PLEASE READ THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THIS SOFTWARE OR BEFORE USING THE SERVICES. BY DOWNLOADING, INSTALLING OR USING THIS SOFTWARE, OR BY USING THE SERVICES, YOU INDICATE ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL OR USE THIS SOFTWARE OR USE THE SERVICES. FOR SOFTWARE, THIS AGREEMENT DOES NOT SUPERSEDE ANY OTHER SIGNED AGREEMENT BETWEEN YOU AND DELL.
This agreement (the “Agreement”) shall govern the purchase of Software licenses and/or Services that you are making (the “Order”) from Dell Software Inc., with its principal place of business located at 5 Polaris Way, Aliso Viejo, California, 92656 (“Dell”). If you are purchasing as an individual, then you shall be the “Customer” under this Agreement. If you are placing this Order on behalf of an organization, that organization shall be the “Customer” under this Agreement and you represent and warrant that you have the requisite authority to bind that organization to this Agreement.
1. Definitions. Capitalized terms not defined in context shall have the meanings assigned to them below:
(a) “Affiliate” means any legal entity controlling, controlled by, or under common control with a party to this Agreement, for so long as such control relationship exists.
(b) “Device” or “Devices” means any asset or object (physical or virtual) attached to the network that has at least one IP address. Devices that are discovered by Dell and then added to the list to be monitored are counted towards Customer’s licensed Device limit, provided, however, that Dell shall not restrict Licenses by the number of interfaces, ports, or services running on a Device.
(c) “Documentation” means the user manuals and documentation that Dell delivers with the Software, and all copies of the foregoing.
(d) An “End Customer” will be defined as a single business entity to which Customer provides MSP services. An End Customer may have multiple locations and may use as many Devices as are available under the contract.
(e) “Host” means the computer or computers on which the Software is installed to provide the Hosted Services.
(e) “Hosted Services” are those hosted software services described in Section 3.
(f) “Maintenance Services” are those support services described in Section 4.
(e) “Order” means the document by which Customer orders the Software or Services, or, if Customer orders the Software or Services online through a Dell website, the process by which Customer orders the Software or Services. Orders signed by Customer and Dell shall be governed solely by the terms of this Agreement and the applicable Order. Orders placed with Dell by Customer purchase order, Orders placed online through a Dell website, and all Orders placed through a Partner shall be governed solely by the terms of this Agreement. Any conflicting or additional terms in or accompanying an Order will not be binding on Dell unless Dell accepts such terms in writing. Each Order shall be the Customer’s irrevocable commitment to purchase and pay for the Software or Services stated in the Order.
(f) “Partner” means a reseller or distributor that is under contract with Dell or another Partner and is authorized via the contract to resell the Software and/or Maintenance Services.
(g) “Dell” means either Dell Software Inc. or its Affiliate or subsidiary who accepts an Order for the Software.
(h) “Services” means either Maintenance Services, Hosted Services, or both.
(i) “Software” means the object code version of the software that is delivered pursuant to an Order as well as any corrections, enhancements, and upgrades to such software that Dell makes available to Customer pursuant to this Agreement, and all copies of the foregoing.
2. Software License.
(a) License Term. Each License (as defined below) shall be granted for the term stated on the Order (the “Initial Term”). At the end of the Initial Term, each License shall automatically renew for an additional term of thirty (30) days (a “Renewal Term”). The License shall continue to automatically renew for additional Renewal Terms unless the Renewal Term is terminated by either party in writing at least thirty (30) days prior to the start of the Renewal Term. The Initial Term and each Renewal Term may be collectively referred to herein as the “Term”.
(b) Internal Use License. Subject to the terms of this Agreement, Dell grants to Customer, and Customer accepts from Dell, a non-exclusive, non-transferable (except as otherwise set forth herein) and non-sublicensable license (“License”) for the term stated on the Order (the “License Term”) to (i) install, execute, access, run, or otherwise use the Software identified in the applicable Order, on a single computer owned or leased by Customer, to monitor the number of Devices identified in the applicable Order and, if licensed by End Customer, for the number of End Customers for which licenses have been purchased, (ii) make a reasonable number of additional copies of the Software to be used solely for non-productive archival or passive disaster recovery purposes, so long as neither the original and a copy nor two copies of the same Software are used at the same time, and (iii) make and use copies of the Documentation as reasonably necessary to support Customer’s authorized users in their use of the Software (collectively, “License”). Except for MSP Licenses (as described in Section 2(c) below), each License shall be used by Customer solely to manage its own internal business operations as well as the business operations of its Affiliates.
