These Reseller Terms of Sale, including all applicable terms referenced herein, (collectively, this “Agreement”) apply to your purchase (whether from Dell or from an authorized Dell distributor) in the United States or Canada and resale of Products and Services, unless you have a separate written agreement with Dell that expressly applies to your purchase and resale of the applicable Products and Services. This Agreement does not apply to you if you are buying Products and Services for your own internal end-use.

By placing your Order, you accept and are bound to the terms and conditions of this Agreement.

Dell” means one of the entities below, as applicable for your country of purchase:

* Canada: Dell Canada Inc. or EMC Corporation of Canada

* United States (50 states and Washington D.C.): Dell Marketing L.P. or EMC Corporation

You” or “your” means the entity that places an Order for Products, Services, or both for purpose of resale to an End-User.

 

1. APPOINTMENT

A. General. Subject to the terms and conditions of this Agreement and your compliance therewith, you may resell certain Dell Products and Services to only End-Users. You shall not market, resell, distribute, or use Products or Services other than as expressly permitted in this Agreement and, with regard to Software, in the license agreement governing the Software. You understand that not all Products and Services may be available for you to purchase for resale under this Agreement. In addition, certain activities require that you enter into a separate written agreement with Dell or Dell Affiliate, including: (i) use of Dell Software to provide services to and on behalf of End-Users, (ii) use and reproduction of Dell Software to combine with your software products or other products to create one unified product (“Bundled Product”) and marketing, distribution and sublicensing of Dell Software to End-Users as part of the Bundled Product, and (iii) selling renewals of certain Dell Software maintenance services.

B. Restrictions to Appointment as Reseller. Notwithstanding Section 1.A (“General”) above, you shall not directly or indirectly: market or resell Products or Services (i) to any consumers, resellers, distributors, or third-party sales agents; (ii) through retail storefronts, online stores, or auction or resale websites; (iii) to the U.S. federal government; (iv) to the Canadian federal government or Canadian provincial government entities or other Canadian public sector entities; or (v) to any U.S. state and local government agencies, public education institutions, and state and local government healthcare entities (collectively, customers in (iii), (iv), and (v) are “Public End-Users”). If you are a current member in good standing in the Dell EMC Partner Program, then (a) subsection (iii) shall not apply if you have an approved deal registration or prior written approval from the Vice President of Dell Federal Sales or their designee, (b) subsection (iv) shall not apply if you are not selling under a Dell award, standing offer, vendor of record or contract with the Canadian federal government (such sale’s under a Dell award require a specific addendum be executed by you) and you the have an approved deal registration or prior written approval from the applicable Vice President in Canada or their designee, and (c) subsection (v) shall not apply to you. Notwithstanding anything contrary in this Agreement, all Public End-User terms and flowdown provisions are specifically rejected by Dell and shall not apply to or bind Dell.

You shall not market or sell Products or Services to anyone outside the United States or Canada, wherever you purchased such Products and Services. You shall not stock Products for future sales. You shall not refurbish Dell Products for resale or marketing by yourself or others. Furthermore, you shall not market or sell refurbished or previously owned or used Dell Products, including used products that you have obtained from an end user or any other third party. However, you may market and sell refurbished or previously owned or used equipment that you have purchased directly from Dell (e.g., via Dell Outlet, DFS Direct Sales, or Dell Auction) pursuant to a separate written agreement.

C. Non-Exclusive. This Agreement is not exclusive. Dell may appoint third parties (including those who may compete with you) to sell or market Products and Services to anyone. Dell may sell or market (whether directly or indirectly through a third party) Products and Services at any price Dell chooses without any obligation or liability to you. This Agreement does not guarantee that you will make any sales of Products or Services.

D. Additional Requirements. Your eligibility to resell certain Products and Services may be subject to additional obligations or conditions not outlined in this Agreement, including additional training, specialization requirements, contractual agreements, and other conditions. The Product Addendum located here applies to your purchase and resale of Dell Products that are integrated with Google Chrome OS. You agree to provide Dell with information and reports pertinent to your relationship with Dell as may reasonably be requested by Dell.

