OEM 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 Pivotal, Securworks, RSA, 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’s distribution channels to whom OEM Products are offered and/or sold for use in the regular course of such customer’s business.
5. “OEM Products” shall mean OEM’s appliance or value-add solution which Standard 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.
6. “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 Products or Services, through either www.Dell.com or other online process.
7. “Product” shall mean any Standard Product and Third Party Product that are offered for sale by Supplier to OEM under this Agreement.
8. “Providers” means entities (other than OEM) whose components, subassemblies, software, services, or some combination of these items have been incorporated into Products, Services, or both.
9. “Service Agreements” means service contracts, including service descriptions available at  https://www.dell.com/es-es/lp/legal/global-commercial-service-contracts, service briefs, statement of work, services specifications, and any other similar mutually agreed documents. 
10. “Services” means service to be performed by or on behalf of Supplier as described in this Agreement or applicable Product Notice or Service Agreement.
11. "Software" means any application, library, utility, tool, or other computer, in object (binary) or source-code form provided under this OTS. Software includes code delivered electronically, pre-installed on Equipment, or locally installed on hardware systems, and “Services Software” (which is software that Supplier may make available in connection with Services).
12. “Software Release” means any subsequent, generally available version of Software provided after initial Delivery of Software but does not mean a new Product.
13. “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. 
14. “Third Party Products” means hardware, software, or services that are not “Dell” branded, “EMC” branded, or “Dell EMC” branded.  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.
15. “Technical Support Services” means those services as further defined in the attached Infrastructure Product Support Schedule.
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 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 distributors, third party sales agents and other remarketers 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 its resale pricing. No employee or representative of Supplier or anyone else has any authority to determine or otherwise restrict OEM’s resale prices for OEM Products or Services.
3. Recordkeeping/Document Delivery.   OEM will provide all its customers and End-Users with appropriate product warranty statements, registration cards, software license agreements and other materials that Supplier includes with its shipments of Products to OEM.  In addition, OEM is responsible for providing all similar information related to its value-added modifications of the Products. OEM shall maintain complete distribution records by End User and by Standard Product serial number (as applicable) for all sales of OEM Products. OEM shall cooperate with Supplier in the event of any recall or corrective action regarding the Standard Products.

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 performance 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 (are 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, Software are deemed accepted by OEM upon Delivery.  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 7 days of the invoice date if OEM believes any Standard Product included in its Order is missing, wrong, or damaged (the notification date for missing, wrong or damaged products may be amended by the Country Specific Terms in Section 15 or Product Schedule).
4. Shipment. Unless otherwise agreed, Supplier shall arrange for shipment of the ordered Standard 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. Unless otherwise agreed, Supplier will choose the common carrier and cost of transit insurance (provided 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 are only licensed to OEM and not sold.
6. 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 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.
7. 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.
8. End of Life (EOL) of Products.  At the end of life of Standard Products, Supplier will notify OEM (generally, providing notice ninety (90) days) before discontinuing a product, or version of product. During that time period of notice and 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 the Quote and Product Notice), as well as the OEM and its End-User (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 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 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; or (vii) disclose to any third party the results of any comparative or competitive analyses, benchmark testing or analyses of Supplier Products performed by, or on behalf of, OEM or End-Users.
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. 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/offeringterms (“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 terms of any software license agreement or quantity or other usage restrictions and/or descriptions.
6. 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. Prohibited/Limited Use of License. OEM’s may not use, install or download Supplier 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.
8. 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 and shall train its personnel to satisfy such obligation. 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 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 Products and Support Services (but excluding Third-Party Products, any Products provided for evaluation or without charge pursuant to a Schedule, and open source software) infringe that party’s patent, copyright, or trade secret enforceable in the country where OEM purchased the 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 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 Product or Support Service; (ii) modify the affected Product or Support Service to make them non-infringing; (iii) replace the affected Product or Support Service with non-infringing substitutes;(iv) provide a reasonable depreciated or pro rata refund for the affected 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 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 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 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 Product or Support Service made by any person other than Supplier or its authorized representatives;
   
   (ii)(d) any modification to the 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 Product when an upgrade or newer iteration of the Product or Support Service made available by Supplier would have avoided the infringement;
   
   (ii)(f) services, 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 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 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;(vi) OEM’s transfer or provision of access to Excluded Data (defined below) to any Supplier or its Affiliates; 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. Unlimited Liability. Nothing herein shall exclude or limit liability for: (i) death or personal injury resulting from negligence; (ii) fraud or fraudulent misrepresentation; or (iii) misappropriation or infringement of Supplier’s or its Affiliates’ intellectual property rights; (iv) timely fulfillment of payment obligations; (v) any of the indemnity obligations under section 9; or (vi) any other liability that cannot be excluded by law.
2. Limitations. Neither party shall be liable for: (i) loss of profit, income or revenue; (ii) loss of use of systems or networks; (iii) loss of goodwill or reputation; (iv) loss of, corruption of or damage to data, software or media; (v) recovery or reinstallation of data or programs; or (vi) special, indirect or consequential loss or damage.                 
3. Prevention and Mitigation. OEM shall, and cause its End users to, implement IT architecture and processes to prevent and mitigate damages in line with the criticality of the systems and data for OEM’s business and its data protection requirements, including a business recovery plan. In that regard, OEM shall, and cause its End-User to: (i) provide for a backup process on a regular (at least daily) basis and backup relevant data before Supplier performs any remedial, upgrade or other works on  IT systems; (ii) monitor the availability and performance of its IT during the performance of Services; and (iii) promptly react on messages and alerts received from Supplier or through notification features of the Products and immediately report any identified issue to Supplier. To the extent that Supplier has any liability for data loss, Supplier shall only be liable for the typical effort to recover the available and recoverable data which would have accrued if OEM or its End-User had appropriately backed up (or mirrored) its data.
4. Liability Cap. For each damaging event or series of connected events, either party’s liability shall be capped at one million Euro. In any twelve months’ period the total liability of each party to the other party shall not exceed the total amount of the net fees paid or payable by OEM to Supplier during such period for the Product or Service giving rise to the liability.

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 OEM any reasonably available information required to enable 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.    
    
