemble, decompile, or reverse engineer the Software or create any derivative works based thereon; (v) use the Software to refurbish Supplier Products; (vi) use Software in a service bureau, application service provider or similar capacity; (vii) change the Supplier copyright notices or Software legends or proprietary notices on or in any Documentation, Software or Equipment; (viii) create Internet "links" to the Software or "frame" or "mirror" the Software;or (ix) disclose to any third party the results of any comparative or competitive analyses, benchmark testing or analyses of Standard Products performed by, or on behalf of, OEM or End-Users. For clarity and notwithstanding anything contrary in this Agreement, Software and Documentation are only licensed, and are not sold to OEM
- OEM and End-User Compliance. Use of Software by the End-User is subject to and governed by the end user software license agreement that is delivered with, included in, made available by download, or otherwise accompanies the Software or Products, such as (i) “click-to-accept” agreement included as part of the installation or download process, (ii) “shrink-wrap” agreement included in the Product packaging, or (iii) a notice indicating that by installing or using a Product or component, the related license terms apply. If no license 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 OEM will notify End-User the Supplier Software shall be governed by and subject to the applicable license agreement at www.dell.com/licenseagreements (“Supplier EULA”). Any updates to the Supplier EULA shall be posted here.
- Offer Specific Terms. For certain Third Party Software transactions, if requested by Supplier, OEM will notify End-User in OEM’s End-User agreement that the Third Party Software is subject to and governed by it’s own license terms or found at the Offering Specific Terms Table, found at //www.dell.com/learn/us/en/uscorp1/offering-specific-terms-table (“Separate License Terms”) and OEM will ensure the End-User agrees and accepts the Separate License Terms. OEM’s may not modify in any way the Supplier EULA, the Separate License Terms or the quantity or other usage restrictions and/or descriptions.
- End User Violation. OEM’s will immediately notify Supplier if OEM becomes aware of any End-User’s violation of a Supplier EULA or Separate License Terms Supplier may, without waiving any other rights or remedies and without liability to OEM or End-User, suspend or terminate the provision of any one or more of the Software to End-User in response to End-User’s violation or suspected violation.
- Purchases Acknowledgment. For certain Software transactions, OEM agrees that (i) Supplier may present or, if requested by Supplier, OEM shall present, a purchase acknowledgment form directly to the End-User, and (ii) Supplier is not required to process OEM’s Order or deliver the applicable Software to the End-User unless and until such End-User has executed the purchase acknowledgment form.
- Prohibited/Limited Use. OEM’s may not use, install or download Software for OEM’s internal use. Before OEM installs, downloads, or otherwise uses Software on behalf of an End-User, OEM shall (i) obtain the End-User’s written authorization to accept the end-user software license agreement on behalf of the End-User, (ii) comply with the software license agreement with regard to OEM’s use of the Software, and (iii) for Canadian based End-Users, OEM shall obtain End-User’s consent as required by applicable law to install the Software on End-User’s system.
- Activation Codes. If OEM receives activation or registration codes or license keys (“Activation Codes”), OEM shall distribute the Activation Codes as directed by Supplier and to activate (i) only the particular Software copy for which the Activation Codes are intended by Supplier to be used and (ii) only as many copies of the Software as licenses OEM have purchased and resold to an End-User. OEM’s shall not reuse Activation Codes for multiple End-Users or for multiple Software copies for the same End-User.
6. SERVICE AND SUPPORT
Unless otherwise established in the Product Schedules:
- Support Services. OEM shall establish and maintain support services for its End-Users with respect to the OEM Product. OEM may contract Support Services from Supplier for Standard Products, and depending on the Standard Product, Supplier may allow OEM to provide Support Services on Standard Products only after Supplier designated certifications and qualifications are obtained. Support Services will be performed in accordance with the applicable Service Agreement, or as outlined in the Product Addendum and with all published and available technical documentation and specifications that Supplier releases concerning the Standard Product. A transfer of Support Services, if allowed on such Product, must be done in accordance with the applicable Services Agreement (or as outlined in the Product Addendum), and may depend on geographical availability of the Support Services.