2. PRICING & TAX

A. Pricing. Prices for Products and Services will be as specified on Dell’s website, in a written quote to you, or as specified in the applicable Dell invoice, Dell order form, or Service Agreement. Except as otherwise expressly set forth in Dell’s quote, Dell’s quoted price is valid for thirty (30) days from the date of the quote. Before Dell issues a quote, Dell may require you to provide information concerning the End-User and you agree to provide such information. Dell reserves the right to modify pricing (including quotes) due to shortage of materials or products, increase in costs, pricing or other error, currency and exchange rate fluctuations, or any event beyond Dell’s control, without liability to you. Taxes, shipping and handling charges and any government mandated or other regulated environmental disposal surcharges are not included in prices for Products and Services, unless expressly indicated at the time of sale.

B. Unless you and Dell have agreed to a different discount structure, Dell's standard pricing policy for a solution that includes hardware, software, and services in one discounted price, allocates the discount off list price applicable to the services portion of the solution to be equal to the overall percentage discount off of the list price of the entire solution. If you breach the provisions of this Agreement or the terms of any offer, Dell may charge or re-debit your account or credit card the full list price for your purchase (in lieu of a discounted or special price included in the offer). If Dell offers you certain discounts off of Dell’s standard list price, such discounts do not apply to special product promotions and cannot be combined with other offers.

C. Taxes. The charges stated in any Dell quote or invoice will include all duties, levies or any similar charges and will exclude VAT, sales, use, or equivalent taxes. You are responsible for the payment of all taxes and fees assessed or imposed on Products and Services in any geography in which you or an End-User receives the benefit of the Products and Services, including any sales, use, excise, value-added or comparable taxes, or any environmental handling fees, but excluding taxes for which you have provided a valid resale or exemption certificate. You will defend and indemnify Dell Parties (defined in Section 7.C below) from and against any claims, damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim or action relating to tax liabilities that are your responsibility. If you are required by law to make any withholding or deduction in respect of any payments that you are required to make to Dell under this Agreement, additional amounts shall be simultaneously payable such that Dell’s nominated bank account receives (after that withholding and deduction) those amounts which Dell would have received if no withholding or deduction had been required. Upon request, you will supply to Dell evidence (e.g., official withholding tax receipts), to the reasonable satisfaction of Dell, that you have accounted to the relevant authority for the sum withheld or deducted.

D. Reseller Pricing. You are free to determine and set your resale pricing of Products and Services.

E. Indirect Purchase. If you purchase from a Dell distributor, final terms of pricing, invoicing, payment, order, shipment, cancelation, and returns will be as agreed between you and the distributor, and the terms that correspond to those topics in this Agreement do not apply as between you and Dell.

3. PURCHASE ORDERS

A. Orders. Each Order must reference Dell’s quote (if any), the requested Products and Services, the End-User’s name and address, and any other information requested by Dell. If requested by Dell, you shall submit Orders on Dell designated order form(s). Orders for certain Software may require purchase of related services or maintenance. You shall place Orders for Products and Services in the country where the End-User is located. All Orders and transactions are subject to acceptance or cancellation by Dell, in Dell’s sole discretion. Each accepted Order will be interpreted as a single agreement, independent of any other Orders. Each Order must include the correct name of, and be placed with the Dell entity that provided the applicable quote and Dell may request corrections or reissuance of Orders to ensure the correct entity is listed. Dell will not be responsible or liable to you or the End-User for any delays caused by incorrect information in an Order.

B. Shipping, Title and Risk of Loss. Risk of loss for hardware Products and licensed Software transfers to you upon Delivery. Title to hardware Products and physical media containing Software passes to you upon Delivery. Title to and ownership of Software does not pass to you or End-User. Software is licensed, not sold. Shipping and delivery dates are provided as estimates only and Dell is not responsible for any early or delayed shipment or delivery. Dell may ship parts of an Order separately. Dell may electronically deliver Software directly to the End-User.

