Terms of Sale

GENERAL TERMS

1.     DEFINITIONS

1.  “Affiliate” means, with respect to Supplier, Dell Inc. or Dell Inc.’s direct or indirect subsidiaries (not including Securworks, Virtustream, Boomi or VMware companies); and with respect to OEM, a legal entity that is controlled by, controls, or is under common control with OEM.  “Control” means more than 50% of the voting power or ownership interests.
2. “Delivery” for Equipment occurs when Supplier provides the Equipment to a carrier at Supplier’s designated point of shipment.  “Delivery” for Software occurs either when Supplier provides physical media to a Supplier-designated carrier at Supplier’s designated point of shipment, or the date Supplier notifies OEM, or it’s End-User that Software is available for electronic download.
3. “Documentation” means Supplier’s then current, generally available user manuals and online help for Products.
4. “End-User” shall mean a customer of OEM or OEM Representatives (defined in 2.A.) to whom OEM Products are offered and/or sold to, for the customer’s own internal use.
5. “OEM” means you in your capacity as an original equipment manufacturer that is purchasing Products and Services (collectively “Offerings”) to create an OEM Product (defined below).
6. “OEM Product” shall mean OEM’s appliance or value-add solution which Product is incorporated into or utilized as a part thereof.  OEM Products have functionality different than Standard Products and are marketed by OEM to End-Users.
7. “Order” means (i) a OEM purchase order that references a Supplier quote and, if applicable, contract code; (ii) Supplier order forms executed by OEM; or (iii) OEM’s order of Offerings, through either www.Dell.com or other online process.
8. “Product” shall mean any Standard Product and Third Party Product that are offered for sale by Supplier to OEM under this Agreement.
9. “Provider” means entities (other than OEM) whose components, subassemblies, software, services, or some combination of these items have been incorporated into Products, Services, or both.
10. “Service Agreements” means service contracts, including service descriptions available at   //www.dell.com/learn/us/en/uscorp1/campaigns/global-commercial-service-contracts?c=us&l=en&s=corp, service briefs, statement of work, services specifications, and any other similar mutually agreed documents.
11. “Services” means service to be performed by or on behalf of Supplier as described in this Agreement or applicable Product Notice or Service Agreement.
12. "Software" means any application, library, utility, tool, or other computer code, in object (binary) or source-code form provided under this OTS. Software includes code delivered electronically, pre-installed or locally installed on Equipment and “Services Software” (which is software that Supplier may make available in connection with Services).
13. “Software Release” means any subsequent, generally available version of Software provided after initial Delivery of Software but does not mean a new Product.
14. “Standard Products” means collectively: (i) “Equipment” (which is the hardware that Supplier provides to OEM under the OTS including Equipment without Supplier branding (i.e. generic “oem-ready” box)); and (ii) “Supplier Software” (which is Supplier-branded Software that Supplier licenses to OEM under the OTS and any updates and copes thereof).  Terms applicable to specific Products are further discussed in the Product Schedules referenced below.  Standard Products exclude Services and Third Party Products. 
15. “Third Party Products” means hardware, software, or services other than Standard Products and Services.  Third Party Products may include, without limitation, products and services manufactured, created, licensed, or performed by or on behalf of Supplier or its Affiliates, and may include hardware or software installed on a Standard Product in the course of performing a Service.
16. “Unique Part” shall mean any part or component integrated into or attached to OEM Products that is not a standard component or part in the current Standard Product.  Parts that are formerly standard but no longer regularly used in current Standard Product, or that were standard in Standard Products that have been discontinued or reached the end of their product life cycle, will be deemed to be “Unique Parts”.