- Resell. OEM may resell Support Services (as defined and outlined in the Product Schedule) only with Standard Products and only to End-Users who agree to be bound by Services Agreements that apply to such Services. OEM will incorporate in an enforceable manner the Service Agreement, including terms and conditions incorporated by reference (“Services Flowdown Terms”), into its own agreement with End-Users ("End-User Agreement"). OEM acknowledges and agrees that Supplier is a third party beneficiary of the End-User Agreement and OEM will require the End-User to acknowledge and agree as to such in the End-User Agreement. Supplier reserves the right, in its sole discretion, to suspend or terminate the provision of any one or more of the Services to you or an End-User in response to such violation, or suspected violation, of any of the Services Flowdown Terms, and Supplier will have no liability to you or End-User as a result of any such suspension or termination.
- Customization Services. This section shall apply whether OEM or Supplier performs engineering changes or configuration Services to customize the Standard Product portion of the OEM Product subject to a Service Agreement. OEM is responsible for (a) determining technical specifications for each customized configuration; (b) ensuring that those technical specifications are properly documented in the applicable Service Agreement; (c) testing of prototype(s) to verify the prototype(s) meet applicable specifications and are compatible with any Unique Parts or OEM’s software, before OEM places production orders for the customized configurations of Standard Products; and (d) obtaining all necessary licenses or other rights enabling Supplier to copy, install, modify and distribute software for OEM. Regardless of manufacturing integration tests that may be performed by Supplier, Supplier is not responsible for the suitability of the customized configuration, for any revision or engineering changes in any third-party products included in such configuration, for the compatibility of any Unique Parts or third-party or OEM software with the configuration, or for any liability or damage arising from the installation of a configuration in accordance with the Service Agreement or OEM’s instructions. Additional regulatory and safety compliance required due to the integration of Unique Parts into the configurations shall be OEM’s responsibility. To the extent OEM purchases certain services requiring Supplier to affix or label OEM’s name, logo or trademark on the Products, OEM hereby grants Supplier a non-exclusive, royalty-free license to use such name, logo, or trademark solely in connection with such purpose and agrees to enter into a trademark license agreement if requested by Supplier.
- Services Software. “Services Software” is software that Supplier may make available to OEM in connection with Services. Services Software may be hosted by Supplier or installed on OEM’s computers. OEM agrees that it shall (i) only use the Services Software in connection with the Supplier’s Services, (ii) use any Services Software hosted by Supplier in a lawful manner, without interfering with other Supplier customer’s use of the Services Software, and without attempting to disrupt the security or operation of the network or systems used to provide the Services Software; and (iii) not misappropriate, disclose, or otherwise violate Supplier’s or its Providers’ intellectual property rights in the Services Software. It may be necessary for Supplier to perform scheduled or unscheduled repairs or maintenance, or remotely patch or upgrade the Services Software, which may temporarily degrade the quality of the Services or result in a partial or complete outage of the Services Software. OEM AGREES THAT THE OPERATION AND AVAILABILITY OF THE SYSTEMS USED FOR ACCESSING AND INTERACTING WITH THE SERVICES SOFTWARE, INCLUDING TELEPHONE, COMPUTER NETWORKS, AND THE INTERNET, OR TO TRANSMIT INFORMATION, CAN BE UNPREDICTABLE AND MAY, FROM TIME TO TIME, INTERFERE WITH OR PREVENT ACCESS TO OR USE OR OPERATION OF SUCH SERVICES SOFTWARE. SUPPLIER SHALL NOT BE LIABLE FOR ANY SUCH INTERFERENCE WITH OR PREVENTION OF CUSTOMER’S ACCESS TO OR USE OF THE SERVICES SOFTWARE.
7. WARRANTY, EXCLUSIONS, AND DISCLAIMERS
- Warranties. The warranties for Standard Products and Services are stated in the applicable Product Schedules to the OTS.