Unless otherwise agreed, Dell will choose the common carrier. You are responsible for inspecting the package(s) upon delivery and must note any visible damage on the proof of delivery (POD) or other delivery receipt you may be requested to sign. Dell will not be responsible for any visible shipping damages not noted on the delivery receipt. You must notify Dell within twenty-one (21) days from the Dell invoice date if you believe any part of your Order is missing, wrong, or damaged. Dell is not liable for any damage or loss to the Product when non-Dell provided shipping method is used for shipping from Dell to you or End-User. You must work with your designated carrier for reimbursement.

C. Cancellation. You may not cancel Orders except with Dell’s written approval. Orders for Third Party Products are subject to availability and are cancellable only by Dell. All Dell Products are deemed accepted by you upon Delivery; notwithstanding such acceptance, you retain all rights and remedies set forth in Section 7 (“Warranties”) below. If you purchase a multi-year software license and related support or maintenance, and you and Dell agree to make installation payments of the purchase price over the term of the license, then you shall make all such installation payments in full and your purchase is non-cancellable over the term of the license. Dell is not responsible for pricing, typographical, or other errors in any offer or quote, and reserves the right to cancel any Order arising from such errors. In addition, Dell may cancel Orders due to shortage of products or materials, increases in the costs of manufacturing, or any event beyond Dell’s control.

D. No Return. All sales are final. Neither you nor any of your End-Users may return Products to Dell, except as expressly permitted under this Agreement or the Dell EMC Partner Program Agreement.

E. Security Interest. You hereby grant Dell, and Dell hereby retains, a first priority security interest and lien on any and all of your rights, title, and interest in Products, wherever located, and all replacements or proceeds of the Products, until the invoice for the applicable Products is paid in full, including any late payment fees and costs of collection. You agree Dell may file any financing statements or related filings for protecting this security interest as Dell reasonably deems necessary or appropriate.

4. INVOICING, AND PAYMENT

A. Invoices. Dell may invoice parts of an Order separately, or may invoice purchases of Products and Services in one invoice. Additional charges will apply if you request customized invoicing, consolidated invoicing, or other special billing arrangement or statements. Dell reserves the right to change the method of delivery of all documentation. You agree that all invoices will be deemed accurate unless you advise Dell in writing of a bona fide, material error within ten (10) days from the date of such invoice. If you advise Dell of a material error, (i) any amounts corrected or modified by Dell in writing must be paid within fourteen (14) days of the correction or modification, and (ii) you shall pay all other amounts by the invoice due date. If you withhold payment because you believe an invoiced amount is incorrect, and Dell concludes that the amount is accurate, then you shall pay a late payment fee as described in Section 4.C (“Late Payment”) below, from the due date, for the invoiced amount, until Dell's receipt of the invoiced amount. You may not offset, defer or deduct any invoiced amounts that Dell determines are correct following the notification process described in this paragraph. If you do not receive an invoice or acknowledgement in the mail or with your Products and/or Services, information about your purchase may be obtained here (or in Canada here) or by contacting your Dell sales representative.

B. Payment. You must pay Dell’s invoices in full within the time period noted on Dell’s invoice, or if not noted, then within thirty (30) days measured from the date of the invoice, subject to continuing credit approval by Dell (such approval may be revoked without notice from Dell). Payment shall be made in the currency as invoiced by Dell. Payment for Products and Services must be made by credit card, automated clearing house, wire transfer, electronic funds transfer or some other prearranged payment method, unless credit terms have been agreed to by Dell. You shall make payment to Dell for Products and Services to the account indicated by Dell (as may be amended from time to time). Timely payment is of the essence.

C. Late Payment. Dell reserves the right to charge you a late payment fee of 1.5% per month (18% per annum) applied against undisputed overdue amounts, or the maximum rate permitted by law, whichever is less. Late payment fees will be recalculated every thirty (30) days thereafter based on your current outstanding balance. In addition, Dell may, without waiving any other rights or remedies to which it may be entitled, seek collection of all amounts due, including reasonable attorneys and legal fees, expenses, and costs of collection.

