1. Introduction

These terms together with the Service Documents, Software Agreement and Supplementary Terms for Infrastructure Products (as defined below) (together, the “Agreement”), made between you (“you”) and Dell Computer (Pty) Limited (“Dell”), govern your purchase and use of Products and Services from Dell. In the event of a conflict between these agreements the following priority order will apply: (1) the applicable Service Document or Software Agreement; (2) the Supplementary Terms for Infrastructure Products (as defined below) and (3) these Commercial Terms of Sale.

The Products and Services are solely for your internal use. If you wish to resell Dell Products and Services, alternative reseller terms of sale, will apply.

2. Definitions

Affiliate” means a legal entity that is controlled by, controls, or is under common control with Dell or you respectively. Control means more than 50% of the voting power or ownership interests.

Hardware” means computer hardware including all components embedded before shipping.

Infrastructure Products” means SC and VxRail Products and their related Software or, if offered by Dell in an individual quote to you, any other Product that comprises data storage, back-up and converged function data management products.

Order Confirmation” means the written order confirmation issued by Dell when Dell accepts your order for Products and/or Services.

Products” means Hardware, Software, or both, including the Infrastructure Products, and may be Dell, Dell EMC or third party branded.

Services” means any and all services provided by (or on behalf of) Dell.

Service Document” means (i) the service descriptions found here or, for Infrastructure Products, the Product Notice, Product Warranty, Customer Service Options, Personalized Support Services and additional Warranty Information found here; or (ii) any statement of work describing specific Services.

Software” means any software, library, utility, tool, or other computer or program code, in object (binary) or source-code form, as well as related documentation, provided by Dell to you, and may include third party manufactured software titles. Software includes software (1) provided by Dell and locally installed on Hardware or (2) made available by Dell and accessed by you through the internet or other remote means (such as websites, portals, and “cloud-based” solutions).

Software Agreement” means the license agreement included in writing with the software packaging or presented to you during installation or use of the Software or otherwise communicated to you in writing; or, if no license terms accompany the Software or have been made available in writing or online, the applicable End User License Agreement, such as the Dell End User License Agreement, found here and, for Infrastructure Products, the ISG EULA found here.

3. Duration of the Agreement

This Agreement will continue until all Services and applicable Hardware warranties have expired. Each Service will continue for the term stated in the Order Confirmation or, if no term is stated, the term, if any, stated in the Service Document. Any use beyond that term will be subject to the then-current Service Document.

4. Ordering

Where relevant, t he description of the Products and Services and related pricing will be stated in a quote provided to you by Dell. A contract between you and Dell is formed only when Dell issues you with an Order Confirmation or otherwise accepts a purchase order issued by you on the basis of this Agreement. The terms of any Service Documents referred to in a customer quote or Order Confirmation shall be deemed to be incorporated into this Agreement. For the avoidance of doubt, to the extent that Dell accepts a purchase order from you: (a) Dell rejects all additional or inconsistent terms that may be contained in any purchase order or other documentation submitted by you in connection with your order; and (b) Dell conditions its acceptance on the application of these terms.

5. Prices, Payment and Taxes

A. Prices. Prices for Products and/or Services shall be set out in the Order Confirmation or Service Document.

B. Payment. Invoices shall be paid within 30 days of the invoice date in the currency identified on the invoice. You must advise Dell in writing of a material error in the invoice within 14 days of the invoice date. In that event, (i) payment of amounts corrected by Dell shall be due within 30 days of correction, and (ii) all other amounts shall be paid by the invoice due date.

C. Taxes. All amounts due under the Agreement are exclusive of VAT. Dell will provide a valid VAT invoice. You are responsible to pay the VAT.

6. Products, Services and Software

A. Performance. Dell (or its appropriate Affiliate or subcontractor) shall provide (i) the Hardware in accordance with the Order Confirmation and (ii) the Services in accordance with, and subject to any additional terms, exclusions and limitations set out in, the applicable Service Document . The Infrastructure Products shall be provided in accordance with and subject to additional terms which can be found here (“Supplementary Terms for Infrastructure Products”) and which are incorporated by reference into this Agreement.

B. Title and Risk. Risk in the Hardware passes from Dell to you upon delivery by Dell, or its carrier, to you or your authorized representative, at the location specified in the Order Confirmation. Dell retains ownership of the Products until full payment is received. Risk and title to the Infrastructure Products shall pass to you as set out in the Supplementary Terms for Infrastructure Products.

C. Suspension. Dell may suspend all or part of its obligations under this Agreement:-

(i) if required to do so under applicable law;

(ii) if Dell believes that you are involved in any fraudulent or illegal activities; or

(iii) if you are in breach of your payment obligations or other terms set out in this Agreement.

D. Software. The terms upon which Dell shall provide the Software to you are set out in the applicable Software Agreement.

7. Your Obligations

A. Your Authorisation for Provision of Services. You will ensure that Dell’s (or its appropriate Affiliate or subcontractor’s) performance of the Services will not affect any third party manufacturer’s warranties. You authorise, and will have obtained all necessary permissions or consents to allow Dell to use or access any and all software, hardware, systems and data that you provide to us, or that you request Dell to use, or which may be necessary to perform the Services.

B. Co-operation. You will provide all co-operation necessary for Dell (and/or its Affiliates or subcontractors) to perform the Agreement including co-operating with any instructions provided by Dell.

C. On-site Obligations. Where Services are provided on-site, you will provide Dell with free, safe and sufficient access to your facilities and environment, including working space, electricity, safety equipment, access to a computer and a local telephone line.

D. Data back-up. You are solely responsible for completing regular back-ups of all data, software and programs on your systems, prior to and during the delivery of the Services.

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