2.    SCOPE OF THE PARTIES RELATIONSHIP UNDER THIS AGREEMENT

1. Appointment.  Subject to OEM’s compliance with this Agreement, OEM (directly or through distributors, third party sales agents, or other remarketers in its distribution channel (collectively “OEM Representatives”)) may resell Standard Products only as part of OEM Products and only after OEM has added value to the Standard Products through the addition of hardware, software, or services.  OEM may use OEM Representatives to resell OEM Products, provided that the agreement between OEM and such OEM Representatives are as comprehensive and restrictive as this Agreement.
2. Non-Exclusivity; OEM’s Pricing Freedom.  This Agreement is not exclusive.  Supplier may market (directly or through third parties) the Products, Supplier Services, and/or other products and services to anyone, including OEM’s customers, without any obligation or liability to OEM.  Supplier reserves the right to change its distribution channels for Products and appoint, add or terminate other original equipment manufacturers, distributors, third party sales agents or other remarketers to sell Products, including sales and distribution entities who may compete with OEM or OEM Representatives.  This Agreement does not guarantee that OEM will make any sales of the Products.  It is agreed and understood that OEM will, at all times, determine and/or set t OEM’s resale prices for OEM Products or Services.
3. Recordkeeping/Document Delivery.   OEM will maintain legible, accurate and complete books and records relating to the Agreement or the sale, licensing, delivery, or end-use of Standard Products OEM Products and Services for a period of 5 years from the date of creation (including, but not limited to complete distribution records by End User and by Standard Product serial number). At the end of the retention period, OEM must dispose of all records appropriately. At Supplier's request, OEM must cooperate and assist Supplier with any audit, review, or investigation ("Audit") that relates to (i) the Agreement or OEM’s compliance with law; (ii) OEM sale, distribution, licensing, or delivery of Standard Products and Services, whether sourced from Supplier or a third-party; (iii) any amounts payable by Supplier; or (iv) any amounts due to Supplier. In connection with an Audit, you will deliver all records, information, and documents reasonably requested by Supplier. Supplier has the right to conduct onsite Audits, and you will grant Supplier and its employees and representatives reasonable access to information, records, personnel, and customers (including End-User Agreements and other agreements to verify your compliance with the Agreement), and provide entry and access to your premises or other locations (during normal business hours) where such information and records are located. Failure to cooperate with an Audit or provide the information or records requested by Supplier is a material breach of this Agreement. Supplier will pay the costs of an Audit except where a discrepancy of five (5) percent or more is discovered in the information disclosed by you, in which case you agree to be responsible for all reasonable costs.

3.     BUYING PRODUCTS AND SERVICES

1. Quotes and Orders. Orders are subject to credit approval and are subject to Supplier acceptance. Each Order must include the correct name of, and be placed with the Supplier entity that provided the applicable quote. Supplier will not be responsible or liable to you or the End-User for any delays caused by incorrect information in an Order. Quoted prices are effective until the expiration date of the Supplier’s quote, but may change due to industry-wide shortages in materials or resources, increase in the cost of manufacturing, or other factors outside the control of Supplier. Orders may contain charges for shipping and handling. OEM acknowledges Supplier’s pricing and discounts to OEM are considered Supplier’s confidential information, and OEM shall not show such pricing or discounts as a separate line item to OEM Representatives or End-Users or otherwise disclose such information to any third party.
2. Changed or Discontinued Products or Services. Supplier may revise or discontinue Products and Services at any time, including after OEM places an Order, but prior to Supplier’s shipment of Product or before the end of the Service. As a result, Products and Services OEM receives may differ from those ordered. However, Supplier branded Products will materially meet or exceed all published specifications for the Products.
3. Cancellation, Returns and Acceptance. OEM may only change or cancel an order for Product(s) up until the time Supplier begins manufacturing the Products, except third party product, EOL Products (or those going EOL within 90 days), or Unique Parts which may not be changed or cancelled unless approved. Supplier is not responsible for pricing, typographical, or other errors in any offer and may cancel Orders affected by such errors. All Equipment and Software are deemed accepted by OEM upon Delivery.  OEM agrees and understands that Supplier return policy is not available to OEM. Even though OEM accepts Products as stated in the prior sentence, OEM retains all rights and remedies set forth in the applicable Product warranty. OEM shall notify Supplier within 21 days of the invoice date if OEM believes any Standard Product included in its Order is missing, wrong, or damaged.
4. Shipment. Unless otherwise agreed, Supplier shall arrange for shipment of the ordered Products to the ship-to address indicated in the Order, through a common carrier designated by Supplier. Delivery dates are indicative. Software may be provided by delivery of physical media or through electronic means. Cost of transit insurance, if applicable, (provided by Supplier on behalf of OEM) shall be included in the total price stated on the Quote.
5. Risk of Loss. Title. Risk of loss for sold Equipment and licensed Supplier Software transfers to OEM upon Delivery.  Title to Equipment passes to OEM upon Delivery.  Title to Software does not pass to OEM. Software is only licensed to OEM and not sold.
6. Security Interest.  OEM hereby grants Supplier, and Supplier will retain, a purchase money security interest (PMSI)  in Products, and all replacements or proceeds of the Products, until the invoice for the applicable Products is paid in full, including any late charges and costs of collection.  Supplier may perfect its PMSI by filing uniform commercial code financing statements.  The parties agree the PMSI does not impact or affect the ability of OEM to sell the Products to OEM’s customers and that Supplier’s PMSI attaches to proceeds and receivables related to such sale.
7. Procurement of Unique Parts.  Supplier may purchase Unique Parts and long lead-time components to support the manufacture of customized configurations for OEM.  If (i) such materials are not used within ninety (90) days of receipt of Unique Parts because of a change in OEM’s forecast, reschedule or cancellation of any purchase order, or other reasons, and (ii) Supplier is unable to resell such materials to others at a reasonable price or unable to cancel its order for the materials, then in its sole discretion Supplier may invoice and deliver the materials to OEM.  OEM shall pay Supplier for the materials and any stocking fees Supplier may incur as a result of holding such materials in its inventory longer than ninety (90) days.
8. Packaging.  Unless otherwise stated, prices quoted by Supplier include standard packaging for shipment.  OEM will submit custom packaging requests to Supplier for review and price estimate.  Supplier will not be responsible for delays resulting from custom packaging requested by OEM.
9. End of Life (EOL) of Products.  At the end of life of Standard Products, Supplier will notify OEM before discontinuing a productor version of product (generally, ninety (90) days’ notice). During that time period after notice and before the discontinue date Supplier will sell both the former and the new Standard Products.