(c) MSP License. The terms and conditions set forth in this Section apply to the “Dell PacketTrapRMM” Software only. Customer shall be granted a License for the Term to use the Software identified in the Order and the associated Documentation as a managed service provider to provide software and systems management services, including, without limitation, application, operating system, and database implementation, performance tuning, and maintenance services (“Management Services”), for the benefit of its clients (“Clients”). Customer shall be solely responsible for supporting its Clients, including but not limited to, conducting all activities required to install the Software and for providing any training to its Clients and any system integrators regarding the installation, use and operation of the Software; (b) Customer agrees that all such support and training shall be conducted in accordance with generally accepted industry standards and Customer’s best practices and that Customer may be required to undergo training, at Customer’s expense, for the Software; (c) Customer agrees to maintain the facilities, resources and experienced personnel necessary to fulfill its obligations under this Agreement and to maintain the operating system, computer hardware and network on which the Software resides in good operating condition; (d) Customer agrees that its information technology assets will be fully capable of supporting the use anticipated under the applicable Order; (e) Customer will provide Management Services to its Client in a manner that does not degrade the goodwill and reputation of Dell or the Software and will not undertake any action that would impair or disrupt Dell's relationship with its customers or potential customers; and (f) Customer will make no representations or warranties related to the Software in excess of Dell's representations or Warranties contained in this Agreement.
(d) Evaluation License. The terms and conditions set forth in this Section apply to Software obtained from Dell for evaluation purposes only. Customer shall be granted a License to use the Software and the associated Documentation solely for Customer’s own internal evaluation purposes for an evaluation period of up to twenty one (21) days from the date of delivery of the Software, plus any extensions granted by Dell in writing (the "Evaluation Period"). There is no limitation on the number of Devices that can be monitored during the Evaluation Period and there is no fee for Customer’s use of the Software during the Evaluation Period, however, Customer is responsible for any applicable shipping charges or taxes which may be incurred. Customer’s opportunity for a free evaluation of the Software is limited to one Evaluation Period per release of the Software. Notwithstanding anything otherwise set forth in this Agreement, Customer understands and agrees that evaluation Software is provided “AS IS” and that Dell does not provide a Warranty or Maintenance Services for evaluation Licenses.
(e) Third Party Use. If Customer contracts with a third party who performs Software implementation, configuration, consulting or outsourcing services (“Service Provider”), the Service Provider may use the Software and Documentation Licensed by Customer hereunder solely for purposes of providing such services to Customer, provided that (i) Customer ensures that the Service Provider uses the Software and Documentation in accordance with the terms of this Agreement, (ii) the use of the Software and Documentation by the Service Provider will not violate the terms of the export restrictions set forth herein, and (iii) the Service Provider is not a Dell competitor. Customer shall be jointly and severally liable to Dell for the acts and omissions of its Service Providers in connection with their permitted use of the Software and Documentation.
3. Hosted Services.
(a) The Hosted Services include a browser interface, access to the Hosted Services, the storage of data input to or processed with the Software (the “Data”), the right to use the PacketTrap PSA Software as installed on the Host, and the right to obtain Maintenance Services for the Software (however updates to the Software shall be made by Dell).
(b) If the Hosted Services have been obtained on a trial basis, the Hosted Services may be used at no charge for a period of fifteen (15) days from the time this Agreement has been agreed to (the “Trial Period”) for the sole purpose of evaluating the Hosted Services and Software for a future purchase. At the end of the Trial Period, Section 10 (Termination) below shall apply unless the Hosted Services are purchased.
(c) The Hosted Services may only be used by the number of Users stated on the Order during the Initial Term stated on the Order. Additional Users and renewal terms may be obtained by a subsequent Order accepted by Dell. If Customer adds Users during a calendar month, it shall be invoiced for such added Users for the entire month in which they were added. If Customer deletes Users during a calendar month, the reduced fee will take effect in the following calendar month.
(d) A User account may only be used by one person; however if a person leaves Customer’s organization or is assigned to duties that do not include use of the Hosted Services, the User account may be reassigned to another person.