5. SOFTWARE

A. 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 the Dell Software shall be governed by and subject to the applicable license agreement at www.dell.com/licenseagreements (“Dell EULA”). Any updates to the Dell EULA shall be posted here.

B. Third Party Software may come with its own license terms (“Separate License Terms”). The Separate License Terms govern the use of Third Party Software.

C. For certain Software transactions, you agree that (i) Dell may present or, if requested by Dell, you shall present, a purchase acknowledgment form directly to the End-User, and (ii) Dell is not required to process your Order or deliver the applicable Software to the End-User unless and until such End-User has executed the purchase acknowledgment form.

D. With the sale or distribution of Dell Software licenses, you will notify End-User in your End-User Agreement that Dell Software is subject to and governed by the applicable Dell EULA and you will ensure the End-User agrees and accepts the Dell EULA. For certain Third Party Software transactions, if requested by Dell, you will notify End-User in your End-User Agreement that the Third Party Software is subject to and governed by Separate License Terms and you will ensure the End-User agrees and accepts the Separate License Terms. You may not modify in any way the terms of any software license agreement or purchase acknowledgment form.

E. Dell is not required to provide access to Software and may suspend Software usage if End-User has not agreed and accepted the applicable Dell EULA or Separate License Terms. You will immediately notify Dell if you become aware of any End-User’s violation of a Dell EULA or Separate License Terms. Dell may, without waiving any other rights or remedies and without liability to you 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.

F. You may not use, install or download Dell Software for your internal use. Before you install, download, or otherwise use Software on behalf of an End-User, you 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 your use of the Software, and (iii) for Canadian based End-Users, you shall obtain End-User’s consent as required by applicable law to install the Software on End-User’s system.

G. For Dell Software, if (i) the End-User does not agree to be bound by the Dell EULA, (ii) the Dell EULA provides End-User a specified right of return in the event End-User does not accept the Dell EULA terms, (iii) the End-User has not downloaded, installed, activated or otherwise used the Dell Software and (iv) the End-User exercises the right to return the Dell Software (including media, written materials and packaging) and any hardware to which such Dell Software is attached, then you will be entitled to return such hardware and the Dell Software to Dell for a refund; provided, however, your right to return and obtain a refund, as permitted in this paragraph, expires twenty-one (21) days from the date of Dell’s invoice to you, and further provided that Dell may require documentation from the End-User of its objection to the software license agreement and its receipt of refund from you. Notwithstanding anything otherwise set forth in this paragraph or Section 3.D (“No Return”) above, no right of return shall be provided for Products that are specifically excluded from the Return Policy located at www.dell.com/returnspolicy.

H. If you receive activation or registration codes or license keys (“Activation Codes”), you shall distribute the Activation Codes as directed by Dell and to activate (i) only the particular Software copy for which the Activation Codes are intended by Dell to be used and (ii) only as many copies of the Software as licenses you have purchased and resold to an End-User. You shall not reuse Activation Codes for multiple End-Users or for multiple Software copies for the same End-User.

I. Except for any Software license expressly granted to you in this Agreement, no rights are granted and none shall be implied. All Software licenses are for use of object code only. Without Dell’s prior written consent, you shall not, and you shall not permit any third party to, do any of the following: (i) sublicense any Dell 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 Dell Products; (vi) use Software in a service bureau, application service provider or similar capacity; or (vii) disclose to any third party the results of any comparative or competitive analyses, benchmark testing or analyses of Dell Products performed by, or on behalf of, you or End-Users.

6. SERVICES

A. Services Flowdown Terms. You will only resell Services to End-Users who agree to be bound to (i)(1) Dell’s Commercial Terms of Sale set forth at www.dell.com/cts (“U.S. CTS”), if the End-User is located and Services will be delivered in the U.S.; (2) Dell’s Commercial Terms of Sale (Canada) set forth at www.dell.ca/terms (“Canada CTS”), if the End-User is located and Services will be delivered in Canada; or (3) such other written agreement as Dell may designate; and (ii) all applicable Service Agreement(s).