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. Trade Compliance.  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 9D, 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, Supplier 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.  i. OEM agrees to comply with the anti-corruption or anti-bribery laws in effect in jurisdictions where OEM markets or sells Supplier products or services (the “Anti-Corruption Laws”) including, without limitation, the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010.  OEM shall not, in connection with this Agreement directly or indirectly (a) offer, promise, authorize or transfer to, or (b) request, solicit, or demand from any person or Government Official (as defined below) anything of value to improperly influence, induce or reward any act, decision, or omission to obtain or retain business or secure any improper advantage.
   
             ii. Government Official means an officer or employee of a government or any department, agency, or instrumentality thereof, or of a public international organization, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public organization.
   
             iii. Each party agrees that in the event that it subcontracts the provision of any element of this Agreement to any person , or receives any services in connection with its performance of this Agreement from any person (each such person being an "Associated Person"), it shall impose upon such Associated Person Anti-corruption obligations that are no less onerous than those imposed in this Agreement. 
   
            iv. Each party represents that, as of the effective date of this Agreement, it and any of its officers or employees with decision making under this Agreement have not been convicted of any offense involving bribery, corruption, fraud or dishonesty. 
   
             v. Each party shall (a) maintain and enforce, throughout the duration of dealings between the parties, its own anti-corruption policies and procedures, including without limitation, adequate procedures designed to ensure that it and its Associated Persons comply with the Anti-Corruption Laws.; (b).Each party shall maintain proper, accurate, and complete accounting books and records relating to all of its activities under this Agreement.  Each party shall provide information, documentation and reasonable assistance to the other party and its authorized representatives for purposes of ensuring its compliance with the Anti-Corruption Laws or to support an inquiry or investigation of a suspected violation of those laws. 
   
            vi. A party may suspend its performance under this Agreement if it has reasonable belief the other party breaches, or if the other party refuses to provide information to confirm its compliance with, this Section 11.f of the Agreement.

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 shall be provided 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. 
   
   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 Products.  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 “EMC” name and Standard Product names (collectively, the "Approved Names"), solely for the purpose of accurately identifying the Products OEM is marketing.  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.
               i. “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.
              ii. 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.
               iii. 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. This Agreement and any dispute, claim, or controversy (whether in contract, tort, or otherwise) related to or arising out of the Agreement or any Supplier quote or OEM purchase order (“Dispute”) is governed by the laws of the country in which the Supplier legal entity issuing the quote is registered, exclusive of its rules governing choice of law and conflict of laws and shall be subject to the jurisdiction of the courts of that country The parties agree that the UN Convention for the International Sale of Goods will have no force or effect on this Agreement.
6. Waiver. Failure to enforce a provision of the OTS will not constitute a waiver of that or any other provision of the OTS.
7. 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.
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. 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.

15.    Country Specific Terms

In case of any conflicts in the below country specific terms and the terms above, the country specific terms shall prevail for that specific country.

1. United Kingdom. The terms in this section 15.A apply only when Supplier means the Supplier sales subsidiary located in the United Kingdom (per November 1, 2019: Dell Corporation Limited):                                           i. Exclusions.  Except as expressly stated in the applicable warranty set forth in this Agreement, Supplier (including its suppliers) provides Software “AS IS” and makes no other express or implied warranties, written or oral, and ALL OTHER WARRANTIES AND CONDITIONS (SAVE FOR THE WARRANTIES AND CONDITIONS IMPLIED BY SECTION 12 OF THE SALE OF GOODS ACT 1979) ARE SPECIFICALLY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE.
   
      ii. LIMITATION OF LIABILITY AND PRESERVATION OF DATA.  The entire aggregate liability of Supplier (including its suppliers) under or in connection with the supply of the Software or Service, whether in tort (including negligence), for breach of contract, misrepresentation or otherwise, is limited in respect of each event or a series of events: (i) to the amounts actually paid by OEM for the Software or Services which give rise to such liability during the twelve (12) month period immediately preceding the date of the cause of action giving rise to such claim; or (ii) Great British Pounds Sterling one million (£1,000,000), whichever is the greater amount. In no event shall EMC (including its suppliers) or OEM be liable to the other or any other person or entity for loss of profits, loss of revenue, loss of use or any indirect, special, incidental, consequential or exemplary damages arising out of or in connection with this Agreement, the license of the Software or the provision of Services, and the use, performance, receipt or disposition of such Software or Services, even if such party has been advised of the possibility of such damages or losses. Nothing in this Agreement shall operate to exclude or restrict Supplier’s liability for: (a) death or personal injury resulting from negligence; (b) breach of obligations arising from section 12 of the Sale of Goods Act 1979; or (c) fraud.
   
     iii. BUYER’S OBLIGATIONS IN RESPECT OF PRESERVATION OF DATA.  During the term of the Agreement OEM shall require End User to: 
   
   ·   from a point in time prior to the point of failure, (i) make full and/or incremental backups of data which allow recovery in an application consistent form, and (ii) store such back-ups at an off-site location sufficiently distant to avoid being impacted by the event(s) (e.g. including but not limited to flood, fire, power loss, denial of access or air crash) and affect the availability of data at the impacted site;
   
   ·   have adequate processes and procedures in place to restore data back to a point in time and prior to point of failure, and in the event of real or perceived data loss, provide the skills/backup and outage windows to restore the data in question;
   
   ·   use anti-virus software, regularly install updates across all data which is accessible across the network, and protect all storage arrays against power surges and unplanned power outages with Uninterruptible Power Supplies; and
   
   ·   ensure that all operating system, firmware, system utility (e.g. but not limited to, volume management, cluster management and backup) and patch levels are kept to Supplier recommended versions and that any proposed changes thereto shall be communicated to Supplier in a timely fashion.
   
    MISCELLANEOUS. The following shall be added:  Each of the parties acknowledges and agrees that in entering into this Agreement, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement as a warranty. The only remedy available to OEM for a breach of the warranties shall be for breach of contract under the terms of this Agreement. Nothing in Section 15A shall however operate to limit or exclude any liability for fraud. No term of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person that is not a party to this Agreement. If any part of this Agreement is held unenforceable, the validity of the remaining provisions shall not be affected.
2. Ireland.  The terms in this subsection 15.B apply only when Supplier means the Supplier sales subsidiary located in Ireland:
   
     i. Exclusions.  Except as expressly stated in the applicable warranty set forth in this Agreement and the applicable exhibits, Supplier (including its suppliers) makes no warranties, and ALL WARRANTIES, TERMS AND CONDITIONS, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED BY LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES, TERMS AND CONDITIONS, OF FITNESS FOR PURPOSE, DESCRIPTION, AND QUALITY ARE HEREBY EXCLUDED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
   
    ii.Limitations of Liability.
   
   ·   Supplier does not exclude or limit its liability to OEM for death or personal injury, or, breach of obligations implied by Section 12 of the Sale of Goods Act, 1893, as amended by the Sale of Goods and Supply of Services Act, 1980, or, due to the fraud or fraudulent misrepresentation of Supplier, its employees or agents.
   
   ·   Subject always to subsection 15.B.i the liability of Supplier (including its suppliers) to OEM under or in connection with an order, whether arising from negligent error or omission, breach of contract, or otherwise (“Defaults”) shall be: (i) the aggregate liability of Supplier for all Defaults resulting in direct loss of or damage to the tangible property of OEM shall be limited to damages which shall not exceed the greater of two hundred per cent (200%) of the applicable price paid and/or payable for the Software or Service, or one million euros (€1,000,000); or (ii) the aggregate liability of Supplier for all Defaults, other than those governed by subsection 15.Bii. (i) above shall be limited to damages which shall not exceed (a) in respect of the Software, the greater of one hundred and fifty per cent (150%) of the applicable price paid and/or payable or five hundred thousand euro (€500,000); or (b) in respect of the services, if any, the greater of one hundred and fifty per cent (150%) of the applicable charges paid and/or payable or five hundred thousand euro (€500,000).
   