(d) Upon termination of the Hosted Services, Dell shall maintain Data for thirty (30) days, during which time Customer may export the Data.
4. Maintenance Services. At no additional charge during the Term, Dell shall make available to Customer the Maintenance Services for the Software as defined in this Section. “Maintenance Services” shall be available via the Internet, e-mail, or telephone and shall mean the following:
(a) Dell shall make available to Customer new versions and releases of the Software, including Software corrections, enhancements and upgrades, if and when Dell makes them generally available without charge as part of Maintenance Services.
(b) Dell shall respond to unlimited communications from Customer that report Software failures not previously reported to Dell by Customer. Nothing in the foregoing shall operate to limit or restrict follow up communication by Customer regarding Software failures.
(c) Customer shall have access to Dell’s Support Web site at http://packettrap.com/support and Community Web site at http://communities.quest.com/community/packettrap/ptmsp.
5. Restrictions. Except to the extent expressly permitted by applicable law, and to the extent that Dell is not permitted by such applicable law to exclude or limit the following rights, Customer may not reverse engineer, decompile, disassemble, or attempt to discover or modify in any way the underlying source code of the Software, Documentation, Hosted Services or any part thereof. In addition, Customer may not (i) modify, translate, localize, adapt, rent, lease, loan, create or prepare derivative works of, or create a patent based on the Software, Documentation, Hosted Services, or any part thereof, or (ii) resell the Software, Documentation, or Hosted Services or use the Software, Documentation, or Hosted Services in any commercial time share arrangement, in connection with the operation of any nuclear facilities, or for purposes which are competitive to Dell. Each permitted copy of the Software and Documentation made by Customer hereunder must contain all titles, trademarks, copyrights and restricted rights notices as in the original. Customer understands and agrees that the Software may work in conjunction with third party products and Customer agrees to be responsible for ensuring that it is properly licensed to use such third party products. Notwithstanding anything otherwise set forth in this Agreement, the terms and restrictions set forth herein shall not prevent or restrict Customer from exercising additional or different rights to any open source software that may be contained in or provided with the Software in accordance with the applicable open source licenses.
When using the Hosted Services, Customer may not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Hosted Services or the Data contained therein; or (v) attempt to gain unauthorized access to the Hosted Service or its related systems or networks. Additionally, Customer is responsible for all activity occurring under Customer User accounts and shall abide by all applicable laws, in connection with its use of the Hosted Services, including those related to data privacy, international communications and the transmission of technical or personal data. Customer shall notify Dell immediately of any unauthorized use of any password or account or any other known or suspected breach of security.
6. Reservation of Rights and Ownership. Dell reserves any and all rights, implied or otherwise, which are not expressly granted to Customer in this Agreement. Customer understands and agrees that (i) the Software, Documentation, and Hosted Services are protected by copyright and other intellectual property laws and treaties, (ii) Dell and/or its suppliers own the title, copyright, and other intellectual property rights in the Software, Documentation, the Hosted Services and any Feedback that Customer may provide to Dell regarding the Software, Documentation, or Hosted Services, (iii) the Software is licensed, and not sold, and (iv) this Agreement does not grant Customer any rights to Dell’s trademarks or service marks.
7. Collection and Use of Customer Information. Customer is hereby notified that the Software may collect certain information from the Customer and transmit such information back to Dell. Such information may include, without limitation, statistics relating to how often the Software and tools are started and completed, performance metrics relating to the Software, and Software configuration settings. In addition, Customer is hereby notified that (1) the Software requires a registration process whereby machine specific identifiers (that have been encrypted and are unique but anonymous) such as the username and email address for the user are transmitted to Dell’s licensing server to allow Dell to generate a unique key that is bound to the specific computer on which the Software may be used, (2) the Software will communicate with Dell’s patching server and allow Customer to download patches when they are available, (3) the Software provides a ‘Feedback’ facility that allows Customer to send suggestions and ideas for improving the Software (“Feedback”), (4) the Software includes a mechanism to transmit information to Dell regarding unhandled exceptions, and (5) the Software makes connections to Dell servers to verify license validity. Customer hereby consents to the collection of such information by the Software, the transmission of such information to Dell, and the use of such information by Dell for any purpose without restriction, provided, however, that Dell will (i) not send IP address, host name, credential information, or anything about Customer’s network to Dell servers for any purposes, (ii) not send the results of the monitoring or diagnostic tool runs to anything other than the Software, and (iii) encrypt credentials that are entered into the Software with 256-bit AES Encryption if Customer elects to save those credentials inside the Dell Encrypted Credential Store.