You shall notify End-User in your End-User Agreement that the provision and performance of Services are subject to and will be governed by, as applicable, the U.S. CTS, Canada CTS, Service Agreements, and Services Software terms (collectively, “Services Flowdown Terms”). Additionally, you acknowledge and agree that (i) Dell may present or, if requested by Dell, you shall present, the Services Flowdown Terms directly to the End-User and (ii) Dell is not required to provide or perform any Services for such End-User unless and until such End-User has agreed to be bound by the Services Flowdown Terms, as may be determined in each case by Dell in its sole discretion. You shall immediately notify Dell if you become aware of any End-User’s violation of any of the Services Flowdown Terms. Dell reserves the right, in its sole discretion, to suspend or terminate the provision of any one or more of the Services to an End-User in response to such End-User’s violation, or suspected violation, of any of the Services Flowdown Terms, and Dell will have no liability to you or End-User as a result of any such suspension or termination.

B. Services Delivery. All Services will be performed by Dell or its subcontractors. You may not use, deliver, or perform any Services, including in your capacity as a managed services provider, absent a separate written agreement with Dell expressly authorizing the same.

C. Services Software. Services Software may be hosted by Dell or Dell Affiliate, or installed on End-User’s computers. You agree that, and you will notify End-User in your End-User Agreement that, End-User shall (i) only use the Services Software in connection with the Services, (ii) use any Services Software hosted by Dell in a lawful manner, without interfering with other Dell customers’ 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 Dell’s or Dell’s licensors’ or suppliers’ intellectual property rights in the Services Software. It may be necessary for Dell 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. YOU AGREE, AND YOU WILL ENSURE END-USER AGREES, THAT (1) 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 AND (2) DELL PARTIES SHALL NOT BE LIABLE FOR ANY SUCH INTERFERENCE WITH OR PREVENTION OF YOUR OR END-USER’S ACCESS TO OR USE OF THE SERVICES SOFTWARE.

7. WARRANTIES

DELL MAKES NO WARRANTIES TO YOU UNDER THIS AGREEMENT. Dell’s limited warranty for Dell Products and Services are for End-User only. You shall not make any warranty on Dell’s behalf. You are solely responsible for providing the End-User with the correct warranty information, including term and coverage, and you shall indemnify and hold Dell harmless from any claims related to any warranty you grant that is beyond the Dell end-user warranties described in this Section 7.

A. Dell Limited Warranty.

A(i) Infrastructure Product Warranty. The warranties for the Infrastructure Products are stated in Section 17 (“Supplemental Terms for Infrastructure Products”).

A(ii) Server, Networking, or Client Products. The warranties for Networking Products, Server Products, and Client Products can be found at www.dell.com/warrantyterms (or in Canada at www.dell.ca/warranty) or in the applicable Documentation.

A(iii) Dell Software media and Dell Software. For Independent Software, the warranties are stated in Section 17 (“Supplemental Terms for Infrastructure Products”) and for other Dell Software the warranties (if any) are stated in the applicable Dell EULA.

A(iv) Dell Services. For Infrastructure Product Support Services, the warranties are stated in Section 17 (“Supplemental Terms for Infrastructure Products”) and for other Dell Services the warranties are stated in the applicable Service Agreement.

A(v) Warranty Exclusions. Dell Product warranties do not cover problems that arise from (1) accident or neglect by you or any third party; (2) any third party items or services with which the Dell Product is used or other causes beyond Dell’s control; (3) installation, operation or use not in accordance with Dell’s instructions or the applicable Documentation; (4) use in an environment, in a manner or for a purpose for which the Dell Product was not designed; (5) modification, alteration or repair by anyone other than Dell or its authorized representatives; or (6) in case of Equipment only, causes attributable to normal wear and tear. Dell has no obligation whatsoever for Dell Software installed or used beyond the licensed use, for Equipment which was moved from the Installation Site without Dell’s consent, for Equipment whose original identification marks have been altered or removed, or for any Dell Products for which payment has not been received.