   ·   In no event shall Supplier (including its suppliers) be liable to OEM for (i) loss of profits, loss of business, loss of revenue, loss of use, wasted management time, cost of substitute services or facilities, loss of goodwill or anticipated savings, loss of or loss of use of any software or data; and/or (ii) indirect, consequential or special loss or damage; and/or (iii) damages, costs and/or expenses due to third party claims; and/or (iv) loss or damage due to OEM’s failure to comply with obligations under this Agreement, failure to do back-ups of data or any other matter under the control of OEM. For the purposes of this Section 15.B, the term “loss” shall include a partial loss, as well as a complete or total loss.
   
   ·   The parties expressly agree that should any limitation or provision contained in this Section 15.B  be held to be invalid under any applicable statute or rule of law, it shall to that extent be deemed omitted, but if any party thereby becomes liable for loss or damage which would otherwise have been excluded such liability shall be subject to the other limitations and provisions set out in this Section 15.B
   
   ·   The parties expressly agree that any order for specific performance made in connection with this Agreement in respect of Supplier shall be subject to the financial limitations set out in sub-section 15.B.ii
   
   ·     The parties expressly agree that the provisions of Section 9 (INDEMNIFICATION) shall not be subject to the limitations and exclusions of liability set out in sub-section 15.B.ii.
   
   iii. BUYER’S OBLIGATIONS IN RESPECT OF PRESERVATION OF DATA.  During the term of the Agreement OEM shall require End User to:
   
   ·  from a point in time prior to the point of failure, (i) make full and/or incremental backups of data which allow recovery in an application consistent form, and (ii) store such back-ups at an off-site location sufficiently distant to avoid being impacted by the event(s) (e.g. including but not limited to flood, fire, power loss, denial of access or air crash) and affect the availability of data at the impacted site;
   
   ·   have adequate processes and procedures in place to restore data back to a point in time and prior to point of failure, and in the event of real or perceived data loss, provide the skills/backup and outage windows to restore the data in question;
   
   ·   use anti-virus software, regularly install updates across all data which is accessible across the network, and protect all storage arrays against power surges and unplanned power outages with Uninterruptible Power Supplies; and
   
   ·   ensure that all operating system, firmware, system utility (e.g. but not limited to, volume management, cluster management and backup) and patch levels are kept to Supplier recommended versions and that any proposed changes thereto shall be communicated to Supplier in a timely fashion.
   
    iv. WAIVER OF RIGHT TO BRING ACTIONS:  The OEM waives the right to bring any claim arising out of or in connection with this Agreement more than twenty-four (24) months after the date of the cause of action giving rise to such claim.
   
   c. European Union.  The terms in this subsection 15.C apply only when Supplier means an Supplier sales subsidiary located in the European Union:
   
     i.General License Grant. OEM shall not, and OEM shall not permit any third party to, modify, enhance, supplement, create derivative works from, reverse assemble, reverse engineer, reverse compile or otherwise reduce to human readable form the Software without Supplier's prior written consent, except to the extent that local, mandatory law grants OEM the right to decompile such Software in order to obtain information necessary to render such interoperable with other software. In such event, OEM shall first inform Supplier of its intention and request Supplier to provide OEM with the necessary information. Supplier may impose reasonable conditions on the provision of the requested information, including the payment of a reasonable fee.
   
   D. France.  The terms in this subsection 15.D apply only when Supplier means an Supplier sales subsidiary located in France:
   
     i. Payment terms: Supplier shall be entitled to charge forty (40) euros for collection fees.                             
     ii.Pricing: The parties agree that they shall not be entitled to decrease the price whatever the delivery of the Products and the performance of the Service is unless the parties agree otherwise.                                          
     iii. Limitation of Liability: 
   
   ·    Neither party shall be liable for any claim brought more than 2 years after the cause of action for such claim first arose. 
   
     iv. Privacy: 
   
   ·  Each party shall comply with all laws and regulations that are applicable to that party in relation to the processing of personal data under this Agreement.  In this clause, “personal data”, “controller” and “processing” shall have the meaning set out in the General Data Protection Regulation (EU) 2016/679.
   
   ·   OEM shall obtain all necessary rights, permissions and consents prior to disclosing any personal data to Supplier.
   
   ·   To the extent that Supplier processes any personal data on OEM behalf in the performance of this Agreement, Supplier shall only process the personal data as required to fulfil its legal obligations under applicable laws and regulations and in accordance with the Data Processing Schedule  available here. 
   
   ·  OEM agrees that, subject to Supplier’s compliance with this clause, Supplier can use any OEM or transaction related data for the purposes of providing, assessing and/or improving Products, Services or other offerings.
   
      v. Termination: article 8 B ii is not applicable (bankruptcy).
   
   E. Germany - The terms in this subsection 15.E apply only when Supplier’s contracting entity is located in Germany. The below country specific terms for Germany shall replace clause 10.  
   
        i.  Warranty. The warranty terms set forth in this section 15 E shall prevail over any and all warranty terms set forth in the main body of the Agreement and its Schedules including any and all Exhibits thereto.

• Product Warranty. Supplier warrants that Equipment, under normal usage and with regular recommended service, will be free from material defects in material and workmanship, and that Equipment and Software will perform substantially in accordance with the corresponding standard product documentation issued by Supplier. OEM must promptly notify Supplier of any warranty claims within the warranty period. Unless otherwise stated in the Quote, the warranty period is 12 months. This does not apply, if Supplier has fraudulently concealed the defect, claims caused by acts or omissions of Supplier in gross negligence or willful misconduct or with regards to damages resulting from the violation of life, the body or health. In these cases the statutory limitation period shall apply. Equipment upgrades are warranted from Delivery until the end of the warranty period for the Equipment into which such upgrades are installed. Supplier does not warrant that Products meet customer-specific requirements. Supplier does not warrant that the operation of Software shall be uninterrupted nor error free, nor that all defects can be corrected.

• Customer’s Remedies. Supplier’s entire liability under the warranties for Products described above shall be for Supplier, at its option and cost, to repair or to replace the affected Product, and, if Supplier is unable to effect such within a reasonable time and Customer has notified Supplier of the breach with the request to remedy the defect within a reasonable time period to no avail (whereby Customer shall grant to Supplier a reasonable number of attempts (but no less than three) to cure the defect, then OEM has the right to reduce the remuneration or to rescind the purchase order for the Product concerned. OEM is entitled to the foregoing rights also without setting a grace period if Supplier has seriously and definitely refused to cure a defect. If OEM rescinds the purchase order, Supplier will refund the amount OEM paid for the affected Product as depreciated on the applicable straight-line device-specific basis (in general over a period of three to five years), upon return of such Product to OEM.

• Services. Supplier will perform Services in a workmanlike manner in accordance with generally accepted industry standards. OEM must notify Supplier of any failure to so perform within ten (10) days after the date on which such failure first occurs. In such case, Supplier will correct such failure within a reasonable period of time. If, after reasonable efforts, Supplier is not able to correct such deficiencies for reasons for which Supplier is responsible, then OEM may terminate the affected Services for cause by providing written notice to Supplier

• Limitations. Warranty does 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 Product is used or other causes beyond Supplier’s control; (iii) installation, operation or use not in accordance with Supplier’s instructions and the applicable documentation; (iv) use in an environment, in a manner or for a purpose for which the Product was not designed; (v) modification, alteration or repair by anyone other than Supplier personnel; 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.