4.     INVOICING AND PAYMENT TERMS

1. Payment.  OEM must pay Supplier’s invoices in full and in the same currency as Supplier’s quote within the time noted on Supplier’s invoice, or if not noted, then within thirty (30) days after the date of the invoice, with interest accruing after the due date at the lesser of 1.5% per month or the highest lawful rate. Supplier may invoice parts of an Order separately or together in one invoice. All invoice terms will be deemed accurate unless OEM advises Supplier in writing of a material error within ten days following receipt. If OEM advises Supplier of a material error, (i) any amounts corrected by Supplier in writing must be paid within fourteen days of correction, and (ii) all other amounts shall be paid by OEM by the due date. If OEM withholds payment because OEM believes an invoiced amount is incorrect, and Supplier concludes that the amount is accurate, OEM must pay interest as described in this Section from the due date for the amount until Supplier’s receipt of payment. OEM may not offset, defer or deduct any invoiced amounts that Supplier determines are correct following the notification process stated above. Supplier, without waiving any other rights or remedies and without liability to OEM, may suspend any or all Services until all overdue amounts are paid in full.
2. Taxes. OEM is responsible for payment of any sales, use, value added, GST, and any other similar taxes or governmental fees associated with OEM’s Order, except for taxes based on Supplier’s net income, gross revenue, or employment obligations. OEM must also pay all freight, insurance, and applicable taxes (which may include but shall not be limited to import or export duties, sales, use, value add, and excise taxes). If Supplier is obligated by applicable law to collect and remit any taxes or fees, then Supplier will add the appropriate amount to OEM’s invoices as a separate line item.  If OEM qualifies for a tax exemption, OEM must provide Supplier with a valid certificate of exemption or other appropriate proof of exemption.  If OEM is required by law to make a withholding or deduction from payment, OEM will make payments to Supplier net of the required withholding or deduction, and will provide to Supplier satisfactory evidence (e.g., official withholding tax receipts) that OEM has accounted to the relevant authority for the sum withheld or deducted. If OEM does not provide the information within sixty days of remittance to the applicable tax authority, Supplier will charge OEM for the amount that OEM deducted for the transaction.