B. Third Party Products. Third Party Products may carry a limited warranty from the third-party publisher, provider, licensor or original manufacturer of such Third Party Products. Dell is not responsible for fulfillment of any Third Party Product warranty or for problems attributable to the use of Third Party Products. Dell does not warrant that any Product will function in any specific configuration that includes any Third Party Products, or that any Product will function to produce a particular result, even if the specific configuration or the result has been discussed with Dell. Dell has no liability to you or End-User for any damages or claims that arise out of or relate to Third Party Products. ALL THIRD PARTY PRODUCTS ARE PROVIDED BY DELL ON AN “AS IS” BASIS.

C. Warranty Disclaimer. EXCEPT FOR WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, DELL (INCLUDING DELL AFFILIATES, CONTRACTORS, AND AGENTS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, SUCCESSORS AND ASSIGNS), ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS (COLLECTIVELY AND TOGETHER WITH DELL, THE “DELL PARTIES”), MAKES NO OTHER EXPRESS WARRANTIES OR CONDITIONS, WRITTEN OR ORAL, AND DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS. INSOFAR AS PERMITTED UNDER APPLICABLE LAW, ALL OTHER WARRANTIES AND CONDITIONS ARE SPECIFICALLY EXCLUDED, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE, AND ANY WARRANTY OR CONDITION ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. DELL AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT THAT SOFTWARE WILL OPERATE UNINTERRUPTED, BE FREE FROM DEFECTS, OR MEET END-USER’S REQUIREMENTS.

D. Support Services/Tag Transfer. As permitted by Dell, you may transfer the asset/service identification number (e.g., the Service Tag or Asset Number) to the End-User that is associated with the Equipment you have purchased for resale. If you transfer the asset/service identification number, you must comply with the process found at www.support.dell.com (or at //www.dell.com/support/home/ca/en/cabsdt1?lwp=rt for Canada), which process Dell may change from time to time. Your failure to properly transfer the asset/service identification number of the Equipment will result in the End-User’s inability to receive Support Services from Dell for such Equipment, and Dell will not be liable to you or to any End-User for any such failure. The parts used in repairing or servicing Products and spare parts may be new, equivalent-to-new, or reconditioned.

8. HIGH RISK APPLICATIONS. The Dell Products and Services are not fault-tolerant and are not designed or intended for use in, and you shall ensure that the End-User not use Dell Products and Services in, any hazardous environments requiring fail-safe performance or in any application in which the failure of the Dell Products or Services could lead directly to death, personal injury, or physical or property damage (collectively, “High-Risk Activities”). High-Risk Activities include the operation of nuclear facilities, aircraft navigation, air traffic control, emergency communications systems, life support machines, and weapons systems. You understand and agree that Dell makes no warranties or assurances that the Dell Products and Services are suitable for any High-Risk Activities and you shall defend and indemnify Dell from any claims made by third parties resulting from any such High-Risk Activities. As between you and Dell, you are 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 you sell.

9. 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; (iii) ITAR (International Traffic in Arms Regulations) released data; and (iv) personally identifiable information that is subject to heightened security requirements as a result of your or End-User’s internal policies or practices, industry-specific standards or by law. You acknowledge and will inform End-User that Products and Services are not designed to process, store, or be used in connection with Excluded Data. End-User or You are solely responsible for reviewing data that will be provided to or accessed by Dell to ensure that it does not contain Excluded Data.

10. INTELLECTUAL PROPERTY

A. Trademarks and Copyrights. You may use the “Dell”, “Dell EMC” or “EMC” names and the names of Dell Products and Services (collectively, “Names”) solely for the purpose of accurately identifying the Dell Products and Services you market or sell under this Agreement. You shall not use any Names for any other purpose, and shall not use any other Dell or Dell Affiliate trademarks, services marks, logos, or copyrighted works, unless and to the extent you are expressly granted such usage right under the Dell EMC Partner Program. You agree to change or correct, at your own expense, any materials or activity that Dell decides is inaccurate, objectionable or misleading, or is a misuse of any of the Names, trademarks, service marks, logos, or copyrighted works. You are prohibited from using Dell’s or Dell Affiliate’s logos, referring to yourself as an authorized reseller of Dell, or creating the impression that Dell or Dell Affiliate is affiliated with you, other than as expressly permitted by the terms of the Dell EMC Partner Program. You shall not claim or imply or create an impression that you and Dell are legal partners or that Dell or Dell Affiliate has sponsored, authorized, approved, or endorsed your business or any offer or marketing, advertising, or promotion thereof in any manner. You will clearly and prominently identify yourself in all your offers and advertising, marketing, and promotional materials. You may not register or use any domain name or business name containing or confusingly similar to any name or mark of Dell’s or Dell Affiliate’s. Additionally, you may not use any Names or Dell or Dell Affiliate marks in search engine advertising, either as a keyword or in advertisements appearing on search engines or in email addresses, without Dell’s prior written permission.