• Exclusive Remedies. Supplier’s warranties for Products and Services and OEM’s remedies in case of breach of any warranty are exhaustively described in this Section 15 E, and any warranties implied by applicable law are excluded, insofar as permitted under such law. Public statements of Supplier or its Affiliates on features of Products are only binding upon Supplier if those are expressly referred to in Supplier’s quote or other documentation that is part of the contract between OEM and Supplier.

•  LIMITATION OF LIABILITY. For all claims of OEM for damages under or in connection with this Agreement and the supply of Software or Service hereunder, whatever the legal basis (including liability for defects, other breaches of contract and tort) may be, the following shall apply:                                                         
• Unlimited Liability. The Parties accept unlimited liability for acts or omissions based on willful misconduct or gross negligence. Claims based on the product liability act (Produkthaftungsgesetz), or claims resulting from personal injury or death shall be treated in accordance with applicable laws. The same applies to a defect occurring following the provision of a guarantee for the composition of Products or works, in case of fraudulently concealed defects, as well as claims based on default in pre-contractual negotiations (Culpa in Contrahendo) already existing at the moment of conclusion of this agreement.
• Limitations. In case of slight negligence the Parties are only liable in case of a violation of essential contractual duties (an obligation the performance of which is essential to allow the implementation and proper execution of the agreement, and the compliance with which the other Party usually relies or may rely on). The liability for slight negligence is then limited to contract-typical, foreseeable damages. This applies to all damage claims independent of their legal basis, including, in particular, tort claims.
• Liability Cap.  In case of slight negligence and for each damaging event or series of damaging events, Supplier’s liability shall be capped at 1 (one) million Euro; and in any calendar year Supplier’s total liability shall not exceed the total amount of the net fees paid or payable by OEM  to Supplier during the 12 (twelve) months period immediately preceding such claims for the Product or Service giving rise to the liability claim, or 3 (three) Million Euro, whichever amount is higher.
• Exclusions. In case of slight negligence neither party shall be liable for: (i) loss of profit, income or revenue; (ii) loss of use of systems or networks; (iii) loss of goodwill or reputation; (iv) loss of, corruption of or damage to data, software or media; (v) recovery or reinstallation of data or programs; or (vi) special, indirect or consequential loss or damage.
• Prevention and Mitigation. OEM shall implement IT architecture and processes enabling OEM to prevent and mitigate damages in line with the criticality of the systems and data for OEM’s business and its data protection requirements, including a business recovery plan. In that regard, OEM shall: (i) provide for a backup process on a regular (at least daily) basis and backup relevant data before Supplier performs any remedial, upgrade or other works on OEM’s IT systems; (ii) monitor the availability and performance of its IT during the performance of Services; and (iii) promptly react on messages and alerts received from Supplier or through notification features of the Products and immediately report any identified issue to Supplier. Insofar as Supplier is liable for loss of data, liability is restricted to the typical effort to recover the available and recoverable data which would have accrued if OEM had appropriately backed up (or mirrored) its data.
• Guarantees. Supplier does not give a guarantee in relation to Software or Services (Beschaffenheitsgarantie) that would entail an unlimited liability of Supplier or a liability regardless of negligence or fault pursuant to the German Civil Code, except if an unlimited liability and/or liability regardless of negligence or fault has been expressly agreed in writing. The mere use of terms like “to guarantee”, “to ensure” or similar wording shall not be considered sufficient to establish such liability, but a binding contractual commitment of Supplier that is subject to the agreed limitation of liability.
• Suppliers and Employees. The foregoing limitations shall also apply in favor of Supplier’s employees and third-party suppliers including but not limited to its Affiliates.
• Limitation Period.  Unless otherwise required by applicable law, the limitation period for claims for damages shall be eighteen (18) months after the cause of action accrues, unless statutory law provides for a shorter limitation period.

iii) Third-Party Offerings.

• Supplier may offer to supply products and services that are provided by a third party manufacturer/supplier and that are neither Dell nor EMC nor Dell EMC-labeled (“Third-Party Offerings”), e. g. under Supplier’s “Dell EMC Select” program, Supplier’s “Brokerage” program or Supplier’s Software & Peripherals (S&P) program[, and may include offerings from Supplier Affiliates using different brands other than “Dell”, “EMC” or “Dell EMC”]. Notwithstanding any other provisions herein, Third-Party Offerings are subject to the standard license, services, warranty, indemnity and support terms of the third-party manufacturer/supplier (or an applicable direct agreement between Customer and such manufacturer/supplier), to which OEM shall adhere. Even if support fees are invoiced through Supplier, Third-Party Offerings are not supported by Supplier and OEM shall contact such third party directly for support. Any warranty, damages or indemnity claims against Supplier in relation to Third-Party Offerings are expressly excluded except where Supplier caused the damages in willful misconduct or gross negligence. References to warranty and support information for Dell EMC Select products is currently available at https://www.dellemc.com/en-us/customer-services/product-warranty-and-service-descriptions.htm. Subject to the foregoing, the terms of this Agreement applicable to Products or Services shall apply accordingly to Third-Party Offerings.

• Italy - The terms in this subsection 15.F apply only when Supplier means the Supplier sales subsidiary located in Italy.

1. No further warranties. Supplier’s warranty is restricted to what is expressly set forth in this Agreement and the applicable exhibits. Supplier (including its Suppliers) does not give any express or implied warranties beyond the foregoing. Public statements of Supplier or its Affiliates on features of Products are only binding upon Supplier if those are expressly referred to documentation that is part of the contract between Customer and Supplier.
2. LIMITATION OF LIABILITY. For all claims of OEM for damages under or in connection with this Agreement and the supply of Software or Service hereunder, whatever the legal basis (including liability for defects, other breaches of contract and tort) may be, the following shall apply:

• Supplier’s liability shall be limited to typical, foreseeable damages.

• Unless a differing liability cap is expressly agreed otherwise, the typical foreseeable damages shall, for each damaging event, not exceed the total price paid by OEM to Supplier for the Software and Services (calculated on an annual basis in case of ongoing Services to be provided for a period of more than one year) in relation to which such claim arises, but in any event not less than 100.000,00 EUR and not more than 1.000.000,00 EUR.

• Supplier shall be liable to OEM only if Supplier has breached a material contractual obligation (i. e. an obligation the performance of which is essential to allow the implementation of the agreement, and the compliance with which Customer usually may rely on).

• Supplier shall not be liable for any consequential or indirect damages to the extent such damages are untypical or unforeseeable.

• Unlimited Liability. In case of Supplier’s willful misconduct or gross negligence, and where a limitation of liability is not permissible under applicable mandatory law, Supplier shall be liable according to statutory law.
• Limitation of Liability:  In all other cases, the terms and conditions specified in Section 15.E.ii. (Germany) above shall apply.