5.     SOFTWARE LICENSE TERMS 

1. 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).
2. 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.
3. 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
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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

1. 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.
2. 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.
3. 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.
4. 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

1. Warranties.  The warranties for Standard Products and Services are stated in the applicable Product Schedules to the OTS.
2. 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.
3. 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.
4. 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
5. 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.
6. 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

1. 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.
2. 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.
3. 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

1. 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.
2. 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.
3. 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”).
4. 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.  
5. 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.
6. 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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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

1. 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.
2. 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.
3. 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.
4. 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.
   
5. 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.
6. Anti-Corruption Law Compliance. 

12.     DATA PRIVACY

1. 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.
2. 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.
3. Disclosures to Supplier. OEM agrees that it will obtain all necessary rights, permissions and consents prior to disclosing any personal data to Supplier.
4. 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.

13. PUBLIC RELEASE OF INFORMATION, IP, TRADEMARKS, AND CONFIDENTIALITY

1. Public Release of Information.  Within ninety (90) days of the execution of this Agreement, Supplier may, in its sole discretion, request OEM to participate in a news release or other publicity (“Publicity”) announcing OEM’s selection of Supplier’s OEM Product.  OEM agrees to participate in such Publicity and authorizes Supplier to use OEM’s name, trademark, logo, images of OEM Product and other identifying marks in the Publicity, provided that Supplier will obtain OEM’s approval of the Publicity content prior to the first public release of the Publicity.  Supplier shall have the right to publish, use, reference and display the final, approved Publicity, in whole or through unedited excerpts, in all forms of media.  Except as expressly agreed in this Section, neither Supplier nor OEM may publicly release any information relating to this Agreement, including the existence of this Agreement, without first receiving the prior written approval of the other party.  Relative to Supplier, such prior written approval must be obtained from Supplier’s public relations department.
2. IP Ownership Rights.  All right, title and interest in and to the intellectual property rights in Standard Products and Supplier Services, including technology and trade secrets embodied therein and any custom developments created or provided in connection with or related to this Agreement, and any derivative works thereof, belong solely and exclusively to Supplier or its licensors or suppliers, and OEM has no rights whatsoever in any of the foregoing other than the rights expressly set forth in this Agreement.  Nothing in this Agreement or otherwise will be deemed to grant to OEM an ownership interest in any of the intellectual property rights in or to any Standard Products or Supplier Services, in whole or in part.
3. Trademarks.  OEM is permitted to use the "Dell" or “Dell EMC” name and Standard Product names (collectively, the "Approved Names"), solely for the purpose of accurately identifying the Products OEM is marketing.  OEM’s use of Approved Names shall comply with Supplier’s trademark usage guidelines, which may be updated at any time by Supplier in its sole discretion. OEM may not use the Approved Names more prominently or more frequently than necessary for this purpose.  OEM may not use any logo of Supplier's or any name or mark of Supplier's other than the Approved Names, except and only to the extent of Supplier's prior, written permission.  OEM agrees to ensure that its use of the Approved Names will not likely create the impression that Supplier is affiliated with OEM or has sponsored, authorized, approved or endorsed OEM's business, OEM Products, any OEM offer, or any marketing, advertising or promotion thereof.  OEM agrees to change or correct, at OEM’s expense, any advertising, publicity, material, or activity which Supplier, in its sole judgment, decides is inaccurate, objectionable, misleading, or a misuse of Supplier’s names, marks, or logos.  OEM acquires no right, title or interest in any Supplier marks, names and logos, except for the limited, non-exclusive right to use the Approved Names as provided in this Section.  This limited right ends with termination of this Agreement.
4. Confidential Information.