- Equipment Warranty Exclusions. Equipment warranties do not cover problems that arise from: (i) accident or neglect by OEM or any third party; (ii) any third party items or services with which the Equipment is used or other causes beyond Supplier’s control; (iii) installation, operation, or use not in accordance with Supplier’s instructions or applicable Documentation; (iv) use in an environment, in a manner, or for a purpose for which the Equipment was not designed; (v) modification, alteration, or repair by anyone other than Supplier or its authorized representatives; or (vi) causes attributable to normal wear and tear. Supplier has no obligation for Software installed or used beyond the licensed use, for Equipment that OEM moved from the Installation Site without Supplier’s consent when applicable, or Product whose original identification marks have been altered or removed or for any Software for which payment has not been received. 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 physical or property damage (collectively, “High-Risk Activities”). Supplier expressly disclaims any express or implied warranty of fitness for High-Risk Activities and you shall defend and indemnify Supplier from any claims made by third parties resulting from any such High-Risk Activities. As between OEM and Supplier, OEM is 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 OEM sells.
- Equipment Warranty Disclaimer. Other than the warranties set forth in this Section 7 and the Product and Service Schedules, and to the maximum extent permitted by applicable law, Supplier and Affiliates, and their Providers: (i) make no other express warranties; (ii) disclaim all implied warranties, including merchantability, fitness for a particular purpose, title, and non-infringement; and (iii) disclaim any warranty arising by statute, operation of law, course of dealing or performance, or usage of trade.
- Supplier does not warrant that Products will function in any specific configuration that includes non-Supplier hardware or software or will function to produce a particular result, even if the specific configuration or the result has been discussed with Supplier. As between Supplier and OEM, OEM is responsible for the design and implementation of configurations, systems and networks suitable for the risks involved in the End-User applications and operating environments into which OEM sells
- Warranty Remedies. Supplier’s sole obligations is, at its option, to repair or replace Standard Products that do not conform to the Warranty, using new or refurbished parts or Products, or to provide a reasonable depreciated refund to OEM. Supplier assumes no obligation to repair Third Party Products, non-warranted defects in Standard Products, or any defects in Standard Products after the warranty or support period has expired.
- Third Party Product Warranty. Third Party Products may carry with them a warranty from the original manufacturer or licensor (“Third Party Warranty”). Supplier is not responsible for fulfillment of any Third Party Warranty or for problems attributable to the use of Third Party Products. OEM will rely solely on the issuer of any Third Party Warranty for all obligations under the Third Party Warranty.
8. TERM; TERMINATION OR SUSPENSION
The term and termination provisions for Support Services are contained in the applicable Product and Services Schedules.
- Suspension or Modification of Services. Supplier may suspend, terminate, withdraw, or discontinue all or part of the Services or stop delivery of Products when Supplier believes, in its sole judgment, that OEM is involved in any fraudulent or illegal activities.
- Termination. Either party may terminate a Service Agreement, or license for Software: (i) for a material breach by the other party that is not cured within thirty days of the breaching party’s receipt of written notice of the breach; or (ii) if a party declares bankruptcy or is adjudicated bankrupt or a receiver or trustee is appointed for substantially all of its assets. In addition, Supplier may terminate one or more Service Agreements or software licenses with ten days’ written notice if: (i) OEM does not make payment as required by the OTS or the applicable Schedule (where the payment is not subject to a good faith dispute); (ii) OEM fails to make the payment within ten days after receiving written notice of the past due amount; (iii) OEM purchased through a reseller and, as applicable, (iii)(a) the agreement between OEM and the reseller expires or is terminated; (iii)(b) the agreement between Supplier and the reseller expires or is terminated; or (iii)(c) the reseller is delinquent on its payment obligations to Supplier. Supplier may terminate some or all of the Schedules immediately if OEM is acquired by or merged with a competitor of Supplier or any of its Affiliates. Termination of a Service Agreement will not terminate other Service Agreements, and termination of all Service Agreements will not terminate this OTS.
- Survival. The provisions relating to payment of outstanding fees, records and audit, confidentiality, and liability, all rights of action accruing prior to termination, along with any other provision of the OTS that, expressly, or by its nature and context, is intended to survive, will survive termination.