•  Supplier’s liability shall be limited to typical, foreseeable damages.
• Unless a differing liability cap is expressly agreed otherwise, the typical foreseeable damages shall, for each damaging event, not exceed the total price paid by OEM to Supplier for the Software and Services (calculated on an annual basis in case of ongoing Services to be provided for a period of more than one year) in relation to which such claim arises, but in any event not less than 100.000,00 EUR and not more than 1.000.000,00 EUR.
• Supplier shall be liable to OEM only if Supplier has breached a material contractual obligation (i. e. an obligation the performance of which is essential to allow the implementation of the agreement, and the compliance with which OEM usually may rely on).
• Supplier shall not be liable for any consequential or indirect damages to the extent such damages are untypical or unforeseeable.

1.  Warranty: the terms and conditions specified in Section 15.E.i. (Germany) above shall apply. The warranty terms set forth in this Section 15 I. shall prevail over any and all warranty terms set forth in the main body of the Agreement and its Schedules including any and all Exhibits thereto.
2. LIMITATION OF LIABILITY. For all claims of OEM for damages under or in connection with this Agreement and the supply of Software or Service hereunder, whatever the legal basis (including liability for defects, other breaches of contract and tort) may be, the following shall apply:

• Unlimited Liability. The Parties accept unlimited liability for acts or omissions based on wilful misconduct or gross negligence. Claims based on the Austrian Product Liability Act (Produkthaftungsgesetz (PHG)), or claims resulting from personal injury or death shall be treated in accordance with applicable laws. The same applies to a defect occurring following the provision of a guarantee for the composition of Products or works, in case of fraudulently concealed defects, as well as claims based on default in pre-contractual negotiations (Culpa in Contrahendo) already existing at the moment of conclusion of this agreement.
• Limitation of Liability:  In all other cases, the terms and conditions specified in Section 15.E.ii. (Germany) above shall apply.

• The terms and conditions specified in Section 15.E.iii. (Germany) above shall apply.

PRODUCT SCHEDULE 1 TO OTS

Infrastructure Product Terms

1. “Infrastructure Products” means Equipment that comprises server, networking, storage, converged, and hyper-converged products, and data protection appliances.
2. “Installation Site” means the ship-to address or other location identified on Supplier’s quote or other Supplier-prepared document as the Equipment site of installation, use, or both.
3. “Product Notice” means the information related to Equipment, Software, and Services posted at an Supplier website at the time of the Supplier quote, currently located at http://www.EMC.com/products/warranty_maintenance/index.jsp To locate the applicable information related to the SC Series Products, please see the applicable service description listed at www.dell.com/servicecontracts/global The Product Notice informs OEM of Infrastructure Product-specific use rights and restrictions, unit of measure (if any), warranty periods, warranty upgrades and Support Services terms. The Product Notice in effect as of the date of Supplier’s quote will apply to Infrastructure Products, and is deemed incorporated into that quote and related OEM purchase order by this reference. Upon request, Supplier will provide a copy of the applicable Product Notice or attach it to the relevant Supplier quote.
4. “Support Services” when used in this Schedule and applied to Infrastructure Products means the Services described in Service Exhibit A and A-1 to this Product Schedule, Support Services for networking products listed at //www.dell.com/en-us/work/shop/networking/sc/networking-products, servers and SC Series Products are stated at  www.dell.com/servicecontracts/global (Support Services for other Infrastructure Products may also be listed here), Support Services for Infrastructure Products that are “Converged Infrastructure Products” are stated at http://www.dellemc.com/en-us/converged-infrastructure/support/support-service-descriptions.htm. 

1. Proprietary Notices.  OEM shall not, without the express written permission of Supplier, change the Supplier copyright notices or software legends or proprietary notices which appear on or in any Documentation, Software or Equipment.
2. Data and Information.  Portions of data and information supplied by Supplier relating to Products are proprietary and OEM shall abide by any proprietary markings on the same.  Supplier retains for itself exclusively all proprietary rights (including manufacturing rights) in and to all designs, specifications, engineering details and other data and information pertaining to material provided or offered to OEM, and to all discoveries, inventions, patent rights, products and all other property rights arising out of work or Services performed by Supplier solely or jointly with OEM, including without limitation to rights relating to improvements or modifications to Products.  A copyright notice on any data does not by itself constitute or evidence a publication or public disclosure.
3.  Sublicense. With the exception of networking products and servers, Supplier grants OEM a limited, personal, non-exclusive, non-transferable, right to sublicense Software to (i) End Users directly; or to (ii) End Users through approved reseller consistent with the Software Sublicense Requirements set forth in Exhibit C - End User Sub-Licensing Addendum, attached hereto. Prior to the sale of Software to an End User, OEM shall ensure that each End User is legally bound and obligated by a software license agreement containing, at a minimum, the terms set forth in Exhibit C - End User Sub-Licensing Addendum. Further, OEM shall enforce the provisions of each such software license agreement through the use of good faith, reasonable care and a level of diligent effort comparable to that generally used by licensors of software of a similar nature and importance, and shall, upon request of Supplier, (A) assign over any rights to Supplier from time to time which Supplier may reasonably request to enforce one or more of such sublicense agreements; and (B) reasonably cooperate with Supplier in order to enable Supplier to enforce such software license agreement. OEM shall, at its expense, defend and indemnify Supplier and Supplier Affiliates against any claim arising out of or relating to a breach of this section. 

1. Product Warranty. Supplier warrants that Equipment, under normal usage and with regular recommended service, will be free from material defects in material and workmanship, and that Equipment will perform substantially in accordance with the corresponding standard product documentation issued by Supplier. The limited warranties for the Equipment portion of Products are found at //www.dell.com/learn/us/en/uscorp1/terms-of-sale-commercial-and-public-sector-warranties?c=us&l=en&s=corp or in the applicable documentation or Product Notice for the specific Equipment.
2. Customer’s Remedies. Supplier’s entire liability under the warranties for Products described above shall be for Supplier, at its option and cost, to repair or to replace the affected Product, and, if Supplier is unable to effect such within a reasonable time, then Supplier will refund the amount Customer paid for the affected Product as depreciated on a straight-line basis over a five year period, upon return of such Product to Supplier.

• Mandatory Engineering Change Orders. From time to time (e.g., for product safety reasons) Supplier may issue mandatory engineering change orders (“MECOs”). As to any affected Standard Products in OEM’s inventory or control, or already dispositioned by OEM, OEM shall obtain access to the Standard Products to permit Supplier or Supplier’s agents to install such MECOs.
• Engineering Change Orders. Supplier reserves the right to make substitutions and modifications in the specifications and design of any Standard Products that do not materially, adversely affect form, fit or function. Substitutions and modifications do not create or imply any obligation to make substitutions or modifications to any Standard Products previously provided.