1. “Confidential Information” is any information, technical data, or know-how furnished, whether in written, oral, electronic, website-based, or other form, by the discloser to the recipient that: (i) is marked, accompanied, or supported by documents clearly and conspicuously designating the documents as "confidential", “internal use”, or the equivalent; (ii) is identified by the discloser as confidential before, during, or promptly after the presentation or communication; or (iii) should reasonably be known by recipient to be confidential.
2. This OTS imposes no obligation upon a recipient with respect to information designated as confidential which: (i) the recipient can demonstrate was already in its possession before receipt from the discloser; (ii) is or becomes publicly available through no fault of the recipient or its Representatives (defined below); (iii) is rightfully received by the recipient from a third party who has no duty of confidentiality; (iv) is disclosed by the discloser to a third party without a duty of confidentiality on the third party; or (v) is independently developed by the recipient without a breach of the OTS.
3. If a recipient is required by a government body or court of law to disclose Confidential Information, to the extent permitted by law, the recipient agrees to give the discloser reasonable advance notice so that the discloser may contest the disclosure or seek a protective order. Recipient will use Confidential Information only for the purpose of and in connection with the evaluation of a potential, or continuation of, a business transaction or relationship between the parties. Recipient may disclose Confidential Information to its directors, officers, employees, and employees of its Affiliates, as well as its and its Affiliates’ contractors, advisors, and agents, so long as those individuals have a need to know in their work for recipient in furtherance of the potential or continued business transaction or relationship, and are bound by obligations of confidentiality at least as restrictive as those imposed on recipient in this OTS (collectively, “Representatives”).  Recipient is fully liable for any breach of this OTS by its Representatives. Recipient will use the same degree of care, but no less than reasonable care, as the recipient uses with respect to its own similar information to protect the Confidential Information.  Recipient may only disclose Confidential Information as authorized by this OTS. The terms of this OTS do not restrict the right of recipient to independently design, develop, acquire, market, service, or otherwise deal in, directly or indirectly, products or services competitive with those of the discloser so long as the recipient does not use any of the discloser's Confidential Information for those activities.  Unless the parties otherwise agree in writing, a recipient's duty to protect Confidential Information expires three years from the date of disclosure. However, subject to the terms of this Section, the obligation to protect technical information about a discloser’s current products and services and all information about possible unreleased products or services never expires. Upon the discloser's written request, recipient will promptly return or destroy all Confidential Information received from the discloser, together with all copies. Notwithstanding the above, recipient’s professional advisors (e.g., lawyers and accountants) may retain in confidence one file copy of their respective work papers and final reports in accordance with their professional and ethical obligations.