9. INDEMNITY
- Supplier Indemnity. Supplier will: (i) defend OEM against any third-party claim that Standard Products or Support Services (but excluding any Products provided for evaluation or without charge and open source software) infringe that party’s patent, copyright, or trade secret enforceable in the country where OEM purchased the Standard Product from Supplier (“Claim”); and (ii) indemnify OEM by paying: (ii)(a) the resulting costs and damages finally awarded against OEM by a court of competent jurisdiction to the extent that such are the result of the third party Claim; or (ii)(b) the amounts stated in a written settlement negotiated and approved by Supplier.
- In addition, should any Standard Product or Support Service become, or in Supplier’s opinion be likely to become, the subject of a Claim, Supplier may, at its expense and in its discretion: (i) obtain a right for OEM to continue using the affected Standard Product or Support Service; (ii) modify the affected Standard Product or Support Service to make them non-infringing; (iii) replace the affected Standard Product or Support Service with non-infringing substitutes;(iv) provide a reasonable depreciated or pro rata refund for the affected Standard Product; or (v) discontinue the Support Services and refund the portion of any pre-paid Support Service fees that corresponds to the period of Support Services discontinuance. Except as otherwise provided by law, this Section 9 states OEM’s exclusive remedies for any third party intellectual property claim relating to Standard Products and Support Services, and nothing in this OTS or elsewhere will obligate Supplier to provide any greater indemnity.
- Exclusions from Indemnity. Supplier has no obligation under Section 9A above: (i) if OEM is in material breach of this OTS; or (ii) for any Claim resulting or arising from: (ii)(a) any combination, operation or use of a Supplier-branded Standard Product or Support Service with any other products, services, items, or technology, including Third-Party Products and open source software;
(ii)(b) use for a purpose or in a manner for which the Standard Product or Support Service was not designed, or use after Supplier notifies OEM to cease such use due to a possible or pending Claim;
(ii)(c) any modification to the Standard Product or Support Service made by any person other than Supplier or its authorized representatives;
(ii)(d) any modification to the Standard Product or Support Service made by Supplier pursuant to instructions, designs, specifications or any other information provided to Supplier by or on behalf of OEM;
(ii)(e) use of any version of a Standard Product when an upgrade or newer iteration of the Standard Product or Support Service made available by Supplier would have avoided the infringement;
(ii)(f) services, Standard Products or software provided by OEM (including Claims seeking damages based on any revenue OEM derives from OEM’s services); or
(ii)(g) any data or information that OEM or a third party records on or utilizes in connection with the Supplier-branded Standard Products or Support Services (collectively, the “Excluded Claims”). - OEM Indemnity. OEM will defend and indemnify Supplier and its Affiliates against any third party claim resulting or arising from: (i) OEM’s failure to obtain any appropriate license, intellectual property rights, or other permissions, regulatory certifications, or approvals associated with technology or data that OEM provides to Supplier or its Affiliates, or with non-Supplier software or other components that OEM directs or requests that Supplier or its Affiliates use with, install, or integrate as part of the Standard Products or Services;
(ii) OEM’s violation of Supplier’s or its Affiliates’ proprietary rights;
(iii)failure of OEM or OEM Representatives to abide by all applicable laws, rules, regulations and orders that affect the Products and Section 11 Compliance below;
(iv) any warranties or representations made by OEM or OEM Representatives which differ from those provided by Supplier;
(v) OEM’s misuse or abuse of the Products, negligence, or breach of any provision in this Agreement; or
(vii) the Excluded Claims. - Mutual Indemnity. Each party shall 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 OTS.
- Indemnification Process. A party’s duty to defend and indemnify under this section is contingent upon the party seeking indemnity: (i) sending prompt written notice of the Claim to the party providing indemnity and taking reasonable steps to mitigate damages; (ii) granting to the party providing indemnity the sole right to control the defense and resolution of the Claim; and (iii) cooperating with the party providing indemnity in the defense and resolution of the Claim and in mitigating any damages.