EXHIBIT A
OEM SUPPORT EXHIBIT

1. Unless Support Services for Infrastructure Products are available to be procured at www.dell.com/servicecontracts/global and resold as outlined in Section 6 of the General Terms, this OEM Infrastructure Product Support Schedule (“Support Schedule”), along with any separate, applicable agreement enabling OEM to perform Support for Infrastructure Products, reflects the overall agreement of the parties to fulfil OEM’s support obligations for Infrastructure Products.                                                                             
2. OEM must establish and maintain Support Services for its End-User and be the initial point of contact for each End User requesting Support Services.  Support Services for Infrastructure Products, may be provided by OEM, only if OEM has: 

1.  Execute agreement with End User for Support includes terms that are substantially similar to the  corresponding Supplier Support Services terms set forth in Support Services (below);
2.  Comply with terms of the Agreement; and
3.  Maintain up to date payment obligations of Supplier’s Support Fees 

1.  “OEM Support Guide” means the Supplier Support Partner Guide provided on the Supplier website and other Supplier provided handbook, guideline or documentation that define the operational relationship between OEM and Supplier including, but not limited to points of contact, installation and warranty service notification, service call flow, call escalation, service event tracking process, support requirements, spare parts logistics and training                                   
2. “Product Maintenance” means the service which consists of Supplier Technical Support (as defined below) and Software Releases (as defined in this Exhibit A)
3. “Parts” means each individual hardware component in Equipment supplied by Supplier to OEM, or OEM’s End User, or listed in the then current Supplier parts listing, a copy of which shall be made available to OEM and periodically updated by Supplier; shall be new or repaired like-new parts (provided that repaired like-new parts shall not evidence substantially diminished performance of the Equipment in which it is properly installed); and, when provided as a replacement for a component returned by OEM to Supplier in accordance with Supplier’s standard returns process shall either be the same as, or interchangeable with, the component sent to Supplier.
4. “Problem” means a failure by a Product to perform in substantial conformance with the applicable Supplier published specifications.
5. “Supplier Service Area” means a location that is within (i) a one hundred (100) drivable mile radius of a Supplier service location in North America & EMEA and (ii) in the country in which the Installation Site is located.
6. “Level 0 Technical Support” means the Technical Support offering made available to End Users by OEM personnel located at support centers and in the field (unless otherwise purchased and agreed to by Supplier and OEM in writing). The Level 0 Technical Support activities shall include but not be limited to: (i) initial point of contact for End User(s) regarding any Support requests or related inquiries; (ii) isolation and identification of Problems and in some cases using tools provided by Supplier; and (iii) escalation of Problems, as applicable, to the Supplier for Problem resolution. Level 0 Technical Support personnel shall use their generally acquired education, experience and specific knowledge resources made available from Supplier to provide Level 0 Technical Support.
7. “Level 1 Technical Support” means the Technical Support offering made available to End User(s) by support personnel located at support centers and in the field. Such Level 1 Technical Support activities shall include, but not be limited to: (i) provision of general product information (pre-sales and post-sales) about the Products and processes relating to configuration, installation, updates and feature set support; (ii) regular Error resolution status reports to End User(s); (iii) resolution of Errors previously identified and addressed through documentation available through Supplier Web Support; (iv) basic support on the standard protocols and features of Products; and (v) collection of relevant Error determination information for escalation to Level 2 Technical Support. Level 1 Technical Support personnel shall use their generally acquired education, experience and specific knowledge resources made available from Supplier to resolve the Problem by working directly with the impacted End User(s), dispatch appropriately trained personnel to the Installation Site for Problem investigation or resolution or escalate the Problem to the Level 2 Technical Support team.
8. “Level 2 Technical Support” means the Technical Support made available to End-User(s) by support personnel located at support centers and in the field. Such Level 2 Technical Support activities shall include, but not be limited to: (i) managing configuration Problems through troubleshooting; (ii) determination and resolution of most Equipment and Software Problems; (iii) in the event a Problem requires simulation steps for resolution, doing the initial Problem isolation and re-creation on a best efforts basis to determine if the apparent Problem resides with the Equipment or Software; (iv) defining an action plan for Problem troubleshooting/resolution; (v) providing advanced support on all Equipment and Software protocols and features; (vi) having the ability to analyze and diagnose Problems remotely to the extent possible using available tools; (vii) providing Supplier with known End User environment variables for assistance in parallel reproduction of a Problem; and (viii) working with Level 3 Technical Support to resolve all Problems escalated by Level 2 Technical Support. Level 2 Technical Support personnel shall use their generally acquired education and experience and the specific knowledge resources made available from Supplier to resolve the Problem by (i) using all knowledge resources to expertly address field installation and break/fix issues; (ii) performing iterative procedures with field service personnel to understand and correct Problems; and (iii) resolving the Problems directly or, for those Problems that have not been resolved by Level 2 Technical Support personnel, escalating Problems to Level 3 Technical Support personnel for assistance. Escalations shall include all knowledgebase searches tried as well as a transferable zip file containing all applicable logs, the H/W platform and base code revision of the array and steps used to recreate the problem.
9. “Level 3 Technical Support” shall be delivered by Supplier and means the same as Level 2 Technical Support but with the additional capabilities of (i) performing engineering diagnostic activities such as resolving Problems in respect of which (a) no documentation exists within Supplier’s knowledgebase, websites or other format; or (b) documentation does exist but does not resolve the Problem; (ii) collaborating with Supplier’s engineering department on Problem re-creation and root cause analysis; (iii) resolving Problems associated with an identified bug that is not yet published on Supplier’s website; (iv) fixing and generating clear and concise documented End User performable workarounds; (v) validating that all proposed Problem resolutions are tested prior to release to the Level 2 Technical Support personnel; (vi) providing access to Level 2 Technical Support for tracking Problem descriptions, bug fixes, case status, and case root cause analysis; and (vii) working with authorized Level 2 Technical Support personnel to supply additional Problem resolution information that may not be available on Supplier’s website.                                                                        At Supplier’s discretion, Level 3 Technical Support personnel may be available to travel to Installation Sites. If Supplier and OEM mutually agree that such a visit is warranted, Supplier shall not charge OEM or OEM’s End User therefore. If Supplier does not agree that such a visit is necessary but conducts such a visit at the request of OEM, such visit shall be subject to Supplier’s then current time and materials terms, conditions and pricing. OEM shall accompany Supplier on all on-site visits to Installation sites without charge to Supplier. “Installation Site(s)” means the ship-to address or other location identified on the Supplier quote, approved Sales Order or other document prepared by Supplier as the site of installation and/or use of a Product, or a subsequent location provided by OEM.