14.     MISCELLANEOUS

1. References.  Supplier may identify OEM as a user of Products, Services, or both, as applicable.
2. Notices. The parties will provide all notices under this OTS in writing. OEM must provide notices to Supplier, at the Supplier email address on the first page of the OTS and, if applicable, Supplier or its Affiliate’s address as stated in a Schedule.
3. Force Majeure.  Except for payment of amounts due and owing, neither Supplier nor OEM will be liable for failure to perform its obligations during any period if performance is delayed or rendered impracticable or impossible due to circumstances beyond that party’s reasonable control.
4. Assignment and Subcontracting.  Neither party shall assign this OTS nor a Purchase Contract or any right or obligation herein or delegate any performance without the other party’s prior written consent, which consent shall not be unreasonably withheld. Notwithstanding the foregoing: (i) Supplier may use Affiliates or other qualified subcontractors to perform it obligations hereunder, provided that the relevant party to the Purchase Contract shall remain responsible for the performance thereof; and (ii) either party may assign payment obligations arising under any Purchase Contract without consent of the other party.
5. GOVERNING LAW; INFORMAL DISPUTE RESOLUTION; ATTORNEY’S FEES. This Agreement, and any dispute, claim, or controversy (whether in contract, tort, or otherwise) related to or arising out of the Agreement or any quote or Order (“Dispute”) is governed by the laws of the State of Texas and the federal laws of the United States (or the laws of the Province of Ontario and the federal laws of Canada, if you are a Canadian entity), without regard to its conflict-of-laws rules. The U.N. Convention on Contracts for the International Sale of Goods does not apply. Furthermore, the parties agree that the provisions of the Uniform Computer Information Transactions Act (“UCITA”) do not apply to this Agreement, and the parties waive any and all rights they may have under any laws(s) adopting UCITA in any form. To the extent permitted by law, the state and federal courts located in Texas (or in Toronto, Ontario, if you are a Canadian entity) will have exclusive jurisdiction for any Disputes. You and Supplier agree to submit to the personal jurisdiction of the state and federal courts located within Travis or Williamson County, Texas, (or in Toronto, Ontario, if you are a Canadian entity) and agree to waive any and all objections to the exercise of jurisdiction over the parties by those courts and to venue in those courts. The parties agree to waive, to the maximum extent permitted by law, any right to a jury trial with respect to any Dispute. Neither Supplier nor you are entitled to join or consolidate claims by or against other customers or resellers, or pursue any claim as a representative or class action, or in private attorney general capacity. As a condition precedent to filing any lawsuit, the parties will attempt to resolve any Dispute against one or more Supplier or Supplier Affiliate through negotiation with persons fully authorized to resolve the Dispute, or through mediation utilizing a mutually agreeable mediator, rather than through litigation. The existence or results of any negotiation or mediation will be treated as confidential. Although the merits of the underlying Dispute will be resolved in accordance with this Section 15, any party has the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction, or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitation periods, or preserve a superior position with respect to other creditors. If the parties are unable to resolve the Dispute within thirty days (or other mutually agreed time) of notice of the Dispute to the other party, the parties will be free to pursue all remedies available at law or in equity. In any Dispute (other than Supplier’s efforts to collect overdue amounts from you) 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. Waiver. Failure to enforce a provision of the OTS will not constitute a waiver of that or any other provision of the OTS.
6.  Independent Contractors. The parties are independent contractors for all purposes under the OTS and cannot obligate any other party without prior written approval. The parties do not intend anything in the OTS to allow any party to act as an agent or representative of a party, or the parties to act as joint venturers or partners for any purpose. No party is responsible for the acts or omissions of any other.
7. Insurance.  OEM agrees to obtain and maintain during the term of this Agreement, commercial general liability, including products liability, insurance in a minimum amount of at least One Million Dollars ($1,000,000.00) with an insurance company having a Best rating of A- or better.  Upon Supplier’s request, OEM shall provide to Supplier a certificate of the above-mentioned insurance and shall provide copies of any new or amended certificates of insurance to Supplier.  In addition, OEM shall name Supplier as an additional insured on all commercial general liability insurance policies procured in accordance with this section.  OEM shall give Supplier at least thirty (30) days prior written notice of any cancellation or termination of insurance required by this section.
8. Severability. If any part of the OTS or document that incorporates the OTS by reference is held unenforceable, the validity of all remaining parts will not be affected.
9. Entire Agreement. This OTS (including the General Terms and Products and Services Schedules) and each Purchase Contract hereunder comprise the complete statement of the agreement of the parties regarding the subject matter thereof and may be modified only by written agreement.
10. Conflicts. If there is a conflict between any Service Agreement and the OTS, the terms of the Service Agreement will take precedence, and in the event of any conflicts between a Product or Service Schedule and the General Terms, the Product or Service Schedule will prevail. In the event that a subject is addressed in both the Supplier Software license agreement provided in or with the Software and the OTS or in any Product or Service Schedule, then the corresponding provision of the Supplier Software license agreement will prevail.
11. Federal Transactions. OEM is not authorized by Supplier or this Agreement to sell or provide, directly or indirectly, Products or Services to any department, agency, division, or office of the federal government of the United States (collectively, “Federal End Users”). OEM must obtain written authorization from Supplier’s U.S. Federal Sales team to purchase Products and Services for resale to Federal End Users. All United States Government Federal Acquisition Regulations (FAR), agency FAR supplement clauses, Federal End User terms and flowdown provisions, and any terms and conditions relating to ITAR – whether they are contained or referenced in OEM’s purchase orders or other communications – are specifically rejected by Supplier and shall not apply to or bind Supplier. Supplier shall have no liability for providing products or services that do not comply with the Trade Agreements Act, Buy American Act, or any other federal government procurement regulations, including but not limited to UID, IPV6, RFID, Energy Star, EPEAT, counterfeit products, information assurance, and DPAS.
12. U.S. Government Data Rights.  The Software and Documentation are “commercial computer software” and “commercial computer software documentation” as those terms are defined in the U.S. Government Federal Acquisition Regulations.  Supplier provides products for ultimate federal government end use solely in accordance with the following: Government technical data and software rights in these products include only those rights customarily provided to the public as defined in this Agreement.  This customary commercial license in technical data and software is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).