8. Payment. Customer agrees to pay to Dell (or, if applicable, the Partner) the fees specified in each Order, including any applicable shipping fees. Payment shall be made by credit card unless otherwise agreed to by the parties. Customer’s credit card shall be billed following delivery of the Software, prior to the commencement of any Renewal Maintenance Period, and monthly for Hosted Services in advance of each month in which Hosted Services are provided. Customer shall indemnify and hold Dell harmless for any damages, claims, or losses Dell may incur in connection with Customer’s use of a credit card, including but not limited to processing fees for any rejected credit card charges.
If an invoice is issued in place of payment by credit card, Customer shall make all payments due to Dell in full within thirty (30) days from the date of each invoice or such other period (if any) stated in an Order signed by Dell. Any amounts payable to Dell by Customer that remain unpaid after the due date shall be subject to a late charge of 1.5% of the invoice amount per month from the due date until such amount is paid, or the maximum rate permitted by law if less.
9. Taxes. The fees stated in an Order may not include taxes. If Dell is required to pay sales, use, property, value-added or other taxes based on the Software or Maintenance Services provided under this Agreement or on Customer’s use of the Software or Maintenance Services, then such taxes shall be billed to and paid by Customer. This Section does not apply to taxes based on Dell’s income.
10. Termination. This Agreement and/or the License(s) granted hereunder may be terminated (i) by mutual agreement of Dell and Customer, (ii) by Dell, if Customer or a Service Provider commits a material breach of this Agreement and fails to cure such breach to Dell’s reasonable satisfaction within thirty (30) days following receipt of Dell’s notice thereof, or (iii) by Customer for any reason upon thirty (30) days written notice to Dell. Upon termination of this Agreement or expiration or termination of a License or the Hosted Services for any reason, all rights granted to Customer for the applicable License(s) or Hosted Services shall immediately cease and Customer shall, as applicable, immediately: (i) cease using the applicable Software, Documentation, and Hosted Services, (ii) return the applicable Software to Dell together with all Documentation and other materials associated with the Software and all copies of any of the foregoing, or destroy such items, (iii) cease using the Maintenance Services associated with the applicable License(s), (iv) pay Dell or the applicable Partner all amounts due and payable up to the date of termination, and (v) give Dell a written certification that Customer has complied with all of the foregoing obligations. Termination of this Agreement or a License shall be without prejudice to any other remedies that the terminating party may have under law, subject to the limitations and exclusions set forth in this Agreement. Any provision of this Agreement that requires or contemplates execution after termination of this Agreement or expiration of a License is enforceable against the other party and their respective successors and assignees notwithstanding termination or expiration, including, without limitation, the “Payment,” “Taxes,” “Termination,” “Warranty Disclaimer,” “Infringement,” "Limitation of Liability," "Confidential Information", “Compliance Verification,” and “General” Sections of this Agreement.
11. Export. Customer acknowledges and agrees that the Software, Documentation, and Hosted Services are subject to the export control laws, rules, regulations, restrictions and national security controls of the United States and other applicable foreign agencies (the "Export Controls"), and agrees not to export or re-export, or allow the export or re-export of the Software or any copy, portion or direct product of the foregoing in violation of the Export Controls. Customer hereby represents that (i) Customer is not an entity or person to which shipment of Software is prohibited by the Export Controls; and (ii) Customer will not export, re-export or otherwise transfer the Software to (a) any country subject to a United States trade embargo, (b) a national or resident of any country subject to a United States trade embargo, (c) any person or entity to which shipment of Software is prohibited by the Export Controls, or (d) anyone who is engaged in activities related to the design, development, production, or use of nuclear materials, nuclear facilities, nuclear weapons, missiles or chemical or biological weapons.