1. Installation of Products –Supplier is not responsible for installation of Products as part of Supplier Support.  Supplier may agree, in its sole discretion, to install Equipment at the End-User’s Installation Site location located within a Supplier Service Area at Supplier’s current installation charge, provided that: (i) OEM or End-User shall promptly notify Supplier of receipt the Equipment and permit Supplier access thereto during Supplier's normal business hours; and (ii) such Products have not been modified without Supplier's written consent, or subjected to unusual physical or environmental stress, accident, misuse or other damage, not caused by Supplier.
2. Installation Services – Except for those Products which Supplier indicates in its published specifications and/or Product Notice as “customer installable”, OEM shall offer to provide installation services for the Products (as described in this Section 3. B. and Section 3.D. below) to End Users or subcontract these services to Supplier, if agreed to by Supplier and located within a Supplier Service Area. Installation services shall be performed at the Installation Site and shall include set-up, connection, Equipment verification and any pre-production or acceptance testing required by the End Users. Installations are to be performed only by Supplier, employees of OEM, or a pre-approved OEM designee, who have been trained and certified by Supplier’s Customer Service and Training organizations on the Products being installed. Installation services are to be performed in accordance with Supplier site preparation and installation procedures and other related documents or procedures made available by Supplier.
3. Installation Fees – Should OEM request and Supplier elect, in its sole discretion, to provide installation assistance to OEM, Supplier  shall invoice OEM for such assistance and related expenses in accordance with Supplier’s then current terms, conditions, pricing and policies. Payment of such invoice(s) shall be due within thirty (30) days after the date of the invoice. Except for those instances where Supplier specifically agrees in writing to provide installation services, Supplier shall have no obligation to provide any installation or on-site assistance to OEM for the Products identified in this Agreement.
4. Installation Obligations – In providing the installation services described in Section 3.B. above, the providing party shall:

1. use only Supplier trained personnel that have successfully completed the applicable Supplier training courses;
2. follow all of the applicable guidelines in the OEM Support Guide;
3. notify Supplier of the final installation location of the product within ten (10) days of installation. Notification can be accomplished by using the product’s registration utility or the notification tool on the Supplier Services Partner web site;\
4. be responsible for the End User’s host system configuration requirements and installation/implementation of the relevant Software; and
5. use all Parts, Software Releases, and Problem resolutions provided hereunder solely to provide support to End Users for the Products specified above which are obtained by OEM from Supplier under this Service Schedule. 

1. Within a Supplier Service Area – OEM’s written arrangement with the End User for Support shall: (i) contain warranty and maintenance terms that are substantially similar to Supplier’s Support Services terms as contained in Services Exhibit A-1; (ii) clearly set forth the OEM supplied warranty for any products provided by OEM that are not Supplier Products and indicates that OEM has sole responsibility for such portions; and (iii) provide that if Product Maintenance has lapsed, at OEM’s ’s or End User’s request, all service delivered by Supplier shall be provided and charged for on a “per event” basis, or on a re-activated, continuous basis after a certification is performed at Supplier’s then current rates and/or a Software reinstatement fee.
2. Outside a Supplier Service Area – Except to the extent that Supplier furnishes Support which is independent of the Equipment’s location, Supplier shall have no obligation to provide any installation, on-site services, warranty, Support services or to offer any post-warranty support to End Users located outside a Supplier Service Area. Without limiting the foregoing, the following shall apply for all Products to be installed or located outside of a Supplier Service Area:

1.  OEM shall not offer Supplier furnished Support to End Users unless otherwise agreed in advance by Supplier in writing. OEM shall have sole responsibility for providing End User with OEM’s own warranty and post-warranty support for such Products, and fulfilling its obligations thereunder. If Supplier should be contacted directly by the End User, Supplier shall refer the End User back to OEM and OEM shall thereafter have full responsibility for responding. OEM must receive Supplier certification to provide Support Services and train all OEM personnel delivering OEM’s own warranty and post-warranty support for Products outside a Supplier Service Area; and
2. If Supplier determines that Support outside a Supplier Service Area is available from an Supplier servicing partner, Supplier may, in its sole discretion, contract directly with the servicing partner to provide Support if there are no additional costs to Supplier. If additional costs would be incurred by Supplier for such Support, Supplier will offer OEM the option of paying additional costs or contracting directly with the Supplier servicing partner for such Support. Support outside a Supplier Service Area would in most cases require OEM to purchase spare parts from Supplier.

1. Subcontracting of OEM’s Support Obligations to a Third Party – OEM may subcontract its obligation to provide support only to those third party subcontractors that have been pre-approved by Supplier in writing, in its sole discretion, and have received comparable training from Supplier. OEM shall be fully responsible to Supplier for any violation or breach by a subcontractor of any OEM Support obligations or other OEM obligations contained in this Agreement.

1. OEM shall order Maintenance services from Supplier for its End Users in the event that any of the following applies:
2. OEM charged its own End User’s for such Maintenance, or
3. OEM’s distributors or resellers charged the End User for and paid OEM for Maintenance
4. OEM’s service partner or the End User asks Supplier for support for the Product(s)
5. To be eligible to receive bug fixes and updates.

1.  Level 1 and Level 2 onsite and/or remote Technical Support, when contracted for by OEM as set forth in the OEM Support Guide or successor operational documentation. Supplier Level 3 Technical Support shall be provided in accordance with the escalation process set forth in Services Exhibit A, in the English language, via live chat, web portal, telephone or other electronic media (with on-site visits only as specifically agreed by Supplier, in its sole discretion, on a case-by-case basis for Supplier Level 3 Technical Support), for the purpose of bringing the Equipment and related Parts and Software into substantial conformance with the applicable Supplier published operating specifications. Supplier may, at its sole discretion, remotely monitor, diagnose and test the performance and operation of and distribute bug fixes for Software; and
2. Copies of subsequent Software Releases of Software, in quantities reflective of the amount of licenses purchased by OEM from Supplier, as they are made generally available by Supplier provided always that Supplier reserves the right to charge an additional fee for new or substantially improved functionality of features not considered by Supplier (at its sole discretion) to be a subsequent Software Release of the applicable Software. Any Software Releases supplied by Supplier to OEM hereunder shall be used by OEM only to update licenses for Software obtained by OEM from Supplier under this Exhibit A and for which OEM has paid Supplier the applicable Supplier Technical Support Fees. Such Software Releases shall only be made available by OEM pursuant to a license agreement with the applicable End-User that conforms to the requirements set forth in the Agreement. OEM shall keep track of such Software Releases and the End Users to whom OEM provides such Software Releases.

EXHIBIT A-1
SUPPORT SERVICE EXHIBIT
General Support Services Terms

EXHIBIT B
PROFESSIONAL SERVICES AGREEMENT

EXHIBIT C
Minimum Licensing Terms to End Users

PRODUCT SCHEDULE 2 TO OTS
Client Product Terms

1. “Client Products” means the Dell branded commercial computer products intended for use by a single user, and generally include notebook, desktop, and tablet platforms listed at www.dell.com, for example: Dell OptiPlex™, Latitude™, Venue™, Inspiron™, Precision™, Vostro™, XPS™, Gateway Edge, Embedded PCs, Dell Wyse™, Dell printers, and Dell monitors as listed on the Supplier quote, and in a standard configuration unless otherwise stated on the Supplier quote.
2. “Configuration and Deployment Services” means: (i) standard deployment services, such as Basic Deployment Services, ProDeploy or ProDeploy Plus services, as described in the corresponding Service Descriptions, available at www.dell.com/servicecontracts/global; or (ii) standard configuration services, including the service features and offerings described in the corresponding Service Agreement(s), available at www.dell.com/servicecontracts/global, or from the Supplier sales representative, as applicable, such as Static and Dynamic Imaging, Asset Tagging, Asset Reporting, standard System Configuration services (BIOS Settings, Hard Drive Partitioning, Application Installation and Operating System Settings). Configuration and Deployment Services for Client Products are subject to the applicable Service Agreement(s).
3. “Support Services” when used in this Schedule and applied to Client Products, means services to be performed by or on behalf of Supplier necessary to repair a defect in materials or workmanship of the applicable Client Product(s), and as further defined and described in the applicable Service Descriptions stated at  www.dell.com/servicecontracts/global.