10. LIMITATION OF LIABILITY
- Limitation on Direct Damages. SUPPLIER’S TOTAL LIABILITY FOR DISPUTES IS LIMITED TO THE AGGREGATE DOLLAR AMOUNT SUPPLIER RECEIVED UNDER THIS AGREEMENT DURING THE TWELVE MONTHS BEFORE THE DATE THAT THE DISPUTE AROSE FOR THE SPECIFIC PRODUCTS, SERVICES, OR BOTH THAT ARE THE SUBJECT OF THE DISPUTE, BUT EXCLUDING AMOUNTS RECEIVED AS REIMBURSEMENT OF EXPENSES OR PAYMENT OF TAXES. The existence of more than one claim will not increase or otherwise alter these limitations on Supplier’s liability.
- No Indirect Damages. Except for OEM’s payment obligations and violation of Supplier’s or its Affiliates’ intellectual property rights, neither Supplier nor OEM has liability to the other for special, consequential, exemplary, punitive, incidental, or indirect damages, or for lost profits, loss of revenue, loss of data, or loss of use, or procurement of substitute products or services.
- Regular Back-ups. OEM and its End-Users are solely responsible for their data. OEM shall, and cause its End-Users to, back up their data before Supplier performs any remedial, upgrade, or other work on production systems. If applicable law prohibits exclusion of liability for lost data, then Supplier will only be liable for the cost of the typical effort to recover the lost data from OEM’s or End-users’ last available back-up.
- Limitation Period. Except as stated in this Section, all claims must be made within the period specified by applicable law. If the law allows the parties to specify a shorter period for bringing claims, or the law does not provide a time at all, then claims must be made within eighteen months after the cause of action accrues.
- OEM agrees that it shall include in all agreements selling, leasing, or transferring ownership of the Products, a limitation of liability provision similar to the above, including disclaiming as to Supplier liability for incidental, indirect, punitive, special or consequential damages; loss of income, profit or savings; lost or corrupted data or software; or loss of use.
11. COMPLIANCE
- General Regulatory Compliance. OEM, at its own expense, will comply with all applicable laws, orders and regulations of any governmental authority with jurisdiction over its activities in connection with this Agreement. Supplier will furnish to the OEM any reasonably available information required to enable the OEM to comply with applicable laws and regulations related to the Products. The regulatory compliance marks on Standard Products may vary, depending on where such products are manufactured and sold to OEM. OEM understands that the Standard Products sold from the United States, Canada, and European Union (EU) countries contain regulatory compliance marks that are required to ship into the United States, Canada, and European Union (EU) countries, respectively. Additional regulatory compliance marks are required to ship to other locations. OEM is solely responsible for obtaining any marks that may be required. OEM shall be responsible for continued regulatory compliance, including, but not limited to compliance to electrostatic discharge and radiated emissions standards, for any modifications or additions made to the Standard Product after the Standard Products are shipped from Supplier. In addition, OEM will ensure the OEM Products comply with all regulatory requirements for its target market and locations and are properly labeled.
- Product Labeling. Except as otherwise agreed between Supplier and OEM in a Service Agreement, all Products re-sold by OEM under the authority of this Agreement shall be re-sold only with their original markings. If OEM removes or moves any Supplier marks or logos on the Standard Products after such products have shipped, and applies other marks or logos (including any marks or names belonging to OEM) to such products, then OEM is responsible for obtaining all necessary regulatory approvals or other authorizations for each country where such modified products will be sold and shipped by OEM. In no event shall OEM remove or change safety and agency certification labels or other manufacturers’ labels on Products without the appropriate agency or manufacturer written approval.
- Import Export. OEM shall not, directly or indirectly, import, export, re-export or transship Products, services, or technical information in violation of any applicable export control and economic sanctions laws and regulations of any country having jurisdiction over the Products or Parties to this Agreement (“Export Laws”), including without limitation, the U.S. Export Administration Regulations and those economic sanctions regulations maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, and any other economic sanctions imposed by the U.S Government upon any country, territory, or person, and the anti-boycott laws maintained by the U.S. Department of Commerce and the U.S. Department of the Treasury. OEM represents and warrants that (i) it is not the subject or target of, and that OEM is not located in a country or territory (including without limitation, North Korea, Cuba, Iran, Syria, and Crimea) that is the subject or target of, economic sanctions of the United States or other applicable jurisdictions, and (ii) the Products will not be destined for a prohibited chemical, biological or nuclear weapons or missile use. OEM agrees, at OEM’s own expense, to comply with all applicable Export Laws and will, in accordance with Section 9, indemnify, defend and hold Supplier harmless from any claim against Supplier due to OEM’s violation or alleged violation of the Export Laws. If Products are resold in violation of Export Laws, Dell shall not be obligated to provide any warranty service or technical support for such Products.