B. Intellectual Property Ownership and Reservation of Rights. All right, title and interest in and to the intellectual property rights in Dell Products and Services, including processes, tools, technology, confidential information 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 Dell, Dell Affiliates or their licensors or suppliers, and you have 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 you an ownership interest in any of the intellectual property rights in or to any Dell Products or Services, in whole or in part. You agree you will take appropriate steps with End-Users to inform them of and ensure their compliance with the restrictions contained in this Section 10.

C. Discontinued or Changed Products or Services. Dell may revise or discontinue any Product or Service offering at any time without notice, including after you place an Order but prior to Dell’s shipment or performance or before the end of the Service subscription. As a result, products and services you or an End-User receives may differ from those ordered.

D. Confidential Information. The term “Dell Confidential Information” means any confidential or proprietary information pertaining to or provided by Dell, including product plans, software, pricing, discounts, marketing and sales information, business plans, customer and supplier data, financial and technical information, “know-how,” trade secrets, and other information, whether such information is in written, oral, electronic, web-based, or other form. You will keep all Dell Confidential Information confidential for a period of three years from the date of Dell’s disclosure to you, and use at least the same degree of care as you use to protect your own confidential information but no less than reasonable care. Notwithstanding anything to the contrary in this Agreement, your confidentiality obligations with respect to customers’ personally-identifiable information and Dell trade secrets shall never expire. You may not disclose Dell Confidential Information to any third party without Dell’s prior written consent. You may share Dell Confidential Information with only your employees who have a need to know and who are subject to legally binding obligations of confidentiality no less restrictive than those imposed by this Agreement. These confidentiality obligations do not apply to any Dell Confidential Information that (i) you can demonstrate was in your possession before receipt from Dell; (ii) is or becomes publicly available through no fault by you; or (iii) you rightfully received from a third party without a duty of confidentiality. If you are required by a government body or court of law to disclose any Dell Confidential Information, you agree to give Dell reasonable advance notice so that Dell may contest the disclosure or seek a protective order. You may use the Dell Confidential Information solely for the purpose of, and in connection with, your business relationship with Dell. No license or conveyance of any rights under any patent, copyright, trade secret, trademark or any other intellectual property right to Dell Confidential Information is granted under this Agreement except the limited rights to use the Dell Confidential Information as expressly set forth in this paragraph. Dell makes no warranties as to the accuracy or completeness of the Dell Confidential Information. ALL DELL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. To the extent permitted by law, Dell disclaims all express, implied and statutory warranties and conditions, and assumes no liability to you for any damages of any kind in connection with the Dell Confidential Information or any intellectual property in them. Upon Dell’s written request, you will promptly return all Dell Confidential Information, together with all copies, or certify in writing that all such Dell Confidential Information and copies thereof have been destroyed. You acknowledge that damages for improper disclosure of Dell Confidential Information may be irreparable and that Dell shall be entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies available at law or in equity. You agree to adhere to all applicable United States, Canadian and foreign export control laws and regulations and will not export or re-export any technical data or products, to any proscribed country listed in the U.S. Export Administration regulations, or foreign national thereof, unless properly authorized by the U.S. Government. Dell may disclose Confidential Information (including pricing information) to third parties, if Dell believes the Confidential information is useful in conducting any investigation or other proceeding that involves compliance, fraud, corruption, antitrust, or collection efforts.


 

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