1. Service Agreements.  Support Services and the Configuration and Deployment Services are subject to the additional terms contained in the applicable Service Agreement(s).  If there is a conflict between the terms of this Schedule, the General Terms of the OTS, and any Service Agreements(s), the following order of precedence will apply: (i) the Service Agreement(s); (ii) this Schedule; and (iii) the General Terms.
2. Removable Media. OEM is responsible for removing any removable media such as SIM cards, CDs, or PC cards before returning Client Products or parts from Client Products, regardless of whether an on-site technician is also providing assistance. Supplier will have no liability for lost programs or other software installed on the Client Products prior to Supplier performing any Support Services, loss of system use or network use, damaged or lost removable media, or data or voice charges incurred as a result of OEM failing to remove SIM cards or other removable media inside Client Products that OEM returns to Supplier. Supplier will not be responsible for the restoration or reinstallation of any programs or data. When returning Client Products or part of a Client Product, OEM will only include the Client Product or part that the Supplier Support Services technician requested.
3. Whole Unit Replacement; Failure to Return; Service Part Ownership.  If Supplier determines that a component of the defective Client Product is one that is easily disconnected and reconnected, or if the Supplier analyst determines that the Client Product is one that should be replaced as a whole Client Product, Supplier reserves the right to send OEM a component or whole replacement Client Product, as applicable. If Supplier delivers either a whole replacement Client Product or a component of a Client Product to OEM, OEM must return the defective Client Product or component to Supplier within ten days of receiving the replacement, unless OEM has purchased “Keep Your Hard Drive” for the affected Client Product.  In that event, OEM may retain the applicable hard drive(s). Supplier will own all Supplier components removed from the Client Products and whole Client Products that OEM returns to Supplier. If OEM keeps a component or whole Client Product after Supplier has replaced it, then OEM must pay Supplier the then-current retail price for the component or whole Client Product, as applicable, that OEM keeps (except for hard drives from Client Products covered by “Keep Your Hard Drive” service). .Supplier will invoice OEM for the whole Client Product or components that OEM keeps and OEM will pay Supplier’s invoice within ten days of receipt.  If OEM does not pay Supplier’s invoice within ten days after receipt, in addition to any other legal rights and remedies available to Supplier, Supplier may terminate the applicable Service Description by providing written notice to OEM. Supplier uses and OEM expressly authorizes the use of new and reconditioned parts made by various manufacturers in performing repairs and in providing replacement parts.  The obligation to return Supplier components removed from the Client Products do not apply to OEMs that retain hard drives who have purchased “Keep Your Hard Drive” for the affected Client Product.  In that event, OEM’s service levels and obligations are governed by the Keep Your Hard Drive Service Agreement.
4. Parts Stocked; Critical Parts. Supplier currently stocks parts in various locations throughout the world. Selected parts may not be stocked in the location closest to OEM's site. If a part that is needed to repair the Client Product is not available from a Supplier facility near OEM's location and must be transferred from another facility, it will be shipped as soon as is practical and commercially reasonable. Certain Supplier parts locations stock critical parts, as determined by Supplier, to supply parts for same business day response times. A critical part is one that, upon failure, may prevent the Client Product from performing its basic functions. Supplier may, in its discretion, ship these parts using overnight delivery.  In order to receive parts on a two- or four-hour basis, OEM must purchase a corresponding Service entitlement that supports same day response times for critical parts delivery and the Product must be located within the Supplier-designated supported coverage area.  Parts Supplier deems non-critical include, but are not limited to: software, media drives, modems, speakers, sound cards, zip drives, monitors, keyboards, and mice.
5. Other Service Exclusions. In the course of performing Support Services, Supplier will not be responsible for: (i) providing performance, training, or administrative assistance, installation, de-installation, relocation, preventative maintenance, remote administration, or any activities or services not expressly described in the applicable Service Agreement(s); (ii) providing media replacement, operating supplies, cosmetic accessories or parts such as frames, and cover or support on those items; (iii) direct third party product support or collaborative assistance of versions not currently supported by the manufacturer, vendor, or partner; (iv) support for the hardware, software, or both pre-installed or post-installed by a third party OEM, unless it is covered by a separate Service Agreement between Supplier and OEM; (v) removing malicious software; (vi) providing data backup; (vii) providing advanced wireless, networking or remote installation, set-up, or optimization and configuration of applications beyond those described in the Supplemental Services Term; (viii) repairing damage or defects in Client Products that are purely cosmetic and do not affect device functionality; (ix) providing repairs that are necessary because: (a) OEM previously installed a OEM replaceable unit; or (b) someone other than Supplier or an authorized service provider previously altered, adjusted, or repaired the Client Product.
6. Transferability.  OEM has the limited right to transfer Software on a permanent basis as part of the sale or transfer of the hardware system on which the Software is loaded, provided that: (i) OEM retains no copies of any version of the Software; and (ii) the transfer includes the most recent update and all prior versions of the Software.
7. Terms Applicable to Dell Wyse Products

• H. (1).    Use Rights and Restrictions.  Dell Wyse Windows Embedded Thin Clients are intended to be used as thin clients only and not as personal computers. Supplier is not responsible for and will not warrant, support, repair or replace any thin client device or component that is not used for its intended purpose. As an example, and without limitation, any operation of a Dell Wyse Windows Embedded Thin Client with the write filter turned off during regular use (except as required for image upgrades, applying security patches, registry changes, and application installation) is beyond the scope of the intended purpose, will prematurely wear out the Flash/SSD storage and will invalidate the thin client product warranty. In addition, enabling the Windows Page File is beyond the scope of the intended purpose and will invalidate the thin client product warranty.

• H. (2).    Adobe and Microsoft Software.  Certain Dell Wyse Thin Clients include software that is subject to the license terms for Adobe Systems Incorporated/Adobe Systems Software Ireland Limited located at https://www.adobe.com/products/eulas/pdfs/PlatformClients_PC_WWEULA-MULTI-20110809_1357.pdf  Adobe and Flash are trademarks or registered trademarks of Adobe Systems Incorporated in the United States, other countries or both. Certain Supplier Wyse Thin Clients may also include software that is licensed by Microsoft under terms that prohibit Customer from locally running Desktop Functions on Thin Client Devices. For purposes of these terms, “Thin Client Device” means a OEM system that depends heavily on some other computer (such as a server) to fulfill its computational roles; and “Desktop Functions” means consumer or general purpose tasks or processes (such as using word processing, spreadsheet, or slide show presentation software) performed exclusively or primarily by a PC device.