(a) Software Warranties. Dell warrants that, for a period of thirty (30) days following the initial delivery of Software pursuant to an Order (the “Warranty Period”), (i) the media provided by Dell, if any, on which the Software is recorded will be free from material defects in materials and workmanship under normal use, (ii) the operation of the Software, as provided by Dell, will substantially conform to the Documentation applicable to such Software, and (iii) the Software as delivered by Dell does not contain any viruses, worms, Trojan Horses, or other malicious or destructive code designed by Dell to allow unauthorized intrusion upon, disabling of, or erasure of the Software (however, the Software may contain a key limiting use of the Software to within the scope of License granted, and license keys issued by Dell for temporary use are time-sensitive) (the “Software Warranties”). Customer must give written notice to Dell of any breach of the Software Warranties no later than five days following the expiration of the Warranty Period.
Customer’s exclusive remedies, and Dell’s sole obligations, for any such breach of these Warranties shall be as follows: (a) for the warranty in subsection (i), Dell shall, at its expense, replace any defective media; (b) for the warranty in subsection (ii), Dell shall correct or provide a workaround for reproducible errors in the Software that cause a breach of the warranty within a reasonable time considering the severity of the error and its effect on Customer, or, at Dell’s option, refund the license fees paid for the nonconforming Software upon return of such Software to Dell and termination of the related License(s) hereunder; and (c) for the warranty in subsection (iii), Dell shall provide a copy of the Software that is in conformance with such warranty.
The foregoing Software Warranties shall not apply to any non-conformance (i) that Dell cannot recreate after exercising commercially reasonable efforts to attempt to do so; (ii) caused by misuse of the Software or by using the Software in a manner that is inconsistent with this Agreement or the Documentation; or (iii) arising from the modification of the Software by anyone other than Dell.
(b) Hosted Services Warranties. Dell warrants that (i) the Software provided as part of the Hosted Services will operate in substantial conformance with the applicable Documentation and (ii) Dell will make commercially reasonable efforts to make the Hosted Services available twenty four hours a day, seven days a week except for scheduled maintenance, the installation of Software updates, those factors that are beyond the reasonable control of Dell, and Customer’s failure to meet any minimum system requirements communicated to Customer by Dell. Notwithstanding the foregoing, if the Services have been obtained on a Trial basis, although Dell will make reasonable efforts for the Software to operate in substantial conformance with the applicable Documentation and to make the Services available during the Trial Period, the Services provided on a trial basis are provided as-is, with no warranties of any kind, express or implied.
Customer’s sole and exclusive remedy and Dell’s entire liability for any breach of the warranty stated in Section 12(b)(i) shall be for Dell to provide a correction or reasonably acceptable workaround for the non-conformance within a reasonable time considering the severity of the error and its effect on Customer or, at Dell’s option to reduce the Services fees proportionately to the amount of time the Software was not operating in substantial conformance with the applicable Documentation.
Customer’s sole and exclusive remedy and Dell’s entire liability for any breach of the warranty stated in Section 12(b)(ii) shall be for Dell to reduce the Services fees proportionately to the amount of time the Hosted Services were unavailable for use as a result of the breach.
(c) Customer Warranties. Customer warrants that (i) it has the legal right to use and store the Data in connection with the Hosted Services and shall indemnify and Dell hold harmless from any damages, expenses, or claims by third parties arising from the breach of this warranty; (ii) any credit card or other electronic payment method used or designated by Customer during the purchase process is current and accurate; and (iii) it will not attempt to access or discover any information on the Host which is not Customer’s Data or which is not provided to Customer as part of the Hosted Services.
(d) Warranty Disclaimer. THE EXPRESS WARRANTIES AND REMEDIES SET FORTH IN THIS SECTION ARE THE ONLY WARRANTIES AND REMEDIES PROVIDED BY DELL HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL OTHER WARRANTIES OR REMEDIES ARE EXCLUDED, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND ANY WARRANTIES ARISING FROM USAGE OF TRADE OR COURSE OF DEALING OR PERFORMANCE. DELL DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF THE SOFTWARE OR THE HOSTED SERVICES.