- Environmental
i. OEM shall comply with all applicable producer responsibility laws and regulations that may include but are not limited to; electronics, batteries and packaging in all applicable jurisdictions.
ii. Compliance with producer responsibility laws and regulations includes, but is not limited to, obligations related to importing, placing on the market, declarations and regulatory filings, take back, environmentally appropriate treatment and other obligations as designated by the applicable laws and regulations.
- Disposal i. OEM shall comply with all applicable laws and regulations regarding disposal of electronic waste, and all non-functional and functional Products of which OEM chooses to dispose (collectively “Electronic Waste”) shall be done in accordance with applicable law.
ii. OEM will use approved electronic waste vendors in the disposal of Electronic Waste, will maintain an audit process on those vendors and will require certification of vendors at such time as industry certification programs are available. As part of OEM’s disposal process for Electronic Waste, including disk drives and solid-state drives, Software and data will be sanitized or physically destroyed using a process no less stringent than the guidelines contained in NIST SP 800-88r1 and applicable law.
iii. For all Electronic Waste that is disposed of by OEM, Supplier trademarks and trade names will be removed and/or destroyed. - Anti-Corruption Law Compliance.
i. OEM agrees to comply with the anti-corruption or anti-bribery laws in effect in jurisdictions where OEM markets or sells Supplier products or services (the “Anti-Corruption Laws”) including, without limitation, the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010. OEM shall not, in connection with this Agreement directly or indirectly (a) offer, promise, authorize or transfer to, or (b) request, solicit, or demand from any person or Government Official (as defined below) anything of value to improperly influence, induce or reward any act, decision, or omission to obtain or retain business or secure any improper advantage.
ii. “Government Official” means an officer or employee of a government or any department, agency, or instrumentality thereof, or of a public international organization, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public organization.
iii. OEM represents that, as of the effective date of this Agreement, it and any of its officers or employees with decision making under this Agreement have not been convicted of any offense involving bribery, corruption, fraud or dishonesty.
12. DATA PRIVACY
- Compliance with Laws. Each party shall comply with all privacy laws and regulations that are applicable to that party in relation to the processing of personal data under this Master Agreement. In this clause, “personal data”, “controller” and “processing” shall have the meaning set out in the General Data Protection Regulation (EU) 2016/679.
- Data Processing Terms. Generally, Supplier does not require access to OEM’s data in order to perform any Services hereunder. In the absence of an agreed form of a data processing agreement, where and to the extent that Supplier is required to process any personal data in the performance of this OTS (Supplier acting as a processor for the OEM as a controller of the relevant personal data), it shall do so in accordance with Supplier’s standard data processing terms which Supplier shall provide upon request. Where Supplier processes any personal data acting as a controller, it shall do so in accordance with its country-specific privacy policies, available at www.Dell.com/Privacy.
- Disclosures to Supplier. OEM agrees that it will obtain all necessary rights, permissions and consents prior to disclosing any personal data to Supplier.
- Excluded Data. “Excluded Data” means: (i) data that is classified, used on the U.S. Munitions list (including software and technical data) or both; (ii) articles, services, and related technical data designated as defense articles and defense services; and (iii) ITAR (International Traffic in Arms Regulations) related data. OEM acknowledges that products and services provided under the OTS are not designed to process, store, or be used in connection with Excluded Data. OEM is solely responsible for reviewing data that will be provided to or accessed by Supplier to ensure that it does not contain Excluded Data. Furthermore, products in their default configurations may not be optimized to process, store or transmit personally identifiable information that is subject to heightened security requirements as a result of OEM’s internal policies or practices or by law. OEM is solely responsible for compliance with heightened security requirements mandated by its own internal policies and by law.