13. Infringement. Dell will at its own expense defend or settle any claim, suit, action, or proceeding brought against Customer by a third party to the extent it is based on an allegation that the Software directly infringes any patent, copyright, trademark, or other proprietary right enforceable in the country in which the Software is delivered to Customer, or misappropriates a trade secret in such country (a “Claim”). Additionally, Dell shall pay any judgments finally awarded against Customer under a Claim or any amounts assessed against Customer in any settlements of a Claim, and reasonable administrative costs or expenses, including without limitation reasonable attorneys’ fees, necessarily incurred by Customer in responding to the Claim. Dell’s obligations under this Section are conditioned upon Customer (i) giving prompt written notice of the Claim to Dell; (ii) permitting Dell to retain sole control of the investigation, defense or settlement of the Claim, and (iii) providing Dell with such cooperation and assistance as Dell may reasonably request from time to time in connection with the investigation, defense or settlement of the Claim. Dell shall have no obligation hereunder to defend Customer against any Claim (a) resulting from use of the Software other than as authorized in this Agreement, (b) resulting from a modification of the Software other than by Dell, or (c) based on Customer’s use of the Software after Dell recommends discontinuation because of possible or actual infringement, (d) based on Customer’s use of a superseded or altered release of Software if the infringement would have been avoided by use of a current or unaltered release of the Software made available to Customer, or (e) to the extent the Claim arises from or is based on the use of the Software with other products, services, or data not supplied by Dell if the infringement would not have occurred but for such use. If Customer’s use of the Software is enjoined as a result of a Claim, Dell shall, at its expense and option either (i) obtain for Customer the right to continue using the Software, (ii) replace the Software with a functionally equivalent non-infringing product, (iii) modify the Software so that it is non-infringing, or (iv) accept the return of the infringing Software and refund the license fee paid for the infringing Software, pro-rated over a sixty (60) month period from the date of delivery of the Software following an Order . This Section states the entire liability of Dell, and Customer’s sole and exclusive remedy, with respect to a Claim.
14. Limitation of Liability. EXCEPT FOR (A) ANY BREACH OF THE "RESTRICTIONS" OR "CONFIDENTIAL INFORMATION" SECTIONS OF THIS AGREEMENT, (B) AMOUNTS CONTAINED IN JUDGMENTS OR SETTLEMENTS WHICH DELL IS LIABLE TO PAY ON BEHALF OF CUSTOMER UNDER THE “INFRINGEMENT” SECTION OF THIS AGREEMENT, OR (C) any liability to the extent LIABILITY may not be excluded or limited as a matter of law, IN NO EVENT SHALL DELL, ITS AFFILIATES, OR SUPPLIERS, OR CUSTOMER BE LIABLE FOR any loss of revenue, loss of actual or anticipated profits, loss of business, loss of contracts, loss of goodwill or reputation, loss of anticipated savings, loss of, damage to or corruption of data, or for any indirect, incidental, special or consequential loss or damage of any kind, in each case howsoever arising, whether such loss or damage was foreseeable or in the contemplation of the parties and whether arising in or for breach of contract, tort (including negligence), breach of statutory duty, or otherwise.
EXCEPT FOR (a) any breach of CUSTOMER’S PAYMENT OBLIGATIONS; (b) ANY BREACH OF THE "software LICENSE," RESTRICTIONS," “export” OR " CONFIDENTIAL INFORMATION" SECTIONS OF THIS AGREEMENT, OR ANY OTHER VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; (c) DELL’s express obligations under THE “INFRINGEMENT” SECTION OF THIS AGREEMENT; OR (d) any liability to the extent LIABILITY may not be excluded or limited as a matter of law, The maximum aggregate and cumulative liability of DELL, its affiliates and suppliers, and CUSTOMER under this agreement, whether arising in or for breach of contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed THE FEES PAID and/OR OWED (as applicable) BY CUSTOMER FOR THE Software OR SERVICES THAT ARE THE SUBJECT OF THE CLAIM. FOR SERVICES OR SOFTWARE THAT IS SUBJECT TO RECURRING FEES, THE LIABILITY SHALL NOT EXCEED THE AMOUNT paid and/OR OWED (as applicable) FOR SUCH SERVICE OR SOFTWARE during the TWELVE (12) MONTHS PRECEDING THE CLAIM.
Dell’s Affiliates and suppliers shall be beneficiaries of this “Limitation of Liability" section and Customer’s Service Providers are entitled to the rights granted under the "Third Party Use" section of this Agreement; otherwise, no third party beneficiaries exist under this Agreement. Dell expressly excludes any and all liability to Customer’s Service Providers, Clients and to any other third party.
15. Confidential Information.
(a) Definition. “Confidential Information” means information or materials disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that are not generally available to the public and which, due to their character and nature, a reasonable person under like circumstances would treat as confidential, including, without limitation, personal data, financial, marketing, and pricing information, trade secrets, know-how, proprietary tools, knowledge and methodologies, the Products (in source code and/or object code form), information or benchmark test results regarding the functionality and performance of the Products, any Software license keys provided to Customer, and the terms and conditions of this Agreement. Personal data includes “Individually Identifiable Health Information” (as that term is defined in 45 CFR § 164.501) or “Nonpublic Personal Information” (as that term is defined in Title V of the Gramm-Leach-Bliley Act of 1999).
Confidential Information shall not include information or materials that (i) are generally known to the public, other than as a result of an unpermitted disclosure by the Receiving Party after the Agreement Date; (ii) were known to the Receiving Party without an obligation of confidentiality prior to receipt from the Disclosing Party; (iii) the Receiving Party lawfully received from a third party without that third party’s breach of agreement or obligation of trust; or (iv) are or were independently developed by the Receiving Party without access to or use of the Disclosing Party’s Confidential Information.
(b) Obligations. The Receiving Party shall (i) not disclose or permit disclosure of the Disclosing Party’s Confidential Information to any third party, except as permitted in Section 15(c) below, (ii) only use the use the Disclosing Party’s Confidential Information to exercise the rights granted to it under this Agreement, and (iv) protect the Disclosing Party’s Confidential Information from unauthorized use or disclosure by exercising at least the same degree of care it uses to protect its own similar information, but in no event less than a reasonable degree of care. The Receiving Party shall promptly notify the Disclosing Party of any known unauthorized use or disclosure of the Disclosing Party’s Confidential Information and will cooperate with the Disclosing Party in any litigation brought by the Disclosing Party against third parties to protect its proprietary rights. For the avoidance of doubt, this Section 15 shall apply to all disclosures of the parties’ Confidential Information as of the Agreement Date, whether or not specifically arising from a party’s performance under this Agreement.
(c) Permitted Disclosures. Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information with the Disclosing Party’s prior written consent or to its any Affiliates, directors, officers, employees, consultants or representatives (collectively, the “Representatives”), but only to those Representatives that (i) have a “need to know” in order to carry out the purposes of this Agreement, (ii) are legally bound to the Receiving Party to protect information such as the Confidential Information under terms at least as restrictive as those provided herein, and (iii) have been informed by the Receiving Party of the confidential nature of the Confidential Information and the requirements regarding restrictions on disclosure and use as set forth in this Section 15.
Additionally, it shall not be a breach of this Section for the Receiving Party to disclose the Disclosing Party’s Confidential Information as may be required by operation of law or legal process, provided that the Receiving Party provides prior notice of such disclosure to the Disclosing Party unless expressly prohibited from doing so by a court, arbitration panel or other legal authority of competent jurisdiction.
16. Compliance Verification. Customer agrees to maintain and use systems and procedures to accurately track, document, and report its installations and usage of the Products. Such systems and procedures shall be sufficient to determine if Customer’s deployment of the Products is within the quantities, Product Terms, and maintenance releases to which it is entitled. At Dell's request, but not more frequently than once per year, Customer shall provide a written report to Dell, signed by an authorized representative, listing Customer's then current deployment of the Products. Customer will permit Dell or its designated auditing agent to audit Customer's deployment of the Products for compliance with the terms and conditions of this Agreement and the applicable Order(s). Customer shall provide its full cooperation and assistance with such audit and provide access to the applicable records and computers. Any such audits shall be scheduled at least ten (10) days in advance, shall be conducted during normal business hours at Customer's facilities, and shall not unreasonably interfere with Customer's business activities. If Customer's deployment of the Products is found to be greater than its purchased entitlement to such Products, Customer will be invoiced for the additional deployment and the applicable Maintenance Services fees at Dell’s then current list price, and the unpaid fees shall be payable in accordance with this Agreement. Additionally, if the unpaid fees exceed five percent (5%) of the fees paid for the subject Products, then Customer shall also pay Dell's reasonable costs of conducting the audit. The requirements of this Section shall survive for two (2) years following the termination of the last License governed by this Agreement.
(a) Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict of laws principles that would require the application of laws of a different state. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this Agreement, regardless of the states in which the parties do business or are incorporated. Any action seeking enforcement of this Agreement or any provision hereof shall be brought exclusively in the state or federal courts located in the County of Orange, State of California, United States of America. Each party hereby agrees to submit to the jurisdiction of such courts.
(b) Assignment. Except as otherwise set forth herein, Customer shall not, in whole or part, assign or transfer any part of this Agreement or any rights hereunder without the prior written consent of Dell. Any attempted transfer or assignment by Customer that is not permitted by this Agreement shall be null and void.
(c) Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, such provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect. Notwithstanding the foregoing, the terms of this Agreement that limit, disclaim, or exclude warranties, remedies or damages are intended by the parties to be independent and remain in effect despite the failure or unenforceability of an agreed remedy. The parties have relied on the limitations and exclusions set forth in this Agreement in determining whether to enter into it.
(d) Use by U.S. Government. The Software is a “commercial item” under FAR 12.201. Consistent with FAR section 12.212 and DFARS section 227.7202, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Software or Documentation by the U.S. government is prohibited except as expressly permitted by the terms of this Agreement. In addition, when Customer is a U.S. government entity, the language in Subsection 13 (ii) of this Agreement and Section 17 (i) of this Agreement shall not be applicable.
(e) Personal Data. Customer hereby acknowledges and agrees that Dell’s performance of this Agreement may require Dell to process or store personal data of Customer, its employees and Affiliates and to transmit such data internally within Dell or to Dell Affiliates. Such processing, storage, and transmission shall only be to the extent necessary for, and for the sole purpose of, enabling Dell to perform its obligations under this Agreement and may take place in any of the countries in which Dell and its Affiliates conduct business, which may include countries outside of the European Economic Area. Dell hereby affirms to Customer that Dell Software Inc. currently abides by the safe harbor framework as set forth by the U.S. Department of Commerce regarding the collection, use and retention of data from the European Union.
(f) Notices. All notices provided hereunder shall be in writing and addressed to the legal department of the respective party or to such other address as may be specified in an Order or in writing by either of the parties to the other in accordance with this Section. Except as may be expressly permitted herein, notices may be delivered personally, sent via a nationally recognized courier or overnight delivery service,, or mailed by first class mail, postage prepaid. All notices, requests, demands or communications shall be deemed effective upon personal delivery or, if sent by mail, four (4) days following deposit in the mail in accordance with this paragraph.
(g) Disclosure of Customer Status. Dell may include Customer in its listing of customers and, upon written consent by Customer, announce Customer's selection of Dell in its marketing communications.
(h) Waiver. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
(i) Injunctive Relief. Each party acknowledges and agrees that in the event of a material breach of this Agreement, including but not limited to a breach of the “Software License," “Restrictions” or "Confidential Information" Sections of this Agreement, the non-breaching party shall be entitled to seek immediate injunctive relief, without limiting its other rights and remedies.
(j) Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failures, and power failures. For the avoidance of doubt, an excuse of the obligation to pay fees due hereunder during the pendency of a force majeure event shall not operate to relieve Customer or its Affiliates of its contractual obligations to pay such fees.
(k) Equal Opportunity. Dell Software Inc. is a federal contractor and Affirmative Action employer (M/F/D/V) as required by the Equal Opportunity clause C.F.R. § 60-741.5(a).
(l) Headings. Headings in this Agreement are for convenience only and do not affect the meaning or interpretation of this Agreement. This Agreement will not be construed either in favor of or against one party or the other, but rather in accordance with its fair meaning. When the term “including” is used in this Agreement it will be construed in each case to mean “including, but not limited to.”
(m) Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous agreement unless such agreement is signed by both parties. In the absence of such an agreement, this Agreement shall constitute the complete and exclusive statement of the terms and conditions and no extrinsic evidence whatsoever may be introduced in any judicial proceeding that may involve the Agreement. In the event of a conflict between the terms of this Agreement and the terms contained in an Order, the terms in the Order shall only control if the Order is signed by both Dell and Customer; otherwise, the terms of this Agreement shall control. Neither this Agreement, nor an Order, may be modified or amended except by a writing executed by a duly authorized representative of each party. No other act, document, usage or custom shall be deemed to amend or modify this Agreement or an Order. Delivery of Software shall be FOB Shipping Point.